COMMERCIAL LEASE AGREEMENT (Triple Net)
(Triple
Net)
THIS
COMMERCIAL LEASE AGREEMENT entered into on this 9th day of July
2019 by and between SKYBAR HOLDINGS, LLC, a Florida limited
liability company, hereinafter referred to as "THE LANDLORD", and
EXACTUS, INC., a corporation organized and existing under
the laws of Nevada, with its principal offices located at 00 XX
0xx Xxx
#00 Xxxxxx Xxxxx XX 00000, hereinafter referred to as "THE
TENANT",
WITNESSETH:
That said Landlord does hereby agree to lease unto said Tenant, and
said Tenant does hereby hire and take as Tenant under said
Landlord, the property described herein subject to the terms,
provisions, conditions and limitations set forth and described in
the Lease Agreement.
1.
DESCRIPTION OF PROPERTY.
The
description of the subject real property being leased pursuant to
this Lease Agreement is as follows: The entire first floor of the
property located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx
00000, with the legal description of Town of Delray E 10 Ft of Xx
00 & Xx 00 Xxx 00. To include the first floor mezzanines, front
and rear points of entry, access to available vehicle parking spots
during hours of operation and signage on Atlantic
Avenue
2. TERM
OF LEASE.
The
term of this lease shall be for 5 years with two 5 year options
commencing effective the 1st day of August, 2019
and ending on the 1st day of July, 2024.
Tenant shall receive two months of abated rent commencing upon the
execution of the lease. If the Tenant maintains possession of the
premises for any period after the termination of this Lease, the
Tenant shall be liable to pay double rent to Landlord for the
holdover period.
A.
FIRST RIGHT OF
REFUSAL, LEASE. Tenant shall have the right of first refusal to
lease any space that becomes available on the 2nd and 3rd floor of
the building. Upon the receipt of written notice that Landlord has
received a bona fide offer (the Offer) for the lease of space in
the Building by a third party, Tenant shall have ten (10) days to
provide Landlord with an unequivocal, irrevocable, written
commitment to lease space upon the terms set forth in the Offer. If
Tenant fails to provide Landlord with such notice within such
10-day period, Landlord shall be free to lease space in the
Building to the third party pursuant to the Offer. Tenant shall
also have ongoing expansion rights within the building. The
landlord shall notify the tenant of the availability of said
premises and the tenant shall have five (5) business days to inform
the landlord of their desire to lease the premises. The failure by
tenant to notify the landlord shall result in the exhaustion of
this right and the landlord shall be free to lease the premises to
a third party.
B.
FIRST RIGHT OF
REFUSAL, PURCHASE. Landlord hereby grants to Tenant a first right
of refusal to purchase the property during the term and any
extensions of this Lease Agreement. If Landlord shall desire to
sell the Premises (subject to the terms of this Lease), and
receives a bona fide offer to purchase, Landlord shall give Tenant
written notice of Landlords intention to sell Landlords interest in
the Premises as contained in said offer to purchase. Such notice
(Landlords Notice) shall state the terms and conditions under which
Landlord intends to sell its interest. For thirty (30) business
days following the giving of such notice, Tenant shall have the
option to purchase the Landlords interest at the same price and
under the same terms as stated in the Landlords Notice. A written
notice, addressed to Landlord and signed by Tenant, within the
period for exercising the Option, submitted with a bank cashiers
check or money order payable to the order of Landlord in the amount
of $100,000.00 (the Xxxxxxx Money) shall be an effective exercise
of Tenants Option.
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3.
RENTAL PAYMENTS.
A. Base
Rental Amount. Tenant shall pay in advance to Landlord rental in
equal installments of Forty Thousand Dollars ($40,000.00) per month
in addition to all applicable Florida sales and/or Federal Taxes.
Presently, Florida state sales tax in Palm Beach County is 7%. Said
rental payments shall begin on the 1st day of November, 2019 and
shall continue on or before the same day of each following month
during the term of this lease. In the event any rental payment is
received by Landlord later than 5 days after the rental due date,
there shall be due, in addition, a late charge in the sum of 5% of
the full rental payment due. In the event Tenant gives Landlord a
bad check, there shall be an additional charge of $50.00. All late
charges and bad check charges shall be considered as additional
rent. All other monetary sums payable by Tenant as prescribed by
other provisions of this lease are likewise considered as
additional rent. Notwithstanding Landlord's right to charge and
collect late charges and bad check charges, nothing herein shall be
deemed to waive Landlord's right to enforce other provisions of
this lease including but not limited to Landlord's right to
consider the lease in default, as hereinafter
described.
B.
Increases in Rent for each year. Effective one year from the lease
commencement date and each year thereafter, the rent shall increase
at least three percent (3%) per year and shall in no event
decrease.
4.
COMMON AREA EXPENSE.
Tenant
shall be liable for the common area maintenance expenses for the
premises. Common area expenses shall include ad valorem (property)
taxes, hazard insurance expense for the building, outside lighting
(including electricity usage therefore), and for maintenance of the
parking areas and common area landscaping. The tenant shall pay
such common area maintenance charges within 15 days of receiving an
invoice therefore. Any of such common area maintenance expense
charges shall be considered additional rent.
5.
SECURITY DEPOSIT.
In
addition to the first and last monthly rental payment due upon
execution of this lease, Tenant shall also deposit with Landlord
the sum of Forty Thousand Dollars ($40,000.00) security deposit,
the receipt of which is hereby acknowledged, as security to
Landlord for the performance by Tenant of all the obligations and
undertakings required to be performed by Tenant under this lease.
If this lease is terminated as a result of the default of Tenant,
the security deposit referred to herein shall become the
unconditional property of Landlord, not as a penalty but as damages
agreed upon by Landlord and Tenant to cover the
following:
Damages
to Landlord for the premises being vacant, for having to relet
premises prior to expired term, including sums necessary to
advertise the premises for rent, show the premises, and clean the
premises. However, Landlord does not by this provision waive its
right to pursue any action to recover from the Tenant any further
damages caused to said premises by the Tenant or for additional
amounts of rent due and unpaid during the period of this lease. If
Tenant shall not be in default hereunder upon the expiration of the
lease term, and if the leased premises shall be returned and
surrendered to Landlord in the same good state and condition as
they were when they were received, except for normal wear and tear,
Landlord shall return said security deposit to Tenant. If Tenant
returns the leased premises to Landlord at the expiration of the
lease term, but there are damages to the leased premises beyond
normal wear and tear, Landlord may make a claim against the
security deposit as provided by law in addition to pursuing other
remedies available.
6.
CONDITION OF THE PROPERTY AND MAINTENANCE OF SAME.
Tenant
hereby accepts the condition of the subject property in "AS-IS"
condition as of the commencement of the term of this lease. Tenant
acknowledges that it has inspected the property and is fully aware
of its condition. Tenant shall do all acts necessary to maintain
the property in the condition of at least that as delivered to
Tenant by Landlord, excepting normal wear and tear, during the term
of this lease. Tenant shall, at its own expense, make all necessary
repairs and replacements to the leased premises, including the
building structure, walls and roof. Included in the Tenant’s
responsibilities of maintenance are the HVAC (heating and
air-conditioning system), plumbing systems, including toilet, sink,
piping, etc., electrical systems, smoke detectors, lawn, shrubs and
trees.
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7.
INSURANCE.
Tenant
shall make arrangements to maintain adequate insurance on its own
personal property located on the leased premises during the term of
this lease agreement. During the term of this lease, Tenant shall
keep the leased property insured, at its sole cost and expense,
against claims for personal injury or property damage under a
policy of general public liability insurance with limits of at
least Three Million Five Hundred Thousand Dollars and no/100
Dollars ($3,500,000.00). Tenant shall further reimburse Landlord
for Landlord’s payment of premiums for hazard insurance to
cover the premises. Hazard insurance shall be in coverage types and
amounts as Landlord may deem necessary and proper. Reimbursement
for hazard insurance premiums to Landlord shall be considered as
additional rent. Tenant shall reimburse Landlord for said hazard
insurance premium expense within 15 days of being presented an
invoice for same. All policies of insurance set forth herein shall
name the Landlord as an additional named insured and shall provide
that it cannot be canceled or revoked except after a minimum of 30
days written notice to the Landlord. Copies of such policies shall
be immediately delivered by Tenant to Landlord upon request of
Landlord, but no less than at each anniversary date of such policy
or policies. It shall be deemed a material part of this agreement
that the Tenant shall maintain and keep in full force and effect
all required policies of insurance during the term of this
lease.
8.
PAYMENT OF TAXES AND UTILITIES BY TENANTS.
It is
expressly understood and agreed that Tenant shall, during the term
of the tenancy, pay and keep current all County Tangible/Personal
Property Taxes or other taxes, Florida State Sales Taxes, Federal
Income Taxes, withholding and Social Security and agrees to
indemnify and hold the Landlord harmless from and against any and
all claims, suits, demands or judgments for the same by any party.
Tenant shall pay for all utility services furnished to the demised
premises, including heat, water, sewer, waste disposal, gas,
electricity, telephone, fire protection and the like, together with
all taxes levied or other charges on such utilities.
9.
RESTRICTION ON USE OF SUBJECT PROPERTY.
It is
understood and agreed that the subject premises shall be used by
Tenant only for the operation of a retail store, restaurant, bar
and/or nightclub. Tenant shall not use or occupy, nor permit the
leased premises or any part thereof to be used or occupied for any
unlawful business use or purpose, nor for any business use or
purpose deemed disreputable or extra-hazardous, nor for any purpose
or in any manner which is in violation of any present or future
governmental law or regulation. Tenant shall not cause the premises
to become contaminated by any hazardous or toxic substance or
materials. Tenant shall be responsible for any such contamination
caused to occur on the property out of or in connection with
Tenant's use of same and any cleanup must be at the sole expense of
Tenant and considered rent due on the next regular rental due
date.
10.
MODIFICATION AND SIGNAGE.
Tenant
may make alterations or modifications to the subject property and
improvements only upon written consent of Landlord, which consent
Landlord shall not unreasonably withhold. Any improvements made to
the property by Tenant shall become the property of the Landlord
and may not be removed without the consent of the Landlord. All
improvements made to the property by Tenant shall be of a quality
as is acceptable to Landlord in its sole discretion. Tenant shall
first before displaying or erecting any signs on or adjacent to the
property submit for the approval of same by Landlord. Signage shall
be displayed or erected only with the written consent of
Landlord.
11.
DEFAULT.
A. In
the event that Tenant shall at any time fail to comply with any
term, provision, or limitation as set forth herein and shall fail
to cure the same within ten (10) days of receiving written notice
of such default from Landlord (except that there shall be no
requirement for written notice of default from Landlord to Tenant
for the non-payment of rent other than that prescribed under
Florida Law), then Landlord shall have the right and option to
thereupon terminate this Lease Agreement without waiving any rights
to damages or other relief as permitted under law, in which event,
the Tenant agrees to immediately surrender and deliver up the
demised premises and property peaceably to Landlord.
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B. If
Tenant becomes bankrupt, or files any debtor proceedings or takes
or has taken against Tenant in any court pursuant to any statute
either of the United States or of any other State, a petition in
bankruptcy or for insolvency, reorganization, or the appointment of
a receiver or trustee of all or a portion of Tenant's property, or
if Tenant makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement, then and in that
event, this Lease shall, at the option of Landlord, be canceled and
terminated and any party claiming on behalf of Tenant shall not
have any rights whatsoever under this Lease.
C.
Landlord shall have a lien upon all personal property of the Tenant
coming upon the premises in the due course of Tenant's business for
any and all rents or other amounts that become due to Landlord
under the terms and conditions hereof and during the term of this
lease.
12. NO
WAIVER.
No
waiver of any covenant or condition or of the breach of any
covenant or condition of this Lease shall be taken to constitute a
waiver of any subsequent breach of such covenant or condition nor
to justify or authorize the nonobservance on any other occasion of
the same or of any other covenant or condition hereof, nor shall
the acceptance of rent by Landlord at any time when Tenant is in
default under any covenant or condition hereof, be construed as
waiver of such default or of Landlord's right to terminate this
Lease on account of such default; nor shall any waiver of such
default or of Landlord's right to terminate this Lease on account
of such default or any waiver or indulgence granted by Landlord to
Tenant be taken as an estoppel against Landlord, it being expressly
understood that if at any time Tenant shall be in default in any of
its covenants or conditions hereunder, an acceptance by Landlord of
rental during the continuance of such default or the failure on the
part of Landlord promptly to avail itself of such other rights or
remedies as Landlord may have, shall not be construed as waiver of
such default, but Landlord may at any time thereafter, if such
default continues, terminate this Lease on account of such default
in the manner hereinbefore provided.
13.
INDEMNITY AND LIABILITY DISCLAIMED.
A.
Tenant shall indemnify and hold Landlord harmless from and against
any and all liabilities, suits, claims, demands, actions, costs,
and expenses due to or arising out of violation or non-performance
of, or default in observing, any covenant, condition or agreement
in this Lease to be fulfilled, kept, observed and performed by
Tenant; damage to property occasioned by Tenant's use and occupancy
of the demised premises or to any use or occupancy which Tenant may
permit or suffer to be made of the demised premises; and injury or
death to persons occurring in or about the demised
premises.
B.
Tenant shall be responsible for and liable to Landlord for any
damages incurred to the leased premises and any adjacent premises,
including any fixtures or equipment, as a result of fire or other
casualty caused by the negligence or willful acts of Tenant,
Tenant's employees, agents, customers or invitees and the same
shall be deemed additional rent becoming due on the next regular
rental payment date.
14.
DESTRUCTION OF PREMISES BY CASUALTY.
In the
event the leased premises are rendered un-tenantable by reason of
fire, explosion, hurricane, or other casualty, Landlord, at its
option, may either repair the premises to make the same tenantable
within ninety (90) days thereafter, or may, at its option,
terminate this lease. In the event of such termination, Landlord
shall give Tenant thirty (30) days notice in writing, whereupon
this lease shall be terminated in accordance with such notice. The
termination date does not have to be at the end of a rental month.
If the premises be damaged but not rendered un-tenantable, the
rental due hereunder shall not cease or be abated during the period
of repair of such damage but Landlord shall proceed with such
repairs as expeditiously as possible under existing circumstances.
Landlord shall not be liable for any injury or damage to persons or
property caused by such casualty. In any event, Tenant shall not be
liable for rent for any period when the premises are
un-tenantable.
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15.
RIGHT TO MORTGAGE.
Landlord
reserves the right to subject and subordinate this Lease to the
lien of any mortgage or mortgages now or hereafter placed upon the
Landlord's interest in the demised premises and on the land and
buildings of which they are a part. The Tenant will execute and
deliver upon demand such instrument or instruments subordinating
this Lease to the lien of any mortgage or mortgages as shall be
desired by the Landlord or any proposed Mortgagee. Tenant shall
further promptly execute and deliver such instruments, estoppel
letters or certificates reasonably requested to be provided to
Landlord's Mortgagees or to any party to whom Landlord has or may
become obligated to provide security.
16.
ASSIGNMENT AND SUBLET.
Tenant
shall not have the right to assign this Lease or sublet the same,
without the written consent of Landlord, which consent may be
withheld by Landlord for any reason Landlord deems sufficient. If a
beneficial interest or any amount of stock or other indicia of
ownership in Tenant is sold or transferred without Landlord’s
prior written consent and Tenant is not a natural person or persons
but is a corporation, partnership trust or other legal entity, it
shall be deemed a violation of this paragraph.
17.
LIENS.
Tenant
shall not cause or permit any lien, mortgage, encumbrance, or other
claim against the subject premises and property without the express
written consent of Landlord. Tenant shall immediately indemnify the
Landlord in the event of such lien, mortgage, encumbrance or other
claim accrues against the property through any action or inaction
of Tenant.
18.
QUIET ENJOYMENT.
Landlord
covenants and agrees that so long as Tenant shall keep and perform
each and every covenant, term, provision and condition as set forth
herein, Tenant shall have quiet and undisturbed and continued
possession of the premises during the term of this Lease, free from
any claims against Landlord and all persons claiming under, by or
through Landlord.
19.
EXAMINATION OF PREMISES BY LANDLORD.
Landlord
and its agents shall have the right to enter upon the premises at
all reasonable times to examine the condition and use thereof or to
show same to a prospective future tenant, provided only that such
rights shall be exercised in such manner so as not to interfere
with Tenant in the normal conduct of Tenant's
business.
20. END
OF LEASE.
Upon
termination of the tenancy, Tenant shall promptly deliver
possession of the subject premises and property to Landlord in good
and proper condition, as set forth herein; and Tenant shall
thereupon remove all of Tenant's property.
21.
ADDRESSES FOR WRITTEN NOTICE.
Any
written notices as specified herein shall be made to the parties at
the following addresses or at such other addresses as each party
may inform the other of in writing:
Landlord:
SKYBAR HOLDINGS,
LLC
000 Xxxxxxxx
Xxxx
Xxxxxxx
Xxxxx, XX 00000
Tenant:
in care
of the leased premises.
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22.
CONDEMNATION/ EMINENT DOMAIN.
In the
event the whole or any part of the building or the real estate of
which the demised premises are a part shall be taken or condemned
for any public or quasi-public use or purpose, Landlord may, at its
option, terminate this Lease Agreement from the time title to or
right to possession shall vest in or be taken for such public or
quasi-public use or purpose and Landlord shall be entitled to any
and all income, rent, awards or any interest therein whatsoever
which may be paid or made in connection therewith.
23.
ATTORNEY'S FEES.
In any
legal proceeding, including appellate proceedings concerning this
Lease Agreement, the prevailing party shall be entitled to costs
together with reasonable attorney's fees.
24.
SUCCESSION.
This
lease Agreement shall bind the heirs, assignees, administrators,
legal representatives, executors or successors as the case may be
of both parties, however, this shall not expand the right of tenant
to sublet the premises beyond the provisions set forth
above.
25.
FLORIDA LAW.
The
parties understand and agree that the relationship between them is
that of Landlord and Tenant, and it is specifically understood and
agreed that this Lease Agreement and the relationship between the
parties shall be construed in accordance with the laws of the State
of Florida.
26.
WAIVER OF JURY TRIAL.
The
parties hereby specifically waive their right to demand a jury
trial in respect to the enforcement of this agreement.
27.
ENTIRE AGREEMENT; NO RECORDATION OF AGREEMENT.
A. This
Lease Agreement contains the entire agreement between the parties
hereto with respect to the letting and hiring of the demised
premises described above and this Lease Agreement may not be
amended, modified, released or discharged in whole or in part,
except by an instrument in writing signed by the parties hereto,
their respective successor or assigns.
B. The
parties understand and agree that neither this Commercial Lease
Agreement nor any memorandum or short form thereof shall or may be
recorded in any of the public records of this or any other
State.
28.
SEVERABILITY OF PROVISIONS, GENDER, ETC.
In the
event any provision or a portion of any provision of this
Commercial Lease Agreement is declared unenforceable or invalid by
any court or administrative body having jurisdiction, the remaining
provisions of the lease agreement shall be deemed enforceable and
shall remain in full force and effect. Any reference herein to the
masculine or feminine shall be interchangeable herein as well as
any reference to the singular or plural.
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29.
RADON. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and
radon testing may be obtained from your county public health
unit.
30.
TIME OF THE ESSENCE. Time shall be of the essence in interpreting
the provisions of this Lease Agreement. IN WITNESS WHEREOF, the
parties have hereunto set their hands and seals the day and year
first above written.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their duly authorized representatives as
of the date first written above.
Tenant:
EXACTUS,
INC., a corporation organized and existing under the laws of
Nevada.
By: /s/
Xxxxxxx
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
CEO and Director
Landlord:
Skybar
Holdings, LLC, a Florida Limited Liability
Company
By: /s/
Xxxxxxxxx
Xxxxxxxxx
Xxxxxxxxx Xxxxxxxxx,
Manager
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