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 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 paragraph
11.2.
3. Term. The term of this Lease is for 1 year, beginning May 1, 2004, and ending
April 30, 2005 at midnight.
4. Renewal Term. Tenant has option to renew annually, at no more than 10%
increase of rental amount.
5. Rent
5.1 Term. Tenant shall pay the sum of $27,500.00 as total base rent for 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 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 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 $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 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 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.
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 Xxxxxxxxx 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 Assignment Without Consent.
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 premises without
first having obtained the written consent of Landlord.
9. The Ownership of Improvements. All additions, fixtures, or permanent
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 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.
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.
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.
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
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
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,
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 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 (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 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, 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.
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.
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.
23.1 Comprehensive Public Liability. Landlord at all times shall obtain 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 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
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. 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 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 Insured. The insurance required of Tenant
must designate Landlord as an additional insured (not a named insured).
Landlord's lender, if any, shall be an insured on the hazard insurance policy in
the form of a mortgagee loss payable endorsement.
23.7 Notice of Cancellation. Each 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 Policies. If Tenant fails to keep the required
insurance policies in force, Landlord, at Landlord's option, may obtain such
policies and any premium paid by Landlord shall be reimbursed to Landlord by
Tenant upon demand.
24. Eminent Domain.
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 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, 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 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.
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 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.
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.
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 Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
LANDLORD
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Bootie Beer Co.
TENANT
