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EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE, is entered into as of the day of April, 1998, by and
between MIAMI RIVER PARTNERS, LTD., a Florida limited partnership, his
successors and/or assigns, hereinafter referred to as "Landlord" and REVENGE
MARINE, INC., a Nevada corporation, hereinafter referred to as "Tenant."
W I T N E S S E T H :
ARTICLE I
DEMISE AND TERM
SECTION 1.01 DEMISE AND ACCEPTANCE GENERALLY: Landlord hereby demises and
leases to Tenant, and Tenant hereby rents and leases from Landlord, the Premises
hereinafter described subject to all matters affecting title to the Premises as
of the date of this Lease and subject to the terms and conditions hereinafter
set forth.
SECTION 1.02 PREMISES: The Landlord owns certain real estate located in
the City of Miami, Dade County, Florida and more particularly described by a
legal description and drawing attached hereto as EXHIBIT A and made a part
hereof (which real estate together with all buildings and improvements now or
hereafter erected or placed thereon and air rights related thereto, are
hereinafter referred to as the "Premises").
SECTION 1.03 COMMENCEMENT AND DURATION OF LEASE: The term and duration of
this Lease shall be for a period of ten (10) years commencing on the date
Landlord acquires fee simple title to the Premises and provided that prior
thereto this Lease has been executed by each party required to execute this
Lease (the "Commencement Date"), plus the partial calendar month, if any,
following the Commencement Date and ending on the last day of the 120th month
after the Commencement Date or on such earlier date as the Lease is terminated
pursuant to the terms hereof. Tenant shall have the option to extend the term of
this Lease for an additional five (5) year period, to follow the original term
of this Lease, as provided in Section 22.01 below.
Except as otherwise expressly provided in this Lease, and without limiting
the generality of any other provisions of this Lease, this Lease shall not
terminate, nor shall Tenant have any right to terminate this Lease or be
entitled to the abatement of rent or any reduction thereof, nor shall the
obligations hereunder of Tenant be otherwise affected, by reason of any damage
to or the destruction of all or any part of the Premises from whatsoever cause,
the taking of the Premises or any portion thereof by condemnation or otherwise,
the prohibition, limitation, or restriction of Tenant's use of the Premises, or
the interference with such use by any private person or corporation, or for any
other cause whether similar or dissimilar to the foregoing, any present or
future law to the contrary notwithstanding. It is the intention of the parties
hereto that all rental payments reserved hereunder shall continue to be payable
in all events (except where Tenant's use of the Premises is prohibited, limited
or restricted by reason of any eviction by paramount title) and the obligations
of Tenant hereunder shall continue unaffected, unless the requirement to pay or
perform the same shall be determined pursuant to an express provision of this
Lease. Tenant agrees that it will remain obligated under this Lease in
accordance with its terms, and that Tenant will not take any action to
terminate, rescind or avoid this Lease, notwithstanding the bankruptcy,
insolvency, reorganization, liquidation, dissolution or other proceeding
affecting Landlord or any assignee of Landlord in any such proceeding and
notwithstanding any action with respect to this Lease which may be taken by any
trustee or receiver of Landlord or of any assignee of Landlord in any such
proceeding or by any court in any such proceeding.
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To the maximum extent allowed by law, Tenant waives all rights now or
hereafter conferred by law (a) to quit, terminate or surrender this Lease or the
Premises or any part thereof, or (b) to any abatement, suspension, deferment or
reduction of any rental payments due hereunder or any other sums payable under
this Lease, regardless or whether such rights shall arise from any present or
future constitution, statute or rule of law.
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ARTICLE II
RENT AND SECURITY
SECTION 2.01 AMOUNT OF MINIMUM RENT: Tenant shall pay a rent pursuant to
the following schedule, plus applicable sales or similar use or excise tax:
LEASE YEARS ANNUAL RENT MONTHLY INSTALLMENT
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1 $430,500.00 $35,875.00
The Annual Rent (and, consequently, the Monthly Installments thereof) for
each of Lease Year's two (2) through ten (10), inclusive, shall be increased by
multiplying the Annual Rent for the immediately preceding Lease Year by 1.03 or
by applying the Annual Rent CPI adjustment as follows to the immediately
preceding Lease Year, whichever results in the greater Annual Rent from Lease
Year to Lease Year:
Annually, the rent shall be adjusted (if such adjustment results in rent
greater than the immediately preceding Lease Year's rent multiplied by 1.03) in
accordance with the Consumer Price Indexes for all Urban Consumers, U.S. City
Average, All Items (unadjusted) (1982 - 1984 = 100) using the table entitled,
"All Urban Consumers", published by the U.S. Department of Labor, Bureau of
Labor Statistics, and first so published in 1988, and commonly referred to as
the Consumer Price Index (CPI). The first calendar month of the first Lease Year
of the original term shall be deemed the "Base Month" for the purposes hereof.
The monthly rent (and, consequently, the Annual Rent) for each Lease Year
of this Lease subsequent to the first Lease Year of this Lease shall be adjusted
and the same shall be computed by multiplying the rent for the "Base Month" by a
fraction, the numerator of which is the said CPI for the last month of the
preceding year of this Lease and the denominator of which is the said CPI for
the "Base Month". If the publication of said CPI is discontinued, then the
parties shall, in good faith, agree on a suitable substitute.
The adjustment resulting in the greater rent annually shall be the
adjustment which applies, so that the adjustment may alternate from Lease Year
to Lease Year depending on which yields the greater rent to Landlord for any
given Lease Year.
The Annual Rent shall be paid in monthly installments in lawful money of
the United States in advance on the first day of each month during the term (and
if necessary, prorated for any fractions of a month). Rent and additional rent
shall be payable without demand, prior notice, set-off, deduction or abatement
whatsoever.
SECTION 2.02 PAYMENT OF RENT: All rent and additional rent shall be
payable, together with any applicable sales or similar use or excise tax
thereon, to the Landlord, at 000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx,
00000, or to such other address as Landlord may hereafter designate by written
notice to Tenant.
SECTION 2.03 LEASE YEAR DEFINED: "Lease Year" as used herein shall mean a
twelve month period commencing on the Commencement Date, plus the initial
partial month, if any, and each twelve month period thereafter, the first Lease
Year commencing on the Commencement Date and each successive Lease Year
commencing on the anniversary of the expiration of the first Lease Year.
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SECTION 2.04 SECURITY: Tenant, simultaneously with the Commencement Date,
has deposited with Landlord the sum of $35,000.00, the receipt of which is
hereby acknowledged (checks subject to collection), which sum shall be retained
by Landlord as security for the payment of rent by Tenant and for Tenant's
faithful performance of its obligations under this Lease. Landlord, at
Landlord's option, may at any time apply said sum or any part thereof toward the
payment of the rent and any other sum payable by Tenant under this Lease, and/or
toward the performance of each and every of Tenant's covenants under this Lease,
but such covenants and Tenant's liability under this Lease shall thereby be
discharged only pro tanto and Tenant shall remain I liable for any amounts that
such sum shall be insufficient to pay. Landlord may exhaust any or all rights
and remedies against Tenant before resorting to said sum, but nothing herein
contained shall require or be deemed to require Landlord to do so. In the event
this deposit shall not be utilized for any of such purposes, then such deposit
shall be returned by Landlord to Tenant within fifteen (15) days after the
expiration of the term of this Lease or any extension hereof, less an amount, if
any, determined by Landlord to be reasonably necessary for the fulfillment of
Tenant's obligations that survive the term of this Lease, which amount shall be
immediately returned to Tenant upon fulfillment of such obligations. Promptly,
upon demand by Landlord, Tenant shall deposit with Landlord such additional sum
as may be necessary to replace any amounts expended therefrom by Landlord
pursuant to the provisions hereof, so that there shall always be a security
deposit in the sum first set forth above. Landlord may commingle the security
deposit with other funds and shall not be required to pay Tenant any interest on
said security deposit. The security may be in the form of an irrevocable,
unconditional letter of credit pursuant to Section 21.19 of this Lease.
ARTICLE III
EXPENSES PAYABLE BY TENANT
SECTION 3.01 NET INTENT: It is the express understanding and agreement of
Landlord and Tenant that the rent due and payable hereunder shall be absolutely
net to Landlord, so that this Lease shall yield to Landlord the net rent
specified in Section 2.01 above, and that all costs, expenses and obligations of
every kind and nature whatsoever relating to the Premises shall be paid by
Tenant (including, but not limited to, real estate taxes assessed against the
Premises, water and sewer use fees, insurance premiums and utility expenses, and
the replacement of capital items), without cost or obligation of any type to
Landlord whatsoever, and Tenant hereby agrees to indemnify, defend, and save
Landlord harmless from and against the same.
SECTION 3.02 TENANT TO PAY IMPOSITIONS: Tenant covenants and agrees to
pay, before any fine, penalty, or cost may be added thereto for the non-payment
thereof: all real estate taxes, assessments (whether general or special), water
and sewer rates and charges, development, impact and concurrency fees, hook-up
and tap-in fees (if any), and all other charges relating to the Premises and all
other charges, general and special, ordinary and extraordinary, unforeseen as
well as foreseen, of any kind and nature whatsoever, which are assessed, levied,
confirmed, imposed, charged, or become a lien upon the Premises during the term
of this Lease (the "Impositions"); provided, however, that if, by law, any such
Impositions may at the option of the payer be paid in installments, Tenant may
exercise the option to pay the same in installments and may pay only such
installments as may become due (or relating to any period) during the term of
this Lease as the same respectively become due and before they become
delinquent; and provided that any Impositions which do not result from Tenant's
use of the Premises, are not otherwise caused by Tenant and relate to a fiscal
period of the taxing authority, a part of which period is included within the
term of this Lease and a part of which is included in a period of time prior to
or after the termination of this Lease, shall be allocated and prorated between
Tenant and Landlord as of the commencement and expiration of the term of this
Lease and shall be paid to Landlord by Tenant within five (5) days after request
therefor. Tenant shall provide to Landlord official receipts or other evidence
satisfactory to Landlord evidencing the payment of all Impositions for which
Tenant is liable pursuant to this Lease.
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SECTION 3.03 TENANT TO PAY ALL UTILITIES. OPERATING COSTS. Without
limiting the generality of the provisions of Section 3.01, Tenant shall pay: all
utility costs as provided in Article V below; all operating costs incurred in
the operation, management, repair, cleaning, and maintenance except for those
certain maintenance expenses that Landlord will pay, as described in Section
6.03 below (collectively, "the Operation") of the Premises, including, without
limitation, all expenses which are incurred in the Operation of all building
systems including, without limitation, the plumbing, electrical, heating,
ventilating, and air-conditioning equipment for the building, wages of all
personnel employed in connection with the Operation of the Premises, taxes on
such wages, amounts paid to independent contractors for services, materials and
supplies used in connection with the Operation of the Premises, fuel expense,
and the costs of landscaping; all capital expenditures of whatever nature made
in connection with the Operation of the Premises; all real estate taxes on the
Premises; and premiums for fire, casualty, liability, and such other insurance
as is described in Article IV, as well as such other insurance as may from time
to time be maintained with respect to the Premises.
SECTION 3.04 CONTESTS:
A. Upon prior written notification and written consent of the Landlord,
Tenant shall have the right to contest the amount or validity, in whole or in
part, of any Imposition imposed by governmental authority by appropriate
proceedings diligently conducted in good faith and according to applicable laws
or regulations, but only after payment of such Imposition unless such payment
would operate as a bar to such contest or interfere materially with the
prosecution thereof, in which event Tenant may postpone or defer payment of such
Imposition or portion thereof in accordance with applicable laws and if:
(i) neither the Premises nor any part thereof would by
reason of such postponement or deferment be in danger of
being forfeited or lost, and
(ii) Tenant shall have deposited with Landlord or the holder
of any mortgage the amount so contested and unpaid,
together with all interest and penalties in connection
therewith and all charges that may or might be assessed
against or become a charge on the Premises or any part
thereof in such proceedings.
Upon the termination of any such proceedings, Tenant shall pay the amount of
such Imposition or part thereof as finally determined in such proceedings, the
payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees, interest, penalties or other
liabilities in connection therewith, and upon such payment, Landlord shall,
provided an Event of Default as defined in this Lease shall not have occurred,
return, without interest, any amount deposited with it with respect to such
Imposition as aforesaid. Provided an Event of Default shall not have occurred,
such payment, at Tenant's request, shall be made by Landlord, out of the amount
deposited with it with respect to such Imposition as aforesaid, to the extent
that such amount is sufficient therefor, and the balance due, if any, shall be
paid by Tenant. If, at any time during the continuance of such proceedings,
Landlord shall deem the amount deposited as aforesaid to be insufficient, Tenant
shall, upon demand, make an additional deposit, as aforesaid, of such additional
sum as Landlord reasonably may request, and failure of Tenant to do so shall
constitute an Event of Default hereunder, and the amount theretofore deposited
may be applied by Landlord to the payment, removal and discharge of such
Imposition, and the interest and penalties in connection therewith and any
costs, fees or other liability accruing in any such proceedings, and the
balance, if any, shall be returned to Tenant.
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B. Landlord shall similarly have an absolute right at Landlord's expense
to seek a reduction in the valuation of the Premises assessed for tax purposes
if Tenant has elected not to contest the amount or validity of the Imposition or
the Landlord may elect to jointly participate with Tenant in any proceedings
commenced by Tenant. Landlord shall have the right to prosecute any action or
proceeding commenced by Tenant for a reduction in such assessed valuation or
valuations which shall in whole or in part relate and pertain to any period of
time subsequent to the expiration or termination of this Lease. To the extent to
which any refund payable as a result of any proceeding which Landlord or Tenant
may institute, or payable by reason of compromise or settlement of any
proceeding, may be based upon a payment made by (a) persons including the
Landlord, the Landlord shall collect the same and reimburse itself forthwith for
any expense incurred by Landlord in connection herewith including reasonable
attorneys' fees and disbursements, and the balance of any refund shall be
prorated among the persons causing such payment to be made; or (b) anyone other
than Landlord and shall not relate to a period as to which apportionment thereof
has been made with Landlord, Tenant shall be authorized to collect the same,
subject, however, to Tenant's obligation to reimburse Landlord forthwith for any
expense incurred by Landlord in connection therewith, including reasonable
attorneys' fees and disbursements incurred regarding the proceeding and any
appeal thereof. If Landlord elects not to contest, Landlord shall not be
subjected to any liability for the payment of any costs or expenses in
connection with any such proceedings and Tenant hereby indemnifies and saves
Landlord harmless from any such costs and expenses.
C. Landlord shall not be required to join in any proceedings referred to
in Subsection (A) of this Section 3.04 unless the provisions of any law, rule or
regulation at the time in effect shall require that such proceedings be brought
by and/or in the name of the Landlord or any owner of the Premises, in which
event Landlord shall join in such proceedings or permit the same to be brought
in its name and stead. Upon the reasonable request of Tenant, Landlord shall
sign such application and execute such instruments and give such assistance in
connection with such applications or proceedings as shall be reasonably required
by Tenant and which are contemplated under this Section 3.04. Landlord shall not
be subjected to any liability for the payment of any costs or expenses in
connection with any such proceedings, and Tenant hereby indemnifies and saves
Landlord harmless from any such costs and expenses. Tenant shall be entitled to
any refund of any Imposition and penalties or interest thereon received by
Landlord which have been paid by Tenant, or which have been paid by Landlord but
previously reimbursed in full by Tenant.
SECTION 3.05 INCOME TAX EXCLUSION: Nothing in this Lease contained shall
require Tenant to pay any franchise, corporate, estate, inheritance, succession,
capital levy, stamp tax or transfer tax of Landlord, or any income, excess
profits or revenue tax or other similar tax, assessment, charge or levy upon the
rent payable by Tenant under this Lease, nor shall any tax, assessment, charge
or levy of the foregoing character be deemed to be included within the
Impositions defined in Section 3.02 hereof; provided, however, that if at any
time during the term of this Lease under the laws of the State of Florida or any
political subdivision thereof a tax or excise on, or measured by, rents is
levied or assessed against Landlord or the rent, as a substitution in whole or
in part for taxes assessed or imposed by said state or any political subdivision
thereof on land and buildings or on land or buildings, the same shall be deemed
to be included within the Impositions defined in Section 3.02 hereof, and Tenant
covenants to pay and discharge such tax or excise on rents in accordance with
the provisions of Section 3.02 hereof in respect of the payment of Impositions.
Notwithstanding anything contained herein to the contrary, sales tax or similar
use or excise tax is the sole obligation of Tenant.
SECTION 3.06 ADDITIONAL RENT: All costs and expenses which Tenant assumes
or agrees to pay pursuant to this Lease shall be treated as additional rent and,
in the event of nonpayment, Landlord shall have all the rights and remedies
herein provided for in the case of nonpayment of rent. If Tenant shall default
in making any payment required to be made by Tenant or shall default in
performing any term, covenant or condition of this Lease on the part of Tenant
to be performed, which shall involve the expenditure of money by Tenant,
Landlord at Landlord's option may, but shall not be obligated to, make such
payment, or, on behalf of Tenant, expend such sum as may be necessary to perform
and fulfill such term, covenant or condition, and any and all sums so expended
by Landlord, with interest thereon at the highest rate allowed by law from the
date of such expenditure, shall be additional rent, and shall be repaid by
Tenant to Landlord, on demand. No such payment or expenditure by Landlord shall
be deemed a waiver of Tenant's default nor shall it affect any other remedy of
Landlord by reason of such default.
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ARTICLE IV
INSURANCE
SECTION 4.01 PROPERTY INSURANCE: Tenant, at its sole cost and expense,
shall keep the Premises and all trade fixtures, machinery, equipment and
personal property located thereon insured for the mutual benefit of Landlord and
Tenant during the term of this Lease against loss or damage by fire and other
risks now or hereafter embraced by a broad form of all risk extended coverage
insurance for fire, hazard, theft, vandalism, malicious mischief and sprinkler
leakage, and such other insurable risks as Landlord may specify from time to
time for no less than an amount equal to their replacement cost, without
deduction for depreciation, which replacement cost shall be determined, at
Tenant's sole cost, at annual intervals by one or more of the insurers or by an
architect, contractor, or appraiser selected by Tenant and approved by Landlord,
in Landlord's sole discretion.
SECTION 4.02 LIABILITY INSURANCE: Tenant, at its sole cost and expense,
but for the mutual benefit of Landlord and Tenant, shall maintain:
(i) Comprehensive personal injury and property damage
liability insurance against claims for personal injury,
death or property damage occurring in, on or about the
Premises or other areas which by law are the
responsibility of the landowner. Such insurance shall
afford minimum protection during the term of this Lease
of not less than Five Million and No/100 Dollars
($5,000,000.00) combined limit (including the Tenant's
excess liability coverage) in respect of personal
injury, death, and property damage; provided, however,
that such amount and type of coverage shall be subject
to Landlord's review every two years for the term of the
Lease and the Extended Term (if any). In the event
Landlord, in its sole discretion, deems the coverage
required under this Section 4.02(i) insufficient after
any such two-year review, Tenant shall increase the
amount or type of coverage required hereby by Landlord;
(ii) Appropriate workmen's compensation insurance, flood
insurance (if the Premises are determined to be within a
flood hazard area) and such other insurance as may be
required by law;
(iii) Appropriate employer's liability insurance in an amount
not less than One Million and No/100 Dollars
($1,000,000.00) with an umbrella clause; provided,
however, that the amount of such coverage shall be
subject to Landlord's review every two years for the
term of this lease and the renewal term (if any). In the
event Landlord, in its sole discretion, deems the
coverage required under this Section 4.02(iii)
insufficient after any such two-year review, Tenant
shall increase the amount or type of coverage required
hereby by Landlord;
(iv) During the entire period of making any improvement or
alteration, owner's contingent or protective liability
insurance covering any claim not covered by or under the
terms of general public liability insurance carried by
Tenant pursuant to this Lease;
(v) Builder's risk insurance with extended coverage for and
during the term of any construction on the Premises; and
(vi) Business interruption insurance in an amount reasonably
determined by Landlord from time to time.
SECTION 4.03 BLANKET POLICIES: Tenant may obtain the insurance required by
this Article IV as part of a total package or blanket policy insuring properties
other than the Premises, provided that such insurance gives Landlord no less
protection than that which would be given by separate policies. The above
insurance requirements shall not preclude Tenant from having reasonable
deductibles in insurance coverage provided Tenant shall indemnify Landlord
against any loss resulting from such deductibles. A separate certificate shall
be available showing acceptable coverage for the subject Premises containing the
issuer's covenant not to cancel the coverage as to the Premises, reduce the
total amount thereof, or increase the deductible sum without 30 days' prior
written notice to Landlord.
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SECTION 4.04 GENERAL INSURANCE PROVISIONS:
A. All insurance shall be effected under valid and enforceable policies in
reasonable form and substance, and issued by insurers licensed to do business in
the State of Florida whose capital assets are sufficient to write the insurance
under Florida law without re-insurance and who have a Best's rating of A or
better. Upon the execution of this Lease, and thereafter not less than thirty
(30) days prior to the expiration dates of the expiring policies theretofore
furnished pursuant to this Article IV, certificates of all policies (or the
original or duplicate original policies evidencing such insurance, bearing
evidence of the payment of premiums or accompanied by other evidence of
insurance and payment of premiums satisfactory to Landlord) shall be delivered
by Tenant to Landlord. All such policies shall name Landlord, Landlord's
mortgagee(s), and Tenant as the insureds, as their respective interests may
appear. Each such policy shall contain an agreement by the insurer that such
policy shall not be canceled or modified without at least thirty (30) days'
prior written notice to Landlord, and any other person to whom a loss thereunder
may be payable. Each such policy shall contain an agreement that the hold
harmless and indemnification language of this Lease is insured as a contractual
obligation. The monetary limits and types of coverage stated herein shall not be
construed as a limit of Tenant's liability.
B. Rent shall not xxxxx hereunder by reason of any damage to or
destruction of the Premises, and Tenant shall continue to perform and fulfill
all of Tenant's obligations, covenants and agreements hereunder notwithstanding
any such damage or destruction. Any rent insurance proceeds received by Landlord
by reason of such damage or destruction shall be applied by Landlord to the
payment of rent, but this shall not relieve Tenant of its obligation to pay rent
punctually in the event rent insurance proceeds held by Landlord are
insufficient to pay the same, or if for any reason such rent insurance proceeds
are not actually applied by Landlord to the payment of such amounts but are
rather applied to other amounts due and owing by Tenant to Landlord. If and when
Tenant shall complete all demolitions, restoration, repair, replacement and
rebuilding which Tenant is required to carry out hereunder, and if Tenant shall
not at such time be in default under this Lease, then any balance of rent
insurance proceeds then held by Landlord shall be paid over to Tenant.
C. If at any time or times Tenant shall neglect or fail to provide and
keep in force policies of insurance as required under this Lease, or shall fail
or refuse to deliver to and leave with Landlord any of such policies of
insurance, as required by the provisions of this Lease, Landlord may effect such
insurance as the agent of Tenant by taking out a policy or policies by a company
or companies satisfactory to Landlord, running for a period not exceeding three
years under any one policy; and the amount of the premium or premiums paid for
such insurance by Landlord shall be paid by Tenant to Landlord as additional
rent upon demand. Tenant shall be liable for any uninsured loss, and Landlord
shall not be limited in the proof of any damages which Landlord may claim
against Tenant arising out of or by reason of Tenant's failure to provide and
keep in force such policies as aforesaid to the amount of the insurance premium
or premiums not paid or incurred by Tenant which would have been payable upon
such insurance, but also be entitled to recover as damages for such breach, the
uninsured amount of any loss, liability, damage, claims, costs and expenses of
suit, judgments and interest, suffered or incurred by Landlord.
D. From and after the occurrence of any default under this Lease by
Tenant, or the occurrence of any other event which would give Landlord the right
to terminate this Lease, all right, title and interest of Tenant in any
insurance policy or policies provided under the terms of this Lease, including
any premium for and dividends upon such policy or policies, are hereby assigned
by Tenant to Landlord.
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E. Anything in the Lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release each other of and from any and all rights of
recovery, claims, or causes of action, whether by subrogation or otherwise,
against each other, their agents, officers and employees, for any loss or damage
that may occur to the Premises or to any furniture, equipment, machinery, goods
or supplies (regardless of cause or origin, including negligence of Landlord or
Tenant and their agents, officers and employees), which loss or damage could be
insured or which is not covered by any policy of insurance carried by the other
party. Each party to this Lease agrees immediately to give to each insurance
company, written notice of the terms of the mutual waivers of subrogation
contained in this paragraph, and to have the insurance policies properly
endorsed, if necessary, to prevent the invalidation of the insurance coverage by
reason thereof.
ARTICLE V
UTILITIES
SECTION 5.01 UTILITIES: Tenant shall pay for all water, gas, electricity,
telephone, sewer, heat, steam, fuel, and all other services and utilities of
every kind and nature supplied to the Premises from and after delivery of the
Premises to Tenant pursuant to this Lease. Tenant shall be solely responsible
for the connection, hook-up, and tap-ins to utility lines, and arrangements for
utility service, including without limitation the payment of all impact fees,
deposits, fees and all other charges and costs incurred in connection therewith.
ARTICLE VI
REPAIRS, REPLACEMENT, MAINTENANCE AND ALTERATION
SECTION 6.01 TENANT'S OBLIGATION TO MAINTAIN AND REPAIR: Tenant shall not
cause or permit any waste upon the Premises. Tenant shall, at all times during
the term hereof, and at Tenant's sole cost and expense, keep, maintain and
repair in first class order and condition the Premises and every part thereof,
as required by law, by the terms of insurance policies required pursuant to this
Lease, and/or by Landlord, except as expressly set forth in Section 6.03 below,
and the Tenant shall surrender the Premises at the expiration or earlier
termination of this Lease in such condition. In complying with this Section
6.01, Tenant shall be required, among other things to make all repairs and
replacements that may be necessary to cure any defects whether foreseen or
unforeseen, latent or otherwise, in the roof, walls, floor slab, structural or
non-structural portions of the Premises, or such other defects as to which any
public body having jurisdiction requests such repair or replacement, excluding
those structural matters expressly set forth in section 6.03 below. All repairs
made by Tenant shall be made using materials and workmanship of equal or better
quality than the materials and workmanship used in the construction of such
item.
SECTION 6.02 ALTERATIONS: Tenant shall have the right, from time to time
during the term of this Lease or any extension thereof, at Tenant's sole cost
and expense, to make additions, alterations, and changes (hereinafter singularly
referred to as an "Alteration" and collectively as "Alterations") in or to the
improvements then comprising a part of the Premises, provided there shall not
then exist a default under this Lease, and subject, however, in all cases to the
following:
(1) No Alteration shall be made without Landlord's
approval (which approval Landlord may withhold in its sole
discretion) if such Alteration would (a) impair the structural
soundness of the improvements, (b) materially change the total
volume or height of the improvements, (c) modify in any material
respect the basic character and function of the improvements, (d)
modify the external appearance of the improvements or (e) except
as provided in Section 6.04, cost in excess of $25,000.00
individually or in the aggregate in any 12 month period;
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(2) No Alteration shall be made until all plans and
specifications for any such Alteration have been approved by
Landlord. Landlord shall have thirty (30) days from its receipt of
all such plans and specifications to review the same and to send
its written comments regarding the same to Tenant. Within ten (10)
days after receipt of Landlord's notice of changes (if any),
Tenant shall cause all such changes to be made, which changes
shall be circled and dated, and Tenant shall resubmit the revised
plans and specifications for Landlord's review. Within thirty (30)
days after receipt of the revised plans and specifications,
Landlord shall review and approve or state what changes Landlord
requires to be made. The revisions and resubmission shall continue
until Landlord, in its reasonable discretion, shall have approved
Tenant's plans and specifications. Within ten (10) days after
Landlord has approved of Tenant's preliminary plans and
specifications, Tenant shall deliver to Landlord Tenant's final
plans and specifications for Landlord's review and approval.
Landlord's approval of the final plans and specifications shall be
evidenced by Landlord and Tenant initialing two (2) complete sets
of final plans and specifications (the "Plans"), whereupon one
fully executed set shall be left with the Landlord. Within five
(5) days after demand, Tenant shall pay to Landlord any fees or
expenses incurred by Landlord in connection with Landlord's
submitting such plans and specifications, as it so chooses, to an
architect or engineer selected by Landlord for review or
examination of the plans and specifications, intermittent
inspection of any construction, and/or performance of any
construction;
(3) The approval by Landlord of the plans and
specifications, if given, shall not (i) imply Landlord's approval
of the structural or engineering designs as to quality or fitness
of any material or device used; (ii) imply that the plans and
specifications are in accordance with the law (it being agreed
that such compliance is solely Tenant's responsibility); (iii)
relieve Tenant of the responsibility to construct structurally
sound improvements which are free of defects; (iv) impose any
liability on Landlord to Tenant or any third party; or (v) serve
as a waiver or forfeiture of any right of Landlord;
(4) Upon Landlord's approval of any plans and
specifications and before commencement of construction of any
Alterations, Tenant shall, at Tenant's sole cost and expense:
a. Obtain the necessary permits, consents,
authorizations and licenses from all federal,
state and/or municipal authorities having
jurisdiction over such work. Landlord shall
reasonably cooperate, at no expense to Landlord,
with Tenant including, without limitation,
execution of applications for building permits
and consents thereto;
b. Furnish to Landlord a certificate or certificates
of Workmen's Compensation Insurance covering all
persons who will perform the construction or any
contractor, subcontractor or other person; and
c. Furnish to Landlord original policies of
insurance as set forth below (or certificates
thereof) covering Landlord, Landlord's agent and
such other parties as Landlord shall designate,
as additional insureds, in a company approved by
Landlord, which policies shall be maintained at
all times during the progress of the construction
and until completion thereof, and shall provide
that no termination, cancellation or modification
of such policy shall be effective unless thirty
(30) days prior written notice has been given to
Landlord:
(i) Public Liability Insurance with a
combined single limit of not less than
Five Million and No/100 Dollars
($5,000,000.00) for injuries and damages
to persons and property;
(ii) Builder's Risk Insurance with extended
coverage.
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(5) The general contractor, all sub-contractors, all of
the specifications for any Alterations, and all materials to be
used therein shall be approved by Landlord, in its reasonable
discretion, prior to commencement of construction. Tenant shall
construct any Alterations with diligence and continuity and in a
good and workmanlike manner, and Tenant shall (i) comply with all
laws, ordinances and governmental regulations including all
regulations by any board of fire underwriters in its construction
of said Alterations, (ii) provide Landlord with such security or
assurances as Landlord may reasonably require to guarantee that,
once commenced, sufficient funds will be available to cause
completion of all proposed Alterations, (iii) provide Landlord
with preliminary and as-built surveys reasonably acceptable to
Landlord in all respects, and (iv) indemnify and hold harmless
Landlord from and against all loss, cost or damage suffered by
Landlord, including, without limitation, reasonable attorneys' and
paralegals' fees and disbursements, on account of Tenant's
construction of said Alterations, or any injury to person or
property occasioned thereby;
(6) Tenant shall post a bond in an amount reasonably
acceptable to Landlord for the full performance and payment of the
construction of any Alterations. In addition, Tenant agrees to
indemnify and save Landlord harmless from and against any and all
bills for labor performed and equipment, fixtures and materials
furnished to Tenant and applicable sales taxes thereon and from
and against any and all liens, bills or claims therefor or against
the Premises and from and against all losses, damages, costs,
expenses, suits and claims whatsoever in connection with the
construction of any Alterations. Tenant shall fully pay for the
cost of the construction of any Alterations so that the Premises
shall at all times be free of liens for labor and materials
supplied or claimed to have been supplied. Tenant hereby
acknowledges that it has no right to cause, create, or permit the
establishment of a claim of lien against the Premises. A provision
which expressly prohibits Landlord's liability for any liens filed
against the Premises in connection with Tenant's construction of
any Alterations or other improvements on the Premises, as well as
for any labor, materials or other lien incurred by Tenant, as
provided in Section 713.10 of the Florida Statutes, may be
recorded by Landlord. Tenant shall provide Landlord with all
applicable partial releases of lien executed by contractors,
subcontractors and materialmen contemporaneously with each payment
or draw request under Tenant's construction contracts. Tenant
shall obtain, and shall provide Landlord with, the general
contractor's final contractors affidavit, release, and indemnity
contemporaneously with final payments to be made to the general
contractor and all subcontractors and materialmen; and
(7) All alterations, improvements and additions made by
Tenant pursuant to the plans and specifications shall immediately
become the property of the Landlord and shall remain upon the
Premises at the expiration or earlier termination of this Lease.
SECTION 6.03 TENANT'S FURTHER OBLIGATIONS TO MAINTAIN: In addition to all
of the foregoing, Tenant shall be responsible for the repair and maintenance of
the following structural components of the Premises: (a) the foundation footings
supporting the steel columns and girders; (b) the steel columns and girders; and
(c) the trusses upon which the roof rests. Landlord shall have no obligations
with respect to the maintenance and repair of the Premises.
SECTION 6.04 TENANT'S OBLIGATIONS TO CONSTRUCT: Subject to all of the
applicable terms, conditions and provisions of this Lease, including this
Article VI of this Lease, Tenant covenants and agrees with Landlord that during
the first Lease Year it shall make renovations and improvements to the Premises
in an amount costing Tenant no less than $500,000.00, and that it shall provide
proof thereof to Landlord in the form of paid invoices, lien releases from
contractors, suppliers and materialmen and such other proof as Landlord may
reasonably request. Tenant's failure to make such renovations and improvements
and provide proof thereof to Landlord within the permitted time shall be an
Event of Default under this Lease.
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ARTICLE VII
USE AND ACCEPTANCE OF PREMISES; WAIVER
SECTION 7.01 USE: The Premises shall be used for the manufacture of sports
fishing and other yachts and boats purposes and other purposes directly
incidental thereto only and for no other purpose. Tenant shall not use or keep
or allow the Premises or any portion thereof for (a) any unlawful or immoral
purpose, business, or occupation, (b) in violation of any permit, license,
consent, authorization or certificate of occupancy; (c) permit any article to be
brought thereon which may be dangerous, hazardous, a pollutant, or a nuisance
(whether public or private) or which may void or increase the rate of any
insurance in force. The Premises will be operated in conformance with all
applicable city, county, state and federal ordinances, rules, laws, and
regulations and requirements of insurance underwriters and Tenant shall from
time to time conform the Premises to every applicable city, county, state, and
federal or ordinances, rules, laws and regulations and requirements of insurance
underwriters, at Tenant's sole cost.
SECTION 7.02 INSPECTION: Tenant represents that it has thoroughly
inspected the Premises and is familiar with the condition of every part thereof
including without limitation the subsurface, topography, soil, stabilization and
environmental aspects of the Premises and accepts the same in its present
condition, in an absolutely "AS IS" condition. Landlord shall not be required to
make any alterations, repairs or improvements of any kind whatsoever to prepare
the Premises for Tenant's occupancy.
LANDLORD MAKES NO REPRESENTATIONS WHATSOEVER REGARDING THE PREMISES OR
TENANT'S USE OR OCCUPANCY THEREOF, AND TENANT HEREBY WAIVES, RELEASES, RENOUNCES
AND LANDLORD DISCLAIMS ANY GUARANTEES, AND ANY IMPLIED OR EXPRESSED WARRANTIES
OF MERCHANTABILITY, TENANTABILITY, HABITABILITY FITNESS OR FITNESS FOR A
PARTICULAR PURPOSE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR ANY DIRECT
INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM). LANDLORD HAS NOT MADE,
NOR HAS TENANT RELIED UPON REPRESENTATIONS AS TO THE CONDITION, SAFETY, OR
SECURITY OF THE PREMISES.
SECTION 7.03 WAIVER BY TENANT: Without in any way limiting the generality
of the preceding subsection 7.02, Tenant specifically acknowledges and agrees
that it hereby waives, releases and discharges any claim it has, might have had
or may have against Landlord with respect to the condition of the Premises,
either patent or latent, its ability or inability to maintain certificates of
occupancy or other licenses or governmental approvals for the use or operation
or the Premises, and/or certificates of compliance for the Premises, the actual
or potential income or profits to be derived from the Premises, and the
Impositions and all other expenses now or hereafter payable thereon, and any
other state of facts which exists with respect to the Premises.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
SECTION 8.01 ASSIGNMENT AND SUBLETTING: Tenant may not sublet the Premises
or assign this Lease or any interest herein without Landlord's prior written
consent, which shall not be unreasonably withheld or delayed. Any attempted
assignment or subletting without such prior written consent shall be void, and
shall constitute an Event of Default under this Lease. No consent by Landlord to
any assignment or subletting shall be deemed or construed to relieve Tenant from
(i) primary liability under this Lease, or (ii) obtaining the express written
consent of Landlord to any further assignment or subletting. All references in
this Lease to a sublease shall be deemed to include all arrangements for
occupancy or other use by any person or entity of all or any part of the
Premises, and all references in this Lease to a subtenant shall include any
occupant or other user of all or any part of the Premises. If Tenant is a
corporation, partnership or other entity, any transfer of a majority or
controlling interest in such corporation, partnership or other entity shall be
deemed to be an assignment of this Lease. In the event of any proposed
assignment, subletting or other transfer for which Landlord's consent is
required hereunder, Tenant shall promptly reimburse Landlord for all costs and
expenses incurred by Landlord in connection with reviewing any proposed
transfer, including, but not limited to, attorneys' fees and costs.
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Notwithstanding the foregoing, in the event of any proposed assignment,
subletting or other transfer for which Landlord's consent is required hereunder,
Landlord shall have the option, in lieu of granting or refusing such consent, to
terminate this Lease by notice given to Tenant within sixty (60) days after
receiving the Tenant's notice requesting Landlord's consent. If Landlord shall
elect such option, this Lease shall terminate as of the date specified by
Landlord in its notice to Tenant (which date shall not be later than ninety (90)
days from Tenant's notice), appropriate adjustment of prepaid charges shall be
made and neither party shall have any further rights hereunder except the right
to enforce obligations theretofore accrued and remaining unperformed.
SECTION 8.02 ATTORNMENT: In the event of a termination of this Lease, any
subtenant of the Premises or assignee of the Lease shall attorn to the owner of
the reversion, unless the owner of the reversion shall, at the owner's option,
elect to dispossess such subtenant or assignee or otherwise terminate its rights
hereunder. Each subtenant or assignee who hereafter takes an interest in the
Premises shall be deemed to have agreed to the provisions of this Section 8.02.
Tenant covenants that each sublease of the Premises or assignment of this Lease
hereafter executed shall contain a clause expressly providing that the subtenant
or assignee thereunder shall attorn to the owner of the reversion, upon request,
in the event of a termination of this Lease, but the absence of such a clause
from any sublease or assignment shall not relieve the subtenant or assignee from
the provisions of this section 8.02.
SECTION 8.03 ACCEPTANCE OF RENT: No acceptance by Landlord of any
performance, rent or additional rent herein provided to be done or paid by
Tenant from any person, firm or corporation other than Tenant, shall discharge
Tenant or any other person, firm or corporation liable for performance of
Tenant's obligations hereunder (except to the extent of the performance and
payments so accepted by Landlord) from liability to pay all of the rent and
additional rent herein provided to be paid by Tenant or from liability to
perform any of the terms, covenants, conditions and agreements set forth in this
Lease.
SECTION 8.04 ASSIGNMENT BY LANDLORD: Landlord (or its successors or
assigns) may sell or otherwise transfer or convey its title to the Premises and
as part thereof assign this Lease, or any interest herein and Tenant shall
attorn to such assignee and from the effective date of such assignment the
assignor of the Lease shall have no further liability or obligation pursuant to
this Lease.
SECTION 8.05 INTEREST IN SUBLEASES: Tenant hereby assigns to Landlord all
of Tenant's right, title and interest, following any Event of Default by Tenant
hereunder, in and to all subleases and/or to collect from any or all subtenants
all rents and other sums payable by them, and to apply the same to the payment
of rent and all other amounts payable by Tenant hereunder, but no exercise by
Landlord of rights under this Section 8.05 shall be deemed a waiver by Landlord
of any other rights hereunder or shall be deemed an acceptance by Landlord of
such subtenant or an acquiescence by Landlord to the occupancy of any part of
the Premises by such subtenant or a release of Tenant from the performance of
any of the obligations of Tenant hereunder.
SECTION 8.06 EXCESS RENT: Intentionally deleted.
ARTICLE IX
DAMAGE OR DESTRUCTION
SECTION 9.01 TENANT'S OBLIGATION TO RESTORE AND REPAIR: In the event that
the Improvements or any portion thereof, shall be damaged or destroyed by fire,
the elements or other casualty, whether such damage or destruction renders the
Premises unfit for the use contemplated hereby or not, this Lease shall continue
in full force and effect, all rent and additional rent due under this Lease
shall continue to be promptly paid by Tenant; and Tenant, at Tenant's sole cost
and expense, and as expeditiously as possible, shall restore, repair and replace
the Improvements and all portions thereof to a condition at least as good as
existed immediately prior to such damage or destruction.
SECTION 9.02 APPLICATION OF INSURANCE PROCEEDS: The building insurance
proceeds under the policies maintained by Tenant shall be applied toward the
cost of all repairs and restoration Tenant is required to make under this
Article IX.
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ARTICLE X
CONDEMNATION
SECTION 10.01 ENTIRE CONDEMNATION:
A. If at any time during the term of this Lease all or substantially all
of the Premises shall be taken in the exercise of the power of eminent domain by
any sovereign, municipality or other public or private authority, then this
Lease shall terminate on the date of vesting of title in such authority and any
prepaid rent shall be apportioned as of said date. Substantially all of the
Premises shall be deemed to have been taken if, in Landlord's judgment, the
remaining portion of the Premises shall not be of sufficient size to permit the
construction and operation of a building thereon on an economically feasible
basis under the provisions of this Lease.
SECTION 10.02 PARTIAL CONDEMNATION: If less than all or substantially all
of the Premises shall be taken in the exercise of the power of eminent domain by
any sovereign, municipality or other public or private domain by any sovereign,
municipality or other public or private authority, then, at Landlord's option,
this Lease shall (i) be terminated and of no further force and effect or (ii)
continue in force and effect and Tenant shall proceed with reasonable diligence
at its own expense to carry out any necessary repairs and restoration so that
the remaining portion of the Premises shall constitute a complete structural
unit or units which can be operated on an economically feasible basis under the
provisions of this Lease. All of such repair and restoration shall be carried
out by Tenant in strict accordance with the restoration provisions of Article XI
of this Lease. The award or awards for any partial taking shall be paid to
Landlord and shall be either (i) retained by Landlord in the event it elects to
terminate the Lease in accordance with the foregoing or (ii) disbursed for the
repair and restoration of the Premises in accordance with Article XI.
SECTION 10.03 AWARDS: The award or awards for any taking of all or
substantially all of the Premises shall be paid to Landlord, provided that
Tenant shall have the right to pursue its own separate award for the value,
immediately prior to such taking, of loss of equipment, loss of business, loss
of its leasehold interest, and moving expenses, to the extent the foregoing does
not reduce any award to be received by Landlord.
SECTION 10.04 TEMPORARY TAKING: If the temporary use of the whole or any
part of the Premises shall be taken at any time during the term of this Lease in
the exercise of the power of eminent domain by any sovereign, municipality or
other authority, the term of this Lease shall not be reduced or affected in any
way and Tenant shall continue to pay in full the rent and additional rent, and
the entire award for such taking shall be paid to Landlord, to be applied and
disposed of as hereinafter provided. Landlord shall credit against the next rent
payment due from Tenant that portion of said award paid for the use and
occupancy of the Premises. That portion of such award which compensates for
physical damage to the Premises occasioned by such taking shall be held by
Landlord, and used to reimburse Tenant for costs of restoration and repair of
the portion of the Premises so damaged. Tenant shall perform all of such
restoration and repair in accordance with the terms of Article XI.
ARTICLE XI
TENANT'S REPAIR AFTER DAMAGE BY CASUALTY OR CONDEMNATION
SECTION 11.01 PROCEEDS AND AWARDS: Whenever Tenant shall be required to
carry out any work of demolition, restoration, repair, replacement or rebuilding
pursuant to this Lease after fire or other casualty loss or a condemnation,
Landlord or a depository designated by Landlord shall be entitled to receive the
applicable insurance proceeds and condemnation award or awards for reimbursement
to the Tenant for the required work, to be disbursed by Landlord in its
reasonable discretion; provided, however, that Landlord shall be entitled to
apply all or any portion of such proceeds to cure Tenant's defaults hereunder
prior to the commencement of such work and Landlord shall be entitled to any
surplus thereof.
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SECTION 11.02 RECONSTRUCTION: Tenant shall obtain Landlord's prior written
approval (not to be unreasonably withheld) of Tenant's plans and budget, and
shall provide Landlord with true and correct certified copies of all legally
required permits and/or other approvals for construction, and, with evidence,
reasonably satisfactory to Landlord, that Tenant has sufficient funds earmarked
for such work to complete the same (the completion of which is hereby expressly
guaranteed by Tenant). All work shall be carried out in accordance with the
terms of Article VI including, without limitation, the terms thereof which
require the work to be performed in a good and workmanlike manner, in compliance
with all applicable laws and ordinances, and shall be completed lien-free and in
compliance with all title, zoning, building, and other applicable restrictions.
If at any time Tenant shall fail or neglect to supply sufficient workmen or
sufficient materials of proper quality, or fail in any other respect to
prosecute such work of demolition, restoration, repair, replacement or
rebuilding with diligence and promptness, then Landlord may give to Tenant
written notice of such failure or neglect, and if such failure or neglect
continues for ten (10) days after such notice, then, if Landlord so requests in
Landlord's sole discretion, Tenant shall assign all construction contracts for
the reconstruction to Landlord, and Landlord, in addition to all other rights
which Landlord may have, may enter upon the Premises, provide labor and/or
materials, cause the performance of any contract and/or do such other acts and
things as Landlord may deem advisable to prosecute such work, in which event
Landlord shall be entitled to reimbursement of its costs and expenses out of any
insurance proceeds, condemnation award or awards and any other monies held by
Landlord for application to the cost of such work, in accordance with the
restoration provisions hereof. All costs and expenses incurred by Landlord in
carrying out such work for which Landlord is not reimbursed out of insurance
proceeds, condemnation award or awards or other monies held by Landlord, shall
be borne by Tenant and shall be payable by Tenant to Landlord as additional rent
upon demand, which demand may be made by Landlord from time to time as such
costs and expenses are incurred, in addition to any or all damages to which
Landlord shall be entitled hereunder.
ARTICLE XII
TENANT'S BREACH AND LANDLORD'S REMEDIES
SECTION 12.01 DEFAULT: During the term of this Lease, any of the following
shall constitute an "Event of Default":
(i) Tenant shall fail to make the payment of any rent and
additional rent as and when the same becomes due; or
(ii) Tenant shall fail in the performance or observance of any of
the other terms, covenants, conditions or agreements of this Lease for thirty
(30) days after written notice' and demand, or if such default shall be of such
a nature that the same cannot practicably be cured within said thirty (30) day
period, and Tenant shall not within said thirty (30) day period commence with
due diligence and dispatch the curing and performance of such defaulted term,
covenant, condition or agreement, and shall thereafter fail or neglect to
prosecute and complete with due diligence and dispatch the curing and
performance of such defaulted term, covenant, condition or agreement through
completion within sixty (60) days; or
(iii) there shall be filed by or against Tenant or any Guarantor
of this Lease a petition in bankruptcy or insolvency proceedings or for
reorganization or for the appointment of a receiver or trustee of all or
substantially all of Tenant's property, unless such petition be filed against
Tenant and if in good faith, Tenant shall promptly thereafter commence and
diligently prosecute and secure the dismissal of such petition within forty-five
(45) days of its filing; or
(iv) if Tenant or any Guarantor of this Lease makes an assignment
for the benefit of creditors;
(v) if Tenant abandons the Premises for a period of fourteen (14)
days or ceases to continuously conduct business at the Premises in a manner and
during such hours as is similar to other similar businesses; or
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(vi) if, twice during any 12-month period during the term hereof,
Tenant shall commit (or omit) any act which would, with the passage of time
beyond any applicable grace periods, have become a default hereunder
(notwithstanding that Tenant may have cured such act or omission within such
grace period).
SECTION 12.02 REMEDIES:
A. In the event of an occurrence of an Event of Default, Landlord, at
Landlord's option, may elect to:
(i) re-enter (as used in the broadest sense and not restricted to
its technical legal meaning) the Premises, without notice, and remove all
persons and property therefrom, either by summary proceedings or by any suitable
action or proceeding at law, or otherwise, without being liable therefor, and
may have, hold and enjoy the Premises; and/or
(ii) terminate this Lease or terminate Tenant's right of
possession without terminating the Lease and Tenant shall thereupon quit and
peacefully surrender the Premises to Landlord, without any payment therefor by
Landlord, and Landlord may re-enter the Premises as provided in subparagraph (i)
above; and/or
(iii) accelerate the rent that is due for the term of the Lease
and all such rent shall be immediately due and payable; and/or
(iv) pursue any other remedy which may be available to Landlord at
law, in equity or hereunder.
B. In case of any such re-entry, termination and/or dispossession by
summary proceedings or otherwise as provided above:
(i) the rent and additional rent shall become due thereupon and be
paid up to the time of such re-entry, dispossession and/or expiration, together
with such expenses, including attorneys' fees, as Landlord shall incur in
connection with such re-entry, termination and/or dispossession by summary
proceedings or otherwise;
(ii) Landlord may relet the Premises or any part thereof, either
in the name of Landlord or otherwise, for a term or terms which may, at
Landlord's option, be equal to or less than or exceed the period which would
otherwise have constituted the balance of the term of this Lease;
(iii) Tenant or Tenant's legal representative also shall pay to
Landlord such reasonable expenses as Landlord may incur in connection with
reletting, such as, without limitation, legal expenses, attorneys' fees,
brokerage commissions and expenses incurred in altering, repairing and putting
the Premises in good order and condition and in preparing the same for reletting
to a new tenant, which expenses shall be paid by Tenant as they are incurred by
Landlord;
(iv) Tenant or Tenant's legal representatives also shall pay to
Landlord the amount by which the rent reserved in this Lease and/or covenanted
to be paid exceeds the net amount, if any, of the rents collected on account of
the lease(s) of the Premises for each month of the period which would otherwise
have constituted the balance of the term of this Lease (excluding unexercised
extension options), which amounts shall be paid in monthly installments by
Tenant on the rent days specified in this Lease, and any suit brought to collect
said amount for any month or months shall not prejudice in any way the rights of
Landlord to collect the deficiency for any subsequent month by a similar action
or proceeding;
(v) at the option of Landlord exercised at any time, Landlord
forthwith shall be entitled to recover from Tenant, in addition to any other
proper claims, but in lieu of and not in addition to any amount which would
thereafter become payable under the preceding subparagraph (iv), a sum equal to
the amount of the rent reserved in this Lease and/or covenanted to be paid for
the remainder of the term of this Lease (excluding unexercised extension
options). Landlord, at Landlord's option, may (at the sole expense of Tenant)
make such alterations and/or decorations in the Premises as Landlord, in
Landlord's sole judgment, considers advisable and necessary for the purpose of
reletting the Premises; and the making of such alterations and/or decorations
shall not operate or be construed to release Tenant from liability hereunder as
aforesaid;
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(vi) No receipts of monies by Landlord from Tenant after any
re-entry or after a termination of this Lease by Landlord shall reinstate,
continue or extend the term of this Lease or affect any notice theretofore given
to Tenant, or operate as a waiver of the right of Landlord to enforce the
payment of rent then due or thereafter falling due, it being agreed that after
the commencement of suit for possession of the Premises or after final order or
judgment for the possession of the Premises, Landlord may demand, receive and
collect any monies due or thereafter falling due without in any manner affecting
such suit, order or judgment, all such monies collected being deemed payments on
account of the use and occupation of the Premises or, at the election of
Landlord, on account of Tenant's liability hereunder. Landlord shall have,
receive and enjoy as Landlord's sole and absolute property, without right or
duty to account therefor to Tenant, any and all sums collected by Landlord as
rent or otherwise upon reletting the Premises after Landlord shall resume
possession thereof as hereinbefore provided, including, without limitation upon
the generality of the foregoing, any amounts by which the sum or sums so
collected shall exceed the continuing liability of Tenant hereunder.
SECTION 12.03 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS: Whenever and as
often as Tenant shall fail or neglect to comply with and perform any term,
covenant, condition or agreement to be complied with or performed by Tenant
hereunder, then, upon ten (10) days' prior written notice to Tenant (or upon
shorter notice, or with no notice at all, if necessary to meet an emergency
situation or a governmental or municipal time limitation), Landlord, at
Landlord's option, in addition to all other remedies available to Landlord, may
perform, or cause to be performed, such work, labor, services, acts or things,
and take such other steps, including, but not limited to, entry onto the
Premises, as Landlord may deem advisable, to comply with and perform any such
term, covenant, condition or agreement which is in default, in which event
Tenant shall reimburse Landlord upon demand, and from time to time, for all
costs and expenses, including without limitation attorneys' fees throughout all
trial and appellate proceedings, suffered or incurred by Landlord in so
complying with or performing such term, covenant, condition or agreement. Any
sums of money advanced by Landlord hereunder shall bear interest from the date
of such advance at the highest rate permitted under applicable law. The
commencement of any work or the taking of any other steps or performance of any
other act by Landlord pursuant to the immediately preceding sentence shall not
be deemed to obligate Landlord to complete the curing of any term, covenant,
condition or agreement which is in default.
SECTION 12.04 WAIVER OF RIGHTS OF REDEMPTION: If, at any time hereafter,
Landlord shall obtain possession of the Premises under legal proceedings or
pursuant to the terms and conditions of this Lease or pursuant to present or
future law, because of default by Tenant in observing or performing any term,
covenant, condition or agreement of this Lease, all rights to redemption
provided by any law, statute or ordinances now in force or hereafter enacted
shall be and hereby are waived by Tenant.
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ARTICLE XIII
LIENS, ADVERSE POSSESSION
SECTION 13.01 TENANT TO KEEP PREMISES LIEN FREE: Tenant agrees to keep the
Premises at all times free of mechanic's liens and other liens for labor,
services, or material purchased or procured, directly or indirectly, by or for
Tenant. Tenant, however, shall have the right to contest the validity or amount
of any such lien provided that Tenant is proceeding in good faith, and provided
further that Tenant shall post a bond or other security approved by Landlord or
deposit cash in an interest bearing escrow account maintained by Landlord for
the purpose and in an amount sufficient to discharge the lien, and, upon the
final determination of such contest, shall immediately pay and discharge any
judgment rendered, together with all costs, charges, and interest incidental
thereto, and shall cause the lien thereof to be released from the Premises.
Should the Tenant fail within ten (10) days after notice of the filing of any
such lien to discharge or cause the release of such liens or charges or to
contest the same and post bond or other security as above provided, then the
Landlord, at Landlord's option, may bond any such lien or satisfy such lien by
payment thereof; and, in such event, the cost or amount of any such bond or
payment shall be paid to Landlord by Tenant upon demand, together with interest
thereon, at the highest rate allowed by law from the time Landlord's payment is
made until repayment by Tenant. Tenant shall promptly reimburse Landlord for all
costs and expenses, including, but not limited to, attorneys' and paralegals'
fees and costs, incurred by Landlord in connection with (i) Tenant contesting
the validity or amount of any lien, (ii) Landlord holding any security for the
purpose of discharging any lien and (iii) Landlord bonding or satisfying any
lien by payment thereof.
SECTION 13.02 NOTICE OF NON-RESPONSIBILITY: Upon the commencement of any
work or alteration or repair, Landlord shall be permitted to post on and affix
to the Premises and to record in the Public Records of Dade County, Florida,
notice of non-responsibility therefor in furtherance of F.S. section 713.11.
SECTION 13.03 ADVERSE POSSESSION: Tenant is and shall be in exclusive
control and possession of the Premises, and Tenant shall keep the Premises at
all times free of any right, title or interest which may be acquired by adverse
possession or prescription. Tenant agrees to indemnify, defend, and hold
Landlord harmless from and against all losses, damages, and liabilities which
arise out of or in connection with any claim of adverse possession or easement
by prescription which claim relates to any period during the term of this Lease
or any renewals or extensions thereof.
ARTICLE XIV
ESTOPPEL CERTIFICATE
SECTION 14.01 ESTOPPEL CERTIFICATE: Tenant shall, without charge, at any
time and from time to time hereafter, within ten (10) days after written request
of Landlord, certify by a written instrument duly executed and acknowledged to
Landlord or any mortgagee, lender, purchaser or participant, or proposed
mortgagee, purchaser, lender or participant, as to such information and facts as
Landlord may request, including, without limitation, the term, the amount of
rent, security deposit, the then validity and force and effect of this Lease,
any work to be done thereunder by Tenant, the existence or non-existence of any
default on the part of the Landlord hereunder, and the existence or
non-existence of any offsets, counterclaims or defenses thereto on the part of
Tenant. Tenant hereby appoints Landlord the Tenant's attorney-in-fact to execute
any such estoppel letter for and on behalf of Tenant if Tenant has not executed
such estoppel letter within the ten (10) days after Landlord's request therefor.
ARTICLE XV
NO LIABILITY, INDEMNIFICATION
SECTION 15.01 NO LIABILITY: INDEMNIFICATION: Tenant is and shall be in
exclusive control and possession of the Premises, and Landlord shall not in any
event whatsoever be liable for any injury or damage to any property or to any
person happening on or about the Premises, or for any injury or damage to any
property of any tenant, lessee, business invitee, guest, or licensee or because
of fire, flood, windstorm or for any other reason. Tenant hereby indemnifies and
agrees to hold the Landlord, its officers, directors, agents, employees,
affiliates and subsidiaries harmless from and against any and all claims,
liabilities, loss, damages, costs or expenses whatsoever arising from or growing
out of Tenant's use or occupancy of the Premises, including, without limitation,
attorneys' and paralegals' fees and legal costs throughout all trial and
appellate proceedings, and including, without limitation, any and all accidents,
injuries or deaths to any person on the Premises, damage to any property on the
Premises, and failure of the Tenant to comply with any of the provisions of this
Lease. The provisions of this Article XV shall survive the expiration or earlier
termination of this Lease.
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ARTICLE XVI
TERMINATION AND PRORATIONS
SECTION 16.01 TERMINATION: The Tenant covenants and agrees that at the
termination of this Lease, whether by default, lapse of time or otherwise, the
Tenant shall peaceably and quietly surrender possession and vacate the Premises
immediately, and deliver possession thereof to the Landlord, in as good
condition as they now exist, ordinary wear and tear and normal obsolescence
excepted. Upon such termination, any and all of Tenant's interest in and to the
Premises shall vest in the Landlord, and the Tenant shall, upon demand, at
Tenant's expense, execute and deliver a Quit-Claim Deed (or such other
instrument as Landlord may reasonably request) in favor of the Landlord,
quit-claiming and releasing all Tenant's right, title and interest in and to
said Premises. At the expiration or earlier termination of this Lease, Landlord
shall have good marketable title to the Premises subject only to those
exceptions more particularly described in EXHIBIT B attached hereto and made a
part hereof and those that Landlord has otherwise approved in writing (the
"Permitted Exceptions"). In the event that there are any exceptions to title
other than the Permitted Exceptions, Tenant shall, at its sole cost and expense,
use best efforts to cause the same to be removed, and Tenant shall indemnify,
defend, and hold Landlord harmless from and against all losses, damages, and
liabilities which arise out of or in connection with any such exceptions to
title. Tenant hereby grants to Landlord full and free license to enter upon the
Premises without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer, and without relinquishing the Landlord's rights to
rent or any other right given to Landlord hereunder or by operation of law.
SECTION 16.02 HOLDOVER: Tenant specifically agrees that, in the event
Tenant retains possession and does not so quit and surrender the Premises to
Landlord, then Tenant shall pay to Landlord (i) all damages that Landlord may
suffer on account of Tenant's failure to so surrender and quit the Premises, and
Tenant will indemnify and save Landlord harmless from and against any and all
claims made by any succeeding or prospective tenant of the Premises against
Landlord on account of delay of Landlord in delivering possession of the
Premises to said succeeding or prospective tenant to the extent that such delay
is occasioned by the failure of Tenant to so quit and surrender said Premises
and (ii) rent and additional rent as prorated for each month or any applicable
portion of a month of such holding over at twice the amount payable for the
month immediately preceding the termination of this Lease, during the time the
Tenant thus remains in possession. The provisions of this Paragraph do not waive
any of the Landlord's rights of re-entry or any other right under the terms of
this Lease, at law, or in equity. If Tenant shall fail to surrender the Premises
as herein provided, no new tenancy shall be created and Tenant shall be guilty
of unlawful detainer. No surrender of this Lease or of the Premises shall be
binding on the Landlord unless acknowledged by Landlord in writing.
SECTION 16.03 PERSONAL PROPERTY: Goods and effects not removed by Tenant
at the termination of this Lease shall be deemed abandoned and Landlord may
dispose, discard, or store the same as Landlord in its sole discretion deems
expedient. Tenant shall reimburse Landlord for all costs of such disposal or
storage upon written demand from Landlord therefor.
SECTION 16.04 PRORATION: Provided that this Lease is not terminated on
account of Tenant's default, all rent and additional rent shall be prorated on
the day of termination of this Lease; and any prepaid amounts due and owing
under said proration to the Tenant shall be repaid by Landlord, and any amounts
unpaid, but prorated to be an obligation of Tenant hereunder, shall be paid by
the Tenant at the termination of this Lease to the Landlord. The provisions of
this Section 16.04 shall survive the expiration or sooner termination of this
Lease.
ARTICLE XVII
NO PARTNERSHIP
SECTION 17.01 NO PARTNERSHIP: Landlord shall in no way be deemed under
this Lease to be a partner, associate, agent, or independent contractor of
Tenant in the conduct of Tenant's business, nor shall Landlord be liable for any
debts incurred by Tenant. Nothing contained in this Lease shall be construed to
confer upon Landlord any interest in Tenant's business. The relationship of the
parties is and shall at all times remain that of Landlord and Tenant.
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ARTICLE XVIII
SUBORDINATION AND ATTORNMENT
SECTION 18.01 SUBORDINATION: Landlord and Tenant agree that this Lease is
and shall be subordinate at all times to all ground and underlying leases and
all mortgages (in any amounts and all advances thereon) which may now or
hereafter affect the Premises or any part thereof, and to all renewals, future
advances, modifications, spreaders, consolidations, replacements, and extensions
thereof. In confirmation of the foregoing, Tenant shall promptly upon request
therefor by Landlord, and without charge therefor, execute such certifications,
subordinations, and/or other documents as Landlord may require, and Tenant
hereby appoints Landlord the Tenant's attorney-in-fact to execute any such
document for and on behalf of Tenant if Tenant has not executed such document
within ten (10) days after Landlord's request therefor. If any mortgagee or
ground lessor requires that this Lease be prior rather than subordinate to any
such mortgage, Tenant shall, promptly upon request therefor by Landlord or such
mortgagee or ground lessor, and without charge therefor, execute a document
effecting and/or acknowledging such priority, which document shall contain, at
the option of such mortgagee or ground lessor, an attornment obligation to the
mortgagee or ground lessor (as new Landlord) in the event of foreclosure, deed
in lieu of foreclosure, or termination of the ground lease, or to any party
acquiring title (or the ground lessor's leasehold position) through such
mortgagee or ground lessor in such event. This Section shall be self-operative
and no further instrument of subordination shall be required.
SECTION 18.02 NOTICE: Upon request of any mortgagee or ground lessor of
record, Tenant shall give prompt written notice in the manner provided in this
Lease of any default of Landlord hereunder, and Tenant shall allow such
mortgagee or ground lessor a reasonable length of time (in any event, not less
than sixty (60) days from the date of such notice) in which to cure any such
default and Tenant shall accept such cure. Any such notice shall be sent to the
Mortgage Loan or Real Estate Department of any such mortgagee or ground lessor
at its home office address or at such other address as such mortgagee or ground
lessor may designate.
SECTION 18.03 ATTORNMENT: Tenant agrees to attorn to any mortgagee, ground
lessor, assignee, or purchaser who shall succeed to Landlord's interest in this
Lease upon request of such mortgagor, lessor, or other party. Tenant shall
attorn to any such successor Landlord and will execute such instruments as may
be necessary or appropriate to evidence such attornment. Upon such attornment,
this Lease shall continue in full force and effect as, or as if it were, a
direct Lease between the successor Landlord and Tenant upon all the terms,
conditions and covenants as are set forth in this Lease and shall be applicable
after such attornment except that the successor Landlord shall not (i) be liable
for any previous act or omission of Landlord under this Lease, (ii) be subject
to any offset, not expressly provided for in this Lease, which shall have
theretofore accrued to Tenant against Landlord and (iii) be bound by any
previous modification of this Lease, not expressly provided for in this Lease,
or by any previous prepayment of more than one month's rent unless such
modification or prepayment shall have been expressly approved in writing by such
Landlord or such holder through or by reason of which the successor Landlord
shall have succeeded to the rights of Landlord under this Lease.
SECTION 18.04 LEASEHOLD MORTGAGE: Notwithstanding anything that may be
contained in this Lease to the contrary, Landlord's fee estate and Landlord's
interest in this Lease shall be superior in all respects to the lien of any
mortgage which may, at any time during the term of this Lease, as the same may
be extended or renewed, encumber this leasehold estate.
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ARTICLE XIX
EXCULPATORY PROVISIONS
SECTION 19.01 EXCULPATORY PROVISIONS: It is expressly understood and
agreed by and between the parties hereto, anything herein to the contrary
notwithstanding, that in case of default hereunder by any Landlord (or default
through, under or by any of its agents or representatives): (a) Tenant shall
look solely to the interests of such Landlord in the Premises; (b) no Landlord
shall have any personal liability to pay any indebtedness accruing hereunder or
to perform any covenant, either express or implied, herein contained; (c) no
personal liability or personal responsibility of any sort is assumed by, nor
shall at any time be asserted or enforceable against, Landlord, on account of
this Lease or on account of any representation, warranty, covenant, undertaking
or agreement of Landlord, if any, contained in this Lease, either express or
implied, or on account of any act or omission of Landlord or its agents or
servants, all such personal liability, if any, being expressly waived and
released by Tenant and by all persons claiming by, through or under Tenant.
ARTICLE XX
ENVIRONMENTAL CONCERNS
SECTION 20.01 TENANT REPRESENTATIONS: The Tenant represents and warrants
that: (a) it will not cause or permit the generation, storage, transportation,
disposal, release or discharge of hazardous materials, hazardous waste,
hazardous substances, solid waste or pollution upon, in, over or under the
Premises and that it will not, to the extent practicable, cause or permit such
materials or pollution to migrate to the Premises from neighboring property; (b)
that the Tenant will not become involved in operations at the Premises or at
other locations owned or operated by the Tenant which would lead to the
imposition on the Tenant of liability under Chapter 403, Florida Statutes, the
Resource Conversation and Recovery Act, 42 U.S.C. section 6901 ET SEQ. ("RCRA"),
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
42 U.S.C. section 9601 ET SEQ. ("CERCLA") or any other federal, state or local
ordinances, laws or regulations regarding environmental matters or hazardous
substances; (c) Tenant will promptly comply with the requirements of Chapter
000, Xxxxxxx Xxxxxxxx, XXXX, XXXXXX and all federal, state and local laws and
regulations regarding environmental matters or hazardous substances as the same
may each be amended from time to time (including all federal, state and local
laws and regulations regarding underground storage tanks), and all such laws and
regulations relating to asbestos and asbestos-containing materials, PCB's, radon
gas, urea formaldehyde foam insulation, and will notify Landlord promptly in the
event of any release or discharge or a threatened release or discharge of
hazardous materials, hazardous wastes, hazardous substances, solid waste or
pollution upon, in, over or under the Premises as those terms are defined in
Chapter 403, Florida Statutes and any federal, state or local ordinances, laws
or regulations regarding environmental matters or hazardous substances, or the
presence of asbestos or asbestos-containing materials, PCB's, radon gas or urea
formaldehyde foam insulation at the Premises, or of the receipt by Tenant of any
notice from any governmental agency or authority or from any other person or
entity with respect to any alleged such release or presence promptly upon
discovery of such release, or promptly upon receipt of such notice, and will
promptly send Landlord copies of all results of any tests regarding same on the
Premises.
SECTION 20.02 INDEMNITY: Tenant agrees to indemnify, defend and hold the
Landlord harmless from and against any claims, losses, damages, liabilities
(including, without limitation, all foreseeable and unforeseeable consequential
damages), penalties, fines, charges, interest, judgments, including without
limitation attorneys' and paralegals' fees and disbursements through all
administrative, trial and appellate proceedings and any clean-up costs, incurred
by the Landlord arising out of or in connection with any handling, storage,
transportation or disposal of hazardous substances, or any spill, discharge,
release, escape or cleanup of hazardous substances ("Hazardous Discharge") or
failure to comply with any governmental law, rule or regulation, by the Tenant
or any other user or operator of the Premises. For the purposes of this
indemnity, any acts or omissions by Tenant or by its employees, agents,
contractors or others acting for or on behalf of Tenant (whether or not they are
negligent or intentional) shall be strictly attributable to Tenant. The
foregoing indemnity shall survive the expiration or earlier termination of this
Lease.
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SECTION 20.03 ENVIRONMENTAL AUDITS:
A. Upon Landlord's good faith determination that all or any part of any of
the Premises have been used or may in the future be used for the handling,
storage, transportation or disposal of hazardous substances and such use may, in
the determination of the Landlord, (i) result in the issuance of a complaint,
order, citation or notice by any governmental or regulatory authority,
commission, bureau or agency or public regulatory body against or affecting the
Tenant or all or any part of the Premises, (ii) result in the imposition of
liability on the party of any person or entity to take any actions with respect
to such use, including, without limitation, any liability to clean up any
Hazardous Discharge, or (iii) otherwise adversely affect the Landlord's interest
in the Premises, the Tenant shall, upon request of the Landlord, provide to the
Landlord, at the Tenant's expense, a report from a reputable environmental
consultant, approved by Landlord, with respect to such Premises and the nature
and effect of the use of any hazardous substances thereon, which report shall be
provided to the Landlord not later than ninety (90) days following the request
therefor, or such earlier date upon which the report is actually available from
the environmental consultant. If the Tenant shall fail or refuse to engage an
environmental consultant acceptable to the Landlord to provide such a report
within twenty (20) days following the request therefor by the Landlord, the
Landlord may, but shall not be obligated to, obtain such a report from an
environmental consultant of the Landlord's choice, at the Tenant's cost, which
cost Tenant shall pay as additional rent to Landlord promptly upon demand
therefor.
B. The Landlord shall have the right at any time to (a) require Tenant to
undertake and submit to Landlord a periodic environmental audit from a reputable
environmental company approved by Landlord, which audit shall cover Tenant's
compliance with this Article and (b) to bring their agents, which shall include
environmental consultants, on the Premises to conduct environmental studies and
tests. Based upon such studies and tests, the Landlord, if it reasonably
determines that the Tenant is not in compliance with any federal, state or local
environmental laws, rules or regulations which apply to the Premises or to any
users or operators of the Premises, may require the Tenant to promptly correct
or rectify, at the Tenant's expense, any failure to comply with such federal,
state, or local environmental laws, rules, or regulations.
SECTION 20.04 ENVIRONMENTAL NOTICES: Tenant hereby agrees to provide to
the Landlord, promptly upon becoming available, copies of all notices, reports,
correspondence and filings made by, or received from, any governmental or
regulatory authority or insurance company, and such other information as the
Landlord may from time to time reasonably request with respect to the use of all
or any part of any of the Premises for the handling, storage, transportation, or
disposal of hazardous substances. Tenant shall give immediate notice to Landlord
of the occurrence of any Hazardous Discharge.
SECTION 20.05 ENVIRONMENTAL DIRECTIVES; LIENS: If all or any part of the
Premises contains any Environmental Defect or Defects (defined as a condition or
conditions which would require or direct cleanup under any governmental or
regulatory laws, rules or regulations having jurisdiction) during the term of
this Lease or any renewals or extensions thereof, the Tenant agrees as follows:
(i) In the event that the U.S. Environmental Protection Agency, or
any other federal, state or local government agency (collectively, a "Regulatory
Agency") shall serve the Tenant with any requests or directives for
environmental clean-ups of all or any portion of the Premises, including any
requirements or directives to remove, or arrange for the removal of any
substances, hazardous or otherwise, from any of the Premises, the Tenant agrees
that Tenant shall automatically be in default under this Lease without notice
from Landlord in the event that the Tenant shall not accomplish or cause to be
accomplished one of the following:
a) complete compliance with the request or directive
within sixty (60) days from the date of such
request or directive, or within such shorter
period described therein, to the satisfaction of
the applicable Regulatory Agency; or
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b) if the nature of the Environmental Defect is such
that it cannot be cured within the period
described in clause (a) above, compliance with
the request or directive must have been commenced
within the period provided therein to the
satisfaction of the applicable Regulatory Agency;
provided that the Tenant shall thereafter
continue to diligently pursue compliance with
such request or directive to the satisfaction of
the applicable Regulatory Agency.
(ii) In the event there shall be filed a lien against any of the
Premises by any Regulatory Agency, the Tenant agrees that it shall either cause
said lien to be removed from the Premises or provide a bond satisfactory to
Landlord and any mortgagee of Landlord, insuring to the Landlord's lender a
continuing first lien status on the Premises, within ten (10) days from the date
that the lien is placed against the Premises or within any shorter period of
time required by the Landlord in the event that the Regulatory Agency commences
steps to cause the sale of the Premises pursuant to the lien. In the event that
the Tenant shall not accomplish the foregoing within the required period of
time, the Tenant agrees that Tenant shall automatically be in default under this
Lease without notice from Landlord.
SECTION 20.06 STORAGE TANKS: Tenant shall not install any storage tanks on
the Premises without Landlord's prior written consent, which consent may be
granted or withheld in Landlord's sole discretion. In the event that any storage
tanks are installed, maintained, repaired, or replaced on the Premises, the
Tenant agrees to comply with any and all federal, state or local environmental
laws, rules or regulations which apply to the use of storage tanks. In addition,
the Tenant agrees to install monitoring xxxxx around any underground storage
tanks that may be installed on the Premises and to regularly monitor such xxxxx
to ensure that no leakage has occurred or is occurring into the surrounding
surface or ground water. All such storage tanks on the Premises shall be the
then current state of the art in design and material.
ARTICLE XXI
GENERAL COVENANTS
SECTION 21.01 CONSTRUCTION: Whenever the context of any provision shall
require it, the singular number shall be held to include the plural number and
vice versa; and the use of any gender shall include any other or all genders.
The Article and section headings in this Lease are for convenience only and do
not constitute a part of the provisions hereof. This Lease binds, applies to and
inures to the benefit of, as the case may require, the heirs, personal
representatives, successors and assigns of Landlord and the heirs, personal
representatives, successors and permitted assigns of Tenant.
SECTION 21.02 MODIFICATION: No waiver, change, modification or discharge,
in whole or in part, of any provision hereof shall be deemed to have been made
by either party unless such waiver, change, modification or discharge be in
writing signed by such party.
SECTION 21.03 ACCEPTANCE OF RENT: No payment by Tenant or receipt by
Landlord of a lesser amount than the rent herein stipulated shall be deemed to
be other than on account of the stipulated rent, nor shall any endorsement or
statement on any check nor any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
SECTION 21.04 LANDLORD'S RIGHT OF ENTRY: Landlord and Landlord's
authorized agents and employees shall have the right from time to time, at
Landlord's option, upon twenty-four (24) hours notice (or upon less or no notice
in the case of an emergency), to enter and pass through the Premises during
business hours to examine the same, to insure compliance with this Lease, to
cure any default by Tenant under this Lease pursuant to Section 12.03, and to
show them to prospective purchasers, fee mortgagees and others, but this shall
not obligate Landlord to make any such entry or examination.
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SECTION 21.05 NOTICES: Any notice, report, demand or other instrument
authorized or required to be given or furnished to either party under this Lease
shall be sent to such party at the address of such party set forth below by
registered or certified mail, return receipt requested, or by overnight delivery
service, postage paid and shall be deemed given on the earliest to occur of (i)
receipt thereof, or (ii) the third day after deposit in the United States Postal
service with proper postage affixed or such other delivery services, or (iii)
the day following the delivery of such overnight delivery service. The addresses
of the parties are as follows:
FOR THE TENANT: Revenge Marine, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
ATTENTION: Mr. Xxxx Xxxxxxxx
With copies to: Xxxxxxxxx Xxxxxxx, Esq.
0000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
FOR THE LANDLORD: c/o Xxxxxxx Xxxxxxxx Companies, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
ATTENTION: Xx. Xxxxxxx Xxxxxxxx
With copies to: Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxxxxxx Companies, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Either party may change the address to which any such notice, report, demand or
other instrument is to be mailed, by furnishing written notice of such change to
the other party.
SECTION 21.06 ENTIRE AGREEMENT: This Lease constitutes the entire
agreement between the parties hereto. Except as set forth herein, there are no
promises, representations, or understandings between the parties of any kind or
nature whatsoever.
SECTION 21.07 NO BROKER: Each party represents to the other that it has
had no dealings with any broker in connection with this Lease, and agrees to
hold the other harmless from and against any and all claims, liabilities and/or
damages for brokerage commission claimed by any broker with whom it has dealt
with respect to this Lease or the negotiation thereof.
SECTION 21.08 COUNTERPARTS: This instrument may be executed in any number
of counterparts, each of which shall be deemed an original for all purposes and
all of which shall be one and the same document.
SECTION 21.09 WAIVER: The failure of the Landlord to insist in any one or
more instances upon the strict performance of any one or more of the covenants,
terms and agreements of this Lease, shall not be construed as a waiver of such
covenants, terms or agreements, but the same shall continue in full force and
effect, and no waiver by the Landlord of any of the provisions hereof shall in
any event be deemed to have been made (by acceptance of rent or otherwise)
unless the same be expressed in writing, signed by the Landlord, and all
remedies provided for by the terms of this Lease shall be cumulative.
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SECTION 21.10 SEVERABILITY: If any provision or portion of this Lease is
declared or found by any court of competent jurisdiction to be unenforceable or
null and void, such provision or portions thereof shall be deemed stricken and
severed from this Lease, and the remaining provisions and portions thereof shall
continue in full force and effect. If a portion is so stricken, it is the
intention of the parties that the court give such provision its nearest valid
and legal meaning.
SECTION 21.11 LEGAL FEES: In the event of any litigation between the
parties under this Lease, the prevailing party in such litigation shall be
entitled to receive reasonable attorneys' and paralegals' fees, (including all
levels of appeal), and all reasonable costs and expenses of any and all such
proceedings from the non-prevailing party.
SECTION 21.12 TRIPLE NET LEASE: This is a triple net lease and Landlord
shall not be required to provide or pay for any services or do any act or thing
with respect to the Premises or the appurtenances thereto, except as may be
specifically provided herein, and the rent shall be paid to Landlord without any
claim on the part of Tenant for diminution, setoff or abatement, and nothing
shall suspend, xxxxx or reduce any rent to be paid hereunder, except as
otherwise specifically provided in this Lease.
SECTION 21.13 LANDLORD'S LIEN: Landlord shall have and Tenant hereby
grants Landlord a security interest in any furnishings, equipment, fixtures,
inventory, accounts receivable, and other personal property of any kind
belonging to Tenant, or the equity of Tenant therein, on the Premises or
elsewhere. The security interest is granted for the purpose of securing the
payment of rent and additional rent and for the purpose of securing the
performance of all other obligations of Tenant hereunder. Upon Tenant's default
or breach of any covenants of this Lease, Landlord shall have all remedies
available under applicable law, including, but not limited to, the right to take
possession of the above mentioned property and dispose of it by public or
private sale in a commercially reasonable manner.
SECTION 21.14 PAYMENTS OF MONEY; INTEREST: In each instance when Tenant
shall be obligated to make any payment of any sum of money whatsoever hereunder,
interest shall accrue thereon and be payable hereunder at the highest rate
permitted by law, computed from the date such payment first became due
hereunder.
SECTION 21.15 GOVERNING LAW; NEGOTIATED AGREEMENT: This Lease shall be
construed and governed in accordance with the laws of the State of Florida
without application of the conflict of law principles. All of the parties to
this Lease have participated fully in the negotiation and preparation hereof
and, accordingly, this Lease shall not be more strictly construed against any
one of the parties hereto.
SECTION 21.16 TENANT'S AUTHORITY TO EXECUTE LEASE: Tenant represents and
warrants that this Lease has been duly authorized, executed and delivered by and
on behalf of Tenant and constitutes the valid and binding agreement of Tenant in
accordance with the terms hereof, and Tenant shall deliver to Landlord or its
agent, concurrently with the delivery of this Lease, executed by Tenant,
certified resolutions of the board of directors (and shareholders, if required)
authorizing Tenant's execution and delivery of this Lease and the performance of
Tenant's obligations hereunder. Upon the full execution of this Lease and
annually during the term of this Lease, Tenant shall deliver to Landlord
Tenant's annual reports and audited financial statements.
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SECTION 21.17 WAIVER OF JURY TRIAL AND COUNTERCLAIM: THE PARTIES TO THIS
LEASE, INTENDING TO BIND THEMSELVES AND THEIR RESPECTIVE SUCCESSORS AND
PERMITTED ASSIGNS HEREBY, DO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT WHICH EACH HAS OR MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LEGAL
ACTION, PROCEEDING, SUIT, LITIGATION, CLAIM, OR COUNTERCLAIM WHICH (A) IS BASED
UPON THIS LEASE OR ANY PROVISION HEREOF, (B) ARISES OUT OF, UNDER, OR IN
CONNECTION WITH THIS LEASE OR ANY OTHER DOCUMENT, INSTRUMENT, OR AGREEMENT
MENTIONED HEREIN OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR (C)
ARISES OUT OF, IN CONNECTION WITH, OR IS BASED UPON ANY CONDUCT, COURSE OF
CONDUCT, COURSE OP DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OP
EITHER PARTY RESPECTING ANY MATTER ADDRESSED OR CONTEMPLATED IN THIS LEASE. THIS
WAIVER IS INTENDED TO BE APPLICABLE THROUGHOUT THE PERIOD OF TIME DURING WHICH
THIS LEASE WAS NEGOTIATED, TO THE PRESENT TIME, AND AT ALL TIMES IN THE FUTURE
UNTIL ALL APPLICABLE STATUTES OF LIMITATION RESPECTING THE TYPES OF LEGAL
ACTIONS AND CLAIMS COVERED HEREBY SHALL HAVE RUN, NOTWITHSTANDING THE EXPIRATION
OR EARLIER TERMINATION OF THIS LEASE. BOTH PARTIES MUTUALLY ACKNOWLEDGE AND
AGREE THAT THIS WAIVER OF RIGHT TO TRIAL BY JURY FORMS AN INTEGRAL PART OF THE
CONSIDERATION FOR THEIR ENTERING INTO THIS LEASE AND THAT THIS PROVISION
CONSTITUTES A MATERIAL INDUCEMENT TO EACH PARTY FOR ITS EXECUTION AND DELIVERY
OF THE COUNTERPARTS HEREOF. IF LANDLORD COMMENCES ANY SUMMARY PROCEEDING AGAINST
TENANT, TENANT WILL NOT INTERPOSE ANY COUNTERCLAIM WHATSOEVER AND WILL NOT SEEK
TO CONSOLIDATE SUCH PROCEEDING WITH ANY OTHER ACTION WHICH HAY HAVE BEEN OR WILL
BE BROUGHT IN ANY OTHER COURT BY TENANT. EACH PARTY DOES HEREBY EXPRESSLY
ACKNOWLEDGE HAVING RECEIVED ADVICE OF COUNSEL RESPECTING THE LEGAL CONSEQUENCES
OF THIS WAIVER OF RIGHT TO TRIAL BY JURY AND WAIVER OF COUNTERCLAIM. EACH PARTY
HAS INITIALED THIS WAIVER PROVISION FOR THE PURPOSE OF EXPRESSING ITS
UNDERSTANDING AND AGREEMENT TO ALL OF THE FOREGOING PROVISIONS.
Landlord: Tenant:
---------------- ---------------
SECTION 21.18 SIGN: Tenant shall not, without the prior written consent of
Landlord (which consent shall not be unreasonably withheld) install any exterior
signs on the Premises or any interior signs which can be seen from the exterior
of the Premises. In the event that any signs are installed on the Premises, same
shall be in compliance with all applicable laws, rules and regulations. Tenant,
at Tenant's sole cost and expense, shall obtain all permits and licenses
required in connection with any sign and shall be fully responsible for the
installation thereof. Tenant hereby indemnifies and holds Landlord harmless from
and against any and all losses, costs, damages, expenses, suits, demands,
claims, inquiries, or deaths occasioned by the installation, maintenance or
removal of any signs.
SECTION 21.19 LETTER OF CREDIT: Upon the execution of this Lease, instead
of the cash security deposit provided for in Section 2.04 of this Lease, Tenant
may provide Landlord with a clean, irrevocable, unconditional, transferable
letter of credit in Landlord's favor issued by a bank acceptable to Landlord in
the amount of $35,000.00 (the "Letter of Credit"), which Letter of Credit shall
otherwise be in form and substance acceptable to Landlord and which shall
collateralize Tenant's obligations hereunder and serve as the security deposit
under Section 2.04 of this Lease.
SECTION 21.20 GUARANTY OF LEASE: Upon the execution of this Lease, XXXXXXX
XXXXXXXX and XXXXX XXXXXXX shall execute a Guaranty in form and substance as
appears on EXHIBIT C attached hereto and made a part hereof.
SECTION 21.21 SURVIVAL: Any liability of Tenant for the payment of any
money under this Lease, including, but limited to, the payment of any money
resulting from any indemnities of Landlord by Tenant pursuant to the terms of
this Lease shall survive the expiration or earlier termination of this Lease.
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ARTICLE XXII
OPTION TO EXTEND
SECTION 22.01 OPTION TO EXTEND: Tenant shall have the option, to be
exercised as hereinafter set forth, to extend the term of this Lease for an
additional five (5) year period, to follow consecutively after the original term
of this Lease (hereinafter referred to as the "Extended Term"), upon the
condition that, on the last date on which Tenant is entitled to exercise such
option and on the last day of the term of this Lease, this Lease is in full
force and effect and Tenant is not in default hereunder. Tenant shall exercise
its option by giving written notice of its election to extend the term of this
Lease to Landlord not less than one (1) year prior to the expiration of the term
of this Lease but in no event earlier than two (2) years prior to the expiration
of the term of this Lease. Upon such exercise, the term of this Lease shall be
automatically extended for the Extended Term without the requirement of any
further instrument, upon all of the same terms, provisions and conditions set
forth in this Lease, except that the net rent payable during the Extended Term
of this Lease shall be equal to the greater of (i) the rent calculated and
determined by applying the rent adjustments and increases set forth in Section
2.01 of this Lease as if the Lease Years of the Extended Term were part of the
initial term (e.g., the rent for the first Lease Year of the Extended Term shall
be the greater of 1.03 times the rent for the last year of the original term and
the Annual Rent CPI adjustment applied to such last year of the original term);
and (ii) the then market rate per square foot for the Premises (the "Market
Rate"), which Market Rate shall be adjusted and increased during each Lease Year
of the Extended Term by applying the rent adjustments and increases provided for
in Section 2.01 of this Lease. As used in this Lease, Market Rate shall be
determined by Landlord. Landlord shall, no later than nine (9) months prior to
the expiration of the original term of this Lease, advise Tenant of its
determination of Market Rate for the first Lease Year of the Extended Term if it
determines that same is greater than the rent would be applying the adjustments
and increases thereto as set forth in Section 2.01 of this Lease and (i) above.
If Landlord does not advise Tenant of the Market Rent, then rent during the
Extended Term shall be determined and calculated under (i) hereinabove. If
Tenant disagrees with Landlord's determination of Market Rate, Tenant shall so
notify Landlord in writing no later than fifteen (15) days following receipt of
Landlord's advice of Market Rate. If Landlord and Tenant cannot agree on the
Market Rate as above described within thirty (30) days after Tenant's notice of
disagreement, then each party shall, within fifteen (15) days following the
30-day workout period, select an independent MAI appraiser, each having at least
five (5) years of experience in the appraisal of commercial real estate in Dade
County, Florida, with reasonable experience in the appraisal of warehouse
buildings in the City of Miami, Florida, to make a determination of the Market
Rate. Both MAl appraisers chosen by Landlord and Tenant shall then agree upon a
third MAl appraiser, and each of the three appraisers shall submit their
appraisals to Landlord and Tenant no later than thirty (30) days prior to the
expiration of the original term of this Lease. The Market Rate shall be the
average of the determination of the three appraisals, provided, however, if the
difference in Market Rate of any appraisal is less than five (5%) percent of the
average of the other two appraisals, then the Market Rate shall be the average
of the two closest appraisals. Each party shall pay the fees and costs of the
appraiser it has selected and both parties shall split the fees and costs of the
third appraiser equally. Notwithstanding anything contained in this Section
22.01 to the contrary, in no event shall the Market Rate be less than Annual
Rent would be if calculated and determined under (i) hereinabove. During the
Extended Term, the Market Rate (if applicable) shall be increased each year, on
the anniversary date, by multiplying the rent for the immediately preceding
Lease Year by 1.03 or by the application of the Section 2.01 CPI adjustment to
the immediately preceding Lease Year, whichever results in the greater rent.
In the event that the aforesaid option to extend is duly exercised, all
references contained in this Lease to the term of this Lease, whether by number
of years or number of months, shall be construed to refer to the original term
of this Lease, as extended as aforesaid, whether or not specific reference
thereto is made in this Lease.
ARTICLE XXIII
OPTION TO PURCHASE
SECTION 23.01 OPTION TO PURCHASE: Provided this Lease is in full force and
effect and Tenant is not in default hereunder, Landlord, for consideration paid,
hereby grants to Tenant the option to purchase the Premises for a period up to
the expiration date of the third Lease Year of the original term of this Lease,
upon and subject to the following terms and conditions:
(a) Tenant may not assign its option to purchase the Premises
pursuant to this Article XXIII without the prior written consent of Landlord,
which consent may be withheld in Landlord's sole discretion.
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(b) To exercise the option, Tenant shall give written notice to
Landlord of Tenant's election to purchase the Premises, provided that such
written notice shall be given not less than six (6) months prior to the
expiration of the third Lease Year of the original term of this Lease. Such
written notice shall be accompanied by payment to Landlord of a deposit of Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00). The giving of such
notice and payment of such deposit shall obligate Landlord to sell and the
Tenant to buy the Premises on the terms and conditions set forth in this Section
23.01. The closing of the purchase and sale of the Premises shall occur on the
date which is sixty (60) days after the giving of such notice by Tenant of its
exercise of the option to purchase the Premises and the making of the deposit in
connection therewith (the "Closing Date") at 11:00 a.m., at the offices of
Landlord's attorney or the title agent, as selected by Landlord, provided that
such closing shall be in Dade or Broward County, Florida. At closing the deed
shall be delivered and the transaction consummated, unless the parties shall
otherwise agree in writing.
(c) The purchase price for the Premises shall be Three Million Two
Hundred Fifty-Nine Thousand Five Hundred and No/100 Dollars ($3,259,500.00) if
the transaction closes during the first Lease Year of the original term, which
purchase price shall be increased by $536.00 per day to and including the day of
closing if the sale and purchase closes during the second Lease Year of the
original term, and which purchase price shall be increased by $568.00 per day to
and including the day of closing if closed prior to the expiration of the third
Lease Year of the original term, and shall be payable as follows: $250,000.00
shall have been paid by Tenant as a deposit upon exercise of this option as
aforesaid; and the balance of the purchase price shall be paid on the Closing
Date, by wire transfer funds pursuant to written instructions from Landlord, as
Seller.
(d) If Tenant shall have exercised the option as provided above,
the Premises shall be conveyed by a good and sufficient Special Warranty Deed
and said deed shall convey fee simple title thereto, free and clear from all
encumbrances except for: (i) provisions of existing building, subdivision and
zoning laws and all governmental resolutions, ordinances, laws and actions; (ii)
the Permitted Exceptions as set forth in Exhibit "B"; (iii) other matters of
record which do not unreasonably and materially interfere with Tenant's use of
the Premises; (iv) the provisions of this Lease and any lien, encumbrance,
sublease or other matter affecting the Premises that was created, directly, or
indirectly, by Tenant during its occupancy and use of the Premises under the
Lease, or by any person claiming by, through or under Tenant; and (v) any matter
that would be disclosed by a current and accurate survey of the Premises.
(e) It is agreed that prior to exercising this option, Tenant
shall cause an examination to be made of the record title to the Premises and
shall obtain a title insurance commitment from a nationally recognized title
insurance company (such as Ticor Title Insurance Company, Lawyers Title
Insurance Corporation or Commonwealth Land Title Insurance Company) covering the
Premises. Accompanying Tenant's notice of exercise of the option, Tenant shall
furnish Landlord with a copy of such title insurance commitment and shall give
notice to Landlord of any title exceptions other than the Permitted Exceptions
and other matters set forth in section 23.01(d). Except for any objections
claimed by Tenant in such notice, the Premises shall be considered satisfactory
and in compliance with the provisions of this option. If Tenant gives such
notice and it indicates that Tenant has any objections to title to the Premises,
Landlord shall use reasonable efforts to remove or cure such objections within
sixty (60) days after such notice (unless any such objection is of such a nature
that it cannot be removed or cured within sixty (60) days, in which event such
sixty-day period shall be extended by a reasonable period not to exceed an
additional sixty (60) days). If within such period Landlord causes an ALTA
owner's title insurance policy (specimen or otherwise) to be issued without
exception for such objections, or obtains affirmative coverage for same, Tenant
shall be precluded from making any such objection. The parties hereto
acknowledge and agree that, wherever under the terms of this Section 23.01 the
Landlord is obligated, or has agreed, to use reasonable efforts to remove any
defects in title, to deliver possession as provided herein, or to make the
Premises conform to the provisions hereof, "reasonable efforts" shall be deemed
to mean only those efforts costing the Landlord not more than $10,000.00 in the
aggregate to undertake (but excluding the payment of any mortgages encumbering
the Premises from Landlord to its mortgage lenders, which Landlord agrees to pay
at closing from the closing proceeds). In the event Landlord is unable to cure
any title defects as provided above within the applicable time period, Tenant
may, either (a) purchase the Premises without any reduction in the purchase
price or (b) elect not to exercise its rights to purchase the Premises,
whereupon the $250,000.00 deposit shall be returned to Tenant and the parties
hereto shall be relieved of all further obligations under this Article XXIII.
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(f) If Tenant shall have exercised this option, but for any reason
fails to fulfill its obligation to purchase the Premises, the $250,000.00
deposited by Tenant upon exercise of this option may be retained by Landlord as
liquidated damages as Landlord's sole and exclusive remedy, at law or in equity,
for such failure by Tenant to purchase the Premises. In addition to the rights
of Landlord set forth in the preceding sentence, in the event that the Tenant
shall have exercised this option to purchase, but defaults under its obligations
hereunder, such default shall constitute an Event of Default under this Lease,
and Landlord shall be entitled to exercise its rights as set forth in section
12.02.
(g) Nothing in this section 23.01, nor Tenant's exercise, nor
failure to exercise, any of Tenant's rights under this option shall in any way
affect any of the rights and obligations of the Tenant or the Landlord under
this Lease, or otherwise operate so as to (i) merge the Lease with any legal or
equitable interest that the Tenant may acquire with respect to the Premises by
virtue of this option, (ii) cause the Tenant to become a vendee-in-possession,
or (iii) otherwise terminate the lessor-lessee relationship of the Landlord and
the Tenant under the Lease. To the extent that the Tenant does, by operation of
law or otherwise, become a vendee-in-possession by virtue of this option, the
Tenant hereby expressly agrees, as such vendee-in-possession, nevertheless to be
bound by all of the obligations of the Tenant under the Lease, including,
without limitation, the obligation to pay the rent and other amounts payable
under the Lease.
(h) The Landlord and Tenant agree that only the income from the
Premises shall be prorated as of 11:59 P.M. of the day immediately preceding the
Closing Date and that Tenant as Buyer shall be responsible for all of the
expenses of the Premises for the periods prior and subsequent to the Closing
Date.
(i) The Premises shall be conveyed and accepted in their AS-IS,
WHERE-IS condition, without representation or warranty whatsoever with respect
thereto, and subject to all of the disclaimers, provisions, terms and conditions
of Section 7.02 of this Lease.
(j) Landlord as Seller shall pay State documentary stamp taxes due
on the deed of conveyance and the cost of recording any title corrective
instruments for which it is responsible. All other expenses of the sale and
purchase, including but not limited to title insurance, survey (if any), other
recording costs, including the cost of recording the Special Warranty Deed, and
third-party financing charges and costs (provided, however, that Tenant's
obligations shall not be contingent upon its ability to obtain financing), shall
be paid by Buyer. The parties shall, however, pay their own respective
attorneys' fees and costs in connection with the closing.
(k) All risk of loss, damage and destruction to the Premises prior
to closing shall be borne by Tenant, as Buyer.
(l) Until the closing, all of the terms, provisions and conditions
of the Lease shall remain in full force and effect and shall be applicable to
Tenant, as the tenant hereunder, and to Landlord, as the landlord hereunder.
(m) In addition to the Special Warranty Deed for the conveyance of
the Premises, Landlord as seller shall prepare and deliver the closing
statement, a FIRPTA certificate, 1099S (if required by law) and a quit-claim
assignment with assumption for all operating and other permits for the Premises
and for this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
TENANT:
Signed, sealed and delivered REVENGE MARINE, INC., a Nevada corporation
in the presence of:
By:
---------------------------- ---------------------------------------
Its:
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-------------------------------
LANDLORD:
MIAMI RIVER PARTNERS, LTD., a Florida
limited partnership
BY: MIAMI RIVER PARTNERS, INC., a Florida
corporation, its general partner
------------------------------- By:
----------------------------------------
Its:
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EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
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EXHIBIT B
PERMITTED EXCEPTIONS
1) All of those matters set forth in Section 23.01(d) of this Lease and
Option to Purchase.
2) Any matters which would be disclosed by an accurate and current survey of
the Premises.
3) Taxes and assessments for all years prior to and subsequent to this Lease
(and prior to and after closing of the sale and purchase in the event of
an exercise of and closing pursuant to the Option to Purchase in Article
23).
4) All of those matters set forth in the copy of Commonwealth Land Title
Insurance Company Commitment for Title Insurance No. 864-559816 attached
hereto and as a part of this Exhibit B.
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TABLE OF CONTENTS
ARTICLE I DEMISE AND TERM
Section 1.01 Demise and Acceptance Generally...................... 1
Section 1.02 Premises............................................. 1
Section 1.03 Commencement and Duration of Lease................... 1
ARTICLE II RENT AND SECURITY
Section 2.01 Amount of Minimum Rent............................... 3
Section 2.02 Payment of Rent...................................... 3
Section 2.03 Lease Year Defined................................... 3
Section 2.04 Security............................................. 4
ARTICLE III EXPENSES PAYABLE BY TENANT
Section 3.01 Net Intent........................................... 4
Section 3.02 Tenant to Pay Impositions............................ 4
Section 3.03 Tenant to Pay All Utilities, Operating
Costs, Etc......................................... 5
Section 3.04 Contests............................................. 5
Section 3.05 Income Tax Exclusion................................. 6
Section 3.06 Additional Rent...................................... 6
ARTICLE IV INSURANCE
Section 4.01 Property Insurance................................... 7
Section 4.02 Liability Insurance.................................. 7
Section 4.03 Blanket Policies..................................... 7
Section 4.04 General Insurance Provisions......................... 8
ARTICLE V UTILITIES
Section 5.Ol Utilities............................................ 9
ARTICLE VI REPAIRS, REPLACEMENT, MAINTENANCE
AND ALTERATION
Section 6.01 Tenant's Obligation to Maintain
and Repair......................................... 9
Section 6.02 Alterations.......................................... 9
Section 6.03 Tenant's Further Obligation to Maintain.............. 11
Section 6.04 Tenant's Obligations to Construct.................... 11
ARTICLE VII USE AND ACCEPTANCE OF PREMISES; WAIVER
Section 7.01 Use.................................................. 12
Section 7.02 Inspection........................................... 12
Section 7.03 Waiver by Tenant..................................... 12
ARTICLE VIII ASSIGNMENT AND SUBLETTING
Section 8.01 Assignment and Subletting............................ 12
Section 8.02 Attornment........................................... 13
Section 8.03 Acceptance of Rent................................... 13
Section 8.04 Assignment by Landlord............................... 13
Section 8.05 Interest in Subleases................................ 13
Section 8.06 Excess Rent.......................................... 13
ARTICLE IX DAMAGE OR DESTRUCTION
Section 9.01 Tenant's Obligation to Restore
and Repair......................................... 13
Section 9.02 Application of Insurance Proceeds.................... 13
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ARTICLE X CONDEMNATION
Section 10.01 Entire Condemnation.................................. 14
Section 10.02 Partial Condemnation................................. 14
Section 10.03 Awards............................................... 14
Section 10.04 Temporary Taking..................................... 14
ARTICLE XI TENANT'S REPAIR AFTER DAMAGE BY
CASUALTY OR CONDEMNATION
Section 11.01 Proceeds and Awards.................................. 14
Section 11.02 Reconstruction....................................... 15
ARTICLE XII TENANT'S BREACH AND LANDLORD'S REMEDIES
Section 12.01 Default.............................................. 15
Section 12.02 Remedies............................................. 16
Section 12.03 Landlord's Right to Cure Tenant's
Defaults........................................... 17
Section 12.04 Waiver of Rights of Redemption....................... 17
ARTICLE XIII LIENS; ADVERSE POSSESSION
Section 13.01 Tenant to Keep Premises Lien Free.................... 18
Section 13.02 Notice of Non-Responsibility......................... 18
Section 13.03 Adverse Possession................................... 18
ARTICLE XIV EST0PPEL CERTIFICATE
Section 14.01 Estoppel Certificate................................. 18
ARTICLE XV NO LIABILITY; INDEMNIFICATION
Section 15.01 No Liability; Indemnification........................ 18
ARTICLE XVI TERMINATION AND PRORATIONS
Section 16.01 Termination.......................................... 19
Section 16.02 Holdover............................................. 19
Section 16.03 Personal Property.................................... 19
Section 16.04 Proration............................................ 19
ARTICLE XVII NO PARTNERSHIP
Section 17.01 No Partnership....................................... 19
ARTICLE XVIII SUBORDINATION AND ATTORNMENT
Section 18.01 Subordination........................................ 20
Section 18.02 Notice............................................... 20
Section 18.03 Attornment........................................... 20
Section 18.04 Leasehold Mortgage................................... 20
ARTICLE XIX EXCULPATORY PROVISIONS
Section 19.01 Exculpatory Provisions............................... 21
ARTICLE XX ENVIRONMENTAL CONCERNS
Section 20.01 Tenant Representations............................... 21
Section 20.02 Indemnity............................................ 21
Section 20.03 Environmental Audits................................. 22
Section 20.04 Environmental Notices................................ 22
Section 20.05 Environmental Directives; Liens...................... 22
Section 20.06 Storage Tanks........................................ 23
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ARTICLE XXI GENERAL COVENANTS
Section 21.01 Construction......................................... 23
section 21.02 Modification......................................... 23
Section 21.03 Acceptance of Rent................................... 23
Section 21.04 Landlord's Right of Entry............................ 23
Section 21.05 Notices.............................................. 24
Section 21.06 Entire Agreement..................................... 24
Section 21.07 No Broker............................................ 24
Section 21.08 Counterparts......................................... 24
Section 21.09 Waiver............................................... 24
Section 21.10 Severability......................................... 25
Section 21.11 Legal Fees........................................... 25
Section 21.12 Triple Net Lease..................................... 25
Section 21.13 Landlord's Lien...................................... 25
Section 21.14 Payments of Money; Interest.......................... 25
Section 21.15 Governing Law; Negotiated Agreement.................. 25
Section 21.16 Tenant's Authority to Execute Lease.................. 25
Section 21.17 Waiver of Jury Trial and Counterclaim................ 26
Section 21.18 Signs................................................ 26
Section 21.19 Letter of Credit..................................... 26
Section 21.20 Guaranty of Lease.................................... 26
Section 21.21 Survival............................................. 26
ARTICLE XXII OPTION TO EXTEND
Section 22.01 Option to Extend..................................... 27
ARTICLE XXIII OPTION TO PURCHASE
Section 23.01 Option to Purchase................................... 27
EXHIBITS
Exhibit A - Legal Description of the Premises
Exhibit B - Permitted Exceptions
Exhibit C - Guaranty
36
LEASE AGREEMENT
FOR
(See this Lease and Exhibit A
hereto for description of the Premises)
BETWEEN
REVENGE MARINE, INC.,
A NEVADA CORPORATION,
as Tenant,
AND
MIAMI RIVER PARTNERS, LTD., A FLORIDA LIMITED PARTNERSHIP,
SUCCESSORS AND ASSIGNS,
as Landlord
