EXHIBIT 10.33
LEASE
MERIDIAN BUSINESS CAMPUS AT WESTON
This LEASE is made on this 1st day of February 7 , 1993 between CMD
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FLORIDA FOUR LIMITED PARTNERSHIP, an Illinois limited partnership ("LESSOR"),
and UNITED STATIONERS SUPPLY CO., an Illinois corporation ("LESSEE").
A. LEASE. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, in "as is" condition, except to the extent expressly provided otherwise
herein, subject to and in accordance with the terms and conditions set forth
herein, the real estate ("SITE") described in Exhibit A attached hereto and made
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a part hereof, together with the Building (as hereinafter defined) and all other
improvements located on the Site (collectively, the "IMPROVEMENTS") (the Site,
together with the Improvements, referred to collectively herein as the
"PREMISES"), subject to all covenants, conditions, restrictions and easements
set forth in that certain Declaration of Covenants, Conditions, Restrictions and
Easements of the Meridian Business Campus at Weston, dated May 17, 1989,
recorded on August 4, 1989 in the Official Records Book 165654, Pages 386-420,
of Broward County, Florida, under Clerk's File No. 89312588, as amended from
time to time ("CERs").
B. USE. Lessee may use the Premises for a general office and warehouse,
and for no other purpose without the prior written consent of Lessor. As long
Lessee is not in default under this Lease, Lessee shall have quiet enjoyment of
the Premises, subject to the terms and conditions set forth in this Lease, free
of disturbance from Lessor or anyone claiming by or through Lessor.
C. LEASE TERM. The term of this Lease ("LEASE TERM") shall be the period
beginning on and including the date ("COMMENCEMENT DATE") which is the first
Business Day following the Completion Date (as hereinafter defined) and ending
on and including the date ("EXPIRATION DATE") which is next preceding the 10th
anniversary of the Commencement Date, as extended from time to time pursuant
this Lease. Lessor and Lessee shall execute and deliver to the other a written
memorandum which confirms the Commencement Date, the Expiration Date and the
Lease Term. The term "BUSINESS DAY" means any day of the week except Saturday,
Sunday and any holiday on which employees of the State of Florida are generally
not required to work.
D. INITIAL IMPROVEMENTS. Lessor shall diligently proceed to design and
make the improvements to the Site ("BUILDING") described on and substantially in
accordance with the plans attached hereto as Exhibit B and made a part hereof
("PLANS"), all subject to and in accordance with the terms and conditions of
this Section.
(1) CONSTRUCTION. Lessor shall cause the Building to be substantially
completed on or before July 1, 1993 ("SCHEDULED COMPLETION DATE"), subject
to all delays beyond the reasonable control of Lessor, its agent and
contractors, and subject to the terms and conditions set forth in this
Lease.
(2) COMPLETION. The term "COMPLETION DATE" means earlier of (A) the
date on which Lessor delivers to Lessee a copy of a certificate of
occupancy issued by Broward County, Florida for the occupancy of the
Premises ("CERTIFICATE OF OCCUPANCY"), and (B) the date that a Certificate
of Occupancy would have been issued but for delays caused by any work,
installation of equipment, application for use permits or licenses or other
governmental inspections, requirements occasioned by Lessee's use of the
Premises, or any other activities by Lessee, its agents or contractors.
(3) LESSEE'S WORK. Lessee, on and after the 30th day before the
Scheduled Completion Date, at its own cost and subject to all terms of this
Lease, may perform work in the Building, concurrently with Lessor's work,
to fit the Building for Lessee's occupancy ("LESSEE'S WORK"), provided that
Lessee's Work (A) will not interfere with any work by Lessor, its agent and
contractors, (B) will not cause any delays in the completion of the
Building, or (C) will not cause any discord with any agents or contractors
of Lessor. The performance by Lessee of any Lessee's Work prior to the
Completion Date shall be subject to all of the terms and provisions of this
Lease, excepting only those requiring the payment of rent. Without
limitation of any other terms and conditions of this of this Lease, (i)
Lessee shall defend, completely indemnify and hold forever harmless Lessor,
its agents and contractors from and against any and all liabilities, fines,
suits, claims, demands actions, causes of action, losses, costs, damages,
judgments and expenses of any kind or character, name or nature due to or
arising out of Lessee's Work, (ii) as a condition to Lessee's right to
perform any Lessee's Work, Lessee shall maintain all insurance, and deliver
all insurance certificates and policies, required under Section 7 of the
General Terms and Conditions of this Lease during all periods of Lessee's
Work, (iii) Lessor shall have no liability, and Lessee hereby waives all
claims, for any damages caused by Lessor to any property of Lessee, any of
Lessee's Work, or any equipment and materials installed by Lessee in the
Premises.
(4) POSSESSION. Except to the extent expressly provided in this
subsection (4), Lessee hereby waives all claims against Lessor with respect
to the failure of the Completion Date to have occurred on or before the
Scheduled Completion Date. If the Completion Date occurs after the 30th day
after the Scheduled Completion Date, and the delay in the Completion Date
is not caused by any Lessee Delays, any Uncontrollable Delays or any
General Contractor Delays, then, as Lessee's sole and exclusive remedy
therefor, there shall be a credit against the first payments of Annual Base
Rent next due under this Lease in an amount, until exhausted, equal to
$2000.00 for each day of delay. If the Completion Date occurs after the
30th day after the Scheduled Completion Date, and the delay in the
Completion Date is not caused by any Lessee Delays, but is caused by any
Uncontrollable Delays or General Contractor Delays, then, as Lessee's sole
and exclusive remedy therefor, there shall be a credit against the first
payments of Annual Base Rent next due under this Lease in an amount, until
exhausted, equal to the
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lesser of (A) $2000.00 for each day of delay and (B) $60,000.00. The term
"LESSEE DELAYS" means any delays caused by Lessee, its agents or
contractors. The term "Uncontrollable Delays" means any delays, other than
Lessee Delays or General Contractor Delays, caused by reasons beyond the
reasonable control of Lessor. The term "GENERAL CONTRACTOR DELAYS" means
all delays caused by the failure of the General Contractor to complete its
obligations under the General Construction Contract on or before July 1,
1993.
(5) WARRANTIES.
(a) Lessor shall cause the contract with the general contractor
("GENERAL CONTRACTOR") for the construction of the Building to include
a warranty in the form of Exhibit C attached hereto and made a part
hereof ("GENERAL CONSTRUCTION WARRANTY"). Lessor shall deliver to
Lessee after the Completion Date copies of the General Construction
Warranty and all warranties obtained by Lessor with respect to the
Building covering equipment, systems, appliances and materials from the
suppliers thereof (collectively, the "WARRANTIES").
(b) If Lessee believes that there is a defect ("DEFECT") in the
construction of the Building which is covered by any of the Warranties,
then Lessee shall deliver to Lessor, after the Completion Date, a
written notice ("DEFECT NOTICE") which sets forth in reasonable detail
a description of the Defect. Lessor shall elect, by written notice to
Lessee within 10 days after Lessor receives the Defect Notice, to
either (a) enforce the Warranties in order to cause the correction of
the Defect, or (b) to assign to Lessee all of Lessor's rights under the
Warranties with respect to the Defect.
(c) Lessor makes no warranties or representations with respect to
the condition of the Site, Building, Premises, or any part thereof,
except to the extent expressly set forth in this Lease.
E. BASE RENT.
(1) ANNUAL BASE RENT. Lessee shall pay base rent to Lessor at the
following annual rates ("ANNUAL BASE RENT") applicable during each of the
following respective periods:
(a) During the period commencing on and including the
Commencement Date and ending on and including the date next preceding
the 1st anniversary of the Commencement Date, the Annual Base Rent
shall be $495,000.00.
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(b) During the period commencing on and including the 1st
anniversary of the Commencement Date and ending on and including the
date next preceding the 3rd anniversary of the Commencement Date, the
Annual Base Rent shall be $502,500.00.
(c) During the period commencing on and including the 3rd
anniversary of the Commencement Date and ending on and including the
date next preceding the 6th anniversary of the Commencement Date, the
Annual Base Rent shall be $553,500.00.
(d) During the period commencing on and including the 6th
anniversary of the Commencement Date and ending on and including the
date next preceding the 9th anniversary of the Commencement Date, the
Annual Base Rent shall be $607,500.00.
(e) During the period commencing on and including the 9th
anniversary of the Commencement Date and ending on and including the
date next preceding the 10th anniversary of the Commencement Date, the
Annual Base Rent shall be $669,000.00.
(2) MONTHLY BASE RENT. All amounts of Annual Base Rent shall be
payable in equal monthly installments ("Monthly Base Rent") each equal to
one twelfth (1/12) of the Annual Base Rent in effect during such month, in
advance on the Commencement Date and on the first day of each calendar
month thereafter of the Lease Term. Notwithstanding anything in this
subsection (2) to the contrary, (a) if the Commencement Date occurs on a
date other than the first day of a calendar month, the amount of the
Monthly Base Rent payable on the Commencement Date shall be prorated based
on the number of days from and including the Commencement Date through and
including the last day of such calendar month and a calendar month
consisting of thirty (30) days, (b) if the last day of the Lease Term
occurs on a day other than the last day of a calendar month, then the
amount of Monthly Base Rent payable on the first day of such calendar month
shall be prorated based on the number of days of such month which fall
within the Lease Term and a calendar month consisting of thirty (30) days,
and (c) the amount of the Monthly Base Rent payable on the first day of
each calendar month in which more than one rate of Annual Base Rent are
applicable shall be the sum of the amounts of the Monthly Base Rent payable
during each portion of such month during which each of such rates is
applicable prorated based on the number of days in such calendar month
during which each of such rates is applicable and a calendar month
consisting of thirty (30) days.
(3) REST DEPOSIT. Lessee shall deliver to Lessor, simultaneously with
the execution and delivery of this Lease by Lessee, an amount equal to
$41,250.00 ("RENT
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DEPOSIT"). Notwithstanding anything herein to the contrary, the Rent
Deposit shall be applied to the first payment of Monthly Base Rent payable
hereunder.
F. SECURITY DEPOSIT. [Intentionally Omitted].
G. EXTENSION OPTIONS.
(1) FIRST EXTENSION OPTION. Subject to the terms of this Section G,
Lessee shall have the right ("FIRST EXTENSION OPTION") to extend the term
of this Lease for the period ("FIRST EXTENSION TERM") beginning on and
including the 10th anniversary of the Commencement Date and ending on and
including the date next preceding the 15th anniversary of the Commencement
Date. All of the terms of this Lease shall be applicable during the First
Extension Term, except as follows:
(a) The Annual Base Rent during the period beginning on and
including the 10th anniversary of the Commencement Date and ending on
the date next preceding the 12th anniversary of the Commencement Date
shall be the Annual Base Rent applicable immediately before the first
day of the First Extension Term; and
(b) the Annual Base Rent during the period beginning on and
including the 12th anniversary of the Commencement Date and ending on
the date next preceding the 15th anniversary of the Commencement Date
shall be 110% of the Annual Base Rent applicable immediately before the
12th anniversary of the Commencement Date.
(2) SECOND EXTENSION OPTION. Subject to the terms of this Section G,
and provided that Lessee exercised the First Extension Option in accordance
with the terms of Section G(1) hereof, Lessee shall have the right ("SECOND
EXTENSION OPTION") to extend the term of this Lease for the period ("SECOND
EXTENSION TERM") beginning on and including the 15th anniversary of the
Commencement Date and ending on and including the date next preceding the
20th anniversary of the Commencement Date. All of the terms of this Lease
shall be applicable during the Second Extension Term, except that the
Annual Base Rent during the Second Extension Term shall be the Final Market
Rent determined for the Second Extension Option pursuant to Section G(5)
hereof.
(3) DEFINITIONS. Each of the First Extension Option and the Second
Extension Option is referred to individually and respectively as an
"EXTENSION OPTION". "EXTENSION TERM" means the First Extension Term with
respect to the First Extension Option, and the Second Extension Term with
respect to the Second Extension Option.
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(4) EXERCISE. Lessee shall exercise each Extension Option by
delivering written notice of such exercise (with respect to a particular
Extension Option, the "EXTENSION OPTION NOTICE") on or before the 210th day
before the first day of the Extension Term with respect to such Extension
Option (with respect to a particular Extension Option, the "EXTENSION
EXERCISE DATE"). The right of Lessee to exercise each respective Extension
Option is hereby expressly made conditioned upon this Lease being in full
force and effect and Lessee not being in material default under any terms
and conditions thereunder, both as of the Extension Exercise Date with
respect to such Extension Option, and as of the first day of the Extension
Term with respect to such Extension Option. If Lessee fails to deliver to
Lessor an Extension Option Notice with respect to a particular Extension
Option on or before the Extension Exercise Date with respect to such
Extension Option, then Lessee shall be deemed to have forever waived any
and all rights to extend the term of this Lease pursuant to this Section G.
(5) DETERMINATION OF FINAL MARKET RENT. The term "FINAL MARKET RENT"
means the Final Market Rent determined in accordance with this Section
G(5). Lessor shall deliver to Lessee, within 10 days after date on which
Lessee delivers to Lessor the Extension Option Notice with respect to the
Second Extension Option, a written notice ("PROPOSED RENT NOTICE") which
sets forth the amount of Annual Base Rent ("PROPOSED RENT") for which
Lessor is willing to lease the Premises to a third party during the Second
Extension Term. If Lessee approves the Proposed Rent, then Lessee shall,
within the 10 day period after the delivery of the Proposed Rent Notice
from Lessor to Lessee ("APPROVAL PERIOD"), deliver to Lessor a written
notice which approves the Proposed Rent ("APPROVAL NOTICE"). If Lessee
delivers an Approval Notice to Lessor within the Approval Period, then the
Final Market Rent shall be the Proposed Rent. If Lessee fails to deliver an
Approval Notice to Lessor within the Approval Period, then Lessor and
Lessee shall negotiate in good faith to agree in writing on the amount of
Annual Base Rent during the Second Extension Term ("AGREED RENT"). If
Lessor and Lessee execute and deliver to each other, within 20 days after
expiration of the Approval Period, a written agreement which sets forth an
Agreed Rent, then the Final Market Rent shall be the Agreed Rent. If Lessor
and Lessee fail to execute and deliver to each other, within 20 days after
expiration of the Approval, a written agreement which sets forth an Agreed
Rent, then the Extension Option Notice shall be deemed withdrawn, the
Second Extension Option shall be deemed terminated and of no further force
and effect, and Lessee shall be deemed to have waived any and all right to
extent the term of this Lease for the Second Extension Term pursuant to
Section G(2) hereof.
H. PURCHASE OPTION. Provided that this Lease is in full force and effect,
that Lessee is not in default hereunder, and that Lessee has not exercised the
First Extension Option, Lessee shall have the option ("PURCHASE OPTION") to
purchase the Premises for $6,850,000.00 ("PURCHASE PRICE") on the date ("CLOSING
DATE") next preceding the 10th anniversary of the Commencement Date, all in
accordance with and subject to the terms and
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conditions set forth in this Section H. If Lessee desires to exercise the
Purchase Option, then, on or before the 210th day before 10th anniversary of the
Commencement Date, Lessee shall (A) execute and deliver to Lessor a written
purchase agreement in substantially the form and substance of Exhibit D attached
hereto and made a part hereof ("PURCHASE AGREEMENT"), and (B) deliver to Lessor
an earnest money deposit equal to 5% of the Purchase Price ("EARNEST MONEY
DEPOSIT") pursuant to Section 2(A) of the Purchase Agreement. If Lessee executes
and delivers the Purchase Agreement, and delivers the Earnest Money Deposit, to
Lessor on or before the 210th day before the 10th anniversary of the
Commencement Date, then Lessor shall execute and deliver the Purchase Agreement
to Lessee within 10 days after the execution and delivery of the Purchase
Agreement, and the delivery of the Earnest Money Deposit, by Lessee to Lessor.
If, on or before the 210th day before the 10th anniversary of the Commencement
Date, Lessee fails to execute and deliver the Purchase Agreement, or fails to
deliver the Earnest Money Deposit, to Lessor, then the Purchase Option and all
rights of Lessee under this Section H shall be deemed terminated.
(1) MISCELLANEOUS.
(a) If Lessee waives or fails to exercise the Purchase Option,
Lessor may, at any time, request Lessee to acknowledge in writing such
waiver or failure to exercise the Option. Lessee shall deliver to
Lessor such written acknowledgment no later than 15 days after Lessor's
request for such acknowledgment. The failure by Lessee to deliver such
acknowledgement within such period shall be deemed a default under this
Lease without the benefit of any grace or cure periods.
(b) The rights of Lessee under this Section H are for the sole
benefit of United Stationers Supply Co., an Illinois corporation
("USSCO"), and all entities ("USSCO AFFILIATES") which own and control
USSCO, are owned and controlled by USSCO, or are under common ownership
and control with USSCO, and shall automatically terminate upon any
assignment of this Lease, sublease of the Premises, or other transfer
of this Lease or any rights of Lessee hereunder, except to a USSCO
Affiliate.
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I. INCORPORATION. All of the terms and conditions contained in the General
Terms and Conditions attached hereto are hereby incorporated and made a part
hereof as though all of such terms and conditions had been fully set forth
herein.
LESSOR:
CMD FLORIDA FOUR LIMITED PARTNERSHIP,
an Illinois limited partnership
By: CMD DEVELOPMENT OF FLORIDA, INC.,
a Florida corporation, its
general partner
By: _____________________________
Its: ____________________________
LESSEE:
UNITED STATIONERS SUPPLY CO.,
an Illinois corporation
By: _________________________
Its _________________________
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GENERAL TERMS AND CONDITIONS
1. TAXES. On the first day of each month during the Lease Term, Lessee
shall pay to Lessor, as additional rent, an amount equal to one-twelfth (1/12)
of the estimated Taxes (as hereinafter defined), such estimate to be made by
Lessor.
Upon receipt of bills for Taxes, Lessor will make payment thereof and
promptly provide Lessee with a copy of the receipted bill.
Adjustments of amounts paid (credit or debit) shall be made between the
parties within thirty (30) days of the delivery to Lessee of any such receipted
bill. All Taxes shall be prorated for the first and last years of the term
hereof and any extension or renewal thereof. Proration of the Taxes for the last
year of the term shall be made on the basis of the last available tax bill,
provided, however, that upon receipt of the tax bill an appropriate reproration
will be made. This obligation shall survive the termination of the Lease.
For the purposes of this Section "Tax" and "Taxes" shall mean ad valorem
real estate taxes and other taxes and assessments (including special and
extraordinary assessments) charges and fees imposed on the Site by public
authority. If, due to a future change in the method of taxation any franchise,
income, profit, excise or other tax, however designated, shall be levied against
Lessor in substitution in whole or in part for or in lieu of any tax which would
otherwise constitute a real estate tax such other tax shall be deemed to be a
real estate tax for the purposes hereof.
Lessee may, at its sole cost and expense, contest any assessment or levy of
Taxes, provided that Lessee either pays such Taxes under protest or deposits
with Lessor, prior to the date on which such Taxes are due and payable, an
amount which is necessary to pay the total amount of such Taxes, together with
all penalties and interest in the event that such contest is unsuccessful.
2. SPECIAL OPERATING EXPENSES. On the first day of each month during the
Lease Term, Lessee shall pay to Lessor, as additional rent, an amount equal to
One-twelfth (1/12) of the estimated annual Operating Expenses (as hereinafter
defined), such estimate to be made by Lessor.
Lessor shall submit to Lessee no less frequently than annually Lessor's
statement of the Operating Expenses for the previous calendar year and Lessor's
estimate of the increase or decrease if any for the forthcoming calendar year.
Lessor will make available to Lessee and Lessee's consultants, upon Lessee's
written request, reasonable access to Lessor's records on which such Operating
statements are based.
Adjustments of amounts paid (credit or debit) shall be made between the
parties within thirty (30) days of the delivery to Lessee of such a statement.
All Operating
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Expenses shall be prorated for the first and last years of the term hereof and
any extension renewal thereof. Proration of the Operating Expenses for the last
year of the term shall be made on the basis of the last estimate made by Lessor,
provided, however that upon receipt of a new statement showing the actual
Operating Expenses an appropriate reproration shall be made. This obligation
shall survive the termination of the Lease.
Subject to the further provisions hereof, for the purposes of this Section,
Operating Expenses shall means all assessments payable by Lessor and levied with
respect to the Site under the CCR's or by Meridian Business Campus at Weston
Owners Association.
3. SECURITY DEPOSIT. [Intentionally Omitted].
4. INTEREST ON PAST DUE OBLIGATIONS. Except as expressly provided, rentals
and other amounts due to Lessor, which are not paid when due, shall bear
interest ("DEFAULT INTEREST") at the rate per annum equal to 5% plus the prime
rate of interest announced from time to time by The First National Bank of
Chicago, or the highest legal rate, whichever is less, from the date due.
Payment of such interest shall not excuse or cure any default by Lessee under
this Lease.
5. HOLDOVER RENT. In the event Lessee remains in possession of the
Premises after the expiration of the term of this Lease, or any extension
hereof, without the written consent of Lessor, Lessee shall then be obligated to
pay 150% the rate of the Monthly Base Rent applicable on the last day of the
Lease Term as set forth herein, in equal monthly installments on the first day
of each calendar month, and all amounts of Taxes, Operating Expenses and other
amounts payable under this Lease, for so long as Lessor is willfully kept out of
possession of the Premises. No such payment, nor the acceptance thereof, shall
in any way constitute a waiver of the rights of Lessor to dispossess Lessee and
recover possession of the Premises and the just and former estate of Lessor and
to bring any action for damages suffered by Lessor on account of Lessee's
failure to vacate the Premises.
6. PERSONAL PROPERTY TAXES. Lessee agrees to pay or cause to be paid,
before delinquency, any and all taxes levied or assessed and which become
payable during the term hereof upon all equipment, furniture, trade or other
fixtures and other personal property located in the Premises.
7. INSURANCE.
A. Lessee, at Lessee's expense, and for mutual benefit of Lessor and
Lessee, shall maintain in force during the term of the Lease: (1)
Comprehensive Public Liability Insurance, covering the Premises in an
amount not less than ONE MILLION DOLLARS ($1,000,000), including the
following coverages:
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premises/operations, independent contractors, personal injury, broad form
property damage and contractual liability; (2) All-Risk property insurance
with extended coverage and vandalism and malicious mischief endorsements,
in an amount adequate to cover the full replacement value of the Building,
all leasehold improvements paid for by Lessee, and all trade fixtures and
contents of Lessee in the Premises.
B. The policy referred to in 7. A.(1) shall name Lessor, any manager
designated by Lessor, from time to time, and their respective agents and
employees, as additional insureds, and shall not provide for deductible
amounts. The policy referred to in 7.A.(2) shall not provide for deductible
amounts in excess of $100,000. Each policy referred to in 7.A. shall be
issued by one or more responsible insurance companies reasonably
satisfactory to Lessor and shall contain the following provisions and
endorsements: (i) that such insurance may not be canceled or amended
without Thirty (30) days prior notice to Lessor and the manager, if any;
(ii) an express waiver of any right of subrogation by the insurance company
against Lessor, the manager, if any, and their respective agents and
employees; and (iii) that the policy shall not be invalidated should the
insured waive, in writing, prior to a loss, any and all rights of recovery
against any other party for losses covered by such policies. Lessee agrees
to pay to Lessor all amounts which would have been paid under any of such
insurance policies had there been no deductibles thereunder.
C. Lessee shall deliver to Lessor, certificates of insurance of all
policies and renewals thereof to be maintained by Lessee hereunder, not
less than Ten (10) days prior to the commencement of the term of this Lease
and not less than Ten (10) days prior to the expiration date of each
policy. Provided that the insurance policies of Lessee will not be
invalidated nor will the right of the insured to collect the proceeds
payable under such policies be adversely affected by the waiver contained
in the following portion of this sentence, Lessee hereby expressly waives
all rights of recovery which it otherwise might have against Lessor, its
manager, if any, their respective agents and employees, for loss or damage
to person, property or business to the extent that such loss is covered by
valid and collectible insurance policies, notwithstanding that such loss or
damage may result from the negligence of Lessor, its manager, their
respective agents or employees. Lessee shall use its best efforts to obtain
from its insurer the right to waive claims as set forth in the preceding
sentence without thereby invalidating its insurance or affecting its right
to proceeds payable thereunder.
D. Lessor shall under no circumstances, be liable for any loss or
destruction of, damage to or shortage of equipment, inventory, merchandise
or any other type of personal property that may be placed or suffered to be
placed on or about the Premises, the Building or the Site by Lessee, its
agents, business invitees or the successors or assigns of any of them, it
being the intention of the parties that all risk of any such destruction,
loss, damage or shortage be borne by Lessee.
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8. SERVICES AND UTILITIES. All utilities shall be separately metered for
the Premises and paid for by Lessee directly to the billing party. Lessor shall
not be liable for, and Lessee shall not be entitled to any abatement or
reduction of rental by reason of, the lack of availability of any of the
foregoing when such failure is caused by accidents, breakage, repairs, strikes,
lockouts or other labor disturbances or labor disputes of any character, or by
any other cause, similar or dissimilar, beyond the reasonable control of Lessor.
Lessor shall not be liable under any circumstances for loss of or injury to
property, however, occurring through or in connection with or incidental to
failure to furnish, or failure or the refusal of a public utility to furnish,
any of the foregoing service facilities.
Lessee will not, in any way overload the electrical system of the Building,
nor without the written consent of Lessor connect with electric current,
telephone or water except through existing electrical outlets and water pipes in
the Premises. If Lessee shall require water, telephone service, or electric
current in excess of that capable of being transmitted by the facilities
existing in the Building and/or Premises, at the commencement of this Lease
Term, Lessee shall first produce the written consent of Lessor, which Lessor may
refuse in its sole discretion. The cost of any Lessor approved additional
equipment, its installation, maintenance and repair shall be paid for by Lessee
promptly on demand. Lessee shall also pay for all such electric current consumed
as shown on the utility meters pertaining to the Premises, such payment to be
made directly to the utility in a timely manner.
9. USES PROHIBITED. Lessee will not breach or suffer the breach of any of
the covenants, conditions, or restrictions of record affecting the Site, the
Building and/or the Premises including, without limitation the CCR's, and shall
use and occupy the Premises Building and Site in strict compliance therewith.
Lessee shall do or permit anything to be done in or about the premises nor bring
or keep anything therein which will in any way increase the existing premium
rate or otherwise affect any fire or other insurance upon the Building or any of
its contents, or cause a cancellation of any insurance policy covering said
Building or any part thereof or any of its contents including the property of
other tenants. Lessee shall not use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Lessee cause,
maintain or permit any nuisance in, on or about the Premises.
10. COMPLIANCE WITH LAW. Lessee shall not use the Premises nor permit
anything to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Lessee shall at its sole cost and
expense promptly comply with all laws, statutes, governmental rules, regulations
or requirements now in force or which may hereafter be in force and with
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use or occupancy
of the Premises, excluding structural changes not related to or affected by
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Lessee's improvements or acts. The judgment of any court of competent
jurisdiction or the admission of Lessee in any action against Lessee, whether
Lessor be a party thereto or not, that Lessee has violated any law, statute,
ordinance or governmental rule, regulation or requirements, shall be conclusive
of that fact as between Lessor and Lessee.
Lessee has investigated the zoning classification and other rules,
ordinances, laws and regulations promulgated by Public Authority, the CCR's and
has satisfied itself that its intended use of the Premises is not in violation
thereof.
11. ALTERATIONS. Lessee shall not make or suffer to be made any
alterations, additions or improvements to or of the Premises or any part thereof
without the written consent of Lessor first had and obtained and any
alterations, additions or improvements to or of said Premises, except movable
furniture and trade fixtures, shall at once become a part of the realty and
belong to Lessor. All alterations, additions or improvements to the Premises by
Lessee shall be made by Lessee at Lessee's sole cost and expense and any
contractor or person selected by Lessee to make the same must first be approved
in writing by Lessor. All such alterations, additions and improvements and the
removal, restoration and repairs hereafter described shall be completed in a
good workmanlike manner with materials and labor in kind and quality similar to
that originally in the Premises and free and clear of all liens for labor, taxes
or material. Upon demand, Lessee shall provide Lessor with such waivers of lien
and other documents as Lessor reasonably requires to ascertain that the
provisions of this Section 11 have been complied with. Upon the expiration or
sooner termination of the Term, Lessee shall, upon demand by Lessor, at Lessee's
sole cost and expense, forthwith and with all due diligence, remove any
alterations, additions or improvements made by Lessee and designated by Lessor
to be removed, and Lessee shall, forthwith and with all due diligence at its
sole cost and expense, repair any damage to the Premises, the Building, or the
Site caused by such removal, restoring the Premises, the Building, and the Site
to the same condition as existed at the commencement of the Lease Term,
reasonable wear and tear excepted. Notwithstanding anything in this Section 11
to the contrary, Lessee may make alterations, additions or improvements to or of
the Premises or any part thereof without the prior written consent of Lessor
("PERMITTED ALTERATIONS") provided that (a) prior to the commencement of any
particular Permitted Alterations, Lessee delivers to Lessor plans and
specifications therefor prepared by an architect licensed by the State of
Florida, and all other information with respect thereto reasonably requested by
Lessor (collectively, "ALTERATIONS DOCUMENTS"), (b) the Permitted Alterations
are completely within the interior of the Building, not visible from the
exterior of the Building, and do not affect the structure or materially impair
the electrical, plumbing, heating, ventilation, air conditioning or other
systems of the Building, (c) the cost of any particular Permitted Alterations
does not exceed $25,000, and (d) the cost of any particular Permitted
Alterations, together with the cost of all other Permitted Alterations which
either were made or for which Lessee has delivered Alteration Documents within
the 12 month period prior to the date on which Lessee delivers Alteration
Documents to Lessor for such Permitted Alterations, does not exceed $100,000.
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12. MAINTENANCE AND REPAIR. Lessee shall maintain, repair and preserve the
Premises and improvements therein, including without limitation all plumbing,
mechanical and electrical systems, the heating, ventilating and air-conditioning
system servicing the Premises, all windows and doors in the Premises, toilets
and sinks; shall perform all necessary cleaning of the Premises, including
walls, windows, doors and floors; and shall replace all inoperative light bulbs
and ballasts and broken glass.
In the event Lessee fails to commence such repairs as are necessary to
maintain the Premises in good condition, within Fifteen (15) days after notice
from Lessor, or fails to diligently prosecute the same to completion, Lessor at
its option and without any obligation so to do, may make restorations as are
necessary to such maintenance, and amounts expended for such work by Lessor
shall be reimbursed by Lessee as additional rent hereunder promptly on demand,
together with Default Interest from the date of expenditure.
Lessee shall, upon the expiration or sooner termination of the term hereof,
surrender the Premises to Lessor in the same condition as when received,
ordinary wear and tear and damage by fire, earthquake, act of God or the
elements excepted. Notwithstanding the ordinary wear and tear exception to
Lessee's obligation to restore, Lessee shall keep and maintain the Premises in a
neat, clean and orderly appearance and shall suffer no abuse of the Premises,
nor waste thereof to be committed. It is specifically understood and agreed that
Lessor has no obligation and has made no promises to alter, improve, repair,
decorate or paint the Premises or any part thereof and that no representations
respecting the condition of the Premises or the Building of which the Premises
are a part have been made by Lessor to Lessee except as specifically herein set
forth.
13. LIENS. Lessee shall keep the Premises and the Building and Site in
which the Premises are situated free from any liens arising out of any taxes or
judgments levied against Lessee or arising out of any labor or materials
furnished or claimed to be furnished in connection with any construction, or
alteration or repair, performed or claimed to have been performed, on the
Premises, the Building or the Site at the direction or sufferance of Lessee
whether such labor or materials were furnished or claimed to have been furnished
prior or subsequent to the commencement of the Lease Term. Lessor shall keep the
Premises and the Building and Site in which the Premises are situated free from
any liens arising out of any judgments levied against Lessor (except to the
extent such judgments are caused by the failure of Lessee to perform any of its
obligations under this Lease) or arising out of any labor or materials furnished
or claimed to be furnished in connection with any construction, or alteration or
repair, performed or claimed to have been performed, on the Premises, the
Building or the Site at the direction or sufferance of Lessor whether such labor
or materials were furnished or claimed to have been furnished prior or
subsequent to the commencement of the Lease Term.
14. ABANDONMENT. Lessee shall not abandon the Premises at any time during
the Term.
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15. ASSIGNMENT AND SUBLETTING. Lessee shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease, or any interest therein,
and shall not sublet said Premises or any part thereof, or any right or
privilege appurtenant thereto, or suffer any other person (the agents and
servants of Lessee, and USSCO Affiliates, excepted) to occupy or use said
Premises, or any portion thereof, without the written consent of Lessor first
had and obtained, and a consent to one assignment, subletting, occupation or use
by any other person shall not be deemed to be a consent to a subsequent
assignment, subletting, occupation or use by that same or another person. Any
such assignment or subletting without such consent shall be void, and shall, at
the option of Lessor, terminate this Lease. This Lease shall not, nor shall any
interest therein, be assignable as to the interest of Lessee by operation of
law, without the written consent of Lessor. A transfer of a controlling interest
in Lessee (except to a USSCO Affiliate) shall be deemed a transfer which is
prohibited under this Section 15 without the prior written consent of Lessor.
Notwithstanding anything in this Section 15 to the contrary, Lessor shall not
unreasonably withhold its consent to any assignment by Lessee of all of its
interests under this Lease or sublease of all of the Premises. Lessor shall not
be deemed to have unreasonably withheld such consent if such consent is withheld
for any one or more of the following reasons: (a) Lessee is in default
hereunder, (b) there is less than 12 months remaining in the Lease Term, (c) the
net worth of the proposed assignee or subtenant is less than the net worth of
Lessee as of the date hereof, (d) the proposed use of the Premises is other than
that permitted hereunder, (e) Lessor or its affiliates have had previous
unsatisfactory experience with proposed assignee or subtenant, or (f) any other
reasonable basis. Notwithstanding anything in this Lease to the contrary, Lessor
agrees that Lessee may, without the prior written consent of Lessor, assign all
of its interests under this Lease, or sublease all of the Premises, to a USSCO
Affiliate, provided that (A) Lessee delivers to Lessor within 10 days after the
effective date of such assignment or sublease a true and correct copy of such
assignment or sublease, and (B) no such assignment or sublease shall in any way
relieve the assignor or sublessor from any liability under this Lease.
As a condition precedent to the approval of any sublease, assignment or any
other type of transfer by Lessee to any third party (other than a USSCO
Affiliate) of all or any portion of any interest of Lessee in and to the
Premises, Lessee agrees that it will pay to Lessor in cash, contemporaneously
with the rental payments due hereunder, Fifty Percent (50%) of the value of
increased economic benefit received by Lessee, including without limitation rent
in excess of the rent reserved herein and in the event less than all of the
Premises are so transferred, Lessee shall pay to Lessor monthly, Fifty Percent
(50%) of any increase in the square foot rate of rent or other economic benefit
received by Lessee to Lessor.
The additional rent that Lessee pays to Lessor for the purpose of this
Section 15 shall be calculated by dividing such additional monthly rent payments
required to be made by Lessee by the square foot area of the Premises as set
forth hereinabove.
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16. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease
by Lessee, or a mutual cancellation thereof, shall not work a merger, and may,
at the option of Lessor, terminate all or any existing subleases or
subtenancies, or may, at the option of Lessor, operate as an assignment to it,
any or all such subleases or subtenancies.
17. INDEMNIFICATION OF LESSOR. To the extent permitted by law Lessee shall
defend, completely indemnify and hold forever harmless Lessor from and against
any and all liabilities, fines, suits, claims, demands actions, causes of
action, losses, costs, damages, judgments and expenses of any kind or character
name or nature due to or arising out of:
(a) any breach, violation or non performance of any covenant, obligation,
condition or agreement set forth in this Lease on the part of Lessee
to be fulfilled, kept, observed or performed; and/or
(b) any damage to, loss or destruction of any property arising directly or
indirectly out of Lessee's use or occupancy of the Premises; and/or
(c) any injury to any person, including death resulting at any time
therefrom occurring in or about the Premises.
In the event Lessor is made a party of any action or proceedings which
Lessee is required to defend pursuant to the provisions of this Lease, Lessor
shall have the right to appear and to take part in any such action or proceeding
by legal counsel of Lessor's choice.
Lessee shall pay to Lessor all costs and expenses incurred by Lessor in
connection with the enforcement of the terms, provisions, conditions or
covenants of this Lease, including, but not limited to, reasonable attorneys'
fees, provided that Lessor prevails in such enforcement. Lessor shall pay to
Lessee all costs and expenses incurred by Lessee in connection with the
enforcement of the terms, provisions, conditions or covenants of this Lease,
including, but not limited to, reasonable attorneys' fees, provided that Lessee
prevails in such enforcement.
Nothing herein shall be construed as obligating Lessee to indemnify or hold
harmless any party from and against the consequences of negligent or willful
acts or omissions of the party to be indemnified.
18. ENTRY BY LESSOR. Lessor reserves and shall at any and all reasonable
times, after reasonable prior notice to Lessee, have the right to enter the
Premises to inspect the same, alone or accompanied by representatives of
utilities and/or public authorities, to supply any service to be provided by
Lessor to Lessee hereunder, to submit said Premises to prospective purchasers or
tenants, to post notices of nonresponsibility, and to alter, improve or repair
the Premises and any portion of the Building of which the Premises are a part,
without abatement of rent, and may for that purpose erect scaffolding and other
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necessary structures where reasonably required by the character of the work to
be performed, always providing that the business of Lessee shall not be
interfered with unreasonably. For each of the aforesaid purposes, Lessor shall
at all times have and retain a key with which to unlock all of the doors in,
upon and about the Premises, excluding Lessee's vaults and safes, and Lessor
shall have the right to enter the Premises in an emergency and to use any and
all means which Lessor may deem proper to open said doors in such emergency, and
any entry to the Premises obtained by Lessor by any of said means shall not
under any circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction of Lessee from the
Premises or any portion thereof.
19. DEFAULT. If default shall be made in the payment of the rent, or any
installment thereof, or in the payment of any other charge or lien required to
be paid by Lessee under this Lease, or any other agreement between Lessor and
Lessee, and such default shall continue for Ten (10) days after written notice
thereof to Lessee, or if default shall be made in the performance of any of the
other covenants or conditions which Lessee is required to observe and perform
hereunder and such default shall continue for Thirty (30) days after written
notice thereof to Lessee, or if the interest of Lessee in this Lease shall be
levied on under execution or other legal process, or if any petition shall be
filed by or against Lessee to declare Lessee a bankrupt or to delay, reduce or
modify Lessee's debts or obligations, or if any petition shall be filed or other
action taken to reorganize or modify Lessee's capital structure, or if Lessee be
declared insolvent according to law, or if any assignment of Lessee's property
shall be made for the benefit of creditors, or if a receiver or trustee is
appointed for Lessee or its property, or if Lessee shall abandon the Premises
during the term of this Lease, then Lessor may treat the occurrence of any one
or more of the foregoing events as a breach of this Lease, and thereupon at its
option may, without notice or demand of any kind to Lessee or other person, have
any one or more of the following described remedies in addition to all other
rights and remedies now or hereafter provided at law or in equity:
(a) Lessor may re-enter the Premises with or without process of law
and take possession of the same and expel or remove Lessee and all other
parties occupying the Premises, using such force as so, without being
liable to any prosecution for such re-entry or for the use of such force
and without terminating this Lease, at any time and from time to time relet
the Premises or any part thereof for the account of Lessee, for such term,
upon such conditions and at such rental as Lessor may deem proper. In such
event, Lessor shall use reasonable efforts to receive and collect the rent
from such reletting and shall apply all rents actually collected against
any amounts due from Lessee hereunder (including without limitation such
expenses as Lessor may have incurred in recovering possession of the
Premises, placing the same in good order and condition, altering or
repairing the same for reletting, and all other expenses, commissions and
charges, including attorneys' fees, which Lessor may have paid or incurred
in connection with repossession and reletting). Lessor may execute any
Lease made
17
pursuant hereto in Lessor's name as Lessor may see fit, and Lessee
thereunder shall be under no obligation to see to the application by Lessor
of any rent collected by Lessor nor shall Lessee have any right to collect
any rent thereunder. Whether or not the Premises are relet, Lessee shall
pay Lessor all amounts required to be paid by Lessee up to the date of
Lessor's re-entry and thereafter Lessee shall pay Lessor, until the end of
the term hereof, the amount of all rent and other charges required to be
paid by Lessee hereunder, less the proceeds of such reletting during the
term hereof, if any, after payment of Lessor's expenses as provided above.
Such payments by Lessee shall be due at such times as are provided
elsewhere in this Lease, and Lessor need not wait until termination of this
Lease to recover them by legal action or otherwise. Lessor shall not, by
any re-entry or other act, be deemed to have terminated this Lease or the
liability of Lessee for the total rent hereunder unless Lessor shall give
Lessee written notice to Lessor's election to terminate this Lease, or;
(b) Lessor may give written notice to Lessee of Lessor's election to
terminate this Lease, reenter the Premises with or without process of law
and take possession of the same, and expel or remove Lessee and all other
parties occupying the Premises, using such force as may be reasonably
necessary to do, without being liable to any prosecution for such re-entry
or for the use of such force. In such event, Lessor shall thereupon be
entitled to recover from Lessee the worth, at the time of such termination,
of the excess, if any, of the rent and other charges required to be paid by
Lessee hereunder for the balance of the term hereof (if this Lease had not
been so terminated) over the then reasonable rental value of the Premises
for the same period.
20. WAIVER. The waiver by Lessor of any term, covenant or condition herein
contained, or any default of Lessee pertaining thereto shall not be deemed to be
a waiver of any subsequent breach of the same or any other term, covenant or
condition herein contained, nor shall any forbearance by Lessor to seek a remedy
for any default by Lessee be a waiver by Lessor of any of the rights and
remedies of Lessor hereunder or by law granted or permitted, with respect to
such, or subsequent default. The subsequent acceptance of rent hereunder by
Lessor shall not be deemed to be a waiver of any preceding breach by Lessee of
any term, covenant or condition of this Lease, other than the failure of Lessee
to pay the particular rental so accepted, regardless of Lessor's knowledge of
such preceding breach at the time of acceptance of such rent. The waiver by
Lessee of any term, covenant or condition herein contained, or any default of
Lessor pertaining thereto shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor shall any forbearance by Lessee to seek a remedy for any default by Lessor
be a waiver by Lessee of any of the rights and remedies of Lessee hereunder or
by law granted or permitted, with respect to such, or subsequent default.
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21. DEFAULT BY LESSOR. In the event of any default by Lessor, Lessee,
before exercising any rights that it may have at law to cancel this Lease, must
first send notice by certified or registered mail to Lessor at such place as
Lessor has designated for the sending of notices, and Lessor shall have a
reasonable opportunity to correct and cure the default.
22. RECONSTRUCTION. In the event the Building of which the Premises are a
part are damaged, then Lessor shall forthwith repair the same, provided the
extent of the destruction be less than Thirty-three Percent (33%) of the then
full replacement value of the Building. In the event the destruction is greater
than Thirty-three Percent (33%) of said full replacement value, then Lessor
shall have the option either: (1) to repair or restore such damage, this Lease
continuing in full force and effect, but the rent shall be proportionately
reduced while such repairs are being made, such proportionate reduction to be
based upon the extent to which the damage to the Premises, or the repair thereof
reduces the usable area of the Premises; or (2) give notice to Lessee at any
time within Thirty (30) days after such damage, terminating this Lease as of the
date specified in such notice, which date shall be no less than Thirty (30) days
nor more than Sixty (60) days after the giving of such notice. In the event of
giving of such notice, this Lease shall expire and all interest of Lessee in the
Premises, the Building, and the Site shall terminate as of the date of the
destruction, and the rent, reduced by any proportionate reduction, based upon
the extent, if any, to which such damage reduced the usable area of the Premises
shall be paid up to date of such termination.
Notwithstanding anything to the contrary contained in this Section 22,
Lessor shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Paragraph occurs during the last Twelve (12) months of the term of the
Lease Term or any extension thereof.
Lessor shall not be required to make any repairs or replacements of any
leasehold improvements or any other property installed or suffered to be
installed in the Premises by Lessee.
23. EMINENT DOMAIN. If all or any part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, either party hereto shall have the right, at its option, to terminate
this Lease, by written notice to the other party within Thirty (30) days of such
taking, and Lessor shall be entitled to any and all income, rent, award or any
interest therein whatsoever which may-be paid or made in connection with such
public or quasi-public use or purpose, and Lessee shall have no claim against
Lessor for the value of any unexpired term of this Lease. Nothing in this
Section 23 shall prohibit Lessee from filing a separate claim with the
condemning authority for the value of its leasehold interest, its relocation
costs or moving expenses. If a part of the Premises shall be so taken or
appropriated and neither party hereto shall elect to terminate this Lease within
the time period provided, the rental thereafter to be paid shall be equitably
reduced. Lessee may terminate this Lease by reason of taking or appropriation
19
as above provided, only in the event such taking or appropriation shall be of an
extent and nature as to substantially handicap, impede or impair Lessee's use of
the Premises. If any part of the Building other than the Premises shall be so
taken or appropriated, Lessor shall have the right, at its option, to terminate
this Lease and shall be entitled to the entire award, as above provided.
24. TRANSFER BY LESSOR. Lessor shall have the right to sell, convey,
mortgage, pledge, hypothecate or in any other manner, transfer, or assign the
interest of Lessor in the Site, the Building, the Premises and/or in the Lease.
The term "Lessor" as used in this Lease, means only the owner for the time being
of the Premises, or the interest of a lessor in the Premises or this Lease, and
in the event of any sale, conveyance or other transfer of the Premises whether
separately or as a part of the Site and/or the Building or the interest of
Lessor in this Lease, Lessor shall be and hereby is entirely freed of all
covenants and obligations of Lessor hereunder arising after the date of such
sale, transfer, assignment or conveyance. This Lease shall not be affected by
any such transfer and Lessee agrees to attorn to the purchaser or assignee.
25. SUBORDINATION AND ATTORNMENT. This Lease and all of the rights of
Lessee hereunder are and shall be subject and subordinate to the lien of any
mortgage or mortgages hereinafter placed on the Premises or any part thereof,
except Lessee's property or trade fixtures, and to any and all renewals,
modifications, consolidations, replacements, extensions or substitutions of any
such mortgages.
Such subordination shall be automatic, without the execution of any further
subordination agreement by Lessee. If, however, a written subordination
agreement consistent with this provision, is required by a mortgagee, Lessee
agrees to execute, acknowledge and deliver the same, provided that the holder of
the interest to which this Lease is made subordinate agrees not to disturb the
rights of Lessee to possession of the Premises as long as Lessee is not in
default under the terms of this Lease. Lessee shall deliver to Lessor such
written subordination agreement no later than 15 days after Lessor's request for
such agreement. The failure by Lessee to deliver such agreement within such
period shall be deemed a default under this Lease without the benefit of any
grace or cure periods.
In the event of any foreclosure of any mortgage placed at any time on the
Site, Building or Premises by Lessor, by a voluntary agreement or otherwise, or
the commencement of any judicial action seeking such foreclosure, Lessee, at the
request of the then first mortgagee or purchaser in foreclosure as Lessee's
Lessor under this Lease, agrees to attorn to such first mortgagee or purchaser
in foreclosure and to execute and deliver at any time upon request of such first
mortgagee, purchaser, or their successors, any instrument reasonably necessary
to further evidence such attornment. Lessee hereby waives its right, if any, to
elect to terminate this Lease or to surrender possession of the Premises in the
event of any such mortgage foreclosure.
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26. LESSEE'S ESTOPPEL LETTER. Lessee agrees at any time, from time to
time, upon not less than Ten (10) days prior written request by Lessor to
execute, acknowledge and deliver to Lessor a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications that the same is in full force and effect as modified and
stating the modification), and the dates to which the basic rent and other
charges have been paid in advance, if any, it being intended that any such
statement delivered pursuant to this Section may be relied upon by any
prospective purchaser of the fee or mortgage or assignee of any mortgage upon
the fee of the Premises and/or the Building and/or Site.
In the event, the interest of Lessee in and to the Premises and this Lease
is terminated whether by lapse of time or otherwise, Lessee shall execute and
deliver to Lessor, promptly on demand, all documents reasonably requested by
Lessor to evidence such termination; including without limitation a recordable
release and cancellation of this Lease. The failure of Lessee to so execute and
deliver such documents shall in no way affect the termination of this Lease and
the interest of Lessee in and to the Premises.
27. SEVERABILITY. The legal invalidity or unenforceability of any one or
more of the provisions of this Lease shall in no way affect the validity of any
other provisions hereof or of the Lease as a whole.
28. DEFINED TERMS AND MARGINAL HEADINGS. The words, "Lessor" and "Lessee",
as used herein shall include the plural, as well as singular. Words used in
masculine gender include the feminine and neuter. If there be more than one
Lessee, the obligations hereunder imposed upon Lessee shall be joint and
several. The marginal headings and titles to the paragraphs of this Lease are
not a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
29. TIME IS OF THE ESSENCE. Time is of the essence of this Lease and each
and all of its provisions.
30. SUCCESSORS AND ASSIGNS. This Lease and the covenants, terms,
conditions and provisions hereof, shall be binding upon the respective parties
hereto and to their respective successors, assigns and personal representatives
and shall inure to the benefit of said respective parties hereto and their said
respective successors, assigns and personal representatives. Wherever in this
Lease a reference to any of the parties hereto is made, such reference shall be
deemed to include, wherever applicable and even though not expressly stated,
also a reference to the successors, assigns and personal representatives of such
party, as the case may be, the same if in every case expressly stated. The
phrase "successors and assigns" is used in this Lease in its broadest possible
meaning and includes, in addition to administrators, trustees, conservators,
every person, firm, corporation or other entity succeeding to the interest in or
to this Lease, or any party thereof described or referred to herein or any part
hereto, or of any of the successors or assigns of any such party, whether such
succession results from the act of a party in interest, occurs by operation
21
of law or is the effect of the operation of law together with any act(s) of any
such party or parties.
31. ATTORNEY'S FEES. In the event of any action or proceeding brought by
either party against the other under this Lease, the prevailing party shall be
entitled to recover for the fees of its attorneys in such action or proceeding
such amount as the Court may adjudge reasonable as attorney's fees.
32. NOTICE. All notices and demands which may or are required to be given
by either party to the other hereunder shall be in writing. All notices and
demands shall be effective and deemed delivered upon actual receipt. All notices
and demands shall be sent by (a) United States certified or registered mail,
postage prepaid, return receipt requested, (b) messenger or courier service, or
(c) facsimile, in all cases addressed (i) if to Lessor at 3265 Meridian Parkway,
Suite 100, Ft. Lauderdale, Florida 33331, Attention: President, with a copy to
c/o CMD Corporation, 227 West Monroe Street, Suite 3900, Chicago, Illinois
60606, Attention: General Counsel, or to such other person or place as Lessor
may from time to time designate in a notice to Lessee, and (ii) if to Lessee at
the Premises, with a copy to 2200 East Golf Road, Des Plaines, Illinois 60016,
Attention: President, or to such other person or place as Lessee may from time
to time designate in a notice to Lessee.
33. REPRESENTATIONS AND WARRANTIES OF LESSOR. In order to induce Lessor to
enter into this Lease, Lessor represents and warrants that:
(a) Lessor is fully authorized to lease the Premises, and has good
and marketable title to the Site.
(b) There are no condemnation or similar proceedings presently
pending, nor to the best of Lessor's knowledge threatened, with respect to
the Premises or any part thereof.
(c) There are no legal actions, suit or proceedings pending, or to
the best of Lessor's knowledge threatened, against Lessor which would have
a material adverse impact on the Premises, before any court or before or by
any federal, state, county or municipal department, commission, board,
bureau, agency or other governmental instrumentality.
34. MODIFICATION. This Lease may be modified only by written agreement
signed by Lessor and Lessee.
35. EFFECTIVENESS. This Lease shall not become effective until executed by
both Lessor and Lessee.
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36. SIGNS. No sign, placard, picture, advertisement, name or notice shall
be inscribed, displayed or printed or affixed on or to any part of the outside
of the Building without the written consent of Lessor first had and obtained and
Lessor shall have the right to remove any such sign, placard, picture,
advertisement, name or notice with notice to and at the expense of Lessee. All
approved signs or lettering on doors shall be printed, painted, affixed or
inscribed at the expense of Lessee by a person approved of by Lessor. Lessee
shall not place anything or allow anything to be placed near the glass of any
window, door partition, or wall which may appear unsightly from outside the
Premises.
37. WAIVER OF TRIAL BY JURY. Each party waives a trial by jury of any or
all issues arising in any action or proceeding between the parties hereto or
their successors or assigns arising out of, or in any way connected with this
Lease, or any of its provisions, pertaining to Lessee's use or occupancy of the
Demised Premises and/or any claim of injury or damage, provided, however, that
said waiver shall not be effective to the extent that it prejudices any
insurance coverage required to be provided hereunder.
38. LESSOR WAIVER. Anything to the contrary notwithstanding, in the event
any environmental hazard is discovered on or about the Premises that relates to
any violation or obligation under any applicable environmental laws, and was not
caused by Lessee, its contractors or agents, then Lessee shall have no
liability, and Lessor hereby waives all claims against Lessee, in connection
with such environmental hazard.
39. GOVERNING LAW. This Lease and the rights of the parties hereto shall
be interpreted and determined in accordance with the laws of Florida.
40. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties and supersedes all prior agreements between the parties hereto.
41. RESOLUTION. Lessee shall contemporaneously with the execution and
delivery of this Lease, also deliver to Lessor a copy of a Resolution of the
Board of Directors of Lessee, specifically authorizing those of Lessee's
officers whose names are subscribed hereto to enter into this Lease with Lessor
named herein. Such Resolution shall make reference to this Lease, the Premises,
lease term and rental reserved, shall be duly certified to by the Secretary of
said Board of Directors and shall be appended hereto as Schedule 1.
42. FORCE MAJEURE, ETC. Notwithstanding anything contained in this Lease
to the contrary: except as otherwise provided in Section D of this Lease,
Lessor's obligations hereunder shall be excused to the extent that and during
such time as Lessor is prevented from discharging such obligations by acts of
God, strikes, material shortages or any other reason beyond Lessor's control;
Lessee will not avail itself of any remedy provided at law or in equity until
Lessor fails to cure any default on the part of Lessor within thirty days after
its receipt of written notice of such default from Lessee; and Lessor and Lessee
agree that, without limitation of any of the remedies of Lessor under Section 19
of this
23
Lease, in no event shall Lessor or Lessee be liable to the other for any
consequential or incidental damages.
43. EXCULPATION. Neither the partners, if Lessor is a partnership, or if
Lessor is a trustee of a trust, the beneficiaries of such trust, nor the
shareholders (nor any of the partners comprising same) directors or officers of
any of the foregoing (collectively, the "Parties") shall be liable for the
performance of Lessor's obligations under this Lease. Lessee shall look solely
to Lessor to enforce Lessor's obligations hereunder and shall not seek any
damages against the rest of the Parties. The liability of Lessor for Lessor's
obligations under this Lease shall not exceed and shall be limited to the value
of Lessor's interest in the Premises and Lessee shall not look to the property
or assets of any of the Parties in seeking either to enforce Lessor's
obligations under this Lease or to satisfy a judgment for Lessor's failure to
perform as such obligation.
44. BROKERS. Lessor and Lessee each respectively represent and warrant to
the other that neither has employed the services of any real estate broker or
any similar agent for the purposes of procuring this Lease, other than ComReal
Ft. Lauderdale ("Broker"). Lessor shall be responsible for and pay Broker all
commissions due and owing under separate agreement between Lessor and Broker
including, in the event Lessee exercises its Purchase Option hereunder, a
commission equal to 2% of the purchase price, payable at closing. In the event
either party hereto has so employed any such broker or agent, other than Broker,
the party responsible for such employment shall indemnify, defend and hold the
other forever harmless from and against any commissions, fees, brokerage or
other compensation and for any claims for any such commissions, fees, brokerage
or other compensation arising out of this Lease, and/or such employment.
46. GUARANTY.
(a) United Stationers Inc., a Delaware corporation ("USI"),
simultaneously with the execution and delivery of this Lease by Lessee, has
executed and delivered to Lessor a guaranty of the obligations of Lessee
under this Lease.
(b) Lessee shall deliver to Lessor, within 75 days after the end of
each fiscal year of USI, a balance sheet, income statement and statement of
change in financial position, for USI, each prepared in accordance with
generally accepted accounting principles and certified by a nationally
recognized independent accounting firm, but only if the shares of USI cease
to publicize on a public stock exchange or in the over-the-counter market.
47. EXHIBITS AND SCHEDULES. The following Exhibits and Schedules are
attached hereto and expressly made a part hereof, to wit;
Exhibit A - Description of Site
Exhibit B - Plans
Exhibit C - General Construction Warranty
Exhibit D - Real Estate Purchase Agreement
24
Schedule 1 - Lessee's Resolution
25
EXHIBIT A
SITE
DESCRIPTION:
-----------
A portion of Tract "A" of the plat. "WESTON PARK OF COMMENCE, PLAT
ONE", as recorded in flat Book 138, Page 1 of the Public Records of
Broward County, being more particularly described as follows:
BEGINNING at the Southeast corner of Parcel "B", as shown on said
plat; thence N 01degrees 54degrees 15degrees E, along the East line of
said Parcel "N", a distance of 252.79 feet; thence N 10degrees
29degrees 23degrees E, continuing along said East line, a distance of
294.63 feet; thence N 88 degrees 37degrees 34degrees E, a distance of
858.50 feet to a point of intersection with the Westerly right-of-way
line of "Enterprise Avenue" as described in Official Records Book
16775, Page 506 of the Public Records of Broward County, Florida,
thence Southerly along said Westerly right-of-way line and along the
arc of a curve to the left, whose radius point bears N 88degrees
53degrees 23degrees, having a radius of 2778.0 feet, a central angle
of 83degrees 27degrees 02degrees, an arc length of 167.30 feet to a
point of tangency; thence S 04degrees 33degrees 39degreesE, continuing
along said Westerly right-of-way line, a distance of 167.17 feet to a
point of curvature; thence continuing Southerly along said Westerly
right-of-way line, along the arc of a curve to the left having a
radius of 1035.54 feet, a central angle of 83degrees 53degrees
02degrees, an arc distance of 99.05 feet to a point of tangency;
thence S 10degrees 02degrees 28degrees E, continuing along said
Westerly right-of-way line, a distance of 88.60 feet to a point of
curvature; thence Southwesterly along the arc of a curve to the right
having a radius of 33.00 feet, n central angle of 84degrees 40degrees
48degrees, an arc distance of 2.69 feet to a point of compound
curvature and the Northerly right-of-way line of "South Post Road", as
shown on said plat; thence Southwesterly along the arc of a curve to
the right having a radius of 1846.14 feet, a central angle of
87degrees 90degrees 59degrees, an arc distance of 44.56 feet to a
point; thence S 7degrees 32degrees 14degrees E, a distance of 12.00
feet to a point on curve; thence Southwesterly along the arc of a
curve to the right, whose radius point bears N 7degrees 32degrees
14degrees W, having a radius of 1858.14 feet, a central angle of
7degrees 8degrees 59degrees, an arc distance of 287.55 feet to a point
of tangency; thence 89degrees 28degrees 43degrees N, a distance of
781.22 feet to the POINT OF BEGINNING, the previous four courses and
distances being along the Northerly right-of-way line of "South Post
Road", as shown on said plat.
Said Lands situate in Broward County, Florida.
Containing 501,440 Square Feet / 11.5117 Acres, more or less.
Subject to ????, Restrictions, Reservations, Covenants, and Right-of-
Way of Record.
EXHIBIT B
PLANS
UNITED STATIONERS
-----------------
List of Drawings
----------------
ARCHITECTURAL DRAWINGS
Drawing # Title Date
- --------- ----- ----
A0-0 Cover sheet 12-30-92
A2-1 Floor plan 12-30-92
A3-1 Exterior elevations 12-30-92
A3-2 Wall sections 12-30-92
A5-1 Enlarged plan/interior elevations/reflected
ceiling plan 12-30-92
A8-1 Exterior details 12-30-92
A9-1 Finish and door schedule 12-30-92
STRUCTURAL DRAWINGS
Drawing # Title Date
- --------- ----- ----
S-1 Foundation plan 12-30-92
S-2 Roof framing plan 12-30-92
S-3 Foundation details 12-30-92
S-4 Roof framing details 12-30-92
S-5 Panel reinforcement and details 12-30-92
S-6 Structural notes 12-30-92
MECHANICAL DRAWINGS
Drawing # Title Date
- --------- ----- ----
M-1 Warehouse plumbing and HVAC 12-30-92
M-2 Plumbing floor plan and risers 12-30-92
M-3 HVAC ceiling plan and schedules 12-30-92
ELECTRICAL DRAWINGS
Drawing # Title Date
- --------- ----- ----
E-1 Site plan 12-30-92
E-2 Office power and lighting 12-30-92
E-3 Warehouse power 12-30-92
E-4 Warehouse lighting 12-30-92
E-5 Electrical details 12-30-92
EXHIBIT C
GENERAL CONSTRUCTION WARRANTY
4.5 WARRANTY
4.5.1 The Contractor warrants to the Owner that all materials and equipment
furnished under this Contract will be new unless otherwise specified,
and that all Work will be of good quality, free from faults and
defects and in conformance with the Contract Documents. All Work not
conforming to these requirements, including substitutions not properly
approved and authorized, may be considered defective. If required by
the Owner, the Contractor shall furnish satisfactory evidence as to
the kind and quality of materials and equipment. This warranty is not
limited by the provisions of Paragraph 13.2.
13.2 CORRECTION OF WORK
13.2.1 The Contractor shall promptly correct all Work rejected by the Owner
as defective or as failing to conform to the Contract Documents
whether observed before or after Substantial Completion and whether or
not fabricated, installed or completed. The Contractor shall bear all
costs of correcting such rejected Work, including compensation for the
Architect's additional services made necessary thereby.
13.2.2 If, within one year after the Date of Substantial Completion of the
Work or designated portion thereof or within one year after acceptance
by the Owner of designated equipment or within such longer period of
time as may be prescribed by law or by the terms of any applicable
special warranty required by the Contract Documents, any of the Work
is found to be defective or not in accordance with the Contract
Documents, the Contractor shall correct it promptly after receipt of a
written notice from the Owner to do so unless the Owner and Lessee
have previously given the Contractor a written acceptance of such
condition. This obligation shall survive termination of the Contract.
The Owner shall give such notice promptly after discovery of the
condition.
13.2.3 The Contractor shall remove from the site all portions of the Work
which are defective or non-conforming and which have not been
corrected under Subparagraphs 4.5.1, 13.2.1 and 13.2.2, unless removal
is waived by the Owner.
13.2.4 If the Contractor fails to correct defective or non-conforming Work as
provided in Subparagraphs 4.5.1, 13.2.1 and 13.2.2, the Owner may
correct it in accordance with Paragraph 3.4.
13.2.5 If the Contractor does not proceed with the correction of such
defective or non-conforming Work within a reasonable time fixed by
written notice from the Owner, the Owner may remove it and may store
the materials or equipment at the expense of the Contractor. If the
Contractor does not pay
the cost of such removal and storage within ten days thereafter, the
Owner may upon ten additional days' written notice sell such Work at
auction or at private sale and shall account for the net proceeds
thereof, after deducting all the costs that should have been borne by
the Contractor, including compensation for the Architect's additional
services made necessary thereby. If such proceeds of sale do not cover
all costs which the Contractor should have borne, the difference shall
be charged to the Contractor and an appropriate Change Order shall be
issued. If the payments then or thereafter due the Contractor are not
sufficient to cover such amount, the Contractor shall pay the
difference to the Owner.
13.2.6 The Contractor shall bear the cost of making good all work of the
Owner or separate contractors destroyed or damaged by such correction
or removal.
13.2.7 Nothing contained in this Paragraph 13.2 shall be construed to
establish a period of limitation with respect to any other obligation
which the Contractor might have under the Contract Documents,
including Paragraph 4.5 hereof. The establishment of the time period
of one year after the Date of Substantial Completion or such longer
period of time as may be prescribed by law or by the terms of any
warranty required by the Contract Documents relates only to the
specific obligation of the Contractor to correct the Work, and has no
relationship to the time within which his obligation to comply with
the Contract Documents may be sought to be enforced, nor to the time
within which proceedings may be commenced to establish the
Contractor's liability with respect to his obligations other than
specifically to correct the Work.
3.4 OWNER'S RIGHT TO CARRY OUT THE WORK
3.4.1 If the Contractor defaults or neglects to carry out the Work in
accordance with the Contract Documents and fails within seven days
after receipt of written notice from the Owner to commence and
continue correction of such default or neglect with diligence and
promptness, the Owner may, after seven days following receipt by the
Contractor of an additional written notice and without prejudice to
any other remedy he may have, make good such deficiencies. In such
case an appropriate Change Order shall be issued deducting from the
payments then or thereafter due the Contractor the cost of correcting
such deficiencies, including compensation for the Architect's
additional services made necessary by such default, neglect or
failure. If the payments then or thereafter due the Contractor are not
sufficient to cover such amount, the Contractor shall pay the
difference to the Owner.
GAF BUILDING MATERIALS
LIBERTY GUARANTEE
[FORM OF LIBERTY GUARANTEE APPEARS HERE]
[SPECIMIN]
GAF BUILDING MATERIALS
LIBERTY GUARANTEE
[FORM OF LIBERTY GUARANTEE APPEARS HERE]
[SPECIMIN]
EXHIBIT D
PURCHASE AGREEMENT
------------------
THIS AGREEMENT is made as of [insert date on which Buyer executes and
delivers this Agreement and the Earnest Money Deposit pursuant to section H the
Lease], by and between UNITED STATIONERS SUPPLY CO., an Illinois corporation,
2200 East Golf Road, Des Plaines, Illinois, 60016-1267 ("Buyer"), and [insert
name of Lessor under the Lease as of date of this Agreement] ("Seller").
WITNESSETH:
The parties agree as follows:
1. Sale of Property. Buyer agrees to purchase and Seller agrees to
----------------
sell on the terms set forth herein the land located in Broward County,
Florida, legally described on Exhibit A attached hereto, consisting of
approximately 11.5 acres, which is improved with an approximately
150,000 square feet industrial building and together with the building,
improvements, fixtures, and other items of personal property owned by
Seller and located thereon, used in conjunction with the operation of
said building. All of the above is hereinafter referred to as the
"Premises".
2. Purchase Price. The purchase price agreed upon is Six Million
--------------
Eight Hundred Fifty and 00/100 Dollars ($6,850,000.00) to be paid as
follows:
A. Three Hundred Forty-Two Thousand Five Hundred 00/100 Dollars
($342,500.00) as earnest money concurrently herewith, receipt of
which is hereby acknowledged.
B. The balance of Six Million Five Hundred Seven Thousand Five Hundred
and 00/100 Dollars ($6,507,500.00), in cashiers or certified checks
or by wire transfer of funds, at closing.
3. Title. Subject to performance by the Buyer, the Seller agrees to
-----
execute and deliver a Warranty Deed conveying marketable title to said
Premises subject only to the following exceptions.
A. Building and zoning laws, ordinances, state and federal
regulations;
B. Restrictions relating to use or improvement of the Premises without
effective forfeiture provision;
C. General taxes for the year 1993 and subsequent years;
D. Special taxes and assessments;
E. Covenants, conditions, restrictions and easements set forth in that
certain Declaration of Covenants, Conditions, Restrictions, and
Easements of the Meridian Business Campus at Weston, dated May 17,
1989, recorded on August 4, 1989 in the Official Records Book
165654, Pages 386-420, of Broward County, Florida under Clerk's
File No: 89312588.
F. The matters set forth on Exhibit B attached hereto and made a part
hereof; and
G. All covenants, conditions, restrictions, easements and other
matters of record which do not materially adversely affect the
Premises.
4. Title Evidence/Conditions and Stipulations. Seller shall deliver
-------------------------
or cause to be delivered to Buyer or Buyer's agent, at Seller's cost,
notless than 10 days prior to the time of closing, a title commitment
for an owner's title insurance policy issued by a title insurance
company authorized to issue title insurance in the State of Florida in
the amount of the purchase price, covering title to the real estate on
or after the data hereof, showing title in the intended grantor subject
only to (a) the general exceptions contained in the policy, (b) the
title exceptions set forth above, and (c) title exceptions pertaining
to liens or encumbrances of definite or ascertainable amount which may
be removed by the payment of money at the time of closing and which the
Seller may so remove at that time by using the funds to be paid upon
the delivery of the deed (all of which are herein referred to as the
permitted exceptions). The title commitment shall be conclusive
evidence of good title as therein shown as to all matters insured by
the policy, subject only to the permitted exceptions in foregoing items
(b) and (c) and unpermitted exceptions, if any, as to which the title
insurer commits to extend insurance in the manner specified below.
If Seller fails to obtain the commitment for title insurance specified
above within the specified time, Buyer may, upon notice to Seller
within 10 days after the earlier of receipt of the actual title
commitment delivered by Seller, or within 10 days after the date on
which Seller was required to deliver, and Seller fails to deliver, the
title commitment, terminate this contract or may elect to take title as
it then is with the right to deduct from the purchase price liens or
encumbrances of a definite or ascertainable amount, in which event such
liens or encumbrances shall be paid in full by Buyer at the closing. If
Buyer does not so elect, this contract shall become null and void
without further actions of the parties.
2
5. Closing Date. The time of the closing shall be on [insert date
------------
which is next preceding the 10th anniversary of Commencement Date],
unless subsequently agreed otherwise, at the office of the title ????
in Fort Lauderdale, Florida, provided that all the conditions precedent
have been satisfied. Possession shall be delivered to Buyer at closing.
6. Survey. Not less than fifteen (15) days before the date of
------
closing, Seller shall deliver to Buyer, at Seller's cost, a survey of
the Premises certified to Buyer and any title insurance company chosen
by Buyer, by a surveyor registered in the State of Florida showing
capped and flagged pipestakes at appropriate boundary reference
locations and showing the present location of all improvements on the
land, and showing no encroachments upon or by the subject premises, and
all easements, fences, building lines and access to public roads.
7. Prorations. [intentionally omitted]
----------
8. Closing Documents. At closing Seller shall deliver to Buyer, in
-----------------
addition to the Warranty Deed referred to above, the following:
A. Affidavit of Title covering the period from the date of the report
of title to the date of closing in form reasonably acceptable to
Buyer's counsel and to the title insurance company selected by
Buyer, if any;
B. A certificate dated as of the closing date that there are no
unreleased financing statements on file, and not lapsed, in the
proper office of Broward County and the office of the Florida
Secretary of State, affecting the fixtures or improvements on the
land, or any property involved in this transaction; and
C. All other documents customarily required or appropriate to
consummate this transaction.
9. Representations of Seller. Seller represents and warrants that,
-------------------------
except to the extent disclosed by Seller or to the knowledge of Buyer,
A. There are no actions, suits, or other legal proceedings presently
pending or to the knowledge of Seller threatened against the
Premises.
B. There are no judgments, liens, encumbrances, or charges against the
Seller, that there are no creditors bills or such proceedings
pending against it which may or can be a charge or encumbrance
against the Premises;
3
C. Seller's performance of this Agreement will not constitute a
default under any agreement by which the Premises might be bound;
D. The Seller does not have knowledge of any pending condemnation,
rezoning or other land use regulation proceedings, either
instituted or planned to be instituted, which would detrimentally
affect the use and operation of the Premises for its intended
purpose;
E. The documents executed by the Seller that are to be delivered to
the Buyer at closing are, at the closing will be, duly authorized,
executed and delivered by the Seller; are, and at the closing will
be, legal, valid and binding obligations of the Seller; are, and at
the closing will be, sufficient to convey title if they propose to
do so; and do not, and at the closing will not, violate any
provisions of any agreement to which the Seller is a party or to
which it is subject; and
F. At the closing there will be no outstanding contracts made by the
Seller for any improvements to the Premises that have not been
fully paid, and the Seller shall cause to be discharged all
mechanics or materialmen's liens arising from any labor or material
furnished to the premises at the request of Seller, and not the
obligation of Buyer, prior to the closing.
10. Entire Agreement. This instrument constitutes the entire
----------------
agreement between the Buyer and the Seller and there are no
agreements, understandings, warranties, or representations between
them except as set forth herein. This Agreement cannot be amended
except by a writing executed by the Buyer and the Seller.
11. Binding Effect. This Agreement will inure to the benefit of and
--------------
bind the respective successors and permitted assigns of the parties
hereto.
12. Material Damage. [Intentionally Omitted].
---------------
13. Condemnation. [Intentionally Omitted].
------------
14. Escrow Closing. This sale may be closed through escrow with a
--------------
selected title company in Fort Lauderdale, Florida, in accordance with
the general provisions of the usual form of escrow agreement then in
use by such title company for transactions similar to this with such
special provisions inserted in the escrow agreement as may be required
to conform with this Agreement. Upon the creation of such an escrow,
anything herein to the contrary notwithstanding, payment of the
purchase price other than the earnest money,
4
and delivery of the deed and other documents shall be made through the
escrows. The cost of the escrow shall be paid by Seller.
15. Miscellaneous.
-------------
A. Time is of the essence of this Agreement.
B. All notices herein required shall be in writing and shall be
served on the parties at the addresses following their signatures.
The mailing of a notice by registered or certified mail, return
receipt requested, shall be sufficient service and shall be
effective upon mailing.
C. Seller agrees to pay a brokerage commission to TJT Enterprises of
Broward, Inc. d/b/a Cornreal Ft. Lauderdale equal to 2% of the
Purchase Price earned as a result of this transaction (provided
that the sale and purchase of the Premises is consummated), and to
indemnify and hold Buyer harmless therefrom.
D. Seller shall pay the amount of any state deed tax imposed by state
law on the transfer of the title, and the cost of all title
insurance and surveys required to be delivered by Seller
hereunder.
16. Survival of Representations. The representations and warranties
---------------------------
made in paragraph 10 B, D and E shall survive the closing.
17. Remedies. In the event that Buyer defaults under the terms of
--------
this Agreement, Seller shall have the right to retain the earnest
money deposit and seek damages against Buyer and all guarantors of the
obligations of Buyer hereunder.
18. Exculpation. Neither the partners, if Seller is a partnership, or
-----------
if Seller is a trustee of a trust, the beneficiaries of such trust,
nor the shareholders (nor any of the partners comprising same)
directors or officers of any of the foregoing (collectively, the
"PARTIES") shall be liable for the performance of Seller's obligations
under this Agreement. Buyer shall look solely to Seller to enforce
Seller's obligations hereunder and shall not seek any damages against
the rest of the Parties. The liability of Seller for Seller's
obligations under this Agreement shall not exceed and shall be limited
to the greater of the Barnest Money Deposit or the value of Seller's
interest in the Premises, and Buyer shall not look to the property or
assets of any of the Parties in seeking either to enforce Seller's
obligations under this
5
Agreement or to satisfy a judgment for Seller's failure to perform as
such obligation.
BUYER
UNITED STATIONERS SUPPLY CO.
By: ____________________________
Its ____________________________
2200 East Golf Road
Des Plaines, Illinois 60016-1267
SELLER
By: ____________________________
Its ____________________________
Date of Execution by Seller:
____________________________
6
EXHIBIT A
PREMISES
DESCRIPTION
-----------
A portion of Tract "A" of the plat. "WESTON PARK OF COMMENCE, PLAT
ONE", as recorded in flat Book 138, Page 1 of the Public Records of
Broward County, being more particularly described as follows:
BEGINNING at the Southeast corner of Parcel "B", as shown on said
plat; thence N 01degrees 54degrees 15degrees E, along the East line of
said Parcel "N", a distance of 252.79 feet; thence N 10degrees
29degrees 23degrees E, continuing along said East line, a distance of
294.63 feet; thence N 88degrees 37degrees 34degrees E, a distance of
858.50 feet to a point of intersection with the Westerly right-of-way
line of "Enterprise Avenue" as described in Official Records Book
16775, Page 506 of the Public Records of Broward County, Florida,
thence Southerly along said Westerly right-of-way line and along the
arc of a curve to the left, whose radius point bears N 88degrees
53degrees 23degrees, having a radius of 2778.0 feet, a central angle
of 83degrees 27degrees 02degrees, an arc length of 167.30 feet to a
point of tangency; thence S 04degrees 33degrees 39degreesE, continuing
along said Westerly right-of-way line, a distance of 167.17 feet to a
point of curvature; thence continuing Southerly along said Westerly
right-of-way line, along the arc of a curve to the left having a
radius of 1035.54 feet, a central angle of 83degrees 53degrees
02degrees, an arc distance of 99.05 feet to a point of tangency;
thence S 10degrees 02degrees 28degrees E, continuing along said
Westerly right-of-way line, a distance of 88.60 feet to a point of
curvature; thence Southwesterly along the arc of a curve to the right
having a radius of 33.00 feet, n central angle of 84degrees 40degrees
48degrees, an arc distance of 2.69 feet to a point of compound
curvature and the Northerly right-of-way line of "South Post Road", as
shown on said plat; thence Southwesterly along the arc of a curve to
the right having a radius of 1846.14 feet, a central angle of
87degrees 90degrees 59degrees, an arc distance of 44.56 feet to a
point; thence S 7degrees 32degrees 14degrees E, a distance of 12.00
feet to a point on curve; thence Southwesterly along the arc of a
curve to the right, whose radius point bears N 7degrees 32degrees
14degrees W, having a radius of 1858.14 feet, a central angle of
7degrees 8degrees 59degrees, an arc distance of 287.55 feet to a point
of tangency; thence 89degrees 28degrees 43degrees N, a distance of
781.22 feet to the POINT OF BEGINNING, the previous four courses and
distances being along the Northerly right-of-way line of "South Post
Road", as shown on said plat.
Said Lands situate in Broward County, Florida.
Containing 501,440 Square Feet / 11.5117 Acres, more or less.
Subject to ????, Restrictions, Reservations, Comments, and Right-of-
Way of Record.
Exhibit B
2. Declaration of Covenants filed August 4, 1982 in Official Records Book
10329, at Page 155, Supplemental Declaration of Covenants filed December 21,
1983 in Official Records Book 11355, at Page 680, Amended and Restated
Declaration of Covenants filed May 17, 1985 in Official Records Book 12546,
at Page 921, as affected by Supplemental Declaration filed May 5, 1989 in
Official Records Book 16416, at Page 143 and Amendment Withdrawing Property
filed May 5, 1989 in Official Records Book 16416, at Page 158.
Note: The property insured herein was withdrawn from the provisions of the
Amended and Restated Declaration of Covenants pursuant to the Amendment
Withdrawing Property and resubmitted to the provisions of the Amended and
Restated Declaration of Covenants pursuant to the Supplemental Declaration
solely for the purpose of levying assessments for entrance features and
landscaping. The lien of any assessments is specifically subordinated to the
lien of the mortgage insured hereunder.
3. Restrictions contained in Exhibit B of Special Warranty Deed from Arvida
Corporation to Tishman Speyer-Equitable South Florida Venture dated December
15, 1983 and filed December 21, 1983 in Official Records Book 11355, at Page
692 and Amendment No. 1 to Special Warranty Deed filed December 15, 1987 in
Official Records Book 15038, at Page 116, as affected by instrument filed
September 14, 1987, in Official Records Book 14796, at Page 666.
Note: The breach or violation of the restrictions set forth above will not
result in a reversion of title of the property insured herein.
4. Water and Waste Water Capacity Reservation Agreement filed October 6, 1986
in Official Records Book 13790, at Page 853, as affected by instrument filed
September 29, 1989 in Official Records Book 16804, at Page 446.
Note: The rights set forth above regarding capacity reservation have been
collaterally assigned to Wells Fargo Realty Advisors Funding Incorporated.
5. Ordinance No. 87-79 filed November 23, 1987 in Official
Records Book 14978, at Page 184, Ordinance No. 88-30 filed July 19, 1988 in
Official Records Book 15616, at Page 517, Ordinance No. 88-31 filed July 19,
1988 in Official Records Book 15616, at Page 557, Ordinance No. 88-32 filed
July 19, 1988 in Official Records Book 15616, at Page 604 and Ordinance No.
88-33 filed July 19, 1988 in Official Records Book 15616, at Page 629.
6. Intentionally Omitted.
7. Matters appearing on the Plat of Weston Park of Commerce
8. Declaration of Covenants, Conditions, Restrictions and Easements of the
Meridian Business Campus at Weston by Donald R. Hall, as Trustee dated May
17, 1989 and filed August 4, 1989 in Official Records Book 16654, at Page
386, except that the rights of Declarant thereunder to purchase the
property shall have been deemed waived.
9. Easement granted to Broward County by instrument dated August 4, 1989 and
filed September 20, 1989 in Official Records Book 16775, at Page 522.
10. Terms and provisions of Revocable License Agreement filed October 19, 1989
in Official Records Book 16857, at Page 409, as assigned to the Meridian
Business Campus at Weston Owner's Association.
11. Easement granted to Indian Trace Community Development District dated
August 4, 1989 and filed October 19, 1989 in Official Records Book 16859,
at Page 414.
12. Easement granted to Florida Power and Light Company by instrument dated
September 1, 1989 and filed December 6, 1989 in Official Records Book
16980, at Page 437.
14. The Deed Restriction set forth on Exhibit 8-1 attached hereto and made
a part hereof.
15. All other matters approved by Purchaser.
EXHIBIT B-1
DEED RESTRICTION
Notwithstanding anything herein or elsewhere to the contrary, no buildings
or other structures may be developed (as such term is hereinafter defined) on
the land conveyed by this deed, by either the grantee hereof or any other person
or party for any purpose whatsoever, except that buildings and other structures
may be developed on the land conveyed by this deed consistent with the
following: not more than zero (0) gross square feet of building area may be
developed for office uses (as hereinafter defined); not more than zero (0) gross
square feet of building area may be developed for hotel uses (as hereinafter
defined); not more than zero (0) gross square feet of building area may be
developed for commercial uses (as hereinafter defined); not more than 210,000
gross square feet of building area may be developed for industrial uses (as
hereinafter defined); and not more than zero (0) square feet of building area
may be developed for Retail Uses (as hereinafter defined). The term "developed"
shall mean the use or operation of any of the land in question, as well as each
of the following: the commencement of construction upon any land, or the filing
for a site plan approval or the filing of any other application to a
governmental authority (other than for the filing of a plat or an amendment to
the DO (as hereinafter defined) or a new development order in lieu thereof), or
the obtaining of a building permit, in each case where such act is done in
contemplation of the construction of any building area or other structures on
the land in question (excluding the filling of any ditches, the excavation of
any lakes, the storage of any fill material or muck from such excavation, the
erection of any signs or the performance of any site work on the land which does
not require a governmental permit). The definition of the terms "office uses",
"hotel uses", "commercial uses" and "industrial uses" shall be as set forth in
(and as permitted by the terms of) the Development Order enacted October 27,
1987, being Resolution No. 87-79 of the Board of County Commissioners of Broward
County (the "DO"), except that commercial uses shall be deemed to exclude any
and all uses which are Retail Uses, and except that industrial uses shall be
deemed to include the use of any space in a building which is physically
constructed and utilized consistent (in all respects) with the following
criteria: (i) the building is only one or two stories in height; (ii) the
building has one or more grade level or dock height truck door(s); (iii) the
building is used for single or multi-tenant occupancy; and (iv) the uses in the
building will include a variety of uses including office, showroom,
service/distribution, storage/warehouse and light assembly. The term "Retail
Uses" shall have the meaning ascribed thereto pursuant to that certain Special
Warranty Deed from Arvida Corporation to Tishman Speyer-Equitable South Florida
Venture dated December 15, 1983, and recorded as Document No. 83-416421 in
Official Records Book 11355, Page 692 of the Public Records of Broward County,
Florida, as amended by that certain Amendment No. 1 to Special Warranty Deed
dated November 23, 1987 and recorded as Document No. 87521577 in Official
Records Book 15038, Page 116 of Broward County, Florida.
The foregoing restrictive covenant shall be deemed to be a covenant
running with the land conveyed by this deed, and shall be enforceable against
the grantee (and its successors and assigns) by either the grantor hereunder,
or by CMD Broward Associates I, an Illinois limited partnership and by such of
its successors and assigns to which the full right of enforcement of such
restrictive covenant shall have been expressly assigned in writing (singularly,
a "Beneficiary", and collectively, the "Beneficiaries"), each of which
Beneficiaries are hereby made express and intended third party beneficiaries of
such restriction. Any action or proceeding to enforce this restrictive covenant
may be brought by a single Beneficiary, without the need of all of the
Beneficiaries. The foregoing restrictive covenant may only be modified by a
written instrument in recordable form duly executed by either the grantor
hereunder or such successor of the grantor hereunder to which the right to
modify such restrictive covenant shall have been expressly assigned in writing,
or by both of the Beneficiaries.
2
FIRST AMENDMENT TO LEASE
This AGREEMENT is made on this 17th day of July, 1993 between CMD FLORIDA FOUR
---- ----
LIMITED PARTNERSHIP, an Illinois limited partnership ("Lessor"), and UNITED
STATIONERS SUPPLY CO., an Illinois corporation ("Lessee").
A. Lessor and Lessee entered into a Lease, dated February 1, 1993,
pursuant to which Lessor agreed to improve and lease to Lessee, and Lessee
agreed to lease from Lessor, certain real property located in Meridian Business
Campus at Weston, Broward County, Florida ("Lease").
B. Lessor and Lessee desire to provide for certain rights and
obligations with respect to expansion of the improvements located on the leased
premises.
Lessor and Lessee agree as follows:
1. Site. Exhibit A to the Lease is hereby replaced with Exhibit A
attached hereto. All references in the Lease to Exhibit A shall be deemed to
refer to Exhibit A attached hereto, and all references in the Lease to the Site
shall be deemed to refer to the real estate as described in Exhibit A attached
hereto.
2. Plans. Exhibit B to the Lease is hereby replaced with Exhibit B
attached hereto. All references in the Lease to Exhibit B attached hereto, and
all references in the Lease to the Plans shall be deemed to refer to the plans
as described in Exhibit B attached hereto.
3. BASE RENT. Section E(1) of the Lease is hereby deleted and the
following substituted in its place:
"(1) Annual Base Rent. Lessee shall pay base rent to Lessor at the
following annual rates ("Annual Base Rent") applicable during each of
the following respective periods:
(a) During the period commencing on and including the
Commencement Date and ending on and including the date next
preceding the 1st anniversary of the Commencement Date, the
Annual Base Rent shall be $504,900.00.
(b) During the period commencing on and including the 1st
anniversary of the Commencement Date and ending on and including
the date next preceding the 3rd anniversary of the Commencement
Date, the Annual Base Rent shall be $512,400.00.
(c) During the period commencing on and including the 3rd
anniversary of the Commencement Date and ending on and including
the date next preceding the 6th anniversary of the Commencement
Date, the Annual Base Rent shall be $563,400.00.
(d) During the period commencing on and including the 6th
anniversary of the Commencement Date and ending on and including
the date next preceding the 9th anniversary of the Commencement
Date, the Annual Base Rent shall be $617,400.00.
(e) During the period commencing on and including the 9th
anniversary of the Commencement Date and ending on and including
the date next preceding the 10th anniversary of the Commencement
Date, the Annual Base Rent shall be $678,900.00."
4. BROKERS. Section 44 of the Lease is deleted and the following
substituted in its place:
"44. BROKERS. Lessor and Lessee each respectively represent and
warrant to the other that neither has employed the services of any real estate
broker or any similar agent for the purpose of procuring this Lease, other than
ComReal Ft. Lauderdale ("Broker"). Lessor shall be responsible for and pay
Broker all commissions due and owing under separate agreement between Lessor
and Broker including, in the event Lessee purchases the Premises, a commission
equal to 2% of the purchase price, payable at closing. In the event either
party hereto has so employed any such broker or agent, other than Broker, the
party responsible for such employment shall indemnify, defend and hold the
other forever harmless from and against any commissions, fees, brokerage or
other compensation and for any claims for any such commissions, fees, brokerage
or other compensation arising out of this Lease, and/or such employment."
5. The following is added as Section J of the Lease:
"J. Permitted Expansion.
(a) "Permitted Expansion" means an expansion of the Building (1) which
is consistent with the site plan attached as Exhibit C, (2) the quality and
aesthetics of the exterior of which is consistent with the quality and
aesthetics of the exterior of the Building, and (3) which is in compliance with
all applicable laws and regulations.
(b) If at any time during the Lease Term, Lessee desires that the
Premises be improved with a Permitted Expansion of the Building, then Lessee
shall deliver a written notice ("Expansion Request Notice") which sets forth in
reasonable
detail the specifications for the Permitted Expansion. Lessor may, but is
not obligated to deliver to Lessee, within 10 business days after receipt by
Lessor of the Expansion Request Notice, a written offer ("Expansion Offer")
which sets forth the terms and conditions, including rent, timing and other
conditions under which Lessor would make the expansion.
(c) If either Lessor fails to make an Expansion Offer within the
prescribed time, or Lessor and Lessee fail, within 30 days after the date on
which Lessee receives the Expansion Offer, to enter into a written amendment to
the Lease pursuant to which Lessor agrees to make the expansion, then,
notwithstanding anything in the Lease to the contrary, Lessee may make the
Permitted Expansion subject to the following:
(1) prior to commencement of construction of the Permitted Expansion,
Lessee shall have submitted to Lessor, and Lessor shall have approved in
writing (which approval shall not unreasonably be withheld or delayed),
complete working drawings and specifications, and copies of all construction
contracts (but not all subcontracts), for the expansion, and
(2) the terms and conditions of Section 11 of the Lease shall apply to
the expansion, except that no further written consent by Lessor shall be
required with respect to the Permitted Expansion, and Lessee shall not be
required to remove the Permitted Expansion upon the expiration or termination
of the Lease.
(d) Except to the extent set forth in the Lease, or a written amendment to
the Lease executed and delivered by Lessor and Lessee, Lessor shall have no
obligations whatsoever to make any Expansion or any other improvements to the
Premises.
6. Full Force and Effect. Except to the extent expressly set forth
herein, all of the terms and conditions of the Lease, as amended, including but
not limited to the Exculpations provisions of the Lease, shall remain in full
force and effect.
LESSOR:
CMD FLORIDA FOUR LIMITED PARTNERSHIP,
an Illinois limited partnership
By: CMD DEVELOPMENT OF FLORIDA, INC.
a Florida corporation, its general
partner
By:??
Its: PRESIDENT
LESSEE:
UNITED STATIONERS SUPPLY CO.,
an Illinois corporation
By: /s/ Otis H. Halleen
Its: Vice President Secretary
and General Council
COMMENT
The undersigned consents to and agrees to be bound, as guarantor, by the
terms of the foregoing First Amendment to Lease.
UNITED STATIONERS INC.,
a Delaware corporation, Guarantor
By: /s/ Otis H. Halleen
Title: Vice President, Secretary
and General Council