LEASE
THIS LEASE made and entered into this 16th day of December, A.D., 1996,
by and between Rose & Xxx, Inc., a Florida corporation, hereinafter called
"LESSOR," whose principal office is at 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxxx,
Xxxxx, XX 00000, and Boat Tree, Inc., a Florida corporation, hereinafter called
"LESSEE."
1. PREMISES
LESSOR, for and in consideration of the covenants and
agreements hereinafter contained and made on the part of LESSEE, does hereby
demise and Lease to LESSEE the premises known as 0000 Xxxxx Xxxxxxxxx, in the
City of Jacksonville Beach, County of Xxxxx, and State of Florida (hereinafter
the "Leased Premises"). Ingress, egress and parking areas will be for common use
of the LESSOR, LESSEE and all other tenants. LESSOR agrees, at its cost and
expense, and at all times in compliance with all applicable laws, to finish the
Leased Premises in accordance with the specifications dated
______________________ which have been initialed by the parties and attached
hereto as Composite Exhibit A. The LESSOR shall complete the improvements within
90 days from the execution of this Lease but this period shall be extended for
all delays in construction resulting from causes beyond the control of the
LESSOR. Notwithstanding any terms or conditions to the contrary or otherwise set
forth in this Lease, in the event that such construction is not completed in
accordance with the terms and conditions of this Lease, for any reason
whatsoever, within 150 days following the execution of this Lease, then the
LESSEE shall have the option to cancel and terminate this Lease, in which event
the Lease shall be deemed void and of no further force or effect between the
parties whatsoever. Any changes in the attached specifications requested or
required by the LESSEE shall be made only upon a written order signed by the
LESSEE and the LESSOR. All such change orders shall state the cost of the
change, which cost shall be paid by the LESSOR, unless otherwise agreed, within
30 days from the date of the written change order. With the exception of the
above-referenced change orders, if any, that may be requested or required by the
LESSEE, any and all expenditures necessary or required to complete construction
in accordance with the specifications that may result from additional or
concealed conditions, foreseen or unforeseen, relative to such construction
shall be borne by the LESSOR and not by the LESSEE.
2. TERM
2.1 Initial Term.
The initial term of this Lease shall be for a five (5) year
term commencing on the first day of the month in which the LESSEE first occupies
the Leased Premises, and terminating five (5) years thereafter. The parties
agree to confirm in writing the commencement and expiration dates in writing
upon occupancy by the LESSEE in the form attached hereto as Exhibit B.
2.2 Options to Extend Term.
Provided that LESSEE shall have performed the terms and
conditions of this Lease including, but not limited to, the agreement to pay
rent, then and in that event, the LESSEE shall have the option to renew this
Lease, upon the same terms and conditions for two (2) successive terms of five
(5) years each. To exercise the option, the LESSEE shall give written notice to
LESSOR of the LESSEE's election to exercise the option not less than six (6)
months prior to the expiration of the then existing term.
2.3 Early Termination Option.
Provided that the LESSEE shall have performed the terms and condition of this
Lease including, but not limited to, the agreement to pay rent, then the LESSEE
shall have the option to terminate this Lease prior to its expiration at any
time after the first twenty-four (24) months of this Lease. The option to
terminate early shall L#e exercised by LESSEE giving written notice to the
LESSOR of its election to terminate early not less than three (3) months prior
to the early termination date. Such notice shall be accompanied by an early
termination fee of $30,000.00 payable at the time the notice of the election for
early termination is given to the LESSOR. Any early termination shall be without
prejudice to LESSOR's right to collect any sums due to LESSOR through the date
of termination.
3. RENT.
A. LESSEE shall pay no basic monthly rent for the first two months of the
term of this Lease.
B. Following the first two months and continuing during the remaining term
of this Lease, the LESSEE shall pay on the first day of each month to the LESSOR
rent and other charges, without demand or notice. During the term of this Lease
and during each option period, rent shall be $4,500.00 per month plus sales tax
plus an annual payment equal to two (2%) percent of LESSEE's Gross Sales
(hereinafter defined) in excess of $3,500,000.00 annually. Gross Sales include
the total of all sales of new and used boats and excludes the sale of other
merchandise or accessories and sales taxes. Installment sales shall be treated
as a sale for the full price in the month in which the sale is made. On or
before the 20th day of each lease year during the term and the year following
the expiration or termination of this Lease, LESSEE shall deliver to LESSOR a
statement of Gross Sales made during the preceding twelve-month period. For
purposes of this provision, lease years shall be successive, twelve-month
periods beginning with the first day of the month in which the Lease term
commences. If an accounting is required for a period less than the prescribed
twelve-month accounting period, the percentage rent due based on Gross Sales
shall be prorated for such shorter period. The LESSEE's statement of Gross Sales
shall be verified by a duly qualified officer or representative of the LESSEE.
The LESSEE shall maintain with respect to the business transacted at the Leased
Premises, sufficient information to permit a calculation of Gross Sales and the
LESSOR shall have the right to examine such books and records at any
reasonable time.
C. LESSEE shall be liable for and shall pay all taxes levied
upon personal property and trade fixtures located in the Leased Premises whether
placed therein or owned by the LESSEE or the LESSOR.
D. In the event the rent is not received by the LESSOR on or
before the fifth day of the month, the LESSEE shall be liable for and shall pay,
as and for additional rent, a charge of 1 % of the normal monthly rent per day
late up to the fifteenth day following the due date. All such additional rent
shall be paid by the LESSEE not later than the fifth day of the following month
if not sooner paid.
E. In no event shall rent be subject to setoffs or deductions.
No payment by the LESSEE or receipt by the LESSOR of a lesser amount than
actually due, including, if appropriate, late charges, shall be deemed other
than a payment on account of the earliest rent or additional rent due, nor shall
any endorsement or statement on any check or on any letter accompanying any
check or payment as rent be deemed ~n accord and satisfaction and the LESSOR may
accept such check or payment without prejudice to the right to recover the
balance of the rent or additional rent, to terminate this Lease for LESSEE's
default or to pursue any other remedy provided for in this Lease.
F. In addition to the rent called for by Sub-Paragraph (B).
all other charges required to be paid by LESSEE under the provisions of this
Lease shall be deemed to be and become additional rent, whether or not the same
be designated as such; provided, however, all provisions dealing with abatement
of rent shall be construed to permit the abatement of the Sub- Paragraph (B)
rent component only and not any other sums due from LESSEE to LESSOR.
4. UTILITY CHARGES
LESSEE agrees to pay all utility charges which may be levied,
assessed or imposed upon said Leased Premises. Should LESSEE fail to pay any
billing for such charges when due, LESSOR may, but is not required to, pay such
billing in which event the amount so paid shall be additional rental then due
and owing. LESSOR shall not be liable for any interruption or failure whatsoever
in utility services or for any damage resulting to the LESSEE of the Leased
Premises therefrom.
5. PREPAID RENT
The LESSEE shall upon the execution of this Lease deposit with
the LESSOR as prepaid rent for the third month of the Lease the sum of $4,500.00
plus sales tax. LESSEE shall upon occupancy deposit with the LESSOR as prepaid
rent for the 36th month of the Lease, the sum of $4,500.00 plus sales tax.
It is agreed by and between the parties that the amounts paid
hereunder shall be prepaid rent for the designated months. In the event the
LESSEE shall default in the payment of any monthly rental installment or any
other rental payment and such default remains uncured within the time allowed
under the terms of this Lease, then the LESSOR shall have the right but not the
obligation to apply sufficient sums from the prepaid rent for the payment of
said rent arrearage plus any interest which may be due. When such rent arrearage
is cured by the payment of appropriate sums due by the LESSEE, the LESSOR shall
credit the amount paid to the prepaid rent hereunder provided no other moneys
are then owing to LESSOR by LESSEE by virtue of any provision of this Lease.
6. PURPOSE
The Leased Premises shall be used only for the sale of new and
used boats and accessories. Sale of used boats shall be limited to used boats
taken as trade-ins related to sales of new boats made from the Leased Premises.
LESSOR agrees that during the term of this Lease including any extensions,
LESSEE shall have the exclusive right, within the marina of which the Leased
Premises are a part, to sell new boats and the rental of boats and the rental of
jet skis and jet boats. The LESSOR reserves the right to have other used boat
brokers and marine store facilities within the Marina of which the Leased
Premises are a part.
The LESSOR agrees to perform any and all necessary service
work on boats or vessels that may be required by the LESSEE or its customers.
LESSEE shall have the right to approve the mechanics assigned to work performed
for LESSEE, which approval shall not be unreasonably withheld. LESSOR will
charge LESSEE an hourly mechanic's fee of $25.00 per hour. The LESSOR reserves
the right to change the hourly mechanic's fee in the event the LESSOR changes
the hourly labor rates it generally charges all of its customers. LESSEE agrees
during the term of this Lease, including any extension, to sell to LESSOR parts
and materials for use in LESSOR's marine service business for an amount equal to
LESSEE's cost plus 5%. The LESSOR will not charge the LESSEE any lift charges
for the first 1 2 months of the Lease unless the LESSEE charges its customers
for a lift charge. In the event the LESSEE charges its customers for a lift
charge, the LESSOR shall be authorized and allowed to charge the LESSEE for lift
charges at 50% of the amount normally charged to customers. Following the first
1 2 months of the Lease, the LESSOR may charge the LESSEE for lift charges at a
rate to be agreed to by the parties.
7. ASSIGNMENT OR SUBLETTING
LESSEE shall not assign or sublet the Leased Premises in whole or in
part to any person, firm or corporation, without the prior written consent of
LESSOR, which consent shall not be unreasonably withheld. No subletting or
assignment of this Lease shall relieve the LESSEE from any of its obligations
hereunder.
8. INSURANCE
LESSEE agrees to maintain the following insurance coverages:
A. Public liability insurance in such amounts as may be necessary to
indemnify against any loss and which insurance policy shall specifically cover
LESSOR as a named insured in amounts of $1,000,000.00 in case of injury to one
person and $1,000,000.00 in case of injury to more than one person and to the
limit of not less than $100,000.00 in respect to property damage, medical
payments of $250.00 each person and $10,000.00 each accident.
B. Broad form casualty coverage for the LESSEE's contents
(including any equipment which is included with this Lease) and signs including
extended coverage clauses.
C. Proof of all insurance required hereunder shall be
delivered to LESSOR prior to delivery of possession to the LESSEE and proof of
continuing coverage shall be delivered as and when the initial coverage expires
or is terminated.
D. LESSEE agrees that the LESSOR shall have no liability
whatsoever or to any extent for or on account of any injury to any property of
LESSEE or LESSEE at any time for or on account of the destruction of LESSEE's
property in or around the Leased Premises, it being the parties' agreement that
the LESSEE shall bear all risk of loss associated with its property.
LESSEE agrees to furnish LESSOR with a certificate or certificates of
such insurance policy or policies, stating therein the number of each such
policy and the date of expiration of each policy. Each of the policies must
contain a provision that the same may not be canceled without the giving of ten
days prior written notice to LESSOR herein. All insurance must be written with
carriers acceptable to LESSOR, which acceptance shall not be unreasonably
withheld. In the event LESSEE fails to obtain and maintain the required
insurance, LESSOR, or its representative, is hereby authorized (but not
required) to procure the foregoing insurance for LESSEE and LESSEE agrees to pay
the cost of the premium therefor on demand, and such sum shall be deemed to be
additional rent.
9. FIXTURES
All of LESSEE's trade fixtures and other fixtures and all
personal property, apparatus, machinery and equipment installed by LESSEE on the
Leased Premises (other than those provided by LESSOR) except such as have been
affixed thereto, shall be and remain the personal property of the LESSEE and the
same are herein referred to as "LESSEE's equipment." LESSEE's equipment may be
removed from time to time by LESSEE provided it is not in default under the
terms of this Lease and provided, if such removal shall injure or damage the
Leased Premises, that LESSEE shall repair the damage and place the Leased
Premises in the same condition as it would have been if such equipment had not
been installed and removed.
10. CONDITION OF THE PREMISES
LESSEE's taking possession shall be conclusive evidence, as against
LESSEE, that the Leased Premises were in good order and satisfactory condition
when LESSEE took possession hereunder. LESSOR has made no promise to alter,
remodel, improve, repair, decorate or clean the Leased Premises or any part
thereof, except as stated in Paragraph One (1) of this Lease, and has made no
representation respecting the condition of the Leased Premises or the building.
At the termination of this Lease, by lapse of time or otherwise, LESSEE shall
return the Leased Premises in as good condition as when LESSEE took possession,
ordinary wear and tear and any approved alterations or other approved changes
excepted, failing which LESSOR may restore the Leased Premises to such condition
and LESSEE shall pay the cost thereof upon request. LESSEE's prepaid rent
balance, if any, shall be applied against these costs.
11. USE AND CARE OF PREMISES AND INDEMNITY
LESSEE covenants and agrees that he will not use or permit any person
to use said Leased Premises or any part thereof for any use or purpose in
violation of the laws of the United States of America, the State of Florida,
City of Jacksonville Beach, County of Xxxxx or ordinances or other regulations
of the municipality in which said Leased Premises are situated or of any other
lawful authorities. During the term hereof LESSEE will keep the Leased Premises
and every part thereof in a clean and wholesome condition. LESSEE will in all
respects and at all times fully comply with all lawful health, fire and police
regulations.
LESSEE will save LESSOR harmless and indemnify the LESSOR from and
against any and all claims, actions, damages, liability and expenses, including
attorney's fees, in connection with loss of life, personal injury or loss or
damage of whatever nature, including property damage caused by or resulting from
or claimed to have been caused by or to have resulted from, wholly or in part,
any act, omission, or negligence of the LESSEE or anyone claiming under the
LESSEE including, but without limitation, invitees, agents, associates,
employees, servants, and contractors, occurring in, upon or at the Leased
Premises, or arising out of the occupancy or use by the LESSEE of the Leased
Premises or any part thereof. This indemnity and hold harmless agreement shall
include indemnity against all costs, expenses and liabilities incurred in
connection with any such injury, loss or damage, or any such claim, or any
proceeding brought thereon or the defense thereof. If LESSEE or anyone claiming
under LESSEE, or the whole or any part of the property of LESSEE, shall be
injured, lost or damaged by theft, fire, water or steam or in any other way or
manner, whether similar or dissimilar to the foregoing, no part of said injury,
loss or damage is to be borne by the LESSOR or its agents. The LESSEE agrees
that the LESSOR shall not be liable to the LESSEE or anyone claiming under the
LESSEE for any injury, loss or damage that may be caused by or result from any
act, omission, default or negligence of any persons occupying adjoining premises
or any other part of the building or property. In the event the LESSOR shall,
without fault on its part, be made a party to any litigation commenced by or
against the LESSEE, the LESSEE shall protect and hold LESSOR harmless from and
shall pay all costs, expenses, and reasonable attorney's fees that may be
incurred or paid by the LESSOR in enforcing this hold harmless and indemnity
agreement.
LESSOR will save LESSEE harmless and indemnify the LESSEE from and
against any and all claims, actions, damages, liability and expenses, including
attorney's fees, in connection with loss of life, personal injury or loss or
damage of whatever nature, including property damage caused by or resulting from
or claimed to have been caused by or to have resulted from, wholly or in part,
any act, omission, or negligence of the LESSOR or anyone claiming under the
LESSOR including, but without limitation, LESSOR's invitees, agents, associates,
employees, servants, and contractors, occurring in, upon or at the Leased
Premises. This indemnity and hold harmless agreement shall include indemnity
against all costs, expenses and liabilities incurred in connection with any such
injury, loss or damage, or any such claim, or any proceeding brought thereon or
the defense thereof. The LESSOR agrees that the LESSEE shall not be liable to
the LESSOR or anyone claiming under the LESSOR for any injury, loss or damage
that may be caused by or result from any act, omission, default or negligence of
any persons occupying adjoining premises or any other part of the building or
property. In the event the LESSEE shall, without fault on its part, be
made a party to any litigation commenced by or against the LESSOR, the LESSOR
shall protect and hold LESSEE harmless from and shall pay all costs, expenses,
and reasonable attorney's fees that may be incurred or paid by the LESSEE in
enforcing this hold harmless and indemnity agreement.
12. REPAIRS AND REPLACEMENTS
A. The LESSOR shall maintain the roof, exterior walls, air conditioning
and heating equipment and fire sprinkler systems of the building of which the
Leased Premises are a part in good repair and tenantable condition during the
continuance of the Lease, except in case of damage arising from the act or the
negligence of the LESSEE, its agents or employees. For the purpose of so
maintaining the Leased Premises, the LESSOR reserves the right at reasonable
times to enter and inspect the Leased Premises and to make any necessary repairs
to the building, including temporary cessation of services, including elevator,
heating, water, electricity or air conditioning. LESSEE shall be responsible for
the cost of all repairs necessitated by the intentional acts or negligence of
the LESSEE, its agents, servants, employees or invitees.
B. LESSEE covenants and agrees at LESSEE's own expense to keep the
interior of the Leased Premises and all plate glass and fixtures'and the doors,
doorjambs, and thresholds at all times in good repair, order and condition,
except for such repairs as are necessitated by fire or other perils provided for
by extended coverage clauses of policies of insurance carried by the LESSEE, and
except such repairs for damage or loss caused by the sole negligence of LESSOR.
Maintenance and repair of the air conditioning and heating equipment shall be
the LESSOR's responsibility; maintenance and repair of the plumbing and
electrical services in the Leased Premises shall be LESSEE's sole responsibility
throughout the entire term of this Lease and any extensions hereof. The LESSEE
agrees to maintain the Leased Premises and its systems and equipment in the same
condition, order and repair as they are at the commencement of this Lease.
LESSEE shall immediately make repair of any damage to the Lea~ed Premises, its
systems and equipment or the building of which it is a part caused by the
LESSEE, its agents or invitees.
C. If damage, which LESSEE is required to repair, is caused by perils
not covered by insurance, and LESSEE shall fail to commence repairing the damage
and complete same within a reasonable time, or if LESSEE shall fail to keep the
Leased Premises in a good state of maintenance and repair, LESSOR shall have the
right, but not the obligation, to repair and/or maintain, and any amounts so
expended by LESSOR shall be charges to LESSEE as additional rent due and payable
on the first day of the month following.
D. At any time or times LESSOR, either voluntarily or pursuant to
governmental requirement, may, at LESSOR's own expenses, make repairs,
alterations or improvements in or to the building in which the Leased Premises
are located, or any part thereof including the Leased Premises, and during
operations, may close entrances, doors, corridors, elevators or other
facilities, all without any liability to LESSEE by reason of interference,
inconvenience or annoyance. LESSOR shall not be liable to LESSEE for any
expense, injury, loss or damage
resulting from work done in or upon, or the use of, any adjacent premises
or nearby building, land, street or alley. LESSEE shall pay LESSOR for overtime
and for any other expenses incurred in event repairs, alteration, decorating or
other work in the Leased Premises at LESSEE's request are not made during
ordinary business hours.
13. ALTERATIONS
LESSEE shall make no alterations, additions or improvements in or to
the Leased Premises without the prior written consent of LESSOR.
14. DESTRUCTION
In the event the Leased Premises shall be destroyed or so damaged or
injured by fire or other casualty during the term of agreement, whereby the same
shall be rendered untenantable, then LESSOR shall have the right, but not the
obligation, to render said Leased Premises tenantable by repairs within 180 days
therefrom. In the event the LESSOR elects to repair the Leased Premises, the
rent for the Leased Premises shall xxxxx in proportion to the interference with
the LESSEE's use of the Leased Premises until the repairs are complete unless
the repairs are caused by the negligence or fault of the LESSEE in which event
rent shall continue in the full amount called for by this Lease. If said Leased
Premises are not rendered tenantable within said time, it shall be optional with
either party hereto to cancel this Lease, and in the event of such cancellation,
the proportionate rent shall be paid only to the date of such fire or casualty.
The cancellation herein mentioned shall be evidenced in writing.
15. CONDEMNATION
In the event that the whole or any substantial part of the Leased
Premises shall be permanently taken or condemned for a public or quasi-public
use or purpose by any competent authority, then and in that event the term of
this Lease and any interest of LESSEE in the Leased Premises shall terminate
from the date when possession of the Leased Premises shall be required for such
use or purpose. The then current basic rental shall in such case be apportioned
as of the date of termination of the Lease. If, however, only a portion of the
Leased Premises is so taken which only partially affects the occupancy or use of
the Leased Premises by LESSEE, then and in such event, the rent shall be
adjusted accordingly but this Lease shall otherwise continue in full force and
effect.
16. SIGNS
LESSEE shall not attach, affix or exhibit or permit to be attached,
affixed or exhibited, any sign in or upon any place in the Leased Premises
without the prior written consent of LESSOR, which shall not be unreasonably
withheld. The LESSEE shall be allowed from time to time to display messages on
the LESSOR's electronic message sign at no additional charge to the LESSEE.
LESSOR reserves the right to impose a reasonable charge for use of the
electronic sign but only in the event such a charge is being imposed on all
other tenants using the electronic sign. The use of the electronic message sign
shall be non-exclusive and shall be in conjunction with and
coordinated with the LESSOR's use and the use of the other occupants of the
Marina of which the Leased Premises are a part. The LESSOR does not guarantee
any particular minimum amount of usage of the LESSOR's electronic sign.
17. SUBORDINATION
This Lease and all rights of LESSEE hereunder are and shall be subject
to the lien of any and all mortgages which may now or hereafter affect the
Leased Premises, and to all renewals, modifications and extensions thereof.
LESSEE shall, upon demand, execute, acknowledge and deliver to LESSOR without
expense to LESSOR, any and all instruments that may be necessary or proper to
subordinate this Lease and all rights hereunder to the lien of any such
mortgages and any renewals, modifications and extensions thereof. Should LESSEE
fail at any time to execute and deliver such subordination instruments, LESSOR
is hereby authorized to execute, acknowledge and deliver same as
attorney-in-fact of LESSEE and in LESSEE's name, place and stead, and LESSEE
hereby makes, constitutes and appoints LESSOR, its successor and assigns, such
attorney-in-fact for~said purpose.
18. LESSOR'S REMEDIES
LESSOR shall have the following nonexclusive remedies under this Lease:
A. If LESSEE defaults in the payment of rent, and does not
cure the default within ten (10) days after demand for payment of such rent, or
if LESSEE defaults in the prompt and full performance of any other provisions of
this Lease, and LESSEE does not cure the default within thirty (30) days
(forthwith if the default involves a hazardous condition) after written demand
by LESSOR that the default be cured (unless the default involves a hazardous
condition, which shall be cured forthwith upon the LESSOR's demand) or if the
Leasehold interest of LESSEE be levied upon under execution or be attached by
process of law, or if LESSEE makes an assignment for the benefit of creditors,
or if a receiver be appointed for any property of LESSEE, or if LESSEE abandons
the Leased Premises, then and in any such event LESSOR may, if LESSOR so elects
but not otherwise, and with or without notice of such election and with or
without any demand whatsoever either forthwith terminate this Lease and LESSEE's
right to possession of the Leased Premises or, without terminating this Lease,
re-enter the Leased Premises and re-let the Leased Premises for LESSEE's
account.
B. Upon any termination of this Lease whether by lapse of time
or otherwise, or upon any termination of LESSEE's right to possession without
termination of the Lease, LESSEE shall surrender possession and vacate the
Leased Premises immediately, and deliver possession thereof to LESSOR. LESSEE
hereby grants to LESSOR full and free license to enter into and upon the Leased
Premises in such event with or without process of law and to expel or remove
LESSEE and any others who may be occupying or within the Leased Premises and to
remove any and all property therefrom, using such force as may be necessary,
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without relinquishing LESSOR's rights to rent or any
other right given to LESSOR hereunder or by
operation of law.
C. Upon the termination of this Lease or upon termination of
LESSEE's right of possession, LESSEE will at once surrender and deliver up said
Leased Premises to LESSOR, together with all fixtures attached to and becoming
part of the Leased Premises in as good condition as when LESSEE took possession,
ordinary wear and tear and any alterations and approved changes, and any damage
caused by perils covered by insurance, excepted. The improvements then standing
upon the Leased Premises shall belong to LESSOR, and no compensation shall be
allowed or paid therefor. In the event of the termination of this Lease prior to
its normal expiration, because of any default on the part of LESSEE, LESSEE
shall not be entitled to remove any of his trade fixtures and equipment until
all sums due LESSOR under this Lease shall have been paid in full for the full
remaining term thereof.
D. LESSEE shall pay to LESSOR as liquidated damages, double
the amount of rent, and interest thereon, for each month or portion thereof
during which LESSEE retains possession of the Leased Premises or any part
thereof after expiration of the term by lapse of time.
E. After the service of notice of default or for possession,
or the commencement of a suit, or after final judgment for the possession of
said Leased Premises, LESSOR may receive and collect the amount stipulated in
the'Lease as rent, at the time fixed in the Lease, as compensation for the use
and occupation of the Leased Premises, without waiver of the defaults or of the
right to recover possession of the Leased Premises.
F. Each and every installment of rent or additional rent
accruing under the covenants of this Lease which shall not be paid when due
shall bear interest at the maximum rate permitted by law from the day when the
same is payable under the terms of this Lease until the same shall be paid. All
sums advanced or paid by LESSOR shall become additional rent under the terms of
this Lease due and payable on the date of the advance or payment of said sums by
LESSOR.
G. LESSEE shall pay all costs and reasonable attorneys' fees
which may be incurred or paid by LESSOR in enforcing or interpreting the
covenants and agreements of this Lease, and in representing LESSOR in any
proceeding for bankruptcy relief filed by or against the LESSEE or any
individual guarantor of this Lease. All such costs and reasonable attorney's
fees when paid by LESSOR shall become at once a first and valid lien upon the
LESSEE's equipment and fixtures on said Leased Premises and upon the leasehold
estate hereby created.
H. Any and all property which may be removed from the Leased
Premises by LESSOR pursuant to the authority of the Lease or of law, to which
LESSEE is or may be entitled, may be handled, removed or stored by LESSOR at the
risk, cost and expense of LESSEE. LESSOR shall in no event be responsible for
the value, preservation or safekeeping thereof. LESSEE shall pay to LESSOR, as
and for additional rent, upon demand, any and all expenses incurred in such
removal and all storage charges against such property so long as the same shall
be in LESSOR's possession or under LESSOR's control, or LESSOR may at its
option, without notice, sell the said effects or any of the same for such price
as LESSOR may
deem best and apply the proceeds of such sale upon any amounts due under
this Lease from LESSEE to LESSOR, including the expenses of the removal and
sale. Any property of LESSEE not removed from the Leased Premises or retaken
from storage by LESSEE within thirty (30) days after the end of the term,
however terminated, shall be conclusively deemed to have been conveyed or
transferred by LESSEE to LESSOR.
I. If LESSEE abandons the Leased Premises or otherwise
entitles LESSOR so to elect, and LESSOR so elects to terminate LESSEE's right to
possession only, without terminating the Lease, LESSOR may at LESSOR's option
enter into the Leased Premises, remove LESSEE's signs and other evidences of
tenancy, and take and hold possession thereof as in Paragraph (H) of this
Section, without such entry and possession terminating the Lease or releasing
LESSEE, in whole or in part, from LESSEE's obligation to pay the rent hereunder
for the full term. Upon and after entry into possession without termination of
the Lease, LESSOR may, but need not, relet the Leased Premises or any part
thereof for the account of LESSEE for such rent, for such time and upon such
terms as LESSOR in LESSOR's sole discretion shall determine. LESSOR shall not be
required to accept any tenant offered by LESSEE or to observe any instruction
given by LESSEE about such reletting. In any such case, LESSOR may make repairs,
alteration and additions in or to the Leased Premises, and redecorate the same
to the extent deemed by LESSOR necessary or desirable, and LESSEE shall, upon
demand, pay the cost thereof as additional rent, together with LESSOR's expenses
of the reletting. If the consideration collected by LESSOR upon any such
reletting for LESSEE's account is not sufficient to pay monthly the full amount
of the rent reserved in this Lease, together with the costs of repairs,
alterations, additions, redecorating and LESSOR's expenses, LESSEE shall pay to
LESSOR, as and for additional rent, the amount of each monthly deficiency upon
demand; and if the consideration so collected from any such reletting is more
than sufficient to pay the full amount of the rent reserved herein, together
with the costs and expenses of LESSOR, at the end of the stated terms of the
Lease, LESSOR shall account for the surplus to LESSEE.
19. PARKING
Parking spaces for LESSEE, its employees and customers shall be those
located in front of the Leased Premises. Employee parking may be controlled at
the reasonable discretion of the LESSOR to the mutual advantage of all tenants.
The LESSEE shall be allowed to use a portion of the existing fenced in area as
shown on the drawing of the Leased Premises, Exhibit A hereto. LESSEE shall be
allowed to use no more than 25% of the total fenced in area, at no additional
charge. LESSEE's use of the fenced area shall be solely at LESSEE's risk and
LESSOR shall have no responsibility whatsoever for any property stored therein.
LESSEE shall also have the right to display boats during hours of operation in
the parking lot immediately in front of the Leased Premises. All boats which may
be displayed in the parking lot must be removed at night and placed within the
Leased Premises or within the designated fenced area. The LESSEE shall not be
allowed to display boats at any time the LESSEE is not open for business. The
LESSEE's right to display boats shall be subject to the rules, regulations and
ordinances of all state and local governmental bodies.
20. ENTRY
LESSOR, its agents, employees and contractors may enter the Leased
Premises during reasonable hours for the purpose of making inspections, repairs
or alterations or improvements connected with the Leased Premises or the
building of which it is a part.
21. ENTIRE AGREEMENT
This Lease contains the entire agreement and understanding between the
parties. There are no oral understandings, terms or conditions and neither party
has relied upon any representation, expressed or implied, not contained in this
Lease. All prior understandings, terms or conditions are deemed merged in this
Lease. This Lease may not be changed orally, but only by an agreement in writing
and signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
22. FURTHER ASSURANCES
The parties agree to execute and deliver any instruments in writing
reasonably necessary to carry out any agreement, term, condition or assurance in
this Lease whenever occasion shall arise and request for such instrument shall
be made in accordance with terms of this Lease.
23. SAVINGS CLAUSE
If any provision of this Lease shall be declared invalid or
unenforceable, the remainder of the Lease shall continue in full force and
effect.
24. COMPLIANCE WITH RULES
LESSEE shall observe and comply with such reasonable rules and
regulations as LESSOR may prescribe, on written notice to LESSEE, for the
safety, care and cleanliness of the building and the comfort, quiet and
convenience of other occupants of the building. LESSEE shall not permit the
accumulation of waste or refuse in the Leased Premises or anywhere in or near
the building.
25. NO WAIVER
The failure of either party to insist on a strict performance of any
covenant or condition hereof or to exercise any option, shall not be construed
as a waiver of such covenant, condition or option in any other instance.
26. CONDITIONS OF LESSOR'S LIABILITY
LESSEE shall not be entitled to claim a constructive eviction from the
Leased Premises
unless LESSEE shall have first notified LESSOR in writing of the condition or
conditions giving rise thereto and, if the complaints be justified, unless
LESSOR shall have failed within a reasonable time after receipt of such notice
to remedy such conditions.
27. RIGHT TO SHOW PREMISES
LESSOR may show the Leased Premises to prospective purchasers and
mortgagees and, during the six (6) months prior to expiration of this Lease, to
prospective tenants, during business hours on reasonable notice to LESSEE.
28. NOTICE
If at any time it shall become necessary for one of the parties hereto
to serve any notice, demand or communication, it shall be in writing sent by
registered or certified mail, postage fully prepaid, and if intended for LESSOR
shall be addressed to: Rose & Xxx, Inc., 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxxx
Xxxxx, XX 00000, with copy to: Xxxxxxx X. Xxxxx, Esquire, P. 0. Xxx 00000,
Xxxxxxxxxxxx Xxxxx, XX 00000-0000.
If intended for LESSEE, notice shall be deemed given when posted and
addressed to the LESSEE at the Leased Premises or to such other address~as
either party may direct in writing.
29. BINDING EFFECT
This Lease shall inure to the benefit of and be binding upon the
parties, their heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF the parties hereto have set their hands and seals the day and
year first above written.
LESSOR
WITNESSES ROSE & XXX, INC.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxx
Print Name:Xxxxx X. Xxxxx By: XXXXXXX XXXXXX
Its: President
/s/ Xxxxxx Xxxx
Print Name: LESSEE: BOAT TREE, INC.
/s/ Xxxxxx X. Xxxx, Xx.
By: XXXXXX X. XXXX, XX.
Print Name: Its: President
Print Name:
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20
EXHIBIT B
ROSE & XXX, INC., LESSOR, and BOAT TREE, INC., LESSEE, pursuant to the lease
dated December _______, 1996, confirms that the commencement date is
____________________________________ and the termination date is
-----------------------------------.
ROSE & XXX, INC.:LESSOR
/s/ Xxxxxxx X.Xxxxxx
By: XXXXXXX X. XXXXXX
Its: President
BOAT TREE, INC.: LESSEE
/s/ Xxxxxx X.Xxxx, Xx.
By: XXXXXX X. XXXX, XX.
Its:
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21
ADDENDUM TO LEASE DATED
DECEMBER 16, 1996
Between: Rose & Xxx, Inc. as Lessor
Boat Tree, Inc. as Lessee
The following here-by made a part of said lease effective December 1,
1997, through the original lease term and all extension periods.
The Lessor shall lease up to lessee six (6) boat slips south 1001,
S-1002, S-1003, S-1004, S-1005, S-1006 for $600.00 per month plus sales tax.
Lessee shall have the use of the fenced in area east of the showroom
until lessor develops this parcel of land. The consideration for this is that
Lessee at his expense will replace the fence with six(6) foot fence that will
match the green fence that the Lessor recently installed.
Lessee: Boat Tree, Inc. Lessor: Rose & Xxx, Inc.
By:/s/Xxxxxx X. Xxxx, Xx. By:/s/ Xxxxxxx X. Xxxxxx
Date: Date:
misc\addlease
1
LEASE
THIS LEASE made and entered into this 1st day of September, A.D., 1
997, by and between Rose & Xxx, Inc., a Florida corporation, hereinafter called
"LESSOR," whose principal office is at 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxxx,
Xxxxx, XX 00000, and Boat Tree, Inc., a Florida corporation, hereinafter called
"LESSEE."
1. PREMISES
LESSOR, or and in consideration of the covenants and
agreements hereinafter contained and made c" the part of LESSEE, does hereby
demise and Lease to LESSEE the premises known as 0000-X_ Xxxxx Xxxxxxxxx, in the
City of Jacksonville Beach, County of Xxxxx, and State of Florida (hereinafter
the "Leased Premises"). Ingress, egress and parking areas will be or common use
of the LESSOR, LESSEE and all other tenants. The leased premises also include
the Algonac lift and office/storage room about (15X20) feet. Also two boat slips
8- 7E & 9-7W.
2. TERM
2.1 Initial Term.
The initial term of this Lease shall be for a five (5) year
term commencing on the first day of the month in which the LESSEE first occupies
the Leased Premises, and terminating five (5) years thereafter. The parties
agree to confirm in writing the commencement and expiration dates in writing
upon occupancy by the LESSEE in the form attached hereto as Exhibit A.
2.2 Options to Extend Term.
Provided that LESSEE shall have performed the terms and conditions of this Lease
including, but not limited to, the agreement to pay rent., then and in that
event, the LESSEE shall have the option to renew this Lease, upon the same terms
and conditions for three (3) successive terms of five (5) years each. To
exercise the option, the LESSEE shall give written notice to LESSOR of the
LESSEE's election to exercise the option not less than three (3) months prior to
the expiration of the then existing term.
3. RENT.
A. During the initial term of this Lease, LESSEE shall pay on
the first day of each month to LESSOR rent and other charges, without demand or
notice. LESSEE will be given the first month (September) at no charge. The
initial term of this Lease, rent shall be $3,000.00 per month . When the new
service shop is built on the north side of the dry stack, then the rent will be
$2,500.00 for the first month and then it will increase there after to $5,000.00
per month
misc\addlease
2
inclusive of sale tax. On every anniversary of this lease the rent shall be
increased by an amount equal to the change in Consumer Price Index (All Items)
measured from the beginning of the initial term of this Lease, not to exceed two
percent (2%).
B. LESSEE shall be liable for and shall pay all taxes levied
upon personal property and trade fixtures located in the Leased Premises whether
placed therein or owned by the LESSEE or the LESSOR. LESSOR shall pay all real
estate taxes and insurance costs on the leased premise.
C. In the event the rent is not received by the LESSOR on or
before the tenth day of the month, the LESSEE shall be liable for and shall pay,
as and for additional rent, a charge of 1 of the normal monthly rent per day
late up to the fifteenth day following the due date All such additional rent
shall be paid by the LESSEE not later than the tenth day of the following month
if not sooner paid.
D. In no event shall rent be subject to setoffs or deductions.
No payment by the LESSEE or receipt by the LESSOR of a lesser amount than
actually due, including, if appropriate, late charges, shall be deemed other
than a payment on account of the earliest rent or additional rent due, nor shall
any endorsement or statement on any check or on any letter accompanying any
check or payment as rent be deemed an accord and satisfaction and the LESSOR may
accept such check or payment without prejudice to the right to recover the
balance of the rent or additional rent, to terminate this Lease for LESSEE's
default or to pursue any other remedy provided for in this Lease.
E. In addition to the rent called for by Sub-Paragraph (B),
all other charges required to be paid by LESSEE under the provisions of this
Lease shall be deemed to be and become additional rent. whether or not the same
be designated as such; provided, however, all provisions dealing with abatement
of rent shall be construed to permit the abatement of the Sub- Paragraph (Bi
rent component only and not any other sums due from LESSEE to LESSOR.
4. UTILITY CHARGES
LESSEE agrees to pay all utility charges which may be levied, assessed
or imposed upon said Leased Premises. Should LESSEE fail to pay any billing for
such charges when due, LESSOR may, but is not required to, pay such billing in
which event the amount so paid shall be additional rental then due and owing.
LESSOR shall not be liable for any interruption or failure whatsoever in utility
services or for any damage resulting to the LESSEE of the Leased Premises
therefrom.
5. PURPOSE
The Leased Premises shall be used only for the establishment of a boat
service department. LESSOR agrees that during the term of this Lease, including
any extensions, LESSEE shall have the exhaustive right, within the Marina of
which the Leased Premises are a part, to establish a boat service business. This
provision shall not prohibit individual boat owners from using other persons
misc\addlease
3
or entities for service on their individual vessels if LESSEE can not perform
the service that is needed. The LESSEE agrees to perform any and all necessary
service work on boats or vessels that may be requested by the LESSOR or any of
its marina customer. LESSEE agrees to charge LESSOR and its marina customers
hourly mechanic fees and prices for parts that are competitive with fees and
prices otherwise generally available in me market place. The LESSEE warrants and
agrees that the quality of service and the timeliness of service provided by
LESSEE to the general public, XXXXXX'x xxxxxx customers and to LESSOR shall at
all times be of the highest possible standards as to quality of work and
timeliness of performance. Further, the service shall not differ from or be less
beneficial than the service provided by the LESSEE to its independent customers
and the customers of the Boat Tree sales business operated by the LESSEE at 0000
Xxxxx Xxxxxxxxx. If LESSEE reeds boat pulled out for work to be done then LESSOR
will charge LESSEE $2.00 per foot LESSOR will let LESSEE park trailers on the
north side of the basin long enough for service to be done to the boat. LESSOR
will have the right to use the 20 ton Algnac Lift from time to time at no charge
as long as LESSEE is not using it. It is understood the this use is for marina
use only. Any service work performed for LESSOR will be billed at LESSEE's cost.
6. ASSIGNMENT OR SUBLETTING
LESSEE shall not assign or sublet the Leased Premises in whole
or in part to any person, firm or corporation, except to entities that are
controlled by Xxx Xxxx without the prior written consent of LESSOR. No
subletting or assignment of this Lease shall relieve the LESSEE from any of us
obligations hereunder.
7. INSURANCE
LESSEE agrees to maintain the following insurance coverages:
A. Public liability insurance in such amounts as may be
necessary to indemnify against any loss and which insurance policy shall
specifically cover LESSOR as a named insured in amounts of $1,000,000.00 in case
of injury to one person and $1,000,000.00 in case of injury to more than one
person and to the limit of not less than $100,000.00 in respect to property
damage, medical payments of $250.00 each person and $10,000.00 each accident.
B. Broad form casualty coverage for the LESSEE's contents
(including any equipment which is included with this Lease) and signs including
extended coverage clauses.
C. Proof of all insurance required hereunder shall be
delivered to LESSOR prior to delivery of possession to the LESSEE and proof of
continuing coverage shall be delivered as and when the initial coverage expires
or is terminated.
D. LESSEE agrees that the LESSOR shall have no liability
whatsoever or to any extent for or on account of any injury to any property of
LESSEE or LESSEE at any time for or on account of the destruction of LESSEE's
property in the Leased Premises, it being the
misc\addlease
4
parties' agreement that the LESSEE shall bear all risk of loss associated with
its LESSEE agrees ~o furnish LESSOR with a certificate or certificates of such
insurance policy or policies, stating therein the number of each such policy and
the date of expiration of each policy. Each of the policies must contain a
provision that the same may not be canceled without the giving of ten days prior
written notice to LESSOR herein. All insurance must be written with carriers
acceptable to LESSOR, which acceptance shall not be unreasonably withheld. In
the event LESSEE fails to obtain and maintain the required insurance, LESSOR, or
its representative, is hereby authorized (but not required) to procure the
foregoing insurance for LESSEE and LESSEE agrees to pay the cost of the premium
therefor on demand, and such sum shall be deemed to be additional rent.
8. FIXTURES
All of LESSEE's trade fixtures and other fixtures and all
personal property, apparatus, machinery and equipment installed by LESSEE on the
Leased Premises (other than those provided by LESSOR) except such as have been
affixed thereto, shall be and remain the personal property of the LESSEE and the
same are herein referred to as "LESSEE's equipment." LESSEE's equipment may be
removed from time to time by LESSEE provided it is not in default under the
terms of this Lease and provided, if such removal shall injure or damage the
Leased Premises, that LESSEE shall repair the damage and place the Leased
Premises in the same condition as it would have been if such equipment had not
been installed and removed.
9. CONDITION OF THE PREMISES
LESSEE's taking possession shall be conclusive evidence, as
against LESSEE, that the Leased Premises were in good order and satisfactory
condition when LESSEE took possession hereunder LESSOR has made no promise to
alter, remodel, improve, repair, decorate or clean the Leased Premises or any
part thereof, and has made no representation respecting the condition of the
Leased Premises or the building. At the termination of this Lease, by lapse of
time or otherwise, LESSEE shall return the Leased Premises in as good condition
as when LESSEE took possession, ordinary wear and tear and any approved
alterations or other approved changes excepted, failing which LESSOR may restore
the Leased Premises to such condition and LESSEE shall pay the cost thereof upon
request.
10. USE AND CARE OF PREMISES AND INDEMNITY
A. LESSEE covenants and agrees that it will not use or permit
any person to use said Leased Premises or any part thereof for any use or
purpose in violation of the laws of the United States of America, the State of
Florida, City of Jacksonville Beach, County of Xxxxx or ordinances or other
regulations of the municipality in which said Leased Premises are situated or of
any other lawful authorities. During the term hereof LESSEE will keep the Leased
Premises and every part thereof in a clean and wholesome condition. LESSEE will
in all respects and at all times fully comply with all lawful health, fire and
police regulations.
misc\addlease
5
B. LESSEE shall indemnify and hold LESSOR, its
representatives, agents, successors and assigns, harmless from any and all
claims, proceedings, actions, penalties, fines, cleanup costs, medial expenses,
damages, losses, costs and expenses, including reasonable attorney's fees,
litigation expenses or expenses incurred related to litigation or administrative
proceedings and court costs incurred by LESSOR, in any way relating to or
arising from the LESSEE's generation, handling, manufacturing, treatment,
storage, use, transportation, spillage leakage, dumping, discharge or disposal
(whether legal or illegal, accidental or intentional) of any hazardous
substance. As used herein, hazardous substance means any hazardous or toxic
substance, material or waste which are or become regulated under any applicable
local, state or federal law including, but not limited to, any material, waste
or substance which is petroleum, asbestos, PCBs, designated as a hazardous
substance under the Clean Water Act or defined as a hazardous waste pursuant to
the Resource and Recovery Act or defined as a hazardous substance pursuant to
the Comprehensive Environmental Response Compensation and Liability Act. LESSEE
agrees to perform all necessary remedial activities to the satisfaction of the
Florida Department of Environmental Protection, the United States Environmental
Protection Agency, the United States Coast Guard and the local government as may
be necessary to e~valuate and remedy any environmental contamination on, below,
or around the Leased Premises resulting from the acts and/or omissions of the
LESSEE, its agents, employees, invitees or guests. All remedial activities
required by the LESSEE will be conducted in accordance with any and all
applicable environmental laws, including, but not limited to, regulations of
federal, state and local governments.
C. LESSEE will save LESSOR harmless and indemnify the LESSOR
from and against any and all claims, actions, damages, liability and expenses,
including attorney's fees, in connection with loss of life, personal injury or
loss or damage of whatever nature, including property damage caused by or
resulting from or claimed to have been caused by or to have resulted from,
wholly or in part, any act, omission, or negligence of the LESSEE or anyone
claiming under the LESSEE including, but without limitation, invitees, agents,
associates, employees, servants, and contractors, occurring in, upon or at the
Leased Premises, or arising out of the occupancy or use by the LESSEE of the
Leased Premises or any part thereof. This indemnity and hold harmless agreement
shall include indemnity against all costs, expenses and liabilities incurred in
connection with any such injury, loss or damage, or any such claim, or any
proceeding brought thereon or the defense thereof. If LESSEE or anyone claiming
under LESSEE, or the whole or any part of the property of LESSEE, shall be
injured, lost or damaged by theft, fire, water or steam or in any other way or
manner, whether similar or dissimilar to the foregoing, no part of said injury,
loss or damage is to be borne by the LESSOR or its agents. The LESSEE agrees
that the LESSOR shall not be liable to the LESSEE or anyone claiming under the
LESSEE for any injury, loss or damage that may be caused by or result from any
act, omission, default or negligence of any persons occupying adjoining premises
or any other part of the building or property. In the event the LESSOR shall,
without fault on its part, be made a party to any litigation commenced by or
against the LESSEE, the LESSEE shall protect and hold LESSOR harmless
misc\addlease
6
from and shall pay all costs, expenses, and reasonable attorney's fees that may
be incurred or paid by the LESSOR in enforcing this hold harmless and indemnity
agreement.
X. XXXXXX will save LESSEE harmless and indemnify the LESSEE
from and against any and all claims, actions, damages, liability and expenses,
including attorney's fees, in connection with loss of life, personal injury or
loss or damage of whatever nature, including property damage caused by or
resulting from or claimed to have been caused by or to have resulted from,
wholly or in part, any act, omission, or negligence of the LESSOR or anyone
claiming under the LESSOR including, but without limitation, LESSOR's invitees,
agents, associates, employees, servants, and contractors, occurring in, upon or
at the Leased Premises. The indemnity and hold harmless agreement shall include
indemnity against all costs, expenses and liabilities incurred in connection
with any such injury, loss or damage, or any sum claim, or any proceeding
brought thereon or the defense thereof. The LESSOR agrees that the LESSEE shall
not be liable to the LESSOR or anyone claiming under the LESSOR for any injury,
loss or damage that may be caused by or result from any act, omission, default
or negligence of any persons occupying adjoining premises or any other part of
the building or property. In the event the LESSEE shall, without fault on its
part, be made a party to any litigation commenced by or against the LESSOR, the
LESSOR shall protect and hold LESSEE harmless from and shall pay all costs,
expenses, and reasonable attorney's fees that may be incurred or paid by the
LESSEE in enforcing this hold harmless and indemnity agreement.
11. REPAIRS AND REPLACEMENTS
A. The LESSOR shall maintain the roof, exterior walls, and
fire sprinkler systems of the building of which the Leased Premises are a part
in good repair and tenantable condition during the continuance of the Lease,
except in case of damage arising from the act or the negligence of the LESSEE,
its agents or employees. For the purpose of so maintaining the Leased Premises,
the LESSOR reserves the right at reasonable times to enter and inspect the
leased Premises and to make any necessary repairs to the building, including
temporary cessation of services, including heating, water, electricity or air
conditioning. LESSEE shall be responsible for the cost of all repairs
necessitated by the intentional acts or negligence of the LESSEE, its agents,
servants, employees or invitees.
B. LESSEE covenants and agrees at LESSEE's own expense to keep
the interior of the Leased Premises and all plate glass and fixtures and the
doors, doorjambs, and thresholds at all times in good repair, order and
condition, except for such repairs as are necessitated by fire or other perils
provided for by extended coverage clauses of policies of insurance carried by
the LESSEE, and except such repairs for damage or loss caused by the sole
negligence of LESSOR. Maintenance and repair of the electrical services in the
Leased Premises shall be LESSEE's sole responsibility throughout the entire term
of this Lease and any extensions hereof. The LESSEE agrees to maintain the
Leased Premises and its systems and equipment in the same condition, order and
repair as they are at the commencement of this Lease. LESSEE shall immediately
make repair of any damage to the Leased Premises, its systems and equipment or
the
misc\addlease
7
building of which it is a part caused by the LESSEE, its agents or invitees.
C. If damage, which LESSEE is required to repair, is caused by
perils not covered by insurance and LESSEE shall fail to commence repairing the
damage and complete same within a reasonable time, or if LESSEE shall fail to
keep the Leased Premises in a good state of maintenance and repair, LESSOR shall
have the right, but not the obligation, to repair and/or maintain, and any
amounts so expended by LESSOR shall be charges to LESSEE as additional rent due
and payable on the first day of the month following.
D. At any time or times LESSOR, either voluntarily or pursuant
to governmental requirement, may, at LESSOR's own expenses, make repairs,
alterations or improvements in or to the building in which the Leased Premises
are located, or any part thereof including the Leased Premises, and during
operations, may close entrances, doors, corridors, elevators or other
facilities, all without any liability to LESSEE by reason of interference,
inconvenience or annoyance. LESSOR shall not be liable to LESSEE for any
expense, injury, loss or damage resulting from work done in or upon, or the use
of, any adjacent premises or nearby building, land, street or alley. LESSEE
shall pay LESSOR for overtime and for any other expenses incurred in event
repairs, alteration, decorating or other work in the Leased Premises at LESSEE's
request are not made during ordinary business hours.
12. ALTERATIONS
LESSEE shall make no alterations, additions or improvements in
or to the Leased Premises without the prior written consent of LESSOR. LESSEE
shall have no power or authority to permit construction liens to be placed upon
the Leased Premises and in the event any liens are filed arising out of the
LESSEE's activities, the same shall be removed within ten (10 days from the date
LESSOR gives notice to LESSEE and LESSEE shall indemnify and hold LESSOR
harmless from any and all costs, including LESSOR's attorney's fees, as may be
incurred by LESSOR in enforcing the terms hereof and/or defending any
construction lien claims.
13. DESTRUCTION
In the event the Leased Premises shall be destroyed or so
damaged or injured by fire or other casualty during the term of agreement,
whereby the same shall be rendered untenantable, then LESSOR shall have the
right, but not the obligation, to render said Leased Premises tenantable by
repairs within 1 80 days therefrom. In the event The LESSOR elects to repair the
Leased Premises, the rent for the Leased Premises shall xxxxx in proportion to
the interference with the LESSEE's use of the Leased Premises until the repairs
are complete unless the repairs are caused by the negligence or fault of the
LESSEE in which event rent shall continue in the full amount called for by this
Lease. If said Leased Premises are not rendered tenantable within said time, it
shall be optional with either party hereto to cancel
misc\addlease
8
this Lease, and in the event of such cancellation, the proportionate rent shall
be paid only to the date of such fire or casualty. The cancellation herein
mentioned shall be evidenced in writing.
14. CONDEMNATION
In the event that the whole or any substantial part of the
Leased Premises shall be permanently taken or condemned for a public or
quasi-public use or purpose by any competent authority, then and in that event
the term of this Lease and any interest of LESSEE in the Leased premises shall
terminate from the date when possession of the Leased Premises shall be required
for such use or purpose. The then current basic rental shall in such case be
apportioned as of the date of termination of the Lease. If, however, only a
portion of the Leased Premises is so taken which only partially affects the
occupancy or use of the Leased Premises by LESSEE, then and in such event, the
rent shall be adjusted accordingly but this Lease shall otherwise continue in
full force and effect.
15. SIGNS
LESSEE shall not attach, affix or exhibit or permit to be
attached, affixed or exhibited, any sign in or upon any place in the Leased
Premises without the prior written consent of LESSOR, which shall not be
unreasonably withheld. The LESSEE shall be allowed from time to time to display
messages on the LESSOR's electronic message sign at no additional charge to the
LESSEE LESSOR reserves the right to impose a reasonable charge for use of the
electronic sign but only in the event such a charge is being imposed on all
other tenants using the electronic sign. The use of the electronic message sign
shall be non-exclusive and shall be in conjunction with and coordinated with the
LESSOR's use and the use of the other occupants of the Marina of which the
Leased Premises are a part. The LESSOR does not guarantee any particular minimum
amount of usage of the LESSOR's electronic sign.
16. SUBORDINATION
This Lease and all rights of LESSEE hereunder are and shall be
subject to the lien of any and all mortgages which may now or hereafter affect
the Leased Premises, and to all renewals, modifications and extensions thereof.
LESSEE shall, upon demand, execute, acknowledge and deliver to LESSOR without
expense to LESSOR, any and all instruments that may be necessary or proper to
subordinate this Lease and all rights hereunder to the lien of any such
mortgages and any renewals, modifications and extensions thereof. Should LESSEE
fail at any time to execute and deliver such subordination instruments, LESSOR
is hereby authorized to execute, acknowledge and deliver same as
attorney-in-fact of LESSEE and in LESSEE's name, place and stead, and LESSEE
hereby makes, constitutes and appoints LESSOR, its successor and assigns, such
attorney-in-fact for said purpose.
LESSOR shall have the following nonexclusive remedies under this Lease:
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A. If LESSEE defaults in the payment of rent, and does not
cure the default within ten (10) days after written demand for payment of such
rent, or if LESSEE defaults in the prompt and full performance of any other
provisions of this Lease, and LESSEE does not cure the default within thirty
(30) days (forthwith if the default involves a hazardous condition) after
written demand by LESSOR that the default be cured (unless the default involves
a hazardous condition, which shall be cured forthwith upon the LESSOR's demand)
or if the Leasehold interest of LESSEE be levied upon under execution or be
attached by process of law, or if LESSEE makes an assignment for the benefit of
creditors, or if a receiver be appointed for any property of LESSEE, or if
LESSEE abandons the Leased Premises, then and in any such event LESSOR may, if
LESSOR so elects but not otherwise, and with or without notice of such election
and with or without any demand whatsoever either forthwith terminate this Lease
and LESSEE's right to possession of the Leased Premises or, without terminating
this Lease, re-enter the Leased Premises and re-let the Leased Premises for
LESSEE's account.
B. Upon any termination of this Lease whether by lapse of time
or otherwise, or upon any termination of LESSEE's right to possession without
termination of the Lease, LESSEE shall surrender possession and vacate the
Leased Premises immediately, and deliver possession thereof to LESSOR. LESSEE
hereby grants to LESSOR full and free license to enter into and upon the Leased
Premises in such event with or without process of law and to expel or remove
LESSEE and any others who may be occupying or within the Leased Premises and u
remove any and all property therefrom, using such force as may be necessary,
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without relinquishing LESSOR's rights to rent or any
other right given to LESSOR hereunder or by operation of law.
C. Upon the termination of this Lease or upon termination of
LESSEE's right of possession, LESSEE will at once surrender and deliver up said
Leased Premises to LESSOR, together with all fixtures attached to and becoming
part of the Leased Premises in as good condition as when LESSEE took possession,
ordinary wear and tear and any alterations and approved changes, and any damage
caused by perils covered by insurance, excepted. The improvements then standing
upon the Leased Premises shall belong to LESSOR, and no compensation shall be
allowed or paid therefor. In the event of the termination of this Lease prior to
its normal expiration, because of any default on the part of LESSEE, LESSEE
shall not be entitled to remove any of his trade fixtures and equipment until
all sums due LESSOR under this Lease shall have been paid in full for the full
remaining term thereof.
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D. LESSEE shall pay to LESSOR as liquidated damages, 1 .25 the
amount of rent, and interest thereon, for each month or portion thereof during
which LESSEE retains possession of the Leased Premises or any part thereof after
expiration of the term by lapse of time.
E. After the service of notice of default or for possession,
or the commencement of a suit, or after final judgment for the possession of
said Leased Premises, LESSOR may receive and collect the amount stipulated in
the Lease as rent, at the time fixed in the Lease, as compensation for the use
and occupation of the Leased Premises, without waiver of the defaults or of the
right to recover possession of the Leased Premises.
F. Each and every installment of rent or additional rent
accruing under the covenants of this Lease which shall not be paid when due
shall bear interest at the maximum rate permitted by law from the day when the
same is payable under the terms of this Lease until the same shall be paid. All
sums advanced or paid by LESSOR shall become additional rent under the terms of
this Lease due and payable on the date of the advance or payment of said sums by
LESSOR.
G. LESSEE shall pay all costs and reasonable attorneys' fees
which may be incurred or paid by LESSOR in enforcing or interpreting the
covenants and agreements of this Lease, and in representing LESSOR in any
proceeding for bankruptcy relief filed by or against the LESSEE or any
individual guarantor of this Lease. All such costs and reasonable attorney's
fees when paid by LESSOR shall become at once a first and valid lien upon the
LESSEE's equipment and fixtures on said Leased Premises and upon the leasehold
estate hereby created.
H. Any and all property which may be removed from the Leased
Premises by LESSOR pursuant to the authority of the Lease or of law, to which
LESSEE is or may be entitled, may be handled, removed or stored by LESSOR at the
risk, cost and expense of LESSEE. LESSOR shall in no event be responsible for
the value, preservation or safekeeping thereof. LESSEE shall pay to LESSOR, as
and for additional rent, upon demand, any and all expenses incurred in such
removal and all storage charges against such property so long as the same shall
be in LESSOR's possession or under LESSOR's control, or LESSOR may at its
option, without notice, sell the said effects or any of the same for such price
as LESSOR may deem best and apply the proceeds of such sale upon any amounts due
under this Lease from LESSEE to LESSOR, including the expenses of the removal
and sale. Any property of LESSEE not removed from the Leased Premises or retaken
from storage by LESSEE within thirty (30) days after the end of the term,
however terminated, shall be conclusively deemed to have been conveyed or
transferred by LESSEE to LESSOR.
I. If LESSEE abandons the Leased Premises or otherwise
entitles LESSOR so to elect, and LESSOR so elects to terminate LESSEE's right to
possession only, without terminating the Lease. LESSOR may at LESSOR's option
enter into the Leased Premises, remove LESSEE's signs and other evidences of
tenancy, and take and hold possession thereof as in Paragraph (H) of this
Section, without such entry and possession terminating the Lease or
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11
releasing LESSEE, in whole or in part, from LESSEE's obligation to pay the rent
hereunder for the full term. Upon and after entry into possession without
termination of the Lease, LESSOR may, but need not, relet the Leased Premises or
any part thereof for the account of LESSEE for such rent, for such time and upon
such terms as LESSOR in LESSOR's sole discretion shall determine. LESSOR shall
not be required to accept any tenant offered by LESSEE or to observe any
instruction given by LESSEE about such reletting. In any such case, LESSOR may
make repairs, alteration and additions in or to the Leased Premises, and
redecorate the same to the extent deemed by LESSOR necessary or desirable, and
LESSEE shall, upon demand, pay the cost thereof as additional rent, together
with LESSOR's expenses of the reletting. If the consideration collected by
LESSOR upon any such reletting for LESSEE's account is not sufficient to pay
monthly the full amount of the rent reserved in this Lease, together with the
costs of repairs, alterations, additions, redecorating and LESSOR's expenses,
LESSEE shall pay to LESSOR, as and for additional rent, the amount of each
monthly deficiency upon demand; and if the consideration so collected from any
such reletting is more than sufficient to pay the full amount of the rent
reserved herein, together with the costs and expenses of LESSOR, at the end of
the stated terms of the Lease, LESSOR shall account for the surplus to LESSEE.
18. PARKING
Parking spaces br LESSEE, its employees and customers shall be
at the reasonable discretion of the LESSOR to the mutual advantage of all
tenants.
19. ENTRY
LESSOR, its agents, employees and contractors may enter the
Leased Premises during reasonable hours for the purpose of making inspections,
repairs or alterations or improvements connected with the Leased Premises or the
building of which it is a part.
20. ENTIRE AGREEMENT
This Lease contains the entire agreement and understanding
between the parties. There are no oral understandings, terms or conditions and
neither party has relied upon any representation, expressed or implied, not
contained in this Lease. All prior understandings, terms or conditions are
deemed merged in this Lease. This Lease may not be changed orally, but only by
an agreement in writing and signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
21. FURTHER ASSURANCES
The parties agree to execute and deliver any instruments in
writing reasonably necessary to carry out any agreement, term, condition or
assurance in this Lease whenever
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12
occasion shall arise an: request for such instrument shall be made in
accordance with terms of this Lease.
22. SAVINGS CLAUSE
If any provision of this Lease shall be declared invalid or
unenforceable, the remainder of the Lease shall continue in full force and
effect.
23. COMPLIANCE WITH RULES
LESSEE shall conserve and comply with such reasonable rules
and regulations as LESSOR may prescribe on written notice to LESSEE, for the
safety, care and cleanliness of the building and the comfort, quiet and
convenience of other occupants of the building. LESSEE shall not permit the
accumulation of waste or refuse in the Leased Premises or anywhere in or near
the building.
24. NO WAIVER
The failure of either party to insist on a strict performance
of any covenant or condition hereof or to exercise any option shall not be
construed as a waiver of such covenant, condition or option in any other
instance.
25. CONDITIONS OF LESSOR'S LIABILITY
LESSEE shall not be entitled to claim a constructive eviction
from the Leased Premises unless LESSEE shall have first notified LESSOR in
writing of the condition or conditions giving rise thereto and, if the
complaints be justified, unless LESSOR shall have failed within a reasonable
time after receipt of such notice to remedy such conditions.
26. RIGHT TO SHOW PREMISES
LESSOR may show the Leased Premises to prospective purchasers
and mortgagees and, during the three (3) months prior to expiration of this
Lease, to prospective tenants, during business hours on reasonable notice to
LESSEE.
27. NOTICE
If at any time it shall become necessary for one of the
parties hereto to serve any notice, demand or communication, it shall be in
writing sent by registered or certified mail, postage fully prepaid, and if
intended for LESSOR shall be addressed to: Rose & Xxx, Inc., 231 0 Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx Xxxxx, XX 00000, with copy to: Xxxxxxx X. Xxxxx,
Esquire, P. 0. Xxx 00000, Xxxxxxxxxxxx Xxxxx, XX 00000-0000.
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If intended for LESSEE, notice shall be deemed given when
posted and addressed to the LESSEE at 0000 00xx xxxxxx Xxxxxxx XX 00000 with a
copy to Xxxx Xxxxxxxx c\x xxxxxx
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and xxxxx, PA 00 Xxxxx xxxxxx xxx Xxxxxxx XX 00000 suit 1000. Or to such other
address as either party may direct in writing.
28. BINDING EFFECT
This Lease shall inure to the benefit of and be binding upon
the parties, their heirs, executors, administrators, successors and assigns.
29. Early termination option
After the first 24 months of this lease the LESSEE has the
option during the initial term and extension period to terminate this lease with
three months written notice and a $1 5,000.00 dollar early termination fee.
IN WITNESS WHEREOF the parties hereto have set their hands and seals
the day and year first above written.
LESSOR:
WITNESSES ROSE & XXX, INC.
Sign: /s/ Xxxxxxx Xxxxxx
Print name: By: XXXXXXX XXXXXX
Its: President
Sign: LESSEE: BOAT TREE, INC.
Print name:
/s/ Xxxxxx X. Xxxx, Xx.
Sign: By: XXXXXX X. XXXX, XX.
Print name: Its: President
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EXHIBIT A
ROSE & XXX, INC., Lessor, and BOAT TREE, INC., Lessee, pursuant to the
lease dated ___ , 1997, confirm that the commencement date is, and the
termination date is January 1, 1998, and the termination date is December 31,
2003.
ROSE & XXX, INC.: LESSOR BOAT TREE, INC.: LESSEE
/s/ Xxxxxxx X.Xxxxxx /s/ Xxxxxx X. Xxxx, Xx.
By: XXXXXXX X. XXXXXX By: X. X. XXXX, XX.
Its: President Its: President
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