LEASE
between
SEAGATE LAND TRUST,
XXXXXX X. XXXXXX, Trustee
(the Landlord)
and
TREASURE COAST BOATING CENTER, INC.
(the Tenant)
at
SEAGATE MARINA
00000 XXXXXXXXX XXXXXXX XXXXXXX
XXXXXXXX, XXXXXXX 00000
(name of Property)
Dated: December 22, 1998
TABLE OF CONTENTS
Article 1. Introductory Provisions
1.1 Introductory Provisions 1
1.2 References and Conflicts 3
1.3 Exhibits
1.4 The Property; The Landlord's Site; Landlord's Building 3
1.5 Gross Leasable Area
Article 2. Premises
2.1 Lease of Premises
2.2 Premises Defined
2.3 Delivery of Premises
2.4 Opening of Premises
4
2.5 Possession
Article 3. Term
3.1 Term of this Lease
Article 4. Rent
4.1 Tenant's Agreement to Pay Rent 4
4.2 Minimum Rent
4.3 Lease Year Defined
4.4 Minimum Annual Rent 4
4.5 Percentage Rent
4.6 Monthly Payment of Percentage Rent; Year-End Adjustment 4
4.7 Gross Sales
4.8 Tenant's Records and Statements of Gross Sales 4
4.9 Additional Audit Rights
4.10 Additional Rent 4
4.11 Where Rent Payable and to Whom; No Deduction; Late Charge 4
Article 5. Taxes and Assessments
5.1 Tenant's Proportionate Share of Taxes 5
5.2 Payment by Tenant
5.3 Rent Tax
Article 6. Tenant's Conduct of Business
6.1 Hours
Article 7. Use of Premises
7.1 Sole Use and Trade Name 5
7.2 Requirements and Restrictions 5
7.3 Effect on Landlord's Insurance 6
Article 8. Common Areas
8.1 Use by Tenant; Maintenance 6
8.2 Common Areas Defined 6
8.3 Rules and Regulations 6
8.4 Landlord's Control 6
8.5 Employee Parking
8.6 Landlord's Use of Common Area 7
8.7 Common Area Costs 7
8.8 Tenant's Proportionate Share of Common Area Costs 7
Article 9. Hazardous Substance
9.1 Restriction on Use 7
9.2 Landlord's Representation 7
9.3 Indemnification 7
9.4 Survival
Article 10. Alterations to Premises
10.1 Alterations; Mezzanines; Damages 7
10.2 Compliance with Laws 8
10.3 Insurance and Reconstruction 8
Article 11. Liability. Indemnity and Insurance
11.1 Landlord's Liability 8
11.2 Indemnification by Tenant 8
11.3 Mutual Waivers 8
11.4 Tenant's Insurance 8
11.5 Landlord's Insurance 9
11.6 Compliance with Insurance and Governmental Requirements 9
11.7 Limit of Landlord's Responsibility 9
Article 12. Reconstruction
12.1 Landlord's Duty to Reconstruct 10
12.2 Tenant's Duty to Reconstruct 10
12.3 Landlord's Right to Terminate 10
12.4 Abatement of Rent 10
12.5 Tenant's Right to Terminate 10
Article 13. Maintenance of Premises
13.1 Landlord's Duty to Maintain 10
13.2 Tenant's Duty to Maintain 10
13.3 Landlord's Repair of Premises 11
13.4 Landlord's Right of Entry and Use 11
13.5 Conflicts 11
Article 14. Utilities and Garbage Disposal
14.1 Water, Sanitary Sewer, Telephone and Electric Service 11
14.2 Vendors Selected by Landlord 11
14.3 Garbage Collection 11
14.4 Security Service 11
Article 15. Liens
15.1 No Liens Permitted; Discharge 12
Article 16. Fixtures and Personal Property
16.1 Tenant's Property; Removal 12
16.2 Improvements to Premises 12
Article 17. Assignment and Subletting
17.1 Restrictions on Assignment 12
17.2 Change of Ownership 12
Article 18. Defaults by Tenant
18.1 Events of Default 13
18.2 Landlord's Remedies 13
18.3 Attorney's Fees and Costs 13
18.4 Rent Payable by Tenant 13
18.5 Tenant's Property to Remain 13
Article 19. Liability of Landlord
19.1 Landlord's Default 14
19.2 Transfer of Landlord's Interest 14
Article 20. Subordination and Attornment
20.1 Subordination of Lease 14
20.2 Tenant's Attornment 14
20.3 Instruments to Carry Out Intent 14
Article 21. Estoppel Certificates
21.1 Tenant's Agreement to Deliver 14
21.2 Failure of Tenant to Give Estoppel 14
Article 22. Quiet Enjoyment
22.1 Faithful Performance 14
Article 23. Surrender and Holding Over
23.1 Delivery after Term 14
23.2 Effect of Holding Over; Rent 15
Article 24. Condemnation
24.1 All of Premises Taken 15
24.2 Less Than All of Premises Taken 15
24.3 Property Taken 15
24.4 Ownership of Award 15
24.5 Conflicts 15
Article 25. Landlord's Right to Relocate Premises
25.1 Conditions on Landlord's Right to Relocate Premises 15
25.2 Landlord's Right to Terminate 16
Article 26. Miscellaneous
26.1 Interpretation 16
26.2 Relationship of Parties 16
26.3 Notices 16
26.4 Successors 16
26.5 Broker's Commission 16
26.6 Unavoidable Delays 16
26.7 Entire Agreement 17
26.8 Other Tenants 17
26.9 Applicable Law 17
26.10 Waiver 17
26.11 Accord and Satisfaction 17
26.12 Landlord's Self-Help 17
26.13 Recording 17
26.14 Joint and Several Liability 17
26.15 Execution of Lease 17
26.16 Waiver of Jury Trial and Counterclaim 18
26.17 Radon Gas 18
26.18 Time of the Essence 18
26.19 Tenant and Guarantor Financial Statements 18
Article 27. Security Deposit
27.1 Security 18
27.2 Transfer of Deposit 18
Exhibits & Attachments
(a) Exhibit "A" - Legal Description of the entire Property.
(b) Exhibit "B" - Site plan of entire Property.
(c) Exhibit "C" - Description of Tenant's Work.
(d) Exhibit "C-1" - Description of Landlord's Work
(e) Exhibit "C-2" - Sign Criteria.
(f) Exhibit "D" - Guaranty Agreement.
(g) Exhibit "E" - Exclusive.
(h) Exhibit "F" - Environmental Indemnification Compliance.
(i) Exhibit "G" - Notice to Contractor, Memorandum of Lease.
(j) Exhibit "H" - Landlord's Personal Property.
(k) Exhibit "I" - Forklift Use Agreement.
(I) Exhibit "J"- Lease Extension Agreement.
LEASE
THIS LEASE made as of the 22nd day of December, 1998, by and between SEAGATE
LAND TRUST, XXXXXX X. XXXXXX, Trustee, (herein called "Landlord"), and TREASURE
COAST BOATING CENTER, INC., (herein called "Tenant").
For and in consideration of the sum of Ten and No/1 00 Dollars ($10.00) and
other valuable considerations, including the mutual covenants and agreements of
the Parties, Landlord leases to Tenant and Tenant leases from Landlord the
premises described herein for the term and subject to the terms and conditions
set forth herein.
ARTICLE 1. INTRODUCTORY PROVISIONS
1.1 FUNDAMENTAL LEASE PROVISIONS. Certain fundamental provisions are presented
in this Section in summary form to facilitate convenient reference by the
parties hereto:
(a) Tenant's Name: TREASURE COAST BOATING CENTER, INC.
(Section 7.1)
(b) Term: Three (3) years
(Section 3.1)
(c) Premises Space Number: New Boat Sales Area,
Used Boat Sales Area &
Maintenance Building (1st Floor Only)
(Exhibit "B")
(d) GLA in Premises:Exact Square Footage
Unknown - See Exhibit "B" (Section 1.5)
(e) GLA in Landlord's Building: N/A Square Feet
(Section 1.5)
(f) Tenant's Proportionate Share: N/A(GLA in the Premises divided
by GLA in Landlord's Building; at commencement Date %.)
(g) Minimum Monthly Rent: $1 5,000.00
plus applicable sales tax (Section 4.2)
(h) Minimum Annual Rent: CPI however, not less than 3% nor
Cumulative yearly increases more than 8%
(i) Percentage Rent: None
(Section 4.4)
(j) Tenant Buildout Period: None
(Section 2.5)
(k) Use: New boat sales, used boat sales, consignment
boat sales, boat brokerage, marine service and
repair, and marine engine and propulsion system parts
(Article 7)
(l) Guarantor(s): Mr. D. Xxxxxx Xxxxx
(if none, so state) (Exhibit "D")
(m) Default rate:The greater of twelve percent (12%)
per annum or the maximum lawful rate of interest
under the
laws of the state in which the Premises is located
whichever is greater.
(n) Security Deposit: TRANSFERRED
(Section 27.1)
(o) Estimated Common Area Costs: $ None - Gross Lease
(Article 8)
(p) Estimated Property Taxes for: $ None - Gross Lease
Landlord's Property
(Article 5)
(q) Estimated Insurance for: $ None - Gross Lease
Landlord's Property (Article 11)
(r) Estimated Monthly
Payments Required
Minimum Rent $ 15,000.00
Additional Rent $ 0.00
Common Area Costs $ 0.00
Taxes $ 0.00
Insurance $ 0.00
Other $ 0.00
Total Month Additional Rent $ 0.00
State and County Sales Tax $ 900.00
Total Monthly Payment
at Commencement Date $ 15,900.00
(5) Address for Notice:
To Landlord: Tequesta Marine, Inc.
00000 Xxxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
To Tenant: Treasure Coast Boating Center, Inc.
000 X. Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
(t) Additional Provisions: Landlord to provide certain personal property
owned by Landlord for use by Tenant pursuant to the terms and conditions of
Exhibit "H", Landlord's Personal Property, attached hereto and made part hereof
by reference; Landlord shall make available a marina forklift owned and operated
by Landlord for non-exclusive use by Tenant pursuant to the terms and conditions
of Exhibit "I", Forklift Use Agreement, attached hereto and made part hereof by
reference;
LEASE PROVISIONS
1.2 REFERENCES AND CONFLICTS. References appearing in Section 1.1 are to
designate some of the other places in this lease where additional provisions
applicable to the particular Fundamental Lease Provisions appear. Each reference
in this Lease to any of the Fundamental Lease Provisions contained in Section
1.1 shall be instructed to incorporate all of the terms provided for under such
provisions, and such provisions shall be read in conjunction with all other
provisions of this Lease applicable Thereto. If there is any conflict between
any of the Fundamental Lease Provisions set forth in Section 1.1 and any other
provision of this lease, the latter shall control.
1.3 EXHIBITS. The following drawings and special provisions are attached
hereto as exhibits and hereby made a part of this Lease:
(a) Exhibit "A" - Legal Description of the entire Property as presently
constituted.
(b) Exhibit "B" - Site plan of entire Property.
(c) Exhibit "C" - Description of Tenants Work and work to be performed by
Landlord, if any, in the Premises. (d) Exhibit "C-1" - Description of Landlord's
Work, if any.
(e) Exhibit "C-2" - Sign Criteria.
(f) Exhibit "D" - Guaranty Agreement (not an exhibit unless Guarantor is
named in Section 1.1). "Guarantor" means the guarantor or guarantors named in
Section 1.1.
(g) Exhibit "E" - Exclusive.
(h) Exhibit "F" - Environmental Indemnification Compliance.
(j) Exhibit "G" - Notice to Contractor, Memorandum of Lease.
(j) Exhibit "H" - Landlord's Personal Property.
(k) Exhibit "I" - Forklift Use Agreement.
(l) Exhibit "J"- Lease Extension Agreement.
1.4 THE PROPERTY; THE LANDLORDS SITE; LANDLORD'S BUILDING. The "Property'
means the land described in Exhibit "A" and improvements hereon constituting an
integrated retail and marina facility, as the same may be modified from time to
time. The structure or structures shown on Exhibit "B" as "Landlord's Building",
as the same may be altered, reduced or expanded from time to time, is
hereinafter called the "Landlord's Building." The owners of the Property may at
any time and from time to time change the shape, size, location, number, height
and extent of the improvements in the Property and eliminate or add any
improvements to any portion of the Property and add land thereto or eliminate
land therefrom. Notwithstanding the foregoing, to the extent that the actual
area of Tenant's Premises, as detailed in Exhibit "B", is reduced pursuant to
such a change by Landlord, Tenant's Rent and other charges shall also be reduced
accordingly.
1.5 GROSS LEASABLE AREA.
(a) At the Commencement Date, GLA means, with respect to the Premises, the
number of square feet set forth in section 1 .1(d) and, with respect to the
Landlord's Building, the number of square feet set forth in section 1.1(e). GLA
will change with additions or deletions to the Landlord's Building or the
Premises.
(b) If additions or deletions are made to the Premises or Landlord's
Building and it becomes necessary to determine the GLA of the modified space,
GLA is defined as the actual number of square feet of area on all levels for the
exclusive use and occupancy by the occupant thereof, including, without
limitation, any mezzanines used for the sale of goods or services and any
basements and balconies (but excluding Common Areas and excluding stock
mezzanines and Property management office space) measured from the exterior face
of exterior walls, the exterior face of service corridor walls and the
centerline of interior demising walls. No deduction shall be made for columns,
stairs, elevators or any interior construction or equipment.
ARTICLE 2. PREMISES
2.1 LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the premises for the Term, at the rent, and upon the
covenants and conditions herein set
forth.
2.2 PREMISES DEFINED. The term "Premises" means The space situated in The
Landlord's building and around the Landlord's building as such area is shown
cross-hatched in Exhibit "B". With respect to building area, the "Premises"
shall consist of the space there at within the walls, structural floor and the
bottom of the roof of the Landlord's Building excepting the second and third
floor of the building known as the "maintenance building". With respect to areas
around the building areas such as, without limitation, the parking lot areas of
Landlord, Tenant agrees that such areas shown cross-hatched in Exhibit "B" will
be included in the "Premises" so long as Tenant's use does not significantly
impair vehicular and forklift traffic to and from Landlord's other buildings and
structures. Tenant shall not construct any mezzanines (including stock
mezzanines) without Landlord's written consent.
2.3 DELIVERY OF PREMISES. Landlord agrees to deliver to Tenant, and Tenant
agrees to accept from Landlord, possession of the Premises when Landlord advises
Tenant in writing that the Landlord's Work in the Premises (if any) has been
sufficiently completed to permit Tenant's Work to begin or Tenant takes
possession of the Premises, whichever first occurs, and Landlord's notice
thereof shall constitute such delivery of the Premises without further act by
either party. On said delivery of Premises to the Tenant and the commencement of
the Tenant's work, the Tenant shall execute and deliver to the Landlord a
Certificate of Estoppel noting the date of delivery and rental commencement
date. Failure to deliver said Estoppel in accordance with Section 21.1 hereof
shall be considered an event of Tenant default.
2.4 OPENING OF PREMISES. On or before delivery of possession of the
Premises to Tenant, Tenant shall commence that Tenant's Work specified in
Exhibit "C", if any, diligently and continually proceed to completion in
accordance with the Lease, and open for business on or before the Commencement
Date specified in Section 1.1 (j). By opening for business, Tenant shall be
deemed to have acknowledged that all work required to be preformed by Landlord
in connection with the premises and any and all other obligations to be
preformed by Landlord on or before the opening of the Premises have been fully
performed.
2.5 POSSESSION. Tenant agrees that it shall, with due diligence and all
reasonable commercial promptness, proceed to install such fixtures and equipment
to perform such work as shall be necessary or appropriate in order to prepare
The Demised Premises for the opening of business. The work to be performed by
the Tenant is set forth on Exhibit "C" which is appended hereto and incorporated
herein by reference. The agreement of Landlord and Tenant concerning
construction of the Demised Premises is set forth in Exhibit "C and C-2" which
is appended hereto and incorporated herein by reference. In the event that, for
whatever reason, Tenant does not fully open the Demised Premises for the conduct
of its business as set forth in Article 3 hereof within the period of time noted
in 1.1 (j) after receiving delivery of the Demised Premises from Landlord, as
provided in Paragraph 2.3 hereof, Landlord, in addition to all other remedies
given to it hereunder, shall have the option of terminating this Lease by giving
Tenant written notice of such termination; and in such event this Lease shall be
terminated unless by the date of the giving of said written notice, Tenant shall
have actually opened the Demised Premises for the conduct of its business.
ARTICLE 3. TERM
3.1 TERM OF THIS LEASE. The Term of this Lease shall commence on the
earlier of the date on which the Tenant opens for business or the date specified
in Section 1.1 (j) (the "Buildout Period") and shall continue for the number of
months or years set forth in Section 1.1(b).
ARTICLE 4. RENT
4.1 TENANT'S AGREEMENT TO PAY RENT. Tenant hereby agrees to pay Minimum
Rent and Additional Rent. The term "Rent" includes the Minimum Rent and
Additional Rent.
4.2 MINIMUM RENT. The minimum amount of rent Tenant shall pay Landlord for
The first Lease Year is the amount set forth in Section 1.1(r). (the "Minimum
Rent"). Minimum Rent for the period from the Commencement Date to the first day
of the month following such date shall be prorated on a daily basis and shall be
payable with and in addition to the first installment of Minimum Rent. The
Minimum Rent for each Lease Year shall be payable in monthly
installments, in advance, on the first day of each calendar month. The
first installment of Minimum Rent shall be due on execution of this Lease by
Tenant.
4.3 LEASE YEAR DEFINED. The "First Lease Year" means the period beginning
on the Commencement Date and ending on the last day of the twelfth full calendar
month thereafter. "Lease Year" means each successive twelve (12) month period
after the First Lease Year occurring during the term.
4.4 MINIMUM ANNUAL RENT CUMULATIVE INCREASES. Commencing The second Lease
Year and continuous yearly thereafter, the minimum annual rent shall increase an
amount equal to the previous year's minimum rent multiplied by the current
Consumer Price Index however, the increase shall not be less than 3% nor more
than 8%, payable as outlined in Section 4.2.
4.5 PERCENTAGE RENT. Percentage Rent is not paid or collected as a part of
this Lease.
4.6 MONTHLY PAYMENT OF PERCENTAGE RENT; YEAR-END ADJUSTMENT. Percentage
Rent is not paid or collected as a part of this Lease.
4.7 GROSS SALES: Tenant is not required to report gross sales as a
condition of this Lease
4.8 TENANTS RECORDS AND STATEMENTS OF GROSS SALES. Tenant is not required
to report gross sales as a condition of this Lease
4.9 ADDITIONAL AUDIT RIGHTS. N/A
4.10 ADDITIONAL RENT. Tenant shall pay, as additional rent (herein
sometimes collectively called "Additional Rent") all sums of money or charges of
whatsoever nature (except Minimum Rent and Percentage Rent) required to be paid
by Tenant to Landlord pursuant to this lease, whether or not the same is
designated as "Additional Rent."
4.11 WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTION; LATE CHARGE. Rent
payable by Tenant under this Lease shall be paid to Landlord on or before the
first day of each month without prior demand therefor (except where such prior
demand is expressly provided for in this Lease), without any deductions, set
offs or counterclaims whatsoever, at the place to which notices are to be sent
to Landlord pursuant to Section 26.3 or to such payee and at such place as may
be designated by Landlord to Tenant in writing at least ten (10) days prior to
The next ensuing Minimum Rent installment payment date. If any payment of Rent
or other charges due hereunder is not received by Landlord in good funds on or
before the seventh (7) day of the month, Tenant will pay to Landlord the default
rate Section 1.1(m) in addition to the amount due. In addition to such interest,
if Tenant shall fail to pay any monthly installment of rent by the seventh (7)
day of the month, a "late charge" equal to one (1.0%) of said monthly
installment of rent shall be assessed. Furthermore, if Tenant shall pay rent
with a bank draft without sufficient funds in his account when presented for
payment, then said installment shall be considered late and Tenant shall be
subject to the "late charge" detailed herein plus the amount charged to the
Landlord by its bank for processing the non-sufficient fund bank draft.
ARTICLE 5. TAXES AND ASSESSMENTS
5.1 TENANT'S PROPORTIONATE SHARE OF TAXES. Tenant shall not be responsible
for the payment to Landlord, as Additional Rent, Tenants Proportionate Share of
all real estate and other ad valorem taxes and assessments of every kind and
nature (including, but not limited to, general and special assessments, foreseen
as well as unforeseen) with respect to the land described on Exhibit "A" and
improvements located thereon.
5.2 PAYMENT BY TENANT. N/A
5.3 RENT TAX. Should any governmental taxing authority acting under any
present or future law, ordinance or regulation levy, assess or impose a tax,
excise or assessment (other than an income or franchise tax) upon or against or
measured by the Rent, or any part of it, Tenant shall pay such tax, excise
and/or assessment when due or shall on demand reimburse Landlord for the amount
thereof, as the case may be.
ARTICLE 6. TENANT'S CONDUCT OF BUSINESS
6.1 HOURS. Tenant agrees that, from and after the Commencement Date, Tenant
will keep its entire store in The Premises open for business with the public
daily during such hours as are customary in the Property (including Saturday
hours), but in no event shall Tenant be required to be open for business on New
Year's Day, Christmas, Thanksgiving or, or before 7:30 a.m. or after 7:30 p.m.
on any day. The requirements of this Section shall not be applied when the
Tenant is prevented from operating by strike, casualty, governmental regulation,
or cause beyond the reasonable control of Tenant.
ARTICLE 7. USE OF PREMISES
7.1 SOLE USE AND TRADE NAME. Tenant shall use the Premises for the purpose
specified in Section 1.1(k) and for no other purpose whatsoever and shall
conduct its business in the Premises solely under the trade name specified in
Section 1.1(a).
7.2 REQUIREMENTS AND RESTRICTIONS. Except as specifically allowed and
detailed in Exhibit "C2", Tenant agrees that it:
(a) will not, without Landlord's consent, conduct or permit to be conducted
any auction, fire, bankruptcy or going-out-of-business sales, or similar type
sale, in connection with the Premises; provided however, that this provisions
shall not restrict the absolute freedom of Tenant to determine its own selling
prices nor shall it preclude the conduct of periodic seasonal, promotional or
clearance sales;
(b) will not use or permit the use of any apparatus for sound reproduction
or transmission or of any musical instrument in such manner that the sounds so
reproduced, transmitted or produced shall be audible beyond the interior of the
Premises; will not utilize an advertising medium within the Property which can
be seen, heard or experienced outside Premises, including, but not limited to,
flashing lights, search lights, loudspeakers, phonographs, radio, or television;
will not display, paint or cause to be displayed, painted or placed, any
handbills, bumper stickers or other advertising devices on any vehicle parked in
the parking area of the Property, will not distribute, or cause to be
distributed, in the Property any handbills or other advertising devices; and
will not conduct or permit any activities that might constitute a nuisance;
(c) will keep all mechanical apparatus free of vibration and noise which
may be transmitted beyond the confines of the Premises; will not cause or permit
strong, unusual, offensive, or objectionable noise, odors, fumes, dust or vapors
to emanate or be dispelled from the Premises; will not burn trash or store or
permit accumulations of any trash, garbage, rubbish or other refuse outside of
the Premises except on compactors or other receptacles approved by Landlord;
(d) will not load or permit the loading or unloading of merchandise,
supplies or other property, nor ship, nor receive, outside the area entrance
designated therefor by Landlord from time to time; will not permit the parking
or standing, outside of said area, of trucks, trailers or other vehicles or
equipment engaged in such loading or unloading in a manner to interfere with the
use of Common Areas or any pedestrian or vehicular use and good real estate
management practice;
(e) will not paint or decorate any part of the exterior of the premises, or
change the architectural treatment thereof, or install any visible productive
devices such as burglar bars or security shutters or window tinting, without
first obtaining Landlord's written approval; and will remove promptly upon order
of Landlord any paint, decoration or protective device which has been applied to
or installed upon the exterior or the Premises without Landlord's prior
approval, or take such other action with reference thereto as Landlord may
direct;
(I) will keep the inside and outside of all glass in the doors and windows
of the Premises clean; will not place or maintain any merchandise, vending
machines or other articles in the vestibule or entry of the Premises, on the
foot walks adjacent thereto or elsewhere on the exterior thereof; will maintain
the Premises at its own expense in a clean, orderly and sanitary condition and
free of insect, rodents, vermin and other pests; and will keep refuse in proper
containers on the interior of the Premises until removed from the Premises;
(g) will comply with all laws, rules, regulations, orders and guidelines
relating to the Premises and will not use or permit the use of any portion of
the Premises for any unlawful purpose;
(h) will not place, permit or maintain on the exterior walls or roof of the
Premises any sign, advertising matter, decoration, lettering, insignia, emblems,
trademark or descriptive material (herein called "Signs") and will not permit
any Signs to remain or be placed on any window or door or the Premises unless
the same have been approved in writing by Landlord; and will maintain any and
all Signs as may be approved in good condition and repair at all times, Landlord
reserving the right to do so at Tenant's expense if Tenant fails to do so after
five (5) days' notice from Landlord;
(i) will keep the display windows in the Premises electrically lighted and
any and all electric signs lighted during all other periods that a majority of
tenants are open for business in the Property; and
(j) will not use the sidewalks adjacent to the Premises, or any other space
outside of the Premises, for the sale of display of any merchandise or for other
business, occupation or undertaking.
7.3 EFFECT ON LANDLORD'S INSURANCE. Tenant shall not do or suffer to be
done, or keep or suffer to be kept, anything in, upon or about the Premises
which will contravene Landlord's policies insuring against loss or damage by
fire or other hazards, or which will prevent Landlord from procuring such
policies in companies acceptable to Landlord, or which will cause an increase in
The insurance rates upon any portion of the Property. If Tenant violates any
prohibition provided for in The first sentence of This Section, Landlord may,
without notice to Tenant, correct the same at Tenant's expense. Tenant agrees to
pay to Landlord as Additional Rent on demand the amount of any increase in
premiums for insurance resulting from any violation of the first sentence of
this section, even if Landlord shall have consented to the doing of or keeping
of anything on the premises which constitutes such a violation (but the payment
of such Additional Rent shall not entitle Tenant to violate the provisions of
the first sentence of this Section).
ARTICLE 8. COMMON AREAS
8.1 USE BY TENANT; MAINTENANCE. Tenant and its employees and invitees are,
except as otherwise specifically provided in this Lease, authorized, empowered
and privileged during the Term to use Common Areas for their respective intended
purposes in common with other persons. Notwithstanding the foregoing, Common
Areas shall explicitly not be used for storage of any kind, including, but not
by way of limitation, the storage of boats, trailers, automobiles, etc. Tenant
hereby acknowledges that Tenant's use of Common Area Parking Lot not within
Tenant's demised area as described in Exhibit B is allowed at the discretion of
the Landlord and may be terminated at any time with twenty-four (24) hour
notice. Landlord's discretion in this matter is sole and absolute and Landlord's
right of termination may not be waived by any act, whether voluntary or
involuntary. Landlord agrees to maintain the Common Areas in good condition and
keep the same property lighted (at a candlepower reasonable for security type
lighting) during periods that a majority of the GLA in the Property is open for
a reasonable period thereafter.
8.2 COMMON AREAS DEFINED. "Common Areas" means all areas, facilities, and
improvements provided in the Property from time to time for the convenience and
use of patrons of the Property, and shall include but not be limited to, the
parking areas and facilities, sidewalks, stairways, service corridors, truck
ways, ramps, loading docks, delivery areas, landscaped areas, access and
interior roads, and lighting faculties.
8.3 RULES AND REGULATIONS. Tenant agrees to comply with such reasonable
rules and regulations as Landlord may deem necessary or advisable for the proper
and efficient use, operation and maintenance of the Common Areas, provided that
all rules and regulations affecting Tenant and its invites and employees shall
apply equitably and without discrimination to all Tenants of Landlord's
Building.
8.4 LANDLORD'S CONTROL. Landlord shall at all times during The term have
The sole and exclusive control, management and direction of the Common Areas,
and may at any time and from time to time during the Term exclude and restrain
any person from use or occupancy
thereof, excepting, however, Tenant and other tenants of Landlord and bona
fide invites of either who make use of the said areas in accordance with the
rules and regulations established by Landlord from time to time with respect
thereto. The rights of Tenant in and to the Common Areas shall at all times be
subject to the rights of others to use the same in common with Tenant. Landlord
may, at anytime, and from time to time close all or any portion of the Common
Areas to make repairs or changes and, to the extent necessary in the opinion of
the Landlord, to prevent a dedication thereof or the accrual of any rights to
any person or to the public therein. Landlord shall have the sole and absolute
right to determine the location of the Common Areas and to change the location,
size and/or boundaries at anytime. Landlord may close temporarily any or all
portions of The Common Areas to discourage non-customer parking and use and to
do and perform such other acts in and to the Common Areas as, in the exercise of
good business judgment, Landlord shall determine to be advisable with a view to
the improvement of the convenience and use thereof by occupants and tenants,
their employees and invites.
8.5 EMPLOYEE PARKING. Landlord may from time to time designate a particular
parking area or areas to be used by its tenants. If it does so, Tenant and its
employees shall park their vehicles only in those portions of the Property
designated for that purpose by Landlord. Tenant shall furnish Landlord with a
list of Tenant's and its employees' vehicle license numbers within fifteen (15)
days after Landlord delivers possession of the Premises, and Tenant shall
thereafter notify Landlord of any and all changes, additions and deletions to or
from such list within five (5) days after each such change occurs. If Tenant or
any of its employees fail to park their vehicle in designated parking areas,
Landlord may give Tenant notice of such violation and, if the violation is not
corrected within two (2) days after said notice is given, Tenant shall pay to
Landlord an amount equal to ten Dollars ($10.00) per day for each violating
vehicle calculated from and including the day on which notice was given, to and
including the day when all violations by Tenant and its employees cease. If,
from time to time after such cessation, Tenant or any of its employees violate
this Section. Landlord need not give Tenant any further notice of violation, and
the said Ten Dollars ($10.00) per day violating vehicle charge shall commence
against Tenant for each violating vehicle immediately upon such further
violation and run until such violation ceases. All amounts due under the
provisions of this Section shall be payable by Tenant on demand as Additional
Rent within ten (10) days after demand therefor. Tenant hereby authorizes
Landlord to tow or haul away from the Property all violating vehicles belonging
to Tenant or its employees, or to attach violation notices to such cars, or to
do both, and if such right is exercised agrees to reimburse Landlord for the
cost of doing so. Tenant shall notify each of its employees of the provisions of
this Section prior to their commencing any employment connection with the
Premises.
8.6 LANDLORD'S USE OF COMMON AREAS. Landlord shall at all times have the
right to utilize the Common Areas, or any part thereof, for promotions,
exhibits, carnival type shows, rides, outdoor shows, displays, and other product
shows, the leasing of kiosks and food facilities, landscaping, decorative items,
and any other use which, in Landlord's judgment, tends to attract customers to
or benefit the customers of the Property and does not materially interfere with
Tenant's business or the parking available for use by Tenant's customers.
8.7 COMMON AREA COSTS. Common Area Costs are not paid or collected as a
part of this Lease.
8.8 TENANT'S PROPORTIONATE SHARE OF COMMON AREA COSTS. Common Area Costs
are not paid or collected as a part of this Lease.
ARTICLE 9. HAZARDOUS SUBSTANCES
9.1 RESTRICTION ON USE. Tenant shall not use or permit the use of the
Premises for the generation, storage, treatment, use, transportation, handling
or disposal of any chemical, material or substance which is regulated as toxic
or hazardous or exposure to which is prohibited, limited or regulated by any
governmental authority, or which, even if not so regulated, may or could pose a
hazard to the health or safety of persons on The Premises or other tenants or
occupants of the Property or property adjacent Thereto, and no such chemical,
material or substance shall be brought unto the Premises without the Landlord's
express written approval. Tenant agrees that it will at all times observe and
abide by all laws and regulations relating to the handling of such materials and
will promptly notify landlord of (a) the receipt of any warning notice, notice
of violation, or complaint received from any governmental agency or third party
relating to
environmental compliance and (b) any release of hazardous materials on the
Premise. Tenant shall carry out, at its sole cost and expense, any relegation
required as a result of the release of any hazardous substance by Tenant or by
Tenant's agents, employees, contractors or invites, from the Premises.
Notwithstanding the foregoing, the Tenant shall have the right to bring on to
the Premises reasonable amounts of cleaning materials and the like necessary for
the operation of the Tenant's business, but Tenant's liability with respect to
such materials shall be as set forth in this Article.
9.2 LANDLORD'S REPRESENTATION. Landlord represents that it has no actual
knowledge of any toxic or hazardous substance (as described in Section 9.1) on
the Premises as of the date of this Lease.
9.3 INDEMNIFICATION. Tenant agrees to indemnify and save the Landlord
harmless from all liability, costs and claims, including attorneys' fees,
resulting from any environmental contamination on the Premises caused by Tenant
or its agents, contractors, employees or invites, including the cost of
relegation and defense of any action for any violation of the provisions of
Section 9.1.
9.4 SURVIVAL. The provisions of this Article shall survive the termination
of this lease.
ARTICLE 10. ALTERATIONS TO PREMISES
10.1 ALTERNATIONS; MEZZANINES; DAMAGES. Tenant shall make no structural
alterations, additions, or changes in or to the Premises without Landlord's
prior written consent, which may or may not be withheld at Landlord's sole
option. In no event shall Tenant make or cause to be made any penetration
through any roof, floor or exterior or corridor wall without the prior written
consent of Landlord. Tenant shall be responsible for any and all damages
resulting from any alteration, addition or change Tenant makes, whether or not
Landlord's consent therefor was obtained. Any and all alterations, additions and
changes made to the Premise which are consented to by Landlord shall be made
under the supervision of a competent licensed architect or competent licensed
structural engineer and in accordance with plans and specification approved in
writing by the Landlord before the commencement of the work and all necessary
governmental approvals and permits, which approvals and permits Tenant shall
obtain at its sole expense. All work with respect to any alterations, additions
and changes must be done in a good and workmanlike manner and diligently
prosecuted to completion to the end that the Premises shall at all times be a
complete unit except during the period of the work. Any and all work done by
Tenant without Landlord's consent shall be returned to its original condition at
Tenant's expense upon request by Landlord.
10.2 COMPLIANCE WITH LAWS. Any permitted changes, alterations and additions
made by Tenant shall be performed strictly in accordance with applicable laws,
rules, regulations and building codes relating thereto. Tenant shall have the
work performed in such a manner so as not to obstruct the access to the Premises
or to the premises of any other tenant or obstruct the Common Areas.
10.3 INSURANCE AND RECONSTRUCTION. In the event Tenant shall make any
alterations, additions or changes to the Premises, none of such alterations,
additions or changes need be insured by Landlord under such insurance as
Landlord may carry upon the Landlord's building, nor shall Landlord be required
under any provisions of this Lease to reconstruct or reinstall any such
alterations, additions or changes in the event of casualty loss.
ARTICLE 11. LIABILITY. INDEMNITY AND INSURANCE
11.1 LANDLORD'S LIABILITY. Landlord shall not be liable for any damage or
liability of any kind or for any injury to or death of any persons or damage to
any property on or about the Premises from any cause whatsoever.
11.2 INDEMNIFICATION BY TENANT. Tenant hereby agrees to indemnify and save
Landlord harmless from all claims, actions, demands, costs and expenses and
liability whatsoever, including any reasonable attorneys' fees, on account of
any damage or liability occasioned in whole or in part by any use or occupancy
of the Premises or by any act or omission of Tenant, its agents, contractors,
servants, employees or invites. Tenant shall not be liable for damage or injury
occasioned by the affirmative negligence or willful acts of the Landlord or
its agents, contractors, servant or employees unless such damage or injury
arises from perils against which Tenant is required by this Lease to insure and
then only to the extent of such insurance.
11.3 MUTUAL WAIVERS. Landlord and Tenant hereby waive any rights they may
have against each other on account of any loss of damage occasioned to Landlord
or Tenant, as the case may be, their property, the Premises, its contents, or
arising from any risk covered by fire and extended coverage insurance. The
parties hereto each, on behalf of their respective insurance companies insuring
the property of either Landlord or Tenant against any such loss, waive any right
of subrogation that it may have against Landlord or Tenant, as the case may be.
This release shall be effective only so long as the applicable insurance
policies contain a clause to the effect that this release shall not affect the
right of the insured to recover under such policies. Each party agrees that its
insurance policies will include such a clause only for so long as it is
includable without extra cost or, if extra cost is chargeable therefor, only so
long as the other party pays such extra cost. If extra cost is chargeable
therefor, the party will advise the other of the amount thereof and the other
party may, but shall not be obligated to, pay such charge.
11.4 TENANT'S INSURANCE.
(a) Tenant agrees that, from and after the date of delivery of the Premises
to Tenant, Tenant will carry at its sole cost and expense the following types of
insurance, in the amounts specified and in the form hereinafter provided for:
(1) Public Liability and Property Damage Insurance covering the Premises
and Tenant's use thereof against claims for personal injury or death and
property damage including sudden and accidental coverage for environmental
and/or ecological damage and its remediation expenses occurring upon, in or
about the Premises (Tenant shall procure said insurance for sudden and
accidental environmental and/or ecological damage and its remediation expenses
and shall deliver copy of policy naming Landlord as insured and until such time,
Tenant's Guarantor, D. Xxxxxx Xxxxx shall provide an unlimited personal guaranty
for the risks that would be covered by such a policy. In the event that Tenant
fails to deliver the insurance or the guaranty amendment to Landlord by said
date, Landlord may terminate this Lease at its sole and complete option) such
insurance to afford protection to the limit of not less than $2,000,000.00 in
respect of injury or death of any number of persons arising out of any one
occurrence and such insurance against property damage to afford protection to
the limit of not less than $1,000,000.00 in respect to any instance of property
damage. The insurance coverage required under this Section 11 .4(a)(1) shall, in
addition, extend to any liability of Tenant arising out of the indemnities
provided for in Section 11 .2; and
(2) Tenant improvements and Property Insurance covering all of the items
owned by Tenant included in Tenant's Work, Tenant's leasehold improvements,
Tenants new and used boat inventory, trade fixtures, signage and Tenant's and
Landlord's personal property from time to time in, on or upon the Premises and,
to the extent not covered by Landlord's similar insurance, alterations,
additions or changes made by Tenant pursuant to Article 10, in an amount not
less than their full replacement cost from time to time during the Term,
providing protection against all perils, including, but not by way of
limitation, windstorm coverage, within standard forms of fire and extended
coverage insurance policy, together with insurance against sprinkler damage,
vandalism and malicious mischief. With the exception of proceeds from policies
insuring Tenants personal property and inventory which shall be made available
to Tenant, any policy proceeds from such insurance shall be held in trust by
Tenant for the repair, reconstruction, restoration or replacement of the
property damaged or destroyed, unless this Lease shall cease and terminate under
the provisions of Article 12.
(b) All policies of insurance provided for in Section 11.4(a) shall be
issued in a form acceptable to Landlord by insurance companies with general
policyholder's rating of not less than A and a financial rating of AAA as rated
in the most currently available "Best Insurance Report" and qualified to do
business in the state in which the Premises is located. Each such policy shall
be issued in the names of Landlord and Tenant and any other parties in interest
from time to time designated in writing by notice by Landlord to Tenant. Said
policies shall be for the mutual and Joint benefit and protection of Landlord
and Tenant and executed copies of each such policy of insurance or a certificate
thereof shall be delivered to Landlord within ten (10) days after delivery of
possession of the Premises to Tenant and thereafter within thirty (30) days
prior to the
expiration of each such policy. As often as any such policy shall expire or
terminate, renewal or additional policies shall be procured and maintained by
Tenant in like manner and to like extent. All such policies of insurance shall
contain a provision that the company writing said policy will give Landlord at
least thirty (30) days' notice in writing in advance of any cancellation, or
lapse, or the effective date of any reduction in the amounts, or insurance. All
such public liability, property damage and other casualty policies shall be
written as primary policies which do not contribute to and are in excess of
coverage which Landlord may carry. All such public liability and property damage
policies shall contain a provision that Landlord, although named as an insured,
shall nevertheless be entitled to recover under said policies for any loss
occasioned to it, its servants, agents and employees by reason of the negligence
of Tenant and shall contain minimum limits of $2,000,000.00 on account of bodily
injury or death as a result of and one accident occurrence or disaster and
$1,000,000.00 on account of damage to property. Any insurance provided for in
Section 11.4(a) may be effected by a policy of blanket insurance, covering
additional items or locations of insured; provided, however, that (i) Landlord
shall be named as an additional insured thereunder as its interest may appear;
(ii) the coverage afforded Landlord will not be reduced or diminished by reason
of the use of such blanket policy of insurance; (iii) any such policy or
policies except any covering the risks referred to in Section 11 .4(a)(1) shall
specific therein or Tenant shall furnish Landlord with a written statement from
the insurers under such policy specifying the amount of the total insurance
allocated to the "Tenant Improvements and Property" more specifically detailed
in Section 11 .4(a)(2); and (iv) the requirements set forth herein are otherwise
satisfied.
(c) Tenant agrees to permit Landlord at all reasonable times to inspect the
policies of insurance and require full copies of same by Tenant for any and all
policies of Tenant covering risks upon the Premises for which policies or exact
and full copies thereof are not previously delivered to Landlord.
11.5 LANDLORD'S INSURANCE.
(a) Landlord shall at all times during the Term maintaining in effect a
policy or policies on insurance covering the Landlord's Building and the Common
Areas (excluding Tenant improvements and property required to be insured by
Tenant pursuant to Section 11.4 (a)(2) in an amount not less than the full
replacement cost (exclusive of the cost of excavations, foundations and
footings), providing protection against perils included within standard forms of
fire and extended coverage insurance policies, together with insurance against
sprinkler damage, vandalism, and malicious mischief, and such other risks as
Landlord may from time to time determine and with any such deductible as
Landlord may from time to time determine and public liability insurance in such
amounts as Landlord deems to be reasonable.
(b) Landlord may carry rent insurance with respect to the Premises in an
aggregate amount equal to not more than twelve (12) times the sum of (i) the
monthly requirement of Minimum Rent, plus (ii) the sum of the amounts estimated
by Landlord to be payable by Tenant for Additional Rent and Percentage Rent for
the month immediately prior to the month in which the policy is purchased or
renewed.
(c) Any insurance provided for in Sections 11 .5 (a) or (b) may be effected
by a policy or policies of blanket insurance, covering additional items or
locations of insured, provided that the requirements of Section 11.5(a) and
otherwise satisfied.
(d) Tenant shall not be required to pay Tenant's Proportionate Share of
premiums for the insurance provided for in this Article. Tenant shall have no
rights in any policy or policies maintained by Landlord and shall not, by reason
of payment by Tenant of its proportionate share, if any, of the premium for such
insurance be entitled to be a named insured thereunder.
11.6 COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS. Tenant and
Landlord, respectively, represent to each other that each has no knowledge of
any existing violation with any insurance underwriters, public or private body
or governmental authority as of the date hereof. Tenant agrees at its own
expense to comply with all recommendations and requirements with respect to the
Premises, or its use or occupancy, of the insurance underwriters and any similar
public or private body, and any governmental authority having jurisdiction over
insurance rates with respect to The use of occupancy of the Property, including,
but not limited to, installation of fire extinguishers or automatic dry chemical
extinguishing systems, any changes, modifications or alterations in the
sprinkler system or additional sprinkler heads or the location of partitions,
trade fixtures or other contents of the Premises. Notwithstanding the foregoing,
Tenant shall not be responsible for the cost, if any, associated with the
correction of any problem or requirement in existence as of March 5,1997
relating to the "Used Boat Area" previously leased to Seagate Marine Sales, Inc.
11.7 LIMIT OF LANDLORD'S RESPONSIBILITY. Landlord shall not be responsible
or liable to Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying space in any other part of the
Property, or for any loss or damage resulting to the Tenant or its property from
bursting, stoppage or leaking of water, gas, sewer or steam pipes or for any
damage caused by water leakage, or loss of property within the Premises from any
cause whatsoever except Landlord's gross negligence or willful acts.
ARTICLE 12. RECONSTRUCTION
12.1 LANDLORD'S DUTY TO RECONSTRUCT. In the event that less than 25% of the
area comprising Landlord's Building that is leased to Tenant is damaged or
destroyed by any of the risks against which Landlord has procured insurance,
regardless of said insurance, Landlord shall be required to commence to repair,
reconstruct and restore or replace Landlord's Building provided that Landlord is
able to obtain all necessary permits and local and governmental approvals
therefor. However, in no event shall Landlord be liable for interruption to
business of Tenant or for damage to or repair, reconstruction, restoration or
replacement of any of those things which Tenant is required to insure pursuant
to Section 11 .4(a)(2).
12.2 TENANT'S DUTY TO RECONSTRUCT. If any item which Tenant is required to
insure pursuant to Section 11.4 (a)(2) is damaged or destroyed by any of the
risks referred to therein, Tenant shall, within one hundred twenty (120) days
thereafter (unless Landlord terminates this Lease pursuant to Section 12.3),
commence to repair, reconstruct and restore or replace said matters and
prosecute the same diligently to completion.
12.3 LANDLORD'S RIGHT TO TERMINATE. Landlord shall have the option to
terminate this Lease upon giving written notice to Tenant of exercise thereof
within thirty (30) days after the Landlord's Building is damaged or destroyed
if:
(a) no part of the Premises remains tenantable after damage or destruction
thereof from any cause; or
(b) the damage or destruction of the Landlord's Building occurs within the
last (2) months of the Lease Term; or
(c) twenty five percent (25%) or more of the area comprising Landlord's
Building that is leased to Tenant immediately after the damage or destruction is
rendered untenantable;
Unless terminated, this Lease shall continue in full force and effect, and
Landlord and Tenant shall perform their respective obligations under Sections
12.1 and 12.2 Upon any termination of this Lease under any of the provisions of
this Section, the Rent shall be adjusted as of the date of such termination and
the parties shall be released therefrom without further obligation to the other
party coincident with the surrender of the possession of the Premises to the
Landlord, except for items which have theretofore accrued and are then unpaid.
12.4 ABATEMENT OF RENT. If this Lease is not terminated by Landlord
pursuant to Section 12.3 and if the Premises have been rendered wholly or
partially untenantable by such damage or destruction, then the Minimum Rent and
the Additional Rent payable by Tenant under this Lease during the period the
Premises are untenantable shall be abated in direct proportion to the percentage
of the GLA in the Premises which is untenantable.
12.5 TENANT'S RIGHT TO TERMINATE. If Landlord chooses to restore and fails
to commence the restoration within 120 days after the casualty, Tenant shall
have the right to terminate this Lease by notice to Landlord given prior to
Landlord's commencement of construction.
ARTICLE 13 MAINTENANCE OF PREMISES
13.1 LANDLORD'S DUTY TO MAINTAIN. Landlord will keep the exterior walls,
roof, structural columns and structural floor or floors (excluding outer floor
and floor coverings, walls installed at the request of Tenant, doors, windows
and glass) in good repair. Notwithstanding the foregoing provisions of this
Section, Landlord shall not in any way be liable to Tenant on account of its
failure to make repairs unless Tenant shall have given Landlord written notice
of the necessity for such repairs and has afforded Landlord a reasonable
opportunity to effect the same after such notice and provided that any damage
arising therefrom shall not have been caused by the negligence or willful act or
omission of Tenant, its concessionaires, offices, employees, licensees or
contractors (in which event Tenant shall be responsible therefor) or have been
caused to any of the items Tenant is required to insure pursuant to Article 11.
13.2 TENANT'S DUTY TO MAINTAIN. Tenant will, at its own cost and expense,
maintain the Premises (except that part Landlord has agreed to maintain) and the
Landlords Personal Property in Exhibit "H" in good and tenantable condition, and
make all repairs to the Premises, personal property and every part thereof as
needed. Tenant's obligations under this Section shall include, but not be
limited to, modifying, repairing and maintaining items as are required by any
governmental agency having jurisdiction thereof (whether the same is ordinary or
extraordinary, foreseen or unforeseen), interior walls and glass, and the
interior portions of exterior walls, ceilings, utility meters, pipes and
conduits within the Premises, and all utility meters, and all pipes and conduits
outside the Premises between the Premises and the service meter, all fixtures,
heating, ventilating and air conditioning equipment (whether such heating,
ventilating and air conditioning equipment is located inside or outside the
Premises), garbage collection servicing the leased Premises, sprinkler equipment
and other equipment within the Premises, the store fronts and all exterior
glass, all Tenant's signs, locks and closing devices, and all window sash,
casement or frames, doors and door frames; provided that Tenant shall make no
adjustment, alteration or repair of any part of any sprinkler or sprinkler alarm
system in or serving the Premises without Landlord's prior approval. At
Landlord's option and upon prior written notice from Landlord to Tenant, Tenant
shall contract with a service company approved by Landlord for the preventative
maintenance of the heating, ventilating and air conditioning equipment, and a
copy of the service contract shall be furnished by Tenant to Landlord within ten
(10) days after Tenant's opening for business and a copy of any subsequent
contract shall be furnished by Tenant to Landlord within ten (10) days after the
same becomes effective. Such service contract must provide for at least six (6)
visits, inspections and service each year and the regular changing of filters.
All broken glass, both exterior and interior, broken shall be promptly replaced
by Tenant with glass of the same kind, size and quality. Tenant shall permit no
wastes, damage or injury to the Premises and Tenant shall initiate and carry out
a program of regular maintenance and repair of the Premises, including the
painting or refinishing of all areas of the interior and the store front, so as
to impede, to the extent possible, deterioration by ordinary wear and tear and
to keep the same in attractive condition. Tenant will not overload the
electrical wiring serving the Premises and will install, at its expense, but
only after obtaining Landlord's written approval, any additional electrical
wiring which may be required in connection with Tenant's apparatus.
Without limitation of the terms and conditions of this Section, Tenant
shall be responsible for the repair (and cost of repair) to the overhead doors
at the Service Building. Upon Tenants completion of said repair and Landlord's
satisfactory inspection of said repair, Landlord shall issue a credit to Tenant
in the amount of $1,000.00 to be applied against Tenant's next Rent payment due
hereunder.
13.3 LANDLORD'S REPAIR OF PREMISES. Except as specifically detailed in
Article 13.1, Landlord shall be under no obligation to make any repairs,
replacements, reconstruction, alterations, renewals, or improvements to or upon
the Premises or the mechanical equipment exclusively serving the Premises.
Notwithstanding the foregoing, Landlord shall be under no obligation to make any
additional repairs to said doors after the initial repair.
13.4 LANDLORD'S RIGHT OF ENTRY AND USE. Landlord and its authorized
representative may enter the Premises at any and all times during usual business
hours for the purpose of inspecting the same. Tenant further agrees that
Landlord may from time to time go upon the Premises and make any repairs to the
Premises or to any utilities, systems or equipment located in, above or under
the Premises. Nothing herein shall imply any duty on the part of Landlord to
perform any such work which under any provision of this Lease Tenant may be
required to do, nor shall it constitute a waiver of Tenant's default in failing
to do the same. In the event Landlord performs or causes any such work to be
performed, Tenant shall pay the cost
thereof to Landlord forthwith as Additional Rent upon receipt of a xxxx
therefor. Landlord may install pipes, ducts, conduits, wires and other
mechanical equipment serving other portions, tenants and occupants of the
Property, under or above the Premises, without the same constituting an actual
or constructive eviction of Tenant. Landlord may also go in the Premises at all
times for the purpose of showing the Premises to prospective purchasers,
mortgagees and tenants. Provided that Landlord and Tenant are not able to reach
an agreement for the extension of this Lease in accordance with Schedule "J"
attached hereto, during the last one (1) months of the Term or at the time that
Tenant has notified Landlord that it will not seek to renew said Lease, which
ever is earlier, Landlord may advertise the Premises for rent in any manner
whatsoever and Landlord may place on the exterior of the premises a "For Rent"
sign, which shall not be obliterated or hidden by Tenant. No exercise by
Landlord of any rights provided in Article 13 shall entitle Tenant to any damage
for any inconvenience, disturbance, loss of business or other damage to Tenant
occasioned thereby, nor to any abatement of Rent, Landlord will exercise its
right under this Section in a manner that will not cause unreasonable
interference with Tenant's business.
13.5 CONFLICTS. If there is a conflict between the provisions of this
Article 13 and Article 12, the provisions of Article 12 shall govern.
ARTICLE 14. UTILITIES, GARBAGE DISPOSAL & SERVICES
14.1 WATER, SANITARY SEWER, TELEPHONE AND ELECTRIC SERVICE. Tenant shall
pay for all telephone and electric services used within the Premises and make
such deposits to assure service and may be required by the utility company
providing the same. Landlord shall pay for all water and sanitary sewer service
for use in the Premises as same is currently installed.
14.2 VENDORS SELECTED BY LANDLORD. Landlord shall have the right to
designate vendors to provide utility services and garbage collection services to
the Premises, provided the cost of such service is competitive in the vicinity
of the Property.
14.3 GARBAGE COLLECTION. Tenant will, at Tenant's expense, contract with
the service company designated by Landlord for the disposal of all trash and
garbage from the Premises. Tenant will furnish to Landlord a copy of such
contract prior to opening for business, and a copy of each renewal of such
contract shall be furnished to Landlord at least seven (7)days prior to the
expiration of the existing contract.
14.4 SECURITY SERVICE. Landlord shall, at its sole cost and expense,
provide a security person to patrol Landlord's property including the exterior
of Tenant's Premises. Said security person shall be available on site for patrol
from "dusk to xxxx" or at all hours that at least one of Landlord's other
employees are not present at the Property. Landlord shall (i) assume no
liability for the actions or inactions of said security person, (ii) shall not
be subject to any "care, custody or control" equitable actions in the court of
law or otherwise for providing said service to Tenant or (iii) shall not be
liable for any losses that Tenant may have from theft, vandalism, etc. Tenant
shall not rely on said security service in order to minimize the need for full
and adequate insurance against such perils as theft and vandalism.
ARTICLE 15. LIENS
15.1 NO LIENS PERMITTED; DISCHARGE. The Landlord's property shall not be
subject to liens for work done or materials used on the Premises made at the
request of, or on order of or to discharge an obligation of, Tenant. If any lien
or notice of lien on account of an alleged debt of Tenant or any notice of lien
by a party engaged by Tenant or Tenant's contractor to work on the Premises
shall be filed against the Property or any part thereof, Tenant, within ten (10)
days after notice of the filing thereof, will cause the same to be discharged of
record by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise. If Tenant shall fail to cause such lien or notice of lien to be
discharge within the period aforesaid, then, in addition to any other right or
remedy, Landlord may discharge the same either by paying the amounts claimed to
be due or by procuring the discharge of such lien by deposit or by bonding
procedures. Any amount so paid by Landlord and all costs and expenses, including
attorneys' fees, incurred by Landlord in connection therewith, and including
interest at the Default Rate, shall constitute Additional Rent and shall be paid
by Tenant to Landlord on demand. Nothing herein shall obligate Tenant to pay or
discharge any lien created by Landlord.
ARTICLE 16. FIXTURES AND PERSONAL PROPERTY
6.1 TENANT'S PROPERTY; REMOVAL. Tenant shall have the right, provided
Tenant is not in default, at any time and from time to time during the Term, to
remove any and all of its trade fixtures, signs and other personal property
owned by Tenant which it may have stored or installed in the Premises, provided
that any trade fixtures necessary for Tenant's operation shall be immediately
replaced with similar personal property of comparable or better quality so as to
render the Premises suitable for conducting the type of business specified in
Section 1.1(k). Tenant at its expense shall immediately repair any damage
occasioned to the Premise by reason of installation or removal of any such trade
fixtures, signs and other personal property. If this Lease expires or is
terminated for any reason except termination by Landlord pursuant to Section
12.3 and Tenant fails to remove such items from the Premises prior to such
expiration or termination, or if this Lease is terminated by Landlord pursuant
to Section 12.3 and Tenant fails to remove such items from the Premises on or
before fourteen (14) days after the effective date of such termination, then in
any such event all such trade fixtures, signs and other personal property shall
thereupon become the property of Landlord, without further act by either party
hereto, unless Landlord elects to require their removal, in which case Tenant
agrees to promptly remove same and restore the Premises to its prior condition
at Tenant's expense.
16.2 IMPROVEMENTS TO PREMISES. All improvements to the Premises by Tenant,
including, but not limited to, the items furnished pursuant to Tenant's Work,
alterations, changes and additions by Tenant, light fixtures, floor coverings
and partitions, but excluding trade fixtures and signs, shall become the
property of Landlord upon expiration or earlier termination of this Lease;
provided, however, that Landlord may designate by written notice to Tenant those
alterations, changes and additions which shall be removed by Tenant at the
expiration or termination of this Lease, in which event Tenant shall, at its
expense, promptly remove the same and repair any damage to the Premises caused
by such removal.
ARTICLE 17. ASSIGNMENT AND SUBLETTING
17.1 RESTRICTIONS ON ASSIGNMENT. Tenant shall have no right to transfer,
assign, sublet, enter into license or concession agreements, or mortgage or
hypothecate this Lease or the Tenant's interest in the Premises or any part
thereof without Landlord's consent, which Landlord's consent shall not be
unreasonably withheld. Any attempted transfer, assignment, subletting, license,
or concession agreement, or hypothecation, without the Landlord's consent, shall
be void and shall confer no rights upon any third person. Any transfer of this
Lease from Tenant by merger, acquisition, consolidation, liquidation or
otherwise by operation of law, including, but not limited to, an assignment for
the benefit of creditors, shall be included in the term "assignment" for the
purposes of this Lease and, if done without the Landlord's consent, shall be a
violation of this Section.
17.2 CHANGE OF OWNERSHIP. If Tenant or any Guarantor is a corporation,
unincorporated association or partnership, a transfer, assignment or
hypothecation of any stock or interest in such corporation, association or
partnership by any stockholder or partner so as to result in a change in the
control thereof by the person, persons or entities owning a majority interest,
therein as of the date of this Lease, shall be deemed to be an assignment of
this Lease. This provision shall not be applicable to Tenant or to any Guarantor
if it is a corporation whose voting stock is listed on a national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended) or is
traded in any recognized over-the-counter market.
ARTICLE 18. DEFAULTS BY TENANT
18.1 EVENTS OF DEFAULT. This Lease is made upon the condition that Tenant
shall punctually and faithfully perform all of the covenants, conditions, and
agreements by it to be performed. The following shall each be deemed to be an
event of default (each of which is sometimes referred to as an "Event of
Default") in this Lease.
(a) any part of the Rent required to be paid by Tenant under this Lease
shall at any time be unpaid for seven (7) days after written notice that rent is
due;
(b) Tenant fails in the observance or performance of any of its other
covenants, agreements or conditions provided for in this Lease, and said failure
shall continue for a period of ten (10) days after written notice thereof from
Landlord to Tenant (unless such failure cannot reasonably be cured within ten
(10) days and Tenant shall have commenced to cure said failure within said
thirty (30) days and continues diligently to pursue the curing of the
same);
(c) Tenant fails, after the date on which it is required by this Lease to
open the Premises for business with the public, to be open for business as
required by this Lease, or vacates or abandons the Premises;
(d) the estate created in Tenant hereby is taken in execution or by other
process of law, or all or a substantial part of the assets of Tenant or any
Guarantor is placed in the hands of a liquidator, receiver or trustee (and such
receivership or trusteeship or liquidation continues for a period of thirty (30)
days, or Tenant or any such Guarantor makes an assignment for the benefit of
creditors, or admits in writing that it cannot meet its obligations as they
become due, or is adjudicated a bankrupt, or Tenant or any such Guarantor
institutes any proceedings under any federal or state insolvency or bankruptcy
law as the same now exists or under any amendment thereof which may hereafter be
enacted, or under any other act relating to the subject of bankruptcy wherein
the Tenant or any such Guarantor seeks to be adjudicated as bankrupt, or to be
discharged of its debts, or to effect a plan of liquidation, composition or
reorganization, or should any involuntary proceedings be filed against Tenant or
any such Guarantor under any such insolvency or bankruptcy law (and such
proceeding not be removed within ninety (90) days thereafter). If any insolvency
proceedings, such as those referred to in this Section 18.1(d) are instituted
against Tenant, the Premises shall not become an asset in any such proceedings.
18.2 LANDLORD'S REMEDIES. If any Event of Default occurs then and in such
case Landlord may treat the occurrence of such Event as a breach of this Lease
and, in addition to any and all other rights or remedies of Landlord in this
Lease or by law or in equity provided, it shall be, at the option of Landlord,
without further notice or demand to Tenant or any other person, the right of
Landlord to:
(a) declare the Term ended and to enter the Premises and take possession
thereof and remove all persons therefrom, and Tenant shall have no further claim
thereon or thereunder;
(b) bring suit for the collection of Rent as it accrues pursuant to the
terms of this Lease and damages without entering into possession of the Premises
or canceling this Lease;
(c) retake possession of the Premises from Tenant by summary proceedings or
otherwise, and to xxx Tenant for an amount equal to the remaining Rent to become
due during the Term (or any extension period then in effect). Alternatively,
Landlord may, after such retaking of possession, relet the Premises or any
portion thereof provided Landlord shall attempt to relet at the most favorable
rate available. Tenant shall pay to Landlord all monthly deficits in Rent after
any such re-entry in monthly installments as the amounts of such deficits from
time to time are ascertained until the expiration of the Term of this Lease.
Such deficiency shall be calculated and paid monthly; Tenant shall have no right
to any excess. Tenant shall also pay to Landlord any costs and expenses,
including, but not limited to, reasonable brokerage commissions and reasonable
attorneys' fees, incurred by Landlord in such reletting or in making such
alterations and repairs not covered by the rental received from such reletting.
In the event of an entry or taking possession of the Premises as aforesaid,
Landlord shall have the right, but not the obligation to remove therefrom all at
any part of the personal property located therein and may place the same in
storage at a public warehouse at the expense and risk of the owner or owners
thereof.
18.3 ATTORNEY'S FEES AND COSTS. For any and all litigation arising from or
in connection with this Lease, the prevailing party shall be entitled to the
reimbursement and recovery of their costs and reasonable attorneys' fees from
the other party, including reasonable attorneys' fees and costs in connection
with trial, appellate proceedings, and any post judgment collection proceedings.
18.4 RENT PAYABLE BY TENANT. For all purposes of Article 18, in determining
the Rent which would be payable to Tenant hereunder subsequent to default, Rent
for each month of the unexpired Rent shall be deemed to be the amount of Rent
payable by Tenant during the one (1) month immediately preceding the Event of
Default.
18.5 TENANT'S PROPERTY TO REMAIN. If there is an Event of Default, all of
the Tenant's fixtures, furniture, equipment, improvements, additions,
alterations, and other personal property shall remain on the Premises and, in
that event and continuing during the length of said default,
Landlord shall have the right take the exclusive possession of same and to use
same, without cost, until all defaults are cured or, at its option, at any time
during the term to require Tenant to forthwith remove same.
ARTICLE 19. LIABILITY OF LANDLORD
19.1 LANDLORD'S DEFAULT. Except as otherwise provided in this Lease,
Landlord shall be in default under this Lease if Landlord fails to perform any
of its obligations hereunder and said failure continues for a period of thirty
(30) days after written notice thereof from Tenant to Landlord (unless such
failure cannot reasonably be cured within thirty (30) days and Landlord shall
have commenced to cure said failure within said thirty (30) days and continues
diligently to pursue the curing of the same). If Landlord defaults under this
Lease, as a consequence of such default, Tenant may recover a money judgment
against Landlord's right, title and interest in the Property as the same may
then be constituted and encumbered. However, Landlord shall not be liable for
any additional deficiency as Tenant shall have no right to levy execution
against any additional property of Landlord.
19.2 TRANSFER OF LANDLORD'S INTEREST. In the event of the sale or other
transfer of Landlord's interest in the Premises (except in the case of a
sale-leaseback financing transaction in which Landlord is the lessee), Landlord
shall transfer and assign to such purchaser or transferee the Security Deposit
and Landlord thereupon and without further act of either party shall be released
from all liability and obligations hereunder arising out of any act, occurrence
or omission relating to the Premises or this Lease occurring after the
consummation of such sale or transfer. Tenant agrees to attorn to any successor,
assign, mortgage or ground lessor of Landlord.
ARTICLE 20. SUBORDINATION AND ATTORNMENT
20.1 SUBORDINATION OF LEASE. This Lease is subordinated to the lien of all
mortgages, deeds of trust, security instruments, ground leases and easement
agreements now or hereafter covering all of any part of the Property, and to all
modifications, consolidations, renewals, replacements and extensions thereof,
provide, however, that this lease shall not be subordinate to any mortgage other
than a first mortgage without the consent of the holder of such first mortgage.
Tenant also agrees that, if any mortgagee elects to have this Lease prior to the
lien of its mortgage and signifies such election in the instrument creating its
lien, or as separate recorded instrument, this Lease shall be prior in dignity
to such mortgage.
20.2 TENANTS ATTORNMENT. In the event of any proceedings brought for the
enforcement of any mortgage or superior lease, Tenant shall, upon demand by the
mortgagee or superior lessor, attorn to and recognize such mortgagee or lessor
as Landlord under this Lease. In the event of a sale of assignment of Landlord's
interest under this Lease or in the Premises, Tenant shall attorn to and
recognize such purchaser or assignee as Landlord under this Lease without
further act by Landlord or such purchaser or assignee.
20.3 INSTRUMENTS TO CARRY OUT INTENT. Tenant agrees that, in order to
confirm the provisions of this Article, but in no way limiting the
self-operative effect of said provisions, Tenant shall execute and deliver
whatever instruments may be required for such purposes.
ARTICLE 21. ESTOPPEL CERTIFICATES
21.1 TENANT'S AGREEMENT TO DELIVER. Within ten (10) days before Tenant
opens for business in the Premises, and from time to time thereafter within ten
(10) days after request therefor from Landlord, Tenant agrees to execute and
deliver to Landlord, or to such other addressee or addressees as Landlord may
designate (and any such addressee may rely thereon), a statement in writing
certifying (if true) that the Lease is in full force and effect and unmodified
or describing any modifications; that Tenant has accepted the Premises; that
Landlord has performed all of its obligations under the lease arising prior to
the date of the certificate; that there are no defenses or offsets against the
enforcement of this Lease or stating with particularity those claimed by Tenant;
stating the date to which Rent has been paid; and making such other true
representations as may be reasonably requested by Landlord.
21.2 FAILURE OF TENANT TO GIVE ESTOPPEL. If Tenant fails to give the
estoppel certificate required by Section 21.1 within the time permitting thereby
and fails to object in
writing specifying with particularity the manner in which the requested estoppel
certificate is untrue, it shall be conclusively deemed that the matters set
forth in the requested estoppel are true and correct as of the date of the
request.
ARTICLE 22. QUIET ENJOYMENT
22.1 FAITHFUL PERFORMANCE. Upon payment by the Tenant of the Rent herein
provided for and upon the observance and performance of all of the agreements,
covenants, terms and conditions on Tenant's part to be observed and performed,
Tenant shall peaceably and quietly hold and enjoy the Premises for the Term
without hindrance or interruption by Landlord or any other person or persons
lawfully or equitably claiming by, through or under Landlord.
ARTICLE 23. SURRENDER AND HOLDING OVER
23.1 DELIVERY AFTER TERM. Tenant shall deliver up and surrender to Landlord
possession of the Premises upon the expiration or earlier termination of the
term, broom clean, free of debris, in good order, condition and state of repair
(except as may be Landlord's obligation under this Lease and ordinary wear and
tear), and shall deliver the keys at the office of Landlord in the Property or
to Landlord at the address to which notices to Landlord are to be sent pursuant
to Section 25.3. If not sooner terminated as herein provided, this Lease shall
terminate at the end of the term as provided for in Article 3 without the
necessity of notice from either Landlord or Tenant to terminate the same, Tenant
hereto waiving notice to vacate the Premises and agreeing that Landlord shall be
entitled to the benefit of all provisions of law respecting the summary recovery
of possession of premises from a tenant holding over.
23.2 EFFECT OF HOLDING OVER; RENT. If Tenant or any party claiming under
Tenant remains in possession of the Premises, or any part thereof, after any
termination of this Lease, no tenancy or interest in the Premises shall result
therefrom, but such holding over shall be an unlawful detainer and all such
parties shall be subject to immediate eviction and removal, and Tenant shall
upon demand pay to Landlord, as liquidated damages, a sum equal $25,000.00 per
month (or any portion thereof) during any period which Tenant shall hold the
Premises after the Term has expired.
ARTICLE 24. CONDEMNATION
24.1 ALL OF THE PREMISES TAKEN. If the whole of the Premises shall be taken
either permanently or temporarily by any right of eminent domain or conveyance
in lieu thereof (each being hereinafter referred to as "condemnation"), this
Lease shall terminate as of the day possession shall be taken by the condemning
authority, and Tenant shall pay Rent and perform all of its other obligations
under this Lease up to that date with a proportionate refund by Landlord of any
Rent that may have been paid in advance for a period subsequent to the date of
taking.
24.2 LESS THAN ALL OF PREMISES TAKEN. If less than all but more than twenty
percent (20.0%) of the GLA in the Premises is taken by condemnation or if
(regardless of the percentage of the GLA in the Premises which is taken) the
remainder of the Premises is not one undivided parcel of property, then in
either event Landlord and Tenant shall have the right to terminate this Lease
upon notice in writing to the other party within ninety (90) days after
possession is taken by such condemnation. If this Lease is so terminated, it
shall terminate as of the day possession shall be taken by such authority, and
Tenant shall pay Rent and perform all of its other obligations under this Lease
up to that date with proportionate refund by Landlord of any Rent they may have
been paid in advance for a period subsequent to the date of the taking. If this
Lease is not so terminated, it shall terminate only with respect to the parts of
the Premises so taken as of the day possession is taken by such authority, and
Tenant shall pay Rent up to that day with a proportionate refund by Landlord of
any Rent that may have been paid for a period subsequent to the date of the
taking and, thereafter, the Rent shall be based on the remaining square footage
of GLA in the Premises. Landlord agrees, at Landlord's cost and expense, as soon
as reasonably possible, to restore the Premises on the land remaining to a
complete unit of like quality and character as existed prior to such
appropriation or taking; provided that Landlord shall not be required to expend
more on such restoration than the condemnation award received by Landlord (less
all expenses, costs, legal fees and court costs incurred by Landlord in
connection with such award).
24.3 PROPERTY TAKEN.
(a) If any part of the Property (including any easement appurtenant to
Landlord's interest therein) is taken by condemnation so as to render, in
Landlord's judgment, the remainder unsuitable for use as a retail and marine
facility, Landlord shall have the right to terminate this Lease upon notice in
writing to Tenant within one hundred twenty (120) days after possession is taken
by such condemnation. If Landlord so terminates this Lease, it shall terminate
as of the day possession is taken by the condemning authority, and Tenant shall
pay Rent and perform all of its obligations under this Lease up to that date
with a proportionate refund by Landlord of any Rent as may have been paid in
advance for a period subsequent to such possession.
(b) If title to (i) twenty percent (20.0%) or more of the GLA of Landlord's
Building or (ii) twenty percent (20.0%) or more of the parking required to be
maintained in the Property is so taken, and if Landlord within one (1) year
after such taking has not substituted an equivalent number of parking spaces in
a location reasonably accessible to the Property, then either party may
terminate this Lease by notice to the other given within thirty (30) days after
the taking or after the expiration of such one year period as the case may be.
24.4 OWNERSHIP OF AWARD. All damages for any condemnation of all or any
part of the Property, including, but not limited to, all damages as compensation
for diminution in value of the leasehold, reversion, and fee, shall belong to
the Landlord without any deduction therefrom for any present or future estate of
Tenant, and Tenant hereby assigns to Landlord all its rights, title and interest
to any such award. Although all damages in the event of any condemnation are to
belong to the Landlord, Tenant may have the right to claim and recover from the
condemning authority, but not from Landlord (unless Landlord has received an
amount from the condemning authority for the specific items owned by Tenant or
relating directly to the value of Tenant's business as a going concern) such
compensation as may be separately awarded or recoverable by Tenant in Tenant's
own right on account of any and all damage to Tenant's business by reason of the
condemnation and for or on account of any cost or loss which Tenant might incur
in removing Tenant's merchandise, furniture, fixtures, leasehold improvements
and equipment.
24.5 CONFLICTS. If there is a conflict between the provisions of this
Article 24 and Article 13, the Provisions of this Article 24, shall govern.
ARTICLE 25. LANDLORD'S RIGHT TO RELOCATED PREMISES
25.1 CONDITIONS ON LANDLORD'S RIGHT TO RELOCATE PREMISES. Landlord shall
have the right at any time to require Tenant to surrender the Premises and
accept substitute premises (the "New Premises") in the Property, provided the
following conditions are met:
(a) The New Premises shall be comparable in size, configuration, utility
and location to the Premises and shall be reasonably acceptable to Tenant.
(b) Landlord will, at Landlord's sole cost and expense, prepare the New
Premises to as nearly the same condition as the Premises as is practical under
the circumstances.
(c) Landlord will pay all reasonable costs incurred by Tenant in effecting
such relocation, including, without limitation, costs of licenses, permits,
utility deposits and moving expenses, to the end that Tenant may move into the
New Premises without incurring additional costs on account thereof.
(d) Landlord will give Tenant not less than thirty (30) days' notice of
Landlord's intention to exercise its rights under this Article. Tenant agrees to
cooperate with Landlord in finding the New Premises which are reasonably
acceptable to Tenant and in planning improvements, if any, required to the New
Premises.
25.2 TENANT'S RIGHT TO TERMINATE. If Landlord is unable to provide New
Premises which are reasonably acceptable to Tenant, then Tenant shall have the
right to terminate this Lease by 30 days' written notice to Tenant.
ARTICLE 26. MISCELLANEOUS
26.1 INTERPRETATION.
(a) The captions appearing in this Lease are inserted only as a matter of
convenience and in no way amplify, define, limit, construe or describe the scope
or intent of such sections of the Lease.
(b) The neuter, feminine or masculine pronoun when used herein shall each
include each of the other genders and the use of the singular shall include the
plural.
(c) Although the printed provisions of this Lease were drawn by Landlord,
this Lease shall not be construed for or against Landlord or Tenant, but this
Lease shall be interpreted in accordance with the general tenor of the language
in an effort to reach the intended result.
(d) Notwithstanding any other provision of this Lease, if the state in
which the premises is located recognizes a distinction between an estate for
years and a "usufruct," it is the intention of the parties for this instrument
to create a usufruct and not an estate for years.
26.2 RELATIONSHIP OF PARTIES. Nothing herein contained shall be construed
as creating any relationship between the parties other than the relationship of
Landlord and Tenant, nor cause either party to be responsible in any way for the
acts, debts or obligations of the other.
26.3 NOTICES.
(a) Any notice, demand, request, approval, consent or other instrument
which may be or is required to be given under this Lease shall be in writing and
shall be deemed to have been given when delivered to the party to be notified or
when mailed by United States certified mail, return receipt requested, postage
prepaid, or when delivered to a courier such as Federal Express, addressed to
the party to be notified at the address of such party set forth in Section 1
.1(t), or to such other address as such party may from time to time designate by
notice to the other in accordance with this Section.
(b) No notice if required to be given to Landlord shall be effective for
any purpose unless and until a true copy thereof is given to each mortgagee of
Landlord's estate, provided Tenant has previously been given written notice of
the name and address of such mortgagee.
26.4 SUCCESSORS. This Lease shall inure to the benefit of and be binding
upon Landlord, its successors and assigns, and shall be binding upon Tenant, its
successors and assigns, and shall inure to the benefit of Tenant and only such
assigns of Tenant to whom the assignment by Tenant has been made and consented
to in accordance with the provisions of this Lease.
26.5 BROKER'S COMMISSION. Tenant and Landlord each, respectively, warrant
and represent to each other that neither has dealt with any broker in connection
with this Lease.
26.6 UNAVOIDABLE DELAYS. In the event that either party shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure labor or
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war, fire or other casualty or other reason of a similar or
dissimilar nature beyond the reasonable control of the party delayed in
performing work or doing acts required under the terms of this Lease, then
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay. The provisions of this Section shall not
operate to excuse Tenant from prompt payment of Rent or any other payments
required by the terms of this Lease and shall not extend the Term. Delays or
failures to perform resulting from lack of funds shall not be deemed delays
beyond the reasonable control of a party.
26.7 ENTIRE AGREEMENT.
(a) There are no oral agreements between the parties hereto affecting this
Lease, and this Lease supersedes and cancels any and all previous negotiations,
arrangements, letters of intent, lease proposals, brochures, agreements,
representations, promises, warranties and understandings between the parties
hereto or displayed by Landlord to Tenant with respect to the subject mailer
thereof.
(b) This lease, including the Exhibits and any addenda, sets forth all the
covenants, promises, agreements, conditions and understandings between Landlord
and Tenant concerning the Premises and the Property. No alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced in writing, signed by them and mutually delivered between them.
26.8 OTHER TENANTS. Landlord reserves the absolute right to effect such
other tenancies in the Property as Landlord shall determine in the exercise of
its sole business judgment. Tenant does not rely on the fact, nor does Landlord
represent, that any specific tenant or occupant or number of tenants or
occupants shall occupy any space in the Property.
26.9 APPLICABLE LAW. The laws of the state in which the Premises is located
shall govern the validity, performance and enforcement of this lease.
26.10 WAIVERS.
(a) The waiver by Landlord of any term, covenant, agreement or condition
herein shall not be deemed to be a waiver of any subsequent breach of the same
or any other term, covenant, agreement or condition. The acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any prior default by
Tenant, other than the failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such prior default at the time of
acceptance of such Rent. No covenant, term, agreement or condition of this Lease
shall be deemed to have been waived by Landlord unless such waiver be in writing
by Landlord.
(b) No waiver of any covenant, term, agreement or condition of this Lease
or legal right or remedy shall be implied by the failure of Landlord to declare
a forfeiture, or for any other reason. No waiver by Landlord in respect to one
or more tenants or occupants of the Property shall constitute a waiver in favor
of any other Tenant. Landlord's consent to, or approval of, any act by Tenant
requiring Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent similar act by
Tenant.
26.11 ACCORD AND SATISFACTION. 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 earliest stipulated Rent, nor shall any endorsement or
statement on any check or any letter accompanying any such 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 provided for in this Lease or available at law
or in equity.
26.12 LANDLORD'S SELF-HELP. In addition to Landlord's rights of self-help
set forth elsewhere in this Lease, if Tenant at any time fails to perform any of
its obligations under this Lease relating to maintenance, repair or
Environmental Mailers in a manner reasonably satisfactory to Landlord, Landlord
shall have the right, but not the obligation, upon giving Tenant at least ten
(10) days' prior written notice of its election to do so (in the event of an
emergency, no prior notice shall be required), to perform such obligations on
behalf of and for the account of Tenant and to take all such action necessary to
perform such obligations. In such event, Landlord's costs and expenses incurred
therein shall be paid for by Tenant as additional Rent, forthwith upon demand
therefor, with interest thereon from the date Landlord performs such work at the
Default Rate, the performance by Landlord of any such obligation shall not
constitute a release or waiver of account therefrom.
26.13 RECORDING. Tenant agrees that it will not record the Lease.
26.14 JOINT AND SEVERAL LIABILITY. If two or more individuals,
corporations, partnerships or other business associations (or any combination of
two or more thereof) shall sign this Lease as Tenant, the liability of each of
them shall be Joint and several in like manner, if the Tenant named in this
Lease shall be a partnership or other business association, the members of which
are, by virtue of statute or general law, subject to personal liability, the
liability of each such member shall be Joint and several.
26.15 EXECUTION OF LEASE. The submission of this Lease for examination does
not constitute a reservation of or option for the Premises or any other space
within the Property and
shall vest no right in either party. This Lease shall become effective as a
Lease only upon execution and legal delivery thereof by the parties, together
with the execution and delivery to Landlord of a Guaranty in the form annexed
hereto by the Guarantor(s), if any, named in Section 1.1(l). This Lease may be
executed in more than one counterpart, and each such counterpart shall be deemed
to be an original document.
26.16 WAIVER OF JURY TRIAL AND COUNTERCLAIM. The Tenant hereby waives trial
by jury in any action, proceeding, or counterclaim involving any matters
whatsoever arising out of or in any way connected with the Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, or claim or injury or damage. Venue to any action related hereto shall
be in the Court of appropriate jurisdiction in the Fifteenth Judicial Circuit of
Florida.
26.17 RADON GAS. If the Premises is located in Florida, the following
provision is required by Section 404.056(7), Florida Statues: "Radon is a
naturally occurring radioactive gas that, when it has associated in a building
insufficient qualities, may present health risks to premises or persons who are
exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit."
26.18 TIME OF THE ESSENCE. Time is of the essence of each and every
obligation under this Lease.
26.19 TENANT AND GUARANTOR FINANCIAL STATEMENTS. Tenant and Guarantor, if
applicable to this Lease, shall deliver to the Landlord on each anniversary of
the Lease commencement a full and complete statement of financial viability on a
form acceptable to the Landlord.
ARTICLE 27. SECURITY DEPOSIT
27.1 SECURITY. As security for the faithful performance by Tenant of all of
the terms and conditions of this Lease on the Tenant's part to be performed,
Tenant has deposited with Landlord the Security Deposit required by Section 1
.1(n). Such amount shall be returned to Tenant, without interest, on the day set
forth for the expiration of the term herein if Tenant has fully and faithfully
carried out all of the terms, covenants and conditions on its part to be
performed, including, without limitation, the obligations of Tenant under
Article 23 hereof. Landlord shall have the right to apply any part of said
deposit to the payment of monies due to Landlord hereunder by Tenant, but such
application shall not remedy the default.
27.2 TRANSFER OF DEPOSIT. In the event of a sale of the building or lease
of the Landlord's Building or the land on which it stands, subject to this
Lease, the Landlord shall have the right to transfer this security to the vendee
or lessee and the Landlord shall thereupon be released from all liability for
the return of such security, and the Tenant shall look to the new landlord
solely for the return of the said security. This provision shall apply to every
transfer or assignment made of the security to a new landlord. The security
deposited under this Lease shall not be mortgaged, assigned or encumbered by the
Tenant without the written consent of the Landlord. In the event of any
authorized assignment of this Lease, Landlord shall have no further liability
with respect to the return of said Security Deposit to the Tenant or assignee.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
Witnesses: LANDLORD:
SEAGATE LAND TRUST
By: Tequesta Marine, Inc., Beneficiary
By: Xxxxx Xxxxxxxxx
Its: Vice President & General Counsel
Witnesses: TENANT
Treasure Coast Boating Center, Inc.
By:
Its:
Attest:________________________________
its___________________________________
Tax I.D.#_______________________
EXECUTION:
CORPORATE: This Lease must be executed for Tenant, if a corporation, by the
president or vice president and the secretary or assistant secretary, unless the
bylaws or a resolution of the Board of Directors shall otherwise provide, in
which event, a certified copy of the bylaws or resolution, as the case may be,
must be finished. Also, the corporate seal of Tenant, if Tenant has such a seal,
must be affixed.
INDIVIDUAL: This Lease must be executed by each individual whose name
appears under the signature lines. Their execution must be witnessed by two
disinterested persons who must sign as witnesses in the space provided.
STATE OF FLORIDA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me this 22nd day of
December, 1998 by Xxxxx Xxxxxxxxx, its vice president who is personally known to
me or who has produced did (did not) take an oath.
/s/ Xxxxxxxx X. XxXxxxx
Notary Public
Xxxxxxxx X.XxXxxxx
Printed Name
My Commission expires:___6/25/2001
STATE OF FLORIDA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me this 22nd day of
December, 1998 by Xxxxxx Xxxxx, its Chairman who is personally known to me or
who has produced ____________ as identification and who did (did not) take an
oath.
/s/ Xxxxxxxx X. XxXxxxx
Notary Public
Xxxxxxxx X.XxXxxxx
Printed Name
My Commission expires:___6/25/2001
EXHIBIT "A"
Legal Description of entire "Property"
A parcel of land lying in Government Xxx 0, Xxxxxxx 00, Xxxxxxxx 00 Xxxxx,
Xxxxx 43 East,
Xxxxxx County, Florida, said parcel being bounded on the North by the South
line of the North
250.00 feet of said Government Lot 2; bounded on the South by the North
line of the South
481.00 feet of said Government Lot 2; bounded on the West by the Easterly
right-of-way line of U.S. Highway No. One (a 200 foot right-of-way); and bounded
on the East by the Westerly edge of the waters of the Intracoastal Waterway
(Hobe Sound Waterway).
EXHIBIT "C-2"
SIGN CRITERIA
1. All applications for sign approvals shall be submitted to the LANDLORD
for approval prior to permitting the sign fabrication. A Sign Approval
Application consists of a photocopy of the Lease Face Page attached to an exact,
to scale, drawing of the sign including actual color chips of the sign and other
information.
2. There shall be no flashing signs, audible signs, moving signs, product
description signs, price signs, percent discount signs, paper signs, suspended
under canopy signs, exposed neon signs, painted signs, or newspaper advertising
attached to any storefront windowglass other than that provided by LANDLORD.
3. No roof/canopy mount signs, pole/pylon signs or trailer signs will not
be permitted at any time without written consent of the Landlord.
4. There shall be no exposed conduit, tubing or raceways except for
hot-dipped galvanized support brackets.
5. All openings for conduit and sleeve in sign panel of building wall must
be shown on submitted drawing.
6. TENANT shall, at its own cost, erect only such signs which conform
hereto, and obtain any permits or licenses required for same, and shall maintain
same in good condition and repair. TENANT must install its mansard sign prior to
opening for business. TENANT shall not display or affix any other sign, decal,
advertisement, notice or other writing, nor affix any awning, antenna, or other
projection to or on the roof or outside walls or windows of the Premises without
LANDLORD'S written approval. No pennants, banners, or other advertising matter
shall be suspended from the ceiling, doors, or interior walls of the Premises.
All window display advertising, materials or signs shall be in keeping with the
character and standards of the Property as determined by LANDLORD, who reserves
the right to require TENANT to correct or remove any objectionable material.
EXHIBIT "D"
GUARANTY AGREEMENT
KNOWN ALL MEN BY THESE PRESENT:
THAT for and in consideration of the Landlord, (SEAGATE LAND TRUST, XXXXXX
X. XXXXXX, TRUSTEE), entering into a lease with (TREASURE COAST BOATING CENTER,
INC.), a Florida Corporation (hereinafter called "Tenant"), dated December 22,
1998., the delivery of which is conditioned upon the execution of this Guaranty,
the undersigned (hereinafter called the "Guarantor") does hereby (jointly and
severally, if executed by two or more guarantors) guarantee the full and prompt
performance by the Tenant of all the terms, covenants, conditions and agreements
as contained in said Lease on the part of the Tenant to be performed, including
specifically the obligation to pay all rents, maintenance charges, and any other
charges or obligations therein set forth.
The undersigned agrees that this Guaranty shall not be affected by reason
of assertion by Landlord against tenant of any rights or remedies reserved to
Landlord in said Lease, or by reason of any summary or other proceedings against
the Tenant, or by reason of any extension or indulgences granted to the Tenant,
or by the amendment or modification of the Lease Agreement with or without
notice to the Guarantor.
The undersigned waives any and all notice of nonperformance or demand upon
the Tenant and agrees that all obligations of the undersigned under this
Guaranty are independent of the obligations of the Tenant under the Lease and
that a separate action may be brought against the undersigned whether or not an
action is commenced against the Tenant under the Lease.
Neither the Guarantor's obligation to make payment in accordance with this
agreement nor any remedy for the enforcement thereof shall be impaired,
modified, changes, or released in any manner whatsoever by an impairment,
modification, change, release, or limitation of the liability of the Tenant or
its estate in bankruptcy, or of any remedies for the enforcement thereof
resulting from the operation of any present or future provision of the National
Bankruptcy Act or other State or Federal statute relating to insolvency or the
appointment of a receiver of the decisions of any Court. Guarantor agrees to pay
all costs incurred by Landlord in the enforcement of the Lease after default by
Tenant and all costs incurred by Landlord in the enforcement of the Guaranty
including, in each instance, reasonable attorneys' fees whether or not suit is
brought, and including in each instance reasonable attorneys' fees in
prosecuting or defending any appeal.
It is agreed that the provision of this Guaranty shall bind the successors
and assigns of the Guarantor and shall inure to the benefit of the legal
representatives, heirs, successors, and assigns of the landlord.
IN WITNESS WHEREOF, the Guarantor has caused these presents to be signed
this 22nd day of December, 1998.
Signed, sealed, and delivered in the presence of:
WITNESSES: GUARANTOR(S)
