INDUSTRIAL BUILDING LEASE
- BASIC TERMS. This Section 1 contains the Basic Terms of this Lease between Landlord and Tenant, named below. Other Sections of the Lease referred to in this Section 1 explain and define the Basic Terms and are to be read in conjunction with the Basic Terms.
- Date of Lease: October 11th, 2021
- Landlord: 900 Terrace FL, LLC, a Delaware limited liability company
- Tenant: Cheaz Industries LLC, a Florida limited liability company
- Premises: See “Exhibit A”, including the industrial building thereon (the
- Lease Term: seven (7) “Lease Years”, as hereinafter defined, plus three
months (“Term”), commencing on October 1st, 2021 (“Commencement Date”) and ending on the last day of the seventh (7th) Lease Year plus three (3) months, unless extended or sooner terminated in accordance with this Lease (“Expiration Date”).
- Permitted Uses: (See Section 4) xtraction of cannabidiol (referred to hereafter as “CBD”), and CBD cosmetics and product manufacturing in conformance with all applicable laws, and for no other use or purpose.
- Tenant’s Guarantor or Guarantor: (if none, so state) Nibiru International LLC, a Florida limited liability company
- Brokers: (See Section 23; if none, so state)
- Tenant’s Broker: Laurent Minguez of Chosen Real Estate Advisors (2.5% commission of gross value of lease, 7 years and 3 months, paid immediately after the conclusion of due diligence period, see section 1.15, from landlord to Laurent Minguez of Chosen Real Estate Advisors)
- Landlord’s Broker: NONE
- Security Deposit: (See Section 4) $77,800.47
- Base rent for the lease of the Premises (“Base Rent”) for the first Lease Year shall be $186,721.13 in equal monthly installments of $15,560.09. Rent shall be payable prior to or following a Lease Year (including for partial months) at a prorated share based on the then current Base Rent. Base Rent shall be increased and adjusted on an annual basis at the beginning of each Lease Year (as hereinafter defined) during the Term of this Lease by an amount equal to the greater of (i) Three and on-half Percent (3.5%) or (ii) the Consumer Price Index for all Urban Consumers Miami/Ft. Lauderdale area (CPI-U) as published by the Bureau of Labor Statistics of the United States Department of Labor (1982-84 = 100) ( “Index”). In the event the Index shall be discontinued with no successor or comparable successor Index, Landlord
shall select a reasonable substitute index. The adjustment based upon the Index shall be accomplished by multiplying the annual Base Rent for the previous Lease Year by a fraction, the numerator of which shall be the Index for the month which is Three (3) Months prior to the first month of such Lease Year for which such adjustment is to be made, and the denominator of which fraction shall be the corresponding monthly Index for the same month of the preceding calendar year. The result thus obtained will be the Base Rent for the then current Lease Year and will be paid in advance in equal monthly installments on the first day of each month. Landlord shall provide Tenant a sixty (60) day notice of increase of rent pursuant to applicable law.
Notwithstanding the foregoing, Tenant shall have the right to occupy the Premises on the date of this Lease without being charged Base Rent between January 1, 2022 and March 31, 2022; provided, however, that Tenant shall otherwise be bound by all of the terms and conditions of this Lease (including, without limitation, all of Tenant’s insurance requirements) commencing on the date hereof.
Concurrent with the execution of this Lease, and in addition to any Security (defined below) due and payable pursuant to Section 1.9 and 4.3 below, Tenant has paid to Landlord first month’s and last month’s Base Rent based on the Base Rent calculation for the first Lease Year.
- Riders to Lease: The following riders are attached to and made a part of this Lease. (If none, so state) No riders, but see attached Exhibits A, B and C and Guaranty
- Lease Year: As used herein, means a period of twelve (12) consecutive months during the Term, the first full Lease Year commencing on the Commencement Date and continuing through the twelfth (12th) full calendar month occurring on or after the Commencement Date. “Partial Lease Year” means that portion of the Term prior to the first full Lease Year or following the last full Lease Year.
- Renewal Term: See Exhibit B attached hereto.
- Landlord’s Work: Landlord shall make commercially reasonable efforts to cause the repair of the electrical box on the Premises to be completed within ninety (90) days of the date of this Lease.
- Tenant’s Due Diligence Period. Notwithstanding anything in this Lease to the contrary, for a period of ninety (90) days from the Date of this Lease per Section 1.1 above (the “Due Diligence Period”), Tenant shall inquire with state and local governmental authorities concerning licenses and permits necessary for Tenant to conduct its business in conformance with the Permitted Use (collectively, the “Licenses and Permits”), including the Zoning Department of the City of Fort Lauderdale and the Florida Department of Agriculture and Consumer Services. If, following Tenant’s reasonably diligent efforts is unable to obtain all of the Licenses and Permits, then Tenant shall have the right to terminate this Lease by delivery of written notice to Landlord prior to the end of the Due Diligence Period and, provided Tenant is not then in default under this Lease, and subject to the requirements and possible deductions referenced in Section 4.3 below, a refund of the Security. For avoidance of confusion, Rent (including all Base Rent and Additional Rent) shall be due and payable in conformance with the
terms of this Lease, and Tenant shall be responsible to comply with all terms, conditions and obligations of this Lease, throughout the Due Diligence Period
2. LEASE OF PREMISES; RENT; ASSOCIATION PAYMENTS; NET LEASE.
- Lease of Premises for Lease Term. Landlord hereby leases the Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for the Term and subject to the conditions of this Lease. If for any reason Landlord cannot deliver possession of the Premises to Tenant, Landlord shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or the obligations of Tenant hereunder, but in such case Tenant shall not be obligated to pay Rent until possession of the Premises is tendered to Tenant.
- Types of Rental Payments. Tenant shall pay Landlord without offset, counterclaim or defense, the rents of (a) net base rent payable in monthly installments as set forth in Section 1.10 hereof, in advance, on the first day of each and every calendar month during the Term of this Lease (the “Base Rent”); and (b); all costs, expenses and charges of every nature for which Tenant is responsible by the terms of this Lease, including, but not limited to, any costs incurred by Landlord to cure a Tenant breach and Tenant’s payment of the Increase pursuant to Section 2.4 below [collectively, “Additional Rent”]; (c) in the event any monthly installment of Base Rent or Additional Rent, or both, is not paid within 10 days of the date when due, a late charge in an amount equal to 10% of the then delinquent installment of Base Rent and/or Additional Rent; and (d) in the event Tenant gives Landlord a check that the bank will not honor, Landlord will charge Tenant a Bounced-Check fee, which may be $40 or 5% of the face amount of the check, whichever is greater. Landlord shall give Tenant a written demand, asking for the payment within 30 days. (The “Late Charge”; the Late Charge, Base Rent ,Additional Rent , and Bounced-Check fee shall collectively be referred to as “Rent”), together with all sales tax thereon, which monies shall be paid to Landlord to the order of CFR Realty Partners, LLC PO Box 300500 Brooklyn, NY 11230 (or such other entity designated as Landlord’s management agent, if any, and if Landlord so appoints such a management agent, the “Agent”), or pursuant to such other directions as Landlord shall designate in this Lease or otherwise in writing from time to time.
- Covenants Concerning Rental Payments. Tenant shall pay the Rent promptly when due, without notice or demand, and without any abatement, deduction or setoff, except as may otherwise be expressly and specifically provided in this Lease. No payment by Tenant, or receipt or acceptance by Agent or Landlord, of a lesser amount than the correct Rent shall be deemed to be other than a payment on account, nor shall any endorsement or statement on any check or letter accompanying any payment be deemed an accord or satisfaction, and Agent or Landlord may accept such payment without prejudice to its right to recover the balance due or to pursue any other remedy available to Landlord. If the Commencement Date occurs on a day other than the first day of a calendar month, the Rent due for the first calendar month of the Term shall be prorated on a per diem basis and paid to Landlord on the Commencement Date, and the Term will be extended to terminate on the last day of the calendar month in which the Expiration Date stated in Section 1.5 occurs.
Payment of Real Estate Taxes and Landlord’s Insurance. Notwithstanding anything in Section 3 or 10.1 to the contrary, Landlord shall pay the ad valorem and non-ad valorem real estate tax bill applicable to the Premises (the “Real Estate Taxes”) for year 2021 (the “First Year”) and each year of the Lease Term thereafter; provided, however, that Tenant shall pay the increase in Real Estate Taxes (assuming the greatest available discount) from the First Year to the then applicable year (the “Increase”), as follows: Landlord shall pay the Real Estate Taxes and premiums for Landlord’s Insurance when due and payable, following which Landlord shall deliver Tenant an invoice for the Increase (with a copy of the paid Real Estate Tax bill and applicable premium invoice with proof of payment). Tenant shall pay Landlord’s invoice for the Increase, as Additional Rent, by the later of (i) 10 days from the date of delivery of the invoice or (ii) with the next payment of Base Rent.
- Sales Tax on Rent. Tenant shall pay all applicable sales and use taxes, now or hereafter imposed by any and all taxing authorities, on the Rent (including, without limitation, Additional Rent) at the time such rental payments are due to be paid.
- TAXES. Except as expressly provided in Section 2.4 above, Tenant agrees to pay as Additional Rent for the Premises (i) all governmental taxes, assessments (including assessments of any community development district), fees and charges of every kind or nature (other than Landlord’s income taxes), whether general, special, ordinary or extraordinary, due at any time or from time to time, during the Tern and any extensions thereof, in connection with the ownership, leasing, or operation of the Premises, or of the personal property and equipment located therein or used in connection therewith; and (ii) any and all reasonable expenses incurred by Landlord in contesting such taxes or assessments and/or the assessed value of the Premises (the “Taxes”).
4. USE OF PREMISES: SIGNAGE: SECURITY DEPOSIT.
- Use of Premises. The Premises shall be used by Tenant only for the Permitted Use(s) set forth in Section 1.6 above and for no other purpose whatsoever. Tenant shall not, at any time, use or occupy, or suffer or permit anyone to use or occupy, the Premises, or do or permit anything to be done in the Premises, in any manner that may (a) violate any Certificate of Occupancy for the Premises; (b) cause, or be liable to cause, injury to, or in any way impair the proper utilization of, all or any portion of the Premises (including, but not limited to, the structural elements of the Building, as defined in Exhibit A) or any equipment, facilities or systems therein; (c) constitute a violation of the laws and requirements of any public authority or the requirements of insurance bodies or the rules and regulations of the Premises, including any covenant, condition or restriction affecting the Premises; (d) exceed the load bearing capacity of the floor of the Building: (e) impair or tend to impair the character, reputation or appearance of the Premises; (f) unreasonably annoy, inconvenience or disrupt the operations or tenancies of other tenants or users of the Premises, if any; or (g) any use other than the Permitted Uses set forth in Section 1.6.
- Signage. Tenant shall not affix any sign of any size or character to any portion of the Premises, without prior written approval of Landlord, which approval shall not be unreasonably withheld or delayed. Tenant shall remove all signs of Tenant upon the expiration or earlier termination of this Lease and immediately repair any damage to the Premises caused by, or resulting from, such removal.
- Security Deposit. Simultaneously with the execution and delivery of this Lease, Tenant shall deposit with Landlord or Agent the sum set forth in Section 1.9 above, in cash (the “Security”), representing security for the performance by Tenant of the covenants and oligations hereunder. Upon payment of the Security, Landlord shall provide Tenant a written notice of receipt of the Security. The Security shall be held by Landlord or Agent, without interest, in favor of Tenant; provided, however, that no trust relationship shall be deemed created thereby and the Security may be commingled with other assets of Landlord. If Tenant defaults in the performance of any of its covenants hereunder Landlord or Agent may, without notice to Tenant, apply all or any part of the Security, to the extent required for the payment of any Rent or other sums due from Tenant hereunder, in addition to any other remedies available to Landlord. If such application occurs, Landlord shall make a reasonable effort to so advise Tenant, in writing, promptly following such application. In the event the Security is so applied, Tenant shall, upon demand, immediately deposit with Landlord or Agent a sum equal to the amount so used. If Tenant fully and faithfully complies with all the covenants hereunder, the Security (or any balance thereof) shall be returned to Tenant within 15days after the last to occur of (i) the date the Term expires or terminates or (ii) delivery to Landlord of possession of the Premises. Landlord may deliver the Security to any purchaser of Landlord’s interest in the Premises or any successor landlord, if applicable end thereupon Landlord and Agent shall be discharged from any further liability with respect to the Security.
5. CONDITION AND DELIVERY OF PREMISES.
- Condition of Premises. Except as expressly provided in this Section 5.1, Tenant agrees that Tenant is familiar with the condition of the Premises, and Tenant hereby accepts the foregoing on an “AS-IS,” “WHERE-IS” basis. Tenant acknowledges that neither Landlord nor Agent nor any representative of Landlord has made any representation as to the condition of the foregoing or the suitability of the foregoing for Tenant’s intended use, including, without limitation, the zoning or land use designation of the Premises. Tenant further acknowledges that Landlord is not obligated to ensure the fitness and suitability of the premises and that it is Tenant’s duty to carefully check the condition of the premises before entering into this lease Tenant represents and warrants that Tenant has made its own inspection of the foregoing. Neither Landlord nor Agent shall be obligated to make any repairs, replacements or improvements (whether structural or otherwise) of any kind or nature to the foregoing in connection with, or in consideration of, this Lease, except for Landlord’s Work which shall be performed in a good and workmanlike manner. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT’S INTENDED COMMERCIAL PURPOSE, AND TENANT’S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, DEMAND, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED. LANDLORD SHALL NOT BE LIABLE FOR ANY INJURY OR LOSS SUSTAINED BY TENANT RESULTING FROM A DEFECT THAT HAS BEEN IN EXISTENCE SINCE THE SIGNING OF THIS AGREEMENT
6. SUBORDINATION: NOTICES TO SUPERIOR LESSORS AND MORTGAGEES: ATTORNMENT.
- Subordination. This Lease is and shall be subject and subordinate at all times to all ground leases or underlying leases and amendments thereto that may now exist or hereafter be executed affecting the Premises; and to any mortgage or deed of trust and amendments thereto that may now exist or be placed upon, and encumber, any or all of the Premises; any ground leases or underlying leases for the benefit of the Premises and amendments thereto; or all or any portion of Landlord’s interest or estate in any of said items. This Lease and
Tenant’s rights hereunder are self-subordinating to any mortgages now or hereafter obtained by Landlord (and all modifications thereof), but Tenant agrees that Tenant shall execute and deliver, upon demand by Landlord and in the form reasonably requested by Landlord, any additional documents evidencing the priority of subordination of this Lease with respect to any such ground leases or underlying leases or any such mortgage or deed of trust.
- Estoppel Certificates. Tenant agrees, from time to time and within 10 days after request by Landlord, to deliver to Landlord, or Landlord’s designee, an estoppel certificate stating such matters pertaining to this Lease as may be reasonably requested by Landlord. Failure by Tenant to timely execute and deliver such certificate shall constitute an event of default and Landlord shall have such rights and remedies against Tenant as is available to Landlord for Tenant’s default and furthermore Landlord shall be granted a power of attorney for purposes of obtaining such certificate. Landlord and Tenant intend that any statement delivered pursuant to this section may be relied upon by any prospective purchaser or mortgagee of the Premises or of any interest therein or any other Landlord designee.
- Transfer for Landlord. In the event of a sale or conveyance by Landlord of the Premises, the same shall operate to release Landlord from any future liability for any of the covenants or conditions, express or implied, herein contained in favor of Tenant, and in such event Tenant agrees to look solely to Landlord’s successor in interest with respect thereto and agrees to attorn to such successor.
- QUIET ENJOYMENT. Subject to the provisions of this Lease, so long as Tenant pays all of the Rent and performs all of its other obligations hereunder, Tenant shall not be disturbed in its possession of the Premises by Landlord, Agent or any other person lawfully claiming through or under Landlord. This covenant shall be construed as a covenant running with the Premises and is not a personal covenant of Landlord. Notwithstanding the foregoing, however, Tenant acknowledges and agrees that Landlord shall have the unfettered and unilateral right to use portions of the Premises (but not the interior of the Building) for such purposes and uses as Landlord may desire, including but not limited to the granting of easements and access over the property and the right to inspect the Premises; provided, however, that in all events and under all circumstances, Landlord’s use of any portion of the Premises shall not interfere, in any material respect, with any or all of (a) Tenant’s rights to occupy and use the Premises (in the manner and for the purposes contemplated hereunder); (b) Tenant’s non-exclusive right to utilize the vehicular parking areas to the extent located on the Premises over paved surfaces which exist from time to time, subject to Landlord’s right to modify such common areas and develop and/or redevelop the Property; and (c) Tenant’s right of access, ingress and egress to and from the Premises. Nothing in the foregoing precludes Landlord’s rights under Section 16 of this Agreement. Notably, pursuant to F.S. 83.52, Landlord may enter the interior of the building to inspect the property; to make necessary or agreed repairs; and in the event of an emergency. Landlord may also access the interior of the building when the Tenant unreasonably withholds consent or if the Tenant is absent from the property for a period of time equal to 1/2 the time of periodic rental payments. Tenant therefore represents and warrants that it shall not unreasonably withhold consent to Landlord’s access. Landlord shall provide Tenant “reasonable notice” of access, which is at least 12 hours prior to the entry and between the hours of 7:30 am to 8:00 pm.
8. ASSIGNMENT. SUBLETTING AND MORTGAGING.
- Prohibition. Tenant acknowledges that this Lease and the Rent due under this Lease have been agreed to by Landlord in reliance upon Tenant’s reputation and creditworthiness and upon the continued operation of the Premises by Tenant for the particular use set forth in Section 4 above; therefore, Tenant shall not, whether voluntarily, or by operation of law, or otherwise: (a) assign or otherwise transfer this Lease; (b) sublet the Premises or any part thereof, or allow the same to be used or occupied by anyone other than Tenant; or (c)
mortgage, pledge, encumber, or otherwise hypothecate this Lease or the Premises, or any part thereof, in any manner whatsoever, without in each instance obtaining the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole discretion. Any purported assignment, mortgage, transfer, pledge or sublease made without the prior written consent of Landlord, in its sole discretion, shall be absolutely null and void. No assignment of this Lease shall be effective and valid unless and until the assignee executes and delivers to Landlord any and all documentation reasonably required by Landlord in order to evidence assignee’s assumption of all obligations of Tenant hereunder. Any consent by Landlord to a particular assignment, sublease or mortgage shall not constitute consent or approval of any subsequent assignment, sublease or mortgage, and Landlord’s written approval shall be required in all such instances. No consent by Landlord to any assignment or sublease shall be deemed to release Tenant from its obligations hereunder and Tenant shall remain fully liable for performance of all obligations under this Lease.
- Rights of Landlord. If this Lease is assigned, or if the Premises (or any part thereof) are sublet or used or occupied by anyone other than Tenant, whether or not in violation of this Lease, Landlord or Agent may (without prejudice to, or waiver of its rights), collect Rent from the assignee, subtenant or occupant. Landlord or Agent may apply the net amount collected to the Rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Section 8. In the event that the total rent and any other considerations received under any sublease or assignment by Tenant is greater than the total Rent required to be paid, from time to time, under this Lease, Tenant shall pay to Landlord fifty percent (50%) of such excess as received from any subtenant or assignee and such amount shall be deemed a component of the Additional Rent.
- Permitted Transfers. The provisions of Section 8.1(a) shall apply to a transfer of a majority of the voting stock of Tenant (through one or more transfers) or to any other change in voting control of Tenant (if Tenant is a corporation), or to a transfer of a majority (i.e. greater than an aggregate 50% interest) of the general partnership or membership interests in Tenant (if Tenant is a partnership or a limited liability company) or managerial control of Tenant, or to any comparable transaction involving any other form of business entity, whether effectuated in one or more transactions, as if such transfer were an assignment of this Lease. Any such permitted transferee shall execute and deliver to Landlord any and all documentation reasonably required by Landlord in order to evidence assignee’s assumption of all obligations of Tenant hereunder.
9. COMPLIANCE WITH LAWS.
Compliance with Laws. Tenant shall, at its sole expense (regardless of the cost thereof), comply with all local, state and federal laws, rules, regulations and requirements now or hereafter in force and all judicial and administrative decisions in connection with the enforcement thereof (collectively, “Laws”), pertaining to either or both of the Premises and the Tenant’s use thereof. If any license or permit is required for the conduct of Tenant’s business in the Premises, Tenant, at its expense, shall procure such license prior to the Commencement Date, and shall maintain such license or permit in good standing throughout the Term. Tenant shall give prompt notice to Landlord of any written notice it receives of the alleged violation of any Laws or requirements of any governmental or administrative authority with respect to either or both of the Premises and the use or occupation thereof. The judgment of any court of competent jurisdiction, or the admission of Tenant in any action or proceeding against Tenant, whether Landlord is a party thereto or not, that any such Law pertaining to the Premises has been violated, shall be conclusive of that fact as between Landlord and Tenant.
- Hazardous Materials. If during the Term (or any extension thereof) any Hazardous Material (defined below) is generated, transported, stored, used, treated or disposed of at, to, from, on or in the Premises by, or as a result of any act or omission of, any or all of Tenant and any or all of Tenant’s Parties (defined below): (i) Tenant shall, at its own cost, at all times comply (and cause all others to comply) with all laws (federal, state or local) relating to Hazardous Materials, including, but not limited to, all Environmental Laws (defined below), and Tenant shall further, at its own cost, obtain and maintain in full force and effect at all times all permits and other approvals required in connection therewith; (ii) Tenant shall promptly provide Landlord or Agent with complete copies of all communications, permits or agreements with, from or issued by any governmental authority or agency (federal, state or local) or any private entity relating in any way to the presence, release, threat of release, or placement of Hazardous Materials on or in the Premises, or the generation, transportation, storage, use, treatment, or disposal at, on, in or from the Premises, of any Hazardous Materials; (iii) Landlord, Agent and their respective agents and employees shall have the right to either or both (a) enter the Premises and (b) conduct appropriate tests for the purposes of ascertaining Tenant’s compliance with all applicable Laws (including Environmental Laws), rules or permits relating in any way to the generation, transport, storage, use, treatment, disposal or presence of Hazardous Materials on, at, in or from the Premises or any portion thereof; and (iv) upon written request by Landlord or Agent, Tenant shall provide Landlord with the results of reasonably appropriate tests of air, water or soil to demonstrate that Tenant complies with all applicable Laws relating in any way to the generation, transport, storage, use, treatment, disposal or presence of Hazardous Materials on, at, in or from the Premises or any portion thereof. This Section 9.2 does not authorize the generation, transportation, storage, use, treatment or disposal of any Hazardous Materials at, to, from, on or in the Premises in contravention of this Section 9. Tenant covenants to investigate, clean up and otherwise remediate, at Tenant’s sole expense, any release of Hazardous Materials caused, contributed to or created by any or all of (A) Tenant and (B) any or all of Tenant’s officers, directors, invitees, agents, employees, contractors or representatives (“Tenant’s Parties”) during the Term. Such investigation and remediation shall be performed only after Tenant has obtained Landlord’s prior written consent; provided, however, that Tenant shall be entitled to respond immediately to an emergency without first obtaining such consent. All remediation shall be performed in strict compliance with Environmental Laws and to the reasonable satisfaction of Landlord. Tenant shall be liable for any and all conditions covered hereby, and for all costs relating thereto, that are caused or created by any or all of Tenant and Tenant’s Parties. Tenant shall not enter into any settlement agreement, consent decree or other compromise with respect to any claims relating to any Hazardous Materials in any way connected to the Premises without first obtaining Landlord’s written consent (which consent may be given or withheld in Landlord’s sole, but reasonable, discretion) and affording Landlord the reasonable opportunity to participate in any such proceedings. As used herein, the term (x) “Environmental Laws” shall mean any and all Laws pertaining to Hazardous Materials or that otherwise deal with or relate to air or water quality, air emissions, soil or ground conditions or other environmental matters of any kind; and (y) “Hazardous Materials” shall mean any waste, material or substance (whether in the form of liquids, solids or gases, and whether or not
air-borne) that is or may be deemed to be or include a pesticide, petroleum, asbestos, polychlorinated biphenyl, radioactive material, urea formaldehyde or any other pollutant or contaminant that is or may be deemed to be hazardous, toxic, ignitable, reactive, corrosive, dangerous, harmful or injurious, or that presents a risk to public health or to the environment, and that is or becomes regulated by any Environmental Law.
Tenant has provided a list of chemicals and other Hazardous Materials attached hereto as Exhibit C, which Landlord shall permit Tenant to use on the Premises provided use and disposal of such materials is in conformance with all applicable laws, ordinances, regulations and statutes, and otherwise complies with the terms of this Section 9.2 (collectively, the Permitted Materials). Notwithstanding anything to the contrary in this Section 9.2, Tenant shall not be permitted to utilize in or bring onto the Premises any other Hazardous Materials without Landlord advance written consent which may be withheld in Landlord’s sole and absolute discretion (it being understood that any use or disposal of such materials which would be in violation of this Section 9.2 will be grounds for refusal). Any violation of this paragraph shall be deemed a breach of this Section 9.2 and the Lease. All chemicals shall be stored in “spill kits” in the Building (and not outside). Tenant shall also promptly update and/or replace the chemical sign at the front of the Premises to advise first responders of chemicals on-site.
- Insurance to be Maintained by Landlord. Landlord shall, at Landlord’s expense, maintain (a) ”all-risk” property insurance covering the Premises (at its full replacement cost), but excluding Tenant’s Property (defined in Section 12.2 below), and (b) commercial general public liability insurance covering Landlord for claims arising out of liability for bodily injury, death, personal injury, advertising injury and property damage occurring in and about the Premises and otherwise resulting from any acts and operations of Landlord, its agents and employees, and (c) rent loss insurance (collectively, “Landlord’s Policies”), all of the above with limits that are required by any lender(s) of Landlord, or as are otherwise reasonably determined by Landlord (collectively, “Landlord’s Insurance”).
- Liability Insurance. Tenant shall purchase, at its own expense, and keep in force during this Lease a policy or policies of (i) commercial general liability insurance, including personal injury and property damage, in the amount of not less than $2,000,000.00 per occurrence and $5,000,000.00 annual general aggregate per location, and comprehensive automobile liability insurance covering Tenant against any losses arising out of liability for personal injuries or deaths of persons and property damage occurring in or about the Premises,
- “all-risk” property insurance covering Tenant’s Property (and damage to other property resulting from any acts or operations of Tenant), and (iii) Workers’ Compensation Insurance as required by applicable state law, with employer’s contingent liability (stop gap) coverage of
$500,000. Said policies shall (a) name Landlord, Agent, and any party holding an interest to which this Lease may be subordinated as additional insureds, (b) be issued by an insurance company with a Best rating of A-X or better and otherwise reasonably acceptable to Landlord and licensed to do business in the state in which the Premises is located, (c) provide that said insurance shall not be canceled or materially modified unless 30 days’ prior written notice shall have been given to Landlord, (d) provide coverage on an occurrence basis; (e) provide coverage for the indemnity obligations of Tenant under this Lease; (f) contain a severability of insured
parties provision and a cross liability endorsement; (g) be primary, not contributing with, and not in excess of, coverage that Landlord may carry; (h) include a hostile fire endorsement; and (i) otherwise be in such form and include such coverages as Landlord may reasonably require. Said policy or policies or, at Landlord’s option, Certificate of Insurance, in a form reasonably acceptable to Landlord, evidencing said policies, shall be delivered to Landlord by Tenant upon commencement of the Lease and renewals thereof shall be delivered at least 30 days prior to the expiration of said insurance.
- Waiver of Subrogation. To the extent permitted by law, and without affecting the coverage provided by insurance required to be maintained hereunder, Landlord and Tenant each waive any right to recover against the other for (a) damages to property, (b) damages to the Premises or any part thereof or (c) claims arising by reason of the foregoing, to the extent such damages and claims are insured against or required to be insured against by Landlord or Tenant under this Lease. This provision is intended to waive, fully and for the benefit of each party, any rights and/or claims that might give rise to a right of subrogation by any insurance carrier. The coverage obtained by each party pursuant to this Lease shall include, without limitation, a waiver of subrogation by the carrier which conforms to the provisions of this section.
11. ALTERATIONS; TENANT’S ALLOWANCE.
- Procedural Requirements. Tenant may, from time to time, at its expense, make alterations or improvements in and to the Premises (hereinafter collectively referred to as “Alterations”), provided that Tenant first obtains the written consent of Landlord in each instance. Landlord’s consent to Alterations shall not be unreasonably withheld, provided that: (a) the Alterations are non-structural and the structural integrity of the Building shall not be affected;
- the Alterations are to the interior of the Building; (c) the proper functioning of the mechanical, electrical, heating, ventilating, air-conditioning (“HVAC”), sanitary and other service systems of the Premises shall not be affected and the usage of such systems by Tenant shall not be increased; (d) Tenant shall have appropriate insurance coverage, reasonably satisfactory to Landlord, regarding the performance and installation of the Alterations; (e) the Alterations shall conform with all other requirements of this Lease; and (f) Tenant shall have provided Landlord with reasonably detailed plans (the “Plans”) for such Alterations in advance of requesting Landlord’s consent. Notwithstanding anything to the contrary contained in this Section 11.1, Landlord’s consent shall not be required for Alterations satisfying clauses (a) through (e) above and costing $10,000.00 or less in any one instance (up to a maximum aggregate of $25,000.00 over the Term). Additionally, before proceeding with any Alterations, Tenant shall (i) at Tenant’s expense, obtain all necessary governmental permits and certificates for the commencement and prosecution of Alterations; (ii) submit to Agent, for Landlord’s written approval, working drawings, plans and specifications and all permits for the work to be done and Tenant shall not proceed with such Alterations until it has received said approval; and
- cause those contractors, materialmen and suppliers engaged to perform the Alterations to deliver to Landlord certificates of insurance (in a form reasonably acceptable to Landlord) evidencing policies of commercial general liability insurance (providing the same coverages as required in Section 10.2 and workers compensation insurance. Such insurance policies shall satisfy the obligations imposed under Section 10.2(a) through (d) and Section 10.2(t) through (i). After obtaining Landlord’s approval to the Alterations, Tenant shall give Landlord at least five
pays’ prior written notice of the commencement of any Alterations at the Premises, and Landlord may elect to record and post notices of non-responsibility at the Premises. Any and all improvements shall become the property of the Landlord without any cost or obligation, upon the termination of this Lease.
- Performance of Alterations. Tenant shall cause the Alterations to be performed in compliance with all applicable permits, laws and requirements of public authorities, and with Landlord’s reasonable rules and regulations or any other restrictions that Landlord or Agent may impose on the Alterations. Tenant shall cause the Alterations to be diligently performed in a good and workmanlike manner, using new materials and equipment at least equal in quality and class to the standards for the Premises established by Landlord or Agent. Tenant shall obtain all necessary permits and certificates for final governmental approval of the Alterations and shall provide Landlord with “as built” plans, copies of all construction contracts, governmental permits and certificates and proof of payment for all labor and materials, including, without limitation, copies of paid invoices and final lien waivers.
- Lien Prohibition. Tenant shall pay when due all claims for labor and material furnished to the Premises in connection with the Alterations. Tenant shall not permit any mechanics or materialmen’s liens to attach to the Premises. Tenant, at its expense, shall procure the satisfaction or discharge of record of all such liens and encumbrances within 30 days after the filing thereof or, if acceptable to Landlord, in its reasonable determination, Tenant may procure (for Landlord’s benefit) a bond or other protection against any such lien or encumbrance. In the event Tenant has not so performed, Landlord may, at its option, pay and discharge such liens and Tenant shall be responsible to reimburse Landlord, on demand and as Additional Rent under this Lease, for all costs and expenses incurred in connection therewith, together with interest thereon at the rate set forth in Section 22.3, which expenses shall include reasonable fees of attorneys of Landlord’s choosing, and any costs in posting bond to effect discharge or release of the lien as an encumbrance against the Premises.
- Notice of Non-Responsibility. Tenant shall not permit or suffer to be filed against the Premises any lien of any kind arising out of the action of Tenant and all persons to whom these presents may come are put on notice of the fact that Tenant shall never, under any circumstances, have the power to subject the interest of the Landlord in the Premises to any mechanics’, materialmen or other liens of any kind. All persons who may hereafter during the continuance of this Lease furnish work, labor, services or material to the Premises upon the request or order of Tenant or any person claiming by, through or under Tenant or provide any other financing to Tenant, must look wholly to the interest of Tenant and not that of the Landlord and no right, title and interest of the Landlord in and to the Premises shall be subject to any lien created by, through or under the Tenant.
12. LANDLORD’S AND TENANT’S PROPERTY.
- Landlord’s Property. Subject to Section 12.2, all fixtures, machinery, equipment, improvements and appurtenances attached to, or built into, the Premises at the commencement of, or during the Term, whether or not placed there by or at the expense of Tenant, shall become and remain a part of the Premises; shall be deemed the property of Landlord (the “Landlord’s Property”), without compensation or credit to Tenant; and shall not be removed by Tenant at the Expiration Date unless Landlord requests their removal in writing. Further, any personal property in the Premises on the Commencement Date, movable or
otherwise, unless installed and paid for by Tenant, shall be and shall remain the property of Landlord at the expiration or earlier termination of this Lease and shall not be removed by Tenant. In no event shall Tenant remove any of the following materials or equipment without Landlord’s prior written consent: any power wiring or power panels, lighting or lighting fixtures, wall or window coverings, carpets or other floor coverings, heaters, air conditioners or any other HVAC equipment, fencing or security gates, or other similar building systems, operating equipment and decorations. Tenant shall be required to pay all ad valorem or other property taxes attributable to fixtures, machinery, equipment, improvements and appurtenances attached to or built into the Premises during the Term.
- Tenant’s Property. All movable non-structural partitions, business and trade fixtures, machinery and equipment, communications equipment and office equipment that are installed in the Premises by, or for the account of, Tenant and without expense to Landlord, and that can be removed without structural damage to the Building, and all furniture, furnishings and other articles of movable personal property owned by Tenant and located in the Premises (collectively, the “Tenant’s Property”) shall be and shall remain the property of Tenant and may be removed by Tenant at any time during the Term, provided Tenant repairs or pays the cost of repairing any damage to the Premises resulting from the installation and/or removal thereof. At or before the Expiration Date, or the date of any earlier termination, Tenant, at its expense, shall remove from the Premises all of Tenant’s Property and any Alterations (except such items thereof as constitute Landlord’s Property; or as Landlord shall have expressly permitted or required, in writing, to remain, which property shall become the property of Landlord), and Tenant shall repair any damage to the Premises resulting from any installation and/or removal of Tenant’s Property. Any other items of Tenant’s Property that shall remain in the Premises after the Expiration Date, or following an earlier termination date, may, at the option of Landlord, be deemed to have been abandoned, and in such case, such items may be retained by Landlord as its property or be disposed of by Landlord, in Landlord’s sole and absolute discretion and without accountability, at Tenant’s expense. Notwithstanding the foregoing, if Tenant is in default under the terms of this Lease, it may remove Tenant’s Property from the Premises only upon the express written direction of Landlord.
13. REPAIRS AND MAINTENANCE.
- Tenant Repairs and Maintenance. Except as expressly provided in Section 13.2 below, Tenant shall, at its expense, throughout the Term, maintain and preserve, in good condition (subject to normal and customary wear and tear), the Premises, and the fixtures and appurtenances therein. Tenant shall be responsible, at its cost, for regular maintenance of the roof and structure as is typical and commercially reasonable for similar industrial buildings in Broward County, Florida. Tenant shall also be responsible for all non-structural repairs and replacements, interior and exterior, ordinary and extraordinary, in and to the Premises and the facilities and systems thereof (including, but not limited to, sidewalks, driveways, parking lot, curbs, loading areas, landscaped areas and parking lot, and the electrical, mechanical, HVAC, and plumbing systems). Tenant shall enter into a preventative maintenance and service contract with a reputable service provider for maintenance of the HVAC systems of the Premises. Any repairs or replacements required to be made by Tenant to any or all of mechanical, electrical, sanitary, HVAC, or other systems of the Premises shall be performed, at Tenant’s expense, by appropriately licensed contractors approved by Landlord prior to such repair being made, which
approval shall not be unreasonably withheld. All such repairs or replacements shall be subject to the supervision and control of Landlord, and all repairs and replacements shall be made with materials of equal or better quality than the items being repaired or replaced. Tenant understands that Tenant’s failure to maintain or make repairs to the leased property may be considered a material breach of this agreement. In the event Tenant fails to make repairs pursuant to this Section, Landlord may bring an action for eviction and damages against Tenant.
- Landlord Repairs. Notwithstanding anything contrary herein, Landlord shall have no obligation to repair, maintain or replace all or any portion of the Premises, except that Landlord shall be responsible for repair of the roof and for structural repairs. “Structural repairs” means repairs necessary to keep the building from collapsing or sagging, or to prevent the Premises from being condemned because of structural insufficiency. The Landlord shall have no liability for failure to perform the obligation for structural repairs unless the Tenant shall have first given the Landlord written notice of the need for such repairs. Notwithstanding the foregoing, Landlord shall not be responsible for any repair or replacement of the roof or Building structure (and Tenant shall be fully responsible for same) to the extent that such repairs or replacement arises from the negligence or intentional misconduct, or failure to perform required maintenance work, of Tenant, its employees, principals, contractors, representatives or agents.
Notwithstanding anything in this Section 13 to the contrary, Landlord shall be responsible for repairs to the exterior sidewalk, driveways and parking lot; however (i) Landlord’s obligation shall be only to the extent that such damage is covered by Landlord’s insurance and (ii) to the extent that such damage is caused by the negligence or intentional misconduct of Tenant, then Landlord shall have no obligation to cause such repairs to be made (such repairs being the sole responsibility of Tenant) and if, Landlord, in its sole discretion, agrees to utilize its insurance in such instance then Tenant shall be responsible for prompt payment of all deductibles.
- UTILITIES. Tenant shall purchase all utility services from the utility or municipality providing such service; shall provide for pest control, cleaning and extermination services; and shall pay for such services when payments are due. Tenant shall be solely responsible for the repair and maintenance of any meters necessary in connection with such services. Tenant’s use of electrical energy in the Premises shall not, at any time, exceed the capacity of either or both of (i) any of the electrical conductors and equipment in or otherwise servicing the Premises; and (ii) the HVAC systems of the Building.
- INVOLUNTARY CESSATION OF SERVICES. Landlord reserves the right, without any liability to Tenant and without affecting Tenant’s covenants and obligations hereunder, to stop service of the HVAC, electric, sanitary, elevator (if any), or other systems serving the Premises, or to stop any other services required by Landlord under this Lease, whenever and for so long as may be necessary by reason of (i) accidents, emergencies, strikes, or the making of repairs or changes which Landlord or Agent in good faith deems necessary or (ii) any other cause beyond Landlord’s reasonable control. Further, it is also understood and agreed that Landlord or Agent shall have no liability or responsibility for a cessation of services to the Premises that occurs as a result of causes beyond Landlord’s or Agent’s reasonable control. No such interruption of service shall be deemed an eviction or disturbance of Tenant’s use and possession of the Premises or any part thereof, or render Landlord or Agent liable to Tenant for damages, or relieve Tenant from performance of Tenant’s obligations under this Lease, including, but not limited to, the obligation to pay Rent; provided, however, that if any interruption of services is caused by Landlord’s gross negligence or willful misconduct and
persists for a period in excess of five consecutive business days Tenant shall, as Tenant’s sole remedy, be entitled to a proportionate abatement of Rent to the extent, if any, of any actual loss of use of the Premises by Tenant.
- LANDLORD’S RIGHTS. Landlord, Agent and their respective agents, employees and representatives shall have the right to enter and/or pass through the Premises at any time or times upon reasonable prior notice (except in the event of emergency): (a) to examine and inspect the Premises and to show them to actual and prospective lenders, prospective purchasers or mortgagees of the Premises or providers of capital to Landlord and its affiliates; (b) to make such repairs, alterations, additions and improvements in or to the Premises or its facilities and equipment as Landlord is required or desires to make; and (c) to install, use and maintain, repair, replace or add pipes, duct work, conduits, utility lines and wires within walls, through hung ceiling space, column space and partitions, in or beneath the floor slab or above or below the Premises or to perform such other work as required or desired by Landlord. Landlord and Agent shall be allowed to take all materials into and upon the Premises that may be required in connection with any repairs, alterations, additions or improvements, without any liability to Tenant and without any reduction or modification of Tenant’s covenants and obligations hereunder; provided, however, that Landlord shall use reasonable efforts to avoid interference with Tenant’s business operations and Tenant’s occupancy and use of the Premises. Tenant acknowledges that it has no rights to any development rights, “air rights”, easements for light or view, or comparable rights appurtenant to the Premises and consents without further consideration to any utilization of such rights by Landlord, and Tenant agrees to promptly execute and deliver any instruments which may be requested by Landlord including documents evidencing such acknowledgments and consents. During the period of six months prior to the Expiration Date (or at any time, if Tenant has vacated or abandoned the Premises or is otherwise in default under this Lease), Landlord and its agents may exhibit the Premises to prospective tenants and erect a “For Lease” sign thereon.
17. NON-LIABILITY; INDEMNIFICATION; LIMIT OF LIABILITY.
- Non-Liability. Except as provided in Section 17.2.2, none of Landlord, Agent, any other managing agent, or their respective affiliates, owners, partners, directors, officers, agents and employees shall be liable to Tenant for any loss, injury, or damage, to Tenant or to any other person, or to its or their property, irrespective of the cause of such injury, damage or loss. None of Landlord, Agent, any other managing agent, or their respective partners, directors, officers, agents and employees shall be liable (a) for any damage caused by other persons in, upon or about the Premises, or caused by operations in construction of any public or quasi-public work; (b) with respect to matters for which Landlord is liable, for consequential or indirect damages purportedly arising out of any loss of use of the Premises or any equipment or facilities therein by Tenant or any person claiming through or under Tenant or any other reason;
- any latent defect in the Premises; (d) injury or damage to person or property caused by fire, or theft, or resulting from the operation of heating or air conditioning or lighting apparatus, or from falling plaster, or from steam, gas, electricity, water, rain, snow, ice, or dampness, that may leak or flow from any part of the Premises, or from the pipes, appliances or plumbing work of the same. Notwithstanding anything contained herein to the contrary, in no event shall Landlord ever be liable for punitive or consequential damages
- Tenant Indemnification. Tenant hereby indemnifies, defends, and holds Landlord, Agent and their respective affiliates, owners, partners, directors, officers, agents and employees (collectively, “Landlord Indemnified Parties”) harmless from and against any and all Losses (defined below) arising from or in connection with (a) the conduct or management of the Premises or any business therein, or any work or Alterations done, or any condition created by any or all of Tenant and Tenant’s Parties in or about the Premises during the Term or during the period of time, if any, prior to the Commencement Date that Tenant is given access to the Premises; (b) any act, omission or negligence of any or all of Tenant and Tenant’s Parties; (c) any accident, injury or damage whatsoever (unless caused by Landlord’s negligence, subject however to any applicable doctrine of comparative or contributory negligence) occurring in, at or upon the Premises caused by any or all of Tenant and Tenant’s Parties; (d) any breach by Tenant of any of its warranties and representations under this Lease; (e) any actions necessary to protect Landlord’s interest under this Lease in a bankruptcy proceeding or other proceeding under the Bankruptcy Code; (t) any violation or alleged violation by any or all of Tenant and Tenant’s Parties of any Law including, without limitation, any Environmental Law; (g) any breach of the provisions of Section 9 by any or all of Tenant and Tenant’s Parties; (h) claims for work or labor performed or materials supplies furnished to, or at the request of, any or all of Tenant and Tenant’s Parties; (i) claims arising from any breach or default on the part of Tenant in the performance of any covenant contained in this Lease; (j) any Hazardous Materials used, exposed, emitted, released, discharged, generated, manufactured, sold, transported, handled, stored, treated, reused, presented, disposed of or recycled in, at, near or under all or any portion of the Premises as a result of the acts or omissions of any or all of Tenant and Tenant’s Parties; and (k) the violation of any Environmental Law or any permit, application or consent required in connection with any Environmental Law by any or all of Tenant and Tenant’s Parties with respect to the Premises during the Term, excluding, however, any violation of Environmental Law directly and solely resulting from the acts or omissions of any or all of Landlord and Landlord’s employees, agents and contractors (collectively, “Tenant’s Indemnified Matters”). In case any action or proceeding is brought against any or all of Landlord and the Landlord Indemnified Parties by reason of any of Tenant’s Indemnified Matters, Tenant, upon notice from any or all of Landlord, Agent or any Superior Party (defined below), shall resist and defend such action or proceeding by counsel reasonably satisfactory to, or selected by, Landlord. The term “Losses” shall mean all claims, demands, expenses, actions, judgments, damages (whether direct or indirect, known or unknown, foreseen or unforeseen), penalties, fines, liabilities, losses of every kind and nature (including, without limitation, property damage, diminution in value of Landlord’s interest in the Premises, damages for the loss or restriction on use of any space or amenity within the Premises, damages arising from any adverse impact on marketing space in the Premises, sums paid in settlement of claims and any costs and expenses associated with injury, illness or death to or of any person), suits, administrative proceedings, costs and fees, including, without limitation, attorneys’ and consultants’ fees and expenses, and the costs of cleanup, remediation, removal and restoration, that are in any way related to any matter covered by the foregoing indemnity. The provisions of this Section 17.2.1 shall survive the expiration or termination of this Lease.
- Landlord Indemnification. Landlord hereby indemnifies, defends and holds Tenant harmless from and against any and all claims, losses, costs, damages (actual,
but not consequential or speculative), judgments, causes of action, administrative proceedings and third party expenses (including, but not limited to, court costs and attorneys’ reasonable fees) actually suffered or incurred by Tenant as the sole and direct result of any willful or intentional acts or omissions of any or all of Landlord and any parties within the direct and sole control of Landlord. In the event that any action or proceeding is brought against Tenant, and the foregoing indemnity is applicable to such action or proceeding, then Landlord, upon notice from Tenant, shall resist and defend such action or proceeding by counsel reasonably satisfactory to Tenant. Notwithstanding anything to the contrary set forth in this Lease, however, in all events and under all circumstances, the liability of Landlord to Tenant shall be limited to the interest of Landlord in the Premises, and Tenant agrees to look solely to Landlord’s interest in the Premises for the recovery of any judgment or award against Landlord, it being intended that Landlord shall not be personally liable for any judgment or deficiency. The provisions of this Section 17.2.2 shall survive the expiration or termination of this Lease.
- Force Maieure. The obligations of Tenant hereunder shall not be affected, impaired or excused, and Landlord shall have no liability whatsoever to Tenant, with respect to any act, event or circumstance arising out of (a) Landlord’s failure to fulfill, or delay in fulfilling any of its obligations under this Lease by reason of labor dispute, governmental preemption of property in connection with a public emergency or shortages of fuel, supplies, or labor, or any other cause, whether similar or dissimilar, beyond Landlord’s reasonable control; or (b) any failure or defect in the supply, quantity or character of utilities furnished to the Premises, or by reason of any requirement, act or omission of any public utility or others serving the Premises, beyond Landlord’s reasonable control.
- Limit of Liability. Tenant shall look solely to Landlord’s interest in the Premises for the satisfaction of any of Tenant’s rights or remedies or for the collection of a judgment or other judicial process requiring the payment of money by Landlord in the event of any default by Landlord hereunder. No other property or assets of Landlord or its partners, officers, directors, shareholders or principals, disclosed or undisclosed shall be subject to the levy, execution, judgment or other enforcement procedure for the satisfaction of any of Tenant’s rights or remedies under or with respect to this Lease, the relationship of Landlord and Tenant hereunder or Tenant’s use or occupancy of the Premises.
18. DAMAGE OR DESTRUCTION.
- Notification and Repair. Tenant shall give prompt notice to Landlord and Agent of (a) any fire or other casualty to the Premises, and (b) any damage to or defect in any part or appurtenance of the Property’s sanitary, electrical, HVAC, elevator or other systems located in or passing through the Premises or any part thereof. Subject to the provisions of Section 18.3 below, if the Premises are damaged by fire or other insured casualty, Landlord shall repair (or cause Agent to repair) the damage and restore and rebuild the Premises (except for Tenant’s Property) with reasonable dispatch after (x) notice to it of the damage or destruction and (y) the adjustment of the insurance proceeds attributable to such damage. Subject to the provisions of Section 18.3 below, Tenant shall not be entitled to terminate this Lease and no damages, compensation or claim shall be payable by Landlord for purported inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Premises pursuant to this Section. Landlord (or Agent, as the case may be) shall use its diligent, good faith
efforts to make such repair or restoration promptly and in such manner as not to unreasonably interfere with Tenant’s use and occupancy of the Premises, but Landlord or Agent shall not be required to do such repair or restoration work except during normal business hours of business days.
- Rental Abatement. If (a) the Premises are damaged by fire or other casualty thereby causing the Premises to be inaccessible or uninhabitable or (b) the Premises are partially damaged by fire or other casualty thereby causing the Premises to be inaccessible or uninhabitable, the Rent shall be proportionally abated to the extent of any actual loss of use of the Premises by Tenant.
- Total Destruction. If the Premises shall be totally destroyed by fire or other casualty, or if the Premises shall be so damaged by fire or other casualty that (in the reasonable opinion of a reputable contractor or architect designated by Landlord): (i) its repair or restoration requires more than 180 days or (ii) such repair or restoration requires the expenditure of more than 50% of the full insurable value of the Premises immediately prior to the casualty or
(iii) the casualty is not fully covered by insurance and such proceeds to fully restore the Property paid to Landlord, or (iv) damage (x) is less than the amount stated in (ii) above, but more than 10% of the full insurable value of the Premises; and (y) occurs during the last two years of Lease Term, Landlord shall have the option to terminate this Lease (by advising Tenant, in writing). In such event, the termination shall be effective as of the date upon which Tenant receives timely written notice from Landlord terminating this Lease pursuant to the preceding sentence. If Landlord fails to timely deliver a termination notice, this Lease shall remain in full force and effect. If (A) any holder of a mortgage or deed of trust encumbering the Premises or landlord pursuant to a ground lease encumbering the Premises (collectively, “Superior Parties”) or other party entitled to the insurance proceeds fails to make such proceeds available to Landlord in an amount sufficient for restoration of the Premises, or (B) the issuer of any casualty insurance policies on the Premises fails to make available to Landlord (for any reason other than Landlord’s failure to timely pay requisite premiums) sufficient proceeds for restoration of the Premises, then Landlord may, at Landlord’s sole option, terminate this Lease by giving Tenant written notice to such effect within 30 days after Landlord receives notice from the Superior Party or insurance company, as the case may be, that such proceeds shall not be made available, in which event the termination of this Lease shall be effective as of the date Tenant receives written notice from Landlord of Landlord’s election to terminate this Lease. For purposes of this Section 18.3 only, “full insurable value” shall mean replacement cast, less the cost of footings, foundations and other structures below grade. If Landlord does not terminate this Lease in accordance with this Section 18.3 and if the Premises are not repaired or restored within 180 days after such fire or casualty, then Tenant shall have the option to terminate this Lease by advising Landlord, in writing, within 10 days after said 180 day period, in which event the termination of this Lease shall be effective as of the date Landlord receives written notice from Tenant of Tenant’s election to terminate this Lease.
- EMINENT DOMAIN. If the whole, or any substantial portion, of the Premises is taken or condemned for any public use under any Law or by right of eminent domain, or by private purchase in lieu thereof, and such taking would prevent or materially interfere with the Permitted Use of the Premises, this Lease shall terminate effective when tile physical taking of said Premises occurs. If less than a substantial portion of the Premises is so taken or condemned,
or if the taking or condemnation is temporary (regardless of the portion of the Premises affected), this Lease shall not terminate, but the Rent payable hereunder shall be proportionally abated to the extent of any actual loss of use of the Premises by Tenant. Landlord shall be entitled to any and all payment, income, rent or award, or any interest therein whatsoever, which may be paid or made in connection with such a taking or conveyance, and Tenant shall have no claim against Landlord for the value of any unexpired portion of this Lease. Notwithstanding the foregoing, any separate compensation specifically awarded to Tenant for loss of Tenant’s business or goodwill, or for Tenant’s personal property (which does not reduce Landlord’s award), shall be the property of Tenant.
- SURRENDER AND HOLDOVER. On the last day of the Term, or upon any earlier termination of this Lease, or upon any re-entry by Landlord upon the Premises, (a) Tenant shall quit and surrender the Premises to Landlord “broom-clean” and in good order, condition and repair, except for ordinary wear and tear and such damage or destruction as Landlord is required to repair or restore under this Lease, and (b) Tenant shall remove all of Tenant’s Property therefrom, except as otherwise expressly provided in this Lease. The obligations imposed under the preceding sentence shall survive the termination or expiration of this Lease. If Tenant remains in possession after the Expiration Date hereof or after any earlier termination date of this Lease or of Tenant’s right to possession: (i) Tenant shall be deemed a tenant-at-will;
(ii) Tenant shall pay 200% of the aggregate of the Base Rent and Additional Rent last prevailing hereunder, and also shall pay all actual damages sustained by Landlord, directly by reason of Tenant’s remaining in possession after the expiration or termination of this Lease; (iii) there shall be no renewal or extension of this Lease by operation of law; (iv) the tenancy-at-will may be terminated at any time by written notice from Landlord; (v) sue Tenant for damages resulting from depriving Landlord his or her reasonable rental value of the premises.The provisions of this Section 20 shall not constitute a waiver by Landlord of any re-entry rights of Landlord provided hereunder or by law.
21. EVENTS OF DEFAULT.
- Bankruptcy of Tenant or Guarantor. It shall be a default by Tenant under this Lease if either or both of Guarantor (defined in Section 1.7) and Tenant makes an assignment for the benefit of creditors, or files a voluntary petition under any state or federal bankruptcy or insolvency law, or an involuntary petition alleging an act of bankruptcy or insolvency is filed against Tenant or Guarantor, as the case may be under any state or federal bankruptcy or insolvency law that is not dismissed within 90 days, or whenever a petition is filed by or against (to the extent not dismissed within 90 days) Tenant or Guarantor, as the case may be under the reorganization provisions of the United States Bankruptcy Code or under the provisions of any law or like import, or whenever a petition shall be filed by Tenant or Guarantor, as the case may be under the arrangement provisions of the United States Bankruptcy Code or similar law, or whenever a receiver of Tenant or Guarantor, as the case may be, or of, or for, the property of Tenant or Guarantor, as the case may be shall be appointed, or Tenant or Guarantor, as the case may be admits it is insolvent or is not able to pay its debts as they mature.
- Default Provisions. Each of the following shall constitute a default by Tenant under this Lease: (a) if Tenant fails to pay Rent or any other payment when due hereunder within five days after written notice from Landlord of such failure to pay on the due date; provided, however, that if in any consecutive 12 month period, Tenant shall, on two (2)
separate occasions, fail to pay any installment of Rent on the date such installment of Rent is due, then, on the third such occasion and on each occasion thereafter on which Tenant shall fail to pay an installment of Rent on the date such installment of Rent is due, Landlord shall be relieved from any obligation to provide notice to Tenant, and Tenant shall then no longer have a five day period in which to cure any such failure; or (b) if Tenant fails, whether by action or inaction, to timely comply with, or satisfy, any or all of the obligations imposed on Tenant under this Lease (other than the obligation to pay Rent) for a period of 30 days after Landlord’s delivery to Tenant of written notice of such default under this Section 21.2(b); provided, however, that if the default cannot, by its nature, be cured within such 30 day period, but Tenant commences and diligently pursues a cure of such default promptly within the initial 30 day cure period, then Landlord shall not exercise its remedies under Section 22 unless such default remains uncured for more than 60 days after Landlord’s notice; or (c) Tenant vacates or abandons the Premises during the Term or (d) the guarantor under that certain Guaranty, dated of even date herewith and attached to, and hereby made a part of, this Lease (the “Guaranty”), breaches, defaults under, or fails to comply with any or all of the requirements of the Guaranty.”
22. RIGHTS AND REMEDIES.
- Landlord’s Cure Rights Upon Default of Tenant. If Tenant defaults In the performance of any of its obligations under this Lease, Landlord, without thereby waiving such default, may (but shall not be obligated to) perform the same for the account, and at the expense of, Tenant upon compliance with any notice requirements and cure periods set forth in Section 21.2 and all such expenses shall be paid by Tenant to Landlord upon demand as Additional Rent.
- Landlord’s Remedies. In the event of any default by Tenant under this Lease, Landlord, at its option, and after any applicable notice and cure period (required pursuant to Section 21), but without additional notice or demand from Landlord, if any, as provided in Section 21 has expired, may, in addition to all other rights and remedies provided in this Lease, or otherwise at law or in equity: (a) terminate this Lease and Tenant’s right of possession of the Premises; (b) file eviction procedures against Tenant (but only after tenant defaults on paying rent even after being provided three days’ written notice) or (c) terminate Tenant’s right of possession of the Premises without terminating this Lease; provided, however, that Landlord may, whether Landlord elects to proceed under Subsections (a) (b) or (c) above, relet the Premises, or any part thereof for the account of Tenant, for such rent and term and upon such terms and conditions as are acceptable to Landlord. Landlord shall not be required to mitigate damages. For purposes of any reletting, Landlord is authorized to decorate, repair, alter and improve the Premises to the extent deemed necessary by Landlord, in its sole, but reasonable, discretion. In addition to, or in lieu of, the foregoing, Landlord may also elect to enforce any or all of the terms and provisions of the Guaranty. In the event of the termination of this Lease by Landlord pursuant to (a) above, Landlord shall be entitled to recover from Tenant (i) all damages and other sums that Landlord is entitled to recover under any provision of this Lease or at law or in equity, including, but not limited to, all fixed dollar amounts of Base Rent and Additional Rent accrued and unpaid for the period up to and including the Expiration Date of the Lease; (ii) all other additional sums payable by Tenant, or for which Tenant is liable, or in respect of which Tenant has agreed to indemnify Landlord, under any of the provisions of this Lease, that may be then owing and unpaid; (iii) all costs and expenses (including, without limitation, court costs and attorneys’ reasonable fees) incurred by Landlord in the enforcement of its rights and remedies under this Lease; and (iv) any damages provable by
Landlord as a matter of law including, without limitation, an amount equal to the positive difference, if any, between (x) the discounted present value (at 6% per annum) of the Base Rent required to be paid for the remainder of the Term (measured from the effective termination date of this Lease) and (y) the fair market rental value of the Leased Premises (determined at the date of termination of this Lease) after deduction (from such fair market rental value) of the projected costs and expenses of reletting the Premises (including the anticipated costs of repairs, alterations, improvements, additions, legal fees and brokerage commissions) as reasonably estimated by Landlord. If Landlord elects to pursue its rights and remedies under Subsection (c) above, and the Premises are relet and a sufficient sum is not realized therefrom, then to satisfy the payment, when due, of Base Rent and Additional Rent reserved under the Lease for any monthly period (after payment of all Landlord’s reasonable expenses of reletting), Tenant shall, in Landlord’s sole judgment, either (i) pay any such deficiency monthly or (ii) pay such deficiency on an accelerated basis, which accelerated deficiency shall be discounted at a rate of 6% per annum. If Landlord elects to pursue its rights and remedies under Subsection (c) above, and Landlord fails to relet the Premises, then Tenant shall pay to Landlord the sum of (x) the projected costs of Landlord’s expenses of reletting (including the anticipated costs of repairs, alterations, improvements, additions, legal fees and brokerage commissions) as reasonably estimated by Landlord and (y) the accelerated amount of Base Rent and Additional Rent due under the Lease for the balance of the Tern, discounted at a rate of 6% per annum. If Landlord opts to puruse iits rights and remedies under Subsection (b) above, Tenant agrees that Landlord may file suit to recover any sums due to Landlord hereunder from time to time and that such suit or recovery of any amount due Landlord hereunder shall not be any defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. If Landlord elects to pursue its rights and remedies under Subsection (c), then Landlord shall at any time have the further right and remedy to rescind such election and pursue its rights and remedies under Subsection (a). In the event Landlord elects, pursuant to clause (c) of this Section 22.2, to terminate Tenant’s right of possession only, without terminating this Lease, Landlord may, at Landlord’s option, proceed with eviction proceedings under Subsection (b) above, Accordingly, in the eviction, Landlord may enter into the Premises, remove Tenant’s Property, Tenant’s signs and other evidences of tenancy, and take and hold possession thereof, as provided in Section 20 hereof provided, however, that such entry and possession shall not terminate this Lease or release Tenant, in whole or in part, from Tenant’s obligation to pay the Base Rent and Additional Rent reserved hereunder for the full Term, or from any other obligation of Tenant under this Lease. Any and all property that may be removed from the Premises by Landlord pursuant to the authority of the Lease or of law, to which Tenant is or may be entitled, may be handled, removed or stored by Landlord at the risk, cost and expense of Tenant, and in no event or circumstance shall Landlord be responsible for the value, preservation or safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be in Landlord’s possession or under Landlord’s control. Any such property of Tenant not retaken from storage by Tenant within 30 days after the end of the Term, however terminated, shall be conclusively presumed to have been conveyed by Tenant to Landlord under this Lease as in a bill of sale, without further payment or credit by Landlord to Tenant.
- Additional Rights of Landlord. Any and all costs, expenses and disbursements, of any kind or nature, incurred by Landlord or Agent in connection with the enforcement of any and all of the terms and provisions of this Lease, including attorneys’ reasonable fees (through all appellate proceedings), shall be due and payable (as Additional Rent) upon Landlord’s submission of an invoice therefor. All sums advanced by Landlord or
Agent on account of Tenant under this Section, or pursuant to any other provision of this Lease, and all Base Rent and Additional Rent, if delinquent or not paid by Tenant and received by Landlord when due hereunder, shall bear interest at the rate of 5% per annum above the “prime” or “reference” or “base” rate (on a per annum basis) of interest publicly announced as such, from time to time, by BankAtlantic FSB, from the due date thereof until paid, and such interest shall be and constitute Additional Rent and be due and payable upon Landlord’s or Agent’s submission of an invoice therefor. The various rights remedies and elections of Landlord reserved, expressed or contained herein are cumulative and no one of them shall be deemed to be exclusive of the others or of such other rights, remedies, options or elections as are now or may hereafter be conferred upon Landlord by law.
- Event of Bankruptcy. In addition to, and in no way limiting the other remedies set forth herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a voluntary or involuntary bankruptcy, reorganization, composition or other similar type proceeding under the federal bankruptcy laws, as now enacted or hereinafter amended, then: (a) “adequate assurance of future performance” by Tenant and/or any assignee of Tenant pursuant to Bankruptcy Code Section 365 will include (but not be limited to) payment of an additional/new security deposit in the amount of three times the then current Base Rent payable hereunder; (b) any person or entity to which this Lease is assigned, pursuant to the provisions of the Bankruptcy Code, shall be deemed, without further act or deed, to have assumed all of the obligations of Tenant arising under this Lease on and after the effective date of such assignment. Any such assignee shall, upon demand by Landlord, execute and deliver to Landlord an instrument confirming such assumption of liability; (c) notwithstanding anything in this Lease to the contrary, all amounts payable by Tenant to or on behalf of Landlord under this Lease, whether or not expressly denominated as “Rent”, shall constitute “rent” for the purposes of Section 502(b)(6) of the Bankruptcy Code; and (d) if this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other considerations payable or otherwise to be delivered to Landlord or Agent (including Base Rent, Additional Rent and other amounts hereunder), shall be and remain the exclusive property of Landlord and shall not constitute property of Tenant or of the bankruptcy estate of Tenant. Any and all monies or other considerations constituting Landlord’s property under the preceding sentence not paid or delivered to Landlord or Agent shall be held in trust by Tenant or Tenant’s bankruptcy estate for the benefit of Landlord and shall be promptly paid to or turned over to Landlord.
- Lien for Rent. The entire amount of Rent reserved and agreed to be paid hereunder and each and every installment thereof, including, but not limited to, the amount of all taxes, assessments, water charges and insurance herein provided for if paid by Landlord under the provisions of this Lease, all costs, including reasonable attorneys’ and paralegals’ fees through and including all trial and appellate levels, and the amount of all expenses which may be incurred by Landlord in enforcing the provisions of this Lease or on account of any delinquency of Tenant in carrying out any of the provisions of this Lease, together with interest and sales tax thereon as heretofore set forth, shall be and are hereby declared to be a valid lien upon Tenant’s leasehold interest in the Premises and all of Tenant’s Property, Tenant’s equipment located upon the Premises and all of Tenant’s other property as provided pursuant to Chapter 83, Florida Statutes.
- BROKER. Tenant covenants, warrants and represents that the broker set forth in Section 1.8(A) was the only broker to represent Tenant in the negotiation of this Lease (“Tenant’s Broker”). Landlord covenants, warrants and represents that the broker set forth in Section 1.8(B) was the only broker to represent Landlord in the negotiation of this Lease (“Landlord’s Broker”). Landlord shall be solely responsible for paying the commission of Landlord’s Broker and Tenant’s Broker pursuant to separate agreement between Landlord and such brokers. Each party agrees to and hereby does defend, indemnify and hold the other harmless against and from any brokerage commissions or finder’s fees or claims therefor by a party claiming to have dealt with the indemnifying party and all costs, expenses and liabilities in connection therewith, including, without limitation, reasonable attorneys’ fees and expenses, for any breach of the foregoing. The foregoing indemnification shall survive the termination of this Lease for any reason.
- Merger. All prior understandings and agreements between the parties are merged in this Lease, which alone fully and completely expresses the agreement of the parties. No agreement shall be effective to modify this Lease, in whole or in part, unless such agreement is in writing, and is signed by the party against whom enforcement of said change or modification is sought.
- Notices. Any notice given required to be given by either party pursuant to this Lease shall be sent by registered mail, personal delivery, facsimile or by nationally recognized overnight delivery service addressed to the other party at the addresses set forth below (or to such other address as Landlord or Tenant may designate to each other from time to time by written notice), and notices shall be deemed to have been given and delivered upon receipt or refusal of receipt:
If to Landlord: c/o CFR Realty Partners, LLC
1179 E 13 St.
Brooklyn, NY 11230,
ATTN: Irving Klein, Manager
With a copy to: Greenspoon Marder LLP
200 E. Broward Blvd., Suite 1800 Fort Lauderdale, FL 33301 ATTN: Mark J. Lynn, Esq.
If to Tenant:
With a copy to:
- Non-Waiver. The failure of either party to insist, in any one or more instances, upon the strict performance of any one or more of the obligations of this Lease, or to
exercise any election herein contained, shall not be construed as a waiver or relinquishment for the future of the performance of such one or more obligations of this Lease or of the right to exercise such election, but the Lease shall continue and remain in full force and effect with respect to any subsequent breach, act or omission. The receipt and acceptance by Landlord or Agent of Base Rent or Additional Rent with knowledge of breach by Tenant of any obligation of this Lease shall not be deemed a waiver of such breach.
- Legal Costs. Any party in breach or default under this Lease (the “Defaulting Party”) shall reimburse the other party (the “Nondefaulting Party”) upon demand for any legal fees and court (or other administrative proceeding) costs through trial and appellate levels or expenses that the Nondefaulting Party incurs in connection with the breach or default regardless whether suit is commenced or judgment entered. Such costs shall include legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise. Furthermore, in the event of litigation, the court in such action shall award to the party in whose favor a judgment is entered a reasonable sum as attorneys’ fees and costs, which sum shall be paid by the losing party. Tenant shall pay Landlord’s attorneys’ reasonable fees incurred in connection with Tenant’s request for Landlord’s consent under provisions of this Lease governing assignment and subletting, or in connection with any other act which Tenant proposes to do and which requires Landlord’s consent.
- Parties Bound. Except as otherwise expressly provided for in this Lease, this Lease shall be binding upon, and inure to the benefit of, the successors and assignees of the parties hereto. Tenant hereby releases Landlord named herein from any obligations of Landlord for any period subsequent to the conveyance and transfer of Landlord’s ownership interest in the Premises. In the event of such conveyance and transfer, Landlord’s obligations shall thereafter be binding upon each transferee (whether Successor Landlord or otherwise). No obligation of Landlord shall arise under this Lease until the instrument is signed by, and delivered to, both Landlord and Tenant.
- Recordation of Lease. Tenant shall not record or file this Lease (or any memorandum hereof) in the public records of any county or state. Tenant does hereby indemnify and hold Landlord harmless for all losses, costs or expenses (together with sales tax thereon), including, but not limited to attorneys’ and paralegals’ fees and court costs through all trial and appellate levels which may be incurred by Landlord as a result of Tenant’s breach of the terms and provisions of this Section. In addition to any and all other rights or remedies available at law or in equity, Landlord shall specifically have the right of injunctive relief to cause any memorandum in violation of this provision to be vacated of record.
- Survival of Obligations. Upon the expiration or other termination of this Lease, neither party shall have any further obligation nor liability to the other except (i) Tenant shall remain liable for its obligations occurring prior to such termination, and (ii) as otherwise expressly provided in this Lease and except for such obligations as, by their nature or under the circumstances, can only be, or by the provisions of this Lease, may be performed after such expiration or other termination.
- Governing Law: Construction. This Lease shall be governed by and construed in accordance with the laws of the state in which the Premises are located. If any
provision of this Lease shall be invalid or unenforceable, the remainder of this Lease shall not be affected but shall be enforced to the extent permitted by law. The captions, headings and titles in this Lease are solely for convenience of reference and shall not affect its interpretation. This Lease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Lease to be drafted. Each covenant, agreement, obligation, or other provision of this Lease to be performed by Tenant, shall be construed as a separate and independent covenant of Tenant, not dependent on any other provision of this Lease. All terms and words used in this Lease, regardless of the. number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. This Lease may be executed in counterpart and, when all counterpart documents are executed, the counterparts shall constitute a single binding instrument.
- Entire Agreement. It is agreed that there is no representation, warranty, collateral agreement, or condition affecting this Agreement except as expressly provided in this Agreement.
- Time. Time is of the essence of this Lease. If the time for performance hereunder falls on a Saturday, Sunday or a day that is recognized as a holiday in the state in which the Premises are located, then such time shall be deemed extended to the next day that is not a Saturday, Sunday or holiday in said state.
- Authority of Tenant. If Tenant is a corporation, partnership, limited liability company, association or any other entity, it shall deliver to Landlord, concurrently with the delivery to Landlord of an executed Lease, certified resolutions of Tenant’s directors or other governing person or body (i) authorizing execution and delivery of this Lease and the performance by Tenant of its obligations hereunder and (ii) certifying the authority of the party executing the Lease as having been duly authorized to do so.
- WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS LEASE, THE PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE PREMISES.
- Submission of Lease. Submission of this Lease to Tenant for signature does not constitute a reservation of space or an option to lease. Lease is not effective until execution by and delivery to both Landlord and Tenant.
- Joint and several Liability. All parties signing this Lease as Tenant shall be jointly and severally liable for all obligations of Tenant hereunder
- Riders. All Riders and Exhibits attached hereto (including, but not limited to, the Guaranty), and executed (or initialed) both by Landlord and Tenant shall be deemed to be a part hereof and hereby incorporated herein.
- Counterparts. This Lease and any subsequent amendments hereto may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original, and all of which shall be deemed to be one and the same instrument. Facsimile transmission signatures shall be deemed original signatures.
- Severability. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day and year first above written.
WITNESSES: 900 TERRACE FL, LLC, a Delaware limited liability company
Print Name: Its:
CHEAZ INDUSTRIES ., a Florida Limited Liability Company
LEASE EXHIBIT A
The “Premises” shall consist of an approximately 14,026 square foot with address of 900 SW 21st Terrace, Fort Lauderdale, Florida (the “Building”), and the real property on which the Building is situated, legally described as follows:
LEASE EXHIBIT B LEASE TERM RENEWALS
- Provided no default exists and continues beyond any applicable notice and cure periods, Tenant may renew this Lease for one (1) additional period of five (5) years (the “Option to Extend”), by delivering written notice of the exercise thereof to Landlord not earlier than 365 days months nor later than 180 days before the then expiration of the Term. The Base Rent payable for each month during each such extended five-year period shall be, for the first Lease Year of the extended term and for each Lease Year thereafter, an increase over the Base Rent for the immediately prior Lease Year of the greater of (i) 3.5% or (ii) the Index.
- Should the Term be extended in accordance with the terms and conditions set forth herein, then, on or before the commencement date of the extended Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term on the same terms provided in this Lease, except the Base Rent shall be adjusted to the Prevailing Rental Rate.
- Landlord shall lease to Tenant the Premises in its then-current condition, and Landlord shall not provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements.
- Tenant’s rights under this Exhibit shall terminate if (i) this Lease or Tenant’s right to possession of the Premises is terminated, or (ii) Tenant fails to timely exercise the respective Option to Extend under this Exhibit.
LEASE EXHIBIT C
LIST OF CHEMICALS AND HAZARDOUS MATERIALS PERMITTED ON PREMISES
FOR VALUE RECEIVED, and in consideration for and as an inducement to 900 Terrace FL, LLC, a Delaware limited liability company (“Landlord”) to lease the Premises referred to in the aforesaid Lease to Cheaz Industries LLC, a Florida limited liability company (“Tenant”) therein named, the undersigned does hereby guaranty to Landlord the punctual payment of the Base januar, Additional Rent and other charges (hereinafter collectively called “Rents”) and the due performance of all other terms, covenants and conditions in said Lease on the part of the Tenant to be paid and/or to be performed thereunder, and if any default shall be made by the Tenant under this Lease, the undersigned does hereby covenant and agree to pay to the Landlord in each and every instance such sum or sums of money as the Tenant is and shall become liable for and/or obliged to pay under said Lease and/or fully satisfy and perform such other terms, covenants and conditions of said Lease on the part of the Tenant to be performed thereunder and to pay also any and all damages, expenses and attorneys’ fees through all trial and appellate levels (hereinafter collectively called “Damages”) that may be suffered or incurred by Landlord in consequence of the nonpayment of said Rents or the non-performance of any such other terms, covenants and conditions of said Lease, such payments of Rents to be made monthly or at such other intervals s the same shall or may become payable under said Lease, including any accelerations thereof, such performance of said other terms, covenants and conditions to be made when due under said Lease and such Damages to be paid when incurred by Landlord, all without requiring any notice from Landlord of such nonpayment, non-performance or non-observance or proof of notice or demand, all of which the undersigned hereby expressly waive, and the maintenance of any action or proceeding by the Landlord to recover any sum or sums that may be or become due under said Lease or to secure the performance of any of the other terms, covenants and conditions of said Lease or to recover Damages, shall not preclude the Landlord from thereafter instituting and maintaining subsequent actions or proceedings for any subsequent default or defaults of Tenant under said Lease. The undersigned does hereby consent that without affecting the liability of the undersigned under this Guaranty and without notice to the undersigned, time may be given by Landlord to Tenant for payment of Rents and performance of said other terms, covenants and conditions, or any of them, and such time extended and indulgences granted, from time to time, or the Tenant may be dispossessed or the Landlord may avail itself of or exercise any or all of the rights and/or remedies against the Tenant provided by law or by said Lease, and may proceed either against the Tenant alone or any other guarantor alone or jointly against the Tenant, any other guarantor and the undersigned or against the undersigned alone without proceeding against the Tenant or any other guarantor. That in the event of any bankruptcy, reorganization, winding-up or similar proceedings with respect to Tenant, no limitation of Tenant’s liability under the Lease which may now or hereafter be imposed by any federal, state or other statute, law or regulations applicable to such proceedings, shall in any way limit the obligation of the undersigned hereunder, which obligations is co- extensive with Tenant’s liability set forth in the Lease without regard to any such statutory limitation. The undersigned does hereby further consent to any subsequent change, assignment, sublease, modification and/or amendment of said Lease in any of its terms, convenience or conditions, or in the Rents payable thereunder, and/or to any renewals or extensions thereof, all of which may be made without notice to or consent of the undersigned and without in any manner releasing or relieving the undersigned from liability under this Guaranty. The
undersigned does hereby further agree that in respect of any payments made by the undersigned hereunder, the undersigned shall not have any rights based on suretyship or otherwise to stand in place of the Landlord so as to compete with the Landlord as a creditor of Tenant, unless and until all claims of the Landlord under said Lease shall have been fully paid and satisfied. As a further inducement to Landlord to make said Lease and in consideration thereof, Landlord and the undersigned hereby agree that in any action, proceeding or counterclaim brought by either the Landlord or the undersigned against the other on any matters whatsoever arising out of or in any way connected with said Lease or this Guaranty, that Landlord and the undersigned shall and do hereby waive a trial by jury. The undersigned does hereby agree that the undersigned shall be responsible for any and all costs and expenses incurred by Landlord in enforcing or preserving Landlord’s rights under the terms of the Lease and/or this Guaranty including, but not limited to, attorneys’ fees and court costs through all trial and appellate levels. The undersigned agrees to pay all costs of collection, including reasonable attorneys’ fees through all trial and appellate levels. This Guaranty or any of the provisions thereof cannot be modified, waived or terminated, unless in writing, signed by the Landlord. The provisions of this Guaranty shall apply to and bind and inure to the benefit of the undersigned and the Landlord and their respective heirs, legal representatives, successors and assigns. The obligation of the undersigned (if more than one guarantor) shall be joint and severable.
Guarantor hereby represents and warrants to Landlord that (i) it is fully authorized to enter into this Guaranty; (ii) that it has an interest in the business operating at the Premises pursuant to the terms of this Lease; (iii) the individual or individuals signing on behalf of Guarantor (including the signatories for the managing or member entities of Guarantor) is or are fully authorized to so execute this Guaranty in accordance with Guarantor’s operating agreement and other governing documents; and (iv) Guarantor entering into this Guaranty shall not constitute a default under any other agreement or contract by which Guarantor is bound or violate the requirements of any governmental authorities, or any other statute, code or rule.
NIBIRU INTERNATIONAL LLC, a Florida
limited liability company
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