ITEM 14., 3. - EXHIBITS, (10)(c)
STATE OF FLORIDA )
COUNTY OF ST. LUCIA )
This LEASE AGREEMENT (hereinafter called the "Lease") made and entered
into by and between Alvin W. Wunderlich, Jr., Trustee of the Alvin W.
Wunderlich, Sr., Trust Number 1 (hereinafter called "Landlord"), and Florafax
International, Inc. (hereinafter called "Tenant"):
W I T N E S S E T H :
1.1 The term of the Lease shall commence on April 1, 1995 (the
"Commencement Date") and shall terminate on March 31, 2000.
1.2 Tenant shall have the option to extend the term of this Lease
for two (2) successive additional terms of five (5) years each upon the terms
and conditions as set froth herein. Tenant shall give Landlord written notice
of its intention to exercise the option to extend at least one hundred twenty
(120) days prior to the expiration of the original term of the Lease, or the
extended term, as the case may be. Rent for each extension period shall be as
provided in the Addendum One.
2.1 Lessor agrees to lease to Lessee and Lessee hereby agrees to
lease to Lessor, for the use and occupancy for general and administrative
office space and related uses only, the real property being described in
Exhibit "A" attached hereto and incorporated herein by reference, and the
improvements located thereon, said real property and improvements (the "Leased
Premises"), being depicted on the Site Plan attached hereto as Exhibit "!3"
(the "Site Plan", situated in the City of Vero Beach, County of St. Lucia,
3.1 Tenant covenants and agrees to Day Landlord as annual rental
for the Demised Premises $33,000.00 (hereinafter called "Rent").
3.2 Rent shall be payable beginning on the Commencement Date in
equal monthly installments of $2,750.00 in advance on the first day of each
calendar month during the original term, and each extended term, hereof. If the
Commencement Date does not fall on the first day of a calendar month, rent from
the Commencement Date through the last day of the month in which the
Commencement Date falls shall be prorated and paid on the Commencement Date.
3.3 The aforesaid rentals and all other payments of the Tenant
herein provided shall be made to the Landlord at such place and to such person
as Landlord shall from time to time designate by written notice to Tenant given
at least thirty (30) days prior to the due date of such payment.
Taxes and Assessments
4.1 Tenant shall, at its sole expense, pay all taxes, assessments,
solid waste disposal fees, rates, charges, levies and encumbrances affecting
the Leased Premises prior to the time when the same may become delinquent under
applicable law, or as soon as reasonably possible after receipt of notice of
each said charge. Landlord covenants to deliver to Tenant, promptly after
receipt, all notices for said charges. Failure of Landlord to deliver such
notice to Tenant prior to the time when the same may become delinquent, shall
excuse Tenant from any default which Landlord may allege due to failure to pay
prior to such time.
5.1 Tenant shall, at its sole expense, furnish such utility
services as it requires to the Leased Premises, including, but not limited to
electricity, potable water, sanitary sewer, heating, ventilation and air
conditioning, and telephone services. The cost of all such services consumed by
the Tenant in the Leased Premises shall be paid by the Tenant. Landlord shall
provide a separate meter and sewers for Tenant, separate and apart from the
Tenant occupying the building on the northern portion of the property adjacent
to the Leased Premises, as depicted on the Site Plan.
6.1 Tenant covenants and agrees that it will not alter nor permit
any construction, laborers, or materialmen's liens to be filed or placed
against the Leased Premises, or Landlord's interest therein, and which arises
out of the conduct of Tenant, its agents, or employees, and that it will
indemnify and save Landlord harmless from all loss or damage resulting to
Landlord on account of such liens. Tenant may promptly pay and discharge, or in
good faith and by appropriate legal proceedings contest the validity of, all
such liens and claims that may at any time be filed against the Leased Premises
or any Improvement thereon. If Tenant fails to pay
and discharge such liens or institute appropriate legal proceedings within
thirty (30) days after written notice from Landlord to Tenant, Landlord shall
have the right, at its option, to pay off and discharge the same or any portion
thereof, and the amount so paid in connection therewith shall be deemed to be
additional rent due from Tenant to Landlord to be paid at the time of the next
installment falling due.
Conformance to Laws and Restrictions: Use
7.1 Tenant shall use the Leased Premises for general and
administrative offices and related uses and for no other purpose. Tenant will,
at its own expense, and without cost and expense to Landlord, at all times
during the term hereof, observe and comply with all lawful requirements, rules,
regulations, laws and ordinances of any state, county, municipality, the United
States Government, or other legally constituted authority to the extent that
said laws may affect the operation of its business at the Leased Premises.
Tenant will not use or knowingly permit any of the Leased Premises to be used
for any illegal or immoral business or occupation or purpose, or use or
knowingly permit the same to be used so as to constitute a nuisance.
7.2 Notwithstanding the provisions of this Article, if Tenant in
good faith and by appropriate legal proceedings contests the validity or
applicability of any such law, ordinance, rule, regulation or restriction, then
so long as such proceeding is prosecuted with diligence, Tenant shall not be
deemed to be in default hereunder for noncompliance therewith, until a final
decision in such proceeding has been rendered sustaining the validity or
applicability thereof. Tenant shall have the right to appeal any final decree
or decision to the highest court or other body having jurisdiction in the
matter and during the period of such appeals, Tenant shall not be in default
hereunder so long as Landlord is not subjected to any penalty on account
Indemnification: Attorneys' Fees
8.1 Each party covenants and agrees that in case the other party
shall without any default on its part be made a party to any litigation
commenced by the other, or by a third party against the Landlord or Tenant, or
both, involving this Lease or the Leased Premises, then ail costs and expenses
incurred by Landlord or Tenant as the case may be in connection with such
litigation, including reasonable attorneys' fees shall be paid by the party at
8.2 Except as contemplated by Section 10.3 hereof, each party will
indemnify and save the other harmless against all claims, demands, suits and
judgments, and loss, damage or bodily injury to any person, property, or estate
caused by or accruing by reason of such parties' negligent act or omission, and
against all loss, legal costs and charges, including reasonable attorneys' fees
that the other may incur as a result of any such claim.
8.3 Each party covenants and agrees to pay to the other all costs
and expenses which such other Party may reasonably incur, including reasonable
attorneys' fees, in enforcing the covenants and agreement in this Lease.
Improvements to Leased Premises
9.1 Tenant shall not make any structural alterations in, or
additions to, the Leased Premises without the consent of the Landlord, which
consent Landlord agrees not to unreasonably withhold, condition or delay.
Notwithstanding the terms of the immediately preceding sentence, Tenant may
make such interior alterations, additions and improvements as it may deem to be
advisable to the Leased Premises without obtaining Landlord's consent. Tenant
acknowledges that the branch bank building located on the northern portion of
the property adjacent to the Leased Premises may be expanded so long as it does
not interfere with Tenant's use of the Leased Premises at any time during the
term of this Lease. Tenant agrees that Landlord may relocate the retention pond
from its current location on the adjacent property to another location on the
Leased Premises, and to allow the Tenant of said adjacent property to drain its
storm water run-off onto such relocated pond so long as it does not interfere
with the use of the Leased Premises by Tenant or result in any undesirable
changes to the Leased Premises, as determined in Tenant's sole discretion. The
expense of such relocation and the maintenance of such retention pond shall be
paid by the Landlord.
9.2 Tenant agrees that it will without any charge, cost, expense
or liability to or on the part of Landlord, keep and maintain or cause to be
kept and maintained the Leased Premises in good repair and condition,
reasonable wear and tear excepted, and to make all needed repairs and
replacements, promptly as and when the same shall or may be needed.
9.3 Landlord shall have the right, at its option, at all
reasonable times during normal business hours, to enter upon and inspect and
view the condition of the Leased Premises, subject to such security
restrictions as Tenant may deem necessary for the protection of the operations.
9.4 Tenant covenants and agrees that at the expiration of the term
of this Lease or any extension thereof, or at the sooner termination thereof by
forfeiture or otherwise, it will quietly and peaceably deliver up to Landlord
possession of the Leased Premises and all structures and improvements affixed
to the realty thereon, and appurtenances, in good order and condition, ordinary
wear and tear, damages by fire, depreciation, the elements, and unavoidable
casualty excepted. Any trade fixtures including any and all signage placed on
the Leased Premises by Tenant, subtenant, licensees, concessionaires, and
anyone holding or claiming under Tenant shall remain its or their property and
may be removed from the Leased Premises by such owner provided it is not in
default in the performance of any of its obligations in the instrument under
which it holds possession. Tenant agrees to repair any damage caused by removal
from the premises of any trade fixtures back to a rentable condition.
10.1 If the Leased Premises shall be damaged by fire or other
casualty which can be insured against under standard fire and extended coverage
insurance policies, the damage
shall be repaired by and at the expense of Tenant to the same condition as it
existed prior to the casualty, but only after Tenant has actually received the
proceeds payable under such plan, and only in an amount not exceeding said
proceeds. Such repairs shall be completed as soon as reasonably and as
expeditiously as possible, but in all events they shall be completed within 270
days after the casualty. In the event Tenant fails to repair or restore the
Leased Premises in accordance with the terms of this lease, or does not
commence such repairs or restoration within sixty (60) days after the casualty,
Landlord may terminate this Lease by notice to Tenant, in which event Landlord
shall, as its sole remedy other than termination and its sole compensation, be
entitled to receive the proceeds of all insurance carried on the Leased
Premises. Notwithstanding the foregoing, if the Leased Premises is totally
destroyed by fire or other casualty, or as a result of damage from fire or
other casualty more than fifty percent (50%) of the Leased Premises is rendered
untenantable, Landlord or Tenant shall have the right and option to terminate
this Lease as of the date of such casualty by notice to the other given within
thirty (30) days thereafter. In such event, the proceeds of all insurance
carried on the Leased Premises shall be paid to the Landlord and this Lease and
the obligations of Tenant hereunder shall cease immediately. If the option to
cancel is not exercised, Landlord shall pay any proceeds received by it to
Tenant and Tenant shall repair and restore the Leased Premises to its former
condition within 270 days after the casualty. During any period of time in
which the Leased Premises or any portion thereof is rendered untenantable by
fire or other casualty, the rent shall abate proportionately to the area
rendered untenantable for the period of time during which this condition
exists. So long as the Lease is not terminated Tenant shall be entitled to use
the Leased Premises for its intended purpose.
10.2 Tenant agrees that it will keep the Leased Premises insured
against loss or damage by fire and other insurable risks in an amount of not
less than the full insurable value thereof in standard forms of fire insurance
policies with extended coverage. Tenant shall upon request of Landlord deliver
to Tenant certificates of insurance that the insurance required under this
Article is being maintained, showing Landlord as the loss payee.
10.3 Landlord and Tenant each hereby waives any right of recovery
it may have against the other for loss to the Leased Premises caused by fire or
other peril regardless of how such loss was caused, and although such loss may
have been due to the negligence of the other party, its agents and employees.
All policies of insurance carried by Tenant on the improvements on the Leased
Premises shall contain a provision that they are not invalidated by the
foregoing waiver. Such waiver, however, shall cease to be effective if the
existence thereof precludes Tenant from obtaining any policy. If Tenant incurs
any additional premiums due to the existence of such waiver, it shall upon its
request be reimbursed therefor by the Landlord, unless waived.
Abatement of Rents
11.1 Damage to or destruction of the Leased Premises caused by fire
or any other casualty shall cause an immediate proportionate and equitable
abatement of rent due hereunder, effective as of the date of the casualty, or
until it is determined that Tenant intends not to repair.
Appropriation For Public Use
12.1 In the case of Taking [the term "Taking" as used in this
Article XII shall mean (i) condemnation by any governmental body or authority
of the Leased Premises or any part thereof, or (ii) a voluntary transfer by
Landlord in lieu of (ii) above], the first party learning thereof will promptly
give notice to the other. If the portion of the Leased Premises remaining after
such Taking (and after restoration) would not be reasonably suitable for the
use by Tenant in the operation of its business as it existed immediately prior
to the Taking, then Tenant may within sixty (60) days after the date of such
Taking give notice to Landlord of Tenant's intention to terminate this Lease on
the first day of the first month immediately following the giving of such
notice. All rents, taxes and other charges shall be prorated as of the date of
deprivation of possession and landlord shall refund to Tenant all rents and
other charges paid by Tenant with respect to any period subsequent to such
12.2 If Tenant elects not to terminate this Lease by reason of any
Taking as aforesaid, this Lease shall not terminate, but as of the date of such
Taking, the rental under this Lease shall be equitably adjusted. If the parties
are unable to agree upon the adjustment, each shall appoint a competent
appraiser familiar with corporate office buildings in the Leased Premises's
market area, and the adjustment shall be the average of the adjustments
determined by the two appraisers.
12.3 If this lease is not terminated, Tenant shall promptly restore
the Leased Premises to the condition (but only to the extent reasonably
possible and to the extent proceeds are received by Tenant under Section 12.4
hereof,) it was in prior to the Taking.
12.4 Subject to the rights of a mortgagee (which right is hereby
granted to any mortgagee) to receive any award with respect to the Leased
Premises, and notwithstanding anything to this Article to the contrary, Tenant
shall be entitled, to the extent provided by law, to compensation for the value
of the unexpired term of this Lease. It shall also be entitled to a separate
award for loss of any leasehold improvements, fixtures, lost profits and moving
expenses. Landlord shall be entitled to all other awards made with respect to
a Taking of the Leased Premises or any part thereof.
12.5 In the event of any governmental action not resulting in a
taking but still creating a right to compensation therefor, such as, without
limiting the generality of the foregoing, the changing of the grade of any
street which the Leased Premises abut, or if less than the leasehold title of
to all or any portion of the Leased Premises shall be so taken for any such sue
or occupancy, this Lease shall continue in full force and effect and without
reduction of abatement of rent, and the rights of the Landlord and Tenant to
any compensation or award resulting therefrom shall be governed by applicable
Warranties of Title
13.1 Landlord warrants that the Tenant shall and may peaceably and
quietly have, hold and enjoy the Leased Premises without let or hindrance of
and from the Landlord or any
other person, provided that the Tenant pays the rent herein reserved and
performs each and every covenant and agreement herein on its part to be
Assignment and Subletting
14.1 Tenant shall have the right to assign this Lease, or sublet
any part of the Leased Premises to accommodate consolidation, mergers,
intercompany transactions and the like, and to any affiliate company for use by
such affiliate. Any other assignment or subletting shall require the prior
written consent of the Landlord, such consent not to be unreasonably withheld.
No subletting or assignment shall relieve Tenant of its obligations hereunder.
Tenant may not encumber the Leased Premises at any time.
Events of Default
15.1 If any default in the payment of rent shall continue for
fifteen (15) days after Landlord has given written notice to Tenant of such
non-payment, or any other default on the part of the Tenant under this Lease
shall continue for fifteen (15) days after written notice of the default shall
have been delivered to the Tenant, then Landlord may re-enter the Leased
Premises and terminate this Lease and all improvements erected on the Leased
Premises shall become the property of Landlord; provided, however, that if any
default of Tenant, except non-payment of rent, is of such a nature that it
cannot be corrected within the fifteen (15) day period, Tenant shall be allowed
whatever additional time is reasonably necessary to cure the default.
15.2 If Tenant defaults hereunder, Landlord may after the notice
periods provided in Section 15.1, terminate this Lease, and with appropriate
legal process take possession of the Leased Premises, and remove Tenant or any
other occupant. Landlord shall be entitled to recover as damages from Tenant an
amount equal to the balance of the rent, together with all expenses incurred in
connection therewith, including reasonable attorneys' fees and the costs of
reletting the Premises. Tenant shall be credited, however, with any net amounts
received by the Landlord from the reletting of the Leased Premises and with the
fair rental value of the Leased Premises for the balance of the term as of the
date possession is surrendered. No act of the Landlord shall be considered as
an acceptance of a surrender of the premises unless in writing.
15.3 Notwithstanding any other provisions in this Lease, in the
event Tenant or its successor or assigns shall become insolvent, bankrupt or
make an assignment for the benefit of creditors, or if it or their interest
hereunder shall be levied upon or sold under execution of legal process or in
the event the bank to be operated in the Leased Premises is closed, or is taken
over by any banking or other supervisory authority, Landlord may terminate the
Lease but only with the concurrence of such banking or other supervisory
authority; provided that in the event this Lease is terminated, the maximum
claim of landlord for damages or indemnity for injury resulting from the
rejection or abandonment of the unexpired Lease term shall in no event be in an
amount exceeding the rent reserved by the Lease, without acceleration up to
16.1 All notices required to be served on Landlord shall be
sufficiently served by delivering the same to Landlord at 616 Azalea Lane, Vero
Beach, Florida, 32963, or any other address hereafter designated by Landlord in
writing, or by mailing the same by certified United States mail, postage
prepaid, addressed to Landlord in the manner hereinabove set forth and shall be
deemed delivered two (2) days after posting.
16.2 All notices required to be served on Tenant shall be served
upon Tenant c/o Andrew W. Williams, 616 Azalea Lane, Vero Beach, Florida,
32963, or at such other address as may be designated by the Tenant in writing.
Delivery shall be by certified United States mail, postage prepaid, addressed
to the Tenant at the address set forth hereinabove, and shall be deemed given
two days after posting, or delivery may be made by overnight courier such as
Federal Express, in which case the notice shall be deemed given one day after
17.1 Each party agrees that it will at any time and from time to
time upon not less than ten (10) days prior request by the other, execute,
acknowledge and deliver to the other a statement in writing certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications that the same is in full force and effect as modified, and
stating the modifications, and if applicable, the reason it is not in full
force and effect) and if so, the dates to which rent and any other charges have
been paid in advance.
Submission of Lease
18.1 The submissions of this Lease for examination does not
constitute an offer to lease and the Lease shall be effective only upon
execution and delivery hereof by both Landlord and Tenant.
19.1 Tenant agrees that this Lease shall be subordinate to any
mortgage or the lien which may hereafter encumber the Leased Premises, provided
that Landlord furnishes to Tenant an instrument in recordable form expected by
the holder of such lien agreeing not to disturb Tenant's possession of the
Leased Premises under this Lease so long as Tenant is not in default hereunder,
and agreeing to assume Landlord's obligations hereunder from and after
the date of acquisition of title to the Leased Premises by such holder. In the
event that any proceedings are brought for the foreclosure of any mortgage by
any holder furnishing such agreements, Tenant shall attorn to the purchaser at
any such foreclosure sale and shall recognize such purchaser as the Landlord
under this Lease.
19.2 In the event the holder of any lien requires the recording of
this Lease or in the event either party wishes to record this Lease, the
parties agree to execute a short form of this Lease for such purpose which
short form will contain such provisions hereof as may be designated by either
party except that rent and other charges will not be disclosed. The cost of
recording the short form of this Lease shall be paid by the party desiring to
20.1 All rights and remedies of Landlord and Tenant enumerated
herein shall be cumulative and none shall be exclusive of any other right or
remedy allowed at law or in equity. Failure by Landlord and Tenant to insist at
any time upon strict performance of any covenant, provision or condition of
this Lease or to exercise any option herein contained shall not be construed as
a waiver or relinquishment for the future of such covenant, provisions,
condition or option. Receipt by Landlord rent with knowledge of breach of any
covenant, provision or condition shall not be deemed a waiver of such breach
and no waiver by Landlord shall be deemed to have been made unless expressed in
writing and signed by Landlord. In addition to the other remedies provided in
this Lease, either party shall be entitled to restraint by injunction of the
violation or threatened violation of any covenant, provision, option or
condition of this Lease.
21.1 Tenant shall be entitled, without payment of any additional
sums to Landlord or any other person, to install from time to time at Tenant's
cost its standard signage on the Leased Premises.
Invalidity of Particular Provisions
22.1 If any clause or provision of this Lease is or becomes
illegal, invalid, or unenforceable because of present or future laws or any
rule or regulations of any governmental body or entity, effective during its
term, the intention of the parties hereto is that the remaining parts of this
Lease shall not be affected thereby unless such invalidity is essential to the
right of both parties.
23.1 Tenant shall pay prior to delinquency all taxes assessed
against or levied upon the fixtures, furnishings, equipment and all other
personal property of Tenant located in the Leased Premises; if non-payment
thereof shall give rise to a lien on the real estate, and when possible Tenant
shall cause said fixtures, furnishings, equipment and other personal property
to be assessed and billed separately from the property of the Landlord.
24.1 Landlord and Tenant each represent and warrant to the other
that it has dealt with no broker, agent or other person in connection with this
transaction, and that no broker, agent or other person is entitled to a
commission or fee.
25.1 All the terms, covenants and conditions of this Lease shall
inure to the benefit of and be binding upon the respective heirs, personal
representatives. successors and assigns of the parties hereto.
25.2 The headings in this Lease are for convenience only and are
not intended to define, limit or describe the scope and intent of any of the
provisions of this Lease.
25.3 This Lease contains the entire understanding of the parties
and no agreement unless incorporated herein shall be binding on either party.
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals as of the day and year first above written.
/s/ Alvin W. Wunderlich, Jr.
Alvin W. Wunderlich, Jr., Trustee
of the Alvin W. Wunderlich, Sr.
Trust Number 1
FLORAFAX INTERNATIONAL, INC.
/s/ James H. West
South 475 feet plus a contiguous portion of property to within thirty feet
(30') of the subject building all as reflected on Exhibit "B" and subject to
final legal description after preparation of the survey.
The west 5 acres of the East 15 acres of Tract 12
Section 1, Township 33 South, Range 38 East, according
to the last general plat of lands of the Indian River
Farms Company filed in the office of the Clerk of the
Circuit Court of St. Lucie County, Florida in Plat Book
2, page 25; said land new lying and being in Indian
River County, Florida.
TO THAT LEASE BY AND BETWEEN:
LANDLORD: ALVIN W. WUNDERLUCH, JR., Trustee of the
Alvin w. Wunderlich, Sr., Trust Number 1
TENANT: FLORAFAX INTERNATIONAL, INC.
Landlord and Tenant herein covenant and agree that the rental payments provided
for herein shall be adjusted beginning of the sixth year and, every two years,
if the lease is extended, based upon the Cost of Living Index as herein defined
not to be less than two and one-half (2.5%) nor more than seven percent (7%)
for each two-year period, which annual rental, when determined, shall be paid
in twenty-four (24) equal monthly installments for the next two years. The
adjustment to the rent to be made pursuant to the Cost of Living Index, if
applicable, commencing on (month of closing), 2000, shall be determined by
multiplying the annual rental sum of THIRTY THREE THOUSAND AND 00/100 DOLLARS
($33,000.00) by a fraction, the numerator of which shall be the Index Figure
indicated for the last month of the rental term immediately expiring as shall
be shown by the Consumer's Price Index - the United States ALL Urban Customers
- - All Items (1982-84=100) Group, issued by the Bureau of Labor Statistics of
the United States Department of Labor, and the Index and Group for the month of
(month of closing), 1999. The product of such multiplication shall be the
amount of the total annual rental to be payable hereunder for the next ensuing
year and to be paid in twelve (12) equal monthly installments.
It is understood and agreed that the above-referenced index is now
being published monthly by the Bureau of Labor Statistics of the United States
Department of Labor. Should it be published at other intervals, the new Index
hereinafter provided for shall be arrived at from the Index or Indexes
published by said Bureau most closely approximating the next to last month in
the preceding term.
Should said Bureau of Labor Statistics change the manner of computing
such Index, the Bureau shall be requested to furnish a conversion factor
designed to adjust the new Index, and an adjustment shall be made on the basis
of such conversion factor. Should the publication of such Index be discontinued
by said Bureau, then such other Index as my be published by such Bureau most
nearly approximating said discontinued Index shall be used in making the
adjustments herein provided for. Should said Bureau discontinue the publication
of an Index approximating the Index herein contemplated, then as Index
published by another United States Governmental Agency as most nearly
approximates the Index.