LEASE AGREEMENT
This LEASE AGREEMENT made this 1st day of October,1996, by and between
TIERRA VERDE MARINA DEVELOPMENT CORPORATION., a Florida corporation, hereinafter
referred to as "Lessor", and EUROPA STARDANCER CORPORATION, a Delaware
corporation, authorized to do business in the State of Florida, hereinafter
referred to as "Lessee".
Whereas, Lessor is the owner of certain real property known as the TIERRA
VERDE RESORT AND MARINA (hereinafter:TVRM) suitable for the operation of a
cruise vessel; and,
Whereas, Lessee is in the business of operating cruise vessels and desires
to lease certain dockside facilities at the Tierra Verde Resort and Marina for
the operation of a cruise vessel. Now, therefore, the Parties mutually covenant
and agree as follows:
ARTICLE I - LEASED PREMISES, DESCRIPTION, TERM
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A. Lessors hereby lease and demise to Lessee, and Lessee hereby leases
from Lessors, the "LEASED PREMISES" which shall consist of: A.) One (1) wet
storage berth, at TVRM's current southwesternmost pier, for an excursion vessel
of 150' to 175' in length. B.) Space in the TVRM main lobby for a ticket booth
and small office. C.) A waiting area in the TVRM main lobby area sufficient to
accommodate the vessel's passengers. D.) A number of parking spaces, in the TVRM
parking lots adjacent to the TVRM main entrance, sufficient to accommodate 250
passengers. E.) Space at the now southwesternmost parking area of the TVRM for
the accommodation of VIP passengers and employees. F.) A small storage room for
the holding of supplies and equipment. The leased premises shall be located at
the Tierra Verde Resort and Marina, 000 Xxxxxxx Xxxx., Xxxxxx Xxxxx, Xxxxxxx
00000.
B. The initial term of this lease agreement shall be for twelve (12)
months commencing November 1, 1996, and ending on October 31, 1997. The initial
term of this lease may be extended at Lessee's option as provided in Article III
below.
C. This lease is subject to Lessee timely obtaining all necessary licenses
and permits required to operate a cruise operation similar to that Lessee
currently operates in its other Florida ports.
ARTICLE II - RENT AND ADDITIONAL CHARGES
----------------------------------------
A. Upon commencement of this Lease as set forth in Article I above, and
during the initial term, Lessee agrees to pay as annual rent Two Dollars ($2.00)
per paying passenger or Seventy Two Thousand Dollars ($72,000.00) per year,
whichever is greater. Lessee shall supply Lessors on or before the fifteenth day
(15th) of the month following each month of operation an accounting of the total
number of paying passengers accommodated by Lessee together with a check in
payment for the rent as computed herein. Lessee at its sole discression, shall
determine the operating schedule, if any, of the cruise vessel.
B. In addition to the rent as provided in Article II A. above and Article
III B. below, Lessee shall pay all state or local sales tax payments due on the
lease payments, which are, or may be, in effect at the time any rent payment is
due hereunder.
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ARTICLE III - OPTIONS TO EXTEND LEASE TERM
------------------------------------------
A. Prior to the expiration of the initial term of this lease, Lessee shall
have the option to extend the term of this lease for five (5) additional one (1)
year terms by providing Lessors with written notice of Lessee's intent to extend
the term of the lease for the next up-coming one-year term. Such notice to
extend will be provided by Lessee to Lessor not later than 60 days prior to the
expiration of the then-current lease term.
B. If Lessee elects to exercise its option(s) to extend the term of this
lease, Lessor and Lessee agree that the financial terms of the extended lease
agreement will remain the same as enumerated in Article II, A and B.
ARTICLE IV - INSURANCE
----------------------
Upon commencement of the lease, Lessee agrees to and shall secure from a
reputable insurance carrier or carriers licensed to do business in the State of
Florida, and shall maintain during the entire term of the lease, its own
liability insurance (in an amount not less than One Million Five Hundred
Thousand Dollars ($1,500,000.00), and property insurance on the leased building
space, on the berthed vessel or on any equipment, furniture, and fixtures
therein. Lessee further agrees that Lessors shall be named as an additional
insured on the aforementioned policy or policies of insurance.
ARTICLE V - UTILITIES
---------------------
A. Upon commencement of this lease, Lessee shall pay for all utilities
needed in connection with the berthing of the ship, except that Lessor will be
responsible for payment of electrical service charges necessary to properly
light walkways and docks leading to the ship's berth at the dock. Lessor will
pay all utility costs associated with the Ticket Booth/office/storage room
location excluding those enumerated in Article B below.
B. All telecommunications services, including installation, repairs, and
usage charges, shall be the sole responsibility of Lessee.
X. Xxxxxx will pay for the installation of a one and one-quarter inch
(1-1/4") potable water line, with meter, to ship's dockside location. Lessee
will reimburse Lessor for actual water costs, including the associated sewer
charges, on a monthly basis, one month in arrears, based on metered consumption.
ARTICLE VI - ASSIGNMENT AND SUBLEASE
------------------------------------
Lessee hereby acknowledges and agrees that it shall not have the right to
assign or sublease Lessee's interest in this lease, without first having
obtained the written consent to said assignment or sublease from Lessor, which
consent will not be unreasonably withheld. Lessee shall have the right to assign
or sublease its interest to a parent company, a subsidiary corporation, or an
affiliate without requiring prior written consent of Lessors.
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ARTICLE VII - HOLD HARMLESS
---------------------------
Lessee hereby acknowledges and agrees that it shall protect and hold
harmless Lessors and the leased premises from liability from any and all
taxes, assessments, charges, liens, (including mechanics' liens), together
with any interest, penalties, or other sums thereby imposed, and from any and
all claims, suits, actions, damages or causes of action arising out of the
operations of the Lessee, during the term of this lease, for any personal
injury, loss of life or damage to property sustained in, on, or about the
leased premises by reason of, or as a result of, Lessee's negligence. Lessee
further acknowledges that Lessee will not, and cannot, subject the leased
premises or any portion of the property in which, and upon which, the leased
premises is located, to any lien of any sort, including mechanics' lien.
ARTICLE VIII - LESSEE'S OBLIGATIONS
-----------------------------------
A. Lessee hereby agrees to use the leased premises pursuant to the terms
of this lease and in accordance with all applicable laws and ordinances.
B. Lessee hereby acknowledges and agrees to exercise reasonable care while
using any of the common areas of the Lessors property with due regard for the
preservation of the property and the comfort of other tenants.
C. Lessee hereby acknowledges and agrees it shall not dispose of any waste
on the leased premises except those placed in proper receptacles which Lessee
agrees to secure for its use for the disposal of trash/garbage generated by its
operation. Lessor agrees to make space available to Lessee, without charge, for
placement of "dumpsters" at a location within reasonable proximity to ship's
berth. Lessee further agrees not to maintain, or permit the maintenance or
commission of, any nuisance on the leased premises.
D. Lessee hereby acknowledges and agrees that the leased space has been
received in good condition and that the execution of this lease and the taking
possession hereunder shall be conclusive evidence and any representations as to
the condition of said leased spaced by the Lessor have been met. Any
discrepancies will be agreed upon between the Lessor and Lessee or their
representatives before a notice of commencement is signed and initiated.
E. Lessee hereby acknowledges and agrees to keep and maintain the leased
space consistent with the general condition of the marina and in as good a
condition as said leased space was in upon execution of the lease, with
reasonable wear and tear expected.
F. Lessee hereby acknowledges and agrees not to make any alterations or
changes in leased premises without the express written consent of Lessor, which
consent will not be unreasonably withheld.
G. Lessee's business activities, on the leased premises and the adjoining
premises of the Lessor, shall be limited solely to implementing and carrying out
offshore pleasure cruises and charters, and specifically shall not include
fishing activities unless previously authorized in writing by the Lessor.
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ARTICLE IX - INSPECTION BY LESSORS
----------------------------------
Lessee hereby acknowledges and agrees that Lessor or its agent may enter
into and upon the demised areas at all reasonable times for the purpose or
inspection, making repairs or alterations, except that no repairs which would
prevent Lessee's operations from proceeding without interruption will be
commenced by Lessor without the prior agreement and consent of Lessee.
ARTICLE X - DEFAULTS AND REMEDIES
---------------------------------
If Lessee shall allow the rent to be in arrears more than ten (10) days
after the due date of any installment, after being advised in writing thereof,
or if there shall be any other default on the part of the Lessee which continues
for ten (10) days after delivery of written notice from Lessor of such default,
or should any person other than Lessee secure possession of the premises, or any
part thereof, by reason of receivership, bankruptcy proceedings, or operation of
law in any manner whatsoever, Lessor may, at its discretion, without notice to
Lessee, declare the lease to be breached and in default, and enter and take
possession of said premises, owned and leased herein, and remove all persons and
property therefrom without being deemed guilty of any manner of trespass, and
re-let the premises, or any part thereof, for all of any part of the remainder
of said term, to a party satisfactory to Lessor, and at such monthly rental as
Lessor may with reasonable diligence be able to secure. In the event Lessor
exercises its option to take possession, and should Lessor be unable to re-let
after reasonable efforts to do so, or should such rental be less than the rental
Lessee was obligated to pay under this lease, or any renewal thereof, plus the
expense of reletting, then Lessee shall pay the amount of such deficiency to
Lessor. In no event shall Lessor be obligated to find a new tenant on behalf of
Lessee.
ARTICLE XI - MISCELLANEOUS
--------------------------
A. Lessee will be permitted, at its expense, the erection of various signs
upon the Lessors' premises. All signs, their content, location, and construction
details shall be in compliance with any applicable laws or ordinances and shall
be approved by the Lessor, in writing, before erection, which approval shall not
be unreasonably withheld.
B. Lessee may use the existing parking facilities of the TVRM for its
customers, employees, and vendors. The use of the existing facilities shall not
interfere with the existing operations of the leased premises, or its patrons,
except as may be consistent with the Lessee's normal operations of a cruise
vessel business.
C. Lessee may use certain marina areas as a passenger waiting area,
provided the areas do not adversely interfere with Lessors' normal patron access
to its docking areas. All improvements of this area, if any, will be at Lessee's
option and will be at Lessee's expense and are subject to written approval of
Lessor.
Any improvements made by Lessor shall be at Lessor's expense.
D. It is understood that berthing accommodations for the cruise ship may
require additional breasting and/or mooring pilings and cleats, and the
installation of special metered electrical and water service. Lessee shall be
responsible for the actual design of the improvements, if any, and for prompt
payment of contractor(s) employed by Lessee to perform services in order that no
mechanic's lien attaches. Lessor shall be responsible for obtaining all
necessary license and approvals. Upon termination of the lease, Lessee shall be
entitled to remove all of its improvements, except pilings, docks, and the water
line and meter to be installed. Lessor shall reimburse Lessee for dredging
necessary within the TVRM area to provide draft for Lessee's vessel, if ever
necessary, subject to obtaining permits.
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E. With reference to D above, it is agreed that Lessor will reimburse
Lessee in an amount equal to fifty per cent (50%) of the total cost of design
and construction, if necessary, of enhanced mooring "dolphins", by providing one
hundred percent (100%) rental credit, beginning on the first day of passenger
operations, and lasting until the entire amount due Lessee has been credited.
X. Xxxxxx will pay for necessary sidewalk installation and/or improvement,
including railings and lighting, suitable to Lessee, necessary to provide a
walkway from the Ticket Booth to the ship's gangway. Such installations and
improvements to be mutually agreeable to both parties.
X. Xxxxxx will pay for necessary clean-up/landscaping of areas adjacent to
passenger parking areas and walkways to the ship.
X. Xxxxxx shall have the right of first refusal to provide fuel for
Lessee's vessel at the leased premises. Lessor agrees that this right of first
refusal is conditioned upon Lessor being able to timely supply Lessee, at the
ship's berth, with the type and grade of fuel specified by Lessee, in quantity
required by Lessee, and at a total cost no greater than Lessee incurs from other
vendor(s). In the event that Lessor cannot meet these terms, Lessor understands
and agrees that Lessee will arrange for the fueling of its vessel with other
supplier(s) utilizing tanker truck delivery.
I. All notices provided to be given under this Agreement shall be given by
certified or registered mail, addressed to the proper party, at the following
address:
LESSOR: TIERRA VERDE RESORT, INC.
000 XXXXXXX XXXXXXXXX
XXXXXX XXXXX, XXXXXXX 00000
LESSEE: EUROPA STARDANCER CORPORATION
000 000XX XXXXXX, XXXXX 000
XXXXXXX XXXXX, XXXXXXX 00000
In the alternative, written notice required to be given under this
Agreement may be delivered by facsimile transmission as follows:
If to the Lessor:
Xxxxxx Xxxxxx (000) 000-0000
If to the Lessee:
Xxxxxx Xxxxxxx (000) 000-0000
AND TO
Xxxxxxx Xxxxxx, Esq. (000) 000-0000
J. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and assigns.
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K. This Agreement shall be construed under and in accordance with the laws
of the State of Florida.
L. In the event that any one or more of the provisions contained in this
lease shall, for any reason, be held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality, or unenforceability shall not affect
any other provision thereof and this lease shall be construed as if such
invalid, illegal or unenforceable provisions had never been contained therein.
M. This lease constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings, or written or oral agreements
between the parties respecting the subject matter within it.
N. No amendment, modification, or alteration of the terms hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof, and
duly executed by the parties hereto.
O. The rights and remedies provided by this lease are cumulative and the
use of any one right or remedy by either party shall not preclude or waive its
right to use any or all other remedies. Said rights and remedies are given in
addition to any other rights the parties may have by law, statue, ordinance, or
otherwise.
P. No waiver by the parties hereto of any default or breach of any term,
condition, or covenant of this lease shall be deemed to be a waiver of any other
breach of the same or any other term, condition, or covenant contained herein.
Q. Neither Lessor nor Lessee shall be required to perform any term,
condition, or covenant in this lease so long as such performance is delayed or
prevented by any acts of God, strikes, lockouts, material or labor interuptions,
restrictions by any governmental authority, civil riot, floods, and any other
cause not reasonably within the control of Lessor or Lessee, and which by the
exercise of due diligence Lessor or Lessee is unable, wholly or in part, to
prevent or overcome.
X. Xxxxxx agrees that it shall not engage in or allow any business
activity on the leased premises which is in competition with Lessee's cruise
operation, including leasing space to any other cruise ship operation engaged in
on-board gaming, nor shall the Lessor engage in any cruise ship operation or
gaming activity on or about the leased premises. Lessor also agrees that at no
time during the length of this lease, shall any other person, entity, vessel or
association be permitted to engage in, or operate, on-board or other gaming from
premises owned, operated, or managed by Lessor, within one mile of the site
discussed in Article 1.
S. The exact method and physical location of parking for passenger and
employee vehicles will be by mutual agreement of Lessor and Lessee, except that
in no case will parking for either passenger or employee vehicles be required
away from the confines of the TVRM as it exists at the time of the signing of
this original lease agreement.
T. The exact method and physical routing of passengers from the Ticket
Booth to the ship's berth will be by mutual agreement of Lessor and Lessee,
except that all "VIP" passengers, who so desire, may drive directly to the "VIP
Parking Area" immediately adjacent to the ship's dock, and board the ship
directly, being ticketed on board the vessel. Lessee agrees that the "VIP"
privilege will not be used to circumvent the original intent of this paragraph
"T".
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ARTICLE XII
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In the event that the State of Florida should succeed in banning cruise
casino vessels by moving to cancel the submerged land lease of Lessor's TVRM
property, and if Lessor is unable to prevent, via a vigorous legal defense, the
State of Florida from proceeding with such cancellation, the parties agree that
this lease will become null and void at the point at which the Court of final
jurisdiction rules that the State of Florida may proceed with its cancellation
of Lessor's submerged land lease.
ARTICLE XIII
------------
If Lessor's property is sold or leased to a third party during any term of
this lease, Lessor will have the right to cancel this lease upon the expiration
of the then-current term of the lease, plus one additional remaining term, if
any then remain. Lessor agrees, in the event of such a sale as described above,
to reimburse Lessee for any and all improvements, made at Lessee's expense, to
Lessor's property. Further, Lessor agrees to make any sale of its TVRM property
to any third party subject to the following provision:
"Purchaser(s) agree(s), as a condition of sale, that purchaser, its
agents, managers, fiduciaries, heirs, and/or assigns, shall not themselves
operate, nor shall they lease nor sell operating rights to any other individual,
group, or company, permitting the operation of any vessel engaged in on-board
gaming of any type whatsoever for a period of thirty-six (36) consecutive months
immediately following the date that Europa Stardancer Corporation's vessel
ceases operations at TVRM's port by reason of the sale or lease of said property
whereby new owners elect to cancel that certain lease dated October 1,1996, by
and between TIERRA VERDE MARINA DEVELOPMENT CORPORATION and EUROPA STARDANCER
CORPORATION."
IN WITNESS WHEREOF the undersigned Lessor and Lessee hereto execute this
lease as of the date and year first above written.
Witnesses: LESSOR
Terra Verde Marine Development Corp.,
_______________________________ a Florida Corporation
_______________________________ By:________________________________
Xxxxxx Xxxxxx, Vice President
LESSEE
Europa Stardancer Corporation,
________________________________ a Delaware Corporation
_______________________________ By:________________________________
Xxxxxx X. Xxxxxxx, President
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