WAREHOUSE LEASE
THIS AGREEMENT entered into this 3rd day of February, 1997, by and between
LAKESIDE PROPERTY INVESTMENT GROUP, INC., a Florida corporation, hereinafter
referred to as "Landlord", and U.S. CIGAR DISTRIBUTORS, INC., a Florida
corporation hereinafter called "Lessee".
Upon the terms and conditions hereinafter set forth and in consideration for the
payment of rents hereinafter provided and in consideration of the performance
continuously by the Lessee of each and every covenant and agreement herein
contained to be kept and performed, the performance of each and every one of
which is declared to be an integral part of the consideration to be paid by the
Lessee, the Landlord does hereby lease, rent and demise unto the Lessee and the
Lessee does hereby lease from and of the Landlord the warehouse space known as
Condominium Xxxx 0, xx Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx, a Condominium,
according to the Declaration thereof recorded in the Public Records of Dade
County, Florida, and commonly known as 0000 X.X. 00xx Xxxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000.
1. TERM:
A. INITIAL TERM: The term of this Lease shall begin February 1, 1997,
and shall end on January 31, 2002, unless extended or sooner terminated as
hereinafter provided.
B. OPTION TO RENEW: Provided that Lessee is not in default of the
terms of this lease, the Landlord grants to the Lessee an option to extend this
Lease for an additional 5 year term upon the same terms and conditions except
rent which must be renegotiated between the Landlord and Lessee. Failure of
Lessee to give written notice to Landlord 60 days prior to the termination date
or failure to agree on a new rental amount within 30 days of the termination
date will render the option to renew null and void.
2. BASE RENT. Lessee shall pay to Landlord at such place as directed from
time to time by notice to Lessee from Landlord, a minimum total "Base Rent" for
the Lease Term equal to ONE HUNDRED AND TWENTY THOUSAND AND 00/100 ($120,000.00)
payable in equal monthly installments of TWO THOUSAND DOLLARS AND 00/100
($2,000.00) plus the applicable sales or rent tax thereon with the first payment
of Base Rent to be made by Lessee to Landlord on February 1, 1997. Checks
returned from the bank must be covered by cash, cashier's check, or money order,
plus (i) a $35.00 returned check charge for administrative fees, and (ii)
whatever fees are levied by the Landlord's bank in connection therewith. Any
time the Lessee does not pay any rent or additional rent due hereunder by its
due date and the Landlord serves a 13-day notice upon Lessee, Lessee agrees to
reimburse Landlord the sum of $225.00 for attorney's fees for preparation and
for service of such notice. All payments due from Lessee under this Lease which
even if not specifically designated as rent shall be due, payable, and
enforceable as additional rent hereunder.
2 a. ADDITIONAL RENT: As and for additional rent the Lessee shall pay to
the Landlord each year an amount equal to the ad valorem real property taxes
assessed against the premises. Payment by the Lessee shall be made to the
Landlord within 30 days of the Landlord delivering to the Tenant a copy of the
tax xxxx and request for payment.
3. SECURITY DEPOSIT AND LAST MONTH'S RENT DEPOSIT. Lessee will on February
1, 1997, deposit with Landlord the sum of $2,000.00 as security deposit. The
parties agree that the security deposit of $2,000.00 shall be retained by
Landlord as security for the payment by Lessee of the rents and other payments
herein agreed to be
1
paid by Lessee and for the faithful performance by Lessee of the terms and
covenants of this Lease. It is agreed that Landlord, at Landlord's option in the
event of default by Lessee, may at any time and without notice to the Lessee
apply said sum or any part thereof toward the payment of the rents and all other
sums payable by Lessee under this Lease, and toward the performance of each and
every of Lessee's covenants under this Lease, but such covenants and Lessee's
liability under this Lease shall thereby be discharged only pro tanto; that
Lessee shall remain liable for any amounts that such sum shall be insufficient
to pay; that Landlord may exhaust any or all rights and remedies against Lessee
before resorting to said sum, but nothing herein contained shall required or be
deemed to require Landlord so to do; that, in the event this deposit shall not
be utilized for any such purposes, then such deposit shall be returned by
Landlord to Lessee within -20- days next after the expiration of the term of
this Lease and Lessee shall have vacated the Leased Premises and returned the
keys and the premises, broom swept clean, to Landlord. Landlord shall not be
required to pay Lessee any interest on said security deposit; it need not be
held in a separate account; and it may be commingled with other funds of the
Landlord.
Lessee will on February 1, 1997, deposit with Landlord the sum of $2,000.00
on account of the last month's rent due January 1, 2002.
4. ASSIGNABILITY. Lessee shall not assign, transfer, mortgage, pledge or
otherwise encumber or dispose of this Lease or sublet the Leased Premises or
permit the premises to be occupied by other persons without the express written
consent of the Landlord, which consent can be unreasonably denied.
5. LESSEE'S RISKS. Lessee assumes all risks of any damage to Lessee's
property that may occur by reason of water or by the bursting or leaking of any
pipes or waste water about the premises, or from any act of negligence of any
co-tenant or occupant of the building, or of any person or fire or hurricane or
other Act of God, or from any cause whatsoever. All property placed or moved in
the Leased Premises shall be at the risk of Lessee or the owner thereof, and
Landlord shall not be liable to Lessee for any damages to said personal property
unless caused by or due to gross negligence of Landlord, Landlord's agents or
employees.
6. SALE OF LEASED PREMISES. A sale of the Leased Premises shall relieve
Landlord of responsibility for return of its security deposit and the last
month's rent deposited with Landlord, and Lessee shall look solely to the
purchaser for the return thereof.
7. ESTOPPEL/CERTIFICATES. Within -7- days of Landlord's written request,
Lessee agrees at any time, and from time to time, to execute, acknowledge and
deliver to Landlord a written statement certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and stating the modifications), and the
dates to which the rent and other charges have been paid in advance, if any, it
being intended that any such statement delivered pursuant to this paragraph may
be relied upon by any prospective purchaser or mortgagee of the Leased Premises.
8. INSPECTION. Lessee, having examined the Leased Premises, is familiar
with the condition thereof and relying solely on such examination will take them
in their present condition.
9. PURPOSES. Landlord makes no warranties and representations with regard
to the purposes for which the Leased Premises may be used. Lessee has made its
own independent investigation and is satisfied that the Leased Premises may be
used for the purposes for which Lessee intends to use the same, to wit: to store
and distribute cigars and tobacco. The Leased Premises shall be used for no
other purposes, except as Landlord may reasonably consent to in writing.
2
Lessee shall not permit the Leased Premises to be used in any manner which
would render the insurance thereon void or the insurance risk more hazardous.
Lessee shall not use or occupy the Leased Premises, or permit the Leased
Premises to be used or occupied, contrary to any statute, rule, order,
ordinance, requirement or regulation applicable thereto, or in any manner which
would violate any certificate of occupancy affecting the same, or which would
cause structural injury to the improvements, or cause the value or usefulness of
the Lease Premises, or any part thereof, to diminish, or which would constitute
a public or private nuisance or waste.
10. ALTERATIONS. Lessee will make no alterations, additions or improvements
in or to the Leased Premises without the prior written consent of Landlord. All
additions, fixtures and improvements shall be and remain a part of the premises
at the termination of this Lease unless Landlord shall require, by giving
written notice thereof to Lessee either when Landlord consents to such
alterations, improvements or additions or at any time prior to the termination
of this Lease, that the same, or any part thereof, be removed at the termination
of this Lease. If the Landlord notifies the Lessee that any alterations,
improvements or additions be removed, then Lessee shall be responsible for
restoring the premises, or such portion thereof which the Landlord designates,
as the case may be, to the condition it was in at the commencement of this
Lease.
11. MAINTENANCE AND REPAIRS. Landlord shall have no obligation to make any
repairs or maintain any portion of the Leased Premises except for the roof and
exterior walls which is the obligation of the condominium association, provided,
however, that in the event of any damage to any portion of the Leased Premises
required to be maintained by Landlord or association is a result of the neglect,
negligence or fault of Lessee, its agents, servants, employees or invitees, then
Landlord shall have the right to charge Lessee for all necessary repairs or
replacements to be made by reason of such damage and to collect the costs
thereof in the same manner as rent. Lessee shall give Landlord notice in writing
of any repairs required to be made by Landlord.
Lessee accepts the Leased Premises in the condition "as is" on the
commencement date of this Lease. Lessee agrees to keep the interior of the
premises, all windows, screens, awnings, doors, interior walls, pipes,
machinery, plumbing, electric wiring, and other fixtures and interior
appurtenances, in good and substantial repair and clean condition at Lessee's
own expense, fire, windstorm or other Act of God alone excepted; if replacement
shall be required, then Lessee, at Lessee's expense, shall replace the same with
material and/or equipment of equal quality of that being replaced. All glass,
both interior and exterior, is at the sole risk of Lessee and Lessee agrees to
replace at Lessee's own expense any glass broken during the term of this Lease,
and the Lessee agrees to insure and to keep insured all plate glass in the
Leased Premises and to furnish the Landlord with certification of said
insurance. It is hereby understood and agreed that all air-conditioning units
and systems, including all duct work, are the property of the Landlord and shall
remain on the Leased Premises upon termination of this Lease; and that the
Lessee shall maintain and replace the same when needed during the term of this
Lease; and that Lessee shall return said air conditioning units and systems to
the Landlord at the termination of this Lease in good working order, reasonable
wear and tear excepted.
Lessee, at Lessee's own cost and expense, shall maintain all portions of
the Leased Premises and adjoining areas, including the parking areas, in a clean
and orderly fashion, free of vermin, dirt, rubbish and unlawful obstructions.
12. UTILITIES/CLEANING. Lessee shall be responsible for the payment of all
of its utilities, including, by way of example, electricity, water, and trash
removal (whether private or municipal), including cleaning of the parking area
and greenbelt areas immediately abutting and adjacent to the Leased Premises.
13. WASTE. Lessee agrees to commit or suffer no act which would result in
damage to or waste of the Leased Premises.
3
14. GOVERNMENTAL COMPLIANCE.
A. Lessee shall promptly execute and comply with all statutes,
ordinances, rules, orders, regulations and requirements of the Federal, State
and City governments, and any and all of their Departments and Bureaus,
applicable to said premises for the correction, prevention and abatement of
nuisances or other grievances in, upon or connected with said premises, during
said terms, and shall also promptly comply with and execute all rules, orders
and regulations of the Southeastern Underwriters Association for the prevention
of fire, at Lessee's own cost and expense.
B. This Lease and all of the terms, covenants, conditions and
provisions hereof are in all respects subject and subordinate to all zoning
restrictions affecting the Leased Premises, and the building in which they are
located; and the Lessee agrees to be bound by such restrictions. Lessee shall be
responsible for obtaining such permits or licenses which may be required for the
conduct of its business on the Leased Premises.
C. HAZARDOUS MATERIALS.
(1) The term "Hazardous Materials" shall mean any substance, water or
material which has or shall be determined by any state, federal or local
governmental authority to be capable of posing a risk of injury to health,
safety, and property, including, but not limited to, all of those materials,
wastes and substances designated as hazardous or toxic by the U.S. Environmental
Protection Agency, the U.S. Department of Labor, the U.S. Department of
Transportation, the Florida Department of Environmental Protection, the Dade
County Department of Environmental Resources Management, and/or any other
governmental agency now or hereafter authorized to regulate materials and
substances in the environment (collectively "Governmental Authorities").
(2) Lessee agrees to take responsibility for any remedial action
required by Government Authorities having jurisdiction regarding any Hazardous
Material if released by Lessee, its officers, agents, servants, invitees, and
contractors. If released by Lessee, its officers, agents, servants, invitees,
and contractors, Lessee shall pay all costs and expenses in connection with any
investigation and remedial activity including, without limitation, all
installation, operation, maintenance, testing, and monitoring costs, all power
and utility costs and any and all pumping taxes or fees that may be applicable
to Lessee's activities. When remedial action by Lessee is required, Lessee shall
perform all such work in a good, safe and workmanlike manner, in compliance with
all laws and regulations applicable thereto, and shall diligently pursue such
investigation and remedial activity until Lessee is allowed to terminate these
activities by those Governmental Authorities having jurisdiction.
(3) Promptly upon Lessee remedying the problem and Lessee's complete
performance and satisfaction of all of its obligations hereunder, Lessee, at its
sole cost and expense, shall permanently seal or cap all monitoring xxxxx and
test holes to industry standards in compliance with applicable federal, state
and local laws and regulations, remove all associated equipment, and restore the
Leased Premises to its condition existing immediately prior to the commencement
of such remedial action to the maximum extend possible, which shall include,
without limitation, the repair of any surface damage, including paving, caused
by Lessee's activities hereunder.
(4) Lessee shall indemnify, hold harmless, and defend Landlord and its
partners (if a corporation, its stockholders, officers, directors, trustees,
employees, and agents, and any successors, assigns or purchasers if to Lessee's
interest in the Leased Premises, (collectively "Indemnities"), against all
claims, demands, losses, liabilities, costs and expenses, including attorney's
fees (collectively "Liabilities") imposed upon or accruing against Indemnities
as actual and direct costs of investigatory or remedial action required by any
Government Authority having jurisdiction or as damages to third
4
persons for personal injury or property damage arising from the existence of any
Hazardous Material at the Leased Premises released by Lessee, its officers,
agents, servants, invitees, and contractors. The provisions of this
indemnification shall survive the termination of the Lease whether by time or
otherwise. Such Liabilities shall include, without limitation: (i) injury or
death to any person, (ii) damage to or loss of use of any other property; (iii)
the cost of any demolition and rebuilding of the improvements on the Leased
Premises, repair, or remedying and the preparation of any closure or other
activity required by any Governmental Authority; (iv) any lawsuit brought or
threatened, good faith settlement reached, or governmental order relating to the
presence, disposal, release or threatened release of any Hazardous Material on,
from or under the Leased Premises; and (v) the imposition of any liens on the
Leased Premises arising from Lessee's activities on the Leased Premises.
(5) Lessee shall use its best efforts (including payment of money) not
to cause or suffer any lien to be recorded against the Leased Premises as a
consequence of, or in any way related to, the presence, remedying or disposal of
Hazardous Material in or about the Leased Premises caused by Lessee, or related
in any way to Lessee's activities pursuant to this Lease, including any
mechanics' liens and any so-called state, federal or local "Superfund" lien
relating to such matters.
(6) Lessee covenants and agrees that during the terms of the Lease, it
shall not use or store or permit the use or storage by any party or parties
whomsoever of any Hazardous Material in or about the Leased Premises except in
compliance with and not in contravention of any and all applicable laws,
ordinances, rules, and regulations.
(7) Each party shall promptly notify the other party of any inquiry,
investigation, order, or enforcement proceeding by or against the notifying
party in connection with the Leased Premises.
15. INSURANCE. Lessee shall, during the entire term of this Lease and
during any extension term, keep in full force and effect a comprehensive policy
of public liability and property damage insurance with respect to the Leased
Premises and the business operated by Lessee in the Leased Premises, in which
the limits of public liability shall not be less than $1,000,000 per accident
and in which the property damage liability shall not be less than $500,000. The
policy shall contain an endorsement naming the Landlord and any other person,
firm or corporation designated by Landlord as additional insureds, and shall
contain a clause that the insurer will not cancel or change the insurance
without first giving the Landlord -15- days prior written notice. The insurance
shall be issued by insurers of recognized responsibility, licensed and doing
business in the State of Florida, and a copy of the policy or a certificate of
insurance shall be delivered to the Landlord prior to the commencement date and
whenever requested thereafter by Landlord. In the event Lessee fails to provide
such evidence, or in the event of cancellation, termination or change of such
insurance, Landlord may, but shall not be required to, procure such insurance
for Lessee and the cost thereof shall be charged as Additional Rent hereunder.
In addition, if Lessee's use of the Leased Premises shall cause an additional or
increased premium of the cost of comprehensive, general liability, and fire and
extended coverage insurance payable by the Condominium Association, then Lessee
shall pay such additional cost within -15- days of demand therefor from
Landlord.
16. CASUALTY. In the event the Leased Premises, or the building of which
the Leased Premises are a part, shall be destroyed or so damaged or injured by
fire or other casualty during the life of this agreement whereby the same shall
be rendered untenantable, then Landlord shall have the right to render said
premises tenantable by repairs within -150- days therefrom. If the Leased
Premises are not rendered tenantable within said time, it shall be optional with
either party hereto to cancel this Lease, and in the event of such cancellation,
the rent shall be paid only to the date of such fire or casualty. The
cancellation herein mentioned shall be evidenced in writing. During any
5
time that the premises are untenantable due to causes set forth in this
paragraph, the rent or a just and fair proportion thereof shall be abated unless
such casualty shall result from the Tenant's or their agent's, servant's or
employee's negligence.
17. CONDEMNATION. In the event any portion of Leased Premises is taken by
any condemnation or eminent domain proceedings, the monthly rental herein
specified to be paid shall be proportionately reduced according to the area of
the Improvements which is taken, and Lessee shall be entitled to no other
consideration by reason of such taking, and any damages suffered by Lessee on
account of the taking of any portion of said Leased Premises and any damages
that shall be awarded to Lessee in said proceedings, except as provided below,
shall be paid to and received by Landlord, and Lessee shall have no right
therein or thereto or to any party thereof, and Lessee does hereby relinquish
and assign to Landlord all of Lessee's rights and equities in and to any such
damages. Should all of the Leased Premises be taken by eminent domain or
condemnation, then and in that event Lessee shall be entitled to no damages or
any consideration by reason of such taking, except as provided below and except
that this Lease shall be canceled and terminated as of the date of said taking.
Notwithstanding the foregoing, Lessee shall be entitled to any award for loss or
taking of its trade fixtures or its relocation expenses.
If -20%- or more of the Leased Premises is taken by any condemnation or
eminent domain proceedings, and if such taking shall render the Leased Premises
unsuitable for the conduct of Lessee's business as provided in paragraph 9 of
this Lease, then Lessee at its option may terminate this Lease.
Notwithstanding the foregoing, Lessee shall not be precluded from
prosecuting any claim directly against the condemning authority in such
condemnation proceedings for loss of business, or depreciation to, damage to, or
cost of removal of, or for the value of, Lessee's improvements, equipment, trade
fixtures, furniture, inventory and other personal property, and such other
claims as Lessee may assert; provided, however, that no such claim shall
diminish or otherwise adversely affect the Landlord's award or the award of any
fee mortgagee.
18. RIGHT OF ENTRY. Landlord, or any of its agents, shall have the right to
enter the Leased Premises during business hours with reasonable notice, and at
any time in the event of an emergency, to examine the same or to make such
repairs, additions, or alterations as may be deemed necessary for the safety,
comfort, or preservation thereof, or of said building, or to exhibit the Leased
Premises, and to put or keep upon the doors or windows thereon notice "FOR RENT"
at any time within -120- days before the expiration of this Lease. Said right of
entry shall likewise exist for the purpose of removing placards, signs,
fixtures, alterations or additions which do not conform to this Lease.
19. INDEMNIFICATION. In consideration of the Leased Premises being leased
to Lessee, Lessee agrees: That Lessee at all times will indemnify and keep
harmless Landlord from all losses, damage, liabilities and expenses, which may
arise or be claimed against Landlord and be in favor of any person, firm or
corporation, for any injuries or damages to the person or property of any
person, firm or corporation, consequent upon or arising from the use or
occupancy of said premises by Lessee, or consequent upon or arising from any
acts, omissions, neglect, or fault of Lessee (its agents, servants, employees,
licensees, customers or invitees), or consequent upon or arising from Lessee's
failure to comply with the aforesaid laws, statutes, ordinances or regulations;
that Landlord shall not be liable to Lessee for any damages, losses or injuries
to the person or property of Lessee which may be caused by the acts, neglect,
omissions or faults of any person, firm or corporation and that Lessee will
indemnify and keep harmless Landlord from all damages, liabilities, losses,
injuries or expenses which may arise or be claimed against Landlord and be in
favor of any person, firm or corporation, for any injuries or damages to the
person or property of any person, firm or corporation, where said injuries or
damages arose about or upon said premises.
6
20. QUIET ENJOYMENT. Subject to the terms, conditions and covenants of this
Lease, Landlord agrees that Lessee shall and may peaceably have, hold and enjoy
the Leased Premises, without hindrance or molestation by Landlord. At the
expiration of this Lease, Lessee shall, without demand, quietly and peaceably
deliver up possession of the Leased Premises in as good condition as they now
are, normal wear and decay and damage by the elements only excepted.
21. SUBORDINATION. Lessee's rights shall be subject to any bona fide
mortgage which now covers the real property of which the Leased Premises are a
part or which may hereafter be placed on the real property of which the Leased
Premises are a part by Landlord; and in the event of any proceedings for the
foreclosure thereof, Lessee shall attorn to and recognize such mortgagee or
purchaser at foreclosure sale as landlord under this Lease.
22. LIENS. Lessee further agrees that it will pay all liens of contractors,
subcontractors, mechanics, laborers, materialmen and other items of like
character, and will indemnify Landlord against all legal costs and charges, bond
premiums for release of liens, including counsel fees (and appellate counsel
fees) reasonably incurred in and about the defense of any suit in discharging
the said premises any part thereof from any liens, judgments or encumbrances
caused or suffered by Lessee. It is understood and agreed between the parties
hereto that the costs and charges above referred to shall be considered as rent
due and shall be included in any lien for rent.
The Lessee herein shall not have any authority to create any liens for
labor or material on the Landlord's interest in the Leased Premises and all
persons contracting with the Lessee for the destruction or removal of any
building or for the erection, installation, alteration, or repair of any
building, or other improvements on the above described premises, and all
materialmen, contractors, mechanics and laborers are hereby charged with notice
that they must look to the Lessee and to Lessee's interests only in the above
described property to secure the payment of any xxxx for work done or material
furnished during the rental period created by this Lease.
23. SURRENDER.
A. Upon the termination of this Lease, whether by forfeiture, lapse of
time or otherwise, or upon the termination of Lessee's right to possession of
the Leased Premises, Lessee will at once surrender and deliver up the Leased
Premises, together with all fixtures, therein and improvements thereon, to
Landlord in good condition and repair, reasonable wear and tear and damage
excepted. Such fixtures and improvements shall include all plumbing, lighting,
light fixtures, water heater (if any), electrical, heating, cooling and
ventilating fixtures and equipment and air conditioning, together with all duct
work. Except as otherwise specifically herein provided, all additions and all
improvements, temporary or permanent, in or upon the Lease Premises placed there
by Lessee shall become Landlord's property and shall remain upon the Leased
Premises upon such termination of this Lease by lapse of time or otherwise,
without compensation or allowance or credit to Lessee, unless Landlord requests
their removal in writing at or before the time of such termination of this
Lease. If Landlord requests the removal of Lessee's improvements or fixtures,
Lessee shall repair any injury or damage to the Leased Premises which may result
from such removal.
B. Lessee agrees that if Lessee does not surrender the Leased Premises
to Landlord, at the end of the term of this Lease or upon any cancellation of
the term of this Lease, then Lessee shall pay to Landlord all damages that
Landlord may suffer on account of Lessee's failure to surrender to Landlord
possession of the Leased Premises, and will indemnify and save Landlord harmless
from and against all claims made by any succeeding tenant of said premises
against Landlord on account of delay of Landlord in delivery of possession of
said premises to said succeeding tenant so far as such delay is occasioned by
failure of Lessee to so surrender said premises.
7
24. HOLDING OVER. Any holding over by Lessee of the Leased Premises after
the expiration of this Lease shall operate and be construed to be a tenancy from
month to month, only at a monthly rental of double the monthly rate of rent
payable during the last year of the Lease Term.
25. EVENTS OF DEFAULT. Lessee further agrees that any one or more of the
following events shall be considered events of default as said term is used
herein and Lessee shall be in default if any of the following occurs:
A. Lessee shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed against Lessee
asking reorganization of Lessee under the federal bankruptcy laws as now or
hereafter amended, or under the laws of any state, shall be entered, and any
such decree of judgment or order shall not have been vacated or stayed or set
aside within -30- days from the date of the entry or granting thereof;
B. Lessee shall file or admit the jurisdiction of the court and the
material allegations contained in any petition in bankruptcy, or any petition
pursuant or purporting to be pursuant to the federal bankruptcy laws now or
hereafter amended, or Lessee shall institute any proceedings or shall give its
consent to the institution of any proceedings for any relief of Lessee under any
bankruptcy or insolvency laws or any laws relating to the relief of debtors,
readjustment of indebtedness, reorganization, arrangements, composition or
extension.
[Notwithstanding the provisions of subparagraphs A and B above, any
bankruptcy proceeding which permits the Lessee (not a receiver or trustee acting
in lieu of or on behalf of Lessee) to be a debtor in possession shall not
constitute a default so long as all rent required to be paid hereunder is timely
paid.]
C. Lessee shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Lessee or any of
the property of Lessee;
D. The Leased Premises are levied upon by any revenue officer or
similar officer and the obligation is not paid within -30- days of such levy;
E. A decree or order appointing a receiver of the property of Lessee
shall be made and such decree or order shall not have been vacated, stayed or
set aside within -30- days from the date of entry or granting thereof;
F. Lessee shall abandon the same during the term hereof;
G. Lessee shall fail to pay any monthly payments of rent and/or
Additional Rent required to be made by Lessee hereunder when due. All payments
due from Lessee under this Lease which even if not specifically designated as
rent shall be due, payable, and enforceable as additional rent hereunder
including, but not limited to, late fees, bank administration charges, the
additional security deposit, the monthly condominium maintenance
fees/assessments/charges, and the security deposit;
H. Lessee shall fail to contest the validity of any lien or claimed
lien and to give security to Landlord to insure payment thereof, or, having
commenced to contest the same and having given such security, shall fail to
prosecute such contest with diligence, or shall fail to have the same released
and to satisfy any judgment rendered thereon, and such default continues for
-15- days after notice thereof in writing to Lessee;
I. Lessee shall default in any other covenant and agreement herein
contained to be kept, observed and performed by Lessee, and such default shall
continue for 15 days after notice thereof in writing to Lessee.
8
26. LANDLORD'S REMEDIES.
A. Upon the occurrence of any one or more of events of default,
Landlord may terminate this Lease. Upon termination of this Lease, Landlord may
re-enter the Leased Premises, with or without process of law and using such
force as may be necessary, and remove all persons, fixtures, and chattels
therefrom and Landlord shall not be liable for any damages resulting therefrom.
Such re-entry and repossession shall not work a forfeiture of the rents to be
paid and the covenants to be performed by Lessee during the full term of this
Lease. No re-entry by Landlord shall be deemed an acceptance of the surrender of
this Lease. Upon such repossession of the Leased Premises, Landlord shall be
entitled to recover as liquidated damages and not as a penalty of sum of money
equal to the value of the rent and other sums provided herein to be paid by
Lessee to Landlord for the remainder of the Lease Term.
B. Upon the occurrence of any one or more of events of default,
Landlord may repossess the Leased Premises by forcible entry or detainer suit,
or otherwise, without demand or notice of any kind to Lessee (except as
hereinabove expressly provided for) and without terminating this Lease, in which
event Landlord may, but shall be under no obligation so to do, relet all or any
part of the Leased Premises for such rent and upon such terms as shall be
satisfactory to Landlord including the right to relet the Leased Premises for a
term greater or lesser than that remaining under the Lease term, and the right
to relet the Leased Premises as part of a larger area, and the right to change
the character or use made of the Leased Premises. For the purpose of such
reletting, Landlord may decorate or make any repairs, changes, alterations or
additions in or to the Leased Premises that may be necessary or convenient. If
Landlord does not relet the Leased Premises, Lessee shall pay to Landlord on
demand as liquidated damages and not as a penalty a sum equal to the amount of
the rent and other sums provided herein to be paid by Lessee for the remainder
of the Lease term. If the Leased Premises are relet and a sufficient sum shall
not be realized from such reletting after paying all of the expenses of such
decorations, repairs, changes, alterations, and additions, the expenses of such
reletting and the collection of the rent accruing therefrom (including, but not
by way of limitation, attorneys' fees and brokers' commissions) to satisfy the
rent herein provided to be paid for the remainder of the Lease term, Lessee
shall pay to Landlord on demand any deficiency, and Lessee agrees that Landlord
may file suit to recover any sums failing due under the terms of this paragraph
from time to time. Any sums or other consideration received by Landlord on a
reletting in excess of the rent reserved in this Lease shall belong to Landlord.
C. If default shall be made in any covenant, agreement, condition or
undertaking herein contained to be kept, observed and performed by Lessee (other
than the making of any payments of rent and/or additional rent as herein
provided) which cannot with due diligence be cured within a period of -30- days,
and if notice thereof in writing shall have been given to Lessee, and if Lessee,
prior to the expiration of -30days from and after the giving of such notice,
commences to eliminate the cause of such default and proceeds diligently and
with reasonable dispatch to take all steps and do all work required to cure such
default and does so cure such default, then Landlord shall not have the right to
declare the term ended by reason of such default or to repossess without
terminating the Lease, provided that the curing of any default in such manner
shall not be construed to limit or restrict the right of Landlord to declare the
term ended or to repossess without terminating the Lease, and to enforce all of
its rights and remedies hereunder for any other default not so cured.
D. Notwithstanding any other provision of this Lease, if Lessee shall
default in the payment of any rent and/or any other payments required of Lessee,
or any part thereof, and if such default shall continue for a period of -7- days
after the due date thereof, Landlord may, without terminating this Lease,
institute any action, suit or proceeding provided for by law against Lessee from
time to time to recover any of the aforesaid sums which at the commencement of
any action, suit or proceeding shall then or theretofore have become due and
payable to Landlord under any provisions hereof,
9
without waiting until the end of the original term of this Lease; and neither
the institution of such action, suit or proceeding nor the settlement thereof or
entering of judgment therein shall terminate this Lease, nor shall it bar the
Landlord from bringing subsequent actions, suits or proceedings from time to
time for any sum or sums of any kind which shall thereafter become due and owing
from Lessee to Landlord under any of the terms of this Lease, Lessee hereby
expressly waives any right or defense which it may have to claim a merger of
such subsequent actions, suits or proceedings and any previous action, suit or
proceeding, or in a settlement thereof or judgments entered therein.
E. Upon termination of this lease or abandonment by Lessee if any
personal property of Lessee or any other person or entity remains in the
premises, such property shall be deemed to have been abandoned and Lessor may
dispose of such property as Lessor deems appropriate, even to the extent of
giving it away notwithstanding the value thereof; and Lessor shall have no
liability to Lessee or any other person or entity therefor. Lessee understands
and agrees that by leaving the property on the Leased Premises, Lessee has
abandoned all of its right, title, and interest in such property.
27. ACCELERATION. Lessee agrees the Lessee will promptly pay all rent at
the times above stated. If any part of the rent shall not be paid when due or
within -7- days next after the same shall become due and payable, then in
addition to the remedies provided in paragraph 26 hereof, Landlord shall have
the option of declaring the balance of the entire rent for the entire rental
term of this Lease to be immediately due and payable, and Landlord may then
proceed immediately to collect all the unpaid rent called for by this Lease, by
distress or otherwise.
28. CUMULATIVE REMEDIES. No remedy herein or otherwise conferred upon or
reserved to Landlord shall be considered to exclude or suspend any other remedy,
but the same shall be cumulative and shall be in addition to every other remedy
given hereunder now or hereafter existing at law or in equity or by statute, and
every power and remedy given by this Lease or Lessor may be exercised from time
to time and as often as the occasion may arise or as may be deemed expedient. No
delay or omission of Landlord to exercise any right or power arising from any
default shall impair any such right or power nor shall it be construed to be a
waiver of any such default or any acquiescence therein. Neither the rights
herein given to receive, collect, xxx for or distrain from any rent or rents,
monies or payments, or to enforce to the terms, provision and condition of this
Lease, or to prevent the breach or nonobservance thereof, or the exercise of any
such right or of any other right or remedy hereunder or otherwise granted or
arising, shall in any way affect, impair or toll the right or power of Landlord
to declare the Lease terms hereby granted ended, to terminate this Lease as
provided for in this Lease, or to repossess without terminating the Lease,
because of any default in or breach of the covenants, provisions or conditions
of this Lease.
29. WAIVER. No waiver of any breach of any of the covenants of this Lease
shall be construed, taken or held to be a waiver of any other breach or waiver,
acquiescence in or consent to any further or succeeding breach of the same
covenant. No act or acts, omission or omissions or series of acts or omissions,
or waiver, acquiescence or forgiveness by Landlord as to any default in or
failure to perform, either in whole or in part, by Lessee, any of the covenants,
terms and conditions of this Lease, shall be deemed or construed to be a waiver
by Landlord of the right at all times thereafter to insist upon the prompt, full
and complete performance by Lessee of each and all of the covenants, terms and
conditions thereafter to be performed in the same manner and to the same extent
as the same are herein covenanted to be performed by Lessee.
30. SIGNS. No awnings, sign or signs shall be painted upon, attached to or
erected on the exterior of the Leased Premises without the written consent of
the Landlord having first been obtained. Any awnings and signs installed by
Lessee shall be removed at the termination or expiration of this Lease, and
Lessee agrees, at Lessee's expense, to restore the Leased Premises to its
original condition, ordinary wear and tear
10
excepted.
31. RECORDATION. This Lease shall not be recorded by the Lessee except with
the express written approval and consent of the Landlord.
32. ATTORNEY'S FEES AND COSTS. In the event of any litigation arising out
of or related to this Lease including, but not limited to, recovery of rents or
for recovery of the possession of the Leased Premises, or for the enforcement of
any of the terms and conditions of this Lease, or arising out of or in
connection with the Sales Agreement attached hereto including, but not limited
to, the interpretation or the enforcement thereof, the prevailing party shall be
entitled to recover from the other reasonable attorney's fee (at all tribunal
levels) and reasonable suit costs and expenses.
33. FORCE MAJEURE. None of the acts, promises, covenants, agreements or
obligations on the party of Lessee to be kept, performed or not performed, as
the case may be, nor the obligation of Lessee to pay rent and/or Additional Rent
or other charge or payment shall be in anywise waived, impaired, excused or
affected by reason of the Landlord being unable at any time or times during the
term of this Lease to supply, or being prevented from, or delayed in supply of
any service expressed or implied on the part of the Landlord to be supplied, or
by reason of the Landlord being unable to make any alterations, repairs or
decorations or to supply any equipment or fixtures, or any other promise,
covenant, agreement or obligation on the part of the Landlord to be performed,
if the Landlord's inability or delay shall arise by reason of any law, rule or
regulation of any Federal, State, Municipal, or other governmental department,
agency or subdivision thereof, or by reason of conditions of supply and demand
due to National Emergency or other conditions or causes beyond the Landlord's
control.
34. NOTICES. It is understood and agreed between the parties hereto that
written notice addressed to Lessee or Landlord at their respective addresses set
forth herein, and mailed, certified mail, return receipt requested, or delivered
by hand to the addresses below, shall constitute sufficient notice to the
addressee; notice shall be deemed given, if mailed, -3- days from the date of
mailing or, if delivered by hand, when received by the addressee or posted on
the entrance door of the Leased Premises if notice is to Lessee or at the
following designated addresses:
TO LESSEE: U.S. CIGAR DISTRIBUTORS
0000 X.X. 00XX Xxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
TO LANDLORD: Lakeside Property Investment Group, Inc.
Attn: Xxxx Xxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
or to such other persons or at such other addresses (other than a post-office
box) as a party shall designate in writing and deliver to the other; provided,
however, that any notification to lessee must be to an address (other than a
post-office address) in Dade County, Florida.
35. TIME OF ESSENCE. Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
36. RELATIONSHIP OF PARTIES. Nothing contained herein s hall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership, or of joint venture by
the parties hereto, it being understood and agreed that no provision contained
in this Lease nor any acts of the parties hereto shall be deemed to create any
relationship other than the relationship of
11
Landlord and Lessee.
37. EXCULPATION. Lessee agrees that it shall look solely to the estate and
property of Landlord in the Leased Premises for the collection of judgment (or
any other judicial process) requiring the payment of money by Landlord in the
event of any default or breach by Landlord with respect to any of the terms,
covenants, and conditions of this Lease to be observed and performed by
Landlord, and no other property or estates of Landlord and partners or
stockholders shall be subject to levy, execution, or other enforcement
procedures for the satisfaction of Lessee' remedies.
38. CAPTIONS. Headings or captions preceding the text of the several
paragraphs of this Lease are inserted solely for convenience of reference and
shall not constitute a part of this Lease, nor shall they affect its meaning,
construction or effect.
39. WAIVER OF TRIAL BY JURY. It is mutually agreed between Landlord and
Lessee that the respective parties hereto shall and do hereby waive trial by
jury in any action or proceeding arising out of or in connection with the Lease.
40. AMENDMENT AND FULL UNDERSTANDINGS. This Lease contains the entire
agreement between the parties hereto and all previous negotiations leading
thereto, and it may be modified only by an agreement in writing, signed by
Landlord and Lessee. There are no premises, agreements, conditions or
understandings, either oral or written, between Landlord and Lessee other than
those set forth herein. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Lessee unless reduced to writing and signed by them. No surrender of
the Leased Premises, or of the remainder of the term of this Lease, shall be
valid unless accepted by Landlord in writing.
41. SEVERABILITY. If any term or provision of this Lease shall to any
extent be held invalid or unenforceable, the remaining terms and provisions of
this Lease shall not be affected thereby, but each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
42. APPLICABLE LAW. This Lease shall be construed and enforced in
accordance with the laws of the State of Florida.
43. BINDING EFFECT. All of the covenants, agreements, conditions and
undertakings contained in this Lease shall extend and inure to and be binding
upon the heirs, personal representatives, administrators, successors and assigns
of the respective parties hereto, the same as if they were in every case
specifically named, and wherever in this Lease reference is made to either of
the parties hereto, it shall be held to include and apply to, wherever
applicable, the heirs, personal representatives, administrators, successors and
assigns of such party. Nothing herein contained shall be construed to grant or
confer upon any person or persons, firm, corporation or governmental authority,
other than the parties hereto, their heirs, personal representatives,
administrators, successors and assigns, any right, claim or privilege by virtue
of any covenant, agreement, condition or undertaking in this Lease contained. If
more than one person executes this Lease as Lessee, the Lessee's obligations
shall be joint and several.
44. COMPLIANCE WITH CONDOMINIUM DOCUMENTS. Lessee covenants and agree to be
bound by the terms and conditions of the Declaration of Condominium of Tamair
Commercial Center Condominium Section I Condominium recorded in Official Records
Book 12422, Page 2112, of the Public Records of Dade County, Florida, and the
rules and regulations promulgated by the governing association; provided,
however, that maintenance fees and special assessments attributable to the
condominium as a whole shall be paid by the Landlord. Lessee acknowledges having
received a copy of such declaration.
12
45. AUTHORITY OF LESSEE. Each individual executing this Lease on behalf of
Lessee represents and warrants that he is duly authorized to execute and deliver
this Lease on behalf of Lessee in accordance with a duly adopted resolution of
the Board of Directors or the By-Laws of Lessee, and that this Lease is binding
upon said corporation in accordance with its terms. Simultaneously with the
execution of this Lease, Lessee shall deliver to Landlord a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
46. In accordance with Florida Statutes, the following notice about "RADON
GAS" is hereby given to Lessee:
"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."
IN WITNESS WHEREOF, the parties have executed this Warehouse Agreement as
of the day and year first above written.
Witness as to Lessee: LESSEE:
/s/ Xxxxxx Xxxxxxxx U.S. CIGAR DISTRIBUTORS
-----------------------------
----------------------------- By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
(Corporate Seal)
Witness as to Landlord: LANDLORD:
/s/ LAKESIDE PROPERTY INVESTMENT
----------------------------- GROUP, INC. a Florida corporation
----------------------------- By: /s/ Xxxx X. Xxxxx
-----------------------------
13
COMMERCIAL REAL ESTATE LEASE
This Lease Agreement (this "Lease") is made effective as of May 1st, 1997, by
and between U.S. Cigar Distributors, Inc., ("Landlord") and Crystal Cascade
Waters, Inc. ("Tenant"). The parties agree as follows:
PREMISES. Landlord, in consideration of the lease payments provided in this
Lease, leases to Tenant an area comprising of 250 Square feet of office
space as well as provide use of approximately 1,000 Square feet of
warehouse space in Suite 107 at 0000 XX 00xx Xxxxxxx, Xxxxx, Xxxxxxx 00000
(Dade County).
PARKING. Tenant shall be entitled to use one parking space for the parking
of Tenant's customers'/guests' motor vehicle(s) in the area near the
premises.
FURNISHINGS. None included. The tenant may bring approved furnishings and
remove them promptly upon termination of the lease. Should the tenant's
furnishings require alterations to the premises, tenant is responsible for
leaving the premises restored to their original condition.
STORAGE. Tenant shall be entitled to store items of personal property in
the warehouse portion of the premises during the term of the Lease. At no
time shall the tenant store any hazardous material. Landlord shall not be
liable for loss of, or damage to, such stored items. Tenant shall provide
insurance coverage for its personal property stored on the premises.
TERM. The lease term will begin May 1st, 1997 and terminate October 31,
1998, unless mutually agreed to cancel by both parties.
RENEWAL. The lease can be extended for six months under the same terms and
conditions subject to an additional rent of $150.00 a month for the balance of
the extension. The rent during the extension period is $900.00 a month or $5,400
for six months.
LEASE PAYMENTS. Tenant shall pay to Landlord monthly payments of $750.00 per
month due in advance on the second (2nd) day of each month, for a total
annual payment of $13,500.00. Lease payments shall be made to the Landlord at
0000 XX 00xx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx, 00000, or as may be changed
from time to time by the Landlord. As the premises are regulated by the same
HVAC system, Tenant shall share the cost of electricity. Said cost will be
prorated between the Tenant and the Landlord. Tenant's share shall be 50% and
Landlord's 50% based on the square footage designated in the attached drawing.
POSSESSION. Tenant shall be entitled to possession on the first day of the
term of this Lease, and shall yield possession to Landlord on the last day of
the term of this Lease, unless otherwise agreed by both parties in writing.
USE OF PREMISES. Tenant may use the Premises only to store products that
are used in the business. The Premises may be used for any other purpose only
with the prior written consent of the Landlord, which shall not be unreasonably
withheld. Tenant shall notify Landlord of any anticipated extended absence from
the Premises not later than first day of the extended absence.
PROPERTY INSURANCE. Tenant shall maintain casualty insurance on the Premises in
an amount equal to $50,000. The Landlord shall be named as an insured in such
policies. Tenant shall deliver appropriate evidence to Landlord as proof that
adequate insurance is in force. Landlord shall have the right to require that
the Landlord receive notice of any termination or changes of such insurance
policies. Tenant shall also maintain any other insurance which Landlord may
reasonably require for the protection of the Landlord's interest in the
premises.
DEFAULT. Tenant shall be in default of this Lease, if Tenant fails to fulfill
any lease obligation or term by which Tenant is bound. Subject to any governing
provisions of law to the contrary, if Tenant fails to cure any financial
obligation within 5 business days (or any other obligation within 7 business
days) after written
notice of such default is provided by Landlord to Tenant, Landlord may take
possession of the Premises without further notice (to the extent permitted by
law), and without prejudicing Landlord's rights to damages. In the alternative,
Landlord may elect to cure any default and the cost of such action shall be
added to the Tenant's financial obligations under this Lease. Tenant shall pay
the costs, damages, and expenses (including reasonable attorney's fees and
expenses) suffered by the Landlord by reason of Tenant's defaults. All sums of
money or charges required to be paid by Tenant under this Lease shall be
additional rent, whether or not such sums or charges are designated as
"additional rent".
NOTICE. Notices under this Lease shall not be deemed valid unless given or
served in writing and forwarded by mail, postage prepaid, addressed as follows:
LANDLORD:
U.S. Cigar Distributors, Inc.
0000 XX 00xx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
TENANT:
CRYSTAL CASCADE WATERS, Inc.
0000 XX 00xx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Such addresses may be changed from time to time by either party by providing
notice as set forth above.
ENTIRE AGREEMENT/AMENDMENT. This Lease Agreement contains the entire agreement
of the parties and there are no other promises or conditions in any other
agreement whether oral or written. This Lease maybe modified or amended in
writing, if the writing is signed by the party obligated under the amendment.
SEVERABILITY. If any provision of this Lease shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this Lease is
invalid or unenforceable, that by limiting such provision, it would become valid
and enforceable, then such provision shall be deemed to be written, construed
and enforced as so limited.
WAIVER. The failure of either party to enforce any provisions of this Lease
shall not be construed as a waiver or limitation of the party's right to
subsequently enforce and compel strict compliance with every other provision of
this Lease.
CUMULATIVE RIGHTS. The rights of the parties under this Lease are cumulative,
and shall not be construed as exclusive unless otherwise required by law.
GOVERNING LAW. This Lease shall be construed in accordance with the Laws of the
State of Florida.
For the Landlord.
/s/ Xxxx X. Xxxx, Xx.
-----------------------------
For the Tenant
/s/ Xxxxxx Xxxxxxxx
-----------------------------
Date 5/1/97
-------------------------
