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Exhibit 10.17
GROUND LEASE
by and between
I-4 LAND HOLDING LIMITED COMPANY (“Landlord”)
and
LAZY DAYS’ R.V. CENTER, INC. (“Tenant”)
Dated as of July , 1999
TABLE OF CONTENTS
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GROUND LEASE
This Ground Lease (“Lease”) is made and entered into as of the day of July, 1999, by and between I-4 LAND HOLDING LIMITED COMPANY, a Florida limited liability company (“ Landlord ”), and LAZY DAYS’ R.V. CENTER, INC., a Florida corporation (“ Tenant ”).
RECITALS
A. Prior to the date hereof, Tenant has operated its recreational vehicle business on an approximately 126 acre site located at 6130 Lazy Days Blvd., Seffner, Florida (the “ Site ”). The land included within such 126-acre site is owned by the Landlord and described in Exhibit A attached hereto (the “ Land ”). Tenant is the owner of all buildings and structures now located on the Land and all other improvements located on the Land which are not owned by Landlord (the “ Tenant Improvements ”). Landlord is the owner of asphalt and concrete paving, landscaping and fencing now located on the Land (the “ Landlord Improvements ”). The Land and the Landlord Improvements are collectively referred to herein as the “Demised Premises.” The Landlord Improvements and the Tenant Improvements are sometimes collectively referred to herein as the “Improvements.”
B. Landlord and Tenant are parties to an existing lease for the Site dated as of January 1, 1998 (the “ Existing Lease ”). It is the intention of the Landlord and the Tenant that the Existing Lease be terminated, and that this Lease will be the operative lease for the Site from and after the date hereof.
AGREEMENT
In consideration of the mutual covenants and agreements contained in this Lease and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows:
ARTICLE 1
Leased Premises
1.1 The Existing Lease is hereby terminated.1.2 Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Land and the Improvements.1.3 Tenant reserves the right to construct future site improvements and ancillary facilities including, without limitation, buildings, camping grounds, roadways, walkways, detention ponds, wetlands, and utility lines and poles (the “ Future Improvements ”) on the Land in accordance with Article 9 below. The Future Improvements described in Exhibit B are hereby approved by Landlord. The Future Improvements, after completion, shall become part of the Tenant Improvements.
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1.4 Landlord and Tenant (and Tenant’s employees, licensees, and invitees) acknowledge and agree that non-exclusive easements and rights to use public and common facilities exist on or service the Demised Premises for certain third party use including, but not limited to, all entrances, exits, driveways, parking areas, walks, service drives and common utilities.
ARTICLE 2
Term
2.1 This Lease shall be effective upon execution hereof and the initial term of this Lease shall be for a period of twenty-three (23) years and six (6) months (the “ Initial Term ”) commencing as of the date first written above, which date shall also be the “ Rent Commencement Date .” The term “Lease Year” as used herein shall be defined as each successive twelve month period following the Rent Commencement Date.2.2 Tenant shall have the option at the end of the Initial Term to extend the term of this Lease for up to three (3) additional five (5)-year periods (each, an “ Option Term ”) upon giving Landlord written notice of such election not less than three hundred sixty five (365) days prior to the expiration of the Initial Term or any Option Term. All terms and conditions of the Lease as stated herein shall apply during each Option Term; provided, however, the Minimum Annual Rent (as defined in Article 5) for each Option Term shall be adjusted pursuant to Section 5.1 hereof.ARTICLE 3
Conditions Precedent
This Lease shall become effective upon the merger of the Lazy Days’ R V. Center, Inc. Employee Stock Ownership Plan into the Alliance Holdings, Inc. Employee Stock Ownership Plan and Trust.
ARTICLE 4
Use
4.1 The Demised Premises and Improvements shall be used for the purposes of Tenant’s recreational vehicle business as presently or in the future conducted and for any lawful purposes approved by the Landlord in its reasonable discretion.4.2 Tenant shall not use the Demised Premises or the Improvements, or permit the Demised Premises or the Improvements to be used, in whole or in part during the term of this Lease for any purpose or use that is in violation of any law.From and after the date hereof, Tenant shall, at its own cost and expense, cause the Demised Premises and the Tenant Improvements to comply with (including, without limitation, making structural or extraordinary repairs, improvements and alterations) all present and future laws, rules, regulations and codes, including, without limitation, the Americans with
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Disabilities Act. Tenant shall have the right to contest or review, by legal procedure or in such other manner as Tenant may deem suitable, at its own expense, any such laws, rules, regulations, or codes and may contest the applicability of the same to the Demised Premises or the Tenant Improvements, provided that Landlord is not subjected to any liability and/or prosecution as a result thereof and that Landlord’s title to the Demised Premises is not subjected to forfeiture or otherwise materially affected in any manner as a result thereof. Such proceedings shall be conducted promptly, and shall include, if Tenant so decides, appropriate appeals. Whenever any such requirements become absolute after a contest, Tenant shall diligently comply with the same or so much thereof as shall have been judicially sustained.
4.3 Tenant shall not use the Demised Premises or the Tenant Improvements for or carry on or permit in or upon the Demised Premises or the Tenant Improvements, or any party thereof, any nuisance. Tenant agrees not to cause, permit or suffer any waste to the Demised Premises or the Tenant Improvements.ARTICLE 5
Rent
5.1 Commencing on the Rent Commencement Date, Tenant agrees to pay to Landlord minimum annual rent in an amount equal to $3,708,197 per year for the initial five Lease Years and $4,200,000 per year thereafter (“ Minimum Annual Rent ”). In addition to such fixed increase in Minimum Annual Rent, the Minimum Annual Rent shall be subject to the following cost of living adjustments. On the fifth, 8½th, 13½th, and 18½th anniversary of the Rent Commencement Date and on the commencement date of each Option Term (each, an “ Adjustment Date ”), Minimum Annual Rent shall be increased by an amount equal to the product obtained by multiplying the greater of $4,200,000 or the Minimum Annual Rent applicable to the Lease Year immediately preceding such Adjustment Date by the Index Change. As used herein, the term “ Index Change ” shall mean the cumulative percentage increase (if any) in the cost of living for the five-(5) year period immediately preceding each Adjustment Date in the Consumer Price Index All Urban Consumers U.S. City Average (1982-84=100), published by the United States Department of Labor, Bureau of Labor Statistics (“Index”), except the 8½th year adjustment shall be based on $4,200,000 increased by the cumulative percentage increase (if any) in the cost of living for the ten-year period immediately preceding such Adjustment Date.5.2 The Minimum Annual Rent shall be paid in equal monthly installments in advance, without demand and without offset (except as expressly provided herein), on the first day of each calendar month during the term of this Lease commencing on the Rent Commencement Date and prorated on a per diem basis for a fraction of any month. All rental and other payments due from Tenant shall be paid by Tenant to Landlord at the address set forth in Article 30, or at such other place as may from time to time be designated by Landlord in writing. All such payments shall bear interest from the date due until paid at the prevailing Wall Street Journal Prime Rate of Interest plus five percent (5%) if not paid within fifteen (15) days of notice from Landlord that such payment is past due. A late fee of five percent (5%) of the applicable payment shall be due and payable to Landlord if any portion of a payment required of Tenant is not paid within thirty (30) days after such payment is due.
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5.3 It is the intention of Landlord and Tenant that the rent herein specified shall be net to Landlord in each Lease Year during the term of this Lease and that all costs, expenses and obligations of every kind (including but not limited to taxes, insurance and maintenance) relating to the Demised Premises and Improvements which may arise or become due during the term of this Lease shall be paid by Tenant. Nothing contained herein shall make Landlord and Tenant partners or joint venturers or liable for the debts of the other.ARTICLE 6
Utilities
Tenant shall pay all charges for all utility services furnished to the Demised Premises. If any utility service is interrupted solely as a result of the gross negligence or willful misconduct of Landlord, its agents or employees, there shall be equitable abatement of rent and other charges due hereunder based upon the length of period and proportion of the Demised Premises and Improvements which are nonfunctional.
ARTICLE 7
Insurance
7.1 Tenant covenants and agrees that it will carry and maintain, during the entire term hereof, at Tenant’s sale cost and expense, the following types of insurance, in the amount specified and in the form hereinafter provided for:(a) Commercial general liability insurance covering injury or death to persons or damage to property with coverage limits of the greater of (i) $1,000,000.00 combined and $1,000,000.00 each occurrence, or (ii) such additional coverage as Landlord may reasonably require during the Term (but Landlord shall not adjust such required insurance limits more frequently than once every three (3) years), insuring against any and all liability of the insured with respect to the Demised Premises and Improvements or arising out of the maintenance, use or occupancy thereof. All such liability insurance may be provided under umbrella-type policies maintained by Tenant.(b) Fire insurance with extended coverage endorsement upon the Improvements in an amount equal to the replacement value of the Improvements above the foundation walls. All fire and extended coverage insurance which Tenant is obligated to maintain shall be for the benefit of Landlord and Tenant, as their interests may appear, and shall insure against all perils. In the case of loss or damage by fire or other risks insured against, such insurance proceeds shall be applied to the replacement of the damaged property unless both Landlord and Tenant agree not to replace the damaged property, in which case any insurance proceeds remaining after deducting the expenses of removing the damaged or destroyed property shall be apportioned between Landlord and Tenant based on the relative ownership of the damaged property, and as to any proceeds applicable to Improvements owned by Tenant, Landlord and Tenant shall share in such proceeds with Tenant receiving the share that represents the proportion of the remaining useful life of the applicable Improvement prior to its destruction
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that would have fallen within the then current Term, and the Landlord’s share being the remainder.(c) Worker’s compensation coverage in compliance with the laws of the State of Florida.7.2 The insurance coverages required hereunder shall be carried with an insurance company or companies selected by Tenant and reasonably acceptable to Landlord. Such insurance may be carried under a blanket policy or policies covering other liabilities and locations of Tenant. All such policies shall be issued in the name of Tenant and shall name Landlord, any fee mortgagee and any leasehold mortgagee as additional insureds. Casualty insurance policies shall contain a mortgagee loss payable clause in favor of Landlord, subject to the prior rights of any Leasehold Mortgagee. From time to time, Tenant shall furnish Landlord such evidence as Landlord may require to indicate that the foregoing insurance is in full force and effect. All policies of insurance shall provide that such policies shall not be amended or canceled without thirty (30) days prior written notice to Tenant and Landlord.ARTICLE 8
Taxes
8.1 Commencing on the Rent Commencement Date, Tenant shall pay to Landlord all ad valorem real estate taxes and assessments attributable to the Demised Premises or the Improvements (if taxed as part of the Demised Premises or not otherwise directly taxed to Tenant) within thirty (30) days following receipt of Landlord’s written notification that such taxes and assessments are due and payable. Landlord’s written notification shall be forwarded to Tenant and shall be accompanied by a copy of the tax bill or certificate and shall indicate the portion of real estate taxes and assessments attributable to the Demised Premises or Improvements. Tenant shall not be liable for any portion of penalties or interest which may be assessed as a result of late payment of taxes or assessments by Landlord. If any assessment is payable in installments, Tenant shall pay to Landlord any installment as and when such installment becomes due and payable. Tenant’s liability for ad valorem real estate taxes and assessments shall be prorated for the Lease Years in which this Lease commences and terminates.8.2 Should Landlord initiate proceedings to contest the validity or amount of any tax or assessment levied against the Demised Premises or Improvements, Tenant, at Landlord’s expense, will cooperate in such proceedings and should such proceedings be successful, Tenant will be entitled to its proportionate share of any tax refund or future abatement, after deducting therefrom payment of all expenses incurred by Landlord in any such proceeding. Should Tenant initiate proceedings to contest the validity of any tax or assessment levied against the Demised Premises or Improvements, Landlord shall, at Tenant’s expense, cooperate in such proceedings.8.3 Tenant shall pay to Landlord, in addition to and along with any and all rent otherwise payable hereunder, any excise, transaction, sales or privilege taxes, other than income and estate taxes, now or hereafter imposed by any governmental agency upon Landlord
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and attributable to or measured by rent or other charges or prorations payable by Tenant hereunder. Nothing herein contained shall require Tenant to pay income taxes assessed against Landlord, or any capital levy, corporation franchise, excess profits, estate, succession or transfer taxes of Landlord, or any taxes, fees or other costs attributable or resulting from any mortgage granted by Landlord on its interest in the Demised Premises or Improvements.ARTICLE 9
Changes, Alterations and Additions
9.1 Tenant shall have the right at any time and from time to time during the term of this Lease to make changes, replacements, alterations, modifications or additions to or removal of the Tenant Improvements, except that any structural change to any Landlord Improvement or the construction of any new improvement on the Land shall require Landlord’s prior approval, which approval shall not be unreasonably withheld or delayed. No such change, replacement, alteration, modification, addition, or removal shall be undertaken or commenced until Tenant shall have procured and paid for all required permits and licenses of all governmental authorities having jurisdiction thereof.9.2 All work done in connection with any change, replacement, alteration, modification, addition or removal to the Improvements shall be done with reasonable diligence, in good workmanlike manner and in compliance with all applicable laws and regulations of all governmental authorities having jurisdiction. The cost of any such change, replacement, alteration, modification, addition or removal shall be paid or discharged by Tenant so that the Demised Premises and Improvements at all times shall be free of any and all liens resulting therefrom.ARTICLE 10
Mechanic’s Liens
10.1 Tenant shall pay or cause to be paid all costs for work done by it or caused to be done by it on the Demised Premises or Improvements, and Tenant will keep the Demised Premises free and clear of all mechanic’s liens and other liens due to work done for Tenant or persons claiming under Tenant. Tenant shall indemnify and save Landlord harmless from all liability, loss, damage, costs, attorneys’ fees and all other expenses on account of claims of lien of laborers or materialmen or others for work performed or materials or supplies furnished for Tenant or persons claiming under Tenant.10.2 During the Term of this Lease, Tenant shall not suffer or permit any mechanic’s, materialmen’s, attachment, execution or other liens or stop notices to attach or be filed against the Demised Premises (including the Improvements thereon), Tenant’s leasehold interest in this Lease, against Landlord, or against any lender holding funds for any work or improvement upon the Demised Premises or Improvements, except that Tenant shall be permitted to mortgage its leasehold interest in the Demised Premises and its interest in the Improvements, is provided for in Article 20 hereof. If any such liens, stop notices or similar proceedings are filed or commenced, Tenant shall, within thirty (30) days after notice of the
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filing thereof or such other reasonable time, cause the same to be discharged of record by payment, deposit, order of court or by bonding; provided, however, that Tenant shall have the right to contest, with due diligence, the validity or amount of any such lien or stop notice once discharged of record.10.3 Nothing in this Lease shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman, for the performance of any labor or the furnishing of any materials for any construction, alteration, repair, replacement or improvement of the Demised Premises and Improvements to be made on the Demised Premises by Tenant, nor as giving Tenant any right, power or authority to contract for or permit, on Landlord’s behalf or as to Landlord’s interest, the rendering of any services or the furnishing of any materials. The Memorandum of Lease to be recorded by the parties shall contain the statutorily required disclosures to effectuate this concept.ARTICLE 11
Signs/Advertising
11.1 Tenant shall be allowed to affix and maintain signs as approved from time to time by any requisite governmental agency and as comply with any covenants currently of record affecting the Demised Premises or Improvements, provided that the Landlord shall have the right to approve the size and location of any signage the Tenant desires to erect, provided such approval shall not be unreasonably withheld or delayed.11.2 Upon expiration or termination of this Lease, Tenant, at its election and cost, and with Landlord’s prior approval (without regard to the value) as to any signage that may be incapable of lawfully being replaced, may remove any of its signs and other advertising matter on the Demised Premises or Improvements or elsewhere where signs have been placed.ARTICLE 12
Tenant’s Fixtures and Personal Property
All of Tenant’s personal property located on the Demised Premises or Improvements, including furniture, furnishings, fixtures and equipment and all other property installed in or attached to the Improvements at Tenant’s expense, whether or not such property constitutes fixtures or otherwise (collectively, “ Tenant’s Property ”), shall remain the property of Tenant, and Tenant shall have the right to remove any and all of Tenant’s Property at any time prior to the expiration of the term hereof for purposes of replacement or otherwise.
ARTICLE 13
Assignment and Subletting
13.1 Subject to subsection 13.2 below, Tenant shall not assign or transfer this Lease or Tenant’s interest in and to the Demised Premises or Improvements or any part thereof or sublet all or any portion of the Demised Premises or Improvements without the prior written
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consent of Landlord, which consent shall not be unreasonably withheld or delayed. No such assignment or subletting shall relieve Tenant from its liability to Landlord under the Lease. Any attempted transfer, assignment or subletting without the written consent of Landlord shall be void and confer no rights upon any third person.13.2 Notwithstanding the provisions of Section 13.1 above to the contrary, Tenant may assign its interest in this Lease, without Landlord’s consent, to any corporation or entity which controls, is controlled by or is under common control with Tenant, or to any corporation or entity resulting from the merger or consolidation with Tenant or by Tenant into such corporation or to any successor corporation in the event of the sale of substantially all of the assets of Tenant (collectively “ Tenant Affiliate ”) provided that (a) no Event of Default then exists hereunder; (b) before such assignment shall become effective, said assignee shall assume in writing all of the obligations of Tenant under this Lease; (c) Landlord shall receive at least thirty (30) days prior notice of such assignment, along with supporting information sufficient for Landlord to confirm that such assignment qualifies hereunder; and (d) such Tenant Affiliate has financial ability, net worth, and credit equal to or greater than that of Tenant at the time of the transfer.13.3 Upon assignment by Landlord of its interest under this Lease, Landlord shall be released from any liability thereafter accruing under this Lease after the date the Lease is assigned, but Landlord shall remain liable for any of its obligations under this Lease accruing prior to the date of such assignment. Upon such an assignment by Landlord, Tenant shall thereafter attorn to and be bound to the transferee of Landlord’s interest as though such transferee had been the original Landlord hereunder.13.4 The limitations on assignment by Tenant under this Section 13 shall not apply to a Leasehold Mortgagee of Tenant permitted pursuant to Section 20 hereof.ARTICLE 14
Repairs and Maintenance
14.1 Subject to the provisions of Article 15 herein, Tenant shall, at its own cost and expense, keep and maintain the Demised Premises and Improvements in good, safe and sanitary order, condition and repair, and make all repairs which, in its reasonable judgment, are necessary to the Demised Premises and Improvements.14.2 The parties acknowledge that Landlord shall have no repair or maintenance obligations whatsoever with respect to the Demised Premises or Improvements. Tenant waives the benefit of any law now or hereafter in effect which would otherwise afford Tenant the right to make repairs at Landlord’s expense or to terminate this Lease because of Landlord’s failure to keep the Improvements in good order, condition and repair.
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ARTICLE 15
Casualty
If the Demised Premises and/or Improvements are damaged or destroyed by fire or other casualty, Tenant, at its sole cost and expense, shall, subject to the second paragraph of this Article 15, repair and restore the same to such condition as existed prior to its destruction.
Notwithstanding the first paragraph immediately above, if Landlord and Tenant mutually decide not to repair and restore the Improvements as herein provided, Tenant shall remove the damaged portions of the Improvements. If Landlord and Tenant elect not to rebuild and restore the Improvements as herein provided, the proceeds of insurance shall be applied in accordance with Section 7.1(b). Neither Tenant nor Landlord shall be liable for any loss or damage to the Demised Premises and/or Improvements resulting from fire or other casualty to the extent that such loss or damage is actually covered by insurance proceeds which are applied as required herein.
ARTICLE 16
Bankruptcy - Insolvency
If Tenant is adjudged bankrupt or insolvent, files or consents to the filing of a petition in bankruptcy under the Federal Bankruptcy Code or any equivalent state law, applies for or consents to the appointment of a receiver for all or substantially all of its assets, or makes a general assignment for the benefit of its creditors, then except as otherwise provided in this Article 16, an Event of Default by Tenant shall have occurred under this Lease and, to the extent from time to time permitted by applicable law, including but not limited to the Federal Bankruptcy Code, Landlord shall be entitled to exercise all remedies set forth in Article 17 below. Notwithstanding the foregoing, if Tenant files a petition for reorganization under Chapter 11 of the Federal Bankruptcy Code, and the Tenant assumes this Lease within sixty (60) days from the filing of the proceeding, then this Lease shall continue and the filing of such petition for reorganization shall not constitute an Event of Default under this Lease.
ARTICLE 17
Defaults/Remedies
17.1 The occurrence of any of the following shall constitute an Event of Default under this Lease by Tenant:(a) A failure by Tenant to pay when due all or any part of the rent or other monetary payment required to be paid by Tenant to Landlord or third parties as required by this Lease where such failure continues for fifteen (15) days after receipt of written notice from Landlord to Tenant of such default;(b) A failure by Tenant to observe and perform any non-monetary provisions of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after receipt of written notice from Landlord to Tenant of such default; provided,
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that if the nature of such default is curable but that the same cannot with due diligence be cured within thirty (30) days, Tenant shall not be deemed to be in default if it shall within such thirty day period commence curing the default and thereafter diligently prosecutes the same to completion;(c) A violation of the provisions of Section 13.1 or 13.2.17.2 In the event of any Event of Default by Tenant which remains uncured beyond any applicable cure period, then, in addition to any and all rights and remedies available to Landlord at law or in equity, Landlord shall have the right, by giving written notice to Tenant of such election by Landlord, to accelerate all rent due hereunder for the remainder of the Term and immediately sue for rent or to terminate this Lease and all rights of Tenant hereunder and to re-enter the Demised Premises or Improvements without waiving the right to recover from Tenant all damages which result from Tenant’s default.17.3 If Landlord elects to re-enter as above provided, or takes possession of the Demised Premises or Improvements pursuant to legal proceedings or pursuant to any notice or other remedy provided by law or in equity, Landlord may relet the Demised Premises or Improvements located thereon or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable, and Landlord shall have the right to make repairs and alterations to the Demised Premises and the Improvements located thereon.With or without terminating this Lease, Landlord may enter upon and take possession of the Demised Premises and Improvements and expel or remove Tenant and any other person who may be occupying the Demised Premises and Improvements or any part thereof, without being liable for prosecution or any claim for any damages or liability therefor. Landlord may thereupon make such alterations and repairs as, in Landlord’s reasonable discretion, are necessary to relet the Demised Premises and Improvements, and relet the Demised Premises and Improvements or any part thereof, without notice to Tenant, for such rent and such use, and for such period of time and subject to such terms and conditions as Landlord, in its reasonable discretion, may deem advisable and receive the rent therefor. Tenant shall be liable for any and all expenses (including attorneys’ fees, disbursements, actual costs and brokerage fees) incurred by Landlord in re-entering and repossessing the Demised Premises and Improvements, in making good any default of Tenant, in painting, altering, repairing or dividing the Demised Premises and Improvements, in protecting and preserving the Demised Premises and Improvements by use of security guards and caretakers, and in reletting the Demised Premises and Improvements. Tenant shall pay to Landlord, on demand, any deficiency that may arise by reason of any reletting. Any suit brought by Landlord to enforce collection of such difference for any one month shall not prejudice Landlord’s right to enforce the collection of any difference for any subsequent month in subsequent separate actions, as said damages shall have been made more easily ascertainable by successive relettings. Landlord shall not be liable for any failure to relet the Demised Premises and Improvements or any part thereof or for any failure to collect any rent due upon any such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default.
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If Landlord terminates this Lease pursuant to Section 17.2, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant’s default, an amount equal to the difference between (i) all Minimum Annual Rent and other sums which would be payable under this Lease from the date of such demand (or, if it is earlier, the date to which Tenant shall have satisfied in full its obligations under the preceding paragraph) for what would be the then unexpired Term in the absence of such termination, and (ii) the fair market rental value of the Demised Premises and Improvements over the same period (net of all expenses and all vacancy periods reasonably projected by Landlord to be incurred in connection with the reletting of the Demised Premises and Improvements), with such differential discounted at the rate of ten percent (10%) per annum. Nothing herein shall be construed to affect or prejudice Landlord’s right to prove, and claim in full, unpaid rent or any other amounts accrued prior to termination of this Lease.
Landlord shall, to the extent permitted by law, have (in addition to all other rights) a right of distress for rent as security for all Minimum Annual Rent and any other sums payable under this Lease.
Tenant, on its own behalf and on behalf of all persons claiming through or under Tenant, including all creditors, does hereby specifically waive and surrender any and all rights and privileges, so far as is permitted by law, which Tenant and all such persons might otherwise have under any present or future law (1) to the service of any notice to quit or of Landlord’s intention to re-enter or to institute legal proceedings, which notice may otherwise be required to be given, (2) to redeem the Demised Premises or Improvements, (3) to re-enter or repossess the Demised Premises or Improvements, (4) to restore the operation of this Lease, with respect to any dispossession of Tenant by judgment or warrant of any court or judge, or any re-entry by Landlord, or any expiration or termination of this Lease, whether such dispossession, re-entry, expiration or termination shall be by operation of law or pursuant to the provisions of this lease or (5) which exempts property from liability for debt or for distress for rent. The words “dispossession,” “re-enter,” “re-entry,” “reentered,” “repossess” and “redeem” as used in this Lease shall not be deemed to be restricted to their technical legal meanings.
17.4 The term “rent” and “rental” as used in this Section 19 and elsewhere in this Lease shall be deemed to be and mean Minimum Annual Rent, real property taxes, late charges, interest, attorneys’ fees and any and all other sums, however designated, required to be paid by Tenant hereunder, whether payable to Landlord or third parties.ARTICLE 18
Condemnation
If the entire Demised Premises and/or Improvements shall be taken by reason of condemnation or under eminent domain proceedings, Landlord or Tenant may terminate this Lease as of the date when possession of the Demised Premises and/or Improvements is so taken. If a portion of the Demised Premises, and/or Improvements shall be taken under eminent domain or by reason of condemnation and the remainder of the Demised Premises, and/or Improvements are no longer suitable for Tenant’s business, this Lease, at Tenant’s option, exercised by notice to Landlord within sixty (60) days of such taking shall terminate; and any unearned rents and other
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charges paid or credited in advance shall be refunded to Tenant. If this Lease is not so terminated, Tenant may at its sole cost and expense restore the remaining portions of the Demised Premises and/or Improvements as Tenant deems necessary or appropriate (subject to applicable law) and the Minimum Annual Rent shall be reduced proportionally based on the portion of the Demised Premises so taken. For purposes of this paragraph (i) a partial taking shall be deemed to include loss or material impairment of access to and from the Demised Premises and/or Improvements and (ii) grants or conveyances made in lieu or anticipation of or under threat of a taking or condemnation shall be deemed a taking.
Both parties shall pursue their own damage awards with respect to any such taking, provided, however, that Tenant shall be entitled to the award in connection with any condemnation insofar |
AGREEMENTS / CONTRACTS
CLAUSES
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