LEGAL APPROVAL
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GROUND LEASE
THIS LEASE made this J 4 t day of December 1994, by and
between Walter Dutch, as Trustee of the WALTER DUTCH TRUST
("Lessor"), having a mailing address at 240 Southland ~treet, Palm
Beach, Florida 33480, and REWJB INVESTMENTS, a Florida general
partnership, doing business as FARM STORES ("Lessee"), having a
mailing address at 5800 N.W. 74th Avenue, Miami, Florida 33166.
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WITNESSETH:
1. PREMISES. Lessor does hereby demise and let unto Lessee,
and Lessee does hereby lease and take from Lessor for the term and
upon the terms and conditions set forth in this Lease I the real
property which is situated in the County of Palm Beach, State of
Florida, and more fully described as follows:
Lot 12, plus the South 50 feet of Lot 11, Deierl Park,
according to the Plat thereof on file in Clerk of the
Circuit Court in and for Palm Beach County Florida,
recorded in Plat Book 23, Page 236, less the right of
way for State Road 804 as recorded May 25, 1994 in
Official Records Book 8276, Page 1602 in the Public
Records of Palm Beach County, Florida,
located at the northwest corner of Boynton Beach Boulevard and N.W.
7th Court, Boynton Beach, Florida (the "Premises"), together with
the non-exclusive right of ingress and egress, to the extent of
Lessor's rights, over all roads, streets, alleys, sidewalks, ways,
parking areas, and approaches to and from abutting highways whether
public or private, bounding or serving the Premises, and the right
to use all parking spaces in areas designated for public and
customer parking in the areas adjacent to the Premises.
2. TERM. The term of this Lease shall begin on the da te
(the '~Commencement Date") that is the earlier of (i) the date on
which the last of all permits, licenses and authorizations required
by any federal, state, county, or municipal agency for the
installation and operation of the contemplated improvements on the
Premises is issued, provided that no appeal from or objection to
the issuance of any such permit, license or authorization is
pending and the time for filin.g any appeal or obj ection has
expired, (ii) the expiration of the Inspection Period, provided
that Lessee has not timely terminated its obligations under this
Lease in accordance with Section 4.3, or (iii) the date that Lessee
commences the construction of any site work on the Premises for
installation of the improvements to be installed by Lessee on the
Premises (provided that any work done on the Premises pursuant to
Section 4 of this Lease for the purposes of determining whether or
not the Premises are suitable or acceptable to Lessee shall not be
deemed site work for purposes of this clause (i i i) ), and shall
terminate ten (10) years thereafter, unless sooner terminated or
extended as provided herein.
3. RENTAL. For and in consideration of the use of the
Premises, Lessee shall pay rent to Lessor for the term of this
Lease, beginning on the Commencement Date, as follows:
3.1 Base Annual Rent. Annual rent (the "Base Annual
Rent") in the amount of Fifteen Thousand and No/100 Dollars
($15,000.00) shall be payable in equal monthly installments of
One Thousand Two Hundred Fifty and No/lOa Dollars ($1,250.00)
on the first day of each calendar month following the
Commencement Date and continuing until the fifth anniversary
of the Commencement Date. Commencing on the fifth anniversary
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of the Commencement Date, the Base Annual Rent shall be
adjusted in accordance with the change in the Consumer Price
Index (hereinafter referred to as the "CPI"). The CPI shall
mean the average for "all items shown on the u.s. city average
for urban wage earners and clerical workers (including single
workers), all items, groups, subgroups and special groups of
items" as promulgated by the Bureau of Labor Statistics of the
U. S. Department of Labor (1982-84 equals 100). The Base
Annual Rent shall be adjusted in accordance with the following
provisions:
3.1.1 The CPI for the month which is three months
prior to the Commencement Date shall be designated the
Base Price Index.
3.1.2 The CPI for the month which is three months
prior to the fifth anniversary of the Commencement Date
shall be designateQ the Comparison Price Index.
3.1.3 The Base Annual Rent shall be adjusted to
equal the result obtained by multiplying the Base Annual
Rent in effect on the Commencement Date by a fraction,
the numerator of which is the Comparison Price Index and
the denominator of which is the Base Price Index.
Written as an equation, this computation is as follows:
Base Annual Rent x
on the Commencement Date
Comparison Price Index ~ Adiusted [lase Annual Rent
Base Price Index
3.1.4 The Base Annual Rent, as adjusted In
accordance wi th this Section 3.1, shall be payable in
equal monthly installments on the first day of each
calendar month commencing on the fifth anniversary of the
Commencement Date of this Lease and continuing until the
expiration of the initial term of the Lease.
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3.1.5 No adjustment of Base Annual Rent as provided
in this Section 3.1 shall reduce the Gase Annual Rent
below the Base Annual Rent in effect immediately prior to
such adjustment.
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3.1.6 In the event that the CPI hereinabove
referred to ceases to incorporate a significant number of
the items currently set forth therein, or if a
substantial change is made in the method of establishing
such CPI, then the CPI shall be adjusted to the figure
that would have resulted had no change occurred in the
manner of computing such CPl. In the event that such CPI
(or a successor or substitute index) is not available, a
reliable governmental or other nonpartisan publication
evaluating the information theretofore used In
determining the CPI shall be used in lieu of such CPl.
3.2 Commencement Date. If the Commencement
other than the first day of a calendar month, then
the portion of the calendar month commencing
Commencement Date through the last day of such month
pro-rated, in the manner hereinafter set forth, and
paid on the Commencement Date.
Da t e is
rent for
on the
shall be
shall be
3.3 Sales Tax. Lessee shall pay to Lessor, with each
installment of Base Annual Rent, applicable state sales tax on
such rent payments. Lessor shall be responsible to remit the
sales tax to the appropriate authority.
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3.4 Pro-rations. Base Annual Rent for any partial
month, at the beginning or end of the term of the Lease or any
extensions thereof, shall be pro-rated based on the actual
number of days in such month.
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3.5 Place of Pavrnent. All rent hereunder shall be
payable by Lessee at the address of Lessor specified in
Paragraph 32, below, or at such other place as Lessor shall
direct by proper notice hereunder.
4. RIGHT OF INSPECTION.
4.1 Lessee, its agents, consultants, employees and
representatives, shall have full access to the Premises at all
reasonable times prior and subsequent to the Commencement Date
with full right to inspect the Premises and the state of
Lessor's title thereto to the fullest extent desired by Lessee
in connection with its having entered into this Lease and to
make its own independent investigations and inquiries
concerning all applicable building, zoning, environmental and
other codes, ordinances, statutes, rules, regulations and
requirements affecting the Premises and Lessee's intended use
thereof; and Lessee shall have the right to conduct all such
investigations, inquiries, tests, studies, surveys and borings
on the Premises as Lessee, its engineers, surveyors and
consul tants shall deem necessary or des irable, including,
without limitation, to make soil borings and tests. Any entry
on or to the Premises by Lessee or its authorized
representatives pursuant to the provisions hereof shall be at
the risk of Lessee. Lessee shall be responsible to restore
the Premises to a reasonable condition at the conclusion of
all such tests in the event this Lease is terminated In
accordance with Section 4.3. Such rights of inspection and to
make tests, or the exercise or non-exercise of the same, shall
not constitute a waiver by Lessee of the breach of any
representations or warranties of Lessor which were or which
~ight have been disclosed by such inspections or tests.
4.2 Within five (5) days after the date of this Ground
Lease, Lessor shall deliver to Lessee copies of all existing
surveys, title insurance policies and commitments, plans and
specifications, soil tests, engineering reports, licenses,
permits and approvals, notices received by Lessor and such
other documents relating to the Premises which may be
reasonably requested by Lessee and are in the possession or
control of Lessor.
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4.3 I f any inspection or inqui ry re 1 a t ing to the
Premises reveals any matter that is for any reason
unsatisfactory or unacceptable to Lessee (in Lessee's sole and
absolute discretion), then Lessee shall have the right,
exercisable at any time on or before one hundred twenty (120)
days after the date of this Lease such 120 day period (is
referred to herein as the "Inspection period") to terminate
all of its obligations under this Lease by furnishing written
notice of termination to Lessor, and thereafter all rights,
obligations and liabilities of the parties under this Lease
shall terminate. Without limiting the foregoing right, Lessee
may also elect to notify Lessor of the matters affecting the
Premises that are not acceptable to Lessee (a "Notice") and
request Lessor to remedy the same at Lessor's sole expense.
Lessor agrees to use its best efforts to remedy such matters
within thirty (30) days of Lessee's Notice as aforesaid, and
agrees that Lessee's right to terminate this Lease shall be
extended beyond the Inspection Period until the earlier of (a)
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sixty (60) days after the date of Lessee 1 s Notice, or (b)
thirty (30) days after Lessor notifies Lessee that all matters
identified in the Notice have been remedied. If, prior to the
expiration of the Inspection Period, Lessee commences the
construction of any site work on the Premises for installation
of the improvements to be installed by Lessee on the Premises,
Lessee shall be deemed to have waived its right to terminate
this Lease pursuant to this paragraph 4.3; provided that any
work done on the Premises for the purposes of determining
whether or not the Premises are sui table or acceptable to
Lessee shall not be deemed a waiver of Lessee f s right to
terminate this Lease.
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5. USE OF PREMISES. The Premises shall be used for the
purpose of constructing the Improvements (as hereinafter defined)
thereon and using the Premises and the Improvements for the
operation of a drive-through convenience food and dairy product
store, including the sale of beer and wine for off-premises
consumption, the sale of cigarettes, tobacco products, and the sale
of state authorized lottery game tickets, or for any other lawful
purpose.
6. CONSTRUCTION OF IMPROVEMENTS.
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6.1 Lessor acknowledges that Lessee intends to construct
a pre-fabricated, relocatable, modular double drive-thru
convenience store and related faci 1 i ties on the Premi ses,
including, without limitation, driveways and roadways, parking
areas, signage, loading, service and storage facilities, trash
facilities and enclosures, exterior lighting facilities,
gradings, fences and landscaping (collectively, the
"Improvements") and to use the Premises and the Improvements
for the operation of a convenience store for the sale of food
and dairy products, beer and wine, cigarettes and tobacco
products, and lottery tickets. Lessor hereby grants Lessee
permission, to construct, at Lessee's expense, the
Improvements on the Premises, and to install therein, thereon
and thereunder fixtures, equipment and apparatus to be used in
connection with the operation and maintenance thereof. All
Improvements shall be constructed in accordance wi th all
applicable permits and authorizations and building and zoning
laws and with all other applicable laws, ordinances, orders,
rules, regulations, and requirements of all federal, state,
and local governments, departments and commissions. The cost
of the Improvements shall be paid for by Lessee so that the
Premises and the Improvements shall be free of liens for labor
and materials supplied to the Premises and the Improvements.
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6.2 All Improvements, other improvements, fixtures,
machinery and equipment constructed or installed on or under
the Premises by Lessee shall be and remain the property of
Lessee during the term of the Lease and thereafter. Within
thirty (30) days after expiration or sooner termination of the
Lease in accordance herewith, Lessee shall remove its modular
convenience store (including the slab on which it is located),
and all fixtures, machinery and equipment therein, and all
signage, storage and trash facilities, and exterior lighting
constructed or installed on the Premises by Lessee. Lessee,
at Lessee's expense, may install lighting poles on the
Premises, which poles shall be and remain the property of
Lessee during the term of the Lease and thereafter, and,
within thirty (30) days after expiration or sooner termination
of the Lease in accordance herewith, Lessee shall remove such
poles.
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6.3 Notwithstanding anything to the contrary herein, in
the event that Lessee has not obtained all permits and
authorizations of all federal, state, county and municipal
agencies and authorities having jurisdiction to enable Lessee
to commence and complete construction of the Improvements by
the expiration of the Inspection Period, Lessee shall have the
option to terminate this Lease by giving to Lessor written
notice of such termination within tcn (10) days aftcr the
expiration of the Inspection Period, In which event all
rights, obligations and liabilities of the parties under this
Lease shall terminate.
7. LESSEE'S COVENANTS. Lessee covenants and agrees:
7.1 To use all reasonable care to prevent waste, damage,
or injury to the Premises;
7.2 To comply, at Lessee's expense, with all valid
ordinances, rules, regulations, requirements, laws and orders
of any municipal or other governmental authority applicable to
the operation of Lessee's business at the Premises (provided,
however, that Lessee shall have the right to contest, by
appropriate proceedings diligently conducted in good faith, in
the name of Lessee or Lessor (if legally required), the
validity or application of any such law, ordinance, order,
rule, regulation or requirement, and, if by the terms of such
law, ordinance order, rule, regulation or requirement,
compliance therewi th may legally be delayed pending the
prosecution of any such proceeding, Lessee may d~lay
compliance therewith until the final determination of such
proceeding; and provided further that Lessor shall execute and
deliver any appropriate documents or instrument which may be
necessary or proper to permit Lessee to contest the validity
or application of such law, ordinance, order, rule, regulation
or requirement and shall cooperate with Lessee in such
contest);
7.3 To comply with all requirements of the insurance
underwriting board or insurance inspection bureau having
jurisdiction, and the requirements of all policies of hazard
insurance maintained by Lessee, with respect to the Premises;
7.4 To pay for all water, gas, heat, air conditioning,
light, power, sewer, telephone and all other utilities and
services used by Lessee at the Premises.
8. LESSOR'S WARRANTIES AND COVENANTS.
covenants and agrees to and with Lessee that:
Lessor warrants,
8.1 Lessor has good and marketable fee simple title to
the Premises, free and clear of all leases, tenancies, liens,
and encumbrances that may affect the rights granted Lessee
under this Lease;
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8.2 No part of the Premises has been dedicated and
Lessor has not agreed to dedicate any part of the Premises for
any public or private use;
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8.3 Lessor will join in and/or grant to utility
companies easements over, under and upon the Premises for the
installation and furnishing of utility services to the
Premises, provided that the location of such easements will
not interfere with the proposed site of the Improvements to be
located on the Premises;
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8.4 Lessor will make or join in any applications for
permits or authorizations relating to the construction of the
Improvements and/or required for the operation of Lessee's
business on the Premises, provided that Lessee shall bear the
cost and expense therefor.
9. OUIET ENJOYMENT. Upon payment by Lesse8 of the rent
provided herein, and upon the observance and performance of all
terms, provisions, covenants and conditions on Lessee's part to be
observed and performed hereunder, Lessor covenants and agrees that
Lessee shall peaceably and quietly have, hold and enjoy the
Premises for the term of the Lease, without hindrance or
interruption from Lessor or any person or enti ty claiming by,
through or under Lessor.
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10. MAINTENANCE AND REPAIRS. Throughout the term of the
Lease, Lessee shall, subject to reasonable wear and tear keep and
maintain the Premises and the, improvements thereon in a good state
of repair and in a clean and'sanitary condition.
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11.
TAXES AND INSURANCE.
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11.1 Taxes.
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11.1.1. Lessee shall pay all real and personal
property taxes, general and special assessments, use or
sales taxes, and other charges levied on or assessed
against the Premises, the improvements located on the
Premises, and personal property located on or in the
Premises or the improvements thereon, which are payable
with respect to the period commencing on the Rent
Commencement Date and ending on the expiration or sooner
termination of the term of this Lease. Lessee shall make
all such payments directly to the charging authority
before delinquency; provided, however, that Lessee may
contest the validity or amount of any taxes, assessments
or charges for which Lessee is responsible under this
Lease and may insti tute such proceedings (in Lessor's
name if required, in which case Lessor shall execute and
deliver all such documents and instruments and shall take
any and all such other action as shall be necessary or
proper to permi t Lessee to br ing such proceedings),
including certiorari proceedings and appeals from orders,
judgments and decrees, as Lessee shall deem necessary or
desirable. If Lessee contests any such tax, assessment,
or charge, Lessee may withhold or defer payment or pay
under protest any such tax, assessment or charge,
provided that such contest does not result in the sale of
tax certificates for the Premises or forfeiture or loss
of the Premises. In the event of any refunds or rebates
on account of taxes paid by Lessee hereunder, such refund
or rebate shall belong to Lessee, and, if received by
Lessor, Lessor shall receive the same in trus t and
promptly pay such amounts to Lessee. If payment of any
tax, assessment or charge is permi t ted to be made in
installments, Lessee may, at its option, pay such tax,
assessment or charge in installments before delinquency.
All payments of taxes and assessments shall be prorated
for the term of the Lease.
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11.1.2 Upon request of Lessor, Lessee shall furnish
to Lessor proof of payment of the taxes for which it is
responsible hereunder. Lessor shall furnish to Lessee,
promptly upon its receipt thereof, a copy of all tax
bills, notices of assessments, notices of increase, or
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other similar correspondence or bills relating to the
Premises. Lessee may make suitable arrangements with the
taxing authorities for the mailing or sending of bills
and notices directly to Lessee.
11.1.3 In the event that during the term of this
Lease the Premises are not separately assessed but are
assessed as part of a larger tract of land, then Lessor
and Lessee shall apportion any and all taxes, assessments
and charges. Lessee's proportionate share of any such
taxes, assessments and charges shall be determined by
mul tiplying the amount of such taxes, assessments and
charges by the fraction, the numerator of which shall be
the acreage content of the Premises, and the denominator
of which shall be the acreage cOlllent 01 all the property
covered by the tax, assessment or charge. Prior to the
calculation of Lessee's proportionate share, the amount
of such tax, assessment or charge shall be reduced by (i)
the portion thereof' which is attributable to any building
or improvement erected on such larger tract (except the
Premises), for which portions Lessor shall be solely
responsible, and (ii) the portion of the tax, assessment
or charge which is attributable to the Improvements, for
which portion Lessee shall be solely responsible.
11.1.4 Nothing herein shall be construed to require
Lessee to pay (i) any income, gross receipts or similar
tax assessed on or in respect of income of Lessor or
chargeable to or payable by Lessor, (i i) any capi tal
levy, estate, succession, inheritance, transfer or
similar tax assessed or payable by reason of any
inheritance, devise, or transfer of any estate or
property of Lessor, including but not 1 imi ted to any
interest in the Premises or the rent payable hereunder,
or {iii} any corporation or other franchise, license,
mercantile or similar tax assessed against or payable by
Lessor other than with respect to the use or occupancy of
the Premises by Lessee or any sublessee.
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11.2 Insurance. Throughout the term of this Lease, and
any extension or renewal hereof, Lessee shall, at Lessee's
cost and expense, maintain the following insurance:
11.2.1
Improvements
value;
Fire and extended coverage insurance on the
in the amount of their full replacement
11.2.2 Public liability insurance against any
claims for bodily injury, death or property damage
occurring on, in or about the Premises or the
Improvements, with combined single limits of not less
than $1,000,000.00 in respect of injuries to or death of
one or more persons and damage to property In anyone
occurrence, including product liability;
11.2.3 Any other insurance coverage required by law
to be maintained in connection with the Premises,
Lessee's business or Lessee's use of the Premises.
The insurance policies described in this paragraph shall be writLen
by reputable insurance companies authorized to do business in the
state of Florida. All policies of insurance described in Section
11.2.1 shall name Lessee as the insured. All policies of insurance
described in Section 11.2.2 shall name Lessee and Lessor as the
insureds, as their respective interests may appear. Lessee shall
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furnish to Lessor appropriate certificates from the insurer (s)
showing that the insurance coverage referred to above are in force,
and evidence that the premiums have been paid by Lessee. Nothing
herein shall preclude Lessee from taking out insurance of the kinds
required by this Section 11.2 under a blanket insurance policy or
policies maintained by Lessee with respect to other property owned
or leased by Lessee, as well as the Premises and the Improvements.
Lessee shall, to the extent permitted by law, have the right to
self insure with respect to all workers' compensation liabilities.
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12. CASUALTY DAMAGE. Lessor agrees and consents that (i)
all losses under insurance policies provided for in Section 11.2.1
shall be adjusted with the insurance company by Lessee and (ii) all
insurance proceeds with respect to casualty damage to the
improvements on the Premises, for damage or destruction to the
contents of any improvements located on the Premises, and for
interruption of Lessee's business operations on the Premises shall
be payable and paid by the inpurance company directly and solely to
Lessee and not solely or jointly to Lessor, and Lessor hereby
directs the insurance company insuring Lessee with respect to such
casualty damage to pay the proceeds with respect thereto directly
and solely to Lessee, and no further authorization of Lessor shall
be required by the insurance company to do so. If Lessor receives
any proceeds of insurance relating to casual ty damage to the
improvements on the Premises, or the contents thereof, or for
interruption of Lessee's business operations on the Premises,
Lessor shall receive the same in trust for Lessee and shall
forthwith turn over to Lessee all such proceeds of insurance. Rent
hereunder shall not abate during the period in which the
improvements on the Premises are untenantable.
13. EMINENT DOMAIN. If (i) all of the Premises shall be
taken by any governmental body under the exercise of eminent domain
or by agreement with such governmental body in lieu of a taking, or
(ii) a portion of the land comprising the Premises and/or the
improvements located thereon (including, without limitation, the
area used for access or parking) shall be so taken such that the
remainder would, in Lessee's judgment, be inadequate or unsuitable
for the continued use of the Premises for the purpose then used,
then the term of this Lease shall termina te as 0 f the da te
possession of the Premises or portion thereof shall be taken, and
the rent shall be adjusted as of the time of such termination and
any rent paid for a period thereafter shall be returned to Lessee.
If only a part of the Premises shall be taken, and, in Lessee's
judgment, the remainder of the Premises are adequate and suitable
for the continued use of the Premises for the purpose then used
(including for access and parking), this Lease shall terminate as
to the portion of the Premises taken, and, unless the Lease shall
be terminated as hereinafter provided, it shall continue in full
force and effect as to the remainder of the Premises and the Base
Annual Rent shall be reduced in proportion to the amount of the
Premises taken. If the remainder of the Premises cannot be or is
not made tenantable for the purposes for which Lessee has been
using the Premises within thirty (30) days after a partial taking,
Lessee may terminate the term of this Lease effective as of the
date possession is taken. If, in the event of a partial taking,
the term of this Lease is not terminated as to the remainder of the
Premises, Lessee shall promptly cause all repairs and alterations
to the improvements on the Premises necessary to make the
improvements tenantable to be made. Both Lessor and Lessee shall
have the right to claim against and recover from the taking
authority the value of their respective interests taken; provided
that Lessor shall be entitled to the value of the lands taken and
severance damages. Lessee shall be entitled to claim for business
damages, if any, and for any improvements taken, including for
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repair, restoration, or replacement of the improvements. Lessee
shall have no right to apportionment of Lessor's recovery for the
value of the lands taken or severance damages.
14. ZONING; OPERATION OF LESSEE'S BUSINESS. Lessor agrees
that it will not apply for or consent to any modification of the
current zoning classification applicable to the Prem~ses which
would prevent or interfere with Lessee's use of the Premises for
operation of a convenience food store, including the sale of beer
and wine for off-premises consumption, the sale of lottery tickets
and the sale of food products, and tobacco products. Les~ec shall
have the right (but not the obligation) to contest any change in
zoning of the Premises which would impair Lessee's use of the
Premises for the aforestated purposes. If the zoning of the
Premises is changed, or any law, regulation, rule, or ordinance is
enacted, or any other condition or state of facts shall occur, and
the effect of the foregoing is to preclude Lessee from using the
Premises for any of the aforestated purposes seven (7) days a week,
the rent hereunder shall abate as of the date such prohibition
becomes effective and Lessee shall have the right to terminate this
Lease.
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15. NON-COMPETE. During the term of this Lease, and any
extensions or renewals thereof, and so long as Lessee is conducting
the business of a convenience food store on the Premises, neither
Lessor nor any of its affiliates shall (i) engage in any activity
directly or indirectly competi ti ve wi th the convenience store
business of Lessee, or (ii) lease any other space to any tenant or
tenants engaging in the convenience store or the grocery store
business ( collectively, the "Restricted E:n l:crpr isc~i" ), ill cacll ca ~:3C
;.at a location within two (2) miles (in any direction) from the
Premises, and with respect to the grocery store business, operating
in premises of less than 10,000 square feet of usable space.
Lessor agrees that any violation of the provisions of this
paragraph would cause irreparable harm to Lessee and that such harm
cannot be adequately compensated in money damages. I f Lessor
breac~es its agreements set forth in the paragraph, in addition to
any other rights and remedies Lessee may have at law or in equity,
Lessee, at its option, and without waiving its right to pursue any
or all of the following or any other remedies simultaneously or in
any order it elects, (a) shall be entitled to injunctive relief
against ~essor, and (b) may terminate this Lease if Lessor fails to
cure such breach within thirty (30) days after Lessee gives Lessor
written notice thereof. Lessee shall not be liable for payment of
any rental under this Lease during the continuance of Lessor I s
breach hereunder, and all rental hereunder shall abate during such
period. Lessor shall be liable to Lessee for all losses, damages,
costs and expenses, including reasonable attorneys' fees, incurred
by Lessee in connection with Lessor's breach of its agreement set
forth in this paragraph, including, without limitation, the cost of
enforcement thereof and loss of goodwill, loss of profits and loss
of customers. The invalidity of anyone or more of the words,
phrases, sentences or clauses contained in this paragraph shall not
affect the enforceability of the remaining portions of this
paragraph. If one or more of the words, phrases, sentences or
clauses contained in this paragraph shall be invalid, this
paragraph shall be construed as if such invalid word, phrase,
sentence or clause had not been inserted, and if such invalidity
shall be caused by the length of any period of time, the size of
any area, or the service or product limitations set forth in this
paragraph, such period of time, or size of area, or such product or
service limitations shall, without need of further action by any
party hereto, be deemed to be reduced to a period, area, serv:ce or
product which will cure such invalidity, and shall thereafter be
enforceable to the fullest extent permitted by law.
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16. TRADEMARKS OF LESSEE. Lessor acknowledges that Lessee
uses certain trade names, trademarks, service marks, and logos,
including the name "Farm Stores," and that Lessor has no right,
title or interest therein. Lessor agrees that Lessor (i) shall not
contest, directly or indirectly, Lessee's exclusive right to use
such trade names, trademarks, service marks and logos a t the
Premises, (ii) shall permit Lessee to remove from the Premises at
any time any signage or other property on which any such trade
names, trademarks, service marks or logos appear, and (iii) shall
expressly prohibit, in any subsequent lease of the Premises to any
tenant other than Lessee or an affiliate of Lessee, the use of any
of Lessee's trade names, trademarks, service marks or logos. The
provisions of this paragraph shall survive the termination of this
Lease.
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17. ALTERATIONS: TRADE FIXTURES; SIGNS. Lessee may, at its
own expense, make such alterations, additional changes and
improvements to the Premises or the improvements thereon, including
removal and replacement of improvements, as it deems necessary or
desirable. All trade fixtures, inventory and equipment, including,
but not limited to, shelving, ice cream and meat cabinets, cases,
refrigeration equipment, walk-in coolers, signs, panels and
decorative materials, and specially designed equipment shall remain
the property of Lessee (notwi thstanding tha t anyone of the
foregoing may be affixed to the real property or the improvements
thereon) and Lessee shall have the right to remove the same upon
termination of this Lease. Lessee shall have the right to install,
at Lessee's expense, exterior signs, including facia signs on the
improvements and pylon signs at any location on the Premises, in
accordance with applicable law. Lessee shall, at Lessee's expense,
remove all of its signs upon expiration of this Lease and repair
any damage resulting therefrom. If Lessee does not install pylon
signs at the Premises, Lessor shall include Lessee's name (in the
type and design designated by Lessee) on the community signs for
businesses located adjacent to the Premises. Lessor hereby walves
any lien, statutory, contractual, or otherwise, for rent.
18. ENTRY. Lessor, or its authorized agents, may enter the
Premises during daytime business hours for the purpose of
exhibiting them to prospective tenants within sixty (60) days prior
to the expiration of the term of the Lease.
19. ASSIGNMENT OR SUBLETTING. Lessee may assign this Lease
or sublet all or part of the Premises or mortgage or encumber its
leasehold interest in the Premises with the prior written consent
of Lessor, which consent will not be unreasonably wi thheld or
delayed. The merger or consolidation of Lessee with another entity
or the sale of substantially all of the assets of Lessee shall not
constitute an assignment or subletting within the meaning of this
paragraph, and shall be permitted without prior notice to or
consent of Lessor.
20. LESSEE'S DEFAULT.
20.1 If Lessee shall materially breach any of the terms
or provisions of this Lease, other than the requirement to pay
rent, Lessor shall promptly so notify Lessee in writing
specifying the breach. If Lessee shall fail to cure such
breach within thirty (30) days after receipt of such notice,
or if the breach is of such a character as to require more
than thirty (30) days to cure and Lessee shall fail to
commence to do so within thirty (30) days after receipt of
such notice and thereafter diligently proceed to cure such
breach, then, in either such event, Lessor may cure such
breach. In the event Lessor incurs any expense in curing
10
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Lessee's breach hereunder, the reasonable expense of curing
same shall be considered additional rent and Lessee shall
reimburse Lessor therefor within twenty (20) days of Lessee's
receipt of an invoice for such expense. If Lessee fails to
reimburse Lessor in full within twenty (20) days after
Lessor's demand therefor, the amount due to Lessor under such
invoice shall bear interest at the maximum rate permitted by
law until repaid in full.
20.2 If Lessee shall default in the payment of any rent
due hereunder, Lessor shall give written notice to Lessee of
its default, and if Lessee has not cured the default within
ten (10) days of Lessee's receipt of the notice, Lessor, ln
addition to all other rights and remedies available to Lessor
under the laws of Florida, may exercise anyone or more of the
following options:
20.2.1 Terminate the term of this Lease upon thirty
(30) days' written notice to Lessee, in which event
Lessee shall quit and surrender the Premises to Lessor.
If the term of the Lease shall be so terminated, Lessor
may, at the expiration of such thirty day period, or any
time thereafter, enter upon and possess the Premises and
remove all persons and property therefrom. Termination
under this paragraph shall not relieve Lessee from the
payment of any previously accrued sums due to Lessor; or
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20.2.2 Enter upon the Premises, without terminating
the Lease, and re-Iet the Premises for the account of
Lessee, and apply the rental received by Lessor in re-
letting the Premises to the payment of rent due
hereunder; provided that Lessee shall have the right to
remove all of its property, including the Improvements,
as set forth in Section 6. I f the amount of ren t
received by Lessor is more than the amount payable by
Lessee hereunder, Lessor shall pay the difference to
Lessee, and if the amount of rent received by Lessor is
less than the amount payable by Lessee hereunder, Lessee
shall pay the deficiency to Lessor.
All rights and remedies granted Lessor by this Lease are cumulative
to each. other, and Lessor's pursuit of any particular right or
remedy, or any combination, shall not constitute an election of
remedies, or a waiver of any right or remedy otherwise available,
unless such election or waiver is expressly stated by Lessor in
writing. Any consent or waiver of an event of default by Lessor
shall not constitute consent to, or waiver of, any right, remedy or
power of Lessor upon the same or a subsequent event of default.
21. LESSOR'S DEFAULT. In the event that Lessor shall be in
default under any of its obligations or agreements set forth in
this Lease, and Lessor shall fail to cure such default within
thirty (30) days after notice thereof is given by 1.essee: l.o Les so L,
or if the breach is of such a character as to require more than
thirty (30) days to cure and Lessor shall fail to commence to do so
within thirty (30) days after receipt of such notice and thereafter
diligently proceed to cure such breach, then, in either such event,
in addition to any other remedies available to Lessee at law or in
equity, Lessee may (but shall not be obligated to) cure such
default and Lessor shall, within twenty days after Lessee furnishes
Lessor with an invoice therefor, reimburse Lessee for all
reasonable expenses incurred by Lessee in curing such default, or,
at Lessee's option, Lessee may offset any rent coming due under the
Lease until Lessee is reimbursed in full. Without limiting the
generality of the foregoing, this provision shall apply to any
11
breach of Lessor's covenant of quiet enjoyment hereunder. If Lessor
fails to reimburse Lessee in full within twenty days after Lessee's
demand therefor, the amount due to Lessee shall bear interest at
the maximum rate permitted by law until repaid in full.
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22. INDEMNIFICATION. Lessee agrees to defend, indemnify, and
hold Lessor harmless from and against all liabilities, losses,
claims, demands, costs, expenses, including reasonable attorneys'
fees, arising out of (i) any injury to any person or persons, or
any loss or damage to property of any person (including any loss or
damage to the Premises) occurring on the Premises and arising or
resulting from Lessee's use or operation of the Premises during the
term of this Lease, unless caused by the willful act or negligence
of Lessor, its employees or agents, and (ii) liens against Lessor's
interest in the Premises arising as a result of the performance of
any labor or services, or the furnishing of any materials or other
property at or to the Premises furnished at the request or
instruction of Lessee.
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23. MECHANICS' LIENS. Lessee agrees that Lessee will pay all
liens of contractors, subcontractors, mechanics, laborers,
materialmen, and other i terns of like character for services or
materials furnished to the Premises at the request or instruction
of Lessee. If any lien or claim is made or filed against the
Premises as a result of services performed at or materials provided
to the Premises at the request or instruction of Lessee, Lessee
shall, within thirty (30) days after notice of such lien or claim
is served upon Lessee, or, if notice of lien is not served upon
Lessee, within thirty (30) days after Lessee learns of such claim
or lien having been filed among the public records of the county in
. which the Premises are located, cause such lien to be discharged of
record by payment, deposit, bond, order of court, or otherwise.
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Lessee shall not have any authority to create any liens for
labor or materials on Lessor's interest in the Premises and all
persons contracting with Lessee for the construction, installation,
alteration or repair of any improvements on the Premises, and all
materialmen, contractors, mechanics, and laborers are hereby
charged with notice that they must look only to Lessee and to
Lessee's interest in the Premises to secure the payment of work
done or materials furnished at the request or instruction of
Lessee, .and Lessor's interest in the Premises shall not be subj ect
to liens for repairs, maintenance or improvements made by Lessee at
the Premises. In accordance with Fla. stat. Section 713.10, Lessee
shall notify all of its contractors making improvements to the
Premises of this provision.
24. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE. This
Lease shall be subordinate to any ground lease or mortgage now or
hereafter placed on the Premises, provided that the grolJnd lessor
or mortgagee, as the case may be, shall agree, in a non-disturbance
agreement reasonably acceptable to Lessee, that so long as Lessee
is not in default under this Lease, the mortgagee or ground lessor
shall not join Lessee in any foreclosure proceeding or seek to
disturb or disturb Lessee's continued possession of the Premises
pursuant to this Lease or foreclose or attempt to foreclose
Lessee's interest in the Premises. Lessee agrees to attorn to any
of Lessor's successors under all of the terms, condi tions and
covenants of this Lease for the balance of the remaining term. The
aforesaid provisions shall be self-operative and no further
instrument of subordination or attornment shall be required to
evidence such attornment or subordination (subj ect to Lessee's
receipt of a non-disturbance agreement as set forth above).
Notwithstanding the foregoing to the contrary, Lessee covenants to
execute any further instrument reasonably requested by Lessor's
12
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mortgagee or ground lessor to evidence such attornment or
subordination, subject to Lessee's receipt of the non-disturbance
agreement described above.
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25. ESTOPPEL CERTIFICATE. Lessee agrees that from time to
time, upon not less than twenty (20) days' prior written request by
Lessor, Lessee will deliver to Lessor a written statement
certifying (i) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the Lease as
modified is in full force and effect and stating the
modifications), (ii) the dates to which the rent and other charges
have been paid, (iii) that, to Lessee's knowledge, Lessor is not in
default under any provisions of the Lease, or, if in default,
stating the nature thereof, and (iv) whether or not Lessee is in
occupancy of the Premises. Lessor agrees to furnish to Lessee from
time to time, upon not less than twenty (20) days' prior written
request by Lessee, a written statement with similar provisions as
set forth in the preceding sentence (except stating that, to
Lessor's knowledge, Lessee i's not in default under provisions of
the Lease, or if in default, stating the nature thereof).
26. RIGHT OF FIRST REFUSAL TO PURCHASE. If, during the term
of this Lease or any renewal or extension hereof, Lessor desires or
intends to sell the Premises, then, prior to listing the Premises
for sale (or if the Premises are not listed, then prior to
advertising or accepting any offer to purchase the Premises),
Lessor shall give Lessee a written notice (a "Sale Notice") stating
its intention to sell the Premises and setting forth the price and
other terms on which Lessor is willing to sell the Premises.
Lessee shall have ten (10) business days from the date it receives
'a Sale Notice to give Lessor wr it ten no t ice ((J "I\cpl y No t i cc")
stating whether Lessee desires to purchase the Premises on the
terms set forth in the Sale Notice. If Lessee timely gives Lessor
a Reply Notice stating that Lessee desires to purchase the Premises
on the terms set forth in the Sale Notice, Lessor and Lessee shall
negotiate in good faith to document the transaction within fifteen
(15) ,days thereafter and consummate the transaction in a manner
acceptable to both parties. If, notwithstanding Lessee's failure
to timely give a Reply Notice or Lessee's refusal to purchase the
Premises on the terms set forth in the Sale Notice, Lessor desires
to sell the Premises to a third party for a purchase price less
than that set forth in the Sale Notice or on other terms more
favorable to the purchaser than those included in the Sale Notice,
then Lessee's right of first opportuni ty and refusal shall be
reinstated on the same terms as first provided herein, Lessor shall
again be required to give Lessee a Sale Notice, and Lessee shall
again have a right of first opportunity and refusal with respect to
the Premises on the same terms and conditions set forth in this
paragraph.
27. OPTIONS TO EXTEND TERM. Lessee shall have and is hereby
granted options to extend the term of this Lease for two (2)
additional periods of five (5) years each (each such five year
period is referred to as a "Renewal Term"). Each option shall be
exercisable by Lessee giving wri tten notice to Lessor 0 fits
election to exercise an option at least thirty (30) days prior to
the expiration of the initial term of this Lease (with respect to
the first Renewal Term) or the expiration of the first Renewal Term
(with respect to the second Renewal Term). The Base Annual Rent
during each Renewal Term shall be adjusted on the first month of
each five (5) year Renewal Term, if applicable, in accordance with
the changes in the CPl. The Base Annual Rent applicable to each
Renewal Term shall be adjusted in accordance with the following
provisions:
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27.1 The CPI for the month which is three months prior
to the Commencement Date shall be designated the Base Price
Index.
27.2 The CPI for the month which
to the first month of the Renewal Term
adjusted Base Annual Rent is being
designated the Comparison Price Index.
is three months prior
with respect to which
calculated shall be
27.3 Promptly after the end of the initial term and at
the commencement of each Renewal Term thereafter (provided
that the Lessee exercises its option to extend the term of the
Lease for such Renewal Term), the Base Annual Rent shall be
adjusted to equal the result obtained by multiplying the Base
Annual Rent in effect on the Commencement Date (the "Old BAR")
by a fraction, the numerator of which is the Comparison Price
Index and the denominator of which is the Base Price Index.
Written as an equation, this computation is as follows:
Old BAR x Comparison Price Index ~ New Base Annual Rent
Base Price Index
27.4 No adjustment of Base Annual Rent for a Renewal
Term shall reduce the Base Annual Rent below the Base Annual
Rent in effect immediately prior to such Renewal Term.
28. SURRENDER OF PREMISES. Lessee shall, upon expiration of
the term of the Lease, or earlier termination of the Lease, and
subject to Section 6 of this Lease, surrender and deliver the
Premises to Lessor in the condi tion which Lessee has agreed to
:maintain the Premises pursuant to the provisions of this Lease,
reasonable wear and tear and damage by fire or the elements or
other causes beyond Lessee's control excepted.
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29. SHORT FORM LEASE. This Lease shall not be recorded, but,
if requested by either party hereto, Lessor and Lessee agree to
execute a short form of lease which Lessor and Lessee agree shall
be in a form and executed in a manner sufficient to enable it to be
recorded in the public records of the county where the Premises are
located, and either party may so record it.
30~ RIGHT TO CANCEL. Provided that Lessee is not then ln
default under this Lease, Lessee shall have the option to cancel
this Lease at any time after the Commencement Date. Lessee 1 s
option to cancel shall be exercised only by giving Lessor written
notice thereof at least thirty (30) days prior to the effective
date of cancellation set forth in Les see's not ice (the
"Cancellation Date"). If Lessee exercises its option to cancel
this Lease, Lessee shall pay to Landlord, simultaneously with the
gi ving of Lessee's notice exercising its option to cancel, a
cancellation fee in the amount of $15,000.00 (the "Cancellation
Fee"), and all of Lessee's obligations under this lease shall
terminate as of the Cancellation Date, provided that Lessee shall
remove all of its improvements in accordance with Sectlon 6.2 of
this Lease. Lessee's right to cancel in accordance wi th the
provisions of this paragraph shall be in addition to Lessee's other
rights of termination as set forth in this Lease, with respect to
which no Cancellation Fee shall be payable.
31. REAL ESTATE COMMISSIONS. Lessor and Lessee represent and
warrant to each other that, except for Merin-Hunter-Codman, which
has been engaged by Lessor and whose commission Lessor is
responsible to pay, they have not engaged any broker or finder in
connection with this Lease, and each agrees to indemnify and hold
14
the other harmless from and against any and all claims for
brokerage commissions by any broker or finder claiming by, through
or under it.
32. NOTICES. All notices required or permitted by this Lease
shall be in writing and shall be deemed given (i) upon hand
delivery, or (ii) three days after deposited in the United States
certified mail, return receipt requested, in each case properly
addressed to the party for whom intended at the address set forth
below, or such other address as is most recently noticed in the
aforesaid manner:
If to Lessee: REWJB Investments
5800 N.W. 74th Avenue
Miami, Florida 33166
Attn: Marc S. Feller
If to Lessor: Walter Dutch, as Trustee
of the Walter Dutch Trust
240 Southland ~e-e-t- \~ (-:>
Palm Beach, Florida 33480
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33. RADON GAS. Pursuant to Florida Statutes, Lessor hereby
notifies Lessee as follows:
"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 public health unit."
34. ENTIRE AGREEMENT; AMENDMENTS. This Lease contains the
entire agreement between the parties hereto and supersedes all
previous negotiations, agreements and understandings with respect
thereto. This Lease may be modified only by an agreement signed by
the party against whom enforcement is sought.
35: SUCCESSORS AND ASSIGNS. The terms, covenants, conditions
and agreements herein contained and as the same may from time to
time hereafter be supplemented, modified or amended, shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors, legal and personal representatives and
assigns.
36. APPLICABLE LAW; VENUE. This Lease shall be governed by
and construed in accordance with the laws of the State of Florida
exclusive of its conflict-of-laws principles. The parties agree
that Palm Beach County, Florida shall be the proper venue for any
suit arising out of this Lease.
37. HEADINGS. The headings in this Lease are for convenience
of reference only and shall not be considered in construing the
provisions of this Lease.
38. SEVERABILITY. If any term, provision, covenant or
condition of this Lease or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable,
such provisions or portions thereof shall be deemed stricken and
severed from this Lease, and the remaining provisions and portions
hereof shall continue in full force and effect and shall not be
affected thereby, and each term, provision, covenant and condition
15
of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
39. COUNTERPARTS. This Lease may be executed In
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
40. WAIVER. The failure of Lessor or Lessee to insist in any
one or more instances upon the strict performance of anyone or
more of the covenants, terms and agreements of this Lease, shall
not be construed as a waiver of such covenants, terms or
agreements, but the same shall continue in full force and effect,
and no waiver by the Lessor or Lessee of any of the provisions
hereof shall in any event be deemed to have been made (by
acceptance of rent or otherwise) unless the same be expressed in
writing, signed by the party against whom enforcement lS sought.
41. ATTORNEYS' FEES. The prevailing party shall be entitled
to recover its reasonable attorneys' fees and costs in any action
brought to enforce any rights or remedies under this Lease. The
term attorneys' fees shall include attorneys' fees and paralegals'
fees and disbursements incurred at trial, pre-trial and post-trial,
on appeal, and in any investigative, administrative, insolvency,
and bankruptcy proceedings.
42. FORCE MAJEURE. Neither Lessee nor Lessor shall not be in
default under this Lease if its performance is delayed or prevented
by or due to strikes, lockouts, inabili ty to obtain labor and
materials on the open market, war, riots, unusual weather
conditions, acts of God and other similar causes beyond its
reasonable control, and the time within which Lessee or Lessor must
comply with any of the terms I covenants and condi t ions 0 f thi s
Lease shall be extended by a period of time equal to the period of
time that performance by Lessee or Lessor, as the case may be, is
delayed or prevented by a cause specified above.
43. NO DELAY OR WITHHOLDING. No approval or consent of
Lessor which is required by any provision of this Lease shall be
unreasonably delayed or withheld, unless expressly stated to the
contrary herein.
44.- CAPACITY. Lessor represents and warrants that (i) Lessor
has full legal capacity to enter into and perform this Agreement,
(ii) Lessor has been duly advised by counsel of Lessor's choice in
the negotiation of this Lease, and (iii) Lessor has had this Lease
fully explained and understands the risks and bene fits hereof.
This Lease has been prepared and negotiated by both parties hereto
and their respective counsel, and shall not be construed more
strictly against one party on the basis of a claim that such party
drafted this Lease or otherwise.
45. HAZARDOUS MATERIALS. Lessee agrees that (i) it will
keep or cause the Premises to be kept free of Hazardous Materials
(as defined below) except to the extent that such Hazardous
Materials are stored and/or used in compliance wi th applicable
federal, state and local laws, ordinances, rules, regulations and
policies, and (ii) it will not cause or permit the Premises to be
used to generate, manufacture, refine, transport, treat, dispose
of, transfer, produce or process Hazardous Materj.als, except in
accordance wi th applicable federal, state and local laws,
ordinances, rules, regulations and policies. Lessee agrees to
indemnify and hold harmless Lessor from any and all claims,
judgments, damages, penalties, fines, costs, liabilities and
losses, including, without limitation, reasonable attorneys' fees
and disbursements and cost of clean-up, remedial, removal, and
16
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restoration work required by any governmental agency, incurred by
Lessor and resulting from a breach of Lessee's agreements set forth
in the preceding sentence. "Hazardous Materials" shall include,
without limitation, asbestos, polychlorinated biphenals, petroleum
products, any flammable explosives, radioactive materials,
hazardous waste, hazardous materials, hazardous or toxic substance
or related materials defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U. S. C. ~9601, et seq.), the Resource Conserv(J Uon (lIlcl I{CCOVC ry !\c L,
as Amended (42 U.S.A. ~6901, et seq.), the Toxic Substances Control
Act, as amended (15 U.S.A. ~2601, et seq.), Clnd ill the .::egulaLions
adopted and publications promulgated pursuant thereto, and any
applicable state and local laws.
46. SECURITY DEPOSIT. On the Commencement Date, Lessee
shall deposit with Lessor the sum of Three Thousand Seven Hundred
Fifty Dollars ($3,750.00) as a security deposit to secure the
performance by Lessee of all of its obligations under this Lease.
Lessor shall return the security deposit to Lessee within ten (10)
days after the expiration of this Lease (or any renewal or
extension hereof) or its prior termination in accordance herewith,
provided that Lessee has fully performed all of its obligations
hereunder. Lessor shall have the right to deduct from the security
deposit returned to Lessee any amounts required to reimburse Lessor
for any expense or cost incurred by Lessor in order to perform any
obligations of Lessee hereunder which are not performed by Lessee.
Lessor shall not be obligated to keep the security deposit in a
segregated account or to pay Lessee interest thereon.
47. WAIVER OF JURY TRIAL. LESSEE AND LESSOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY lUG!!T E:ITljSR OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE
AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LESSEE TO ENTER INTO
THIS LEASE.
IN WITNESS WHEREOF, the parties hereto have execu ted thi s
Lease for the purposes expressed herein, the day and year above
written..
WITNESSES:
LESSEE:
REWJB INVESTMENTS, a Florida
general partnership
By: F.S. STORE.S, INC.,
a Florid oration
By:
President
LESSOR:
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Walter Dutch; as Trustee of
The Walter Dutch Trust
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