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EXHIBIT 10.4
GUARANTY OF PERFORMANCE OF COMMERCIAL LEASE AGREEMENT
THIS GUARANTY is made this ____ day of _________, 1996, by ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Guarantors") to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Landlord").
R E C I T A L S:
A. Landlord, on June 28, 1996, entered into a Commercial Lease and Option
to Purchase ("Agreement") with LEVEL BEST GOLF, a Florida corporation, a
("Tenant") for the purpose of leasing certain commercial real property as
described in the Agreement. A copy of the Agreement is attached as Exhibit "A"
and is incorporated herein by reference.
B. Guarantors are willing to guarantee Tenant's performance of the
Agreement under the terms set forth below.
For value received, the sufficiency of which is hereby acknowledged,
Guarantors agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated
herein by reference.
2. Statement of Guaranty. Guarantors unconditionally guarantee the
faithful, prompt and complete compliance by Tenant with all the terms,
obligations, and conditions of the Agreement, including all extensions or
modifications thereof. If Tenant fails to perform its covenants, agreements and
undertakings as provided in the Agreement, the Guarantors shall immediately, and
with due diligence, do and perform for the benefit of the Tenant, all such
covenants, agreements, and undertakings as if they constituted a direct and
primary obligation of the Guarantors. In no event shall the liability or
obligations of the Guarantors hereunder exceed that of the Tenant under the
Agreement.
The obligations of the Guarantors hereunder are independent of the
obligations of the Tenant, and a separate action or actions for payment,
damages, or performance may be brought and prosecuted against the Guarantors, or
any one of them, whether or not an action is brought against the Tenant, and
whether or not Tenant be joined in any such action or actions, and whether or
not notice be given or demand be made upon Tenant.
3. Release, Modification, or Extension of Agreement. Landlord may, from
time to time, with notice to the Guarantors (or any of them) and without
affecting, diminishing, or releasing the liability of the Guarantors (or any of
them): (a) retain or obtain the primary or secondary liability of any party or
parties, in addition to the Guarantors hereunder, with respect to any of the
terms, obligations and conditions of the Agreement, (b) extend or renew for any
period (whether or not longer than the original period), alter, exchange, or
modify any of the terms, obligations and conditions of the Agreement, (c)
release or compromise any liability of any of the Guarantors hereunder or any
liability of any other party or parties primarily or secondarily liable on any
of the terms, obligations and conditions of the Agreement, (d) release its
security interest, if any, in all or any property securing any obligation
hereunder and permit any substitution or exchange of such property, (e) resort
to the Guarantors (or any of them) for payment of any or all portion of
liabilities arising from the guarantee herein, whether or not Landlord shall
have resorted to any property securing any obligation hereunder or shall have
proceeded against any other of the Guarantors or any other party primarily or
secondarily liable on any of the terms, obligations and conditions of the
Agreement, and (f) alter, extend, change, modify, release, or cancel any
covenant agreement, or provision contained in the Agreement or modifications or
amendments thereof, provided however that Landlord shall not modify the terms of
the Agreement in
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a manner which unreasonably increases the liability or potential liability of
the Guarantors without first obtaining their written consent.
4. Notice. The Guarantors hereby waive (a) notice of the acceptance of
this Guaranty, and (b) all diligence on the part of Landlord in collection or
protection of, or realization upon, any security for any of the terms,
obligations and conditions of the Agreement or in enforcing any remedy available
to the Landlord.
5. Wavier. No delay or failure on the part of Landlord in exercise of any
right or remedy shall operate as a waiver, release, or modification of same.
Any waiver, release, or modification granted shall be effective only through a
written document executed by Landlord, and then only to the extent specifically
recited therein. No single or partial exercise by Landlord of any right or
remedy herein shall preclude other or further exercise thereof or the exercise
of any other right or remedy whether contained herein or in the Agreement. No
action of Landlord permitted hereunder shall in any way impair or affect this
Guaranty. No right or power of the Tenant or any one else to assert any claim
or defense as to the invalidity or enforceability of the Agreement shall impair
or affect the obligations of the undersigned hereunder.
6. Duration. It is fully understood that until each and every one of the
covenants and agreements of this Guaranty are fully performed, the Guarantors'
obligations hereunder shall not be released, in whole or in part, by any action
or thing which might, but for this provision of this instrument, be deemed a
legal or equitable discharge of a surety or guarantor, or by reason of any
waiver, extension, modification, forbearance, or delay or other act or omission
of Landlord or its failure to proceed, promptly or otherwise, or by reason of
any action taken or omitted by Landlord, whether or not such action or failure
to act varies or increases the risk of or affects the rights or remedies of the
Guarantors, or by reason of any further dealings between Tenant, Landlord, or
any other guarantor, and the Guarantors hereby expressly waive and surrender any
defense to its liability hereunder based upon any of the foregoing acts,
omissions, things, agreement, or waivers of any of them; it being the purpose
and intent of the parties hereto that the covenants, agreements, and all
obligations hereunder are absolute, unconditional, and irrevocable under any and
all circumstances.
7. Notice. Any notice, demand, or request by Landlord, its successors or
assigns, to the Guarantors shall be in writing, and shall be deemed to have been
duly given or made if either delivered personally to the undersigned or mailed
by certified or registered mail addressed to the Guarantors at the address for
such guarantor specified below:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
14561 - 58th Street North ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as any one or more of the Guarantors shall designate
from time to time in writing.
8. Assignment. Landlord shall be entitled to assign this Guaranty and all
of its rights, privileges, interests, and remedies hereunder to any other
persons, firm, entity, bank, or corporation whatsoever without notice to or
consent by the Guarantors, and such assignee shall be entitled to the benefits
of this Guaranty and to exercise all such rights, interests, and remedies as
fully as Guarantors.
9. Termination. Provided that no default then exists under the Agreement,
this Guaranty shall terminate when, and only when, the Tenant shall have
completely complied with all the terms and conditions of the Agreement,
including all extensions,
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STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this ____ day of
__________, 1996, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who [is personally known to me] [has
produced a Florida driver's license as identification].
___________________________________
Notary Public
Print name: _______________________
My commission expires:
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this ____ day of
__________, 1996, by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who [is personally known to me] [has
produced a Florida driver's license as identification].
___________________________________
Notary Public
Print name: _______________________
My commission expires:
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renewals and modifications thereof. When such condition has been met, Landlord
will, upon request, furnish written cancellation of this Guaranty.
10. Binding Effect. This Guaranty shall inure to the benefit of Landlord,
its successors and assigns, and shall bind each of the Guarantors jointly and
severally, together with their heirs, legal representatives, successors, and
assigns. If more than two parties execute this Guaranty, the terms "undersigned"
and "Guarantors" shall mean all parties executing this Guaranty, and all such
parties shall be jointly and severally obligated hereunder. The use of the
singular form herein shall include the plural, as applicable, and vice versa,
and the use of any gender or the neuter form shall include all genders and the
neuter form.
11. Applicable Law. This Guaranty shall be construed in accordance with
the laws of the State of Florida, and such laws shall govern the interpretation,
construction, and enforcement hereof. Whenever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SIGNED, SEALED, AND DELIVERED AT ____________________________, Florida,
as of the ________ day of _______________________, 1996.
WITNESSES:
(As witnesses only and not
as co-guarantors)
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 26th day of
August, 1996, by ▇▇▇▇ ▇▇▇▇▇▇▇, who [is personally known to me] [has produced a
Florida driver's license as identification].
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Notary Public
Print name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
My commission expires:
(SEAL) OFFICIAL NOTARY SEAL
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
COMMISSION NUMBER
CC323909
MY COMMISSION EXP.
OCT. 17, 1997
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COMMERCIAL LEASE AND OPTION TO PURCHASE
1. PARTIES. This Lease and Option to Purchase is made this 28th day of
June, 1996, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, whose address
is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (herein called
"Landlord") and LEVEL BEST GOLF, a Florida corporation, whose address is
▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein called "Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant leases from
Landlord, upon all of the conditions set forth herein, that certain real
property and building thereon approximately 2.5 acres in size, in Pinellas
County, Florida, located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Said real property, more particularly described on Exhibit "A" attached hereto
and made a part hereof, including the land and all improvements thereon, is
herein called the "Property."
3. TERM AND POSSESSION. The term of this Lease shall commence on July 1,
1996 ("Commencement Date") and end on June 30, 1999, unless sooner terminated
pursuant to any provision hereof. If for any reason Landlord cannot deliver
possession of the Property to Tenant on or before the Commencement Date,
Landlord shall not be subject to any liability therefor, nor shall such failure
affect the validity hereof or the obligations of Tenant hereunder or extend the
term hereof, but in such case, Tenant shall not be obligated to pay rent until
possession of the Property is tendered to Tenant.
4. RENT.
4.1 Rent Payment, Proration and Sales Taxes. All rental payments due
hereunder shall be paid without notice or demand, and without abatement,
deduction or setoff for any reason unless specifically provided herein. Rent
for any period during the term hereof which is for less than one month shall be
a pro rata portion of the monthly rent installment based on the number of days
in such period and the number of days in the month in question. Rent shall be
payable in lawful money of the United States to Landlord at the address stated
herein or to such other persons or at such other places as Landlord may
designate in writing. In addition, Tenant shall pay to Landlord all sales and
use taxes imposed by the State of Florida or any other governmental authority
form time to time, upon said rent and any other charges hereunder upon which
sales and use taxes are imposed.
4.2 No Waiver. The acceptance by the Landlord of monies from the
Tenant as rent or other sums due shall not be an admission of the accuracy or
the sufficiency of the amount of such rent or other sums due nor shall it be
deemed a waiver by Landlord of any right or claim to additional or further rent
or other sums due.
4.3 Monthly Rent Amounts. Tenant shall pay to Landlord as rent for
the Property during the first year of the term hereof monthly payments of
minimum rent, in advance, on or before the first (1st) day of each month, in
the amount of Six Thousand and no/100 Dollars ($6,000.00), plus applicable
sales tax.
4.4 Advance Rent. Tenant shall pay Landlord upon execution hereof Six
Thousand and no/100 Dollars ($6,000.00) as rent for the month of July.
4.5 Rent Adjustments. Commencing on July 1, 1997, and continuing on
the first (1st) day of July of each year thereafter, the monthly minimum rent
payable under Section 4.3 above shall be adjusted annually by the increase, if
any, from the Commencement Date, in the Consumer Price Index published by the
Bureau of Labor Statistics of the U.S. Department of Labor Statistics for All
Urban Consumers, U.S. City Average (1982-84 = 100), All Items, herein referred
to as "C.P.I." The adjusted monthly minimum rent shall be calculated as
follows: the minimum rent payable for the first month of the term hereof, as set
forth in Section 4.3 above, shall be multiplied by a fraction, the numerator of
which shall be the C.P.I. for the month immediately preceding the effective date
of the subject rent adjustment, and the
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denominator of which shall be the C.P.I. for the first month of the lease term.
The sum so calculated shall constitute the new monthly minimum rent hereunder
until the subsequent adjustment, but in no event shall any adjustment reduce the
minimum rent to an amount lower than the minimum rent payable for the month
immediately preceding the date of adjustment. No delay in establishing the rent
adjustment shall be a waiver of Landlord's right to later collect the difference
between the rental at the rate prior to adjustment, which shall continue to be
paid until the adjustment is established, and the rental rate after adjustment.
In the event the compilation and/or publication of the C.P.I. shall be
transferred to any other governmental department or bureau or agency or shall be
discontinued, then the index most nearly the same as the C.P.I. shall be used to
make such calculation. In the event that Landlord and Tenant cannot agree on an
alternative index, then the matter shall be submitted for decision to the
American Arbitration Association in accordance with the then rules of said
association and the decision of the arbitrators shall be binding upon the
parties. The cost of said arbitration shall be paid equally by Landlord and
Tenant.
4.6 Security Deposit. Upon execution of this Lease, Tenant shall
deposit with Landlord Nine Thousand and no/100 Dollars ($9,000.00) as security
for Tenant's faithful performance of Tenant's obligations hereunder. If Tenant
fails to pay rent or other charges due hereunder, or otherwise defaults with
respect to any provision hereof, Landlord may (but shall not be required to do
so before enforcing other rights and remedies) use, apply or retain all or any
portion of said deposit for the payment of any rent or other charge in default
or for the payment of any other sum to which Landlord may become obligated by
reason of Tenant's default, or to compensate Landlord for any loss or damage
which Landlord may suffer thereby, but Tenant's liability under this Lease shall
only be discharged pro tanto, and Tenant shall remain liable for any amounts not
actually paid from said deposit. If Landlord so uses or applies all or any
portion of said deposit, Tenant shall, within ten (10) days after written demand
therefor, deposit cash with Landlord in an amount sufficient to restore said
deposit to the full amount hereinabove stated, and Tenant's failure to do so
shall be a material breach hereof. Landlord shall not be required to keep said
deposit separate from its general accounts and such deposit shall not bear
interest. If Tenant performs all of Tenant's obligations hereunder, said
deposit, or so much thereof as has not theretofore been applied by Landlord,
shall be returned, without payment of interest or other increment for its use,
to Tenant (or, at Landlord's option, to the last assignee, if any, of Tenant's
interest hereunder) within thirty (30) days after the expiration of the term
hereof, and after Tenant has vacated the Property. No trust relationship is
created herein between Landlord and Tenant with respect to said security
deposit.
In the event Tenant exercises its option to purchase the Property under
Section 41 of this Lease, Tenant shall receive a credit at closing against the
Purchase Price in the amount of any unreturned portion of the security deposit.
5. USE.
5.1 Use. The Property shall be used and occupied only for a golf
related business involving the sale of golf auxiliary aids and for no other
purpose, without the prior consent of Landlord, which shall not be unreasonably
withheld. Without limiting the foregoing, Tenant shall not use nor permit the
use of the Property in any manner that will tend to create waste or a nuisance.
5.2 Compliance with Law and Restrictions. Tenant shall, at Tenant's
expense, execute and comply with all statutes, ordinances, rules, orders,
regulations and requirements of the federal, state, county and city government,
and of any and all of their departments and bureaus, applicable to the Property,
as well as all covenants and restrictions of record, and other requirements in
effect during the term or any part thereof, which regulate the use by Tenant of
the Property.
5.3 Condition of Property; Letter of Acceptance. By taking
possession of the Property, Tenant shall be deemed to have accepted the
Property, subject to all applicable zoning, municipal, county and state laws;
ordinances and
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regulations governing and regulating the use of the Property, and any covenants
or restrictions of record, as suitable for Tenant's intended purposes, and in
compliance with all terms and provisions hereof. Tenant acknowledges that it is
taking the Property in an "AS IS" condition. As of the date hereof, Landlord
represents to the best of its knowledge that all mechanical equipment located on
the Property is in working order and that the roof is in good condition. Tenant
acknowledges that neither Landlord nor Landlord's agent has made any
representation or warranty as to the present or future suitability of the
Property for the conduct of Tenant's business nor the condition of the Property.
By execution hereof, Tenant agrees that he has accepted delivery of the Property
and the condition of the Property complies with Landlord's covenants and
obligations hereunder.
6. MAINTENANCE, REPAIRS AND ALTERATIONS.
6.1 Casualty and Condemnation. The specific provisions hereof
relating to repairs after casualty or condemnation shall take precedence over
the terms of this Section 6, but only to the extent in conflict herewith.
6.2 Maintenance. Tenant shall, at Tenant's sole cost and expense,
maintain the Property and all components thereof throughout the Lease term, in
good, safe and clean order, condition and repair, including without limitation
all plumbing, heating, air conditioning, ventilating, and electrical facilities
and all components thereof, within and exclusively serving the Property,
provided, however, that Landlord shall maintain the exterior of the building. If
Tenant fails to perform Tenant's obligations under this Section 6 or under any
other section hereof, Landlord may at Landlord's option enter upon the Property
after ten (10) days' prior written notice to Tenant (except in the case of
emergency, in which case no notice shall be required), perform such obligations
on Tenant's behalf, and put the Property in good, safe and clean order,
condition and repair, and the cost thereof together with interest thereon at the
Default Rate, shall be due and payable as additional rent to Landlord together
with Tenant's next rental installment. Tenant expressly waives the benefits of
any statute now or hereafter in effect which would otherwise afford Tenant the
right to make repairs at Landlord's expense or to terminate this Lease because
of Landlord's failure to keep the Property in good order, condition and repair.
6.3 Plate Glass. Tenant shall maintain all plate glass, if any,
within or on the perimeter of the Property.
6.4 Grounds; Parking Areas. Tenant, at Tenant's expense, shall
maintain all landscaping, driveways, parking areas and sidewalks serving the
Property.
6.5 Termination of Lease. On the last day of the term hereof, or on
any sooner termination, Tenant shall surrender the Property to Landlord in the
same condition as received, ordinary wear and tear excepted, clean and free of
debris. Tenant's moveable machinery, furniture, fixtures and equipment, other
than that which is affixed to the Property so that it cannot be removed without
damage to the Property and which Landlord does not require Tenant to remove, may
be removed by Tenant upon expiration of the lease term. Tenant shall repair any
damage to the Property occasioned by the installation or removal of its trade
fixtures, furnishings and equipment. Upon termination of this Lease for any
cause whatsoever, if Tenant fails to remove its effects, they shall be deemed
abandoned, and Landlord may, at its option, remove the same in any manner that
the Landlord shall choose, store them without liability to the Tenant for loss
thereof, and the Tenant agrees to pay the Landlord on demand any and all
expenses incurred in such removal, including court costs, attorney's fees and
storage charges for any length of time the same shall be in the Landlord's
possession, or the Landlord may, at its option, without notice, sell said
effects or any part of the same at a private sale and without legal process for
such price as the Landlord may obtain, and apply the proceeds of such sale upon
the amounts due under this Lease from the Tenant to Landlord and upon the
expenses incident to the removal and sale of said effects. Tenant shall
deliver all keys and combinations to locks within the Property to Landlord upon
termination of this Lease for any reason.
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Tenant's obligations to perform under this provision shall survive the end of
the lease term.
6.6 Alterations and Additions.
(a) Except for non-structural interior improvements, Tenant shall
not, without Landlord's prior written consent, make any alterations,
improvements, or additions in, on, or to the Property. Further, any
contractor or person making any alterations, improvements, or additions,
except for non-structural interior improvements, in, on, or to the Property
must first be approved in writing by Landlord. Should Tenant make any such
alterations, improvements, or additions without the prior approval of Landlord,
in addition to all other remedies of Landlord for Tenant's breach, Landlord may
require that Tenant remove any or all of the same.
(b) Tenant shall pay, when due, and hereby agrees to indemnify
and hold harmless Landlord for and from, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant, at or for use in
the Property, which claims are or may be secured by any construction lien
against the Property or any interest therein. Tenant shall give Landlord not
less than ten (10) days' notice prior to the commencement of any work on the
Property which might give rise to any such lien or claim of lien, and Landlord
shall have the right to post notices of non-responsibility in or on the Property
as provided by law. If Tenant shall in good faith, contest the validity of any
such lien, claim or demand, then Tenant shall, at its sole expense, defend
itself and Landlord against the same and shall pay and satisfy any adverse
judgment that may be rendered thereon before the enforcement thereof against the
Landlord or the Property, upon the condition that if Landlord shall require,
Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an
amount equal to such contested lien, claim or demand indemnifying Landlord
against liability for the same and holding the Property free from the effect of
such lien, claim or demand. In addition, Landlord may require Tenant to pay
Landlord's reasonable attorney's fees and costs in participating in such action
if Landlord reasonably decides it is in its best interests to do so.
(c) Unless Landlord requires their removal, all alterations,
improvements, and additions made on the Property shall become the property of
Landlord and remain upon and be surrendered with the Property at the expiration
of the Lease term without compensation to Tenant.
6.7 Landlord's Interest Not Subject to Liens. As provided in Section
713.10, Florida Statutes, the interest of Landlord shall not be subject to liens
for improvements made by Tenant, and Tenant shall notify any contractor making
such improvements of this provision. An appropriate notice of this provision
may be recorded by Landlord in the Public Records of Pinellas County, Florida,
in accordance with said statute, without Tenant's joinder or consent.
7. INSURANCE; INDEMNITY.
7.1 Property Insurance - Landlord. Landlord shall at all times
during the term hereof, at its expense, maintain a policy or policies insuring
the Property against loss or damage by fire, explosion, and other hazards and
contingencies ("all risk," as such term is used in the insurance industry), in
an amount of not less than full insurable value. Tenant shall maintain plate
glass insurance as required in the reasonable discretion of Landlord.
7.2 Liability Insurance - Tenant. Tenant shall, at Tenant's sole
expense, obtain and keep in force during the term hereof a policy of bodily
injury and property damage insurance, insuring Tenant and Landlord against any
liability arising out of the use, occupancy or maintenance of the Property and
the parking areas, walkways, driveways, landscaped areas and other areas
exterior to the Property and appurtenant thereto. Such insurance shall be in
an amount not less than Two Million and 00/100 Dollars ($2,000,000.00) combined
single limit. The policy shall insure
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performance by Tenant of the indemnity provisions of this Section 7. The limits
of said insurance shall not, however, limit the liability of Tenant hereunder.
Upon demand, Tenant shall provide Landlord, at Landlord's expense, with such
increased amounts of insurance as Landlord may reasonably require to afford
Landlord adequate protection for risks insured under this Section 7. Tenant, as
a material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons, in, upon or about the Property arising
from any cause and Tenant hereby waives all claims in respect thereof against
Landlord.
7.3 Employees Compensation - Tenant. Tenant shall maintain and keep
in force all employees' compensation insurance required under the laws of the
State of Florida, and such other insurance as may be necessary to protect
Landlord against any other liability to person or property arising hereunder
by operation of law, whether such law is now in force or is adopted subsequent
to the execution hereof.
7.4 Tenant's Default. Should Tenant fail to keep in effect and pay
for such insurance as it is in this section required to maintain, Landlord may
do so, in which event, the insurance premiums paid by Landlord, together with
interest thereon at the Default Rate from the date paid by Landlord, shall
become due and payable forthwith and failure of Tenant to pay same on demand
shall constitute a breach hereof.
7.5 Tenant's Compliance. Tenant shall properly and promptly comply
with and execute all rules, orders and regulations of the Southeastern
Underwriter's Association for fire and other casualties, at Tenant's own cost
and expense. Tenant shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in this Section 7. Tenant
agrees to pay any increase in the amount of insurance premiums over and above
the rate now in force that may be caused by Tenant's use or occupancy of the
Property. In the event any increase in premiums is caused by the act or
omission of Tenant in violation of the terms hereof, payment by Tenant of such
increase shall not release Tenant from liability for such violation.
7.6 Insurance Policies. Insurance required hereunder shall be with
good and solvent insurance companies satisfactory to Landlord; in the absence of
other specific directions, such companies shall hold a "General Policyholders
Rating" of at least B plus, or such other rating as may be required by a lender
having a lien on the Property, as set forth in the most current issue of "Best's
Insurance Guide". Tenant shall deliver to Landlord copies of policies of
insurance required to be provided by Tenant under this Section 7 or certificates
evidencing the existence and amounts of such insurance and its compliance with
the conditions set forth in this Section 7. No such policy shall be cancelable
or subject to reduction of coverage or other modification except after thirty
(30) days' prior written notice to Landlord, and the interest of Landlord under
such policies shall not be affected by any default by Tenant under the
provisions of such policies. Tenant shall, at least thirty (30) days prior to
the expiration of such policies, furnish Landlord with renewals or "binders"
thereof, or Landlord may order such insurance and charge the cost thereof to
Tenant, which amount shall be payable by Tenant upon demand. If required by any
mortgage encumbering the Property, the mortgagee shall also be a named or
additional insured and the terms of all insurance policies shall comply with all
other requirements of such mortgage.
7.7 Waiver of Subrogation. Tenant and Landlord each hereby release
and relieve the other, and waive their entire right of recovery against the
other, for loss or damage arising out of, or incident to the perils actually
insured against under this Section 7, which perils occur in, on, or about the
Property, whether due to the negligence of Landlord or Tenant or their agents,
employees, contractors and/or invitees. Tenant and Landlord shall, upon
obtaining the policies of insurance required hereunder, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation
is contained in this Lease. The waiver provisions of this paragraph are
reciprocal and run in favor of any guarantors as well.
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7.8 Indemnity. Tenant shall indemnify and hold harmless Landlord
from and against any and all injury, expense, damages and claims arising from
Tenant's use of the Property, whether due to damage to the Property, claims for
injury to the person or property of any other tenant of the building (if
applicable) or any other person rightfully in or about the Property, from the
conduct of Tenant's business or from any activity, work or things done,
permitted or suffered by Tenant or its agents, servants, employees, licensees,
customers, or invitees in or about the Property or elsewhere or consequent upon
or arising from Tenant's failure to comply with applicable laws, statutes,
ordinances or regulations, and Tenant shall further indemnify and hold harmless
Landlord from and against any and all such claims and from and against all
costs, attorney's fees, expenses and liabilities incurred in the investigation,
handling or defense of any such claim or any action or proceeding brought in
connection therewith by a third person or any governmental authority; and in
case any action or proceeding is brought against Landlord by reason of any such
claim, Tenant upon notice from Landlord shall defend the same at Tenant's
expense by counsel satisfactory to Landlord. This indemnity shall not require
payment as a condition precedent to recovery.
7.9 Exemption of Landlord from Liability. Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other
person in or about the Property, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the said damage or injury results from latent defects or other
conditions arising upon the Property or upon other portions of the building(s)
of which the Property is a part, or from other sources or places and regardless
of whether the cause of such damage or injury or the means of repairing the
same is inaccessible to Tenant.
8. DAMAGE OR DESTRUCTION. In the event that the Property should be
totally destroyed by fire, tornado or other casualty or in the event the
Property should be so damaged that rebuilding or repairs cannot be completed
within ninety (90) days after the date of such damage, either Landlord or
Tenant may, at its option, by written notice to the other, given not more than
thirty (30) days after the date of such fire or other casualty, terminate this
Lease; in such event, the rent shall be abated during the unexpired portion
hereof effective with the date of such fire or other casualty. In the event
the Property should be damaged by fire, tornado or other casualty covered by
Landlord's insurance, but only to such extent that rebuilding or repairs can be
completed within ninety (90) days after the date of such damage, or if the
damage should be more serious, but neither Landlord or Tenant elects to
terminate this Lease, then Landlord shall, within forty-five (45) days after
the date of such damage, commence to rebuild or repair the Property and shall
proceed with reasonable diligence to restore the Property to substantially the
same condition in which it was immediately prior to the happening of the
casualty, except that Landlord shall not be required to rebuild, repair or
replace any part of the furniture, equipment, fixtures and other improvements
which may have been placed by Tenant or others within the Property, and in any
event Landlord's obligation to repair shall be limited to the extent proceeds
of insurance are available for such purpose. Landlord shall, unless such
damage is the result of any negligence or willful misconduct of Tenant or
Tenant's employees or invitees, allow Tenant a fair diminution of rent during
the time that the Property is unfit for occupancy. Notwithstanding any of the
foregoing, in the event any mortgagee, under a deed of trust, security
agreement or mortgage on the Property, should require that the insurance
proceeds of insurance policies carried by Landlord be used to retire the
mortgage debt, Landlord shall have no obligation to rebuild and this Lease
shall terminate upon notice to Tenant. Any insurance which is required to be
carried by Landlord or Tenant under the terms of this Lease against loss or
damage to the Property shall be for the sole benefit of the Landlord and under
its sole control. Notwithstanding anything to the contrary contained herein,
in the event the Landlord
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elects to terminate this Lease due to destruction or damage as provided
hereinabove, Tenant shall have the right to exercise the option to purchase
contained in Section 41 of this Lease within thirty (30) days following receipt
of notice from Landlord.
9. PROPERTY TAXES.
9.1 Definition of "Real Property Taxes". As used herein, the term
"real property taxes" shall include any form of tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Property by any authority having the direct or
indirect power to tax, including any city, state or federal government, or any
school, agricultural, sanitary, fire, street, drainage or other improvement
district thereof, against any legal or equitable interest of Landlord in the
Property or in the real property of which the Property is a part, or against
Landlord's right to rent or other income therefrom, or against Landlord's
business of leasing the Property. The term "real property tax" shall also
include any tax, fee, levy, assessment or charge (i) in substitution of,
partially or totally, any tax, fee, levy, assessment or charge hereinabove
included within the definition of "real property tax" or (ii) the nature of
which was hereinbefore included within the definition of "real property tax,"
or (iii) which is imposed as a result of a transfer, either partial or total,
of Landlord's possessory interest in the Property, or which is added to a tax
or charge hereinbefore included within the definition of real property tax by
reason of such transfer, or (iv) which is imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof. The
term "real property tax" shall not include any income, estate or inheritance
tax assessed against Landlord, documentary stamp tax imposed as a result of
Landlord's transfer of the fee interest in the Property, or any sales tax on
rent or other payments due from Tenant hereunder.
9.2 Payment of Taxes. Landlord shall pay the real property taxes, as
defined in Section 9.1, applicable to the Property throughout the lease term. If
the term hereof shall not expire concurrently with the expiration of the tax
year, Landlord's liability for real property taxes for the last partial lease
year shall be prorated on an annual basis.
9.3 Personal Property Taxes. Tenant shall pay prior to delinquency
all taxes assessed against and levied upon trade fixtures, furnishings,
equipment and all other personal property of Tenant contained on the Property
or elsewhere or on any leasehold improvements made to the Property by Tenant,
regardless of the validity thereof or whether title to such improvements shall
be in the name of Tenant or Landlord. When possible, Tenant shall cause said
trade fixtures, furnishings, equipment and all other personal property to be
assessed and billed separately from the real property of Landlord. If any of
Tenant's personal property shall be assessed with Landlord's real property,
Tenant shall pay Landlord the taxes attributable to Tenant's personal property
within ten (10) days after receipt of a written statement from Landlord setting
forth the taxes applicable to Tenant's property.
10. UTILITIES.
(a) Tenant shall punctually pay for all water and sewer charges,
and for all gas, heat, electricity, telephone, garbage collection and all other
utilities and services consumed in connection with the Property, together with
any taxes thereon. If any such services are not separately metered as to the
Property, Tenant shall pay a reasonable proportion to be determined by Landlord
of all charges jointly metered with other premises.
(b) If charges to be paid by Tenant hereunder are not paid when
due and Landlord elects to pay same, interest shall accrue thereon from the
date paid by Landlord at the Default Rate, and such charges and interest shall
be added to the subsequent month's rent and shall be collectible from Tenant in
the same manner as rent. Landlord shall not be liable for damage to Tenant's
business and/or
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inventory or for any other claim by Tenant resulting from an interruption in
utility services.
11. ASSIGNMENT AND SUBLETTING.
11.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, mortgage, sublet, or otherwise transfer or encumber all
or any part of Tenant's interest in this Lease or in the Property or Tenant's
possession thereof without Landlord's prior written consent, which consent may
not be unreasonably withheld by Landlord. Any attempted assignment, transfer,
mortgage, encumbrance or subletting without Landlord's consent shall be void,
and shall constitute a breach hereof. If Tenant desires to assign this Lease or
to sublet the Property or any portion thereof, it shall first notify Landlord of
its desire to do so and shall submit in writing to Landlord; (i) the name of the
proposed assignee or subtenant; (ii) the nature of the proposed assignee's or
subtenant's business to be conducted on the Property; (iii) the terms of the
proposed assignment or sublease; and (iv) such financial institution as Landlord
may reasonably request concerning the proposed assignee or subtenant.
11.2 No Release or Waiver. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant from Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Tenant or any successor of Tenant in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against said assignee. Landlord may
consent to subsequent assignments or subletting hereof or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and such action shall not relieve Tenant of liability hereunder.
11.3 Effect of Transfer. The voluntary or other surrender hereof by
Tenant or a mutual cancellation hereof shall not work a merger of the interests
of the parties hereunder, and shall at the option of Landlord terminate any or
all subleases or subtenancies or shall operate as an assignment to Landlord of
such subleases or subtenancies.
11.4 Attorney's Fees. In the event Tenant shall assign or sublet the
Property or request the consent of Landlord to any assignment or subletting or
if Tenant shall request the consent of Landlord for any act Tenant proposes to
do, then Tenant shall pay Landlord's reasonable attorney's fees and costs
incurred in connection with each such request.
12. DEFAULTS; REMEDIES.
12.1 Defaults. The occurrence of any one or more of the following
events shall constitute a material default and breach hereof by Tenant:
(a) The vacating or abandonment of the Property by Tenant;
(b) The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder, as and when due, where
such failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant. In the event that Landlord serves Tenant with a
notice to pay rent or vacate pursuant to applicable unlawful detainer or other
statutes, such notice shall also constitute the notice required by this
subsection;
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(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions hereof to be observed or performed by
Tenant, other than described in Subsection (b) above, where such failure shall
continue for a period of thirty (30) days after written notice thereof from
Landlord to Tenant; provided, however, that if the nature of Tenant's default
is such that more than 30 days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure
within said 30-day period and thereafter diligently prosecutes such cure to
completion;
(d) (i) The making by Tenant of any general arrangement or
assignment for the benefit of creditors; (ii) Tenant becomes a "debtor" as
defined under the Federal Bankruptcy Code or any successor statute thereto or
any other statute affording debtor relief, whether state or federal, (unless,
in the case of a petition filed against Tenant, the same is dismissed within
thirty (30) days), or admits in writing its present or prospective insolvency
or inability to pay its debts as they mature, or is unable to or does not pay
a material portion (in numbers or dollar amount) of its debts as they mature;
(iii) the appointment of a trustee or receiver to take possession of all or a
substantial portion of Tenant's assets located at the Property or of Tenant's
interest in this Lease; (iv) the attachment, execution or other judicial
seizure of all or a substantial portion of Tenant's assets located at the
Property or of Tenant's interest in this Lease; or (v) the entry of a judgment
against Tenant which affects Tenant's ability to conduct its business in the or
dinary course; provided, however, to the extent that any provision of this
Subsection 12.1(d) is contrary to any applicable law, such provision shall be
of no force or effect to such extent only; and/or
(e) The discovery by Landlord that any financial statement,
warranty, representation or other information given to Landlord by Tenant, any
assignee of Tenant, any subtenant of Tenant, any successor in interest of
Tenant or any guarantor of Tenant's obligation hereunder, in connection with
this Lease, was materially false or misleading when made or furnished.
12.2 Remedies. In the event of any default or breach hereof by
Tenant, Landlord may (but shall not be obligated) at any time thereafter, with
or without notice or demand and without limiting Landlord in the exercise of any
right or remedy which Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Property by
any lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including accrued rent, the cost of
recovering possession of the Property, expenses of reletting, including
necessary renovation and alteration of the Property, reasonable attorney's
fees, and any real estate commission actually paid;
(b) Reenter and take possession of the Property and relet or
attempt to relet same for Tenant's account, holding Tenant liable in damages
for all expenses incurred by Landlord in any such reletting and for any
difference between the amount of rents received from such reletting and those
due and payable under the terms hereof. In the event Landlord relets the
Property, Landlord shall have the right to lease the Property or portions
thereof for such periods of time and such rentals and for such use and upon
such covenants and conditions as Landlord, in its sole discretion, may elect,
and Landlord may make such repairs and improvements to the Property as Landlord
may deem necessary. Landlord shall be entitled to bring such actions or
proceedings for the recovery of any deficits due to Landlord as it may deem
advisable, without being obliged to wait until the end of the term, and
commencement or maintenance of any one or more actions shall not bar Landlord
from bringing other or subsequent actions for further accruals, nor shall
anything done by Landlord pursuant to this Subsection 12.2(b) limit or prohibit
Landlord's right at any time to pursue other remedies of Landlord hereunder.
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(c) Declare all rents and charges due hereunder immediately due
and payable, and thereupon all such rents and fixed charges to the end of the
term shall thereupon be accelerated, and Landlord may, at once, take action to
collect the same by distress or otherwise. In the event of acceleration of
rents and other charges due hereunder which cannot be exactly determined as of
the date of acceleration and/or judgment, the amount of said rent and charges
shall be as determined by Landlord in a reasonable manner based on information
such as previous fluctuations in the C.P.I. and the like;
(d) Perform any of Tenant's obligations on behalf of Tenant in
such manner as Landlord shall deem reasonable, including payment of any moneys
necessary to perform such obligation or obtain legal advice, and all expenses
incurred by Landlord in connection with the foregoing, as well as any other
amounts necessary to compensate Landlord for all detriment caused by Tenant's
failure to perform which in the ordinary course would be likely to result
therefrom, shall be immediately due and payable from Tenant to Landlord, with
interest at the Default Rate; such performance by Landlord shall not cure the
default of Tenant hereunder and Landlord may proceed to pursue any or all
remedies available to Landlord on account of Tenant's default; if necessary
Landlord may enter upon the Property after ten (10) days' prior written notice
to Tenant (except in the case of emergency, in which case no notice shall be
required), perform any of Tenant's obligations of which Tenant is in default;
and/or
(e) Pursue any other remedy now or hereafter available to
Landlord under state or federal laws or judicial decisions. Unpaid installments
of rent and other unpaid monetary obligations of Tenant under the terms hereof
shall bear interest from the date due at the Default Rate.
12.3 No Waiver. No reentry or taking possession of the Property by
Landlord shall be construed as an election on its part to terminate this Lease,
accept a surrender of the Property or release Tenant from any obligations
hereunder, unless a written notice of such intention be given to Tenant.
Notwithstanding any such reletting or reentry or taking possession, Landlord may
at any time thereafter elect to terminate this Lease for a previous default.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any of
the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants herein
contained. Landlord's acceptance of rent or additional rent following any event
of default hereunder shall not be construed as Landlord's waiver of such event
of default. No waiver by Landlord of any violation or breach of any of the
terms, provisions, and covenants herein contained shall be deemed or construed
to constitute a waiver of any other or subsequent violation or breach of any of
the terms, provisions, and covenants herein contained. Forbearance by Landlord
to enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of any other or
subsequent violation or default. The loss or damage that Landlord may suffer by
reason of termination of this Lease or the deficiency from any reletting as
provided for above shall include the expense of repossession and any repairs or
remodeling undertaken by Landlord following possession. Should Landlord at any
time terminate this Lease for any default, in addition to any other remedy
Landlord may have, Landlord may recover from Tenant all damages Landlord may
incur by reason of such default, including the cost of recovering the Property
and the loss of rent for the remainder of the Lease term. Landlord's consent to
or approval of any act shall not be deemed to render unnecessary the obtaining
of Landlord's consent to or approval of any subsequent act by Tenant. The
delivery of keys to any employee or agent of Landlord shall not operate as a
termination hereof or a surrender of the Property.
12.4 Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will
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be extremely difficult to ascertain. Such costs include, but are not limited
to, processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Property.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
such amount shall be due, then, without any requirement for notice to Tenant,
Tenant shall pay to Landlord a late charge equal to six percent (6%) of such
overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder, whether or not
collected, for three (3) consecutive installments of rent, then rent shall
automatically become due and payable quarterly in advance, rather than monthly,
notwithstanding any other provision hereof to the contrary. The parties agree
that the payment of late charges and the payment of interest as provided
elsewhere herein are distinct and separate from one another in that the payment
of interest is to compensate Landlord for the use of Landlord's money by Tenant
and the payment of late charges is to compensate Landlord for administrative and
other expenses incurred by Landlord.
12.5 Interest on Past-Due Obligations. Except as expressly herein
provided, any amount due to Landlord not paid when due shall bear interest at
the maximum rate then allowed by law (the "Default Rate") from the date due.
Payment of such interest shall not excuse or cure any default by Tenant under
this Lease, provided, however, that interest shall not be payable on late
charges incurred by Tenant. Notwithstanding any other term or provision hereof,
in no event shall the total of all amounts paid hereunder by Tenant and deemed
to be interest exceed the amount permitted by applicable usury laws, and in the
event of payment by Tenant of interest in excess of such permitted amount, the
excess shall be applied towards damages incurred by Landlord or returned to
Tenant, at Landlord's option.
12.6 Impounds. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) installments of rent or other monetary
obligation which Tenant is late in paying, Tenant shall pay to Landlord, if
Landlord shall so request, in addition to any other payments required under this
Lease, monthly advance installments, payable at the same time as the rent is
paid for the month to which it applies, in amounts required as estimated by
Landlord to establish a fund for insurance expenses on the Property which are
payable by Tenant under the terms hereof. Such fund shall be established to
insure payment when due, before delinquency, of any or all such insurance
premiums. If the amounts paid to Landlord by Tenant under the provisions of
this Section 12.6 are insufficient to discharge the obligations of Tenant to pay
such insurance premiums as the same become due, Tenant shall pay to Landlord,
upon Landlord's demand, additional sums necessary to pay such obligations. All
moneys paid to Landlord under this Section 12.6 may be intermingled with other
monies of Landlord and shall not bear interest. In the event of a default in
the obligations of Tenant to perform under this Lease, then any balance
remaining from funds paid to Landlord under the provisions of this Section 12.6
may, at the option of Landlord, be applied to the payment of any monetary
default of Tenant in lieu of being applied to the payment of insurance premiums.
In the event Tenant exercises its option to purchase the Property under Section
41 of this Lease, Tenant shall receive a credit at closing against the Purchase
Price in the amount of any unreturned and unused funds paid by Tenant under this
Section 12.6.
12.7 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than thirty (30) days after written notice by Tenant
to Landlord and to the holder of any first mortgage or deed of trust covering
the Property whose name and address shall have theretofore been furnished to
Tenant in writing, specifying the obligation that Landlord has failed to
perform; provided, however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for
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performance, then Landlord shall not be in default if Landlord commences
performance within such 30-day period and thereafter diligently prosecutes the
same to completion. Notwithstanding any other provision hereof, Landlord shall
not be in default hereunder for failure to perform any act required of Landlord
where such failure is due to inability to perform on account of strike, laws,
regulations or requirements of any governmental authority, or any other cause
whatsoever beyond Landlord's control, nor shall Tenant's rent be abated by
reason of such inability to perform.
13. CONDEMNATION. If the Property or any portion thereof is taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (either of which is herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than twenty percent (20%)
of the Property or such portion thereof as will make the Property unusable for
the purposes herein leased is taken by condemnation, either party may terminate
this Lease by notice to the other, in writing, only within ten (10) days after
Landlord shall have given Tenant written notice of such condemnation or pending
condemnation (or in the absence of such notice, within ten (10) days after the
condemning authority shall have taken possession), such termination to take
effect as of the date the condemning authority takes possession. If neither
party terminates this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Property remaining,
except that the rent shall be reduced in the proportion that the floor area
taken bears to the total floor area of the Property. Any award or payment made
in connection with a condemnation shall be the property of Landlord, whether
such award shall be made in settlement of contemplated condemnation proceedings
or as compensation for diminution in value of the leasehold or for the taking of
the fee, or as severance or other damages; provided, however, that Tenant shall
be entitled to any separate award made to Tenant which does not diminish
Landlord's award, such as for loss of or damage to Tenant's trade fixtures and
removable personal property and Tenant's moving expenses, Tenant's option rights
and any Tenant Improvements made by Tenant. In the event that this Lease is not
terminated by reason of such condemnation, Landlord shall, to the extent of
severance damages received by Landlord in connection with such condemnation,
repair any damage to the Property caused by such condemnation except to the
extent that Tenant has been reimbursed therefor by the condemning authority.
Tenant shall pay any amount in excess of such severance damages required to
complete such repair. Landlord shall in no event be obligated to repair or
replace any items other than those installed by or at the expense of Landlord.
14. ESTOPPEL CERTIFICATE.
14.1 Certificate. Tenant shall at any time upon not less than ten
(10) days' prior written notice from Landlord execute, acknowledge and deliver
to Landlord and/or any lender or purchaser designated by Landlord a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if applicable, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any purchaser or
encumbrancer of the Property.
14.2 Failure to Deliver Certificate. At Landlord's option, Tenant's
failure to deliver such statement within such time shall be a material breach by
Tenant under this Lease or shall be conclusive upon Tenant (i) that this Lease
is in full force and effect, without modification except as may be represented
by Landlord, (ii) that there are no uncured defaults in Landlord's performance,
and (iii) that no rent has been paid in advance.
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15. SUBORDINATION.
(a) Tenant accepts this Lease subject to any deeds of trust, master
leases, security interests or mortgages which might now constitute a lien upon
the Property and all renewals, extensions, modifications and replacements
thereof, and to recorded covenants and zoning ordinances and other building and
fire ordinances and governmental regulations relating to the use of the
Property. Tenant, shall at any time hereafter, on demand, execute any
instrument, releases or other documents that may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any
such deed of trust, master lease, security interest or mortgage hereafter
constituting a lien on the Property only if the holder of the lien to be created
agrees in writing that the Property will be released from the lien at closing if
Tenant exercises its option to purchase and that said holder will attorn to
Tenant. Tenant's failure to execute such documents within ten (10) days after
written demand shall constitute material default by Tenant hereunder. Landlord,
at its sole option, shall have the right to waive the applicability of this
Section 15 so that this Lease will not be subject and subordinate to any
specific deed of trust, master lease, security interest or mortgage.
(b) In order to further secure the indebtedness secured by any
presently existing mortgage, Landlord and Tenant hereby covenant for themselves
and for the benefit of any such mortgagee that this Lease shall be subject and
subordinate to any mortgage now or hereafter affecting the Property and all
advances made or to be made thereunder and all renewals, extensions,
modifications, consolidations or replacements thereof, including future advances
thereunder or supplements thereto, provided, however, that without limiting any
of the foregoing, in the event that by reason of any default on the part of
Landlord the mortgagee succeeds to the interest of the Landlord, then, at the
sole option of the mortgagee, this Lease may nevertheless continue in full force
and effect and Tenant shall and does hereby agree to attorn to such mortgagee
and to recognize such mortgagee as the Landlord in such event. It is further
covenanted that (i) the provisions of said mortgage shall govern with respect to
the disposition of proceeds of insurance or condemnation or eminent domain
awards, and (ii) in the absence of the prior written consent of the mortgagee,
Tenant shall not prepay rent more than three (3) months in advance, or enter
into any agreement with Landlord to amend or modify this Lease, or voluntarily
surrender the Property or terminate the Lease without cause, or surrender the
Lease, or allow the release of the approved Tenant from the obligations
hereunder on assigning or subletting of the Property or any part thereof. In
the event of any act or omission by Landlord which would give Tenant the right
to terminate this Lease, Tenant shall not exercise any such right until it shall
have given thirty (30) days' written notice thereof to the mortgagee at the
address previously furnished to Tenant.
Notwithstanding any contrary provision of this Lease, Landlord covenants
and agrees that Landlord shall not encumber the Property during the term hereof
in an amount which exceeds $500,000 in the aggregate.
16. LANDLORD'S LIEN. In addition to the statutory landlord's lien,
Landlord shall have, at all times, a valid security interest to secure payments
of all rent, additional rent and other sums of money becoming due hereunder from
Tenant, and to secure payment of any damages or loss which Landlord may suffer
by reason of the breach by Tenant of any covenant, agreement or condition
contained herein, upon all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant presently or which may
hereafter be situated in the Property, but not upon inventory held for sale by
Tenant in the course of its business, and all proceeds therefrom, and such
property shall not be removed therefrom without the consent of Landlord until
all arrearages in rent as well as any and all other sums of money then due to
Landlord hereunder shall first have been paid and discharged and all the
covenants, agreements and conditions hereof have been fully complied with and
performed by Tenant. Upon the occurrence of an event of default by Tenant,
Landlord may, in addition to any other remedies provided herein, enter upon the
Property and take possession of any and all goods, wares, equipment, fixtures,
furniture,
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improvements, and other personal property of Tenant situated in the Property,
but not upon inventory held for sale by Tenant in the course of its business,
without liability for trespass or conversion, and sell the same at public or
private sale, with or without having such property at the sale, after giving
Tenant reasonable notice of the time and place of any public sale or of the time
after which any private sale is to be made, at which sale the Landlord or its
assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in this Lease at least five (5)
days before the time of sale. The proceeds from any such disposition, less any
and all expenses connected with the taking of possession, holding and selling of
the Property (including reasonable attorney's fees and other expenses), shall be
applied as a credit against the indebtedness secured by the security interest
granted in this Section 16. Any surplus shall be paid to Tenant or as otherwise
required by law; and Tenant shall pay any deficiencies forthwith. Upon request
of the Landlord, Tenant agrees to execute and deliver to Tenant a financing
statement in form sufficient to perfect the security interest of Landlord in the
aforementioned property and proceeds thereof under the provisions of the Uniform
Commercial Code in force in the State of Florida. The statutory lien for rent is
not hereby waived, the security interest herein granted being in addition and
supplementary thereto.
Landlord waives any statutory liens for rent, and any lien created
hereunder, as to Tenant's inventory and agrees to provide written waivers within
ten (10) days of written demand by Tenant. Further, Landlord agrees to
subordinate all aforesaid liens in favor of any purchase money financing
obtained by Tenant to acquire personal property and/or fixtures of any kind
which are acquired for use at or on the Property. Landlord will provide written
subordination agreements to Tenant for such financing within ten (10) days of
written demand by Tenant.
17. SIGNS. Tenant shall not place any sign on or about the Property which
is not in compliance with local sign codes.
18. NOTICES.
(a) Except as provided in subsection (b) below, any notice,
demand, request or other communication ("Notice") required or permitted to be
given hereunder shall be in writing and shall be deemed given when actually
delivered and received. Either party may by notice to the other specify a
different address for Notice purposes, which shall only be effective upon
receipt, except that upon Tenant's taking possession of the Property, the
Property shall constitute Tenant's address for Notice purposes. A copy of all
Notices required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such party or parties at such addresses as Landlord
may from time to time hereafter designate by notice to Tenant.
(b) The Tenant hereby appoints as its agent to receive the
service of all dispossessory or distrant proceedings and legal notices the
person in charge of the Property at the time, or occupying the Property, and if
there is no person in charge or occupying the Property, then such service or
notice may be made by attaching the same on the main entrance of the Property.
19. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains
all agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties in
interest at the time of the modification. Except as otherwise stated in this
Lease, Tenant hereby acknowledges that neither the Landlord nor any of its
employees or agents has made any oral or written warranties or representations
to Tenant relative to the condition or use by Tenant of said Property, and
Tenant acknowledges that Tenant assumes all responsibility regarding the
Occupational Safety Health Act, the legal use and adaptability of the Property,
and the compliance thereof with all applicable laws and
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regulations in effect during the term hereof, except as otherwise specifically
stated in this Lease.
20. ATTORNEY'S FEES. If either party brings an action to enforce the
terms hereof or declare rights hereunder, the prevailing party in any such
action shall be entitled to recover reasonable attorney's and legal assistant's
fees and costs incurred in connection therewith, on appeal or otherwise,
including those incurred in arbitration, mediation, administrative or bankruptcy
proceedings and in enforcing any right to indemnity herein.
21. [INTENTIONALLY DELETED.] 22. FORCE MAJEURE. Whenever a period of
time is herein prescribed for action to be taken by a party, that party shall
not be liable or responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to strikes, riots, acts
of God, shortages of labor or materials, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
control of that party.
23. HOLDING OVER. If Tenant, with Landlord's consent, remains in
possession of the Property or any part thereof after the expiration of the term
hereof, such occupancy shall be a tenancy from month to month upon all the
provisions hereof pertaining to the obligations of Tenant, but all options and
rights of first refusal, if any, granted under the terms hereof shall be deemed
terminated and be of no further effect during said month to month tenancy. If
Tenant shall hold over without Landlord's express written consent, Tenant shall
become a tenant at sufferance and rental shall be due at the higher of (1) the
then prevailing market rate as determined by Landlord in its absolute
discretion, or (2) twice the rent payable immediately prior to the expiration of
the term. The foregoing provisions shall not limit Landlord's rights hereunder
or provided by law in the event of Tenant's default.
Notwithstanding any contrary provisions of this Lease, Tenant shall not be
obligated to pay any higher rent during a holdover period between termination of
this Lease and closing under the option to purchase contained in Section 41 of
this Lease and Tenant may continue to occupy the Property during any such
period.
24. LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Property at reasonable times for the purpose of inspecting
the same, posting notices of non-responsibility, showing the same to prospective
purchasers, lenders, or tenants, performing any obligation of Tenant hereunder
of which Tenant is in default, and making such alterations, repairs,
improvements or additions to the Property or to the building of which it is a
part as Landlord may deem necessary or desirable, all without being deemed
guilty of an eviction of Tenant and without abatement of rent, and Landlord may
erect scaffolding and other necessary structures where reasonably required by
the character of any work performed, provided that the business of Tenant shall
be interfered with as little as reasonably practicable. Tenant hereby waives any
claims for damages for any injury to or interference with Tenant's business, any
loss of occupancy or quiet enjoyment of the Property, and any other loss
occasioned thereby. For each of the aforesaid purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in, upon and
about the Property, excluding Tenant's vaults and safes, if any, and Landlord
shall have the right to use any and all means which Landlord may deem proper to
open said doors in an emergency in order to obtain entry to the Property, and
any entry to the Property obtained by Landlord by any of said means shall not
under any circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Property, or an eviction of Tenant from the
Property or any portion thereof. No provision hereof shall be construed as
obligating Landlord to perform any repairs, alterations or to take any action
not otherwise expressly agreed to be performed or taken by Landlord. Landlord
may at any time place on or about the Property any ordinary "For Sale" signs and
Landlord may at any time during the last 120 days of the term hereof place on or
about the Property any ordinary "For Lease" signs, all without rebate of rent or
liability to Tenant.
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25. QUIET ENJOYMENT. Upon Tenant paying the rent for the Property and
observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Property for the entire term hereof subject to all of the
provisions hereof.
26. LANDLORD'S LIABILITY. The term "Landlord" as used herein shall mean
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as well as the owner or owners at the
time in question of the fee title or a tenant's interest in a ground lease of
the Property. The obligations contained in this Lease to be performed by
Landlord shall, subject to transfer of funds as aforesaid, be binding on
Landlord's successors and assigns. Provided that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ do nothing to diminish their equity in the Property beyond the level
described in Section 15 hereof, as respects any remedies of Tenant against
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Tenant shall look solely to the equity in
the Property for the satisfaction of any remedies of Tenant in the event of a
breach by the Landlord of any of its obligations. Such exculpation of liability
as to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall be absolute and without any
other exception whatsoever.
27. BINDING EFFECT: CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Tenant and subject to the provisions of
the foregoing Section 26, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of Florida.
28. SEVERABILITY. The invalidity of any provision hereof under applicable
law shall in no way affect the validity of any other provision hereof.
29. TIME OF ESSENCE. Time is of the essence hereof.
30. ADDITIONAL RENT; SURVIVAL. Any and all monetary obligations of Tenant
under the terms hereof shall be deemed to be rent, shall be secured by any
available lien for rent, and to the extent accrued shall survive expiration or
termination of the term hereof.
31. COVENANTS AND CONDITIONS. Each provision hereof performable by Tenant
shall be deemed both a covenant and a condition.
32. MERGER. The voluntary or other surrender hereof by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not work a
merger, and shall, at the option of Landlord, terminate all or any existing
subtenancies or may, at the option of Landlord, operate as an assignment to
Landlord of any or all of such subtenancies.
33. SECURITY MEASURES. Tenant hereby acknowledges that the rental payable
to Landlord hereunder does not include the cost of guard service or other
security measures, and that Landlord shall have no obligation whatsoever to
provide same. Tenant assumes all responsibility for the protection of Tenant,
its agents and invitees from acts of third parties.
34. CONSTRUCTION. Any conflict between the printed provisions hereof and
the typewritten or handwritten provisions shall be controlled by the typewritten
or handwritten provisions. Headings used herein shall not affect the
interpretation hereof, being merely for convenience. The terms "Landlord" and
"Tenant" shall include the plural and the singular and all grammar shall be
deemed to conform thereto. If more than one person executes this Lease, their
obligations shall be joint and several. The use of the words "include,"
"includes" and "including" shall be without limitation to the items which may
follow.
35. AUCTIONS. Tenant shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Property without first
having obtained Landlord's prior written consent.
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36. CAPTIONS. The parties mutually agree that the headings and captions
contained in this Lease are inserted for convenience or reference only, and are
not to be deemed part of or used in construing this Lease.
37. ARBITRATION. In the event of any dispute between the Landlord and
Tenant with respect to any issue specifically mentioned in this Lease as a
matter to be decided by arbitration, such dispute shall be determined by
arbitration in accordance with the laws of the State of Florida dealing with
arbitration, or in the absence of such laws, the rules of the American
Arbitration Association. The decision resulting from the arbitration shall be
binding, final and conclusive on the parties, and a decision thereon may be
entered by a court having jurisdiction.
38. RADON GAS DISCLOSURE. The following language is required by law in
any contract involving the sale or lease of any building within the State of
Florida:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit."
39. ENVIRONMENTAL COMPLIANCE.
(a) To the best of Landlord's knowledge, the Property is
presently in all material respects in compliance with all state, federal and
local laws and regulations governing or in any way relating to the generation,
handling, manufacturing, treatment, storage, use, transportation, spillage,
leakage, dumping, discharge or disposal (whether legal or illegal, accidental or
intentional) of any Hazardous Substances.
(b) Tenant shall not use, generate, manufacture, produce,
store, release, discharge or dispose of, on, under or about the Property, or
transport to or from the Property, any Hazardous Substance (as defined below),
or allow any other person or entity to do so. Except as to any presently
existing contamination and contamination resulting from the existing fuel tanks
on the Property, Tenant shall keep and maintain the Property in compliance with,
and shall not cause or permit the Property to be in violation of, any
Environmental Laws (as defined below).
(c) Tenant shall give prompt notice to Landlord of (i) any
proceeding or inquiry by any governmental authority (including without
limitation the Florida Environmental Protection Agency or Florida Department of
Health and Rehabilitative Services) with respect to the presence of any
Hazardous Substance on the Property or the migration thereof from or to other
property; (ii) all claims made or threatened by any third party against Tenant,
Landlord or the Property relating to any loss or injury resulting from any
Hazardous Substance; and (iii) Tenant's discovery of any occurrence or condition
on any real property adjoining or in the vicinity of the Property that could
cause the Property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of the Property under any
Environmental Law or any regulation adopted in accordance therewith.
(d) Tenant shall protect, indemnify and hold harmless Landlord,
its directors, officers, employees, agents, successors and assigns from and
against any and all loss, damage, cost, expense or liability (including
attorneys' fees and costs) directly or indirectly arising out of or attributable
to the use, generation, manufacture, production, storage, release, threatened
release, discharge, disposal, transport or presence of a Hazardous Substance on,
under, about, to or from the Property, in any way arising from the acts of
Tenant, including without limitation all foreseeable
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consequential damages and the costs of any necessary repair, cleanup or
detoxification of the Property.
(e) "Environmental Laws" shall mean any federal, state or
local law, statute, ordinance or regulation pertaining to health, industrial
hygiene, or the environmental conditions on, under or about the Property,
including without limitation the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended from time to time
("CERCLA"), 42 U.S.C. Sections 9601 et seq., and the Resource Conservation and
Recovery Act of 1976, as amended from time to time ("RCRA"), 42 U.S.C. Sections
6901 et seq. The term "Hazardous Substance" shall include without limitation:
(i) those substances included within the definition of "hazardous substances,"
"hazardous materials," "toxic substances," or "solid waste" in CERCLA, RCRA,
and the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et
seq., and in the regulations promulgated pursuant to said laws; (ii) those
substances defined as "hazardous wastes" in any Florida Statute and in the
regulations promulgated pursuant to any Florida Statute; (iii) those substances
listed in the United States Department of Transportation Table (49 CFR 172.101
and amendments thereto) or by the Environmental Protection Agency (or any
successor agency) as hazardous substances (40 CFR Part 302 and amendments
thereto); (iv) such other substances, materials and wastes which are or become
regulated under applicable local, state or federal law, or which are classified
as hazardous or toxic under federal, state or local laws or regulations; and
(v) and material, waste or substance which is (1) petroleum, (2) asbestos, (3)
polychlorinated biphenyls, (4) designated as a "hazardous substance" pursuant
to Section 311 of the Clean Water Act, 33 U.S.C. Sections 1251 et seq., or
listed pursuant to Section 307 of the Clean Water Act, (5) flammable explosive,
or (6) radioactive materials.
(f) Landlord shall have the right to inspect the Property and
audit Tenant's operations thereon to ascertain Tenant's compliance with the
provisions of this Lease at any reasonable time, and Tenant shall provide
periodic certifications to Landlord, upon request, that Tenant is in compliance
with the environmental restrictions contained herein. Landlord shall have the
right, but not the obligation, to enter upon the Property and perform any
obligation of Tenant hereunder of which Tenant is in default, including without
limitation any remediation necessary due to environmental impact of Tenant's
operations on the Property, without waiving or reducing Tenant's liability for
Tenant's default hereunder.
(g) All of the terms and provisions of this Section 39 shall
survive expiration or termination of this Lease for any reason whatsoever.
40. GUARANTIES. The principals of Tenant hereby agree to execute
individual guaranties for Tenant's full and faithful performance of this Lease
simultaneously with the execution of this Lease.
41. OPTION TO PURCHASE PROPERTY.
41.1 Grant of Option. Landlord hereby grants to Tenant the option to
purchase the Property ("Option"). This Option shall be exercisable only if
either at the time of exercise there shall be then existing no event of material
default by Tenant under this Lease, or if a default exists it is subsequently
cured, or Tenant exercises the option as provided herein prior to or during the
curative period with respect to the default.
41.2 Exercise of Option. The Option granted herein shall be
exercised, if at all, by Tenant giving written notice to Landlord of such
exercise on or before thirty (30) days prior to termination of this Lease.
Closing of such purchase shall occur within thirty (30) days of such notice to
Landlord, in accordance with the terms and conditions hereinafter set forth
("Closing").
41.3 Expiration of Option. The Option granted herein shall expire
upon the occurrence of either of the following events:
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(a) Uncured default by Tenant under this Lease unless Tenant
exercises the option prior to expiration of any curative period; or
(b) Failure of Tenant to exercise the Option within the time
prescribed herein.
41.4 Purchase Price. If Tenant exercises the Option during the first
year of the term of this Lease, the purchase price to be paid for the Property
shall be Six Hundred Thousand and 00/100 Dollars ($600,000.00). If Tenant
exercises the Option during the second or third year of the term of this Lease,
the purchase price to be paid for the Property shall be Six Hundred Thousand and
00/100 Dollars ($600,000.00) plus the annual increase in the C.P.I. for the
applicable year. Tenant shall receive as credits against the Purchase Price any
credits provided elsewhere in this Lease.
The purchase price shall be paid in cash at closing by wired funds or local
cashier's check plus or minus prorations and closing costs as hereinafter set
forth.
42. SURVEY AND TITLE COMMITMENT; PERMITTED EXCEPTIONS.
42.1 Preliminary Title Report. Within twenty-one (21) days after
execution of this Lease by Landlord and Tenant, Landlord, at Landlord's expense,
shall cause a title insurance company mutually acceptable to the parties through
JOHNSON, BLAKELY, POPE, BOKOR, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., its agent ("Title Company")
to issue and deliver to Tenant and A.L.T.A. Form B owner's title commitment
("Title Commitment") accompanied by one copy of all documents affecting the
Property, and which constitute exceptions to the Title Commitment. Tenant shall
give Landlord written notice on or before the expiration of the later of (i)
fifteen (15) days after Tenant's receipt of the Title Commitment or (ii) fifteen
(15) days after Tenant's receipt of the survey provided for below, that the
condition of title as set forth in the Title Commitment and survey is or is not
satisfactory, in Tenant's reasonable judgment. Any condition, defect or other
circumstance which renders title unmarketable of record shall be sufficient
grounds for Tenant to reasonably object to the condition of title. In the event
that the condition of title is not acceptable, Tenant shall state which
exceptions to the Title Commitment are unacceptable and Landlord shall undertake
to eliminate such exceptions as set forth below; provided, however, that at
Closing, mortgages may be satisfied or the liens thereof partially released as
the case may be, as to the Property. Landlord shall, at his sole cost and
expense not to exceed $1,000.00, promptly undertake and use due diligence to
eliminate or modify all unacceptable matters to the reasonable satisfaction of
Tenant, but in no event shall Landlord be required to file suit. In the event
Landlord is unable with the exercise of due diligence to satisfy the objections
within ninety (90) days after the notice, Tenant may, at its option, (i) accept
title subject to the objections raised by Tenant, without an adjustment in the
Lease rent or Purchase Price, in which event the objections shall be deemed to
be waived for all purposes, or (ii) terminate this Lease and rescind this Option
and this Agreement shall be of no further force and effect. Notwithstanding any
of the provisions of this Section 42.1 to the contrary, if Tenant fails timely
to notify Landlord that the condition of title as set forth in the Title
Commitment and survey is or is not acceptable, the parties agree that the
condition of title shall be deemed acceptable.
42.2 Current Survey. Within thirty (30) days after execution of this
Lease, Tenant, at Tenant's expense, may obtain a current survey of the Property
prepared by a duly licensed land surveyor ("Survey"). In the event the Survey,
or any rectification thereof, shows any encroachments of any improvements upon,
from, or onto the Property, any building set-back line or easement, or shows any
evidence of use which indicates that an unrecorded easement may exist, except as
may be acceptable to Tenant, in Tenant's reasonable judgment, the matter shall
be treated in the same manner as a title defect under the procedure set forth
above.
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42.3 Continuation of Title Commitment and Permitted Exceptions. Once
Landlord has satisfied any exceptions Tenant takes to the Title Commitment,
Landlord shall keep the Title Commitment continuously in full force and effect
throughout the term of this Lease and until the Closing under any exercise of
the option to purchase. The Property shall be conveyed to Tenant at Closing if
the option to purchase is exercised by Tenant subject to no liens, charges,
encumbrances, exceptions or reservations of any kind or character other than
those acceptable to Tenant under Section 42.1 hereof ("Permitted Exceptions").
43. PROVISIONS WITH RESPECT TO CLOSING.
43.1 Landlord's Obligations at Closing. At Closing, Landlord shall
do the following:
(a) Execute, acknowledge and deliver to Tenant a statutory
warranty deed conveying marketable record title to the Property to Tenant
subject to all matters of record, including the Permitted Exceptions, which deed
shall be in form for recording with all required documentary stamps in the
proper amount affixed thereto, or provided for by Landlord at Landlord's
expense. The legal description of the Property contained in the deed shall be
identical to the legal descriptions of the Property contained in the Survey and
the Title Commitment.
(b) Execute and deliver to Title Company and Tenant duplicate
original copies of an affidavit of no liens satisfactory to Title Company so as
to cause Title Company to remove the "gap," mechanics' lien, parties in
possession and unrecorded easements standard exceptions from the Title
Commitment.
(c) Execute and deliver to Title Company and Tenant a
"non-foreign person" affidavit in compliance with regulations issued by the
Internal Revenue Service.
43.2 Tenant's Obligations at Closing. Subject to the terms,
conditions and provisions hereof, and contemporaneously with the performance by
Landlord of its obligations set forth in Section 43.1 above, Tenant shall
deliver to Landlord the purchase price to be paid at Closing, plus or minus
prorations and closing costs as set forth herein.
43.3 Closing Costs.
(a) Landlord shall pay the following costs and expenses in
connection with the Closing:
(i) All documentary stamps which are required to be
affixed to the statutory warranty deed;
(ii) The escrow fees of the Title Company, if any, and
the cost of the preparation of the statutory warranty deed; and
(iii) The premium payable for the Title Commitment and
Title Policy issued pursuant thereto.
(b) Tenant shall pay the following costs and expenses in
connection with the Closing:
(i) The cost of recording the statutory warranty deed;
and
(ii) Any and all costs in connection with any third party
financing which Tenant may obtain.
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44. PROVISIONS WITH RESPECT TO FAILURE OF TITLE; DEFAULT.
44.1 Failure of Title. If Landlord shall be unable to convey title
to the Property or any portion thereof on the Closing in accordance with the
provisions hereof, Landlord shall, on or prior to Closing, give notice of such
inability and the nature thereof) to Tenant, and Tenant may either (i) accept
such title as Landlord can convey, without abatement of the Purchase Price, or
(ii) terminate this Option.
44.2 Default by Landlord. After exercise of the Option, in the event
Landlord should fail to perform hereunder for any reason, except Tenant's
default or the failure of title as set forth in Section 44.1 hereof, Tenant may
(i) enforce specific performance of this Option, or (ii) terminate this Option.
Tenant may not seek damages from Landlord. No delay or omission in the exercise
of any right or remedy accruing to Tenant upon any breach by Landlord under this
Option shall impair such right or remedy or be construed as a waiver of any such
breach theretofore or thereafter occurring. The waiver by Tenant of any
condition or of any subsequent breach of the same or any other term, covenant or
condition herein contained shall not be deemed to be a waiver of any other
condition or of any subsequent breach of the same or any other term, covenant,
or condition herein contained.
44.3 Default by Tenant. After exercise of the Option, in the event
Tenant should fail to perform hereunder for any reason, except default by
Landlord, Landlord may proceed in equity to enforce its rights hereunder. No
delay or omission in the exercise of any right or remedy accruing to Landlord
upon any breach by Tenant hereunder shall impair such right or remedy or be
construed as a waiver of any breach theretofore or thereafter occurring. The
waiver by Landlord of any condition or the breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any other
condition or of any subsequent breach of the same or any other term, covenant or
condition herein contained.
45. BROKERAGE COMMISSIONS. Each party represents to the other that no
brokers have been involved in this transaction except Colliers ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ and Associates, Inc., whose commissions are the responsibility of
Landlord. The parties hereby agree that if any claims for brokerage commissions
or fees are ever made against either party in connection with this transaction,
each such claim shall be handled and paid by the party whose actions form the
basis of such claim. Each party agrees to indemnify and hold harmless the other
from and against any and all such claims asserted by any person, firm or
corporation in connection herewith or the transaction contemplated hereby,
including attorneys' fees (as defined in Section 20), and arising from the acts
of the indemnifying party.
46. REPRESENTATIONS AND WARRANTIES. Landlord makes no representations
or warranties concerning the present or future suitability of the Property
for the conduct of Tenant's business or the condition of the Property, and
Tenant acknowledges that if it exercises the Option, it is purchasing the
Property "AS IS"; provided, however, Landlord, at its sole cost and expense,
shall remove the existing fuel tanks on the Property prior to Closing. Further
Landlord shall empty the existing fuel tanks of all fuel within three (3)
business days of execution of this Lease and shall maintain the fuel tanks (and
all required registrations thereof) during the term of this Lease, provided
however that Landlord shall not be responsible for damage to the fuel tanks
caused by Tenant.
47. MEMORANDUM OF LEASE TO BE RECORDED. Landlord and Tenant shall cause
to be recorded in the Public Records of Pinellas County, Florida a memorandum
sufficient to give notice to all subsequent takers and/or would be takers of the
existence of this leasehold estate and option to purchased conveyed and created
in Tenant by this Lease. In the event Landlord fails to execute an appropriate
instrument and deliver it to Tenant within ten (10) days of execution of this
Lease then Tenant may unilaterally execute and record such an instrument.
-21-
26
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH
RESPECT TO THE PROPERTY.
WITNESSES: LANDLORD:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
Signature ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: 6/28/96
------------------------------- -------------------------------
Print name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Print name
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
Signature ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: 6/28/96
------------------------------- -------------------------------
Print name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Print name
TENANT:
LEVEL BEST GOLF,
a Florida corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ----------------------------
Signature ▇▇▇▇ ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date: 6/28/96
------------------------------- --------------------------
Print name
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Print name
27
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH
RESPECT TO THE PROPERTY.
WITNESSES: LANDLORD:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
Signature ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: 6/28/96
------------------------------- -------------------------------
Print name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Print name
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
Signature ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: 6/28/96
------------------------------- -------------------------------
Print name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Print name
TENANT:
LEVEL BEST GOLF,
a Florida corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ----------------------------
Signature ▇▇▇▇ ▇▇▇▇▇▇▇
President
Date: 6/28/96
------------------------------- --------------------------
Print name
-------------------------------
Signature
-------------------------------
Print name
28
LEGAL DESCRIPTION
The North 1/4 of the Northwest 1/4 of the Southwest 1/4 of the Northwest 1/4 of
Section 4, township 30 south, Range 16 East, Pinellas County, Florida, LESS the
West 30 feet described thereof taken as road right-of-way per O.R. 7150, Pages
2280 and 2281, Public Records of Pinellas County, Florida.
EXHIBIT "A"
29
THIS INSTRUMENT PREPARED BY (& ▇▇▇
▇▇▇▇▇▇▇, BLAKELY, POPE, ▇▇▇▇▇, ▇▇▇▇▇▇ & BU. P.A.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Esquire
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INST # 96-188530
JLY 10, 1996 5:16 PM
RECORDING
REC 19:50 PINELLAS COUNTY FLA.
DS _____ OFF. REC. BK 9399 PG 1208
INT _____
FEES _____
MTF _____
P/C _____
REV _____
____ _____
TOTAL 19:50
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made on this 28th day of June, 1996, between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, whose mailing address is ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (collectively, "Landlord"), and LEVEL
BEST GOLF, a Florida corporation, whose mailing address is ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Tenant").
1. Landlord has entered into a Commercial Lease and Option to
Purchase, dated June 28, 1996 ("Lease"), with Tenant for space located on the
real property more particularly described in Exhibit "A," attached hereto and
made a part hereof (the "Property"), in accordance with the terms, conditions
and provisions set out in the Lease.
2. The term of the Lease for the Property commences on July 1, 1996,
and ends on June 30, 1999, subject to earlier termination upon default as
provided in the Lease.
3. All persons are put on notice of the fact that pursuant to the
Lease, Tenant does not have the power to subject the interest of Landlord in
the Property to any mechanic's liens or other liens of any kind. Specifically,
the Lease provides the interest of Landlord shall not be subject to liens for
improvements made by Tenant, and Tenant shall notify any contractor making such
improvements of this provision.
All persons who hereafter, during the term of the Lease, furnish work,
services or materials to the Property upon the request of Tenant or any other
person claiming under, by or through Tenant, must look only to the interest of
Tenant and not to that of Landlord.
4. All persons are put on notice of the fact that pursuant to the
Lease, Tenant has an option to purchase the Property at any time prior to
thirty (30) days before the expiration of the term of the Lease.
5. The rights granted to the parties as aforesaid are all subject to
the terms and conditions contained in the Lease and any and all Exhibits
attached and referred to in the Lease. In the event of a conflict between the
terms of the Lease and its Exhibits and this Memorandum, the terms of the Lease
and its Exhibits shall be controlling.
6. This Memorandum shall expire on June 30, 1999.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this
instrument the day and year aforesaid.
WITNESSES: LANDLORD:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
Signature ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Print name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Print name
30
PINELLAS COUNTY FLA.
OFF. REC. BK 9399 PG 1209
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
Signature ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Print name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Print name
TENANT:
LEVEL BEST GOLF,
a Florida corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
President
(Corporate Seal)
STATE OF FLORIDA)
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 28th day of June,
1996, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who [have produced Florida
drivers licenses as identification].
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public
Print name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
My commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Seal) MY COMMISSION # CC349891 EXPIRES
February 23, 1998
BONDED THRU ▇▇▇▇ ▇▇▇▇ INSURANCE, INC.
-2-
31
TENANT:
LEVEL BEST GOLF,
a Florida corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- --------------------------
Signature ▇▇▇▇ ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- (Corporate Seal)
Print name
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Print name
STATE OF WASHINGTON)
COUNTY OF SPOKANE )
The foregoing instrument was acknowledged before me this 28th day of June,
1996, by ▇▇▇▇ ▇▇▇▇▇▇▇, as President of LEVEL BEST GOLF, a Florida corporation,
on behalf of the corporation. He [has produced a Florida drivers license as
identification].
/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
Print name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
My commission expires: 6-30-99
(Seal)
-2-
32
PINELLAS COUNTY FLA.
OFF. REC. BK 9399 PG 1211
LEGAL DESCRIPTION
The North 1/4 of the Northwest 1/4 of the Southwest 1/4 of the Northwest 1/4 of
Section 4, township 30 south, Range 16 East, Pinellas County, Florida, LESS the
West 30 feet described thereof taken as road right-of-way per O.R. 7150, Pages
2280 and 2281, Public Records of Pinellas County, Florida.
EXHIBIT "A"
33
GUARANTY OF PERFORMANCE OF COMMERCIAL LEASE AGREEMENT
THIS GUARANTY is made this 28th day of June, 1996, by ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Guarantors") to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇
▇. ▇▇▇▇▇▇ ("Landlord").
R E C I T A L S:
A. Landlord, on June 28, 1996, entered into a Commercial Lease and Option
to Purchase ("Agreement") with LEVEL BEST GOLF, a Florida corporation, a
("Tenant") for the purpose of leasing certain commercial real property as
described in the Agreement. A copy of the Agreement is attached as Exhibit "A"
and is incorporated herein by reference.
B. Guarantors are willing to guarantee Tenant's performance of the
Agreement under the terms set forth below.
For value received, the sufficiency of which is hereby acknowledged,
Guarantors agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated
herein by reference.
2. Statement of Guaranty. Guarantors unconditionally guarantee the
faithful, prompt and complete compliance by Tenant with all the terms,
obligations, and conditions of the Agreement, including all extensions or
modifications thereof. If Tenant fails to perform its covenants, agreements and
undertakings as provided in the Agreement, the Guarantors shall immediately, and
with due diligence, do and perform for the benefit of the Tenant, all such
covenants, agreements, and undertakings as if they constituted a direct and
primary obligation of the Guarantors. In no event shall the liability or
obligations of the Guarantors hereunder exceed that of the Tenant under the
Agreement.
The obligations of the Guarantors hereunder are independent of the
obligations of the Tenant, and a separate action or actions for payment,
damages, or performance may be brought and prosecuted against the Guarantors, or
any one of them, whether or not an action is brought against the Tenant, and
whether or not Tenant be joined in any such action or actions, and whether or
not notice be given or demand be made upon Tenant.
3. Release, Modification, or Extension of Agreement. Landlord may, from
time to time, with notice to the Guarantors (or any of them) and without
affecting, diminishing, or releasing the liability of the Guarantors (or any of
them): (a) retain or obtain the primary or secondary liability of any party or
parties, in addition to the Guarantors hereunder, with respect to any of the
terms, obligations and conditions of the Agreement, (b) extend or renew for any
period (whether or not longer than the original period), alter, exchange, or
modify any of the terms, obligations and conditions of the Agreement, (c)
release or compromise any liability of any of the Guarantors hereunder or any
liability of any other party or parties primarily or secondarily liable on any
of the terms, obligations and conditions of the Agreement, (d) release its
security interest, if any, in all or any property securing any obligation
hereunder and permit any substitution or exchange of such property, (e) resort
to the Guarantors (or any of them) for payment of any or all portion of
liabilities arising from the guarantee herein, whether or not Landlord shall
have resorted to any property securing any obligation hereunder or shall have
proceeded against any other of the Guarantors or any other party primarily or
secondarily liable on any of the terms, obligations and conditions of the
Agreement, and (f) alter, extend, change, modify, release, or cancel any
covenant, agreement, or provision contained in the Agreement or modifications or
amendments thereof; provided however that Landlord shall not modify the terms of
the Agreement in
34
a manner which unreasonably increases the liability or potential liability of
the Guarantors without first obtaining their written consent.
4. Notice. The Guarantors hereby waive (a) notice of the acceptance of
this Guaranty, and (b) all diligence on the part of Landlord in collection or
protection of, or realization upon, any security for any of the terms,
obligations and conditions of the Agreement or in enforcing any remedy available
to the Landlord.
5. Waiver. No delay or failure on the part of Landlord in exercise of any
right or remedy shall operate as a waiver, release, or modification of same.
Any waiver, release, or modification granted shall be effective only through a
written document executed by Landlord, and then only to the extent specifically
recited therein. No single or partial exercise by Landlord of any right or
remedy herein shall preclude other or further exercise thereof or the exercise
of any other right or remedy whether contained herein or in the Agreement. No
action of Landlord permitted hereunder shall in any way impair or affect this
Guaranty. No right or power of the Tenant or any one else to assert any claim
or defense as to the invalidity or enforceability of the Agreement shall impair
or affect the obligations of the undersigned hereunder.
6. Duration. It is fully understood that until each and every one of the
covenants and agreements of this Guaranty are fully performed, the Guarantors'
obligations hereunder shall not be released, in whole or in part, by any action
or thing which might, but for this provision of this instrument, be deemed a
legal or equitable discharge of a surety or guarantor, or by reason of any
waiver, extension, modification, forbearance, or delay or other act or omission
of Landlord or its failure to proceed, promptly or otherwise, or by reason of
any action taken or omitted by Landlord, whether or not such action or failure
to act varies or increases the risk of or affects the rights or remedies of the
Guarantors, or by reason of any further dealings between Tenant, Landlord, or
any other guarantor, and the Guarantors hereby expressly waive and surrender any
defense to its liability hereunder based upon any of the foregoing acts,
omissions, things, agreement, or waivers of any of them; it being the purpose
and intent of the parties hereto that the covenants, agreements, and all
obligations hereunder are absolute, unconditional, and irrevocable under any and
all circumstances.
7. Notice. Any notice, demand, or request by Landlord, its successors or
assigns, to the Guarantors shall be in writing, and shall be deemed to have been
duly given or made if either delivered personally to the undersigned or mailed
by certified or registered mail addressed to the Guarantors at the address for
such guarantor specified below:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
14561-58th Street North ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as any one or more of the Guarantors shall designate
from time to time in writing.
8. Assignment. Landlord shall be entitled to assign this Guaranty and all
of its rights, privileges, interests, and remedies hereunder to any other
persons, firm, entity, bank, or corporation whatsoever without notice to or
consent by the Guarantors, and such assignee shall be entitled to the benefits
of this Guaranty and to exercise all such rights, interests, and remedies as
fully as Guarantors.
9. Termination. Provided that no default then exists under the Agreement,
this Guaranty shall terminate when, and only when, the Tenant shall have
completely complied with all the terms and conditions of the Agreement,
including all extensions,
-2-
35
renewals and modifications thereof. When such condition has been met, Landlord
will, upon request, furnish written cancellation of this Guaranty.
10. Binding Effect. This Guaranty shall inure to the benefit of Landlord,
its successors and assigns, and shall bind each of the Guarantors jointly and
severally, together with their heirs, legal representatives, successors, and
assigns. If more than two parties execute this Guaranty, the terms
"undersigned" and "Guarantors" shall mean all parties executing this Guaranty,
and all such parties shall be jointly and severally obligated hereunder. The
use of the singular form herein shall include the plural, as applicable, and
vice versa, and the use of any gender or the neuter form shall include all
genders and the neuter form.
11. Applicable Law. This Guaranty shall be construed in accordance with
the laws of the State of Florida, and such laws shall govern the interpretation,
construction, and enforcement hereof. Whenever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SIGNED, SEALED, AND DELIVERED AT Clearwater, Florida, as of the 28th day of
June, 1996.
WITNESSES:
(As witnesses only and not
as co-guarantors)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
STATE OF FLORIDA )
36
renewals and modifications thereof. When such condition has been met, Landlord
will, upon request, furnish written cancellation of this Guaranty.
10. Binding Effect. This Guaranty shall inure to the benefit of Landlord,
its successors and assigns, and shall bind each of the Guarantors jointly and
severally, together with their heirs, legal representatives, successors, and
assigns. If more than two parties execute this Guaranty, the terms
"undersigned" and "Guarantors" shall mean all parties executing this Guaranty,
and all such parties shall be jointly and severally obligated hereunder. The
use of the singular form herein shall include the plural, as applicable, and
vice versa, and the use of any gender or the neuter form shall include all
genders and the neuter form.
11. Applicable Law. This Guaranty shall be construed in accordance with
the laws of the State of Florida, and such laws shall govern the interpretation,
construction, and enforcement hereof. Whenever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SIGNED, SEALED, AND DELIVERED AT Clearwater, Florida, as of the 28th day of
June, 1996.
WITNESSES:
(As witnesses only and not
as co-guarantors)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
STATE OF FLORIDA )
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of
_____________, 1996, by ▇▇▇▇ ▇▇▇▇▇▇▇, who [is personally known to me] [has
produced a Florida driver's license as identification].
------------------------------
Notary Public
Print name:___________________
My commission expires:
-3-
37
STATE OF FLORIDA )
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this 28th day of June,
1996, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who [has produced a Florida driver's license as
identification].
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public
Print name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
My commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Seal) MY COMMISSION # CC349891 EXPIRES
February 23, 1998
BONDED THRU ▇▇▇▇ ▇▇▇▇ INSURANCE, INC.
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 28th day of June,
1996, by ▇▇▇ ▇▇▇▇▇▇▇, who [has produced a Florida driver's license as
identification].
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public
Print name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
My commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Seal) MY COMMISSION # CC349891 EXPIRES
February 23, 1998
BONDED THRU ▇▇▇▇ ▇▇▇▇ INSURANCE, INC.
-4-