EXHIBIT 10.1
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LEASE AGREEMENT
LANDLORD:
APREMONT, INC.
a Florida corporation
TENANT:
CONQUISTADOR CIGAR COMPANY
a Delaware corporation
DATED: April 5, 1996
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Effective: April 1, 1996
TABLE OF CONTENTS
Page(s)
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ARTICLE 1
BASIC LEASE PROVISIONS........................................ 1
Section 1.1 Leased Premises.................................................... 1
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Section 1.2 Use of Additional Areas............................................ 1
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Section 1.3 Term............................................................... 2
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Section 1.4 Condominium Regime................................................. 2
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ARTICLE 2
RENT................................................ 2
Section 2.1 Base Rent.......................................................... 2
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Section 2.2 Additional Rent.................................................... 4
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ARTICLE 3
COMMON USE AREAS AND FACILITIES............................. 4
Section 3.1 Control of Common Areas by Association............................. 4
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Section 3.2 Licenses........................................................... 5
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ARTICLE 4
BASIC LEASE PROVISIONS........................................ 5
Section 4.1 Services........................................................... 5
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Section 4.2 Directories........................................................ 6
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Section 4.3 Signage............................................................ 6
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ARTICLE 5
USE........................................ 6
Section 5.1 Use................................................................ 6
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Section 5.2 Compliance With Laws and Regulations............................... 6
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ARTICLE 6
INSURANCE AND INDEMNITY................................... 6
Section 6.1 Liability Insurance................................................ 6
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Section 6.2 Contents Insurance and Business Loss Insurance..................... 7
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Section 6.3 Special Policy Provision........................................... 7
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Section 6.4 Increase of Fire Insurance Premium................................. 7
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Section 6.5 Indemnification.................................................... 8
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Section 6.6 Mutual Waiver of Subrogation....................................... 8
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ARTICLE 7
DESTRUCTION AND CONDEMNATION........................................... 8
Section 7.1 Fire or Other Casualty.......................................... 8
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Section 7.2 Condemnation.................................................... 10
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ARTICLE 8
DEFAULTS AND REMEDIES................................. 11
Section 8.1 Events of Default............................................... 11
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Section 8.2 Landlord's Remedies and Obligations in Event of Tenant's Default 12
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Section 8.3 Landlord's Lien................................................. 14
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Section 8.4 WAIVER OF JURY TRIAL............................................ 14
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Section 8.5 Rights Cumulative............................................... 15
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Section 8.6 Attorney's Fees................................................. 15
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Section 8.7 Notice of Default: Service of Three Day Notice.................. 15
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Section 8.8 Expenses of Enforcement......................................... 15
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Section 8.9 Surrender and Holding Over...................................... 16
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ARTICLE 9
ALTERATIONS........................................... 16
ARTICLE 10
TRADE FIXTURES........................................ 17
ARTICLE 11
QUIET ENJOYMENT....................................... 17
ARTICLE 12
MAINTENANCE........................................... 17
ARTICLE 13
SIGNS................................................. 18
ARTICLE 14
PARKING............................................... 19
ARTICLE 15
MISCELLANEOUS PROVISIONS......................... 20
Section 15.1 No Recording of Lease........................................... 20
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Section 15.2 Notices......................................................... 20
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Section 15.3 Access to Leased Premises....................................... 21
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Section 15.4 Assignment and Subletting....................................... 21
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Section 15.5 Subordination................................................... 23
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Section 15.6 Construction Liens.............................................. 24
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Section 15.7 Entire Agreement........................................... 24
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Section 15.8 No Partnership............................................. 24
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Section 15.9 Captions and Section Numbers............................... 24
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Section 15.10 Partial Invalidity......................................... 24
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Section 15.11 Governing Law.............................................. 25
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Section 15.12 Waiver..................................................... 25
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Section 15.13 Accord and Satisfaction.................................... 25
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Section 15.14 Successors and Assigns..................................... 25
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Section 15.15 Brokerage Indemnity........................................ 26
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Section 15.16 Condition of Leased Premises............................... 26
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Section 15.17 Taxes...................................................... 26
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Section 15.18 Prior Occupancy............................................ 26
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Section 15.19 Time and Consent........................................... 26
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Section 15.20 Leasehold Improvements..................................... 27
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Section 15.21 Security................................................... 27
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Section 15.22 Hazardous Waste............................................ 28
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Section 15.23 Radon Gas Disclosure....................................... 28
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Section 15.24 Option to Renew Lease...................................... 28
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EXHIBIT A
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GUARANTY....................................................................... 1
iii
CONDOMINIUM OFFICE BUILDING LEASE AGREEMENT
THIS LEASE AGREEMENT is made April 5, 1996, and between APREMONT,
INC., a Florida corporation, having offices at 0000 X.X. Xxxxx Xxxxxx, XX-X,
Xxxxx, Xxxxxxx 00000, ("Landlord"), and CONQUISTADOR CIGAR COMPANY, a Delaware
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corporation, having offices at 0000 X.X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000 ("Tenant").
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ARTICLE 1
BASIC LEASE PROVISIONS
Section 1.1 Leased Premises. Subject to and upon the terms, provisions,
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covenants, and conditions hereinafter set forth, and each in consideration of
the duties, covenants, and obligations of the other hereunder, Landlord does
hereby lease, demise, and let to Tenant and Tenant does hereby lease, demise,
and let from Landlord those certain premises (hereinafter called the "Leased
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Premises") located in the building known as VIZCAYA VIEW PLAZA (the
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"Condominium") described as follows:
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Xxxxx 000, 000, xxx 000 xx XXXXXXX VIEW PLAZA, a
condominium, according to the Declaration thereof as
recorded on June 15, 1982, in Official Records Book
11469 at page 2196 of the Public Records of Dade County,
Florida.
and situate at 0000 X.X. Xxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000.
The parties conclusively agree that the Leased Premises consist of
approximately 5,815 square feet of leasable space. The parties further agree
that the Base Rent (as defined in Article 2 hereof) is not based upon the actual
amount of square feet of leasable space in the Leased Premises and any alleged
or actual variation thereof will not be a basis for adjusting the Base Rent or
the Additional rent (as defined in Article 2 hereof).
Section 1.2 Use of Additional Areas. The use and occupation by Tenant of
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the Leased Premises shall include the non-exclusive use, in common with all
others entitled thereto, of the Common Areas (as defined in Article 3 hereof) in
accordance with the terms and conditions of the Condominium Documents (as
defined in Section 1.4) of this Lease (including, without limitation, Article 3)
and the Rules and Regulations for the use thereof as prescribed from time to
time by the Association (as defined in Section 1.4) and subject to the rights of
other unit owners and tenants.
Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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Section 1.3 Term. The term of this Lease shall be for five (5) year(s)
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commencing on April 1, 1996 (the "Commencement Date") and ending on Mach 31,
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2001 (hereinafter called the "Lease Term" or "Term"). This Lease may be sooner
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terminated as provided herein.
Section 1.4 Condominium Regime. Tenant acknowledges that the Leased
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Premises consist of three condominium units of a multi-unit condominium and that
this Lease is subject to the provisions of the condominium documents which
include the Declaration of Condominium, as recorded on June 15, 1982, in
Official Records Book 11469 at page 2196 of the Public Records of Dade County,
Florida, the Articles of Incorporation of the Vizcaya View Plaza Condominium
Association, Inc. (the "Association"), the By-laws and rules of the Association,
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and any management or similar agreement, all of which were established by the
developer, and any and all amendments thereto (collectively, the "Condominium
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Documents"), and that copies of all the foregoing are available for inspection
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at the office of the Association. Tenant shall abide by all of the rules,
regulations, and other provisions of the Condominium Documents. All maintenance
fees, Association assessments, management fees, and other such payments to which
the owner of a condominium unit is responsible shall be paid by Landlord, except
for assessments and/or fines respecting actions or inactions by Tenant.
ARTICLE 2
RENT
Section 2.1 Base Rent.
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(a) Tenant shall pay Landlord as fixed minimum annual rent ("Base
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Rent") the sum shown in the following table (subject to increases effective
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April 1, 1999) as provided in Section 2.1 (d) hereof), payable to Landlord in
twelve (12) equal monthly installments, as shown in the following table (subject
to increases effective April 1, 1999) as provided in Section 2.1 (d) hereof),
plus applicable Florida Sales Tax (currently six and one-half percent (6.5%)),
on or before the first (1st) day of each month in advance, at the office of
Landlord, above designated, or to such other recipient or place as shall be
designated by Landlord from time to time, without any prior demand thereof, and
without any deduction, offset, or counterclaim whatsoever, except as
specifically herein permitted.
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Monthly Installments of
Lease Year Commencing Annual Base Rent Annual Base Rent
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April 1, 1996 $87,225.00 $7,268.75
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April 1, 1997 $93,040.00 $7,753.33
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April 1, 1998 $98,855.00 $8,237.92
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Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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2
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Monthly Installments of
Lease Year Commencing Annual Base Rent Annual Base Rent
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April 1, 1999 See Sec. 2.1(d)
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April 1, 2000 See Sec. 2.1(d)
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(b) In the event that any installment of Base Rent that is not paid
within ten (10) days of its due date or is paid by a check that is returned by
its drawee bank for any reason whatsoever other than failure of Landlord to
endorse it, Tenant shall pay to Landlord as additional rent a Collection Fee
equal to five percent (5%) of the unpaid or uncollected sum in order to
reimburse Landlord for the administrative expenses that Landlord will incur as a
result of said late or uncollected payment, together with any bank charges
incurred by Landlord.
(c) Notwithstanding anything to the contrary provided herein, Tenant
shall not be required to pay the monthly installments of Base Rent that would
otherwise be due on the first days of April through July, 1996.
(d) Commencing with the lease year commencing April 1, 1999, Base
Rent as provided in Section 2.1(a) shall be subject to annual increases in
order to reflect increases in the cost of living as indicated by the Revised
Consumer Price Index for All Urban Consumers published by the Bureau of Labor
Statistics of the United States Department of Labor, for U.S. City Average, All
Items (1982-84 = 100) (the "Price Index"):
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(i) The term "Base Price Index" shall mean the Price Index of
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the fourteen (14) month period prior to the commencement of the year of the
Term to which the increase applies.
(ii) The term "Current Price Index" shall mean the Price Index
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of the two (2) month period prior to the commencement of the (12 month
period) year of the Term to which the increase applies (the "Escalation
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Period").
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(iii) Base Rent for each Escalation Period shall equal the
result of multiplying the prior year's Base Rent (as adjusted by this
provision), by the Current Price Index divided by the Base Price Index as
set forth below:
Current Price Index
Prior Base Rent*-------------------=New Base Rent
Base Price Index
Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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(iv) Notwithstanding anything to the contrary provided in this
Lease, no increase in Base Rent provided in this Paragraph 2.1 (d) shall
exceed four percent (4%) of the Base Rent for the immediately preceding
lease year.
(v) If in any Escalation Period, the 1982-84 average of 100 is
no longer used as the basis of calculating the Price Index, then, for
purposes of this Section 2.1 (d), the Price Index for such Escalation
Period shall be recalculated as though such 1982-84 average of 100 was
still the basis of calculating the Price Index. In the event such Price
Index (or a substitute successor index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
theretofore used in determining the Price Index shall be used to reflect
the increase in the national cost of living.
(c) Commencing with the lease year commencing April 1, 1999, Tenant
shall pay as Additional Rent any increases in the monthly maintenance
assessment due to the Association over the monthly maintenance assessment in
effect on the date of commencement of the term of this Lease.
(f) Tenant shall pay the Base Rent in twelve (12) equal installments,
due on the first (1st) day of each month. If the Base Rent and the Additional
Rent under this Lease is due on a day other than the first (1st) day of a month,
Tenant shall pay such rent for the fractional month on a per diem basis
(calculated on the basis of a thirty (30) day month) payable on the day Base
Rent is due under the terms of this Lease. Any rental payment hereunder for any
other fractional month shall likewise be calculated and paid on a per diem
basis.
Section 2.2 Additional Rent. Any and all sums of money or charges required
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to be paid by Tenant under this Lease, whether or not the same be so designated,
shall be considered "Additional Rent." If such amounts or charges are not paid
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at the time provided in this Lease, they shall, nevertheless, be collectible as
Additional Rent with the next installment of Base Rent thereafter falling due
hereunder, but nothing herein contained shall be deemed to suspend or delay the
payment of any amount of money or charges as the same become due and payable
hereunder, or limit any other remedy of Landlord (Base Rent and Additional Rent
is herein sometimes collectively referred to as "Rent").
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ARTICLE 3
COMMON USE AREAS AND FACILITIES
Section 3.1 Control of Common Areas by Association. All common elements and
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facilities of the Condominium or furnished by the Association and designated for
the general
Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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use in common of occupants of the Condominium, including Tenant hereunder, its
officers, agents, employees and invitees, including, but not limited to, parking
areas (including the parking garage), streets, sidewalks, canopies, roadways,
loading platforms, washrooms, shelters, ramps, landscaped areas, stairways,
corridors, lobbies, elevators, and other similar facilities (collectively, the
"Common Areas"), shall at all times be subject to the exclusive control and
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management of the Association, subject to the provisions of the Condominium
Documents. Tenant hereunder, and any other sub-tenants and licensees, shall
comply with all Rules and Regulations made by Association pertaining to the
operation and maintenance of the Common Areas including, but not limited to,
such reasonable requirements pertaining to sanitation; handling of trash and
debris; loading and unloading of trucks and other vehicles; and safety and
security against fires, theft, vandalism, personal injury, and other hazards.
Landlord shall have no liability to Tenant for any action or inaction
by the Association.
Section 3.2 Licenses. All common areas and facilities not within the Leased
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Premises, with Tenant may be permitted to use and occupy, are to be used and
occupied under a revocable license, and if any such license is revoked, or if
the amount of such area is diminished or if the Association exercises any of its
rights under the Condominium Documents with respect to the Common Areas,
Landlord shall not be subject to any liability nor shall Tenant be entitled to
any compensation or diminution or abatement of Base Rent or Additional Rent,
nor shall such revocation or diminution or such area be deemed constructive or
actual eviction.
ARTICLE 4
BASIC LEASE PROVISIONS
Section 4.1 Services. Landlord will furnish no services to Tenant, but
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Tenant shall be entitled to receive the same services from the Association that
the Association furnishes respect to each unit of the Condominium, subject to
the provisions of the Condominium Documents. Landlord shall not be responsible
or liable to Tenant, nor shall any claim for damages against Landlord or
abatement of Base Rent or Additional Rent for failure to furnish any such
services shall be made by Tenant or allowed by Landlord for any failure of
Association to supply such services.
No electric current shall be used except that furnished or approved
by the Association, nor shall electric cable or wire be brought into the Leased
Premises, except upon the written consent and approval of Landlord and the
Association if required by the Condominium Documents. Tenant shall use only
office machines and equipment which do not
Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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5
overload the Building's circuits from which Tenant obtains electric current.
Tenant shall pay for all electric current used within the Leased Premises,
which shall be separately metered.
Section 4.2 Directories. Tenant may use obtain a listing on any a central
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directory on the main or ground floor of the Condominium for the listing of the
names of the tenants within the Condominium, subject to the requirements of the
Association. The spaces provided on the directory board shall be at no cost to
Landlord.
Section 4.3 Signage. Subject to the requirements of the Association, Tenant
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may use at no cost to Landlord the two exterior signs at the corner of Third
Avenue and 26th Road.
ARTICLE 5
USE
Section 5.1 Use. Tenants shall not use, permit or suffer the use of the
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Leased Premises or any part thereof, for any purpose other than as general
offices and for no other purpose. Tenant further agrees that the Leased Premises
are leased exclusively for business purposes and may never be used at any time
for residential or any other purposes.
Section 5.2 Compliance With Laws and Regulations. Tenant shall, at Tenant's
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sole cost and expense, comply with all laws, statues, ordinances, rules and
regulations (including orders concerning environmental protection) of all
federal, state, county, municipal, and other applicable governmental
authorities, and the Association, now in force, or which may hereafter be in
force, pertaining to Tenant or its use of the Leased Premises (collectively the
"Regulations"), and shall observe all of them. Tenant shall indemnify, defend
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and save Landlord harmless against any and all claims, penalties, fines, costs,
expenses or damages including reasonable attorneys' fees which Landlord may
hereafter be liable for, suffer, incur, or pay arising out of any act, activity
or violation of any applicable laws, false or breached warranty and
representation on the part of Tenant, its agents, employees, legal
representatives or assigns, resulting from Tenant's failure to observe, keep and
perform the Regulations obligations in this paragraph including those arising
out of any handling, storage, treatment, transportation, disposal, release or
threat of release of hazardous waste or hazardous substances from or on the
Leased Premises.
ARTICLE 6
INSURANCE AND INDEMNITY
SECTION 6.1 Liability Insurance. Tenant shall, during the entire Term, keep
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in full force and effect, a policy of public liability and property damage
insurance with respect to the Leased Premises and the business operated by
Tenant, and any permitted sub-tenant of Tenant in the
Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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TENANT: [SIGNATURE ILLEGIBLE]
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6
Leased Premises, in which the limits of public liability are a single limit for
liability per incident, per person and property damage of no less than One
Million and No/100 Dollars ($1,000,000.00) and such greater amount from time to
time determined by Landlord which is customary for tenancies of comparable size,
space and business use.
Section 6.2 Contents Insurance and Business Loss Insurance. Tenant shall
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maintain insurance, naming Landlord and Tenant as insured, in an amount adequate
to cover the cost of replacement of all decorations, fixtures, contents and
improvements in the Leased Premises in the event of fire, vandalism, mischief,
and/or casualties including special extended coverage, and said insurance shall
include but not be limited to, coverage against all water damage to contents
and/or personal property of Tenant. Tenant shall also maintain a policy of
business loss insurance for a twelve (12) month period, which shall be updated
annually.
Section 6.3 Special Policy Provision. All insurance policies which Tenant
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is required to secure and maintain pursuant to this Article 6, shall be written
by companies acceptable to the Landlord, shall name Landlord, any persons, firms
or corporations designated by Landlord, and Tenant as insured, and shall contain
a clause that the insurer will not cancel or change the insurance without first
giving Landlord thirty (30) days prior written notice. Further, said policies
shall contain an express waiver of any right of subrogation against Landlord and
other named insurers, designated by Landlord. Tenant will further deposit the
policies, or certificates thereof, with Landlord together with evidence of
payment of the premium, at all times, commencing with the date Tenant first
enters upon the Leased Premises for any purpose. In no event shall the limits of
any insurance policies required herein be considered as limiting the liability
of Tenant under this Lease.
Section 6.4 Increase of Fire Insurance Premium. In addition, Tenant agrees
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that it will not keep, use, sell or offer for sale in or upon the Leased
Premises any article which may be prohibited by the standard form of fire
insurance policy or by the Association. Tenant agrees to pay any increase in
premiums for fire and extended coverage insurance that may be charged during the
Term of this Lease or the amount of such insurance which may be carried by
Landlord on the Leased Premises or the Building of which they are a part
resulting from any acts or omissions of Tenant or any change in use by Tenant.
In determining whether increased premiums are the result of Tenant's use of the
Leased Premises, a schedule, issued by the organization in making the insurance
rate on the Leased Premises, showing the various components of such rate, shall
be conclusive evidence of the several items and charges which make up the fire
insurance rate for the Leased Premises.
In the event that Tenant's occupancy causes any increase of the
premium for the fire and/or casualty rates on the Leased Premises or any part
thereof above the rate for the least hazardous type of occupancy legally
premitted in the Leased Premises, Tenant shall
Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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7
pay the additional premium on the fire and/or casualty insurance policies by
reason thereof. Tenant also shall pay in such event any additional premium
necessitated by the character of Tenant's use of the Leased Premises on such
rent insurance policy as may be carried by Landlord for its protection against
rent loss through fire. Bills for such additional premiums shall be rendered by
Landlord to Tenant at such times as Landlord or the Association may elect, and
shall be due from and payable by Tenant when rendered, and the amount thereof
shall be deemed to be, and shall be paid as Additional Rent.
Section 6.5 Indemnification. Tenant will indemnify Landlord and save it
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harmless from and against any and all claims, actions, damages, liability, and
expense in connection with loss of life, personal injury, and/or damage to
property occurring in or about, or arising from or out of the Leased Premises
and adjacent sidewalks and loading platforms or other areas occasioned wholly or
in part by any act or omission of Tenant, its agents, contractor, invitee or
employees. In case Landlord shall, without fault on its part, be made a party to
any litigation commenced by or against Tenant, then Tenant shall protect and
hold Landlord harmless and shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by Landlord in connection with such litigation
at all levels and such fees incurred in enforcing this indemnity.
Section 6.6 Mutual Waiver of Subrogation. Notwithstanding anything set
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forth in this Lease to the contrary, Landlord and Tenant each hereby waive any
and all right of recovery, claim, action or cause of action against the other,
their respective agents, officers and employees (a) for any loss or damage that
may occur to the leased Premises, the Condominium, or any of the improvements
thereto, by reason of fire, the elements or any other cause which could be
insured against under the terms of a standard fire and extended coverage
insurance policy or policies, with vandalism, malicious mischief and all-risk
coverage, or (b) for which Landlord or Tenant may be reimbursed as a result of
insurance coverage affecting any loss suffered by either party, regardless of
cause of cause or origin, including the negligence of Landlord or Tenant or
their respective agents, officers and employees. In addition, all insurance
policies carried by either party covering the Leased Premises, the Condominium
or contents, shall expressly waive any right on the part of the insurer against
the other party for damage to or destruction of the Leased Premises, the
Building or contents, resulting from the acts, omissions or negligence of the
other party.
ARTICLE 7
DESTRUCTION AND CONDEMNATION
Section 7.1 Fire or Other Casualty. If the Leased Premises shall be damaged
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by fire or other casualty normally covered by policies of fire and extended
coverage insurance, but are not thereby rendered untenable in whole or in part,
Landlord shall, to the extent insurance proceeds are available from the
Association's casualty insurance or any other available
Please Initial:
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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8
insurance, cause such damage to be repaired, and the Base Rent and Additional
Rent payable hereunder shall not xxxxx. In the event that the Leased Premises
shall be damaged by fire or other casualty covered in full under the fire and
extended coverage insurance carried by Landlord, and less than fifty percent
(50%) thereof is rendered untenantable, Landlord shall, to the extent
insurance proceeds are available from the Association's casualty insurance or
any other available insurance, forthwith proceed to repair such damage, and
restore the Leased Premises, not including any of Tenant's trade fixtures and/or
leasehold improvements, to at least substantially their condition prior to the
time of such damage (subject, however, to changes required by zoning and
building laws then in existence) and the Base Rent due in respect of the size of
the Leased Premises payable hereunder meanwhile shall be abated proportionately
as to the portion of the Leased Premises rendered untenantable, but only if such
casualty is not caused by Tenant or its agents, employees or invitees.
If fifty percent (50%) or more of the Leased Premises shall be
rendered untenantable by reason of such occurrence, Landlord shall, to the
extent insurance proceeds are available, cause such damage to be repaired and
the Base Rent and Additional Rent due in respect of the size of the Leased
Premises meanwhile shall be abated proportionately, provided Tenant or its
agents, employees or invitees did not cause such casualty. In the alternative,
Landlord shall have the right, to be exercised by notice in writing delivered to
Tenant within sixty (60) days from said occurrence to elect not to reconstruct
the destroyed Leased Premises and to terminate this Lease or, in the case of
Tenant, to cancel this Lease and in such event, this Lease and the tenancy
hereby created shall cease as of the date of the said occurrence, the Base Rent
Additional Rent to be adjusted as of such date. If Landlord should elect to
repair, such repairs shall be completed within one hundred and twenty (120) days
after the date of payment of the insurance proceeds in respect of such loss,
subject to delays beyond Landlord's reasonable control such as labor disputes,
acts of God, and supply shortages, and action or inaction by the Association.
In no event shall Landlord be obligated to expend for such repairs or
restoration an amount in excess of the insurance proceeds recovered and Landlord
shall not be required to commence repairs or restoration unless and until such
time as Landlord recovers the insurance proceeds. Landlord shall not be liable
for delays occasioned by adjustment of losses with insurance carriers or by any
other cause so long as Landlord shall proceed in good faith and with due
diligence.
Tenant hereby waives any and all right of recovery which it might
otherwise have against Landlord, its agents and employees, for loss or damage to
Tenant's contents, furniture, furnishings' fixtures and any other property
removable by Tenant under the provisions of this Lease to the extent that the
same are covered by Tenant's insurance,
Please Initial
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Landlord: [SIGNATURE ILLEGIBLE]
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Tenant: [SIGNATURE ILLEGIBLE]
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9
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord, its agents or employees. Tenant shall insure against all such
losses as hereinabove provided.
Tenant acknowledges that the structural and certain other portions of
the Leased Premises are insured by the Association and that Landlord and the
Leased Premises are subject to the provisions of the Condominium Documents and
the requirements of the Association respecting casualty insurance, repairs, and
reconstruction. Landlord shall cooperate with Tenant in good faith to deal with
the Association respecting casualty to the Leased Premises but Landlord shall
not be obligated to bring any lawsuits against the Association nor shall
Landlord be liable for any action or inaction by the Association respecting
insurance, casualty, or repair of the Leased Premises or any other portion of
the Condominium.
Section 7.2 Condemnation. If the whole of the Leased Premises shall be
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acquired or condemned by eminent domain for any public or quasi-public use or
purpose (a sale in lieu of condemnation to be deemed a taking for the purposes
of this paragraph), then the Term of this Lease shall cease and terminate as of
the date of possession being required by the condemning authority and all Base
Rent and Additional Rent shall be paid through that date.
If any part of the Leased Premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose, and in the event
that such partial taking or condemnation shall cause the Leased Premises to be
reduced by thirty percent (30%) or more and Landlord does not provide comparable
substitute space in the Condominium or shall cause the Leased Premises to be
unsuitable for office use, then the Term of this Lease shall cease and terminate
as of the date of possession being required by the condemning authority.
In the event of a partial taking or condemnation, which is not
extensive enough to render the Lease terminable as provided above, then Landlord
shall promptly restore the Leased Premises to a condition comparable to the time
of such condemnation, less the portion lost in the taking, and this Lease shall
continue in full force and effect and the Base Rent and Tenant's Proportionate
Share hereunder shall be equitably adjusted.
If the whole or a substantial portion of the common parking areas in
the Building shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose which directly diminishes Tenant's right to parking
under this Lease, then at Tenant's election the Term of this Lease shall cease
and terminate as of the date of possession being required by the condemning
authority unless Landlord shall take immediate steps to provide other parking
facilities for Tenant's parking requirements under this Lease at Landlord's own
expense. In the event that Landlord shall provide such other parking facilities,
then this Lease shall continue in full force and effect.
Please Initial:
---------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
10
Although all damages in the event of any condemnation are to belong to
Landlord, whether such damages are awarded as compensation for diminution in the
value of the leasehold or the fee, Tenant shall have the right to claim and
recover from the condemning authority, but not from Landlord, 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 for or on account of any cost or loss to
which Tenant might be put in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements and equipment to the extent any such awards do not
diminish the awards otherwise payable to Landlord.
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.1 Events of Default. The occurrence of any of the following shall
-----------------
constitute an Event of Default hereunder:
(a) The filing of a petition by or against Tenant, any parent of
Tenant, or any guarantor of this Lease for adjudication as a bankrupt or
insolvent, for its reorganization or for the appointment of a receiver or
trustee of Tenant's property if not vacated within thirty (30) days from the
date of filing;
(b) An assignment by Tenant, any parent of Tenant, or any guarantor
of this Lease for the benefit of creditors; or the taking of possession of the
property of Tenant by any governmental officer or agency pursuant to statutory
authority for the dissolution or liquidation of Tenant;
(c) Failure of Tenant to pay any installment of Base Rent or
Additional Rent ("Rent"), due hereunder, or any other sum herein required to be
----
paid by Tenant, on or before the tenth (10th) day after same becomes due;
(d) Tenant's failure to perform any other covenant or condition of
this Lease within ten (10) days after written notice and demand or within thirty
(30) days after such notice and demand, if the failure is of such a character as
to require more than ten (10) days to cure, shall constitute an Event of
Default;
(e) Seizure of Tenant's property or any property of a guarantor of
this Lease under any levy, execution, attachment, or other process of court
where the same shall not be promptly vacated or stayed on appeal or otherwise or
if Tenant's interest in the Leased Premises is sold by judicial sale and the
sale is not promptly vacated or stayed on appeal or otherwise;
Please Initial
--------------
Landlord:[SIGNATURE ILLEGIBLE]
---------------------
Tenant:[SIGNATURE ILLEGIBLE]
---------------------
11
(f) Tenant vacates or abandons all or substantially all of the
Leased Premises;
(g) The occurrence of any Event of Default by Tenant prior to
the Commencement Date of the Term of this Lease.
(h) Any financial statements or other similar information
supplied by Tenant, any parent of Tenant, or a guarantor of this Lease are
materially false or misleading.
Section 8.2 Landlord's Remedies and Obligations in Event of Tenant's
--------------------------------------------------------
Default. Landlord and Tenant, each having been advised by respective counsel
-------
as to their respective rights and obligations under the existing statutory and
decisional law of the State of Florida, and each being desirous of obtaining
rights and obligations that might otherwise be unavailable under the existing
law, have bargained for, and do hereby mutually agree, that if any Event of
Default occurs, then, in addition to any other rights or remedies Landlord may
have under any law, Landlord shall have the right, at Landlord's option, without
further notice or demand of any kind to do any or all the following:
(a) Landlord may terminate this Lease and the Term created
hereby, in which event Landlord may forthwith repossess the Leased Premises and
bring an action in damages to recover all Rent due and payable plus any other
sum of money and damages owed by Tenant to Landlord which may accrue through
judgement.
(b) Landlord may elect not to terminate this Lease or the Term
created hereby and not repossess the Leased Premises, and accelerate and declare
that all Rent reserved for the remainder of the Term plus any other sums of
money and damages owed by Tenant to Landlord shall be immediately due and
payable. Landlord may immediately enforce all claims for accelerated rent
(reduced to present dollar values using an assumed interest rate of eight
percent (8%)) and all other sums of money and damages in any court of competent
jurisdiction and may execute, forthwith, on any judgement entered in favor of
Landlord and against Tenant. Additionally, in the event Landlord later elects to
terminate Tenant's right to possession or in the event Tenant abandons or
otherwise relinquishes possession, Landlord shall have the right to immediately
reenter and relet the Leased Premises for the benefit of the Tenant, as provided
in Paragraph 8.2(c) below.
(c) Landlord may terminate Tenant's right of possession,
without terminating the Lease, by any and all actions for possession available
under Florida law, by taking peaceful possession or otherwise, and repossess the
Leased Premises, in which event Landlord may accelerate and declare that all
Rent reserved for the remainder of the Term plus any other sum of money and
damages owed by Tenant to Landlord shall be immediately due
Please Initial
--------------
Landlord:[SIGNATURE ILLEGIBLE]
---------------------
Tenant:[SIGNATURE ILLEGIBLE]
---------------------
12
and payable. Landlord may immediately enforce all claims for accelerated rent
(reduced to present dollar values using an assumed interest rate of eight
percent (8%)) and all other sums of money and damages in any court of competent
jurisdiction and may execute, forthwith, any judgment entered in favor of
Landlord and against Tenant. Landlord may relet the Leased Premises for the
benefit of Tenant, for such rent and upon such terms as shall be satisfactory to
Landlord. If Landlord relets the Leased Premises for the Tenant's account, he
shall provide Tenant with an accounting at the end of the Lease Term to offset
from the accelerated Rents any amount actually received in reletting. For
purposes of providing Tenant with a remedy of accounting, Tenant agrees that his
right to an offset is preserved by the Court retaining jurisdiction in any
judgment for accelerated rent entered in favor of Landlord, which provides
Tenant with the right of an accounting at the end of the Lease Term. (The
obligation to pursue and enforce an accounting, and the burden of proof of any
offsets shall be borne by the Tenant.) For the purpose of such reletting,
Landlord is authorized to decorate, to make any repairs to the Leased Premises
and/or to subdivide or restructure the Leased Premises as Landlord sees fit
("Tenancy Repairs and Modifications"). Further, Landlord is authorized to enter
---------------------------------
into new leases in which the lease term or other terms and conditions are
different from this Lease ("Lease Modifications"). Concerning any Tenancy
-------------------
Repairs and Modifications and any Lease Modifications, Tenant agrees that such
Tenancy Repairs and Modifications and Lease Modifications are being performed
for the purpose of reletting and mitigating Tenant's damages, and, as such are
done for the benefit of the Tenant and are valid costs of reletting.
Alternatively, Landlord may elect not to accelerate Rents under this Provision
but instead, recover, at the end of the Term or as such sums become due, all
Rents and other sums due and payable. If the Leased Premises are relet and a
sufficient sum shall not be realized from such reletting after paying all of the
costs and expenses of such reletting including, without limitation, costs of
decoration, repairs, changes, alternations and additions, including, but not
limited to, advertising and brokerage commissions, and of the collection of the
rent accruing therefrom to satisfy the Rent provided for in this Lease, Tenant
shall satisfy and pay any such deficiency in an accounting at the end of the
Term or such other period as Landlord may elect. If Landlord shall fail to relet
the Leased Premises during the remainder of the base term, the parties agree
that Tenant shall pay to Landlord as damages a sum equal to the amount of the
total stipulated Rent reserved in this Lease for the balance of the Term.
Notwithstanding, Landlord shall have no duty to account to Tenant for any
surplus rent received through reletting. Further, notwithstanding any of the
above, Tenant agrees that Landlord may file suit to recover any sums which
because due under the terms of this paragraph from time to time and that no suit
or recovery of any portion due Landlord hereunder shall be any defense to any
subsequent action brought for any amount not theretofore reduced to judgment in
favor of Landlord. Notwithstanding anything contained herein, no re-entry or the
taking of possession of the Leased Premises shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention to terminate this Lease is given to Tenant. Notwithstanding any such
re-entry or taking of possession, Landlord may, at any time
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE
----------------------
Tenant: [SIGNATURE ILLEGIBLE
------------------------
13
thereafter, elect to terminate this Lease, in which case the provisions of this
Article 8 governing termination shall apply.
(d) In the event of a default of any rental payment or any other
payment due under this Lease, Landlord may in Landlord's notice to Tenant of
such default require Tenant's payment to cure the default be in cash, cashier's
check, and/or certified check. Landlord and Tenant agree that should Landlord so
elect to require payment by cash, cashier's check or certified check in
Landlord's notice to Tenant, a tender of money to cure the default which is not
in the form requested by Landlord shall be deemed a failure to cure the default.
Nothing contained in this Article shall in any way diminish or be construed as
waiving any of Landlord's other remedies as provided elsewhere in this Lease, or
by law or in equity.
Section 8.3 Landlord's Lien. Landlord shall have a first lien and security
---------------
interest, paramount to all others, on every right and interest, of Tenant in
and to this Lease, and upon any improvements which may hereafter be placed on
the Leased Premises, and on any furnishings and equipment, including fixtures or
personal property of every kind thereon, which lien and security interest is
granted for the purpose of securing and performance of each and every of the
covenants, conditions and obligations of this Lease to be performed and observed
by Tenant. Landlord shall have at all times a valid lien for all Rent and other
sums of money becoming due hereunder from Tenant, upon all goods, wares,
inventory, equipment, fixtures, furniture and other personal property and
effects of Tenant situated on the Leased Premises, and such property shall not
be removed therefrom without the consent of Landlord until all arrearages in
Rent shall first have been paid and discharged. Upon the occurrence of an Event
of Default by Tenant, Landlord may, in addition to any other remedies provided
herein or by law, enter upon the Leased Premises and take possession of any and
all goods, wares, equipment, fixtures, furniture and other personal property and
effects of Tenant situated on the Leased Premises without liability for trespass
or conversion, and sell the same at public or private sale, with or without
having such property at the sale, at which Landlord or his assigns may purchase,
and apply the proceeds thereof, less any and all expenses connected with the
taking of possession and sale of the property, as a credit against any sums due
by Tenant and Tenant agrees to pay any deficiency forthwith. Tenant agrees
that the said lien and security interest may be enforced by distress,
foreclosure or otherwise, at the election of Landlord, that Landlord shall have
all of the remedies of a secured party under the Uniform Commercial Code, and
that Tenant shall execute such financing statements a shall be necessary to
perfect such interest. The statutory lien for rent, if any, is not hereby waived
and the express contractual lien herein granted is in addition thereto and
supplementary thereto.
Section 8.4 WAIVER OF JURY TRIAL. It is mutually agreed by and between
--------------------
Landlord and Tenant that the respective parties hereto shall and they hereby do
voluntarily waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties
Please Initial:
---------------
Landlord: [SIGNATURE ILLEGIBLE]
-----------------------
Tenant: [SIGNATURE ILLEGIBLE
-------------------------
14
hereto against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Leased Premises and/or any claim of injury or damage, and
any emergency or other statutory remedy.
Please Initial to Acknowledge Terms of Section 8.4:
--------------------------------------------------
Landlord:[SIGNATURE ILLEGIBLE]
---------------------
Tenant:[SIGNATURE ILLEGIBLE]
---------------------
Section 8.5 Rights Cumulative. The rights and remedies given to Landlord
-----------------
in this Lease are distinct, separate and cumulative remedies, and no one of
them, whether or not exercised by Landlord, shall be deemed to be in exclusion
of any of the others.
Section 8.6 Attorneys' Fees. Tenant further agrees that in the event its
---------------
default in the performance of any of the terms, conditions, or covenants of
this Lease requires Landlord, in the exercise of its sole discretion, to use the
services of an attorney to attempt to or successfully remedy such default, or in
the event of litigation between Landlord and Tenant respecting any other matters
whatsoever arising out of or in any way connected with this Lease, the Leased
Premises, or the relationship of Landlord and Tenant, including but not limited
to actions for declaratory relief, that Tenant will reimburse Landlord for any
and all reasonable expenses incurred in the use of such attorney and in any
action which said attorney may take, whether suit be instituted or not. Such
expenses shall include, but not be limited to legal fees, paraprofessionals'
fees, court costs, costs of filing and serving summons and/or complaint, etc.,
and expenses not otherwise taxable as costs.
Section 8.7 Notice of Default: Service of Three Day Notice. Tenant hereby
----------------------------------------------
agrees to designate ____________________________________________________________
as its agent to accept service of the statutory three (3) day notice. In
addition, Tenant hereby agrees that service of said notice upon any employee of
Tenant within Leased Premises or by posting a copy of the same on the Leased
Premises shall constitute effective and binding service of the same,
notwithstanding and statutory requirements to the contrary.
Section 8.8 Expenses of Enforcement. In the event any payment due
-----------------------
Landlord under this Lease shall not be paid in the due date, said payment shall
bear interest at the rate of eighteen percent (18%) per annum from the due date
until paid, unless otherwise specifically provided herein, but the payment of
such interest shall not excuse or cure any default by Tenant under this Lease.
In the event that it shall be necessary for Landlord to give more than one (1)
written notice to Tenant during the Term of this Lease of any violation of this
Lease, Landlord shall be entitled to make an administrative charge to Tenant of
Fifty and No/100 Dollars ($50.00) for each such additional notice. Tenant
recognizes and agrees that the charges
Please Initial:
--------------
Landlord:[SIGNATURE ILLEGIBLE]
---------------------
Tenant:[SIGNATURE ILLEGIBLE]
---------------------
15
which Landlord is entitled to make upon the conditions stated in this Section
represent, at the time this Lease is made, a fair and reasonable estimate and
liquidation of the cost of Landlord in the administration of the Lease resulting
from the events described which costs are not contemplated or included in any
Rent or other charges provided to be paid by Tenant to Landlord in this Lease.
Any charges becoming due under this Section of this Lease shall be added and
become due with the ensuing monthly payment of Base Rent and shall be
collectible as a part thereof.
Section 8.9 Surrender and Holding Over. If Tenant or anyone claiming
--------------------------
under Tenant shall remain in possession of the Leased Premises or any part
thereof after the expiration of the Term without an agreement in writing between
Landlord and Tenant with respect thereto, the person remaining in possession
shall be deemed a tenant at sufferance, and, during such holding over, all Base
Rent and Additional Rent payable under this Lease shall be payable at a rate
twice the rate in effect immediately prior to the expiration of the Term. In no
event, however, shall such holding over be deemed or construed to constitute an
extension or renewal of this Lease. Upon the expiration and termination of this
Lease, either by lapse of time or otherwise, Tenant shall surrender to Landlord
the Leased Premises in "broom clean" condition, and in good repair, reasonable
wear and tear expected.
ARTICLE 9
ALTERATIONS
Tenant shall not make any non-structural alternations
improvements, repairs, installations or removals or additions to the Leased
Premises which do not affect utility services or plumbing or electrical lines
("Alterations") during the term of this Lease or any extension or renewal
-----------
thereof, without first obtaining the written consent of Landlord, and it shall
not cut or drill into, or secure any fixture, apparatus or equipment of any kind
to any part of the Leased Premises without first obtaining the written consent
of Landlord. All Alterations made by Tenant as aforesaid shall remain upon the
Leased Premises at the expiration or earlier termination of this Lease and shall
become the property of Landlord, unless Landlord shall, prior to the expiration
or termination of this Lease, have given written notice to Tenant to remove the
same, in which event Tenant shall remove such Alterations and restore the
Leased Premises to the same good order and condition in which it was at the
commencement of this Lease. Should Tenant fail to do so, Landlord may do
so, collecting at Landlord's option, the cost and expense thereof from Tenant as
Additional Rent. Tenant shall have no right to make any alterations,
improvements, repairs, installations or removals or additions to the Leased
Premises which are not otherwise permitted pursuant to the terms hereof.
Tenant shall procure all necessary permits before making any
Alterations. Tenant agrees that all Alterations done by it at its request, or
anyone claiming under it, shall
Please Initial:
--------------
Landlord:[SIGNATURE ILLEGIBLE]
---------------------
Tenant:[SIGNATURE ILLEGIBLE]
---------------------
16
be done in a good and workmanlike manner of first class institutional office
building quality, that the same shall be done in conformity with all laws,
ordinances and regulations of all public authorities, that the structure of the
Leased Premises shall not be endangered or impaired and that Tenant shall repair
all damages caused by or resulting from any such Alternations.
ARTICLE 10
TRADE FIXTURES
All trade fixtures installed by Tenant in the Leased Premises shall
be new or completely reconditioned and may remain the property of Tenant and
shall be removable at the expiration or earlier termination of this Lease,
provided Tenant shall not at such time be in default under any covenant or
agreement contained in this Lease; provided further, that in the event of such
removal, Tenant shall promptly restore the Leased Premises to their original
order and condition. Any such trade fixtures not removed at or prior to such
termination shall be and become the property of Landlord. All improvements and
fixtures installed by Tenant, (other than trade fixtures) including, but not
limited to heating equipment, lighting fixtures, air-conditioning equipment,
ceiling, wall treatment, floor covering, plumbing and electrical systems and
fixtures, whether or not installed by Tenant, shall not be removable by Tenant
and shall become the property of Landlord without any compensation therefor to
Tenant, upon the termination of this Lease.
ARTICLE 11
QUIET ENJOYMENT
Upon payment by Tenant of the Base Rent and Additional Rent herein
provided, and upon the observance and the performance of all of the covenants,
terms and conditions on the Tenant's part to be observed and performed, Tenant
shall peaceably and quietly hold and enjoy the Leased Premises for the Term
hereby demised without hindrance or interruption by Landlord or any other person
or persons lawfully or equitably claiming by, through or under Landlord,
subject, nevertheless to the terms and conditions of this Lease; provided,
however, that Landlord shall not be responsible for any action or inaction of
the Association or of any other owner or tenant of any other unit of the
Condominium.
ARTICLE 12
MAINTENANCE
Except for maintenance and repairs performed by the Association, all
maintenance and repairs respecting the Leased Premises shall be performed by
Tenant at Tenant's expense. Tenant shall, at all times, keep the Leased Premises
(including maintenance of its entrances and all glass except to the extent same
is maintained by the Association) and
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
----------------------
Tenant: [SIGNATURE ILLEGIBLE]
------------------------
17
all interior partitions, doors, fixtures and equipment in good order, condition
and repair, except for those portions maintained by the Association. Tenant
further agrees to replace promptly at its own expense with glass of a like kind
and quality and plate glass or window glass of the Leased Premises which may
become cracked or broken by reason of Tenant's negligence; not to place or
maintain articles in the vestibule or entry of the Leased Premises, in the
hallway adjacent thereto or elsewhere on the exterior thereof; not to permit
accumulations of garbage, trash, rubbish and other refuse, and to keep such
refuse in proper containers (or in trash room maintained by Tenant) in the
interior of the Leased Premises until removed; not to use or permit the use of
any apparatus for sound reproduction or transmission or of any musical
instrument in such manner that the sound so reproduced, transmitted or produced
shall be audible beyond the interior of the Leased Premises; to keep all
mechanical apparatus free of vibration and noise which may be transmitted beyond
the confines of the Leased Premises; not to cause or permit objectionable odors
to emanate or be dispelled from the Leased Premises; to comply with all laws and
ordinances and all valid rules and regulations of any Federal, State, Municipal
or public authority or the Association having jurisdiction over the Leased
Premises and Landlord, and all recommendations of any public or private agency
having authority over insurance rates with respect to the use or occupancy of
the Leased Premises by Tenant; and to conduct its business in the Leased
Premises in all respects in a dignified manner and in accordance with high
standards of office operation. In the event Landlord or the Association is
required to make repairs to structural portions of the Leased Premises by reason
of Tenant's negligent acts or omissions to act, Landlord may charge the actual
cost of such repairs to Tenant and such cost shall thereafter become due as
Additional Rent.
ARTICLE 13
SIGNS
Tenant hereby agrees that it will not place or suffer to be placed or
maintained on any exterior door, wall or window of the Leased Premises any
signs, awning, or canopy, or advertising matter or other thing of any kind, and
will not place or maintain any decoration, lettering or advertising matter on
the glass of any window or door of the Leased Premises which is not in
conformity with the Rules and Regulations of the Building as set forth by the
Association without first obtaining Landlord's, and if required by the
Condominium Documents, the Association's, written approval and consent, Landlord
agrees and hereby consents to Tenant placing Tenant's name on the entrance to
the Leased Premises, subject to the Condominium Documents. Tenant further agrees
to maintain such sign, decoration, lettering, advertising matter or other thing
as may be approved or provided by Landlord in good condition and repair at all
times. Tenant further acknowledges that Landlord and the Association may
regulate the lettering, size, placement, color and design of Tenant's sign.
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
18
ARTICLE 14
PARKING
(a) At no additional expense, Tenant shall be entitled to fourteen
(14) parking space(s) at the Condominium, as follows:
=====================================================
Parking Space N degrees Location
-----------------------------------------------------
24 Basement (covered)
-----------------------------------------------------
28 Basement (covered)
-----------------------------------------------------
55 Basement (covered)
-----------------------------------------------------
56 Basement (covered)
-----------------------------------------------------
57 Basement (covered)
-----------------------------------------------------
80 Basement (covered)
-----------------------------------------------------
81 Basement (covered)
-----------------------------------------------------
102 Basement (covered)
-----------------------------------------------------
198 Ground level
-----------------------------------------------------
199 Ground level
-----------------------------------------------------
202 Ground level
-----------------------------------------------------
203 Ground level
-----------------------------------------------------
151 Ground level
-----------------------------------------------------
152 Ground level
=====================================================
(b) Neither Tenant nor its employees shall park in any space which is
not designated as Tenant's assigned spaces. Tenant shall furnish Landlord and
the Association with a list of its employees' vehicle license numbers within
fifteen (15) days after such change occurs. Tenant agrees to assume
responsibility for compliance by its employees with the parking provisions
contained herein. Tenant shall be liable to the Association for any violation of
the Condominium Documents or the Association's requirements respecting parking,
and shall hold Landlord harmless and indemnify Landlord against any loss,
liability, expense, or claims, including reasonable attorneys' fees incurred in
the defense of same, respecting any violation,
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
19
well-founded or un-founded, of a violation of the Condominium Documents or the
Association's requirements respecting parking.
(c) Landlord shall not be liable for any damage whatsoever to, or any
theft of, automobiles or other vehicles or the contents thereof, while in or
about the Condominium parking area.
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.1 No Recording of Lease. The parties hereto agree that neither
---------------------
this Lease nor any notice thereof or reference thereto shall be recorded in any
public records, except that Landlord only may request a memorandum of the
pertinent portions hereof be recorded in the public records of Dade County,
Florida. Such memorandum shall in all events contain the provisions of this
Lease giving notice that Landlord's interest in the Leased Premises shall not be
subject to any construction liens as a result of any contracts entered into
between Tenant and any third party, or arising out of or related to any
improvements made to the Leased Premises or materials or services applied
thereto which may be ordered by Tenant. In the event of such a request by
Landlord, Tenant shall join in the execution of such memorandum for the purpose
recordation.
Section 15.2 Notices. Wherever in this Lease it shall be required or
-------
permitted that notice or demand be given or served by either party to this Lease
to or on the other, such notice or demand shall not be deemed to have been duly
given or served unless in writing, and either personally delivered or delivered
by overnight mail or forwarded by Certified Mail, Return Receipt Requested,
postage prepaid, addressed as follows:
TO THE LANDLORD AT: Apremont, Inc.
0000 X.X. Xxxxx Xxxxxx, XX-X
Xxxxx, Xxxxxxx 00000
Attn.: Xx. Xxxxxx Xxxxxx, President
WITH A COPY TO: SHAPO, XXXXXXXX & XXXXXXXX, P.A.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
20
TO THE TENANT AT: Conquistador Cigar Company
0000 X.X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx, President
WITH A COPY TO: Xxxxxx & Gottbetter
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:Xxxx Xxxxxxxxxx, Esq.
Such addresses may be changed from time to time by either party by serving
notices as above provided. Mailed notice shall be deemed effective three (3)
days after such mailing.
Section 15.3 Access to Leased Premises. Landlord or Landlord's agents and
-------------------------
the agents of the Association shall have the right to enter the Leased Premises
at all times to examine the same, and to show them to prospective purchasers,
mortgagees, or lessees, and to make such Alterations as Landlord or the
Association may deem necessary or desirable, and the Base Rent and Additional
Rent reserved herein shall not xxxxx while said Alterations are being made by
reason of loss or interruption of business of Tenant or otherwise. However,
nothing herein contained shall be deemed or construed to impose upon Landlord
or the Association any obligation, responsibility or liability whatsoever, for
the care, maintenance, or repair of the Condominium or any part thereof, expects
as otherwise herein specifically provided. In the event of an emergency, if
Tenant shall not be personally present to open and permit any entry into said
Leased Premises, Landlord or Landlord's agents or the Association's agents may
forcibly enter the same, without rendering Landlord or Landlord's agents or the
Association or its agents liable therefore, and without in any manner affecting
the obligations and covenants of this Lease.
Section 15.4 Assignment and Subletting.
-------------------------
(a) Tenant shall not assign, mortgage, pledge or encumber this Lease,
in whole or in part, not sublet the whole or any part of the Leased Premises,
nor permit the use of the whole or any part of the Leased Premises, by any
licensee or other persons or entities, without first obtaining the written
consent of Landlord in each instance, which consent shall not be unreasonably
withheld. This prohibition shall be construed to include a prohibition against
any assignments or subletting by operation of law. In the event of any such
assignment, subletting or licensing made with the written consent of Landlord,
as aforesaid, Tenant will nevertheless remain liable for the performance of all
of the terms, conditions and covenants of this Lease. Any permitted assignment,
subletting or license shall be by and agreement in form
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
21
and content acceptable to Landlord. Landlord consents to any sublease in which
United Health Management Co. or a parent, subsidiary, or sister company to
United Health Management Co. is the subtenant.
(b) If Landlord consents to any assignment, sublease or occupancy
pursuant to this Section, except for any assignment or sublease to an entity in
which Xxx Xxxxxxxxx, or a corporation in which Xxx Xxxxxxxxx is a shareholder,
is a shareholder, Tenant shall pay Landlord, as Additional Rent:
(i) in the case of each and every assignment, an amount equal
to ALL monies, property, and other consideration of every kind whatsoever
paid or payable to Tenant by the assignee for such assignment and for all
property of Tenant transferred to the assignee as part of the transaction
(including, but not limited to, fixtures, other leasehold improvements,
furniture, equipment and furnishings); and
(ii) in the case of each and every sublease or occupancy
arrangement, ALL Base Rent, Additional Rent, and/or other monies, property,
and consideration of every kind whatsoever paid or payable to Tenant by the
subtenant under the sublease or occupant under occupancy arrangement, LESS
all Rent under this Lease accruing during the term of the sublease or
occupancy arrangement in respect of the subleased or occupied space (as
reasonably determined by Landlord, taking into account the useable area of
the Leased Premises demised under the sublease or occupancy arrangement).
(c) No such assignment, subletting or occupancy arrangement shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as Tenant, as a release of Tenant from the further performance by
Tenant of the covenants on the part of Tenant herein contained.
(d) If Tenant is a corporation, general partnership or limited
partnership and if at any time during the Lease Term, without the written
consent of Landlord, the person(s) or entity(ies) who own a majority interest of
Tenant, either directly or indirectly, at the time of the execution of this
Lease cease to own a majority interest (except as a result of transfers by
bequest or inheritance), Tenant shall so notify Landlord and Landlord may
terminate this Lease by notice to Tenant given within Ninety (90) days
thereafter. Any consent by Landlord to an assignment or subletting of this Lease
or occupancy arrangement shall not constitute a waiver of the necessity of such
consent to any subsequent assignment, subletting or occupancy arrangement.
Please Initial
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
22
Section 15.5 Subordination.
-------------
(a) This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to the lien of any and all mortgages entered into by
Landlord which may now or hereafter encumber the Leased Premises, and to all
renewals, modifications, amendments, consolidations, replacements and extensions
thereof and to any and all ground lease(s) or master lease(s) of the Condominium
or any lien resulting from any method of financing or refinancing, now or
hereafter in force against the Condominium or Leased Premises and to all
advances made or hereafter to be made upon the security thereof; provided,
however, that with respect to any mortgage entered into Landlord after the date
of this Lease, the subordination provided in this Section 15.5 shall be
conditioned upon the mortgagee agreeing to not to disturb the Tenant's occupancy
of the Leased Premises and to allow Tenant quiet enjoyment thereof for so long
as Tenant complies with each and every covenant and obligation to be observed by
Tenant under this Lease. This subordination shall be self-operative and no
further instrument of subordination shall be required for its operation. Tenant
agrees, however, upon demand, to execute promptly such instruments, without
expense to Landlord, as Landlord or a mortgagee may reasonably request to
further evidence the subordination of this Lease to any existing or future
mortgage or other security agreement, ground lease or master lease.
(b) In the event any proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under any mortgage made by
Landlord covering the Leased Premises, or in the event a deed is given in lieu
of foreclosure of any such mortgage, or upon the assignment of this Lease by
Landlord, Tenant shall attorn to the purchaser or grantee in lieu of
foreclosure, upon any such foreclosure or sale, and recognized such purchaser or
grantee in lieu of foreclosure, as Landlord under this Lease. Such Landlord,
mortgagee or purchaser at said foreclosure sale, shall not be:
(i) Liable for any act or omission of any prior Landlord;
(ii) Subject to any offsets or defenses which Tenant may
have against any prior Landlord; or
(iii) Bound by any Base Rent or Additional Rent which Tenant
may have paid to any prior Landlord for more than the current month.
(c) Tenant shall execute promptly any such instruments or
certificates required to carry out the intent of this Section as shall be
requested by Landlord. Tenant hereby irrevocably appoints Landlord as attorney
in fact for Tenant with full power and authority to execute and deliver in the
name of Tenant, any such instruments or certificates required pursuant to this
Section. If within ten (10) days after the date of a written request by Landlord
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
23
to execute such instrument, Tenant shall not have executed same, Landlord may,
at its option, cancel this Lease without incurring any liability on account
therefor.
Section 15.6 Construction Liens. Tenant shall not do any act, nor is
------------------
Tenant authorized to make any contract which may create or be the foundation for
any lien or other encumbrance upon any interest of Landlord or any other unit
owner in any portion of the Leased Premises or the Condominium. If, because of
any act or omission (or alleged act or omission) of Tenant, any construction,
mechanic's, or other lien, charge or order for the payment of money or other
encumbrance shall be filed against Landlord, and/or any other unit owners and/or
any mortgagee, and/or any portion of the Leased Premises or the Condominium
(whether or not such lien, charge, order or encumbrance is valid or enforceable
as such), Tenant shall, at its own cost and expense, cause the same to be
discharged of record or bonded within thirty (30) days after notice to Tenant of
the filing thereof; and Tenant shall indemnify and save harmless Landlord, all
other units owners, and all mortgagees against and from all costs, liabilities,
suits, penalties, claims and demands, including attorney's fees and appellate
attorneys' fees resulting therefrom. In the event Tenant fails to comply with
the foregoing provisions of this Section, Landlord shall have the option of
discharging or bonding any such lien, charge, order, or encumbrance by payment
or otherwise, and Tenant agrees to reimburse Landlord for all costs, expenses
and other sums of money in connection therewith (as Additional Rent) with
interest at the rate of eighteen percent (18%) per annum promptly upon demand.
Section 15.7 Entire Agreement. This Lease and the exhibits and addenda,
----------------
if any, attached hereto and forming a part hereof, set forth all the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Leased Premises, and there are no covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than as set forth herein. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and, signed by each.
Section 15.8 No Partnership. Landlord shall not, in any way or for any
--------------
purpose, be deemed to become a partner of Tenant, in the conduct of its business
or otherwise, or joint venturer or a member of a joint enterprise, with Tenant.
Section 15.9 Captions and Section Numbers. The captions, section numbers,
----------------------------
article numbers and table of contents appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of such Sections or Articles of this Lease, nor in any way
affect this Lease.
Section 15.10 Partial Invalidity. If any term, covenant or condition of
------------------
this Lease, or the application thereof to any person or circumstance shall to
any extent be invalid or
Please Initial:
---------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
24
unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those to which it
is held invalid or unenforceble, shall not be affected thereby and each other
term, covenant and condition of this Lease shall be valid and be enforced, to
the fullest extent permitted by law.
Section 15.11 Governing Law. This Lease has been made and executed in the
-------------
State of Florida and shall be construed and enforced in accordance with the laws
of the State of Florida.
Section 15.12 Waiver. The waiver by Landlord of any breach of any term,
------
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
Rent hereunder by Landlord shall not be deemed to be a waiver of any particular
breach by Tenant of any term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time of the acceptance of
such Rent. No covenant, term or condition of this Lease shall be deemed to have
been waived by Landlord, unless such waiver be in writing by the Landlord.
Section 15.13 Accord and Satisfaction. No payment by Tenant or receipt by
-----------------------
Landlord of a lesser amount other than the Rent herein stipulated shall be
deemed to be other than on account of the stipulated Rent nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of Base Rent or Additional Rent or pursue any other remedy provided in
this Lease.
Section 15.14 Successors and Assigns. All rights, obligations and
----------------------
liabilities herein, given to, or imposed upon the respective parties hereto
shall extend to and bind the several and respective heirs, executors,
administrators, successors, sublessees and assigns of said parties; provided,
however, that the liability of Landlord hereunder and any successor in interest
and title to the Leased Premises shall be limited to his or its interest in the
Condominium and Building, and no other assets of Landlord other than his or its
interest in the Condominium, and no other assets of Landlord other than his or
its interest in the Condominium shall be affected by reason of any liability
which Landlord or its successor in interest may have under this Lease. Any and
all such liability imposed on Landlord shall terminate upon Landlord's transfer,
sale, assignment or hypothecation of his or its interest in the Condominium. If
there shall be more than one Tenant, they shall all be bound jointly and
severally by the terms, covenants and agreements herein and the word "Tenant"
------
shall be deemed and taken to mean each and every person or party mentioned as a
Tenant herein, be the same one or more; and if there shall be more than one
Tenant, any notice required or permitted by the terms of this Lease, may be
given by or to any one thereof and shall have the same force and effect as if
given by or to all thereof. No rights, however, shall inure to the benefit of
any assignee of
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
-----------------------
Tenant: [SIGNATURE ILLEGIBLE]
--------------------------
25
Tenant unless the assignment to such assignee has been approved by Landlord in
writing as aforesaid.
Section 15.15 Brokerage Indemnity. Landlord and Tenant each hereby
-------------------
represent and warrant to the other that they have dealt with no broker, finder
or similar agent, in connection with this Lease, except for Greater Miami
-------------
Investments, Inc., whose commission will be paid by Landlord. In the event that
------------------
any broker or agent claims a brokerage fee in connection with this transaction
other than Greater Miami Investments, Inc., the party responsible therefore,
agrees to pay said fee and to indemnify and hold harmless the other party from
and against any and all liability and expense in connection with commissions,
compensation or otherwise for the bringing about of this transaction or the
consummation thereof, including reasonable attorneys' and paraprofessionals'
fees (in an effort to defend the brokerage claim), for the non-responsible party
should it be joined in litigation.
Section 15.16 Condition of Leased Premises. Taking possession of the
----------------------------
Leased Premises by Tenant shall be conclusive evidence as against Tenant that
the Leased Premises were in good and satisfactory condition when possession was
so taken. Tenant agrees to accept the Leased Premises in their current condition
and to make certain improvements thereto, subject to Landlord's approval as
provided in Section 15.20(a), at Tenant's sole cost and expense.
Section 15.17 Taxes. Tenant shall be responsible for and shall pay before
-----
delinquency all municipal, county or state taxes assessed during the Term of
this Lease against any occupancy interest or personal property of any kind,
owned by or placed in, upon or about the Leased Premises by Tenant. Tenant shall
also pay to Landlord any sales, use or excise tax, or any similar tax assessed
or levied with respect to the Rent received by Landlord and with respect to any
amounts receivable by Landlord under this Lease or otherwise as may be now or
hereafter authorized by the laws of any governmental authority having
jurisdiction in the matter, whether federal, state, county or municipal.
Landlord shall pay all real estate taxes respecting the Leased Premises.
Section 15.18 Prior Occupancy. If Tenant, with Landlord's consent, shall
---------------
occupy the Leased Premises prior to the beginning of the Lease Term specified in
Section 1.3 hereof, all provisions of this Lease shall be in full force and
effect commencing upon such occupancy, and Rent for such period shall be paid by
Tenant at the rate herein specified.
Section 15.19 Time and Consent. It is understood and agreed hereto that
----------------
time is of the essence regarding all the terms, provisions, covenants and
conditions of this Lease. Unless otherwise provided herein to the contrary,
whenever the consent of either party shall be required hereunder such consent
shall not be unreasonably withheld or delayed.
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
--------------------------
Tenant: [SIGNATURE ILLEGIBLE]
----------------------------
26
Section 15.20 Leasehold Improvements.
----------------------
(a) Tenant shall submit the plans and specifications for its
leasehold improvements (the "Leasehold Improvements") to landlord for its
----------------------
approval prior to commencement of Tenant's construction thereof. Landlord's
consent shall not be unreasonably withheld, delayed or conditioned. If Landlord
does not raise objections thereto within ten (10) business days after delivery
of such plans and specifications to Landlord, they shall be deemed approved.
(b) Tenant shall be permitted to select a contractor of its choice to
perform the Leasehold Improvements, subject to Landlord's approval, which
approval shall not be unreasonably withheld or delayed, with the cost of such
services to be borne and paid for by Tenant. It is to be understood and agreed
that Landlord shall receive no fee for profit, overhead or general conditions in
respect of the other contractor's work or for review of plans and specifications
prepared for Leasehold Improvements. Tenant shall be responsible for any damage
caused to the Condominium by such contractor and any subcontractors, laborers,
materialmen or others in the Condominium at the request of Tenant.
Section 15.21 Security. Tenant has deposited with landlord the sum of Ten
--------
Thousand an No/100 Dollars ($10,000.00) as security for the faithful performance
and observance by Tenant of the terms, provisions and conditions of this Lease.
It is agreed that in the event Tenant defaults in respect of any of the terms,
provisions and conditions of this Lease, including, but not limited to, the
payment of Rent, Landlord may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any such Rent or
any other sum as to which Tenant is in default or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, covenants and conditions of this Lease, including but not
limited to, any damages of deficiency in the reletting of the Leased Premises,
whether such damages or deficiency accrued before or after summary proceedings
or other reentry by Landlord. In the event that Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Lease, the security shall be returned to Tenant after the date fixed as the
end of this Lease and after delivery of entire possession of the Leased Premises
to Landlord. In the event of a sale of the Leased Premises, Landlord shall have
the right to transfer the security to the vendee and Landlord shall thereupon be
released by Tenant from all liability for the return of such security, and
Tenant agrees to look to the new Landlord solely for the return of said
security; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Landlord. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
27
In the event Landlord uses, applies, or retains the whole or any part
of the security deposited with Landlord in accordance with this Section 15.21,
Tenant shall, on demand, pay to Landlord the sum so used, applied or retained
which shall be added to the security deposit so that the same shall be
replenished to its former amount.
Section 15.22 Hazardous Waste.
---------------
(a) Tenant shall not use, handle, store, display or generate in the
Leased Premises any materials which are toxic, ignitable, corrosive or reactive
or any other hazardous materials without compliance with any and all applicable
federal, state or local laws and regulations.
(b) Tenant shall indemnify, demand and hold harmless Landlord against
and from any and all liability, damages, judgments, costs, fees and expenses,
including without limitation thereto, reasonable attorneys' and
paraprofessionals' fees at all levels, which may be incurred by Landlord in
complying with, or curing a violation by Tenant of this Section.
Section 15.23 Radon Gas Disclosure. Radon is a naturally occurring
--------------------
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
Section 15.24 Option to Renew Lease. Landlord grants to Tenant the option
---------------------
(the "Option") to renew this Lease on the same terms and conditions as
------
contained in this Lease (except for this Section 15.24 and except as otherwise
provided in this Section 15.24), for a single term (the "Option Term") of five
-----------
years from the expiration date of this Lease, provided that Tenant is not in
default of any of the provisions of this Lease a the time Tenant exercises the
Option and does not default under the Lease prior to the commencement of the
Option Term (and at either time no event has occurred, which but for the passage
of time would constitute a default). Tenant shall have the right to exercise the
Option at any time during the initial term of this Lease up to one hundred
eighty (180) days preceding the expiration date of the original term of this
Lease, after which the Option will be deemed to have expired and to have been
waived if the Option has not been exercised by that date.
(a) Method of Exercising Option. Tenant shall exercise the Option by
---------------------------
giving written notice ("Option Notice") to Landlord within the time period
-------------
provided in Section 15.24. The Option Notice shall be given pursuant to the
procedures for notices provided the Lease.
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
28
(b) Base Rent. The Base Rent for the Option Term shall be determined
---------
as provided in Section 2.1 of this Lease, including the provision thereof for
annual increase of Base Rent provided in Section 2.1 (d), subject to the cap
provided in Section 2.1 (d)(iv), and the provision for payment of increases in
Condominium assessments provided in Section 2.1 (e), both of which shall apply
for each lease year of the Option Term.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this
Lease as of the date and year first above written.
WITNESSES: LANDLORD:
APREMONT, INC., a Florida corporation
[SIGNATURE ILLEGIBLE]
------------------------------
Print name:___________________
/s/Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx,
------------------------------ ------------------------------------
Print name: Xxxx Xxxxxxx Xxxxxx Xxxxxx, as President
------------------
TENANT:
CONQUISTADOR CIGAR COMPANY,
a Delaware corporation
[SIGNATURE ILLEGIBLE]
------------------------------
Print name:___________________
/s/ Xxxx Xxxxxxx [SIGNATURE ILLEGIBLE]
------------------------------ ----------------------------------------
Print name: Xxxx Xxxxxxx Xxxxxxx Xxxxxx, as President
------------------
Please Initial:
--------------
Landlord:[SIGNATURE ILLEGIBLE]
---------------------
Tenant:[SIGNATURE ILLEGIBLE]
---------------------
29
EXHIBIT A
---------
GUARANTY
THIS GUARANTY ("Guaranty") is made as of March 29, 1996, and between the persons
--------
who have executed this Guaranty as "Guarantor(s)" (collectively, "Guarantor"),
---------
and APREMONT, INC., a Florida corporation, having offices at 0000 X.X. Xxxxx
Xxxxxx, XX-X, Xxxxx, Xxxxxxx 00000, ("Landlord").
--------
WHEREAS, CONQUISTADOR CIGAR COMPANY, a Delaware corporation, ("Tenant"),
------
having an office at 0000 X.X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, is
desirous of becoming the tenant of the space designated as Xxxxx 000, 000, xxx
000 xx XXXXXXX VIEW PLAZA, a condominium, according to the Declaration thereof
as recorded on June 15, 1982, in Official Records Book 11469 at page 2196 of the
Public Records of Dade County, Florida, and situate at 0000 X.X. Xxxxx Xxxxxx,
Xxxxx, Xxxxxxx 00000 (the "Leased Premises"), pursuant to a lease (the "Lease")
--------------- -----
between Landlord and Tenant dated as of March 29, 1996, and
WHEREAS, Guarantor is a shareholder of Tenant; and
WHEREAS, Landlord has refused to enter into the Lease unless Guarantor
executes and delivers this Guaranty to Landlord;
NOW, THEREFORE, to induce Landlord to enter into the Lease, and in
consideration of the sum of One Dollar and other good and valuable
consideration, the receipt of which is hereby acknowledged, Guarantor hereby
represents, covenants, warrants, and agrees as follows:
1. Guarantor absolutely and unconditionally guarantees to Landlord and
any mortgagee having an interest in Landlord's interest in the Lease, and to
each separately, punctual, full, and faithful performance and observance by
Tenant of all of the terms, provisions, and conditions of the Lease to be
performed and observed by Tenant. Notwithstanding anything to the contrary
provided in this Guaranty, this Guaranty shall only apply to and Guarantor only
guaranties hereunder the performance and observance by Tenant of all of the
terms, provisions, and conditions of the Lease to be performed and observed by
Tenant under the Lease during the first twelve months of the term of the Lease.
Guarantor shall have no liability for any liability of Tenant coming due after
the first twelve months of the term of the Lease, including but not limited to
Base Rent and Additional Rent for any period after the first twelve months of
the term of the Lease.
Please Initial:
--------------
Landlord:[SIGNATURE ILLEGIBLE]
---------------------
Tenant:[SIGNATURE ILLEGIBLE]
---------------------
2. Guarantor waives notice of any breach or default by Tenant under the
Lease and --- and all other notices and demands. Under no circumstances shall
Landlord be required to institute or pursue any action or proceeding at law or
in equity against Tenant or anyone else prior to demanding or obtaining
performance from Guarantor under this Guaranty.
3. All rights and remedies afforded to Landlord by reason of this
Guaranty are separate and cumulative rights and remedies and it is agreed that
no one of such rights or remedies, whether exercised by Landlord or not, shall
be deemed to be an exclusion of any of the other rights or remedies available to
Landlord and shall not limit or prejudice any other legal or equitable right or
remedy which Landlord may have.
4. Any act of Landlord, or the successors or assigns of Landlord,
consisting of a waiver of any of the covenants to be performed by Tenant, the
giving of any consent to any manner or thing relating to the Lease, or the
granting of any indulgences or extensions of time to Tenant may be done without
notice to Guarantor and without releasing the obligations of Guarantor
hereunder.
5. The obligations of Guarantor hereunder shall not be released or
diminished by Landlord's failure to enforce the Lease or any waiver under,
extension to, or other modification of the Lease or assignment thereof or
subletting thereunder.
6. The liability of Guarantor hereunder shall in no way be affected by
(a) the release or discharge of Tenant in any creditors', receivership,
bankruptcy, or other proceedings, whether voluntary or involuntary; (b) the
impairment, limitation, or modification of the liability of Tenant or the estate
of Tenant in bankruptcy, or of any remedy for the enforcement of Tenant's
liability under the Lease, resulting from the operation of any present or future
proceedings with respect to bankruptcy or creditors' rights; (c) the rejection
or disaffirmance of the Lease in any such proceedings; (d) the assignment,
attempted assignment, or transfer of the Lease or any subletting of the Leased
Premises by Tenant, whether consented to by Landlord or not; (e) any disability
or other defense of Tenant; (f) the cessation from any cause whatsoever of the
liability of Tenant; (g) any default, failure or delay, willful or otherwise, in
performance of the terms of the Lease to be performed by Tenant; (h) the failure
or delay of Landlord to assert any claim or demand or to enforce, assert or
exercise any right, power or remedy against Tenant or any other person with
respect to the Lease; or (i) any modification, amendment or other change to the
terms and provisions of the Lease.
7. No invalidity, irregularity or unenforceability of all or any part of
the terms of the Lease shall affect, impair or be a defense to this Guaranty,
and the promise to pay contained in this Guaranty is a primary obligation of
Guarantor.
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
2
8. In the case of any proceedings to collect any payment hereunder or any
other litigation between Guarantor and Landlord respecting this Guaranty, the
Lease, Tenant's occupancy of the of the Leased Premises, or any other matters
whatsoever arising out of or in any way connected with the Lease or this
Guaranty, Guarantor shall pay all costs and expenses of Landlord whatsoever, of
every kind for collection, sale or delivery, including without limitation
thereto reasonable attorneys' fees at all levels, and such sums, at Landlord's
election, may be an offset against the proceeds of sale or collection and
thereafter the Landlord may apply any residue to pay any liabilities of
Guarantor, who shall continue to be liable for any deficiency.
9. Guarantor covenants and represents that:
(a) There is no action or proceeding pending or, to the knowledge of
Guarantor, threatened against Guarantor before any court or administrative
agency and no event has occurred which might result in any material adverse
change in the business condition of Guarantor or in the property of Guarantor
from the condition of Guarantor as set forth in the most recent financial
statement of Guarantor furnished to Landlord. Guarantor shall deliver to
Landlord within ninety (90) days after the end of each calendar year, an audited
statement of its net worth prepared in accordance with generally accepted
accounting principles (unless Guarantor is a natural person) applied in a manner
satisfactory to Landlord.
(b) Guarantor has filed all Federal and State Income Tax returns
which are required to be filed, and has paid all taxes as shown on said returns
to the extent that such taxes have become due.
(c) Guarantor is not individually or jointly a party to any contract
or guaranty which materially and adversely affects its business, property,
assets or financial condition (exclusive of guarantees and other similar
contingent obligations incurred in the ordinary course of business and generally
disclosed on the most recent financial statement of such Guarantor furnished to
Landlord). Neither the execution, honor or delivery of this Guaranty nor the
fulfillment of or compliance with the terms and provisions hereof will conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under or result in the creation of any lien, charge or
encumbrance upon any property or assets of Guarantor under any other guaranty or
instrument to which Guarantor is now a party or by which Guarantor may be bound.
10. If any of the following events occur and be continuing:
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
3
(a) If any representation or warranty by Guarantor herein or any
representation or warranty in any writing furnished in connection with or
pursuant to this Guaranty shall be false in any respect on the date as of which
made; or
(b) If Guarantor defaults after demand in the performance or
observance of any guarantee, covenant, term or condition contained in this
Guaranty; or
(c) If Guarantor makes an assignment for the benefit of creditors; or
(d) If Guarantor petitions or applies to any tribunal for the
appointment of a trustee or receiver of the business, estate or assets or of any
substantial portion of the business, estate or assets of Guarantor, or commence
any proceedings, relating to Guarantor under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction, whether now or hereafter in effect; or
(e) If any such petition or application is filed or any such
proceedings are commenced against Guarantor and Guarantor by any act indicates
its approval thereof, consent thereto, or acquiescence therein, or any order is
entered appointing any such trustee or receiver, or declaring Guarantor bankrupt
or insolvent, or approving the petition in any such proceedings;
THEN, an event of default under this Guaranty shall have occurred and
Landlord, at its option, may declare all sums guaranteed hereunder forthwith due
and payable, under the terms of and with the effect provided in this Guaranty,
regardless of whether (a) a default by Tenant shall have occurred under the
Lease or (b) Landlord shall have exercised any of its rights or remedies under
the Lease.
11. This Guaranty may not be changed, modified, discharged or terminated
orally or in any manner other than by a written instrument signed by Guarantor
and Landlord.
12. Notice of acceptance of this Guaranty, presentment, demand for
payment, protest, notice of default or non-payment, notice of dishonor and all
other notices and demands are hereby waived by Guarantor.
13. This Guaranty and the rights and obligations of the Landlord and of
Guarantor hereunder shall be governed and construed in accordance with the laws
of the State of Florida; and this Guaranty is binding upon Guarantor, its
successors and assigns, and shall inure to the benefit of the Landlord, its
successors and assigns. Guarantor hereby irrevocably submits to the jurisdiction
of any Florida State or Federal Court located in Dade County over any action or
proceeding arising out of any dispute between Guarantor and the Landlord, and
Guarantor
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
---------------------
4
other irrevocably consents to the service of any processing any such action or
proceeding ??? the mailing of a copy of such process to Guarantor at the address
set forth herein.
14. Guarantor hereby agrees and acknowledges that this Guaranty is an
instrument for the payment of money, and hereby consents that Landlord, at its
sole option, in the event of a default by Guarantor in the payment of any of the
moneys due hereunder, shall have the right to bring an action under the summary
proceeding statutes of the State of Florida.
15. If there shall be more than one Guarantor, each of the Guarantors
agrees to be bound jointly and severally by the terms, covenants, and agreements
herein and the word "Guarantor" shall be deemed and taken to mean each and every
---------
person or party mentioned as a Guarantor herein, be the same one or more. If
there shall be more than one Guarantor, any notice required hereunder may be
given by or to any one thereof and shall have the same force and effect as if
given by or to all thereof. A separate action may be brought to enforce the
provisions hereof against any one or more of the Guarantors whether or not
Tenant, or any of the other Guarantors, is a party in any such action. Tenant
and/or each of the Guarantors may be sued together, or any one of them may be
sued separately without first or contemporaneously suing the other.
16. Execution and acceptance of this Guaranty by Landlord are waived.
IN WITNESS WHEREOF, Guarantor has hereunto set his hand and seal this
day and year first above written.
Witnesses: Guarantor(s)
VIKING INVESTMENT GROUP II, INC., a
Delaware corporation
[SIGNATURE ILLEGIBLE] By: /s/ Xxx Xxxxxxxxx {seal}
---------------------------- ------------------------------
Xxx Xxxxxxxxx, President
Address: 000 Xxxxx Xxxxxx
------------------------
XX, XX 00000
---------------------------------
[SIGNATURE ILLEGIBLE] _________________________________
----------------------------
Please Initial:
--------------
Landlord: [SIGNATURE ILLEGIBLE]
---------------------
Tenant: [SIGNATURE ILLEGIBLE]
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5
