LEASE
-----
Landlord: XXXXXXXXXX XXXXXX and NUNZIA, husband and
wife, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx 00000
Tenant: LAKER AIRWAYS, INC., a Delaware Corporation,
0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000
Premises: Four Thousand Eight Hundred (4,800)
square feet of office/storage space
located at 0000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx,
Contained in a building located upon
the following described land:
The South 174 feet, less the East 150 feet
thereof, of that portion of Parcel B lying
between N. 29th and N. 30th Avenue, as
showed on the Plat of SOUTH FLORIDA
INDUSTRIAL PARK, according to the Plat
thereof, recorded in Plat Book 63, Page 38
of the Public Records of Broward County,
Florida.
1. DEMISE - Landlord, for and in consideration of the rents hereinafter
reserved, and the terms, conditions, covenants and provisions contained in this
Lease, hereby leases to Tenant, and the Tenant hereby takes and hires from the
Landlord, subject to the terms and conditions contained in this Lease, the
Premises, together wit any and all rights, privileges, and easements
benefitting, belonging or pertaining thereto. The building which contains the
Premises, and the surrounding land, but which is not a part of the Premises,
shall be defined as the "Property."
2. TERM - The term of this Lease shall be three (3) years commencing February 1,
1997 (the"Commencement Date") and ending January 31, 2000, unless sooner
terminated or extended as
provided in this Lease.
3. BASE MINIMUM RENT - Tenant agrees to pay to the Landlord as Base Minimum Rent
for the Premises, without offset or deductions, and without previous demand
therefor, an Initial Annual Rental of THIRTY-TWO THOUSAND FOUR HUNDRED DOLLARS
AND 00/100 ($32,400.00), plus applicable sales tax, payable in equal monthly
installments of TWO THOUSAND SEVEN HUNDRED DOLLARS AND 00/100 ($2,700.00), plus
applicable sales tax, on the first day of each and every month for the term of
the lease.
All rent required under this Lease shall be payable to the Landlord at the
address set forth in this Lease for notices t the Landlord. If any payment of
rent is not received by the Landlord within ten (10) days of its due date,
Tenant shall pay to Landlord a late fee equal to Five (5%) Percent of the amount
of the payment.
1
All rent shall be payable plus applicable sales tax, on the first day of each
and every month.
On the first anniversary of the Commencement Date, the Base Minimum Rent shall
be increased in accordance with changes in the Consumer Price Index (CPI) as
defined below. The Base Minimum Rent for the second year of this Lease shall be
computed by multiplying the Initial Annual Rental by a fraction, the numerator
shall be the CPI for the third month prior to the first anniversary of the
Commencement Date and the denominator shall be the CPI for the third month prior
to the Commencement Date.
For each subsequent year of this Lease, Base Minimum Rent shall be increased by
multiplying the rent for the immediately preceding year by a fraction, the
numerator of which shall be the CPI for the third month prior to the anniversary
of the Commencement Date and the denominator of which shall be the CPI for the
third month prior to the anniversary of the Commencement Date of the previous
lease year.
For purposes of this paragraph the Consumer Price Index is defined as follows:
The index number to be used is the "Consumer Price Index for all Urban Consumers
(1982-84=100) - All Items," Published in the monthly Labor Review of the Bureau
of Labor Statistics of the United Sates Department of Labor. If the
aforementioned index becomes unavailable, the index to be used is the "Consumer
Price Index" issued by the United States Department of Labor. If the
aforementioned index becomes unavailable, the index to be used is the "Consumer
Price Index" issued by the United States Department of Labor for the South
Atlantic Group of States. If the last mentioned index becomes unavailable, the
index to be used is the "Index of the General Price Level," issued by the
Federal Reserve Bank of Atlanta, Georgia. If the last mentioned index also
becomes unavailable, the index to be used is the "Index of the General Price
Level," issued by the Federal Reserve Bank of New York. In the event that the
index number series being used becomes subsequently unavailable, and another
series has to be used, then the amount of the rent payable and set from such
date of unavailability of the former series shall be determined by the new
series according to the relationship between the indexes in such new series and
the index therein as the previous adjustment date, but no retroactive adjustment
for excess or deficiency of rent paid up to the time of use of the new series
shall be made. Any revisions in the index number series used are to be effective
in determining the amount of said rent except that no retroactive adjustment for
excess or deficiency of rent paid up to the time of issuance of the revised
index is to be made. The index number as of such adjustment date is to be
ascertained approximately by means of interpolation based on the indexes nearest
to that date in the index series used.
2
In no event, however, shall the Base Minimum Rent for any year of the Lease term
be less than the Base Minimum Rent for any preceding year of the Lease term.
4. RULES AND REGULATIONS - Tenant, at its own cost and expense shall properly
observe and comply with all present and future laws, ordinances, requirements,
orders, directives, rules and regulations of all governmental authorities
affecting the Tenant's use of the Premises.
5. SECURITY - Landlord acknowledges receipt of $2,700.00, that Landlord is to
retain as security for the faithful performance of all the terms and conditions
of this Lease. Landlord shall not be obligated to apply the security deposit on
rents or other charges in arrears, or in damages for failure to perform the
terms and conditions of this Lease. Application of the security deposit to the
arrears of rental payments or damages shall be at the sole option of the
Landlord, and the right to possession of the Premises by the Landlord for
non-payment of rent for any other reason shall not in any event be affected by
the security deposit. The security deposit is to be returned to Tenant when this
Lease is terminated, according t the terms of this Lease, If not otherwise
applied by reason of any breach of the terms and conditions of this Lease by
Tenant. Tenant expressly acknowledges that Tenant shall not have the right to
apply the security deposit to rent. In no event is the security deposit to be
returned until Tenant has vacated the Premises and delivered possession to the
Landlord. In the event the Landlord repossesses the Premises because of the
default of the Tenant or because of the failure by the Tenant to carry out the
terms and conditions of this Lease, Landlord may apply the security deposit on
all damages suffered to the day of repossession and may retain the balance of
the security deposit to apply on damages that may accrue or be suffered
thereafter by reason of a default or breach of the Tenant. Landlord shall not be
obligated to hold the security deposit in a separate fund, but may mix the
security deposit wit other funds of the Landlord, and Landlord shall not be
obligated to pay interest to Tenant on the security deposit.
As security for the faithful performance of the terms and conditions of this
Lease, Tenant hereby pledges and assigns to Landlord all of the furniture,
fixtures, goods and chattels of Tenant, which shall or may be brought or put on
said Premises, and the Tenant agrees that said lien may be enforced by distress,
foreclosure or other process of law at the election of Landlord, and Tenant
agrees to pay reasonable attorney' fees, together with all costs and charges
incurred or paid by the Landlord by reason of Tenant's failure to perform any of
the terms and conditions of this Lease, which sums shall bear interest at the
highest rate permitted by law.
3
6. RISK OF LOSS - All Personal property placed or moved in the Premises shall be
at risk of Tenant or of the owner of such property, and Landlord shall not be
liable for any damage to said personal property, or to Tenant, arising from the
bursting or leaking of water pipes, or from any act of negligence of any
co-tenant or occupants of the building, or of any other person whomsoever. It is
further agreed that Landlord shall not be liable for any damage or injury by
water which may be sustained by the Tenant or other person, or for any other
damage or injury resulting from the carelessness, negligence or improper conduct
on the part of any person whomsoever, or by reason of the breakage, leakage or
obstruction of the water, sewer or soil pipes, other leakage in or about said
building.
7. TENANT'S TAXES, INSURANCE AND UTILITY EXPENSES -
a. During the term of this Lease, Tenant shall pay, before the same
shall become delinquent, all personal property taxes, sales taxes, and such
other taxes as may be payable by reason of operation of Tenant's business.
b. During the term of this Lease, Tenant shall pay, before the same
shall become delinquent, all charges for services furnished to the Premises for
the occupants thereof.
c. Tenant shall pay one-half of any increase in the real estate taxes
over the base year 1996. The real estate taxes for 1996 were $9,387.71 The
Tenant's share will be prorated from February 1, 1997, should there be any
increase in the taxes. Tenant shall also pay any increase in the insurance on
the property over and above the insurance paid in 1996, which premium was
$4,249.15 which shall also be prorated as of February 1, should there be an
increase in the insurance.
8. USE OF PREMISES - The Premises may be used for storage and an office and for
no other purposes whatsoever. The Tenant acknowledges that the burglar alarm
system in the premises belongs to Landlord. The Tenant will pay for the
monitoring system charges for the burglar alarm system.
Tenant shall not use or occupy, nor permit or suffer the Premises, the Property,
or any part thereof to be used or occupied for any unlawful or illegal business,
use of purpose, nor in any way in violation of any present or future
governmental laws, ordinances, requirements, orders, directives, rules or
regulations.
9. ACCESS TO THE PREMISES - During all reasonable hours, Landlord or Landlord's
agents shall have the right, but not the obligation, to enter upon the Premises
to examine same, to exhibit the Premises to prospective purchasers and during
the last 180 days of the term of this lease or any renewal and
4
thereof, to exhibit the Premises to prospective tenants, and to make such
repairs as may be required of the Landlord under the terms of this Lease.
Landlord agrees not to unreasonably interfere with the operation of Tenant's
business.
10. REPAIRS - Landlord shall have no liability or responsibility for repairs or
maintenance whatsoever, except that Landlord shall paint the floor, remove the
wall between the second and the third room, patch and clean the right wall and
professionally clean and fix the office area. Tenant will have the right to
inspect the work by a certified inspector, to be done at Tenant's cost. Any
air-conditioning plumbing, electrical or telephone line repairs needed before
the Lease begins will be done at landlord's expense.
Landlord shall keep the roof and exterior walls of the building leak free and
make all structural repairs necessary to the roof or exterior walls of the
building. "Structural repairs" means repairs necessary to keep the building from
collapsing or sagging, or to prevent the Premises from being condemned because
of structural insufficiency.
Tenant acknowledges that the Premises are in good condition and that all
fixtures, equipment and appurtenances are in good working order, and agrees to
maintain the Premises in the same condition, order and repair as they are at the
commencement of this Lease, and agrees to make all repairs and replacements in
and about the Premises necessary to preserve them in good order and condition,
which repairs and replacement made by Tenant shall be in equal quality and class
to the original work. Tenant shall promptly pay the expense of any such repairs.
All additions, fixtures or improvements which may be made or installed by
Tenant, except movable furniture, shall become the property of the Landlord and
remain upon the Premises as a part thereof, and be surrendered with the Premises
at the termination of this Lease, at the option of the Landlord. If Landlord
elects to allow Tenant to remove such fixtures or additions, Tenant shall repair
any damage caused by such removal. Tenant shall not demolish, replace or
materially alter the building containing the demised Premises, or any part
thereof, whether voluntary or in connection with any repair or restoration
required by this Lease.
11. INSURANCE - During the term of this Lease, the Tenant shall carry and pay
for liability insurance issued or endorsed to insure the Landlord and any
mortgagees from and against any and all claims, suits, actions, damages and/or
causes of action arising during the term of this Lease for any personal injury,
loss of life and/or damage to property sustained in and about the Premises, by
reason of or as a result of Tenant's occupancy of, and from and against any
order, judgments and/or decrees which may be entered thereon, and from and
against all costs,
5
attorneys' fees, expenses and liabilities incurred in and about the defense of
any such claim and the investigation thereof, for an amount not less than One
Million Dollars ($1,000,000.00) combined single limit.
In addition, Tenant shall carry and pay for replacement cost fire, extended
coverage, and flood insurance, to cover the cost of repair or replacement of
Tenant's leasehold improvements.
Such insurance shall name the Landlord and any mortgagees as additional insured
as the Landlord's and may mortgagee's interests may appear. The insurance policy
shall be issued by an insurance company satisfactory to the Landlord.
The Tenant shall deliver to the Landlord these insurance policies or copies or
certificates thereof immediately upon commencement of the Lease and thereafter
from time to time as required to assure the Landlord and any mortgagees that the
coverage afforded by the policies is being maintained continuously by the Tenant
and that the premiums therefor had been paid by the Tenant.
12. SUBORDINATION - This Lease shall be subject and subordinate to any mortgage
that now encumbers or affects the Property or that the Landlord or any
subsequent owners of the Premises may hereafter at any time elect to place on
the Property, including but not limited to a purchase money mortgage which may
be held by Landlord as a seller, and to all advances, extensions, or
modification already made or that may be hereafter made on account of any such
mortgage, to the full extent of the principal sum secured thereby and issued
thereon. Furthermore, Tenant shall, upon request, execute any paper or papers
that Landlord's counsel may deem necessary to accomplish such subordination of
Tenant's interest in this Lease, in default of which Landlord is hereby
appointed as Tenant's attorney-in-fact to execute such papers in the name of
Tenant and as the act and deed of Tenant, and this authority is hereby declared
to be coupled with an interest and irrevocable.
13. ASSIGNMENT AND SUBLEASING - Tenant shall not assign this Lease, sublet the
entire Premises or otherwise transfer any interest in this Lease, without the
prior written consent of the Landlord, which consent will not be unreasonably
withheld. Landlord's consent may be conditioned upon the proposed assignee being
of equal or greater financial strength as Tenant or Tenant's guarantor (if any).
No consent to an assignment or sublease shall release Tenant or Tenant's
guarantor (if any) from any obligations under this lease. If Tenant is a
corporation, a transfer of more than 25% of the stock of said Tenant corporation
shall be deemed an assignment for purposes of this Lease.
Tenant shall not sublet portions of the Premises without Landlord's prior
written consent, which shall be in Landlord's
6
sole and absolute discretion. In the event of any sublease hereunder, Landlord
shall be entitled to receive, in addition to any and all rent otherwise required
under this Lease, one hundred (100%) percent of any amount paid to Tenant, by a
sub-tenant, above the rent payable by Tenant to Landlord pursuant to this Lease.
If a sublease is permitted by Landlord, Tenant agrees to furnish Landlord with a
photostatic copy of each sublease made for space in the Premises.
Tenant shall not hypothecate, transfer, pledge or otherwise encumber this Lease
or Tenant's right hereunder nor shall Tenant permit any such encumbrance. Any
attempt at assignment, sublease, pledge, transfer or encumbrance of this Lease
without the prior written consent of Landlord shall be null and void, and a
default under this Lease.
Tenant shall and does hereby indemnify and agree to hod Landlord harmless from
any and all liabilities, claims and causes of action arising under any terms and
conditions of every sublease, license or concession agreement, unless such
liabilities, claims and causes of action arise by reason of a default or breach
by Landlord, or the negligent conduct or activity of Landlord, its agents or
employees, under this Lease.
If all or any part of the Premises be sublet or occupied by anyone other than
Tenant, Landlord may, after default by Tenant, collect sub rent from any and all
subtenants or occupants, and apply the net amount collected to the net annual
rent reserved herein, but no such collection shall be, or be deemed to be, a
waiver of any agreement, term, covenant or condition of this Lease or the
acceptance by Landlord of any subtenant or occupant as Tenant, or a release of
Tenant form performance by Tenant of its obligations under this Lease.
To secure the prompt and full payment by Tenant of the rental in this Lease
reserved and the faithful performance by Tenant of al the other terms and
conditions herein contained on its part to be kept and performed, Tenant hereby
assigns, transfers and sets over unto Landlord, subject to the conditions
hereinafter set forth, all of Tenant's right, title and interest in and to all
subleases that may hereafter be made and in and to all concession agreements
hereafter made affecting any part of the Premises.
14. INDEMNIFICATION OF LANDLORD - In addition to any other indemnities to
Landlord specifically provided in this Lease, Tenant shall indemnify and save
harmless Landlord against and from all liabilities, liens, suits, obligations,
fines damages, penalties, claims, costs, charges and expenses, including
reasonable architects' and attorneys' fees by or on behalf of any person which
may be imposed upon or incurred by or asserted against Landlord by reason of the
use and/or occupancy of the Premises or any part thereof, or any surrounding
areas, by Tenant
7
or Tenant's agents, contractors, servants, employees, licensees or invitees
during the term of this Lease. This indemnification shall specifically extend to
but shall not be limited to loss or damage arising out of environmental hazards
or contamination.
The provisions of this Article and the provisions of all other indemnity
provisions elsewhere contained in this Lease shall survive the expiration or
earlier termination of this Lease for events occurring prior to such expiration
or termination.
Landlord shall not in any event whatsoever be liable for any injury or damage to
any personal property or to any person happening on, in or about the building be
leased, whether belonging to Tenant or any other person, caused by any fire,
breakage, leakage, defect or bad condition in any part or portion of the
Premises, howsoever caused unless such injury or damage is caused by the active
negligence of the Landlord, its agents or employees, or a breach or default by
Landlord of its obligations under this Lease.
Tenant shall, at its own cost and expense, defend any and all suits or actions
(just or unjust) which may be brought against Landlord or in which Landlord may
be impleaded with others upon any such above-mention matters, claim or claims.
In such event, Landlord agrees to cooperate and
assist Tenant and Tenant's counsel in providing documentation, plans,
specifications and any other agreements or documents which may be reasonably
required by Tenant and/or Tenant's in order to defend such suit or actions.
Tenant shall pay to the Landlord all costs and expenses, including reasonable
attorneys' fees (including costs, expenses and attorneys' fees in any appellate
proceedings), incurred by Landlord in any action or proceeding to which Landlord
may be made a party by reason of any act or omission of the Tenant.
Notwithstanding the provisions of this Article, Tenant shall not be liable for
any of the acts, actions or negligent acts or omission of the Landlord, its
agents or employees.
15. RESTRICTION AGAINST CONSTRUCTION LIEN - Neither Tenant nor anyone claiming
by, through or under Tenant, shall have any right to file or place any
construction lien of any kind or character whatsoever on the property and notice
is hereby given that no contractor subcontractor, or anyone else that may
furnish any material, service or labor to the property at any time shall be or
become entitled to any lien thereon whatsoever. For the further security of
Landlord, Tenant shall give actual notice of this restriction in advance to any
and all contractors, subcontractors, or other persons, firms, or corporations
that may furnish any such material, service, or labor.
8
Landlord shall have the right to record a notice of this provision in the Public
Records of the County in which Premises is located.
If such lien is filed against Landlord's interest on the Property, Tenant shall
cause such lien to be released of record or bonded within thirty (30) days of
Tenant's knowledge of such lien.
16. CONDEMNATION -
a. If at any time during the term of this Lease, the whole or
materially all of the Premises shall be taken for any public or quasi-public
purpose by any lawful power or authority by the exercise of the right of
condemnation or eminent domain or by agreement between Landlord, Tenant and
those authorized to exercise such right, this Lease, the term hereby granted,
any rights of renewal hereof and any renewal terms hereof, shall terminate and
expire on the date of such taking and the rent and other sum or sums of money
and other charges herein reserved and provided to be paid by the Tenant shall be
apportioned and paid to the date of such taking.
b. The term "materially all of the Premises "shall be deemed to mean
such portion of the Premises, as when so taken, would leave remaining a balance
of the Premises which, due either to the area so taken or the location of the
part so taken in relation to the part not so taken, would not allow the Tenant
to continue its business operations, or would not under economic conditions,
zoning laws or building regulations then existing or prevailing, readily
accommodate a new building or buildings of a nature similar to the build or
buildings existing upon the Land at the date of such taking and of floor area
sufficient, together with buildings not taken in the condemnation, to operate
Tenant's business, taking into account all reasonable parking requirements.
c. For the purpose of this Article, the Premises or a part thereof, as
the case may be, shall be deemed to have been taken or condemned on the date on
which actual possession of the Premises or a part thereof, as case may be is
acquired by any lawful power or authority or the date on which title vests
therein, whichever is earlier.
d. It is further understood and agreed that if any time during the term
of this Lease the Premises or the Property or the improvements or buildings
located thereon, or any portion thereof, be taken or appreciated. Or condemned
by reason of eminent domain, the entire award shall be the property of the
Landlord and in no event shall tenant receive any portion of any award made to
Landlord. Tenant shall have the right to make a separate claim for its own
damages.
9
In the event less than materially all of the Premises shall be taken by
governmental authority, then:
i. If the portion so taken does not affect the operation of
Tenant's business, then this Lease shall continue in full force and effect.
ii. In the event the portion of the Premises are taken so that
Tenant's is able to continue to operate its business, but the operation of such
business is reduced by reason of such taking, then the Base Minimum Rent shall
be reduced proportionately by the same percentage as the square footage of the
Premises which have been taken by governmental authority bears to the total
square footage of the Premises prior to such taking.
17. DESTRUCTION OF PREMISES -
a. In the event the entire Premises or materially all of the Premises
are destroyed by fire or other casualty, Landlord shall have the option of
terminating this Lease or of rebuilding the Premises and shall give written
notice of such election to the Tenant within thirty (30) days after the date of
such casualty. In the event Landlord elects to rebuild the Premises, the
Premises shall be restored to its former condition within a reasonable time,
during which the rent due from Tenant to Landlord hereunder shall xxxxx. In the
event Landlord elects to terminate this Lease, rent shall be paid only to the
date of such casualty, and the term of this Lease shall expire as of the date of
such casualty and shall be of no further force and effect and Landlord shall be
entitled to sole possession of the Premises.
b. The term "materially all of the Premises" shall be deemed to mean
such portion of the Premises, as when so destroyed, would leave remaining a
balance of the Premises which due to the amount of area destroyed or the
location of the part so destroyed in relation to the part left undamaged would
not allow the Tenant to continue its business operations.
c. In the event of a partial destruction which is not materially all of
the Premises, the Base Minimum Rent shall proportionately xxxxx based upon the
square footage of the Premises remaining undamaged and Landlord shall repair the
damage.
d. Notwithstanding the foregoing, if the damage or destruction is as a
result of the action or inaction of Tenant or Tenant's employees, or agents,
invitees, or as a result of Tenant not fulfilling all of its obligations under
this Lease, no rent shall xxxxx and Tenant shall make all necessary repairs.
10
18. QUIET ENJOYMENT - Tenant, upon paying the rent and all other sums and
charges to be paid by it as herein provided, and observing and keeping all
covenants, warranties, agreements and conditions of this Lease on its part to be
kept, shall quietly have and enjoy the Premises during the term of this Lease,
without hindrance or molestation by anyone.
19. DEFAULTS - Each of the following events shall be an "Event of Default"
hereunder:
a. Failure of Tenant to pay any installment of Rental or any part
thereof, or any other payments of money, costs or expenses herein agreed to be
paid by Tenant, when due.
b. Failure to observe or perform on one or more of the other terms,
conditions, covenants or agreements of this Lease and the continuance of such
failure for a period of fifteen (15) days after written notice by Landlord
specifying such failure (unless such failure requires work to be performed, acts
to be done or conditions to be improved, as the case may be, within such fifteen
(15) day period, in which case no default shall be deemed to exist so long as
Tenant shall have commenced curing the same within such 15 day period, and shall
diligently and continuously prosecute the same to completion).
c. If this Lease of the estate of Tenant hereunder shall be transferred
to or assigned to or subleased to or shall pass to any person or party, except
in a manner herein permitted.
d. If a levy under execution or attachment shall be made against Tenant
or its property and such execution or attachment shall not be vacated or removed
by court order, bonding or otherwise within a period of thirty (30) days.
e. A rejection of the Lease by a trustee in bankruptcy appointed in
connection with the bankruptcy of the Tenant.
f. A failure to vacate the Premises upon termination of
this Lease.
No payment by Tenant or receipt by Landlord of an amount less than the required
payment set forth in the Lease, shall be considered as anything other than a
partial payment of the amount due. No endorsement or statement to the contrary
on any check shall be deemed an accord and satisfaction. Landlord may accept a
partial payment without prejudicing Landlord's right to recover the balance of
such payment which is still due, and without affecting any other remedies
available to Landlord.
20. REMEDIES - Upon an "Event of Default" as defined above, Landlord at it
Option shall have the following non-exclusive remedies in addition to those
provided by law:
11
a. Landlord may treat the Lease as terminated whereupon the right of
Tenant to the possession of the Premises shall immediately terminate, and the
mere retention or possession thereafter by Tenant shall constitute a forcible
detainer.
b. Landlord may terminate Tenant's right of possession, without the
termination of this Lease, in which event Landlord shall have the right to relet
the Premises as the agent for the Tenant and to hold the Tenant responsible for
any deficiency between the amount of rent realized from such reletting, less any
and all expenses incurred by the Landlord in connection with such reletting,
including but not limited to renovation and repair expenses, and the amount
which would have been payable by Tenant under the terms of this Lease. No
re-entry or repossession by the Landlord shall serve to terminate this Lease,
unless the Landlord so elects in writing, nor shall it release Tenant from any
liability for the payment of any rent stipulated to be paid pursuant to this
Lease or for the performance or fulfillment of any other term or condition
provided herein.
c. Landlord may declare all the installments of rent for the whole term
of this Lease to be immediately due and payable at once without further demand,
in which event all sums payable to the Landlord shall bear interest from the
date of default at the highest rate permitted by law.
d. Landlord shall have the right to take no immediate action and to hod
the Tenant responsible for the rent as it becomes due.
e. Any Base Minimum Rent which was abated or waived by Landlord shall
also be immediately due and payable by Tenant to Landlord.
f. In the event of a holdover by Tenant after the termination of this
Lease Landlord shall have the right to collect double the amount of Base Minimum
Rent. In addition, Tenant shall be responsible for any cost or expenses incurred
by Landlord as a result of such holdover, including but not limited to any
damage incurred by Landlord as a result of Landlord's inability to make the
premises available to a new Tenant.
21. ATTORNEY'S FEES - In the event of any litigation arising out of this lease,
the Losing Party shall pay to the Prevailing Party all costs and expenses,
including reasonable attorneys' fees (including appellate proceedings) which the
Prevailing Party may incur.
22. CERTIFICATES - Either party shall, without charge, at any time and from time
to time hereafter as may be commercially reasonable, within fifteen (15) days
after written request of the other, certify by written instrument duly executed
and
12
acknowledged to any mortgagee or purchaser, or proposed mortgagee or proposed
purchaser, or any other person, firm or corporation specified in such request:
a. As to whether this Lease has been supplemented or
amended, and if so the substance and manner of such supplement or
amendment;
b. As to the validity and force and effect of this Lease,
in accordance with its tenor as then constituted; and
c. As to any other matters as may reasonably be so
requested.
Any such certificate may re relied upon by the party requesting it and any other
person, firm or corporation to whom the same may be exhibited or delivered, and
the contents of such certificate shall be binding on the party executing same.
Should any banking institution, savings and loan association or other
institutional lender to whom Landlord is applying for a loan which, if granted,
would make such lender a Landlord's mortgagee, request reasonable modification
in this Lease, the effect of which would not make a change in the rental or
other economic terms of this Lease or increase Tenant's expenses or the risk to
which Tenant is exposed, Tenant agrees that it shall not unreasonably withhold
its agreement to such modification.
23. INITIAL CONDITION OF PREMISES - Tenant acknowledges that it has made a
complete inspection of the Premises prior to the commencement of this Lease, and
the Premises are satisfactory to Tenant.
24. RADON GAS - 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 building in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
25. STORMS - Tenant agrees to exercise reasonable care to protect the Property
in the event a public warning should be issued that the Premises are threatened
by a hurricane, tornado or storm of similar magnitude.
26. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS - If Tenant shall at any time
fail to make any payments in accordance with the provisions hereof, or to take
out. Pay for, maintain or deliver any of the insurance policies provided for
herein, or shall fail to make any other payment or perform any other act o its
part to be made or performed, then Landlord, after fifteen
13
(15) days notice to Tenant (without notice in case of an emergency) and without
waiving or releasing Tenant from any obligation of Tenant contained in this
Lease, may (but shall be under no obligation to):
a. Pay any amount payable by Tenant pursuant to the
provisions hereof, or
b. Make any other payment or perform any other act on Tenant's part to
be made or performed as in this Lease provided, and may enter upon the Premises
for the purpose and take all such action thereon as may be necessary therefor.
All sums so paid by Landlord and all costs and expenses incurred by Landlord in
connection with the performance of any such act, shall bear interest at the
highest rate allowed by law.
27. NOTICE - Any notice designation, consent, approval or other communication
required or permitted to be given pursuant to the provisions of this Agreement
shall be given in writing and shall be sent by registered or certified mail,
postage prepaid, return receipt requested, addressed to the addresses set forth
on the first page of this Lease.
Either party may, by notice given in accordance with the provisions in this
section, designate any further or different address to which subsequent notices,
designations, consents, approvals or other communications pursuant to the
provisions of this Agreement shall be sent. Any notice, designation, consent,
approval or other communication shall be deemed given 3 days after such notice,
designation, consent, approval or other communication shall be deposited in any
post office or official depository of the United States Postal Service in the
State of Florida.
28. HAZARDOUS MATERIALS - Tenant shall not knowingly cause or permit any
hazardous material to be brought upon, kept, or used in or about the Premises by
Tenant, its agents, employees, contractors or invitees. If the Premises are,
through Tenant's fault, contaminated by hazardous materials, then Tenant shall
indemnify, defend and hold Landlord harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including without
limitation, diminution in value or useable space or of any amenity of the
Premises), damages arising from any adverse impact on marketing of space, and
sums paid in settlement of claims, attorney's fees', consultant's fees and
expert fees (including any appeals) which arise during the lease term as a
result of any such contamination.
This indemnification by Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions or any clean up,
remediation, removal or restoration
14
work required by any federal, state or local government agency or political
subdivision because of hazardous material present in the soil or ground water on
or under the Premises. Without limiting the foregoing, if the presence of any
hazardous material on the Premises is detected, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Premises to the
condition existing prior to the contamination or introduction of such hazardous
material to the Premises; provided, however, that Landlord's approval of such
actions shall first be obtained, which approval shall not be unreasonably
withheld, so long as such actions would not potentially have any material
adverse effect on the Premises.
As used herein, the term hazardous material means any hazardous or toxic
substance, material or waste, which is or becomes regulated by any local
government authority, the State of Florida or the United States government. Then
term "hazardous material" includes, without limitation, any material or
substance that is (1) defined as a "hazardous substance" under appropriate state
law provisions, (2) petroleum, (3) asbestos, (4) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 USC 1321), (5) defined as a hazardous waste pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, (42 USC 690), (6) defined as a
hazardous substance pursuant to Section 10 of the Comprehensive Environmental
Response, Compensation and Liability Act (42 USC 9601), or (7) defined as a
regulated substance pursuant to Sub- Chapter VIII, Solid Waste Disposal Act (the
regulation of underground storage tanks), (42 USC 4991).
29. MISCELLANEOUS - The parties further agree as follows:
a. The covenants, conditions and agreements contained in this Lease
shall bind and insure to the benefit of Landlord and Tenant and their respective
heirs, successors, administrators, representatives and assigns.
b. This Lease and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the State of Florida.
c. The rights of the Landlord under the terms of this Lease shall be
cumulative, and failure on the part of Landlord to exercise promptly any rights
given under the terms of this Lease shall not operate to forfeit any of said
rights nor shall the same be deemed a waiver of such rights.
d. The parties acknowledge that each has had the opportunity to have
this Agreement reviewed by counsel and notwithstanding the fact that this
Agreement was initially drafted by Xxxxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxxx,
P.A. and is on its stationery, all parties have participated equally in
15
the final wording of this Agreement and in the event of any dispute regarding
the meaning of any of the terms herein, such terms shall not be construed
against the client of Xxxxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxxx, P.A.
e. This Lease shall not be recorded in the Public Records.
f. This Agreement represents the entire understanding between the
parties, and supersedes all prior agreements, oral or written, and this Lease
agreement may not be amended except by an instrument in writing signed by the
parties hereto.
g. The submission of this document for examination does not constitute
an option of offer to lease space at the Property. This document shall have no
binding effect on the parties unless executed by the Landlord and the Tenant and
a fully executed copy is delivered to the Tenant.
30. BROKERAGE - The parties acknowledge that the real estate brokers that are
involved in the transaction giving rise to this Lease are Xxxx Xxxxx Realty,
Inc., and Century 21, Xxxxx Xxxxxxxx and Associates. The total brokerage fee is
SIX PERCENT (6%) of the yearly rental, which first year's commission shall be
paid at the beginning of this Lease and every year thereafter that the Tenant is
in possession of the premises.
31. OPTIONS TO RENEW - The Tenant shall have the right to renew the Lease for a
term of five additional years and on the terms and conditions set forth below:
During the option term, the Base Minimum Rent shall be increased in accordance
with changes in the Consumer Price Index (CPI) as defined below. The Base
Minimum Rental shall be increased by multiplying the rent for the immediately
preceding year by a fraction, the numerator of which shall be the CPI for the
third month prior to the expiration of the term and the denominator of which
shall be the CPI for the third month prior to the anniversary of the
Commencement Date of the Lease.
For purposes of this paragraph the Consumer Price Index is defined as follows:
The index number to be used is the "Consumer Price Index for all Urban Consumers
(1982-84=100) - All items," published in the monthly Labor Review of the Bureau
of Labor Statistics of the United States Department of Labor. If the
aforementioned index becomes unavailable, the index to be used is the "Consumer
Price Index" issued by the United States Department of Labor. If the
aforementioned index becomes unavailable, the index to be used is the "Consumer
Price Index" issued by the United States Department of Labor for the South
Atlantic Group of States. If the last mentioned index becomes unavailable, the
index to be used is the
16
"Index of the General Price Level," issued by the Federal Reserve Bank of
Atlanta, Georgia. If the last mentioned index also becomes unavailable, the
index to be used is the "Index of the General Price Level," issued by the
Federal Reserve Bank of New York. In the event that the index number series
being used becomes subsequently unavailable, and another series has to be used,
then the amount of the rent payable and set from such date of unavailability of
the former series shall be determined b the new series according to the
relationship between the indexes in such new series and the index therein as of
the previous adjustment date, but no retroactive adjustment for excess or
deficiency of rent paid up to the time of use of the new series shall be made.
Any revisions in the index number series used are to be effective in determining
the amount of said rent except that not retroactive adjustment for excess or
deficiency of rent paid up to the time of issuance of the revised index is to be
made. The index number as of such adjustment date is to be ascertained
approximately by means of interpolation based on the indexes nearest to that
date in the index series used.
In no event, however, shall the Base Minimum Rental for any year of the Lease
term be less than the Base Minimum Rental for any preceding year of the Lease
term.
a. The terms and conditions of the Option to Renew are:
i. The option to renew may be exercised only if no default
exists under any of the terms of this Lease when the option becomes exercisable.
In addition, if Tenant has been in default by reason of a failure to pay money
when due more than twice in any calendar year during the term of this Lease, no
option to renew may be exercised.
b. Tenant shall exercise its right to renew in the
following manner:
i. At least sixty (60) days prior to the expiration of the
initial term, Tenant shall notify Landlord in writing of its election to
exercise the right to renew the term of this Lease for the renewal term;
ii. Upon the giving of the notice of exercise of this renewal
option, this Lease shall be deemed to be renewed and the term thereof renewed
for the period and upon the terms provided above without the execution of any
further lease or instrument.
17
IN WITNESS WHEREOF, the parties have executed this Lease.
Signed, sealed and delivered in the presence of :
(Two Witnesses are required LANDLORD:
for each signature)
__________________________ /s/ Xxxxxxxxxx Xxxxxx
---------------------
XXXXXXXXXX XXXXXX
__________________________ Date: 1/27/97
__________________________ /s/ Xxxxxx Xxxxxx
-----------------
XXXXXX XXXXXX
___________________________ Date: 1/27/97
TENANT:
LAKER AIRWAYS, INC., a
Delaware Corporation
____________________________ By: /s/ Xxxxx X. Xxxxxx
-------------------
XXXXX X. XXXXXX,
President
____________________________ Date: 1/27/97
18
