EXHIBIT 10.16
COMMERCIAL LEASE AGREEMENT
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THIS AGREEMENT is made this 4th day of April,
0000,xxxxxxx Xxxxxxx Xxxxxxxx (Xxxxxxxx) and Bootie Beer Co. (Tenant).
1. Premises. Landlord leases to Tenant and Tenant leases from Landlord
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the premises located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx, XX 00000, Orange
County, Florida.
2. Use. Tenant shall use and occupy the premises only for office. See
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paragraph 11.2.
3. Term. The term of this Lease is for 1 year, beginning May 1, 2004, and
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ending April 30, 2005 at midnight.
4. Renewal Term. Tenant has option to renew annually, at no
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more than 10% increase of rental amount.
5 Rent
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5.1 Term. Tenant shall pay the sum of $27,500.00 as total base rent for
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the initial term,
payable in monthly installments of $2,500.00. All rent shall be due promptly on
the first day of each month in advance
(see paragraph 5.2). Landlord acknowledges receipt of the following sums:
(a) First Month's Rent, due for June 1-30, May is free $2,500.00
(b) Sales Tax $150.00
(c) Last Month's Rent $0.00
(d) Security Deposit $0.00
TOTAL $2,650.00
5.2 Sales Tax. Tenant shall pay Landlord the State of Florida Sales Tax
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at the time each monthly payment is due. Tenant shall also pay any sales tax
required by law to be paid on all considerations due; and payable hereunder for
the privilege of occupancy.
5.3 Real Estate Taxes. Tenant shall pay the real
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estate taxes each year within 30 days after notice from Landlord specifying the
amount due. The taxes for the last year of the term shall be prorated. Taxes for
the first and second year's lease shall be paid by the landlord.
5.4 Late Charges. Tenant shall pay a service charge of
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$150.00 if any rent is not paid within five (5) days of the due date or if any
rent check is returned for insufficient funds or dishonored for any other
reason. If 2 or more checks are dishonored during any twelve-month period,
Landlord may require that future rent payments be made by official check,
cashier's check or money order.
5.5 Increased Security Deposit. If Tenant is in
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default more than 2 times within any twelve -month period, regardless of whether
such default is cured, then, without limiting Landlord's other rights and
remedies, the security deposit, if any, shall automatically be increased to two
times the original security deposit. Tenant shall make the additional security
deposit within 10 days after Landlord's demand therefor.
5.6 Partial Month. If this lease begins on a day other than the
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first day of a calendar month or ends on a day other than the last day of a
calendar month, then rent for the fractional month shall be prorated.
6. Place of Payment; Notices.
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6.1 Tenant shall pay the rent and
shall forward all required notices to Landlord at the following address (or at
such other places as landlord may later designate in writing):
Xx. Xxxxxxx Xxxxxxxx XX Xxx 000 Xxxxxx Xxxx,
XX 00000
6.2 Landlord shall forward all required
notices to Tenant at the following address (or at such other places as Tenant
may later designate in writing):
000 Xxxxxxx Xxx., Xxxxxx Xxxx, XX 00000
6.3 All required notices shall be in
writing and hand delivered or sent by U.S. Mail, Return Receipt Requested.
7. No AssignmentWithout Consent.
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7.1 Tenant shall not assign this Lease nor sublet the premises without
first having obtained the written consent of Landlord. If Tenant is a
corporation, partnership, or trust, any transfer of ownership interest of 50% or
more of ownership interest shall constitute an assignment or subletting
requiring Landlord's consent. Landlord's granting of consent shall be based on
the test of good faith and commercial reasonableness. Landlord shall be entitled
to consider the following factors in determining whether the proposed assignment
or subletting is reasonable: (a) the financial responsibility and business
experience of the proposed new tenant; (b) the suitability of the premises for
the character of the business of the proposed new tenant; (c) the need for any
alteration of the premises; (d) the legality of the proposed use; (e) the nature
of the proposed occupancy (such as office, factory, or clinic); (f) the delivery
of a written offer between Tenant and the proposed new tenant containing all
terms of the contemplated transaction; (g) delivery of a financial statement of
the proposed new tenant; (h) individual guarantees to Landlord by the principals
of the proposed new tenant; (i) any increase in parking requirements over that
of Tenant; and (j) payment of Landlord's reasonable attorney's fees incurred as
a result of the proposed transaction.
7.2 The consent by Landlord to an
assignment, subletting or transfer on any one occasion shall not operate to
waive Landlord's rights of approval on subsequent occasions.
7.3 No consent by the Landlord to an
assignment, subletting or transfer shall operate to release the assignor,
sublessor, or transferor from liability. Landlord may require any assignee or
sublessee to assume personal liability under the Lease without affecting the
foregoing.
7.4 Any assignment rights
arising under federal bankruptcy law are set forth in paragraph 21.
8. Alterations. Tenant shall not make any alterations on the
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premises without first having obtained
the written consent of Landlord.
9. The Ownership of Improvements. All additions, fixtures, or permanent
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improvements (or replacements
of any of them) made or installed by Tenant shall become the property of
Landlord; shall remain upon the premises; and shall
be surrendered with the premises at the termination of this Lease.
10. Liability as to Personal Property. All personal property
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placed in the premises shall be at the risk of the Tenant or owner. Landlord
shall not be liable for any damage, loss or theft of such personal property.
Landlord shall not be liable for any act of negligence of any co-tenant or
occupants of the premises or any other persons.
11. Governmental Regulation.
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11.1 Tenant shall promptly comply with all statutes,
ordinances, rules, orders, regulations and other requirements of federal, state
and city governments having jurisdiction over the premises. Such compliance
includes the correction, prevention, and abatement of nuisances or other
grievances, in, upon or connected with the premises.
11.2 Tenant must determine that Tenant's intended use of the premises is allowed
under current zoning and occupational license rules and regulations. Landlord
shall not be liable for any damages or expenses incurred by Tenant if Tenant is
not allowed to occupy or use the premises for the purposes intended because of
governmental regulations.
12. Casualty Damage.
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12.1 If the premises shall be destroyed or damaged by fire or other casualty
whereby the premises shall be rendered untenantable, then I Landlord shall have
the right, but not the obligation, to render the premises tenantable by repairs
within ninety (90) days from the date of the casualty. If Landlord elects to
repair, the rent shall be reduced in an amount corresponding with the time
during which and the extent to which the promises have not been tenantable.
12.2 If the premises are not rendered tenantable within the time stated above,
either party may cancel this Lease by giving written notice to the other party
and upon such cancellation the rent shall be paid only to the date that the
cancellation notice is given or, if Tenant has remained in possession after the
notice was given, to the date Tenant vacates.
13. Default.
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13.1 The term "rent" means and includes all sums due to Landlord from Tenant
under this Lease. Landlord is relying upon Tenant's prompt payment of the rent
when due and Tenant's faithful performance of the agreements set forth in this
Lease.
13.2 Upon a Tenant default, Landlord may declare the entire rent for
remainder of the term (as reduced to present value) due and payable.
13.3 The happening of any one or more of the following listed events
(hereafter referred to singularly as "Event of Default" and plurally as "Events
of Default") shall constitute a breach of this lease agreement by Tenant:
(a) The failure of Tenant to pay any rent within fifteen
(15) days after the due date.
(b) The failure of Tenant to
perform any substantial covenant under this Lease (other than payment of rent)
within thirty (30) days after receipt of written notice from Landlord specifying
the required performance.
(c) The appointment of a
receiver, trustee, or other custodian of the property, assets or business of
Tenant, except an appointment made because of the temporary illness or death of
Tenant and except an appointment made under the federal bankruptcy law.
(d) The assignment by Tenant of all or
any part of its property or assets for the benefit of creditors.
(e) The levy of execution, attachment
or other taking of property, assets, or the leasehold interest of Tenant by
process of law or otherwise in satisfaction of any judgment, debt or claim.
(f) The insolvency of Tenant arising
before any petition in bankruptcy under federal law.
(g) The absence of Tenant from the
premises for a period in excess of 30 days (herein deemed an abandonment).
13.4 Upon the happening of any Event of Default, Landlord, at Landlord's
sole election, may:
(a) Terminate the term of the lease
agreement; or
(b) Terminate Tenant's right to possession
and occupancy of the Premises without terminating the term of the lease; or
(c) Pursue any remedies provided by
law for the repossession of the Premises and the collection of rent (or other
sums due Landlord).
13.5 Upon a default in the payment of rent, the Tenant expressly waives
Landlord's compliance with Section 83.20(2), Florida Statutes, which provides
for a 3-day notice requiring the payment of rent or possession of the premises
before removal of a tenant is authorized.
13.6
Landlord's remedies shall not be construed as excluding such other or further
relief or damages as may be permitted by law. Landlord's
remedies shall be cumulative to the full extent permitted by law.
13.7 All personal property and trade or other fixtures belonging to Tenant
left at the premises upon Tenant's abandonment of the premises or upon the
termination of the Lease shall, at Landlord's sole option, be deemed to be
abandoned by Tenant and shall become the property of Landlord. Landlord may,
however, remove and store such property and any expense incurred by Landlord in
connection therewith shall be paid by Tenant upon demand. No acceptance by
Landlord of the keys to the premises shall be construed as releasing Tenant from
any obligation under this Lease.
14. Holding Over. If Tenant continues in possession with Landlord's consent
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after the end of the term, all provisions of this agreement shall continue to
apply except that the term shall be on a month to month basis. If Tenant
continues in possession without Landlord's consent, Landlord may, at Landlord's
option, demand double rent or a specific amount of continuing rent or may xxx
for possession plus damages, including special damages for loss of use of the
premises.
15. Cost of Collection and Attorneys Fees. Tenant will pay all reasonable
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attorneys fees (both trial and appellate) and expenses Landlord incurs arising
from this Lease. Tenant shall also pay any reasonable attorneys' fees or costs
incurred by Landlord in connection with disputes between Tenant and third
parties in which Landlord shall, without Landlord's fault, become involved
because of this Lease. Tenant waives any claim against Landlord for attorneys'
fees under the provisions of Section 57.105(2), Florida Statutes.
16. Utilities. Tenant will pay for all charges for telephone, gas,
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electricity, trash pickup service, water and all other utilities. Landlord has
the sole right to choose the provider of electric service.
17. Security for Payment of Rent. Tenant hereby pledges and assigns to
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Landlord all the furniture, fixtures, goods and chattels of Tenant which shall
or may be brought or put on the premises as security for payment of the rent.
Tenant agrees that such lien may be enforced by such legal proceedings as may be
necessary at the election of Landlord, provided, however, Landlord shall not
have a lien which would be superior to a lien from a lending institution,
supplier or leasing company, if such lending institution, supplier or leasing
company has a perfected security interest in the equipment, furniture or other
tangible personal property and which security interest has its origin in a
transaction whereby Tenant acquired such equipment, furniture or other tangible
personal property.
18. Right to Inspection. Landlord or its agents shall have the right
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(but not the duty) to enter the premises during all reasonable hours to inspect
or to make such repairs, additions or alterations as may be deemed necessary for
the safety, comfort or preservation of the premises, or to exhibit the premises,
or to put and keep upon the doors or windows thereof a notice "for rent" at any
time within sixty (60) days before the expiration of the Lease. The right of
entry shall likewise exist for the purpose of removing placards, signs,
fixtures, alterations or additions, which do not conform to this Lease.
19. Acceptance of Premises. Tenant waives any duty of Landlord to
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inspect the premises before Tenant takes possession. Tenant has inspected the
premises and accepts the premises in an "as is" condition. Tenant agrees to
maintain the premises in the same condition as they are at the commencement of
the term, excepting only reasonable wear und use.
20. Attornmcnt Upon Conveyance. If Landlord conveys the property,
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Landlord shall not be liable for any of Landlord's obligations under this Lease
arising after such conveyance. In such event, Tenant shall attorn to and
recognize Landlord's successor.
21. Bankruptcy.
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21.1 If permitted by the then existing federal bankruptcy law, this Lease, at
Landlord's option, shall be terminated upon the filing of a petition in
bankruptcy by or against Tenant.
21.2 If this Lease shall have been terminated by pre-petition agreement
between Landlord and Tenant or by operation of law, such termination shall be
deemed as effective as a judicially declared termination or eviction or both.
21.3 If termination upon bankruptcy shall not be allowed under then existing
federal bankruptcy law, then the following paragraphs shall apply,
21.4 During the time allowed under the federal bankruptcy law for the
bankruptcy trustee (or debtor in possession) to assume or reject this Lease, the
cure of pre-petition defaults, the payment of accruing post-petition rent, and
the performance of other Tenant obligations shall be deemed demanded by Landlord
without the necessity of formal demand having to be made by Landlord.
21.5 The time allowed under the federal bankruptcy law for the bankruptcy
trustee (or debtor in possession) to either accept or reject this Lease shall
not be construed to have been extended by Landlord's failure to demand
acceptance or rejection within the time set forth in the Bankruptcy Act.
21.6 If this Lease is assigned (with due adherence to the use covenants of
this Lease) pursuant to federal bankruptcy law, all considerations payable or
otherwise to be delivered in connection with the assignment, shall be paid and
delivered to Landlord as Landlord's exclusive property. Such consideration shall
not constitute property of the Tenant or Tenant's bankruptcy estate. All such
considerations not paid or delivered to Landlord shall be held in trust for
Landlord and shall be promptly paid and delivered to Landlord
22. Maintenance.
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22.1 Landlord shall be responsible for the maintenance and repair of the
roof, outside walls, structural components, and major plumbing. Tenant shall be
responsible for the maintenance and repair of all interior fixtures (including
minor plumbing) and electrical appliances.
22.2 "Major plumbing" means primary water supply and sewage disposal
pipes and "minor
plumbing" means water supply and sewage disposal pipes beyond the interior
surface plane of the floor or walls.
22.3 Tenant shall deliver the
premises to Landlord at the end of the term in the same condition as the
premises were at the beginning of the term, excepting only reasonable wear and
use.
23. Insurance.
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23.1 Comprehensive Public Liability. Landlord at all times shall obtain
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and keep in force for the mutual benefit of Landlord and Tenant comprehensive
public liability insurance against claims for bodily injury (including death)
and property damage occurring in, on or about the premises with insurance limits
of not less than $1,000,000 per injury, including death, arising out of any one
occurrence, and $500,000 for property damages arising out of any one occurrence
or a policy with a combined single limit $1,000,000. The comprehensive public
liability policy shall include premises liability as well as public liability.
23.2 Hazard Insurance. Landlord at all times shall obtain and keep in
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force fire insurance with extended coverage endorsements on the building and its
fixtures and improvements for 100% of insurable value, with such insurance to
provide for unqualified replacement cost claim recovery.
23.3 Qualifications of Insurance Company and Copies of Policies. The
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insurance required by Tenant shall be with an insurance company licensed to do
business in Florida rated "A" or better by Best's Key Rating Guide. Tenant shall
furnish Landlord duplicate originals of the policies with all forms attached.
23.4 No Liability for Personal Property.
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Tenant has been advised to obtain contents coverage for Tenant's personal
property. Landlord shall not be liable for any loss or damage of property or
Tenant or others located on or about the premises regardless of the cause of
such loss or damage.
23.5 Insurance Standards. Tenant, at
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Tenant's expense, will comply with any requirements of' insurance companies
relating to the condition or use of the premises. If Tenant violates an
insurance company standard or requirement, then Tenant, at Tenant expense, shall
make any changes needed to comply.
23.6 Landlord to be an Additional
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Insured. The insurance required of Tenant must designate Landlord as an
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additional insured (not a named insured). Landlord's lender, if any, shall be an
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insured on the hazard insurance policy in the form of a mortgagee loss payable
endorsement.
23.7 Notice of Cancellation. Each
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policy of insurance required of Tenant shall contain an endorsement providing
that the policy cannot be canceled, materially changed or reduced in coverage
until after 30 days written notice of such cancellation, material change or
reduction shall have been mailed to Landlord. In the case of the hazard
insurance, notice must also be mailed to Landlord's lender, if any.
23.8 Failure to Maintain
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Policies. If Tenant fails to keep the required insurance policies in force,
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Landlord, at Landlord's option, may obtain such policies and any premium paid by
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Landlord shall be reimbursed to Landlord by Tenant upon demand.
24. Eminent Domain.
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24.1 If the entire premises or such portion of the premises
as would constitute a substantial impairment of Tenant's business shall be taken
under eminent domain (or conveyed to a condemning authority under a threat of
eminent domain), then this lease shall terminate. In such event Tenant shall pay
rent only up to the date of such termination. Tenant shall not be entitled to
any apportionment of the amount paid for the taking or conveyance.
24.2 If only a part of the premises shall he taken by eminent
domain (or conveyed to a condemning authority under a threat of eminent domain)
and the part so taken or conveyed shall not substantially impair Tenant's
business, the lease shall remain in effect, and the amount paid for the taking
or conveyance shall belong solely to Landlord; however, the rent shall be
equitably reduced if there is an actual impairment of use. The amount of rent
reduction, if any, shall be based on the extent of impairment of use.
24.3 The provisions of paragraphs 24.1 and 24.2 are not intended
to restrict in any way any right provided by law for Tenant to claim damages
against the condemning authority unrelated to the interest of Landlord.
25. Ownership and Quiet Enjoyment. Landlord represents
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that Landlord owns the premises and Tenant shall he entitled to quiet enjoyment
of the premises, so long as Tenant shall not be in default hereunder.
26. Signs. Any signs or advertising to be used by Tenant,
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including awnings, on or about the premises shall be first submitted to Landlord
for approval before installation of the same.
27. Liens. Tenant shall keep the premises free and clear
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of any lien or encumbrance of any kind created by Tenant's acts or omissions.
Landlord's interest in the premises shall not be subject to liens for
improvements made by Tenant, and the Tenant shall notify any contractor making
improvements of this provision. At landlord's sole election, a short form of
this Lease shall be executed in recordable form and recorded as provided for in
Section 713.10(1), Florida Statutes.
28. Subordination.
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28.1 At all times and in all respects, this
Lease shall be subject to and subordinate to the liens of any mortgage now
existing or hereinafter placed upon the premises without the necessity of having
further instruments executed by Tenant to show such subordination.
28.2 Notwithstanding the foregoing, Tenant
agrees to execute any subordinations or other instruments which may be required
by any lender or by Landlord to evidence the subordination(s) of this lease as
set forth above.
29. Indemnity. Tenant shall indemnify and hold Landlord
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harmless from any and all loss, injury (including death), expense, or damage
(collectively "claim") to persons or property whether arising from Tenant's
operations or activities on the premises or from the condition of the premises
or otherwise. The only exception to this indemnity is a claim proximately and
solely caused by Landlord's failure to repair a defect within a reasonable time
provided (a) such defect is a maintenance item for which Landlord is responsible
and (b) Tenant, upon discovery of the defect, shall have promptly given Landlord
written notice of it. This indemnity extends to any claim involving joint
negligence of Landlord and Tenant.
30. No Hazardous Material or Hazardous Waste.
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30.1 Tenant expressly agrees that the premises will not be used
for the handling, storage, transportation, or disposal of hazardous or toxic
materials or waste. This prohibition includes, without limitation, the
discharge, pumping or dumping such materials or waste into sinks, toilets, and,
if applicable, septic tanks and drain fields.
30.2 Tenant agrees to indemnify, defend, and hold the Landlord
harmless from and against any loss to the Landlord as a result of use, handling,
storage, transportation or disposal of hazardous or toxic materials or waste.
This provision shall survive the termination of lease.
30.3 Landlord, at the Landlord's sole option, may obtain from
time to time at the Tenant's expense a report from a reputable environmental
consultant of the Landlord's choice to determine whether the premises are being
used for the handling, storage, transportation, or disposal of hazardous or
toxic materials or waste. If the report indicates such use, handling, storage,
transportation or disposal, Landlord may require that all violations of law or
harm to the premises, with respect to hazardous or toxic materials or waste, be
corrected, all at Tenant's expense.
30.4 If Tenant receives any notice from any governmental agency
relating to a violation or asserted violation of any environmental law or
regulation in connection with Tenant's use and occupancy of the premises, Tenant
shall furnish Landlord a copy of such notice within 10 days after Tenant has
received such notice.
31. Miscellaneous.
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31.1 Time is of the essence in this
Lease, except for the time allowed Landlord to obtain cost of living adjustment
information and to notify Tenant about it.
31.2 Whenever the context so requires, the use of any
gender shall include all genders; the use of the plural shall include the
singular; and the use of the singular shall include the plural..
31.3 The failure of Landlord to enforce promptly any
provisions of this Lease shall not bar subsequent enforcement. Landlord may
accept benefits under this Lease without waiving Landlord's rights under this
Lease.
31.4 Paragraph headings are for the convenience of
reference only and are not intended to qualify or limit the provisions of the
paragraphs.
31.5 No prior or present agreements or representations shall
be binding upon the parties unless incorporated in this lease. No modification,
release, discharge or waiver of any provisions of this Lease shall be valid or
binding unless a writing is executed by the party to be bound thereby.
31.6 This Lease shall be binding upon and shall inure to the
benefit of the heirs, personal representatives, successors and assigns of the
parties.
31.7 If any provision of this Lease conflicts with any statute
or rule of law, then such provision shall be deemed null and void to the extent
of such conflict, but without invalidating the remaining provisions.
31.8 Wherever in this Lease provision is made for obtaining
the consent or approval of Landlord, Landlord agrees not to unreasonably
withhold or delay such consent or approval.
31.9 Radon is 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.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals on
the date first above written.
Signed, sealed and delivered in the presence of:
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
LANDLORD
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Bootie Beer Co.
TENANT
