1
EXHIBIT 10.2
TRIPLE NET LEASE
TABLE OF CONTENTS
1. SALIENT LEASE TERMS
2. PREMISES AND ENTIRE PREMISES
3. DELIVERY AND ACCEPTANCE
4. LEASE TERM AND OPTIONS
5. RENT
6. USE
7. LANDLORD'S REPRESENTATIONS
8. OPTION TO PURCHASE
9. REAL ESTATE TAXES
10. INSURANCE
11. TITLE TO IMPROVEMENTS
12. MAINTENANCE AND REPAIR
13. ALTERATIONS
14. NET LEASE
15. UTILITIES
16. CASUALTY
17. CONDEMNATION
18. CONSTRUCTION LIENS
19. INDEMNITY
29. QUIET ENJOYMENT
21. DEFAULT
22. ATTORNEYS' FEES
23. SUBORDINATION AND NON-DISTURBANCE
24. ASSIGNMENT
25. HOLDING OVER
26. SIGNS
27. NOTICES
28. ENVIRONMENTAL MATTERS
29. MISCELLANEOUS
EXHIBITS
A. Sketch of Entire Premises
B. Sketch of Epicure Parking Premises
C. Permitted Exceptions
D. Memorandum of Lease
2
THIS LEASE (the "LEASE"), is dated as of the first (1st) day of April, 1998
("EFFECTIVE DATE"), and is between Landlord and Tenant.
ARTICLE 1 - SALIENT LEASE TERMS
1.1 ENTIRE PREMISES:
All of that certain real property shown on Exhibit A attached
hereto and made a part hereof and legally described as:
All of Lots 2 through 8, Block 40, FIRST ADDITION TO COMMERCIAL
SUBDIVISION OF THE ALTON BEACH REALTY COMPANY, a subdivision,
according to the Plat thereof, as recorded in Plat Book 6, Page
30, among the Public Records of Dade County, Florida
together with all buildings, improvements, facilities and permanent fixtures
thereon, and all (a) all easements, privileges, mineral rights and appurtenances
(including, without limitation, severable use and transferable development
rights) appertaining to said real property; and (b) all rights, if any, which
Landlord may have in any adjoining streets, alleys (including the "Alley", as
designated on Exhibit A), roadways, and avenues, opened, vacated or proposed.
1.2 PREMISES:
All of the Entire Premises, excepting only the (i) "Common Areas"
as defined in Section 2.5, and (ii) "Third Party Leased Premises" as defined in
Section 1.9. The Premises contain app. [complete] square feet of floor area.
1.3 PARTIES AND NOTICE ADDRESSES:
LANDLORD:
EDWARD THAL and LEONARD THAL dba E & L THAL REAL
ESTATE ACCOUNT PARTNERSHIP, a Florida general
partnership a/k/a E & L REAL ESTATE PARTNERSHIP, a
Florida general partnership, a/k/a/ E & L THAL
PARTNERS, a Florida general partnership c/o
Mitchell Thal 3100 Prairie Miami Beach, FL 33140
TENANT:
NATIONAL DELI CORPORATION, a Florida corporation
12711 Ventura Boulevard, Suite 400 Studio City,
California 91604 Attention: Isaac Starkman
1.4 STORE:
That certain store and related uses known as the "Epicure
Market", consisting of, without limitation, a gourmet market, bakery,
commissary, office and warehouse space located at the Premises.
1.5 TERM:
Twenty (20) years following the Effective Date, plus the period
until the end of the month (which, for purposes of Rent as provided in Section
1.7, shall be deemed part of Year 1), plus, if exercised, the Renewal Options
(See Section 1.6)
1.6 RENEWAL OPTIONS:
Four (4) additional five (5) year periods (Setion 4.2)
1.7 RENT:
Years Per Annum Per Month
----- --------- ---------
1-5 $400,000 $33,333.33
6-10 $440,000 $36,666.67
11-15 $484,000 $40,333.33
16-20 $508,200 $42,350.00
3
*First Option Term $533,610 $44,467.50
*Second Option Term $560,290.50 $46,690.88
*Third Option Term $588,305.03 $49,025.42
*Fourth Option Term $617,720.28 $51,476.69
* (if exercised)
1.8 EPICURE PARKING PREMISES:
That certain real property shown on Exhibit B attached hereto and
made a part hereof and legally described as:
All of Lot 15, Block 40, THE ALTON BEACH REALTY COMPANY'S
SUBDIVISION, a subdivision, according to the Plat thereof, in the
West 1/2 of Blocks 17, 40 and 45, in Section 33, Township 53
South, Range 42 East, as recorded in Plat Book 6, Page 165, among
the Public Records of Dade County, Florida
together with all buildings, improvements, facilities and permanent fixtures
thereon, if any, and all (a) all easements, privileges, mineral rights and
appurtenances (including, without limitation, severable use and transferable
development rights) appertaining to said real property; and (b) all rights, if
any, which Tenant may have in any adjoining streets, alleys (including the
"Alley", as designated on Exhibit B), roadways, and avenues, opened, vacated or
proposed.
1.9 THIRD PARTY LEASED PREMISES:
As shown on Exhibit A (which include the two existing "empty"
spaces). As of the Effective Date, Landlord represents that the Third Party
Leased Premises are subject only to the following leases (collectively, the
"Existing Leases"): (i) written Business Lease dated November 22, 1995 ("Ace
Lease") by and between Landlord and So Be Ace Hardware, Inc., a Florida
corporation ("Ace"), respecting the "Ace Hardware" premises as shown on Exhibit
A (Page 2 of 3); (ii) written Business Lease dated April 1, 1992, as extended by
letter dated September 6, 1996 ("Gridiron 1st Floor Lease"), by and between
Landlord and South Beach Ironworks, Inc., successor to 97 Corp., a Florida
corporation ("Gridiron"), respecting the "Gridiron Club" first floor premises as
shown on Exhibit A (Page 2 of 3); (iii) written Business Lease dated July 28,
1992, as extended by letter dated September 6, 1996 ("Gridiron 2nd Floor
Lease"), by and between Landlord and Gridiron, respecting the "Gridiron Club"
second floor premises as shown on Exhibit A (Page 3 of 3); (iv) written lease
dated January 8, 1996 ("United Lease"), by and between Landlord and United
Factories Corp. USA, Inc., a Florida corporation ("United"), respecting the
"United" premises as shown on Exhibit A (Page 3 of 3); and (v) non-written lease
("Security Guard Lease"), by and between Landlord and Floyd Fairbairn ("Security
Guard"), respecting the Security Guard premises as shown on Exhibit A (Page 3 of
3). Ace, Gridiron, United and the Security Guard may be collectively referenced
as the "Existing Tenants". All of the said existing tenancies are commercial
tenancies, except for the Security Guard Lease which is a residential tenancy.
The Third Party Leased Premises contain app. [this blank to be completed ]
square feet of floor area.
1.10 CONTENTS OF LEASE:
Pages 1 through 30 Sections 1.1 through 29.25
2
4
ARTICLE 2 - PREMISES AND ENTIRE PREMISES
2.1 Premises: Landlord hereby leases to Tenant and Tenant hires
from Landlord, the Premises, lying within the Entire Premises. During the Term,
Tenant, for itself and its agents, employees, contractors and invitees, shall
have the sole and exclusive right of use and possession of the Premises, and no
other party shall have any rights in respect to the same.
2.2 Entire Premises:
(a) Easements. Landlord does hereby grant and convey to
Tenant the non-exclusive right and easement, in common with the tenants of the
Third Party Leased Premises and their respective employees, agents and invitees,
to use all of the Common Areas for their respective purposes. Landlord does
hereby further grant and convey to Tenant the non-exclusive right and easement,
in common with the tenants of the Third Party Leased Premises, for the
installation, maintenance and repair of, and access to, all sewer, water, gas,
telephone, communications and electric utilities and related facilities within
the Third Party Leased Premises for the purpose of servicing the improvements
permitted by this Lease, so long as such easement does not unreasonably
interfere with the operation of business in the Third Party Leased Premises.
Landlord reserves the non-exclusive right and easement, in common with Tenant,
for the maintenance and repair of, and access to, all sewer, water, gas,
telephone, communications and electric utilities and related facilities within
the Premises for the purpose of servicing the Third Party Leased Premises, so
long as such easement does not unreasonably interfere with the operation of
business in the Premises.
(b) Parking Intensive and Offensive Uses. Tenant has
entered into this Lease in reliance upon representations by Landlord that the
Third Party Leased Premises is and will remain retail in character, and,
further, no part of which shall be used as a theater, auditorium, meeting hall,
school, or other place of public assembly, dance hall, billiard or pool hall,
massage parlor, video game arcade or other amusement center, bowling alley,
skating rink, car wash, night club or adult book or adult video tape store or
other offensive use.
(c) Landlord Maintenance. Landlord shall maintain the
Entire Premises (including the Common Areas described in subparts (ii) through
(iv) of Section 2.5 but excluding all other Common Areas and the Premises), in
good order and condition consistent with the current condition and other
buildings of similar size, age and nature in "South Beach", Miami Beach,
Florida, and Landlord agrees to promptly commence and diligently pursue to
completion any and all repairs, maintenance and replacement required hereunder,
all with as minimal interference to the operation of Tenant's business in the
Premises as practicable under the circumstances. Notwithstanding the foregoing
provisions of this Section 2.2(c), for the period of the Term following the
tenth anniversary of the Effective Date, if Landlord has complied with its
obligations under Section 10.1 but to the extent that Landlord's insurance
coverage does not provide proceeds to fully fund Landlord's obligations under
this Section 2.2(c), then regardless of whether or not any casualty occurred:
(i) Landlord shall not be obligated to perform such uninsured repair,
maintenance or replacement obligation (in any case, an "Uninsured Item"), (ii)
if Landlord shall not timely perform such Uninsured Item, Tenant shall then have
the option to purchase the Entire Premises in accordance with the provisions of
Section 8.1(b) and other provisions contained in Article 8 hereof, as though the
"Notice of Intent to Sell Date" shall be the earlier of the delivery of notice
by Landlord that it does not intend to perform such Uninsured Item or the
expiration of the time within which Landlord is obligated to perform such
Uninsured Item, (iii) the "Earlier Option Price", as applicable to such purchase
shall be reduced by the reasonable and verifiable costs to be incurred by Tenant
in subsequently performing such Uninsured Item, and (iv) at closing, Landlord
shall assign to Tenant the right to receive any insurance proceeds respecting
the Entire Premises. Landlord's construction, operation and maintenance of the
Entire Premises shall be in accordance with all applicable laws, rules and
ordinances. In the event Landlord's performance of its obligations under this
Section 2.2(c) interfere with Tenant's business such that Tenant, in its
exercise of reasonable judgment, shall close for business, then a just and fair
proportion of the Rent shall abate until Tenant, in its exercise of reasonable
judgment, shall re-open for business.
(d) Prohibited Acts. Subject to the requirements of law or
pursuant to any governmental or quasi-governmental orders or requirements,
Landlord shall not take or permit any
3
5
act or omission (including without limitation, making any changes in the Common
Areas), which shall (i) reduce parking for the Entire Premises or materially
impair the access to or the visibility of the entrance(s) or the storefront of
the Premises or Tenant's exterior signage on or in the Entire Premises or the
access or frontage; (ii) Landlord shall not construct or permit the
installation, placement or construction of any structures, improvements or
equipment within or adjacent to the Entire Premises, without the prior written
consent of Tenant, which shall not be unreasonably withheld; (iii) Landlord
shall not take or permit any act or omission which shall materially impair
Tenant's ability to do business in the Premises; (iv) Landlord shall not seek,
consent or participate (except by way of objection if requested by Tenant) to
any parking variances affecting the Entire Premises. Should Landlord violate any
of the provisions of this Section 2.2, Tenant shall have the continuing right to
terminate this Lease or, at its option, to receive an abatement of Rent and all
other rents and charges hereunder for the total period of such violation, in
addition to any other remedies it may have in law or equity (including
injunctive relief). Without Tenant's prior written consent, Landlord shall not
lease the Third Party Leased Premises or any part thereof for a term (inclusive
of renewal options) (a) in excess of five (5) years, or (b) extending beyond the
40th anniversary of the Effective Date.
(e) Gross Leasable Area. As used herein, the term "Gross
Leasable Area" shall be defined as all areas available, or held for the
exclusive use and occupancy of occupants or future occupants of the Entire
Premises, measured from the exterior surface of exterior walls (and from
extensions thereof in the case of openings) and from the center of interior
demising partitions. The Gross Leasable Area shall not include the Common Areas.
As of the Effective Date, the parties agree that the Gross Leasable Area of the
Premises is [to be provided prior to Closing], and that the Gross Leasable Area
of the Entire Premises is [to be provided prior to Closing].
2.3 Adjacent Property: If Landlord or any parent, subsidiary,
affiliate, partner, officer, shareholder or employee of Landlord (in any case, a
"Landlord Affiliate"), directly or indirectly, owns or acquires any legal,
financial, beneficial or other interest within the area bounded on the east by
Alton Road, bounded on the west by West Avenue, bounded on the south by Lincoln
Road and bounded on the north by 17th Street ("Adjacent Property"), then (unless
the context clearly otherwise requires) the provisions of this Lease pertaining
to the Entire Premises, including without limitation, those pertaining to
Landlord's obligations to maintain, Tenant's rights to use and Tenant's
exclusive and restrictive covenants, shall likewise apply to the Adjacent
Property as though fully set forth herein. Neither Landlord nor any Landlord
Affiliate, directly or indirectly, shall own or acquire any legal, financial,
beneficial or other interest or lease or sell any property to or for, any
business activity similar to any portion of the Store within the Adjacent
Property.
2.4 Epicure Parking Premises: Tenant agrees that, so long as this
Lease is in full force and effect, it shall use the Epicure Parking Premises
primarily for parking, solely for the benefit of the Premises (except as
otherwise required by agreements to which this Lease is subject).
2.5 Common Areas: The term "Common Areas" as used herein shall
mean all those portions of, and facilities within, the Entire Premises which are
intended for the common use of the occupants, their customers, agents and
employees, as follows: (i) second floor [on Lots 4 & 5, above the "Ace
Hardware"] hallway and bathrooms, all as shown on Exhibit A (Page 3 of 3); (ii)
entrances, hallways and stairway on Lots 4 & 5; (iii) rear driveway and loading
area on Lots 6 & 7, as shown on Exhibit A (Page 3 of 3); and (iv) areas for
common utilities serving the Entire Premises.
2.6 Special Parking Lease: Landlord and Tenant acknowledge that a
portion of the Epicure Parking Premises is encumbered by that certain Parking
Space Lease dated as of November 13, 1997, as amended by Amendment to Parking
Space Lease of even date herewith (collectively, the "Special Parking Lease") by
and between Landlord, as tenant, and Tenant (as successor in interest to Epicure
Market, Inc.), as landlord, respecting 13 parking spaces. Landlord further
acknowledges that, notwithstanding anything contained in this Lease, (a) if
Tenant, in its sole but reasonable discretion, determines that the Special
Parking Lease is adverse to the Premises or the Store, Tenant may require the
termination of the Special Parking Lease, (b) in such event, Landlord, at its
sole cost and expense, shall (i) take all such steps as may be reasonably
required by Tenant to terminate the Special Parking Lease, (ii) comply with the
provisions of Section 2 thereof and obtain an unconditional permanent
certificate of occupancy for
4
6
the "1668 Building" as referenced in the Special Parking Lease (and Landlord
specifically acknowledges that such compliance may entail a payment to the City
of Miami Beach, and (c) if Landlord fails, within thirty (30) days after written
notice from Tenant, to satisfy its obligations under subpart (b) of this Section
2.6, then Tenant shall be permitted to take such actions on behalf of Landlord
and pay such sums, and to offset all of the costs and sums thereof against any
monies thereafter due Landlord hereunder.
ARTICLE 3 - DELIVERY AND ACCEPTANCE
3.1 AS IS Delivery: Landlord shall deliver, and Tenant shall
accept, the Premises in their AS IS condition, subject to Landlord's obligations
otherwise herein expressed and Landlord's Statement set forth in Section 7.1
hereof.
ARTICLE 4 - LEASE TERM AND OPTIONS
4.1 Initial Term: The Term shall commence on the Effective Date
and shall expire as specified in Section 1.5, unless extended or earlier
terminated as provided herein.
4.2 Options to Renew: Tenant may extend the original term of this
Lease for the additional periods set forth in Section 1.6, on the terms and
conditions set forth herein, by notifying Landlord not less than six (6) months
prior to the expiration of the original term, or each extended term, as the case
may be. Should Tenant neglect to exercise any option by the dates specified
above, Tenant's right to exercise shall not expire until thirty (30) days after
notice from Landlord of Tenant's failure to exercise the option.
ARTICLE 5 - RENT
5.1 Payment: During the Term, Tenant shall pay Rent to Landlord
as specified in Section 1.7, plus all applicable sales and/or rent taxes due
thereon. Rent shall be payable in advance on or before the first (1st) day of
each calendar month during the Term. If the Lease commences other than on the
first day of a calendar month, the first month's Rent shall be prorated
accordingly and paid with the Rent for the first full month. All rent and other
payments to be made by Tenant to Landlord shall be sent to the place to which
notices are required to be sent, unless otherwise directed by Landlord in
writing.
ARTICLE 6 - USE
6.1 Use: The Premises is initially intended to be used primarily
for grocery store purposes, and other purposes as conducted on the Effective
Date.
6.2 Restrictive Covenants: Tenant agrees not to conduct any
business in the Premises in violation of the provisions of Section 2.2(b)
hereof. So long as the "Ace Exclusive" as set forth on Exhibit C attached hereto
and made a part hereof is effective, Tenant agrees not to conduct business in
the Premises in a manner which would violate the "Ace Exclusive". So long as the
Gridiron 1st Floor Lease and/or Gridiron 2nd Floor Lease is effective, and the
tenant thereunder is operating as a gymnasium/exercise/health club facility,
Tenant agrees not to operate a gymnasium/exercise/health club facility in the
Premises. Notwithstanding the foregoing, Tenant shall not be prohibited in any
way from selling health foods and/or health related products.
ARTICLE 7 - LANDLORD'S STATEMENT
7.1 Landlord's Statement: Landlord represents and warrants to
Tenant, all of the following:
(i) Organized and Good Standing. Landlord is a
general partnership duly organized, validly existing and in good standing under
the laws of the State of Florida with full power to consummate the transactions
contemplated herein. As of the Effective Date, the sole general partners of
Landlord are Edward Thal and Leonard Thal, or trusts or family partnerships
established under their estate plans, but which they control. Landlord
represents to Tenant that the individuals executing this Agreement are competent
to do so.
(ii) Authorization of Agreement. Landlord has full
legal right, power and authority to enter into and perform this Agreement and to
consummate the transactions
5
7
contemplated hereby. This Agreement and all other agreements and instruments to
be executed by Landlord in connection herewith have been duly executed and
delivered by Landlord, have been effectively authorized by all necessary action,
partnership or otherwise, and constitute the legal, valid and binding
obligations of Landlord.
(iii) No Conflicts. Except as otherwise disclosed
in the Purchase Agreement and/or herein, neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) constitute or result in a breach of, or a default under, any term or
provision of any agreement, license, franchise, or permit to which Landlord is a
party or by which any of the Entire Premises is bound, (b) to the best of its
knowledge, constitute or result in a violation by Landlord of any statute, rule,
regulation, ordinance, code, order, judgment, writ, injunction, decree or award,
(c) result in an imposition of any encumbrance, restriction or charge on any of
the Entire Premises, or (d) conflict with or result in a violation of any
provision of the partnership agreement of Landlord.
(iv) Ownership of the Entire Premises. The Landlord
is the sole owner in fee simple of all of the Entire Premises, free and clear of
any and all liens, claims, taxes, assessments and encumbrances of whatsoever
kind or nature, except for the Permitted Exceptions and such other matters as
shall be disclosed in Tenant's title commitment and Survey. To the best of its
knowledge, no portion of the Entire Premises is affected by any special
assessment, pending or certified, whether or not constituting a lien thereon.
(v) Condition of Property. To the best of its
knowledge, all structures, improvements, systems and fixtures upon and/or within
the Entire Premises conform to any and all applicable federal, state and local
laws and are in good operating condition and order.
(vi) Compliance with Laws. Except as disclosed in
the Purchase Agreement and herein, to the best of its knowledge, (a) Landlord
holds valid and effective certificates of occupancy and all requisite zoning,
building, safety, fire and health approvals and all other licenses and permits
required by applicable law relating to the Entire Premises, (b) to the best of
its knowledge, neither Landlord nor its tenants have violated, in any material
respect, any federal, state, local or foreign law, regulation or order, relating
to the Entire Premises, (c) Landlord has not received any notice of any such
violation, (d) to the best of its knowledge, the licenses and permits pertaining
to the Entire Premises, copies of which have been furnished to Tenant,
constitute all approvals, authorizations, consents, licenses, orders and permits
of all governmental agencies, whether federal, state or local, related to the
Entire Premises, the absence of which would adversely affect the Entire
Premises, and (e) to the best of its knowledge, all such licenses and permits
are in good standing, free from default or violation, and are fully paid for,
through the dates set forth therein.
(vii) Litigation. Except if and as set forth in
Schedule 7.1(vii) attached hereto and made a part hereof, there are no claims,
disputes, actions, proceedings or investigations of any nature pending or, to
its best knowledge, threatened, against or involving the Entire Premises
("Landlord Pending Litigation").
(viii) Insolvency. There are no attachments,
execution proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings pending or, to the best of its
knowledge, threatened against Landlord, nor are any such proceedings
contemplated by Landlord. Landlord is not insolvent.
(ix) Adjoining Property. There are no written or,
to the best of their knowledge, other binding agreements between Landlord and
the owner or occupants of any lands adjoining or proximately located to the
Entire Premises and/or the Entire Premises affecting the use or enjoyment of
either of the same.
(x) No Condemnation. There is no pending or, to
the best of its knowledge, threatened, condemnation or similar proceeding
affecting the Entire Premises.
(xi) Possession. There are no parties in possession
of any portion of the Entire Premises, other than the Existing Tenants under the
Third Party Leases.
6
8
(xii) Other Information. Pursuant to the Property
Data Certification (as defined in the Purchase Agreement), to the best of its
knowledge, the information therein provided pertaining to the Entire Premises,
constitute true, accurate and complete listings of all of the items referenced
therein. To the best of its knowledge, all information provided and to be
provided by Landlord to Tenant in this Agreement or in any other writing
pursuant hereto does not and will not contain any untrue statement of a material
fact or omits or will omit to state a material fact required to be stated herein
or therein or necessary to make the statements and facts contained herein or
therein, in light of the circumstances in which they are made, not materially
false or materially misleading. Copies of all documents heretofore or hereafter
delivered or made available to Tenant pursuant hereto were or will be true,
complete and accurate records of such documents.
(xiii) Landlord Executory Contracts. (a) Other than
as identified in Schedule 7(B)(xiii) if attached hereto in which event the same
shall be deemed a part hereof, Landlord is not party to any material executory
contract affecting the Entire Premises; and (b) all material Landlord Executory
Contracts are in full force and effect, and to the best of its knowledge not in
violation or default by any party thereto, nor to the best of its knowledge has
there occurred any event, with the passage of time, the giving of notice, or
both, may constitute a violation or default by any party thereto.
(xiv) Taxes. Landlord has paid all real estate and
personal property taxes and general and special assessments through the calendar
year 1996. Landlord has paid or otherwise reasonably arranged for payment of all
sales taxes, assessments, fees, and other government charges levied upon its
assets and income or otherwise relating or attributable to the Entire Premises
for all periods prior to the Effective Date. To the best of its knowledge, there
are no unassessed tax deficiency that has been proposed or threatened against
Landlord by any taxing authority. No audits of any tax return are in progress,
and there are not in force any agreements by Landlord for the extension of time
for the assessment or payment of any tax. Landlord shall protect, defend,
indemnify and hold Tenant harmless from and against any liability for sales tax
attributable to the Entire Premises that is unrelated to Tenant's use thereof
after the Effective Date.
(xv) No Conservation District. To the its best
knowledge, the Entire Premises is not subject to any historical, conservation or
similar or other law restricting its use (other than building and zoning laws of
general import in Miami Beach, Florida). However, given the that so much of the
City of Miami Beach is undergoing restoration, the Entire Premises may be
subject to the foregoing restrictions. Landlord has not undertaken any
investigation to determine that fact.
(xvi) Insurance. Landlord maintains reasonable and
customary insurance policies, including, without limitation, general liability,
property and personal liability insurance, which insure the Landlord and such
other parties to whom Landlord may become liable against such losses and risks
generally insured against by comparable property owners (collectively, the
"Landlord Insurance Policies").
(xvii) Environmental. To the best of its knowledge,
neither the Entire Premises nor any part thereof is contaminated by or contains
any Hazardous Substance, and Landlord and the Entire Premises comply and at all
times have complied with each and every environmental law, rule, ordinance,
regulation and code provision now in effect, the violation of which would
adversely affect the Entire Premises.
(xviii) No Prohibitive Agreements. From and after
the Effective Date, Landlord shall not amend or enter into (or otherwise allow)
any new covenants, restrictions, easements, agreements or encumbrances so as to
prohibit the Epicure Business use or so as to materially adversely affect
Tenant's rights or materially increase Tenant's obligations under the New Lease.
(xix) No Exclusives. Except for the Ace Exclusive,
no leases currently respecting any portion of the Entire Premises contain any
exclusive rights or restrictive covenants of any kind or nature.
The representations and warranties set forth in Section 7.1 shall
be true and correct as of the Effective Date and shall survive for a period of
eighteen (18) months thereafter; provided
7
9
however, that if any breach of representation or warranty involves fraud, the
applicable limitation shall be as provided in Fla. Stat. Setion 95.11(3)(j).
7.2 Exclusive: Landlord warrants and covenants to Tenant that
during the initial and any extended term hereof, no other party may operate
business, primary or otherwise, within the Entire Premises or such additional
property as contemplated in Section 2.3 hereof for the purpose of a grocery
store or supermarket or for the sale of any food or beverages for on or off
premises consumption (except, as a minor incidental use, Gridiron Club or a
replacement health club thereof, may sell beverages and health club snack foods
normally sold in a health club). Landlord agrees to enforce the terms of this
Section 7.2 against all tenants and other parties in the Entire Premises,
including through all legal proceedings. In the event of a breach of this
Section 7.2, Tenant shall be entitled to any and all legal and equitable
remedies permitted by applicable law, including without limitation, termination
and/or injunctive relief; and, in addition thereto, Tenant shall be permitted to
abate all rents and charges herein until such violation ceases.
ARTICLE 8 - OPTION TO PURCHASE
8.1 Option to Purchase:
(a) Option to Purchase at 39 Years. Provided Tenant shall
be in legal possession of the Premises during the 39th year of the Term (i.e.
within the Fourth Option Term), Tenant shall have the option to purchase the
Entire Premises (the "39 Year Option"), for the 39 Year Option Price (defined
below). Such 39 Year Option shall be exercised, if at all, prior to the 39th
anniversary of the Effective Date, and shall be closed, if exercised, within six
(6) months after the date on which Tenant delivers written notice of its
exercise of the 39 Year Option (the "39 Year Notice Date"). Subject to the
provisions of Section 8.1(c), the "39 Year Option Price" shall be equal to the
sum of (i) $6,177,200, plus (ii) the product of (1) ten (10) multiplied by (2)
the net annual base rent (i.e. exclusive of taxes, maintenance, insurance and
other costs) of all bona fide independent fair rental value leases respecting
the Third Party Leased Premises ("Third Party Leases") for the twelve (12) month
period preceding the 39 Year Notice Date. If Tenant does not exercise the 39
Year Option within the time herein provided, the 39 Year Option shall be deemed
waived. Wrongful failure to close by either party after exercise of the 39 Year
Option shall be a default by such failing party.
(b) Option to Purchase upon Intent to Sell. Landlord
agrees that, without the prior written consent of Tenant, no fractional part of
the Entire Premises can be sold, conveyed or otherwise transferred. Landlord
also agrees that the Entire Premises cannot be sold, conveyed or otherwise
transferred without first providing Tenant with a two (2) month period within
which to exercise an additional option to purchase the Entire Premises.
Accordingly, Tenant shall have the option to purchase the Entire Premises (the
"Earlier Option"), for the Earlier Option Price (defined below), in accordance
with the following provisions. The Earlier Option shall be exercised, if at all,
within two (2) months after the date on which Landlord delivers written notice
of its intent to sell, convey or otherwise transfer the Entire Premises to
Tenant ("Notice of Intent to Sell Date"), and shall be closed, if exercised,
within four (4) months of the date on which Tenant delivers written notice to
Landlord of Tenant's exercise of the Earlier Option ("Notice of Exercise of
Earlier Option Date"). As a condition to the proper exercise of the Earlier
Option, Tenant shall deliver to a reputable title company, real estate brokerage
company or law firm (in any such case, "Escrow Agent"), as an earnest money
deposit ("Deposit") to secure Tenant's obligations to purchase the Entire
Premises, an amount equal to the lower of (i) $200,000, or (ii) the amount
deposited by any then existing offeror for the Entire Premises. In the event
Tenant fails to close on the purchase of the Entire Premises in violation of the
terms hereof, Landlord shall be entitled to the Deposit as liquidated damages.
Subject to the provisions of Section 8.1(c), the "Earlier Option Price" shall be
equal to the product of (i) ten multiplied by (1) the sum of (a) the annual Rent
specified in Section 1.7 hereof for the period in which the Notice of Exercise
of Earlier Option Date occurs, plus (b) the net annual base rent (i.e. exclusive
of taxes, maintenance, insurance and other costs) of all Third Party Leases for
the twelve (12) month period preceding the Notice of Exercise of Earlier Option
Date. If Tenant does not exercise the Earlier Option within the time provided in
this Section 8.1(b), Tenant's right to exercise the Earlier Option shall be
deemed forever waived, unless Landlord does not enter into a bona fide contract
to sell the Entire Premises to an independent third party within six (6) months
after the earlier date of (x) Tenant's delivery of notice to Landlord declining
to exercise the Earlier Option, or (y) the expiration of the Earlier Option, and
close within six (6) months thereafter.
8
10
Wrongful failure to close by either party after exercise of the 39 Year Option
shall be a default by such failing party.
(c) Calculations of Applicable Option Price.
(i) If, within the six (6) months preceding the
39th anniversary of the Effective Date respecting the 39 Year Option or if
applicable, within one (1) month after the Notice of Intent to Sell Date
respecting the Earlier Option, Landlord, at its sole cost and expense, delivers
to Tenant a then current (i.e. not more than three (3) months old, and no
subsequent material change in condition since the date of such appraisal such as
due to governmental action, casualty or act of God) fair market value appraisal
prepared by an MAI appraiser, and certified to Landlord and Tenant, concluding
and evidencing the then fair market value of the Entire Premises ("Landlord's
Appraised Value") which exceeds the 39 Year Option Price or Earlier Option
Price, as applicable ("Applicable Option Price"), the Applicable Option Price
shall be increased by an amount equal to twenty-five (25%) percent of such
excess (subject to the below provisions of this Section 8.1(c)). If Tenant
disagrees with Landlord's Appraised Value, and if Landlord and Tenant cannot
otherwise agree on the Applicable Option Price, Tenant shall have the option, at
its sole cost and expense, to engage its own MAI appraiser to appraise the
Entire Premises, and if the two appraisers cannot agree to the then fair market
value of the Entire Premises, the two appraisers shall appoint a third MAI
appraiser, the cost of whom shall be shared equally by Landlord and Tenant. The
average of the three appraisals shall be deemed the fair market value of the
Entire Premises, and if such average exceeds the Applicable Option Price, the
Applicable Option Price shall be increased by twenty-five (25%) percent of such
excess. Any and all appraisals contemplated in this Section 8.1(c) shall be
limited to the value of the real estate, and expressly shall not include any
value attributable to (i) any capital improvements made subsequent to the
Effective Date (except for those, if any, made by Landlord, at its sole cost and
expense) and/or (ii) goodwill or the operation of business subsequent to
Closing. If Landlord does not deliver such appraisal in accordance with the
provisions hereof and within the time provided in this Section 8.1(c),
Landlord's right to seek an increase in the Applicable Option Price shall be
deemed waived.
(ii) If any portion of the Third Party Leased
Premises is not leased at the time relevant for purposes of calculating the
Applicable Option Price, then, for purposes of calculating the Applicable Option
Price, the net annual base rent (i.e. exclusive of taxes, maintenance, insurance
and other costs) due with respect to such unleased space shall be presumed to be
the lower of (a) the fair rental value as certified by an MAI appraiser engaged
by Landlord and/or Tenant (and the MAI appraiser shall be paid by the party
engaging the same), or (b) the last net annual base rent (i.e. exclusive of
taxes, maintenance, insurance and other costs) actually paid by the last
existing bona fide unaffiliated tenant for such unleased Third Party Leased
Premises [however, any bona fide Third Party Lease entered into between
independent, unrelated parties with a rental schedule without unusual charges,
and no "side" inducements" shall be presumed to be at fair rental value]. If
Landlord or Tenant shall engage an MAI appraiser as provided in this Article 8
(and whoever engages such appraiser shall pay for the same), then prior to the
rents being included in the calculation provided in Sections 8.1(a) and/or (b),
such appraiser shall certify that such rents provided in the Third Party Leases
with respect to Third Party Leased Premises (whether leased or unleased) for the
year in question are at fair rental value. If both parties engage their own
appraisers and the two appraisers cannot agree to the then fair rental value,
the two appraisers shall appoint a third MAI appraiser, the cost of whom shall
be shared equally by Landlord and Tenant. The average of the three appraisals
shall be deemed the fair rental value.
(d) Miscellaneous: The options to purchase described in
subsections 8.1(a) and (b) ("PURCHASE OPTIONS") shall be exercised by Tenant, if
at all, by delivery to Landlord, at any time prior to the respective deadlines
set forth in subsections 8.1(a) and (b) of written notice exercising the
applicable Purchase Option ("EXERCISE NOTICE"). Upon delivery of the Exercise
Notice, (i) Tenant shall have a period of six (6) months thereafter, subject to
extension by reason of casualty or condemnation ("6 MONTH DEADLINE") within
which to secure financing acceptable to Tenant, failing which Tenant shall be
permitted to rescind the Exercise Notice, and (ii) the closing of the sale and
purchase ("Closing") shall be at a mutually convenient date within the 6 Month
Deadline. Tenant shall also be permitted to rescind the Exercise Notice in the
event that at any time prior to Closing: (a) the Entire Premises or any part
thereof shall suffer a material casualty, condemnation or environmental hazard
not caused by Tenant, or (b) Landlord's title shall be other than good,
marketable and insurable as herein provided (excepting the "PERMITTED
9
11
EXCEPTIONS", as set forth on Exhibit C), or (c) there shall be an event
occurring subsequent to the exercise of the Purchase Option by Tenant, and not
caused by Tenant, which shall result in the (x) introduction in the Entire
Premises or any part thereof of any Hazardous Material or (y) violation of any
law.
(e) Closing: At Closing: (1) Landlord shall convey good,
marketable and insurable title to the Entire Premises by general warranty deed,
subject only to the Permitted Exceptions and other matters approved in writing
(or caused) by Tenant, and shall execute and deliver such other sale and
purchase documents then customarily executed and delivered by sellers of
commercial property in Miami Beach, Florida, (2) Landlord shall pay all
documentary stamp taxes and surtaxes, and other expenses then customarily borne
by sellers of commercial property in Miami Beach, Florida (except, in any event,
Tenant shall be responsible for title insurance premiums), (3) Landlord shall
execute and deliver to Tenant such title and other documents as may be required
by Tenant's title insurer or otherwise are then customarily delivered by sellers
of commercial property in Miami Beach, Florida, (4) (i) Rent and other sums due
Landlord and/or Tenant hereunder, and (ii) rents, utilities, real and personal
property taxes and other sums respecting the Third Party Leased Premises, shall
be prorated through the date prior to Closing, (5) Tenant shall pay to Landlord
the Applicable Option Price, subject to applicable prorations, adjustments and
credits, (6) all terminable executory contracts shall be terminated, except as
otherwise required by Tenant, and with respect to executory contracts which are
not terminated, Landlord shall use its best efforts to deliver to Tenant, duly
completed and executed estoppel letters, as may be reasonably requested by
Tenant (and with respect to any such executory contracts as to which Landlord
fails to deliver such estoppel letters, Landlord, by closing affidavit, shall
warrant all such information as would be contained therein), (7) Landlord shall
deliver sole and exclusive possession of the Third Party Leased Premises to
Tenant (subject to the possessory rights of tenants under leases then in effect
for the Third Party Leased Premises as provided herein), (8) Landlord and Tenant
shall mutually execute and deliver an assignment and assumption (with reciprocal
indemnities) of all Third Party Leases, executory contracts desired by Tenant,
warranties, licenses and permits, (9) Landlord shall deliver a Florida
Department of Revenue transferee certificate (or then equivalent), such that
Tenant shall not be liable for Landlord's sales taxes.
(f) Special Environmental Provision: In the event (i)
Landlord triggers Tenant's option to purchase as contemplated in Section 8.1(b),
and (ii) Tenant is unable, solely due to the existence of any environmental
condition affecting any portion of the Entire Premises as of the Effective Date
and not caused by Tenant after the Effective Date, to obtain conventional
financing at then prevailing rates and terms to enable it to close within the
time contemplated in said Section 8.1(b), then Landlord agrees to finance, with
a conventional purchase money note and first mortgage (with customary assignment
of rents and other security interests), seventy-five (75%) percent of the
Earlier Option Price, on the following terms and conditions: (a) interest shall
accrue at a fixed rate of interest that is equal to that which SunTrust (or if
SunTrust does not then exist, a similar bank then existing) is then offering for
similar loans; (b) the promissory note shall provide for eighty-four (84) equal
monthly payments, consisting of principal and interest based upon an assumed
amortization period of twenty-five (25) years, payable in arrears, with a
maturity date of the seventh (7th) anniversary of the Closing Date; (c) the
mortgage shall encumber all of the Entire Premises; and (d) such other terms and
conditions customary for a first mortgage financing of commercial real estate.
8.2 Ace Hardware: Landlord has advised Tenant that the Entire
Premises are subject to a certain right of first refusal ("ACE RIGHT OF
REFUSAL") in favor of Ace, as provided in the Ace Lease. In the event Ace, or
its successors or assigns under the Ace Lease acquire the Entire Premises or any
part thereof pursuant to the Ace Right of Refusal, then from and after such date
through the expiration of the Term, the Rent provided in Section 1.7 (if and as
modified by other provisions hereof) shall be reduced by fifty (50%) percent.
The Ace Right of Refusal is set forth on Exhibit C. Landlord agrees not to renew
the Ace Lease, or allow Ace to holdover beyond the termination of the Ace Lease,
unless Ace releases, in a writing in recordable form, any and all rights of
refusal to purchase any portion of the Entire Premises.
ARTICLE 9 - REAL ESTATE TAXES
9.1 Taxes on the Entire Premises: The tax parcels comprising the
Entire Premises ("Tax Parcels") are as follows:
10
12
Tax Parcel Brief Description Folio No.
---------- ----------------- ---------
1 Lots 2 & 3 02 3234 017 0160
2 Lots 4 & 5 02 3234 017 0170
3 Lot 6 02 3234 017 0180
4 Lots 7 & 8 02 3234 017 0190
Landlord shall pay, on or before the due date, all taxes and
assessments levied against the Entire Premises.
9.2 Tenant's Proportionate Share of Taxes:
(a) Tenant shall pay to Landlord its proportionate share
of the real estate taxes and assessments levied upon and assessed against the
Tax Parcels, for each tax year of the Term, based upon the maximum available
discount, as follows:
(1) Tax Parcel 1: 100%,
(2) Tax Parcel 2:
based upon a fraction, the numerator of which is
the Gross Leasable Area of the Premises lying
within Tax Parcel 2, and the denominator of which
is the Gross Leasable Area of the Entire Premises
lying within Tax Parcel 2 [if possible, this
fraction will be determined prior to Closing, and
the actual percentage shall be set forth herein];
(3) Tax Parcel 3: 0%,
(4) Tax Parcel 4:
based upon a fraction, the numerator of which is
the Gross Leasable Area of the Premises lying
within Tax Parcel 4, and the denominator of which
is the Gross Leasable Area of the Entire Premises
lying within Tax Parcel 4 [if possible, this
fraction will be determined prior to Closing, and
the actual percentage shall be set forth herein].
Such taxes shall be payable within fourteen (14) days after receipt by Tenant of
a true copy of said tax bill and a statement in writing from Landlord setting
forth the amount of Tenant's proportionate share. No fine, penalty or interest
charge for non-payment or late payment of any such taxes referred to herein by
Landlord shall be apportioned to Tenant, unless Tenant fails to timely pay its
proportionate share in which event Tenant shall pay Landlord such additional
sums resulting from Tenant's late payment. In the event of assessments which may
be paid in installments by reason of bonding or otherwise, Landlord shall elect
to make payment under the maximum installment plan, and Tenant shall bear no
liability as to any taxes due prior to the Effective Date or following the
expiration or earlier termination of this Lease. Tenant's proportionate share is
defined as that fraction of which the numerator is the Gross Leasable Area of
the Premises and the denominator of which is the Gross Leasable Area of the
entire Entire Premises. Such computation shall be made separately for each tax
year. Tenant shall also pay, directly to the taxing authority, all taxes on all
personal property at the Premises during the Term.
(b) For the purpose of computing Tenant's share of the tax
bill, there shall be excluded: (i) any increase in taxes caused by construction
in the Entire Premises commenced subsequent to occupancy by Tenant hereunder
until such time as such space constitutes Gross Leasable Area; (ii) income,
excess profits, estate, single business, inheritance, succession, transfer,
franchise tax or assessment upon Landlord or the rentals payable under this
Lease; (iii) tenant improvements on Third Party Leased Premises installed
subsequent to the Effective Date; and (iv) any increase caused by a "change in
ownership" pursuant to a sale to Ace Hardware under the Ace Right of Refusal.
(c) Any rebates, refunds or abatements of real estate
taxes received by Landlord subsequent to payment of taxes by Tenant shall be
refunded to Tenant on a proportionate basis within ten (10) days of receipt
thereof by Landlord. Any such rebate, refund or abatement realized by Landlord
prior to payment by Tenant shall result in an immediate reduction in Tenant's
proportionate share of taxes then due to Landlord.
9.3 Right to Contest: Tenant shall have such rights to contest
the validity or amount of real estate taxes as are permitted by law, either in
its own name or in the name of Landlord, in either case with Landlord's
reasonable cooperation. Any resultant refund, rebate or reduction
11
13
shall be used first to repay the expenses of obtaining such relief. Landlord
shall provide Tenant with government notices of assessment (or reassessment) in
time sufficient to reasonably permit Tenant, at Tenant's election, to make
contest.
9.4 Special 1998 Provision: Notwithstanding anything to the
contrary, the parties acknowledge and agree as follows: (a) Landlord shall fully
pay, prior to delinquency, any and all special assessments, interest thereon and
any other sums arising out of the City of Miami Beach Resolution Nos. 94-21165
and 94-21213 ("Pending Liens Assessments"), as and when the same come due and
payable (and, at Landlord's option, Landlord may pay such Pending Liens
Assessments in installments), (b) Tenant shall have no obligation to pay any
portion of the Pending Liens Assessments, (c) with respect to the real estate
taxes for all Tax Parcels for the 1998 calendar year ("1998 Taxes"), Tenant's
obligation to pay its proportionate share thereof, as set forth in Section 9.2
below, shall be reduced by multiplying such proportionate share by 75.34% (to
reflect that Landlord is solely responsible for the 1998 Taxes for the period
January 1, 1998 through and including March 31, 1998), and (d) in the event
Landlord fails to pay the Pending Liens Assessments or the 1998 Taxes prior to
delinquency, Tenant may (but is not obligated to) pay the same, and upon such
payment, Tenant may offset all such paid sums against the next accruing monies
due under this Lease.
ARTICLE 10 - INSURANCE
10.1 Landlord's Insurance: Landlord will maintain at all times
during the Term (i) an All Risk Policy insuring against damage to the Entire
Premises (excluding the interior, non-structural elements of the Store), for at
least ninety (90%) percent of full replacement value, (ii) a policy or policies
of public liability insurance against any and all damages and liability on
account of, or arising out of injuries to persons or property or the death of
any person or for property damage occurring in the Entire Premises, in the
minimum amount of TWO MILLION ($2,000,000) DOLLARS single limit in any one
accident, and (iii) such other forms of insurance which are commonly carried by
prudent owners of other shopping centers located in "South Beach", Florida, of a
similar size, age and nature which Landlord, in its reasonable discretion,
desires to carry. Said policy or policies shall name Tenant as an additional
insured and include contractual liability insurance recognizing the liability
assumed in Section 19.2 hereof.
10.2 Tenant's Insurance: Tenant will maintain at all times during
the Term (i) an All Risk Policy insuring against damage to the interior,
non-structural elements of the Store [but Tenant is not required hereunder to
insure its personal property], for at least ninety (90%) percent of full
replacement value, and (ii) a policy or policies of public liability insurance
against any and all damages and liability on account of, or arising out of
injuries to persons or property or the death of any person or for property
damage occurring in the Store, in the minimum amount of TWO MILLION ($2,000,000)
DOLLARS single limit in any one accident. Said policy or policies shall name
Landlord as an additional insured and include contractual liability insurance
recognizing the liability assumed in Section 19.1 hereof. In addition to the
foregoing requirements of this Section 10.2, Tenant shall pay to Landlord its
proportionate share of the Landlord's insurance premiums as provided in Section
10.1, for each year of the Term. Such proportionate share shall be determined in
the same manner set forth for real estate taxes in Section 9.2 hereof, and shall
be payable within fourteen (14) days after receipt by Tenant of a true copy of
said Landlord's insurance premium notices and a statement in writing from
Landlord setting forth the amount of Tenant's proportionate share.
Notwithstanding the foregoing, Tenant shall not be required to pay any excess
portion of Landlord's insurance premiums which are attributable to space outside
of the Premises which are subject to an extraordinary increase in insurance
premium based upon high risk with respect to use, construction or like cause.
10.3 Insurance Requirements: Landlord and Tenant agree to deliver
to the other certificates of insurance evidencing the existence in force of the
policies of insurance described in this Article. All insurers shall have a
rating of A-/VI or better under the then current edition of Best's Insurance
Guide. Each of the certificates shall provide that such insurance shall not be
cancelled or materially amended unless thirty (30) days' prior written notice of
such cancellation or amendment is given to the party designated on such
certificate as the holder thereof. The policies required hereunder may be in the
form of blanket coverage, with reasonable deductibles, so long as the blanket
policies comply with the terms hereof.
10.4 Waiver of Subrogation: Tenant and Landlord hereby waive and
release any and all right of recovery against the other, including employees and
agents, arising during the
12
14
Term for any and all loss or damage to any property located within or
constituting a part of the Entire Premises which loss or damage arises from the
perils covered by an insurance policy. This mutual waiver is in addition to any
other waiver or release contained in this Lease. Landlord and Tenant shall give
written notice to its insurers of the provisions of this waiver and release and
have its insurance policies endorsed, if required, to prevent invalidation of
insurance coverage by reason of this waiver and release. Landlord and Tenant,
respectively, agree to use best efforts to have their respective insurance
carriers include a "waiver of subrogation" provision in such policies without
increase in premium; if such provision can be obtained only upon the payment of
an increase in premium, then the party who would benefit from such provision
shall have the option of paying the increase in premium or foregoing the benefit
of such provision.
ARTICLE 11 - TITLE TO IMPROVEMENTS
11.1 Title to Improvements: Notwithstanding anything contained in
this Lease to contrary, the parties hereto agree as follows:
(a) All trade fixtures, equipment and other personal property
including, but not limited to, all signs, ice machines, soda fountains, fryers,
grills, toasters, freezers, walk-in coolers, tables, chairs, display racks,
gondolas, shelving, carpeting, lighting fixtures, fans, hoods and other
restaurant, grocery, kitchen and dining room equipment, shall be, remain and
continue to be the sole and absolute property of Tenant and may be replaced at
any time during the term of this Lease and may be removed prior to or at the
expiration or termination of this Lease; provided, however, that such removal
shall not impair the structural integrity of the building. Landlord further
acknowledges that all such property is personal property and is not to become a
part of the realty no matter how affixed to it.
(b) Title to the improvements and any repairs, alterations, additions or
improvements thereto shall be vested in and remain in Tenant at all times during
the term of this Lease, including any renewal or extension thereof. Upon the
expiration of this Lease (or sooner upon purchase of the Premises by Tenant),
any extension or renewal hereof, or its sooner termination, title to the
improvements shall automatically pass to and become vested in Landlord.
11.2 Security Interest Permitted:
(a) Tenant shall have the right at any time to grant a
security interest in the improvements or any part thereof, and/or any equipment,
goods, trade fixtures and other personal property owned by Tenant, and installed
or kept on the Premises. Landlord hereby consents to any such security interest.
Landlord shall subordinate its statutory landlord's lien in favor of any primary
lender of Tenant and to any purchase money lender or equipment lessor. Landlord
agrees that it will, within ten (10) days after any written request by Tenant,
confirm the foregoing consent in writing, and execute and deliver such
instruments as may be requested relating thereto.
(b) If Tenant mortgages its leasehold estate and the
mortgagee or holders of the indebtedness secured by the leasehold mortgage or
trust deed shall notify Landlord, in the manner provided for the giving of
notice, of the execution of such mortgage or trust deed and name the place for
service of notice upon such mortgagee or holder of indebtedness, then, in such
event, Landlord agrees for the benefit of such mortgagees or holders of
indebtedness from time to time:
(i) That Landlord will give to any such mortgagee or
holder of indebtedness simultaneously with service
on Tenant a duplicate of any and all notices or
demands given by Landlord to Tenant. Such notices
shall be given in the manner and be subject to the
terms of the notice provisions of this Lease.
(ii) That such mortgagee or holder of indebtedness shall
have the privilege of performing any of Tenant's
covenants under this Lease, of curing any default
of Tenant or of exercising any election, option or
privilege conferred upon Tenant by the terms of
this Lease.
(iii) That Landlord shall not terminate this Lease or
Tenant's right of possession for any default of
Tenant if, within a period of thirty (30) days
after the expiration of the period of time within
which
13
15
Tenant might cure such default under the
provisions of this Lease, such mortgagee or holder
of indebtedness commences to eliminate the cause
of such default and proceeds diligently and with
reasonable dispatch until such default is cured.
(iv) That, except for the rights to terminate contained
in this Lease, no rights, privilege or option to
cancel or terminate this Lease, available to
Tenant, shall be deemed to have been exercised
effectively unless joined in by any such mortgagee
or holder of the indebtedness.
(v) That no liability for the payment of rental or
performance of any of Tenant's obligations shall
attach to or be imposed upon any mortgagee, trustee
under any trust deed or holder of any indebtedness
secured by any mortgage or trust deed upon the
leasehold estate, unless such mortgagee, trustee or
holder of indebtedness forecloses its interest and
becomes the tenant under this Lease.
ARTICLE 12 - MAINTENANCE AND REPAIR
12.1 By Tenant: Subject to Section 12.2, Tenant shall maintain
the (i) roof upon the building(s) located on Tax Parcel 1, (ii) exterior,
cosmetic elements of the building(s) located on Tax Parcel 1, (iii) interior,
non-structural elements of the Store, and (iv) the Common Areas identified in
subpart (i) of Section 2.5 hereof, all in good repair and good condition,
reasonable wear and tear and damage by casualty excepted (as to which the
provisions of Article 16 shall control). Tenant's obligations under subpart (iv)
above shall be performed at Landlord's cost, but Landlord shall only be required
to reimburse Tenant for its reasonable, verifiable and actual costs relating to
the same. Tenant shall have no obligation to repair any damage or defects caused
by the negligence of Landlord, its agents, employees or contractors, and any
such repairs effected by Tenant, after ten (10) days' (or sooner in the event of
emergency) written notice and failure to cure, shall be promptly reimbursed by
Landlord within five (5) days following billing from Tenant. Notwithstanding the
foregoing provisions of this Section 12.1, in the event Tenant removes its HVAC
equipment from the roof upon the building(s) located on Tax Parcel 1 or
constructs a platform above the roof to carry such HVAC equipment (and repairs
any damage caused thereby and/or replaces such areas of the roof as shall be
required thereby or such areas theretofore controlled by Tenant which are then
in need of repair or replacement, in any event to bring the same into good and
leak free condition), then from and after such point, Landlord shall be
responsible for all repair, maintenance and replacement of the roof upon the
building(s) located on Tax Parcel 1.
12.2 By Landlord: Landlord, at its sole cost and expense, shall
maintain and repair the floor slab, roof, structural elements and utilities of
the Premises (except for Tenant's obligations set forth in Section 12.1 hereof
and except for such portions of utilities lines which are located within the
Premises), in good and sightly condition consistent with its current condition
and other shopping center facilities in "South Beach", Miami Beach, Florida, of
a similar size, age and nature. Tenant shall give Landlord notice of such
repairs as may be required under the terms of this Section, and Landlord shall
proceed forthwith to effect the same with reasonable diligence, but in no event
later than thirty (30) days after having received notice. In the event of an
emergency, Tenant shall be empowered to undertake immediate repairs of such
nature as would normally be Landlord's responsibility, and notify Landlord
promptly after such repairs have been undertaken, in which event Tenant may
deduct the cost thereof from the rentals next coming due.
12.3 Alterations Required by Law: Any repairs, alterations or
other improvements required by governmental authority which results from the
particular use of Tenant (including the Americans with Disabilities Act of 1990,
if applicable), shall be done by Tenant at its sole cost and expense. Any such
work, however, which is required of the Entire Premises in general, or of all
similar buildings in Miami Beach or Dade County, or by any tenant under a Third
Party Lease, shall be performed by Landlord or Tenant, as they may agree,
pursuant to plans and specifications as shall be mutually agreed between them
(and not unreasonably withheld or delayed), and at cost to be shared equally
between them.
14
16
ARTICLE 13 - ALTERATIONS
13.1 Alterations: Tenant may make any alterations or improvements
to the Premises, in a good and workmanlike manner, in conformity with all laws,
ordinances and regulations of public authorities having jurisdiction. Except for
repairs, replacements, painting (of the same or substantially the same color)
and matters involving signage, Tenant shall not make any alterations to the
exterior or material structural elements of the Store, without first obtaining
the written approval of Landlord. Such approval shall not be unreasonably
withheld, delayed or conditioned and shall be deemed granted if Tenant is not
notified in writing of a reasonable basis for withholding such approval within
ten (10) days of notifying Landlord thereof.
ARTICLE 14 - NET LEASE
14.1 Net Lease: This is a "net lease", and Tenant shall pay all
charges to, and pay all expenses of or related to, the Premises, except as
otherwise expressly provided herein.
14.2 Compliance with Laws: Tenant agrees, at its sole cost and
expense, to comply with all laws, ordinances, orders and regulations regarding
the Premises and Tenant's use and occupancy thereof. Tenant agrees to comply
with the reasonable regulations and requirements of any insurance underwriter,
inspection bureau or similar agency with respect to the Premises.
14.3 Prohibitions: Tenant agrees not to (i) permit any illegal
practice to be carried on or committed on the Premises; (ii) make use of or
allow the Demised Premises to be used for any unlawful purpose that would
invalidate or increase the rate of insurance therefor; (iii) keep or use to
permit to be kept or used on the Premises any flammable fluids, gases, or
explosives without the prior written permission of Landlord except for normal
cleaning and other commonly used commercial products; (iv) use the Premises for
any purpose whatsoever which would create a tortious nuisance; (v) deface or
injure the building of the Demised Premises; or (vi) commit or suffer any waste.
ARTICLE 15 - UTILITIES
15.1 Payment: Tenant agrees to pay all use charges for natural
gas, water, electricity, telephone and other utilities and services consumed or
rendered during the Term.
ARTICLE 16 - CASUALTY
16.1 Reconstruction of Premises and Entire Premises: In the event
the Premises or Entire Premises shall be partially or totally destroyed by fire
or other casualty, then, to the extent permitted by law, the damage shall be
promptly repaired and/or replaced by Landlord (except for Tenant's interior,
non-structural leasehold improvements and personal property), and the Rent shall
be abated in proportion to the Gross Leasable Area of the Premises rendered
untenantable. Upon completion of Landlord's restoration obligations, Landlord
shall so notify Tenant. Thereupon, Tenant shall promptly repair and/or replace
its interior, non-structural leasehold improvements. Payment of full Rent shall
re-commence after Tenant has completed its restoration and re-opened for
business. In making repairs, restoration or reconstruction, Landlord and Tenant,
at their respective sole cost and expense, shall comply with all laws,
ordinances, and governmental rules or regulations, and shall perform all work or
cause such work to be performed with due diligence and in a first-class manner,
in accordance with plans and specifications prepared by Tenant and approved by
Landlord, such approval not to be unreasonably withheld or delayed. All permits
required in connection with said repairs, restoration and reconstruction shall
be obtained by the party obligated to perform the same.
16.2 Termination Rights: Tenant shall be permitted to terminate
this Lease by delivery of written notice to Landlord in the event that (i) more
than thirty-three (33%) percent of the Store is damaged, (ii) more than
thirty-three (33%) percent of the Gross Leasable Area of the Entire Premises is
damaged (whether or not the Store shall be damaged), and (iii) more than five
(5%) percent of the Gross Leasable Area of the Entire Premises is damaged during
the last two (2) years of the then existing term. If Tenant elects to terminate
this Lease in accordance with the provisions of this Section, Tenant shall
notify Landlord within ninety (90) days after such casualty, whereupon Landlord
shall be entitled to all proceeds of insurance upon the real property (and such
improvements as shall devolve upon Landlord upon the expiration of this Lease)
and right of recovery against insurers respecting the same.
15
17
ARTICLE 17 - CONDEMNATION
17.1 Reconstruction of Premises and Entire Premises: In the event
the Premises or Entire Premises shall be taken by condemnation or private
purchase in lieu thereof, then the balance of the Premises and/or Entire
Premises shall be promptly repaired and/or replaced by Landlord, to the extent
permitted by law, so as to render the same an integrated unit (except for
Tenant's interior, non-structural leasehold improvements and personal property),
and the Rent shall be abated in proportion to the Gross Leasable Area of the
Premises so taken. Upon completion of Landlord's restoration obligations,
Landlord shall so notify Tenant. Thereupon, Tenant shall promptly repair and/or
replace its interior, non-structural leasehold improvements. Payment of full
Rent shall re-commence after Tenant has completed its restoration and re-opened
for business. In making repairs, restoration or reconstruction, Landlord and
Tenant, at their respective sole cost and expense, shall comply with all laws,
ordinances, and governmental rules or regulations, and shall perform all work or
cause such work to be performed with due diligence and in a first-class manner,
in accordance with plans and specifications prepared by Tenant and approved by
Landlord, not to be unreasonably withheld. All permits required in connection
with said repairs, restoration and reconstruction shall be obtained by the party
obligated to perform the same.
17.2 Termination Rights: Tenant shall be permitted to terminate
this Lease by delivery of written notice to Landlord in the event that (i) more
than thirty-three (33%) percent of the Store is taken, (ii) more than
thirty-three (33%) percent of the Gross Leasable Area of the Entire Premises is
taken (whether or not the Store shall be taken), (iii) more than five (5%)
percent of the Gross Leasable Area of the Entire Premises is taken during the
last two (2) years of the then existing term, (iv) more than thirty-three (33%)
percent of the parking area shall be taken, or (v) any material change occurs to
Tenant's access and frontage. A "Taking" means the initiation by any
governmental authority of any condemnation proceeding, moratorium, initiative,
referendum, or any regulation which impairs parking, or any transfer in lieu
thereof.
17.3 Abatement of Rents: If Tenant does not so terminate this
Lease, then all rent payable hereunder shall be reduced by multiplying the same
by a fraction, the numerator of which is the Gross Leasable Area taken, and the
denominator of which is the Gross Leasable Area of the Store prior to the
Taking. Further, if the parties are unable to agree as to the amount of
abatement, within forty-five (45) days after the Taking the matter shall be
submitted to arbitration under the rules of the American Arbitration
Association.
17.4 Award: Nothing herein contained shall prevent Landlord and
Tenant from prosecuting claims in any condemnation proceedings for the value of
their respective interests. Landlord shall be entitled to the condemnation award
attributed to the real property, and Tenant for the taking of its fixtures and
equipment, leasehold improvements, relocation expenses, severance damages, loss
of leasehold estate, goodwill, loss of business or other award not related to
the value of the real property. The parties waive such rights of Lease
termination as may be granted them in the event of condemnation by the laws of
the state wherein the Store is located, it being their agreement that the rights
of termination set forth in this Lease shall be exclusive.
ARTICLE 18 - CONSTRUCTION LIENS
18.1 Prohibition: Neither Tenant nor Landlord shall permit any
mechanic's, materialman's, construction or other lien against the Premises or
the Entire Premises in connection with any labor, materials or services
furnished or claimed to have been furnished at the request of such party or
their respective agents, employees, tenants or contractors. If any such lien
shall be filed against the Premises or the Entire Premises, the party charged
with causing the lien will cause the same to be discharged, provided, however,
that either party may contest any such lien, so long as the enforcement thereof
is stayed.
ARTICLE 19 - INDEMNITY
19.1 Indemnity by Tenant: With respect to its use and occupancy
of the Premises, Tenant agrees to save Landlord harmless from and indemnify and
defend Landlord against any and all injury, loss, damage, liability (or any
claims in respect of the aforementioned), costs or expense (including, without
limitation, attorney's fees incurred through all levels of proceedings,
reasonable investigative and discovery costs), of whatever nature, to any person
or property caused or claimed to be caused by or resulting from any breach of
this Lease (or any
16
18
representation contained herein) or any wrongful act, omission or negligence of
Tenant or agent of Tenant or any act or thing occurring on the Premises during
the Term not caused by Landlord or Landlord's agents, employees or contractors;
provided that Landlord, upon becoming aware of such claim or damage, shall
promptly notify Tenant. If Landlord, without fault on its part, shall be made a
party to any third party litigation commenced by or against Tenant, then Tenant
shall protect, defend, indemnify and hold Landlord harmless therefrom and shall
pay Landlord all costs and expense, including reasonable attorneys' fees
incurred through all levels of proceedings, which Landlord may sustain by reason
thereof.
19.2 Indemnity by Landlord: Landlord agrees, at Tenant's option,
to protect, defend, indemnify and save Tenant harmless from and against any and
all injury, loss, damage, liability (or any claims in respect of the
aforementioned), costs or expenses (including, without limitation, attorneys'
fees incurred through all levels of proceedings, reasonable investigation and
discovery costs), of whatever nature, to any person or property caused or
claimed to be caused by or resulting from any breach of this Lease (or any
representation contained herein) or any wrongful act, omission or negligence of
Landlord or its employees, agents or contractors; provided that Tenant, upon
becoming aware of such claim or damage, shall promptly notify Landlord. If
Tenant, without fault on its part, shall be made a party to any third party
litigation commenced by or against Landlord, then Landlord shall protect,
defend, indemnify and hold Tenant harmless therefrom and shall pay Tenant all
costs and expense, including reasonable attorneys' fees incurred through all
levels of proceedings, which Tenant may sustain by reason thereof.
19.3 Waiver of Subrogation: This Article 19 shall be subject to
the provisions of Section 10.4. Subject to the provisions of Section 10.4,
nothing contained in the Lease shall exempt either party from responsibility or
liability arising out of the negligent or willful act or omission or breach of
the Lease by such party or such party's agents, employees or contractors.
ARTICLE 20 - QUIET ENJOYMENT
20.1 Quiet Enjoyment: Landlord agrees to promptly place Tenant in
possession of the Premises in accordance with the provisions of this Lease.
Tenant shall peaceably and quietly have, hold and enjoy the Premises with all
appurtenances, and its other rights hereunder during the Term and without any
manner of hindrance or interference with its quiet enjoyment, possession and use
by any party claiming by, through or under Landlord.
ARTICLE 21 - DEFAULT
21.1 Tenant's Default: The occurrence of any one or more of the
following events shall constitute a default of this Lease by Tenant: (a) the
failure by Tenant to make any payments required to be made by Tenant hereunder,
where such failure shall continue for a period of ten (10) days after written
notice thereof from Landlord to Tenant; and (b) except as otherwise provided in
this Lease, the failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant,
other than described in subpart (a) above, where such failure shall continue for
a period of thirty (30) days after written notice thereof from Landlord to
Tenant; provided, however, that if the nature of Tenant's non-compliance is such
that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commenced such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion. In the event of any such default by Tenant, then Landlord shall be
entitled to all the following remedies:
(i) terminate this Lease by giving written notice of
termination to Tenant, in which event Tenant shall immediately surrender the
Premises to Landlord. If Tenant fails to so surrender the Premises, then
Landlord may, without prejudice to any other remedy it has for possession of the
Premises or arrearages in Rent or other damages as provided herein, re-enter and
take possession of the Premises and expel or remove Tenant and any other person
occupying the Premises or any part thereof, in accordance with applicable law;
or
(ii) Landlord may re-enter and take possession of the
Premises without terminating the Lease in accordance with applicable law, and
relet the Premises and apply the Rent received to the account of Tenant.
17
19
In the event of any such default by Tenant, Landlord may at any time thereafter
bring an action for damages for the rent reserved hereunder and for the
commercially reasonable and actual, verifiable costs of reletting and/or
injunctive relief (it being recognized that in such event Landlord may be
irreparably harmed for which there is no adequate remedy at law).
Notwithstanding the foregoing or anything contained in this Lease, (i) Landlord
shall not have any right to accelerate the rents and other charges payable
hereunder, except that Landlord shall be permitted to accelerate the excess, if
any, between the Rent due hereunder and the then fair rental value of the
Premises, discounted to present value, and (ii) in the event of any default by
Tenant, Landlord shall use reasonable efforts to mitigate its damages.
21.2 Bankruptcy of Tenant: The occurrence of any of the following
shall constitute a default and breach of this Lease by Tenant: (i) If Tenant
shall file a voluntary petition in bankruptcy or an order for relief shall
otherwise be entered with respect to Tenant, or shall file any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, wage earner's plan, dissolution or similar relief under the present
or any future federal bankruptcy act or any other present or future applicable
federal, state or other debtor's relief statute or law, or seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or
of all or any substantial part of Tenant's properties or of the Premises; or
(ii) If within sixty (60) days after commencement of any proceeding against
Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy code or any other present or future applicable federal, state
or other debtor's relief statute of law, such proceeding shall not have been
dismissed, or stayed on appeal, of if, within sixty (60) days after the
appointment, without the consent or acquiescence or Landlord, of any trustee,
receiver or liquidator of Landlord or of all or any substantial part of Landlord
properties or of the Premises, such appointment shall not have been vacated or
stayed on appeal or otherwise, or if, within sixty (60) days after the
expiration of any such stay such appointment shall not have been vacated; or
(iii) If the Premises shall be seized under any levy, execution, attachment or
other process of court and the same shall not be promptly vacated or stayed on
appeal or otherwise, or if Tenant's interest in the Premises is sold by judicial
sale and the sale is not promptly vacated or stayed on appeal or otherwise.
21.3 Landlord's Default: The occurrence of any one or more of the
following events shall constitute a default of this Lease by Landlord: (a) the
failure by Landlord to make any payments required to be made by Landlord
hereunder, where such failure shall continue for a period of ten (10) days after
written notice thereof from Tenant to Landlord; and (b) except as otherwise
provided in this Lease, the failure by Landlord to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Landlord, other than described in subpart (a) above, where such failure shall
continue for a period of thirty (30) days after written notice thereof from
Tenant to Landlord; provided, however, that if the nature of Landlord's
non-compliance is such that more than thirty (30) days are reasonably required
for its cure, then Landlord shall not be deemed to be in default if Landlord
commenced such cure within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion. In the event of any such default by
Landlord, Tenant may at any time thereafter, with notice, terminate this Lease
and/or bring an action for damages and/or injunctive relief (it being recognized
that in such event Tenant may be irreparably harmed for which there is no
adequate remedy at law).
21.4 Performance by Tenant: If Landlord fails to commence to
perform any of its maintenance, repair or replacement obligations under this
Lease after receiving written notice of such failure from Tenant, or Landlord
fails to use commercially reasonable efforts to substantially complete such
maintenance, repair or replacement work within a reasonable period of time
thereafter, or in the event of any other default by Landlord under this Lease,
then Tenant shall have the right to cure such Landlord default under the Lease
and Landlord shall reimburse Tenant for Tenant's reasonable costs incurred in
effecting such cure promptly after receipt of a bill therefor.
21.5 Epicure Parking Premises: In the event of a default by
Tenant under this Lease pursuant to which Landlord has recovered possession of
the Premises and the Lease has been terminated (and either such recovery of
possession and termination are not disputed by Tenant [as evidenced by the
express written acknowledgement of Tenant], or the same has been accomplished by
lawful final court order by a court of competent jurisdiction with no remaining
unexercised appeal rights in favor of Tenant), the date of which being the
"EFFECTIVE TERMINATION DATE", Landlord shall have the right and/or obligation to
purchase the Epicure Parking Premises as
18
20
provided below in this Section 21.5. If either Landlord or Tenant desire
Landlord to purchase the Epicure Parking Premises after the Effective
Termination Date, it shall notify the other party in writing of such desire
within ten (10) days after the Effective Termination Date (the date of such
notice being the "PARKING PREMISES NOTICE DATE"). Upon such notification,
Landlord shall be obligated to purchase the Epicure Parking Premises at
ninety-seven (97%) percent of a price (the "PARKING PRICE") to be determined by
appraisal if the parties cannot otherwise agree to the Parking Price within five
(5) days after the Parking Premises Notice Date. If the parties do not so
otherwise agree, each party, at its expense, shall engage its own M.A.I.
appraiser to prepare a fair market value appraisal to be certified to Landlord
and Tenant, concluding and evidencing the then fair market value of the Epicure
Parking Premises. Each such appraisal shall be delivered to the parties within
thirty (30) days after the Parking Premises Notice Date. If the two appraisers
cannot agree to the then fair market value of the Epicure Parking Premises, the
two appraisers shall appoint a third M.A.I. appraiser, the cost of whom shall be
shared equally by Landlord and Tenant. The average of the three appraisals shall
be deemed the fair market value of the Epicure Parking Premises. Within ten (10)
days after the Parking Price shall have been determined as hereinabove provided,
Tenant shall convey the Epicure Parking Premises to Landlord in return for the
Parking Price (with respect to which Landlord may offset any sums due from
Tenant to Landlord that have been reduced to a lawful judgment with no remaining
unexercised appeal rights). With respect to such conveyance, the provisions of
Section 8.1(e) shall apply except as follows: (i) the references to "Landlord"
and "Tenant" shall be deemed reversed, and (ii) the reference to "Third Party
Leased Premises" shall be deemed to refer to the "Epicure Parking Premises". If
neither Landlord nor Tenant exercise the rights provided in this Section 21.5
within twenty (20) days after the Effective Termination Date, time being
strictly of the essence, the provisions of this Section 21.5 shall be deemed
null and void.
ARTICLE 22 - ATTORNEYS' FEES
22.1 Prevailing Party: If either party commences an action
against the other party arising out of or in connection with this Lease, the
prevailing party shall be entitled to have and recover from the losing party,
reasonable attorneys' fees, costs of suit, investigation costs and discovery
costs, including through all levels of appeal.
ARTICLE 23 - NON-DISTURBANCE
23.1 Non-disturbance: Simultaneously herewith, Landlord may have
obtained and delivered to Tenant an executed Subordination and Non-Disturbance
Agreement from each Mortgagee who at the time of execution hereof has any
interest in the Premises or the Entire Premises. If not, Tenant shall have the
right to payoff and satisfy any such Mortgagee upon any default by Landlord
under any such mortgage which is not cured prior to the Mortgagee taking action
to foreclose such mortgage, in which event (a) Tenant shall then have the option
to purchase the Entire Premises in accordance with the provisions of Section
8.1(b) and other provisions contained in Article 8 hereof, as though the "Notice
of Intent to Sell Date" shall be the date on which Tenant shall payoff and
satisfy such Mortgagee, and (b) the "Earlier Option Price", as applicable to
such purchase shall be reduced by the payment made to such Mortgagee (and, if
Tenant has not exercised its option to purchase, then Tenant shall have the
right to setoff the amount of such payment against Rent). The term "MORTGAGEE"
shall mean any (a) lender the security for whose loan encumbers the Premises or
the Entire Premises, and (b) lessor whose interest in the Entire Premises is
paramount to Landlord's. The term "SUBORDINATION AND NON-DISTURBANCE AGREEMENT"
means an agreement, in recordable form and in form and substance reasonably
satisfactory to counsel for Tenant, Landlord and such Mortgagee, assuring
Tenant, among other things, that notwithstanding any default by Landlord to the
Mortgagee, or any foreclosure or deed in lieu thereof (or Mortgagee's
termination proceedings), Tenant's rights to possession of the Premises and
other material rights under this Lease (including the Purchase Options, free and
clear of any mortgage recorded subsequent to the Memorandum of Lease) shall
continue in full force and effect and shall remain undisturbed so long as Tenant
is not in default hereunder so as to permit Lease termination, and assuring
Mortgagee that this Lease is subordinate to the Mortgage subject to the
provisions hereof. The Earlier Option shall be applicable to any succession in
title to a Mortgagee.
23.2 Subordination: Upon Landlord's request, Tenant shall
subordinate its interest in this Lease to any mortgage hereafter placed by
Landlord upon the Premises or the Entire Premises with an insurance company,
bank or any other institutional lender; provided that such lender executes a
Subordination and Non-Disturbance Agreement. Tenant will, upon request
19
21
of such lienholder, be a party to such an agreement, and will agree that if such
lienholder succeeds to the interest of Landlord, Tenant will attorn to and
recognize said lienholder (or successor in interest of the lienholder) as its
Landlord under the terms of this Lease.
23.3 Limitation on Mortgages: Notwithstanding anything to the
contrary, in no event shall the amount due under any mortgage encumbering the
Entire Premises, when combined with the amounts due under all other prior
mortgage(s), if any, encumbering the Entire Premises, exceed the lowest
Applicable Option Price. The parties hereto acknowledge and agree that Landlord
shall have the right to seek financing beyond the mortgages recorded prior to
the Effective Date, encumbering Landlord's interest in the Entire Premises as
Landlord may elect, subject to the following terms and conditions precedent:
(A) From SunTrust: (1) the total sum due under all mortgages,
including the prospective new financing, encumbering any portion of the Entire
Premises (except for mortgages placed by Tenant after Closing respecting its
leasehold interest) for which no Subordination and Non-Disturbance Agreement is
obtained shall not exceed $2,500,000, and there shall be no prepayment
prohibition, penalties or premiums (excepting penalties or premiums which do not
cause the amount of all mortgages to exceed $2,500,000), (2) at the time of any
such financing, Landlord, at its expense, shall deliver to Tenant a true,
correct and complete copy of the MAI appraisal of the Entire Premises used by
SunTrust for the loan facility in question ("Appraisal"), (3) the Appraisal
shall evidence that the fair market value of the Entire Premises is not less
than $4,000,000, and (4) in conjunction with seeking such financing from
SunTrust, Landlord shall use its best efforts to obtain a Subordination and
Non-Disturbance Agreement (failing which Tenant shall have the right to payoff
and satisfy such additional financing subject to and in accordance with the
provisions of Section 23.1); and
(B) From any lender other than SunTrust: (1) the total sum due
under all mortgages, including the prospective new financing (and including the
financing contemplated in subpart (B) above), encumbering any portion of the
Entire Premises (except for mortgages placed by Tenant after Closing respecting
its leasehold interest) shall not exceed the lowest Applicable Option Price, and
there shall be no prepayment prohibition, penalties or premiums (excepting
penalties or premiums which do not cause the amount of all mortgages to exceed
the lowest Applicable Option Price), and (2) at the time of any such financing,
Landlord, at its expense, shall deliver to Tenant a Subordination and
Non-Disturbance Agreement signed by such lender.
Landlord shall execute Notices Restricting Future Advances or
such other instrument(s) as may be reasonably requested by Tenant respecting the
provisions of this Section 23.3.
ARTICLE 24 - ASSIGNMENT
24.1 Landlord's Consent Generally Required: Except as hereinafter
provided, Tenant may not assign this Lease, or sublet the Premises, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, delayed or conditioned.
24.2 Transactions Not Requiring Landlord's Consent:
(a) Net Worth Test: Notwithstanding the provisions of
Section 24.1, Tenant shall be permitted without Landlord's consent, but upon
twenty (20) days' prior written notice to Landlord, to assign or sublease the
Lease or any part thereof, to any Tenant whose net worth exceeds the product of
(a) ten multiplied by (b) the then current annual Rent due under this Lease as
set forth in Section 1.7 hereof.
(b) Chainwide or Affiliated Transactions: Notwithstanding
the provisions of Section 24.1, Tenant shall be permitted without Landlord's
consent, but upon twenty (20) days' prior written notice to Landlord, to assign
or sublease the Lease or any part thereof, (i) in connection with the sale of
all or substantially all of Tenant's restaurants, stores, assets or stock; (ii)
in connection with the sale of substantially all of Tenant's locations in Dade,
Broward and Palm Beach County, Florida (if at least five (5) such locations),
(iii) in connection with a public or private offering of an ownership interest
in Tenant not in contravention of federal and state securities laws, (iv) to any
parent, subsidiary or affiliate of Tenant, and (v) in connection with any
portion of the Premises other than Tax Parcel 1.
20
22
24.3 Applicable Provisions: In the case of any assignment or
subletting under this Article 24, Tenant and its transferee shall execute,
acknowledge and deliver to Landlord a fully executed counterpart of a written
assignment of lease or sublease, as the case may be, duly consented to by
Tenant's guarantor, if any, by the terms of which: (1) in case of an assignment,
Tenant will assign to such assignee Tenant's interest in this Lease, together
with all prepaid rents hereunder, if any, and the assignee will accept said
assignment and assume and agree to perform, directly for the benefit of
Landlord, all of the terms, covenants and conditions of this Lease on Tenant's
part to be performed hereunder; or (2) in case of a subletting, (i) the sublease
and the sublessee's interest therein will in all respects be subject and
subordinate to all of the terms, covenants and conditions of this Lease and the
sublessee thereunder will agree to be bound by and to perform all of the terms,
covenants and conditions of this Lease on Tenant's part to be performed
hereunder, and (ii) Tenant shall collaterally assign such sublease to Landlord
as additional security of Tenant's obligations hereunder (provided that such
collateral assignment does not violate any then existing loan of Tenant). In the
case of any assignment or subletting which cannot be made without Landlord's
consent, Tenant shall pay to Landlord an administrative fee of Five Hundred
($500.00) Dollars upon Landlord's compliance with, and as a condition to,
Landlord's obligations under this Article 24. In the event of an assignment,
subletting or other transfer pursuant to the applicable provisions of this
Lease, to a successor whose net worth exceeds the amount identified in Section
24.2(a), Tenant shall be released from all obligations and liabilities accruing
under this Lease subsequent to the effective date of such assignment, subletting
or other transfer.
ARTICLE 25 - HOLDING OVER
25.1 Holding Over: If Tenant shall remain in possession of the
Premises or any portion thereof after the expiration of the Term in the absence
of an agreement in writing between Landlord and Tenant, the party remaining in
possession shall be deemed a tenant at sufferance (at a rental equal to 150% of
the then current Rent), until acceptance of rent by Landlord, at which time the
person in possession shall become a tenant from month-to-month at the same
rental and under the same terms and conditions as existed immediately prior to
the expiration of the Lease.
ARTICLE 26 - SIGNS
26.1 Exterior and Pylon Signage: Tenant may erect and maintain
upon the exterior of the Store and upon any pylon or monument sign serving the
Entire Premises a sign or signs which Tenant deems appropriate to the conduct of
its business, consistent with Tenant's sign criteria. If permitted by applicable
law, Tenant shall also be permitted to erect its own pylon or monument signage.
26.2 Miscellaneous: Notwithstanding the foregoing, Tenant's
signage must comply with all applicable laws, rules and ordinances. Landlord
shall fully cooperate with Tenant towards obtaining all requisite sign
approvals. Without limiting the generality of the foregoing, Landlord shall not
seek or allow any other party to seek any signage within the Entire Premises
which would prohibit, impair or otherwise adversely affect Tenant's ability to
obtain its desired signage.
ARTICLE 27 - NOTICES
27.1 Notices: Any notice to be given or served in connection with
this Lease shall be in writing and may be served by personal delivery upon the
party, or upon a corporate officer thereof, or may be served by certified mail,
or by reputable overnight air courier service, addressed as specified in Section
1.3 hereof. Service of notices shall be deemed effective seventy-two (72) hours
after deposit in the U.S. mail in accordance herewith, or upon dispatch with a
reputable overnight air courier service which provides written evidence of
delivery. Copies of notices sent to Tenant shall also be sent simultaneously, in
like manner, to Howard L. Friedberg, Katz, Barron, Squitero, Faust & Berman,
P.A., 2699 South Bayshore Drive, Seventh Floor, Miami, Florida 33133. Copies of
notices sent to Landlord shall also be sent simultaneously, in like manner, to
Greg Marks, Greenberg Traurig, 1221 Brickell Avenue, Miami, Florida 33131. Such
designees may be changed by written notice sent in like manner.
21
23
ARTICLE 28 - ENVIRONMENTAL MATTERS
28.1 Landlord's Obligations. During the Term, Landlord (including
its tenants and its and their sublessees, successors and assigns) will not use,
generate, place, store, release, or otherwise dispose, nor permit the use,
generation, placing, storage, release, or disposal of Hazardous Materials in the
Entire Premises, except in accordance with all Environmental Laws. If during the
Term Hazardous Materials are discovered in any portion of the Third Party Leased
Premises, Landlord will immediately undertake or cause to be undertaken
remediation or removal of the Hazardous Materials in accordance with all
Environmental Laws and, to the extent Tenant's business is interrupted during
the remediation or removal, Tenant's rent will be abated as is fair and
reasonable under the circumstances. Landlord shall protect, indemnify, defend
and hold Tenant and Tenant's partners, shareholders, officers, employees,
agents, contractors, sublessees, assignees, concessionaires, customers, and
invitees (collectively, "AFFILIATED PARTIES") harmless against and reimburse
Tenant and Tenant's Affiliated Parties for all Hazardous Materials Liabilities
asserted against or incurred by Tenant or Tenant's Affiliated Parties and
arising out of a breach of the representations, warranties or covenants set
forth in this Section 28.1.
28.2 Tenant's Obligations. During the Lease Term, Tenant
(including its sublessees, successors and assigns) will not use, generate,
place, store, release or otherwise dispose of Hazardous Materials in the
Premises or Entire Premises, except in accordance with all Environmental Laws.
In the event of a breach of the foregoing, Tenant will undertake remediation or
removal in accordance with all Environmental Laws. In addition, Tenant shall
protect, indemnify, defend and hold Landlord and Landlord's Affiliated Parties
harmless against and reimburse Landlord and Landlord's Affiliated Parties for
all Hazardous Materials Liabilities asserted against or incurred by Landlord or
Landlord's Affiliated Parties as a result of a breach of Tenant's obligations
under this Section 28.2.
28.3 Hazardous Materials Defined. The term "Hazardous Materials"
as used herein means any substance (i) the presence of which requires special
handling, storage, investigation, notification, monitoring, or remediation under
any Environmental Law, (ii) which is toxic, explosive, corrosive, erosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous, (iii) which is or becomes regulated by and Governmental Authority, or
(iv) the presence of which causes or threatens to cause a nuisance to the Entire
Premises or Premises or to adjacent properties or premises.
28.4 Environmental Laws Defined. The term "Environmental Laws"
refers to all Laws relating to (i) emissions, discharges, spills, releases or
threatened releases of Hazardous Materials onto land or into ambient air,
surface water, groundwater, watercourses, publicly or privately owned treatment
works, drains, sewer systems, wetlands, or septic systems, (ii) the use,
treatment, storage, disposal, handling, manufacturing, transportation, or
shipment of Hazardous Materials, or (iii) the protection of human health or the
environment.
28.5 Hazardous Materials Liabilities Defined. The term "Hazardous
Materials Liabilities" as used herein means all claims, damages, losses,
forfeitures, expenses, or liabilities arising from or caused in whole or in
part, directly or indirectly, by a breach by the other party of its
representations, warranties, or covenants under Section 28.1 or 28.2 of this
Lease, including, without limitation, all costs of defense (including reasonable
attorneys' fees and other costs of litigation), all consultants' fees, and all
costs of investigation, repair, remediation, restoration, cleanup,
detoxification or decontamination, and/or preparation and implementation of any
closure, remedial action or other required plan.
28.6 Survival. The provisions of this Section 28 will survive the
expiration or earlier termination of this Lease.
ARTICLE 29 - MISCELLANEOUS
29.1 Memorandum of Lease: This Lease shall not be recorded.
However, a memorandum thereof, in form and substance attached hereto as Exhibit
D and made a part hereof (the "Memorandum of Lease"), shall be executed, in
recordable form, by Landlord and Tenant concurrently herewith and recorded by
Tenant among the Public Records of Dade County, Florida.
29.2 Successors and Assigns: The terms, conditions and covenants
herein contained shall inure to the benefit of and be binding upon the heirs,
permitted assigns and other successors in interest to the parties hereto.
22
24
29.3 Late Payments: Any sum accruing to Landlord or Tenant under
the provisions of this Lease which shall not be paid within seven (7) days
following written notice that such sum is due shall (a) subject Tenant to a one
time administrative fee (and not as a penalty) of $200, and (b) bear interest
from the due date at the rate of three (3%) percent per annum above the "prime
rate" as published from time to time in The Wall Street Journal (Eastern
edition). Notwithstanding the foregoing provisions of this Section 29.3, in the
event Tenant fails to pay any sum within seven (7) days after notice of past due
more than two times in any twelve month period, then for the balance of any such
twelve month period, any subsequent late payment within such twelve month period
shall not require notice by Landlord, and the foregoing administrative fee and
interest imposition shall be effective from and after the due date of any
payment not made when due.
29.4 Severability: If any term, covenant, condition or
restriction of this Lease is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated thereby.
29.5 Relationship of Parties: Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third person to
create the relationship of principal and agent, or of partnership, or of joint
venture, or of any other association between the parties other than Landlord and
Tenant.
29.6 Time: Time is of the essence of the performance of each
provision of this Lease. Time periods of less than six (6) days shall be
computed so as to exclude Saturdays, Sundays, and national or Florida legal
holidays, and any time period which ends on a Saturday, Sunday or national or
Florida legal holiday shall be extended to the next business day.
29.7 No Waiver: No waiver shall be enforceable unless the same is
express, in writing and signed by the party against whom such waiver is sought
to be enforced. The waiver of performance of any covenant, term or condition of
this Lease by Landlord or Tenant shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The various rights,
options, elections, powers and remedies of the parties contained in this Lease
shall be construed as cumulative and no one of them exclusive of any other or of
any legal or equitable remedy which either party might otherwise have in the
event of a breach by the other, and the exercise of one right or remedy by a
party shall not in any way impair its right to any other right or remedy.
29.8 Force Majeure: Landlord and Tenant shall be excused for the
period of any delay and shall not be deemed in default with respect to the
performance of any of the terms, covenants and conditions of the Lease (except
payment of Rent and other sums due hereunder) when prevented from so doing by
cause or causes beyond such party's control, which shall include, without
limitation, all labor disputes, governmental regulations or controls, fire or
other casualty, inclement weather, inability to obtain any material, services,
acts of God, or any other cause, whether similar or dissimilar to the foregoing,
not within the control such party.
29.9 No Third Party Beneficiaries: There shall be no third party
beneficiaries arising out of the Lease.
29.10 Confidentiality: Landlord will treat the monetary and
operating terms and conditions of this Lease as confidential and will not
divulge same, except to its attorneys, accountants and other professionals or
pursuant to compulsory process or applicable law, to any person other than any
existing or prospective mortgagee of the Entire Premises or any prospective
purchaser of Landlord's interest in this Lease. Landlord agrees not to furnish
copies of all or any part of this Lease to a person other than to a party
described in the preceding sentence. Landlord acknowledges that any plans or
specifications of Tenant and Tenant's trademarks and service marks are the sole
property of Tenant, and Landlord shall not have any rights to the same. Nor
shall Landlord be entitled to use, disclose or publish the same without the
prior written consent of Tenant, which may be unreasonably withheld. The
provisions of this Section 29.10 shall not affect the Memorandum of Lease as
provided in Section 29.1.
29.11 Consents: Wherever in the Lease provision is made for the
consent, approval or discretion of Landlord or Tenant, the same shall not be
unreasonably withheld, delayed or conditioned (except if and as otherwise
expressly provided herein). In the event either party fails,
23
25
in writing, to approve or reject, in accordance with the terms hereof, any
request for consent or approval within thirty (30) days (or such sooner time as
may be herein provided), the same shall be deemed approved. Wherever the Lease
provides for one party to incur costs on behalf of the other party, such costs
shall be deemed limited to actual, reasonable and verifiable costs.
29.12 Review of Statements: All charges due from Tenant to
Landlord for which Tenant must be billed by Landlord, must be billed within
twelve (12) months of the date the charge is incurred by Landlord or Landlord
will have waived its right to reimbursement which may have been established in
any paragraph to this Lease.
29.13 Interpretation: Words of gender used in this Lease shall be
deemed to include other genders, and singular and plural words shall be deemed
to include the other, as the context may require. Paragraph headings in this
Lease are for convenience only, are not a part of the agreement of the parties,
and shall not constitute an aid in interpreting this Lease. Each of the
covenants of this Lease shall be deemed dependent upon each other covenant
hereof.
29.14 Governing Law: This Lease shall be construed in accordance
with and governed by the internal laws of the State of Florida, except as
otherwise required by mandatory provisions of law. Venue shall be in Dade
County, Florida.
29.15 Authority: Each individual executing this Lease on behalf
of the named parties represents and warrants that he is duly authorized to
execute this Lease on behalf of such party in accordance with a duly adopted
resolution of such party and in accordance with the agreement of partnership or
articles of incorporation and bylaws (as applicable), and by delivery hereof
warrants that execution by no other signatory is required and will hold the
other party harmless from any claim to the contrary (and loss suffered by reason
thereof).
29.16 Entire Agreement: This Lease, together with all Exhibits
attached hereto, constitutes the entire agreement between the parties in respect
to the subject matter hereto, and this Lease cannot be changed, modified,
amended, waived or supplemented in any way without the prior express written
consent of each party, except in respect to the waiver by one party which need
only be signed by the party against whom such waiver is sought to be enforced.
Landlord and Tenant acknowledge that Landlord and Epicure Market, Inc., a
Florida corporation ("Prior Tenant") were parties to a certain lease ("Prior
Lease") respecting the Premises, which Prior Lease, simultaneously herewith, has
been terminated by Landlord and Prior Tenant. Neither Landlord nor Tenant shall
have any liability whatsoever to the other respecting the Prior Lease or matters
involving the Premises or Entire Premises, except as provided in this Lease.
29.17 Brokerage: Landlord and Tenant represent that it has not
dealt with any real estate broker or salesmen in connection with this Lease and
that it has dealt with no person which would create any liability for the
payment of a commission, except for Kenneth Roth and Robert Shenkman
(collectively, "Broker"). Landlord shall pay the entire commission due the
Broker, and shall protect, defend, indemnify and hold Tenant harmless from and
against any and all claims, demands, and liability (including attorneys fees and
costs incurred through all levels of proceedings) which may arise therefrom, or
either of them. If any other person claims a commission, the party through whom
such person is claiming shall protect, defend, indemnify and hold the other
harmless from claims, demands, and liability (including attorneys fees and costs
incurred through all levels of proceedings) which may arise therefrom.
29.18 Estoppel Certificates: Landlord and Tenant each agree, not
later than ten (10) days following the written request of the other party, to
execute and deliver to the other party a written declaration made to such
party's knowledge: (i) ratifying this Lease; (ii) confirming the commencement
and expiration dates of the term of this Lease; (iii) certifying that Tenant is
in occupancy of the Premises; and (iv) stating any known defaults by both
parties, and (iv) such other information that may be reasonably requested.
29.19 Radon: Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county health department.
24
26
29.20 Rules and Regulations: Tenant agrees to comply with the
reasonable, uniformly enforced rules and regulations pertaining to the Entire
Premises; provided that such rules and regulations do not materially impair
Tenant's rights under this Lease or increase Tenant's costs.
29.21 Landlord's Right of Entry: Tenant shall permit Landlord and
its agents, upon reasonable notice, to enter the Premises during Tenant's normal
business hours (at mutually agreeable times) for the purpose of inspecting the
same or making repairs permitted hereunder (but such right shall not be deemed
to impose any repair obligation on Landlord), and to show the Premises to actual
or prospective purchasers, lenders and during the last six (6) months prior to
the expiration of the Term (subject to extension as provided herein) to
prospective tenants. Landlord shall be entitled to enter the Premises during
times other than Tenant's normal business hours only in the event of an
emergency. The term "emergency" as used herein shall mean a situation which
requires, in the good faith judgment of Landlord, immediate action in order to
prevent death, bodily injury, property damage or theft. In connection with the
exercise of its rights under this Section 29.21, Landlord agrees to use its best
efforts to minimize any interference with the ongoing business of Tenant at the
Premises.
29.22 Surrender of Premises: Upon the expiration of the Term
(subject to extension as provided herein), or any earlier termination of this
Lease, Tenant shall surrender to Landlord the Premises, including, without
limitation, all building apparatus and fixtures then constituting a part of the
Premises (other than as provided herein), and all alterations, improvements and
other additions (other than as provided herein) which may be made or installed
by either party to, in, upon or about the Premises, in good condition,
reasonable wear and tear, Landlord's acts, casualty and condemnation excepted.
29.23 Purchase Agreement: Landlord and Tenant acknowledge that
they, together with other parties, are parties to that certain Asset Purchase
Agreement having an effective date of February 9, 1998, modified as of February
17, 1998 ("Purchase Agreement"), and that the closing thereof occurred on and as
of the Effective Date. There shall be no rights of offset or setoff by Tenant as
a result of any obligations of, or default by, Landlord or its affiliates under
the Purchase Agreement or the agreements executed at the closing thereof (other
than this Lease and the Memorandum of Lease). Likewise, neither Jerry's Famous
Deli, Inc., a California corporation ("JFD") or Tenant shall have any liability
to Landlord by reason of any obligations of, or default by, Tenant or JFD under
the Purchase Agreement or the agreements executed at the closing thereof (other
than this Lease and the Memorandum of Lease, to which Tenant is a party).
29.24 Right of First Refusal to Lease: In the event that Landlord
shall receive from a non-affiliated third party a bona fide written offer
acceptable to Landlord for the lease of the Third Party Leased Premises or any
part thereof ("Offer"), then Landlord shall deliver to Tenant a copy of such
Offer and a statement in reasonable detail, of personal and financial
information relating to the proposed tenant ("Background Information"), within
ten (10) days after its receipt; provided however, that no Offer shall be valid
or cognizable under this Lease unless it (i) is non-assignable, (ii) is
accompanied by the Background Information, and (iii) provides that the lease
thereof is subject to all of the terms and conditions of this Lease. Tenant
shall have the exclusive right of first refusal to lease the Third Party Leased
Premises or such part thereof for the rent and upon the terms set forth in the
Offer. If Tenant fails to give written notice within twenty (20) days after
receipt of the Offer, then Landlord shall be free to complete the lease of the
Third Party Leased Premises or such part thereof, upon the terms and conditions
contained in the Offer, within thirty (30) days following the expiration of the
said twenty (20) day period; provided that if the proposed lease is not
completed within said thirty (30) day period to said offeror, upon the terms and
conditions contained in the Offer, then Tenant's right of first refusal under
this Section 29.24 shall be fully restored and reinstated as if such Offer had
never been made.
29.25 Arbitration: Except for matters involving equitable relief
and for summary eviction proceedings, any claims or disputes arising out of or
relating to this Lease shall be settled by binding arbitration conducted in Dade
County, Florida in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect, and judgment upon the award
entered by the arbitrator(s) may be entered, in any court having jurisdiction
thereof. Neither party's right to file a lawsuit seeking an injunction or other
equitable relief or such party's right to injunctive or other equitable relief
is subject to arbitration or to the provisions of this Section.
25
27
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the first (1st) day of April, 1998.
WITNESSES: TENANT:
NATIONAL DELI CORPORATION,
a Florida corporation
- ------------------------------
BY: /s/ ISSAC STARKMAN
- ------------------------------ ------------------------------------
Isaac Starkman
Chief Executive Officer
(CORPORATE SEAL)
LANDLORD:
EDWARD THAL AND LEONARD THAL dba E &
L THAL REAL ESTATE ACCOUNT
PARTNERSHIP, a Florida general
partnership a/k/a E & L REAL ESTATE
PARTNERSHIP, a Florida general
partnership, a/k/a/ E & L THAL
PARTNERS, a Florida general
partnership
- ------------------------------
BY: /s/ EDWARD THAL
- ------------------------------ ------------------------------------
EDWARD THAL, General Partner and
individually
- ------------------------------
BY: /s/ LEONARD THAL
- ------------------------------ ------------------------------------
LEONARD THAL, General Partner and
individually, by Naomi Thal as
Plenary Guardian of the Person and
Property of Leonard Thal
26