LEASE AGREEMENT
LANDLORD: BANSGROVE LIMITED, a BVI company
TENANT: UNIVERSAL BEVERAGES HOLDINGS CORP.
DATED: June 1, 2002
LEASE AGREEMENT
This Lease Agreement (the "Lease") is entered into as of the 1st day
of June 2002, by and between Bansgrove Limited, a BVI Company, (the
"Landlord"), and Universal Beverages Holding Corporation, a Florida company
("Tenant").
W I T N E S S E T H:
- - - - - - - - - -
1. Definitions and Basic Provisions. Certain definitions and provisions
(the "Basic Lease Information") of this Lease are:
1.1 Lease Date: June 1, 2002
1.2 Tenant: Universal Beverages Holding Corporation
1.3 Tenant's Address: 0000 Xxx Xxxxxx Xxx
Xxxxx 0
Xxxxxxxxxxxx Xxxxx, XX 00000
Attn: President
with a copy to: G. Xxxx Xxxxxx, Esq.
00 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax:(000) 000-0000
1.4 Landlord: Bansgrove Limited
1.5 Landlord's
Address: c/o Moscowitz Xxxxxxxxx & Magolnick, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
with a
copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx Xxxxxxxxx & Magolnick, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
1.6 Premises: 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
1.7 Lease Term: The term of the Lease shall commence on June 1, 2002
(the "Commencement Date"), and terminate on May 31, 2004 (the "Expiration
Date").
1.8 Base Rent: Eighteen Thousand Five Hundred Dollars ($18,500.00) per
month for the first six (6) months, then Twenty Two Thousand Five Hundred
Dollars ($22,500.00) per month for the following six (6) months, and
thereafter, Eighteen Thousand Dollars ($18,000.00) per month for the
balance of the lease term.
1.9 Permitted Use: General Office Purposes/ Bottling Plant.
2. Lease Grant.
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2.1 In consideration of the Rent (as hereinafter defined) to be paid
and the other covenants and agreements to be performed by Tenant, Landlord
does hereby lease, demise and let unto Tenant the Premises, more fully
described in Exhibit "A" attached hereto and incorporated herein by
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reference, commencing on the Commencement Date and ending on the last day
of the Lease Term, unless sooner terminated as herein provided. No easement
for light, air or view is granted, given or implied herein.
2.2 The Premises are being leased in AS/IS condition, with no
warranties, representations or promises by Landlord as to any aspect of the
Premises.
3. Rent.
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3.1 Tenant agrees to pay to Landlord in advance on or before the first
day of each month the Base Rent (as set forth in Section 1.8 above),
subject to adjustment as hereinbefore provided, without deduction or set
off, for each month of the entire Lease Term, at the Landlord's address as
set forth herein. Pro-rated for the current month shall be due and payable
by Tenant to Landlord upon execution of this Lease, and a full monthly
installment shall be due and payable without demand on or before the first
day of each calendar month succeeding the Commencement Date during the
Lease Term. Base Rent for any period of less than a full month shall be
prorated, based on one thirtieth (1/30) of the current Base Rent for each
day of the partial month this Lease is in effect.
3.2 In addition to and along with the monthly installments of Base
Rent pursuant to Subsection 3.1 hereof, Tenant shall pay to Landlord an
amount equal to the sum of all taxes on Rent directly or indirectly imposed
by any government entity (the "Rent Tax") as Additional Rent.
3.3 If any installment of the Base Rent, or any other sums owed by
Tenant to Landlord under this Lease, is not received within five (5) days
after the due date thereof, more than once during each Lease Year, without
implying Landlord's consent to such late payment, or if Landlord pays a sum
on behalf of or for Tenant (which Landlord may do in Landlord's sole and
absolute discretion), and Landlord is not repaid such sum within ten (10)
days after demand therefor is made, Tenant, to the extent permitted by law,
agrees to pay, in addition to said installment of the Base Rent or such
other sum owed, a late payment charge equal to five (5%) percent of the
Base Rent or such other sums owed; provided, however, that with regard to
nonrecurring items only, Landlord has delivered to Tenant the xxxx
therefore on or before the 25th of the immediately preceding month (for
payments due on the first of the month) or given Tenant written notice of
such charge as otherwise set forth in this Lease. Said late payment charge
shall constitute liquidated damages and shall be for the purpose of
reimbursing Landlord for additional costs and expenses which Landlord
expects to incur in connection with the handling and processing of late
installment payments of the Base Rent and such other sums owed by Tenant to
Landlord hereunder. If there is a late payment by Tenant, the damages
resulting to Landlord will be difficult to ascertain precisely, and the
foregoing charge constitutes a reasonable and good faith estimate by the
parties of the extent of such damages and does not constitute interest.
Notwithstanding the foregoing, such late charges shall not apply to any
sums that may have been advanced by Landlord to or for the benefit of
Tenant pursuant to this Lease. If any check delivered to Landlord by Tenant
in payment of Base Rent or Additional Rent is not honored by the financial
institution upon which such check was drawn and is returned to Landlord for
any reason whatsoever, Landlord may impose, as Additional Rent, a returned
check service charge of $15.00 or the actual charges imposed on Landlord as
the result of such returned check, whichever is greater, each time a check
is not honored and returned to Landlord. Such returned check service charge
shall be in addition to and not in lieu of any late payment charge. If any
two (2) checks delivered to Landlord by Tenant during the Lease Term in
payment of Base Rent or Additional Rent are not honored by the financial
institution upon which such checks were drawn are returned to Landlord for
any reason whatsoever, Landlord may require, upon written notice to Tenant,
that any and all subsequent payments of Base Rent or Additional Rent be
made by either cash, money order or cashier's check for the balance of the
Lease Term.
3.4 All sums other than Base Rent payable by Tenant to Landlord under
this Lease shall constitute "Additional Rent". Base Rent and Additional
Rent are herein referred to collectively as "Rent". All Rent due hereunder
not paid by Tenant within ten (10) days after the due date thereof, shall
bear interest from the eleventh (11th) day of the month until paid in full
at a rate equal to the lesser of: (a) the prime interest rate in effect
from day to day at Bank of America/Nations Bank of Florida, plus three (3)
percentage points; or (b) the maximum legal rate allowed by law (the
"Default Rate"); provided, however, that with regard to nonrecurring items
only, Landlord has delivered to Tenant the xxxx therefore on or before the
25th of the immediately preceding month (for payments due on the first of
the month) or given Tenant written notice of such charge as otherwise set
forth in this Lease. If more than the maximum legal rate of interest should
ever be collected with regard to any sum due hereunder, said excess amount
shall be credited against future payments of Rent accruing thereafter. If
no such further Rent accrues hereunder, said excess sums shall be promptly
refunded by Landlord to Tenant upon demand by Tenant.
3.5 No payment by Tenant or receipt by Landlord of a lesser amount
than the correct Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction.
Landlord may accept such check of payment without prejudice to Landlord's
right to recover the balance or to pursue any other remedy.
4. Consumer Price Index Increases. Intentionally Omitted.
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5. Landlord's Representations.
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Landlord represents and warrants to Tenant that the Landlord is the
sole fee simple owner of the Property, including the Building and any parking
areas associated therewith. Landlord further represents and warrants to Tenant
the following: (i) For so long as Tenant is in good standing under this Lease,
Tenant shall have commercially reasonable access to the Premises and the parking
areas on a twenty-four hours a day, seven-day-week basis; and (ii) this Lease
has been duly authorized, executed and delivered by and on behalf of Landlord
and constitutes the valid and binding agreement of Landlord enforceable in
accordance with the terms hereof.
6. Insurance
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Tenant shall be responsible for procuring and maintaining insurance in
accordance with the requirements of Section 24.
7. Reimbursement for Operating Costs. Intentionally omitted.
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8. Permitted Use. Tenant shall use the Premises only for the Permitted Use.
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Tenant will not occupy or use the Premises, or permit any portion of the
Premises to be occupied or used, for any business or purpose other than the
Permitted Use or for any use or purpose which is unlawful in part or in whole or
deemed to be disreputable in any manner or extra hazardous on account of fire,
nor shall Tenant use, store, or discharge any "Hazardous Material" as defined in
Section 45 hereof, nor permit anything to be done which will in any way increase
the rate of insurance on the Building or contents; and if, by act of Tenant,
there is any increase in the rate of insurance on the Building or contents
created by Tenant's acts or conduct, then such acts of Tenant shall be an event
of default hereunder and Tenant shall pay to Landlord the amount of such
increase within ten (10) days of written demand therefore. Acceptance of such
payment shall not constitute a waiver of any of Landlord's other rights provided
herein. Tenant will maintain the Premises in a clean, healthful and safe
condition and will comply with all laws, ordinances, orders, rules and
regulations (state, federal, municipal and other agencies of bodies having
jurisdiction thereof) with reference to its use, the condition of or its
occupancy of the Premises as well as the provisions of all recorded documents
affecting the Building which have been furnished by Landlord to Tenant. Tenant
will not, without the prior consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed, paint, install lighting or
install any signs, window or door lettering or advertising media on the
exterior, or in a location that is visible from the exterior of the Premises.
Tenant shall not place a load upon any floor of the Premises exceeding the floor
load per square foot that such floor was designated to carry or which is allowed
by law. Landlord hereby reserves the right to prescribe the weight and position
of all safes or other unusually heavy equipment that must be placed so as to
distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant, at Tenant's sole cost and expense, in settings
sufficient in Landlord's judgment to absorb and prevent transmission of
vibration, noise and annoyance. Tenant shall not install or use in the Premises
any electrical machinery or appliances that in Landlord's sole judgment may
overload the electrical wiring or equipment capacity in the Premises or the
Building. Tenant shall be responsible for the cost of making any alterations or
repairs to the Premises required by the provisions of the Americans with
Disabilities Act ("ADA"). of 1990, 42 U.S.C. 12101 et.seq. ("ADA") and/or the
Florida Americans with Disabilities Accessibility Implementation Act ("Florida
ADA"), and all regulations promulgated thereunder or other governmental laws at
all times during the Lease Term following the Commencement Date.
9. Tenant's Repairs and Alterations
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9.1 Tenant will not deface or injure the Building, and will pay the
cost of repairing any damage or injury done to the Building or any part
thereof by Tenant or Tenant's agents, employees or invitees, normal wear
and tear damage due to fire, casualty or condemnation or Acts of God
excepted. Tenant shall take good care of the Premises and keep them free
from waste and nuisance of any kind. Tenant shall keep the Premises,
including all fixtures installed by Tenant, in good condition, and shall
make all necessary non-structural repairs except those caused by reasonable
wear and tear, fire, casualty, condemnation or acts of God . The
performance by Tenant of its obligations to maintain and make repairs shall
be conducted only by contractors and subcontractors consented to by
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed, and Tenant shall procure and maintain and shall cause such
contractors and subcontractors engaged by or on behalf of Tenant to procure
and maintain insurance coverage against such risks, in such amounts and
with such companies as Landlord reasonably requires in connection with such
maintenance and repair. Tenant shall prohibit any contractor it engages or
subcontractor or material suppliers engaged through such contractor from
filing any notice or notices of commencement of public record as a part of
or in connection with work on the Premises, unless such notice is
restricted to Tenant's leasehold estate. Tenant hereby further covenants
and agrees to provide Landlord with copies of any notices Tenant receives
in connection with such work.
9.2 If Tenant fails to make the repairs described above within fifteen
(15) days after the occurrence of the damage or injury, Landlord may at its
option make such repair, and Tenant shall, upon written notice therefor,
pay Landlord for the cost thereof. At the end or other termination of this
Lease, Tenant shall deliver the Premises with all improvements located
thereon (except as otherwise herein provided) in good repair and condition,
reasonable wear and tear excepted; and shall deliver to Landlord all keys
to the Premises.
9.3 Tenant will not make or allow to be made any structural
alterations or physical additions in or to the Premises or any other
alterations or physical additions in or to the Premises in excess of
$10,000.00 without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. All
alterations, additions or improvements (whether temporary or permanent in
character, however, excluding Tenant's movable office furniture, trade
fixtures and equipment) made in or upon the Premises by Landlord or Tenant
shall be Landlord's property on termination or expiration of this Lease and
shall remain on the Premises without compensation to Tenant, provided that
Landlord, at its option, may by notice to Tenant at the time of the
granting by Landlord's consent thereto, require Tenant to remove any such
alterations, additions or improvements at Tenant's cost and restore the
Premises to the condition of the Premises at the Commencement Date, normal
wear and tear excepted. All movable or trade furniture or fixtures and
equipment installed by Tenant may be removed by Tenant at the termination
of this Lease if Tenant elects, and shall be removed by Tenant at Tenant's
sole cost, if required by Landlord, or if not removed shall, at the option
of Landlord, become the property of Landlord. All such installations,
removals and restoration shall be accomplished in a good workmanlike manner
so as not to damage the Premises or the structure of the Building or the
plumbing, electrical or other utilities.
9.4 There shall be no allowance to Tenant for a diminution of rental
value of the Premises and no liability on the part of Landlord for
inconvenience, annoyance or injury to business arising from Landlord or
others making any repairs, alterations, additions, or improvements in or to
any portion of the Project or the Premises, or in or to any fixtures or
personal property attached thereto or located therein, provided that
Tenant's use and enjoyment of the Premises is not materially interfered
with.
10. Subletting and Assigning.
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10.1 Tenant shall not assign, mortgage or encumber this Lease, nor
sublet, suffer or permit the Premises or any part thereof to be used by
others, without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed. If this Lease is
assigned, or if the Premises or any part hereof be sublet or occupied by
anyone other than Tenant, without Landlord's prior consent when such
consent is required and not specifically excluded, Landlord may collect
from the assignee, subtenant or occupant, and apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be a waiver of this covenant, or the acceptance of the
assignee, subtenant or tenant, or a release of Tenant from the further
performance of its covenants herein contained. The consent by Landlord to
an assignment or subletting shall not be construed to relieve Tenant from
obtaining Landlord's written consent to any further assignment or
subletting.
10.2 For the purposes of this Lease, an "assignment" shall be deemed
to include the following: If Tenant is a corporation, any dissolution,
merger or consolidation, or other reorganization of Tenant, or the sale of
more than 81% of the total combined voting power of all classes of Tenant's
capital stock issued, outstanding, and entitled to vote for the election of
directors shall be deemed an assignment.
10.3 Tenant shall reimburse Landlord on demand for any reasonable
costs that Landlord may incur in connection with any requested assignment
or sublease, including the reasonable costs of investigating the
acceptability of the proposed assignee or subtenant, and reasonable legal
costs incurred in connection with the granting of any requested consent.
10.4 No assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and
several with the assignee), and Tenant shall not be released from
performing any of its obligations hereunder.
11. Indemnity. Tenant will indemnify and save harmless Landlord of and from
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all fines, suits, demands, losses and actions (including attorneys' fees) for
any injury to person or damage to or loss of property on or about the Premises
to the extent caused by the negligence or misconduct of, or breach of the Lease
by Tenant, its employees, subtenants, invitees or by any other person entering
the Premises, the Building, or the Project under express or implied invitation
of Tenant, or arising out of Tenant's use of the Premises. Landlord shall not be
liable or responsible for any loss or damage to any property or death or injury
to any person occasioned by theft, fire, act of God, public enemy, criminal
conduct of third parties, injunction, riot, strike, insurrection, war, court
order, requisition of other governmental body or authority, by other tenants of
the Building or any other matter, or for any injury or damage or inconvenience
which may arise through repair or alteration of any part of the Building, or
failure to make repairs, or from any cause whatever.
12. Subordination and Mortgagee's Right to Cure Landlord's Defaults. This
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Lease and all rights of Tenant hereunder shall be subject and subordinate to any
deeds to secure debt, mortgages or any other instruments of security, as well as
to any ground leases, that now or hereafter cover all or any part of the
Building, the land situated beneath the Building or any interest of Landlord
therein, and to any and all advances made on the security thereof, and to any
and all increases, renewals, modifications, consolidations, replacements and
extensions of any such instruments. This provision shall be self-operative and
no further instrument shall be required to effect such subordination of this
Lease. Tenant shall, however, upon demand execute, acknowledge and deliver to
Landlord any and all instruments and certificates that in the judgement of
Landlord may be necessary or proper to confirm or evidence such subordination.
Notwithstanding the generality of the foregoing provisions of this Section,
Tenant agrees that any such mortgagee shall have the right at any time to
subordinate any such instruments to this Lease on such terms and subject to such
conditions as such mortgagee may deem appropriate. Tenant further covenants and
agrees upon demand by Landlord's mortgagee at any time, before or after the
institution of any proceedings for the foreclosure of any such instruments, or
sale of the Building pursuant to any such instruments, to attorn to such
purchaser upon any such sale and to recognize such purchaser as Landlord under
this Lease. The agreement of Tenant to attorn upon demand of Landlord's
mortgagee contained in the immediately preceding sentence shall survive any such
foreclosure sale. Tenant shall upon demand at any time or times before or after
any such foreclosure sale, execute, acknowledge and deliver to Landlord's
mortgagee any and all instruments and certificates that in the reasonable
judgment of Landlord's mortgagee may be necessary or proper to confirm or
evidence such attornment. Provided that Tenant has failed to comply with the
terms and provisions hereof, Tenant hereby irrevocably appoints Landlord's
mortgagee as Tenant's agent and attorney-in-fact for the purpose of executing,
acknowledging and delivering any such instruments and certificates.
13. Inspection. Upon reasonable advance written notice to Tenant and during
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normal business hours (or, in any emergency, at any hour) and with such notice
as may be reasonable under the circumstances, Landlord or its officers, agents,
and representatives shall have the right to enter into and upon any and all
parts of the Premises to (a) inspect same or clean or make repairs or
alterations or additions as Landlord may deem necessary (but without any
obligation to do so, except as expressly provided for herein) or (b) show the
Premises to prospective tenants, purchasers or lenders; and Tenant shall not be
entitled to any abatement or reduction of Rent by reason thereof, nor shall such
be deemed to be an actual or constructive eviction, provided, however, Landlord
shall use best efforts not to unreasonably interfere with Tenant in the conduct
of its business in the Premises.
14. Condemnation. If (a) the Premises, or any part thereof, or (b) if the
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Building or any portion of the Building (including the parking), leaving the
remainder of the Building unsuitable for use as an office building comparable to
its use on the Commencement Date of this Lease, shall be taken or condemned in
whole or in part for public purposes (on a permanent or temporary basis), or
sold in lieu of condemnation, then the Lease Term shall, at the sole option of
Landlord, forthwith cease and terminate and the Base Rent and Additional Rent
shall be prorated and adjusted as of such date. All compensation awarded for any
taking (or sale proceeds in lieu thereof) shall be the property of Landlord, and
Tenant shall have no claim thereto, the same being hereby expressly waived by
Tenant; provided, however, Tenant shall be entitled to receive a separate award
attributable to its relocation costs and its tenant improvements so long as any
such separate award does not represent the value of the loss of the Tenant's
leasehold estate or otherwise reduce the amount of the award that would have
otherwise been made payable to Landlord.
15. Casualty. If the Building is totally destroyed by fire or other
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casualty or if the Premises or Building is so damaged that rebuilding or repairs
cannot be completed within one hundred eighty (180) days after the date of such
damage, Landlord or Tenant may at its option terminate this Lease, in which
event the Rent shall be abated during the unexpired portion of this Lease
effective from the date of such damage. If the Building or the Premises are
damaged by fire, tornado or other casualty covered by Tenant's insurance, but
only to such extent that rebuilding or repairs can be completed within one
hundred eighty (180) days after the date of such damage, or if the damage should
be more serious but neither Landlord nor Tenant elects to terminate this Lease,
Landlord shall within ninety (90) days after the date of such damage commence to
rebuild or repair the Building and/or Premises and proceed with reasonable
diligence to restore the Building and/or Premises to not less than substantially
the same condition in which it was immediately prior to the casualty, except
Landlord shall not be required to rebuild, repair or replace any part of the
furniture, equipment, fixtures and other improvements which may have been placed
by Tenant in the Premises. There shall be a fair diminution of Base Rent and
Additional Rent during the time the Premises are unfit for occupancy until the
Premises are substantially completed and restored by Landlord to substantially
the same condition they were in as of the Commencement Date. In the event of
restoration by Landlord, (i) Landlord shall advise Tenant in writing of its good
faith estimate of the time necessary to ensure the restoration; and (ii) all
restoration by Landlord shall be commenced and completed utilizing diligent
efforts. Landlord shall use its best efforts to prepare the necessary plans and
specifications and apply for the issuance of a building permit as soon as
possible following destruction.
If any mortgagee under a deed to secure debt, security agreement or
mortgage requires the insurance proceeds be applied against the mortgage debt,
Landlord shall have no obligation to rebuild and this Lease shall terminate upon
notice to Tenant; however, Landlord shall notify Tenant within thirty (30) days
after any such mortgagee gives a notice to Landlord of such election to apply
such proceeds against the mortgage debt, of the fact that such mortgagee has
done so. Except as hereinafter provided, any insurance which may be carried by
Landlord or Tenant against loss or damage to the Building or to the Premises
shall be for the sole benefit of the party carrying such insurance and under its
sole control.
16. Holding Over. Should Tenant hold over in the Premises after the
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expiration of the Lease Term, unless otherwise agreed to in writing by Landlord,
such holding over shall constitute a tenancy at will, at a daily rental equal to
one hundred and fifty percent (150%) of the daily Rent payable for the last
month of the Lease Term, and Tenant shall pay to Landlord all damages that
Landlord may suffer on account of Tenant's failure to surrender to Landlord
possession of the Premises, and Tenant will indemnify and save Landlord harmless
from and against all claims made by any succeeding tenant of the Premises
against Landlord because of Landlord's delay in delivering possession of the
Premises to said succeeding tenant resulting from the holdover by Tenant of the
Premises. The inclusion of the preceding sentence shall not be construed as
Landlord's consent for Tenant to hold over.
17. Taxes on Tenant's Property. Tenant shall be liable for all taxes levied
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or assessed against personal property, furniture or fixtures placed by Tenant in
the Premises (herein called "Tenant's Property"). If any such taxes for which
Tenant is liable are levied or assessed against Landlord or Landlord's property
and if Landlord elects to pay the same or if the assessed value of Landlord's
property is increased by inclusion of personal property, furniture or fixtures
placed by Tenant in the Premises, and Landlord elects to pay the taxes based on
such increase, Tenant shall pay to Landlord within ten (10) days following
Landlord's written demand therefor that part of such taxes for which Tenant is
primarily liable hereunder.
18. Events of Default. The following shall be events of default by Tenant
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under this Lease:
18.1 Tenant shall fail to pay within thirty (30) days of when due any
Rent or other sums payable by Tenant hereunder (or under any other lease
now or hereafter executed by Tenant in connection with the Building).
18.2 Tenant shall fail to comply with or observe any other provision
of this Lease following ten (10) days prior written notice or such longer
period of time as may reasonably be require if such Event of Default cannot
practicably be cured during such ten (10) day period, provided that Tenant
has commenced such cure during the ten (10) day period and uses diligent
efforts to effectuate such cure (or any other lease now or hereafter
executed by Tenant in connection with the Building).
18.3 Tenant or any guarantor of Tenant's obligations hereunder shall
make an assignment for the benefit of creditors.
18.4 Any voluntary or involuntary petition shall be filed by or
against Tenant or any guarantor of Tenant's obligations hereunder under any
section or chapter of the Federal Bankruptcy Act, as amended from time to
time, or under any similar law or statute of the United States or any State
thereof which is not discharged or played within 90 days after the date of
such filing; or Tenant or any guarantor of Tenant's obligations hereunder
shall be adjudged bankrupt or insolvent in proceedings filed thereunder.
18.5 A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any guarantor of Tenant's obligations
hereunder which is not discharged or played within 90 days after the date
of such filing.
18.6 (Intentionally omitted).
18.7 Any writ of execution, attachment, or garnishment shall be levied
against any interest of Tenant in this Lease, the Premises, or any property
located in the Premises.
19. Remedies. If Tenant defaults under this Lease beyond any applicable
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notice and/or all periods, then without any further notice or demand to Tenant
whatsoever, Landlord shall have the right (but not any duty) to exercise, on a
cumulative basis, any or all of the following remedies:
19.1 Landlord may continue this Lease in full force and effect, and
proceed to collect all Rent when due.
19.2 Without prejudice to any other remedy which Landlord may have, to
the extent permitted pursuant to Florida law, Landlord may continue this
Lease in full force and effect and may peacefully enter the Premises under
full and free license from Tenant, to expel or remove Tenant and any others
who may be occupying or within the Premises, to remove any and all property
therefrom without being deemed in any manner guilty of trespass, eviction,
forcible entry or detainer and relet all or any portion thereof to other
parties for Tenant's account. At any time or from time to time after any
such termination of Tenant's possession, Landlord may relet the Premises or
any part thereof, in the name of Landlord or otherwise, for such term or
terms and on such conditions as Landlord, in its sole discretion, may
determine, and may collect and receive the rents therefore. Subject to
Landlord's obligation to use reasonable diligence to mitigate damages for
which Tenant may be liable, Landlord shall not be responsible or liable for
any failure to relet the Premises or any part thereof or for any failure to
collect any rent due upon any such reletting, and Tenant acknowledges that
Landlord will use its efforts to first lease other premises in the Building
before attempting to relet the Premises. Landlord shall not be required to
accept any proposed new tenant offered by Tenant. Tenant shall pay to
Landlord on demand all costs Landlord incurs in entering the Premises and
reletting them, including, without limitation, brokers' commissions,
expenses of repairs and remodeling, attorneys' fees, and all other actual
costs. Reletting may be for a period shorter or longer than the remaining
term of this Lease. If Landlord shall relet the Premises during said
period, Landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first
deducting from the gross rents, as and when received by Landlord, the
actual reasonable expenses incurred or paid by Landlord in terminating this
Lease and in securing possessions thereof, as well as the reasonable
expenses of reletting, including, brokers' commissions, attorneys' fees and
all other reasonable expenses properly chargeable against the Premises and
the rental therefrom.
19.3 Landlord may, without any notice or demand whatsoever, terminate
Tenant's rights under this Lease, including Tenant's Purchase Option as
described in section 53, at any time in accordance with Florida law. From
and after any such termination, Landlord shall have the right to recover
from Tenant all costs, expenses, losses and damages caused by, resulting
from or incurred in connection with said default and/or termination
including, but not limited to:
19.3.1 An amount equal to all unpaid Rent that had accrued prior
to the time of termination of this Lease including any late payment
charges due.
19.3.2 An amount equal to (a) the amount of Rent that would have
accrued under this Lease between (i) the date of termination of this
Lease, and (ii) the date the calculation is made under this Subsection
19.3.2 if this Lease had not been so terminated; less (b) any net
amounts of rent actually received by Landlord with respect to such
time period; plus
19.3.3 An amount equal to (a) the present value of all Rent
(assuming that the Additional Rent payable hereunder for the future
will be the same as for the most recent Lease Year) which would have
accrued under this Lease had this Lease not been terminated, for the
period of time between (i) the date of calculation of the amounts due
under Subsection 19.3.2, and (ii) the date the Lease Term would have
expired if this Lease had not been so terminated; less (b) the present
value of rent at that time being actually collected for comparable
leases in the immediate geographic area of the Project; and
19.3.4 An amount equal to (a) all actual costs and expenses,
including but not limited to attorneys' fees, that have been incurred
by Landlord prior to the date the calculation of said amounts is made,
plus (b) the present value of all costs and expenses, including but
not limited to attorneys' fees, that with reasonable certainty are
likely to be incurred thereafter by Landlord, which are reasonably
necessary to compensate Landlord for all economic losses proximately
caused by Tenant's default.
In computing the present value of amounts for purposes of this Subsection
19.3, a reasonable discount factor shall be used.
19.4 Landlord may seek the appointment of a receiver to take
possession of and relet the Premises, in accordance with Subsection 19.2,
provided that Landlord complies with the established requirements of law.
Tenant shall pay to Landlord on demand all costs Landlord incurs in
connection therewith.
19.5 Landlord may cure any default at Tenant's cost. If Landlord at
any time, by reason of Tenant's default, pays any sum to cure any default,
the sum so paid by Landlord shall be immediately due from Tenant to
Landlord within ten (10) days following Landlord's written request
therefor, and shall bear interest at the Default Rate from the date paid by
Landlord until Landlord shall have been reimbursed by Tenant. Said sum,
together with interest thereon, shall be Additional Rent.
19.6 Landlord may exercise any or all other rights or remedies
available at law or equity, including, without limitation, the right to
obtain restraining orders, injunctions and decrees of specific performance.
19.7 Landlord may obtain an injunction by any court of competent
jurisdiction restraining any threatened breach or any continuing breach of
any of Tenant's covenants hereunder. 19.8 Any right granted in this Section
19 to Landlord in the event of a default by Tenant hereunder shall apply to
any extension or renewal of this Lease. No act or thing done by Landlord or
Landlord's employees or agents during the Lease Term shall be deemed an
acceptance of a surrender of the Premises. No waiver by Landlord of any
default of Tenant hereunder shall be implied from any inaction by Landlord
on account of such default if such default persists or is repeated, and no
express waiver shall affect any default other than the default specified in
the express waiver and then only for the time and to the extent therein
stated. The receipt by Landlord of Rent with knowledge of the breach of any
covenant of Tenant contained in this Lease shall not be deemed a waiver of
such breach. If on the Commencement Date or thereafter during the Lease
Term, Tenant shall be in default in the payment of rent to Landlord
pursuant to the terms of any other lease(s) with Landlord or with
Landlord's predecessor in interest, Landlord may, at Landlord's option and
without notice to Tenant, add the amount of such arrearages to any monthly
installment of Base Rent or Additional Rent payable hereunder and the same
shall be payable to Landlord as Additional Rent.
19.9 If Landlord fails to perform or observe any covenant, term,
provision or condition of this Lease and such default should continue
beyond the period of thirty (30) days (or such longer period of time as may
be reasonably necessary to remedy such default provided that Landlord has
commenced such cure during the thirty (30) day period and uses diligent
efforts to effectuate such cure within a reasonable period of time), after
in each instance written notice (the "notice") thereof is given by Tenant
to Landlord (and a copy of said notice to be sent simultaneously therewith
to Landlord's mortgagee, if any) then, in such event, Tenant shall have the
right, if such default shall continue uncured, to commence such actions at
law or in equity to which Tenant may be entitled. Notwithstanding anything
contained herein to the contrary, Tenant may not take any action to remedy
any default by Landlord without first being given an order by a court of
competent jurisdiction to take such action. Tenant shall have no right to
terminate the Lease as the result of or relating to any Landlord default.
20. Attorneys' Fees. With respect to any default, failure to perform or any
---------------
other dispute between Tenant and Landlord arising out of this Lease, the
prevailing party shall be entitled to recover all costs incurred, including
reasonable attorney's fees, which shall include, but not be limited to, such
fees incurred prior to institution of litigation or in litigation, including
trial and appellate review, and in arbitration, bankruptcy or other
administrative or judicial proceeding.
21. Security Interest. In addition to the statutory landlord's lien,
------------------
Landlord shall have and Tenant hereby grants to Landlord, a valid security
interest to secure payment of all Rent becoming due hereunder from Tenant, and
to secure payment of any damages or loss which Landlord may suffer by reason of
the breach of Tenant of any covenant, agreement or condition contained herein,
upon all fixtures and improvements of Tenant presently or which may hereafter be
situated on the Premises, and all proceeds therefrom, and such property shall
not be removed therefrom without the consent, which consent shall not be
unreasonably withheld, conditioned or delayed, of Landlord until all arrearages
in Rent and all other sums of money then due Landlord hereunder shall first have
been paid and all the covenants, agreements and conditions hereof have been
fully complied with and performed by Tenant. Upon an event of default by Tenant,
Landlord may, in addition to any other remedies provided herein, enter upon the
Premises and take possession of any fixtures and improvements of Tenant situated
on the Premises, without liability for trespass or conversion, and sell the same
at public or private sale, with or without having such property at the sale,
after giving Tenant reasonable notice of the time and place of any public sale
or of the time after which any private sale is to be made, at which sale
Landlord or its assigns may purchase said property unless otherwise prohibited
by law. Unless otherwise provided by law, and without intending to exclude any
other manner of giving Tenant reasonable notice, the requirement of reasonable
notice shall be met if such notice is given in the manner prescribed in Section
27 of this Lease at least fifteen (15) days before the time of sale. The
proceeds from any such disposition, less any and all expenses connected with the
taking of possession, holding and selling of the property (including reasonable
attorneys' fees and other expenses), shall be applied as a credit against the
debts secured by the security interest granted in this Section 21. Any surplus
shall be paid to Tenant or as otherwise required by law; and Tenant shall pay
any deficiencies forthwith. Upon request by Landlord, Tenant agrees to execute
and deliver to Landlord a financing statement in form sufficient to perfect the
security interest of Landlord in the said property and the proceeds thereof
under the provisions of the Uniform Commercial Code in force in the state. The
statutory lien for rent is not hereby waived, the security interest herein
granted being in addition and supplementary thereto. Notwithstanding the
foregoing, Landlord agrees to subordinate the Landlord's lien to any lien or
other security interest which secures the payment of the deferred portion of the
purchase price of any furnishings, equipment or fixtures of Tenant placed in or
on the Premises, or any blanket lien or other security interest which secures
Tenant's payment of money or other obligations, provided any such subordination
instruments requested by any such lender is reasonably satisfactory in form and
content to Landlord and counsel of Landlord and includes reasonable assurances
that any such lender removing any property of Tenant from the Premises shall
notify Landlord in writing prior to such removal, shall repair any damage to the
Premises occasioned by such removal and that such lender shall remove any such
property from the Premises within five (5) days after termination of the Lease.
22. Liens. Tenant will not permit any lien to be placed upon the Premises,
-----
the Building or any improvements thereon during the Lease Term caused by or
resulting from any work performed, materials furnished or obligation incurred by
or at the request of Tenant. All persons contracting with Tenant for the
construction and installation of improvements to or alteration or repair of the
Premises and all materialmen, contractors, mechanics and laborers are hereby
charged with notice that they must look to Tenant's interest in the Premises
only to secure payment of any xxxx for work done or materials furnished during
the Lease Term. In the case of the filing of any such lien, Tenant will promptly
pay or otherwise discharge the same. If default in payment or discharge thereof
shall continue for twenty (20) days after notice thereto from Landlord to
Tenant, Landlord shall have the right at Landlord's option of paying the same
without inquiry as to the validity thereof, and any amounts so paid, including
expenses and interest, shall be so much Additional Rent hereunder due from
Tenant to Landlord and shall be repaid to Landlord within ten (10) days of
Landlord's demand therefor.
23. Waiver of Subrogation. Each party to this Lease (the "Waiving Party")
---------------------
hereby waives any cause of action it might have against the other party hereto
on account of any loss or damage that is covered by any insurance policy that
covers the Premises, Tenant's fixtures, personal property, leasehold
improvements or business and which names Tenant as a party insured, it being
understood and agreed that this provision is cumulative of Section 10 hereof.
Tenant shall require its insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under subrogation or otherwise against
Landlord.
24. Insurance
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24.1 Tenant shall be responsible for procuring insurance covering the
Premises, (including the Building and any and all improvements, furniture,
fixtures, equipment, supplies, inventory, contents and other property
owned, leased, held or possessed by Tenant and contained therein, against
fire and such other risks as are normally included in the broadest form of
"all perils" coverage, insuring in an amount of not less than one hundred
(100%) percent of the replacement cost thereof. The insurance shall provide
protection against all perils included within the classification of fire,
casualty, extended coverage, vandalism, malicious mischief, special
extended peril (all risk), boiler and machinery, flood, glass breakage and
sprinkler leakage, and naming Landlord as loss payee as its interest may
appear.
24.2 Tenant shall also procure general liability insurance, other
insurance or self insurance against claims for injury to persons and
property occurring on the Property and Building, such insurance to be in a
single limit of not less than Five Million ($5,000,000) Dollars or other
limit as Landlord deems reasonable. To the extent the Premises are covered
by liability insurance maintained by both Tenant and Landlord, Tenant's
liability insurance shall be primary with respect thereto.
24.3 worker's compensation insurance required by applicable law;
24.4 comprehensive or commercial general liability insurance on an
occurrence basis for injury to or death of a person or persons and for
damage to property occasioned by or arising out of any construction work
being done on the Premises, or arising out of the condition, use, or
occupancy of the Premises, and covering Tenant's indemnification
obligations imposed by Paragraph 15 of this Lease, the limits of such
policy or policies to be in amounts not less than Three Million and No/100
Dollars ($3,000,000) in primary liability coverage and Two Million and
No/100 Dollars ($2,000,000) in excess liability coverage; and
All policies of insurance, other than self insurance, required from
Landlord in this Section shall be issued by insurance companies with general
policyholder's rating of "A" or "A-"" as rated in the most current available
"Best's Insurance Reports". All said insurance policies shall be carried with
companies licensed to do business in the State of Florida reasonably
satisfactory to Landlord and shall be noncancellable except after thirty (30)
days written notice to Landlord. Each policy shall name Landlord, Landlord's
property manager and any other person designated by Landlord as additional
insureds, except for all risks property insurance which shall name Landlord as a
loss payee, and provide that it is primary to, and not contributing with, any
policy carried by Landlord, Landlord's property manager, or other designated
person covering the same loss.
Landlord retains the right, in its sole discretion, to increase the amount
of insurance required to be carried by Tenant not more frequently than annually
based on such factors as inflation, Tenant's insurance claims history, the
advice of Landlord's insurance advisors and any other relevant factors provided
such increases are reasonably imposed by Landlord. Tenant shall have included in
all policies of insurance obtained by it with respect to the Building or
Premises a waiver by the insurer of all right of subrogation against Landlord
and Landlord's agents in connection with any loss or damage insured against. To
the full extent permitted by law, Tenant waives all right of recovery against
Landlord and Landlord's agents, and agrees to release the Landlord from
liability for loss or damage to the extent such loss or damage is covered by
valid and collectible insurance in effect at the time of such loss or damage.
If Tenant fails to take out or keep in force any insurance required to be
carried by Tenant, or to provide evidence of the same, Landlord shall have the
right, but shall not be obligated, to obtain such insurance at the sole cost and
expense of Tenant, and Tenant shall reimburse Landlord for the cost thereof upon
demand. If, due to the failure of Tenant to comply with the foregoing
provisions, Landlord is adjudged a co-insurer by its insurance carrier, then any
loss or damage Landlord shall sustain by reason thereof shall be borne by Tenant
and shall be immediately paid by Tenant upon receipt of a xxxx therefor from
Landlord and evidence of such loss. Landlord makes no representation that the
minimum limits of liability specified to be carried by Tenant hereunder are
adequate to protect Tenant.
25. Landlord and Tenant warrant that neither party has had any dealings
with any broker or agent in connection with the negotiation or execution of this
Lease and Landlord and Tenant agree to indemnify each other against all costs,
expenses, attorneys' fees or other liability for commissions or other
compensation or charges claimed by any broker or agent claiming the same by,
through or under the other party t, other than with the brokers specifically
identified above.
26. Estoppel Certificates. Tenant shall furnish from time to time when
----------------------
requested by Landlord or the holder of any deed to secure debt or mortgage
covering the Building, the Premises, or any interest of Landlord therein, a
certificate signed by Tenant confirming and containing such certifications and
representations deemed appropriate by Landlord or the holder of any deed to
secure debt or mortgage covering the Building, the Premises or any interest of
Landlord therein, and Tenant shall, within ten (10) days following receipt of
said certificate from Landlord, return fully executed copy of said certificate
to Landlord. If Tenant fails to return a fully executed copy of such certificate
to Landlord within said period, Tenant shall have approved and confirmed all of
the provisions contained in such certificate. Landlord also agrees, upon
Tenant's written request, to execute a certificate, in a form reasonably
acceptable to Landlord, certifying the terms and status of this Lease.
27. Notices. Each provision of this Lease, or of any applicable laws,
-------
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of any notice, or with reference to the making of any
payment by Tenant to Landlord, shall be deemed to be complied with when and if
the following steps are taken:
27.1 All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at Landlord's Address set
forth in Section 1.5 or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith, and
27.2 Any notice or document required to be delivered hereunder shall
be deemed to be delivered if actually received and whether or not received
when deposited in the United States mail, postage prepaid, certified or
registered mail (with or without return receipt requested) or by recognized
overnight carrier, addressed to the parties hereto at the respective
addresses set forth in Article 1 or at such other address as either of said
parties shall have theretofore specified by written notice delivered in
accordance herewith.
28. Force Majeure. When a period of time is prescribed for any action to be
-------------
taken by Landlord, Landlord shall not be liable or responsible for and there
shall be excluded from the computation for any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war, laws,
regulations or restrictions or any other causes of any kind whatsoever which are
beyond the control of Landlord.
29. Severability. If any clause or provision of this Lease is illegal,
------------
invalid or unenforceable under present or future laws effective during the Lease
Term, then and in that event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
30. Amendments; Binding Effect. This Lease may not be altered, changed or
---------------------------
amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord and addressed to Tenant, nor shall
any custom or practice which may evolve between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided.
31. Quiet Enjoyment. Provided Tenant has performed all of the terms and
----------------
conditions of this Lease taking into account any and all applicable notice and
cure periods, including the payment of Rent, to be performed by Tenant, Tenant
shall peaceably and quietly hold and enjoy the Premises for the Lease Term,
without hindrance from Landlord, subject to the terms and conditions of this
Lease.
32. Gender. Words of any gender used in this Lease shall be held and
------
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
33. Joint and Several Liability. If there is more than one Tenant, the
----------------------------
obligations hereunder imposed upon Tenant shall be joint and several. If there
is a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of Tenant and such
guarantor and Landlord need not first proceed against Tenant before proceeding
against such guarantor nor shall any such guarantor be released from its
guaranty for any reason whatsoever, including without limitation, in case of any
amendments hereto, waivers hereof or failure to give such guarantor any notices
hereunder.
34. Captions. The captions contained in this Lease are for convenience of
--------
reference only, and in no way limit or enlarge the terms and conditions of this
Lease.
35. Exhibits and Attachments. All exhibits, attachments, riders and addenda
------------------------
referred to in this Lease are incorporated into this Lease and made a part
hereof for all intents and purposes.
36. No Joint Venture. Landlord and Tenant are not and shall not be deemed
-----------------
to be partners or joint venturers with each other.
37. Time of the Essence. Time is of the essence with regard to each
----------------------
provision of this Lease.
38. Evidence of Authority. If Tenant is other than a natural person, Tenant
---------------------
shall deliver to Landlord such legal documentation as Landlord may request to
evidence the authority of those signing this Lease to bind the Tenant and
evidence that Tenant is in good standing under the laws of the Bahamas and is
qualified to do business and in good standing under the laws of the State of
Florida.
39. Governing Law. This Lease shall be construed and interpreted in
--------------
accordance with and governed by the laws of the State of Florida.
40. Entire Agreement. This Lease is being executed in connection with a
-----------------
Purchase and Sale Agreement of even date, a Promissory Note of even date and a
Mortgage of even date. These documents constitute the entire agreement between
the parties, and there is no other agreement between the parties relating in any
manner to the Premises.
41. Exculpation. The term Landlord as used in this Lease so far as
-----------
covenants or obligations on the part of Landlord are concerned shall be limited
to mean and include only the owner or owners at the time in question of the
Landlord's interest in the Building. Tenant acknowledges and agrees, for itself
and its successors and assigns, that no trustee, director, officer, employee or
agent of Landlord shall be personally liable for any of the terms, covenants or
obligations of Landlord hereunder, and Tenant shall look solely to Landlord's
interest in the Building for the collection of any judgment (or enforcement or
any other judicial process) requiring the payment of money by Landlord with
respect to any of the terms, covenants and conditions of this Lease to be
observed or performed by Landlord and no other property or assets of Landlord
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of any obligation due Tenant or its successors or assigns.
42. Covenants are Independent. Each covenant of Landlord and Tenant under
--------------------------
this Lease is independent of each other covenant under this Lease, and no
default by either party in performance of any covenant shall excuse the other
party from the performance of any other covenant.
43. Right to Relocate. Intentionally omitted.
-----------------
44. Hazardous Materials.
-------------------
44.1 Tenant shall not cause or permit any Hazardous Material (as
defined in Subsection 45.3 below) to be brought, kept or used in or about
the Building by Tenant, its agents, employees, contractors or invitees
except for ordinary office supplies reasonably used, operated and
maintained in quantities which are standard for ordinary office purposes,
and in accordance and compliance with law. Tenant hereby indemnifies
Landlord from and against any breach by Tenant of the obligations stated in
the preceding sentence, and agrees to defend and hold Landlord harmless
from and against any and all loss, damage, cost and/or expenses (including,
without limitation, diminution in value of the Building, damages for the
loss or restriction on use of rentable or usable space or of any amenity of
the Building, damages arising from any adverse impact on marketing of space
in the Building, and sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) which arise during or after the term of
this Lease as a result of such breach. This indemnification of Landlord by
Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental
agency or political subdivision because of Hazardous Material present in
the soil or ground water on or under the Building which results from such a
breach. Without limiting the foregoing, if the presence of any Hazardous
Material in the Building caused or permitted by Tenant results in any
contamination of the Building, Tenant shall promptly take all actions at
its sole expense as are necessary to return the Building to the conditions
existing prior to the introduction of such Hazardous Material to the
Building; provided that the Landlord's approval of such actions, and the
contractors to be used by Tenant in connection therewith, shall first be
obtained.
44.2 Notwithstanding any provision in this Lease to the contrary, it
shall not be unreasonable for Landlord to withhold its consent to any
proposed transfer, assignment, or subletting of the Premises if (i) the
proposed transferee's anticipated use of the Premises involves the
generation, storage, use, treatment, or disposal of Hazardous Material;
(ii) the proposed transferee has been required by any prior landlord,
lender, or governmental authority to take remedial action in connection
with Hazardous Material contaminating a property if the contamination
resulted from such transferee's actions or use of the property in question;
or (iii) the proposed transferee is subject to an enforcement order issued
by any governmental authority in connection with the use, disposal, or
storage of a Hazardous Material.
44.3 As used herein, the term "Hazardous Material" means any hazardous
or toxic substance, material, or waste which is or becomes regulated by any
local governmental authority or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or
substance which is (i) defined as a "hazardous waste", "extremely hazardous
waste", or "restricted hazardous waste" or similar term under the law of
the jurisdiction where the property is located, or (ii) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. * 1317), (iii) defined as a "hazardous
waste" pursuant to Section 1004 of the Federal Resource Conservation and
Recovery Act, 47 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), or
(iv) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601).
44.4 As used herein, the term "Laws" means any applicable federal,
state, or local laws, ordinances, or regulation relating to any Hazardous
Material affecting the Building, including, without limitation, the laws,
ordinances, and regulations referred to in Subsection 45.3 above.
44.5 Landlord and its employees, representatives and agents shall have
access to the Building during reasonable hours and upon reasonable notice
to Tenant in order to conduct periodic environmental inspections and tests
of Hazardous Material contamination of the Building.
45. Effect of Conveyance. If Landlord shall sell or lease the Building or
---------------------
the Project, Landlord shall be entirely freed and relieved of all its covenants
and obligations hereunder, and it shall be deemed and construed (without further
agreement between the parties hereto or between the parties to such conveyance)
that the purchaser or lessee of the Building or the Project has assumed and
agreed to carry out all the obligations of Landlord hereunder.
46. Easements. Any diminution or obstruction of light, air or view by any
---------
structure that may be erected on lands adjacent to the Building shall not affect
this Lease or impose any liability on Landlord. Tenant shall not acquire any
right or easement for the use of any door or passageway in any portion of the
Building or the Project, except the easement of necessity for ingress and
egress, if any, in the doors and passageway(s) directly connecting with the
Premises.
47. Waiver of Right of Redemption. Tenant, for itself and all persons
------------------------------
claiming through or under Tenant, hereby expressly waives any and all rights
which are or may be conferred upon Tenant by any present or future law to redeem
the Premises, or to any new trial in any action or ejectment under any provision
of law, after re-entry thereupon by Landlord, or after any warrant to dispossess
or judgment in ejectment. If Landlord shall acquire possession of the Premises
by summary proceedings or in any other lawful manner without judicial
proceedings, it shall be deemed a "re-entry" as that term is used herein.
48. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY LAW, IT IS MUTUALLY
-----------------------
AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THE RESPECTIVE PARTIES HERETO
SHALL, AND THEY DO HEREBY, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BETWEEN THE PARTIES HERETO OR THEIR SUCCESSORS OR ASSIGNS
ON ANY MATTERS ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT'S USE OF, OR OCCUPANCY OF,
THE PREMISES. TENANT FURTHER AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM
OR COUNTERCLAIMS IN A SUMMARY PROCEEDING OR IN ANY ACTION BASED UPON NON-PAYMENT
OF RENT OR ANY OTHER PAYMENT REQUIRED OF TENANT HEREUNDER. THIS WAIVER IS MADE
FREELY AND VOLUNTARILY, WITHOUT DURESS, AND ONLY AFTER EACH OF THE PARTIES
HERETO HAS HAD THE BENEFIT OF ADVICE FROM LEGAL COUNSEL ON THE SUBJECT.
49. Radon Gas. Radon is a naturally occurring radioactive gas that, when it
---------
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from the Dade
County public health unit.
51. Interpretation. Should any provisions of this Lease require judicial
--------------
interpretation, it is agreed that the court interpreting or construing the same
shall not apply a presumption that the terms of any such provision shall be more
strictly construed against one party or the other by reason of the rule of
construction that a document is to be construed most strictly against the party
who itself or through its agent prepared the same, it being agreed that the
agents of all parties hereto have participated in the preparation of this Lease.
52. No Recordation of Lease. Without the prior written consent of Landlord,
-----------------------
neither this Lease nor any memorandum hereof shall be recorded or placed on
public record. Notwithstanding the foregoing, the Landlord shall be entitled to
record a memorandum of lease, without Tenant's consent.
53. Option to Purchase. Landlord hereby grants to Tenant an option to
--------------------
purchase the Premises (the "Option") in accordance with the following terms and
conditions:
(a) As long as Tenant is in good standing under this Lease, the Option may
be exercised by the delivery of written notice from Tenant to Landlord at any
time prior to January 31, 2003. The purchase price shall equal the Option Price
(as hereinafter defined) and shall be paid in cash and satisfaction of that
certain promissory note between Landlord and Tenant dated of even date herewith
(the "Note"), at closing. At closing, which shall take place within sixty (60)
days of the date of notice of exercise of the Option, Landlord shall provide, at
Landlord's expense, (i) a statutory general warranty deed, and (ii) a closing
statement, assignment of lease, title affidavit, non-foreign entity certificate
and other closing documents customarily provided in commercial real estate
conveyances and reasonably required by Tenant's counsel. At Tenant's option and
sole expense, Landlord will provide an owner's title insurance commitment from a
title insurance company acceptable to Tenant committing such title company to
issue an ALTA Form B Owner Policy of Title Insurance to Tenant insuring good and
marketable title in the Premises. At closing, any rent payable by Tenant shall
be prorated (with any rent paid by Tenant attributable to the period from and
after the closing date to be credited against the purchase price). Landlord
shall bear the cost of preparation of the deed, xxxx of sale and other
instruments of conveyance, and Landlord's attorneys' fees. Tenant shall bear the
cost of recording the deed, all costs in any way associated with Tenant's
obtaining a mortgage loan (including the cost of the simultaneous issue of any
loan title policy), the title insurance premium for owner's title policy in
amount of the purchase price, surveyor's fees, documentary stamps on the deed,
and Tenant's attorneys' fees.
(b) The "Option Price" for the purchase of the Premises shall be Two
Million Four Hundred Twenty Nine Thousand One Hundred Three Dollars
($2,405,680.00)
(c) Tenant's option to purchase the Premises may be exercised and closed
notwithstanding any prior or intervening casualty or taking by eminent domain
affecting the Premises, and, in any such event, all rights, title, and interest
of Landlord in and to any insurance proceeds or condemnation award will be
assigned to Tenant.
54. Application of Proceeds. Tenant acknowledges that Landlord's equity
interest in the Premises is $1,244,577.00. In the event of a sale of the
Premises, the proceeds of said sale will be distributed as follows:
(a). First, to satisfaction of all record liens and judgments, other than
any mortgage from Landlord to Tenant, arising from the actions or inactions
of Tenant;
(b). Second, to payment to Landlord of $1,244,577.00, plus all amounts due
to Landlord by Tenant;
(c). Third, to payment to Tenant of the principal amount due under the
Note, if any, less any amounts payable to Landlord hereunder.
SIGNED, SEALED AND DELIVERED as of the date first above written.
WITNESSES: TENANT:
UNIVERSAL BEVERAGES HOLDING CORP.
a Florida corporation
_______________________ By:/S/ Xxxxxxxx Xxxxx
Print name:______________
_______________________
Print name:______________
(CORPORATE SEAL)
Date Executed:_____________
____________________________________
Tenant's Employee Identification
Number
By the execution and delivery of this Lease, Tenant has made and shall be
deemed to have made a continuous and irrevocable offer to lease the Premises, on
the terms contained in this Lease, subject only to acceptance by Landlord (as
evidenced by Landlord's signature hereon), which Landlord may accept in its sole
and absolute discretion.
WITNESSES Landlord: BANSGROVE LIMITED, a BVI
Company
_______________________
Print name:______________ By: Xxxxxxx Xxxxxxxx
_______________________
Print name:______________
Date Executed:_____________
EXHIBIT "A"
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LEGAL DESCRIPTION
