HomeMy WebLinkAboutOrders_Special Exceptions_11/04/2010 ORDER OF THE VILLAGE COUNCIL
VILLAGE OF TEQUESTA iLED: Village of Tequesta
Date: " J / /J
REQUEST FOR SPECIAL EXCEPTION r—
Time:
CASE NO.: SE -10 -01
IN RE: Tequesta Brewing Company, Matt Webster
PROPERTY LOCATION:
287 US 1, Tequesta, FL 33469
LEGAL DESCRIPTION:
WATERWAY VILLAGE LOT A
PARCEL CONTROL NUMBERS:
60-43-40-30-05-000-0901
SPECIAL EXCEPTION REQUESTED:
Microbrewery use in the C -2 Zoning District in accordance with Sec. 78- 177(d) of the
Village Code of Ordinances.
ORDER APPROVING APPLICATION
This cause came on to be heard upon the above application and the Tequesta Village Council
having considered the evidence presented by the applicant and other interested persons at a hearing
called and properly noticed, and the Tequesta Village Council, being otherwise duly advised,
THEREUPON, THE TEQUESTA VILLAGE COUNCIL FINDS AS FOLLOWS:
1. The subject property is located in the C -2 Zoning District in the Village of Tequesta.
2. The applicant has submitted all documents required by the Village's Code of
Ordinances for special exception review.
3. The application and all supporting documentation and presentation materials as
reviewed by the Village Council at its November 4, 2010 meeting, and as kept on file
by the Village, are made a part hereof and are hereby incorporated by reference.
4. According to Section 78 -177 of the Village Code of Ordinances, a microbrewery is
permitted as a special exception in the C -2 Zoning District upon approval by the
Village Council.
5. The applicants have applied for a special exception to allow a microbrewery use on
the subject property.
Page 1
6. Under the provisions of the Village Code of Ordinances, the Village Council has the
right, power and authority to act upon the request herein made.
IT IS THEREUPON CONSIDERED, ORDERED AND ADJUDGED BY THE VILLAGE
COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA, AS FOLLOWS:
The application for Special Exception, Case No. SE -10 -01 with reference to the above
described property within the Village of Tequesta, Palm Beach County, Florida, to permit the
following:
Mircrobrewery use, in accordance with the special exception
application attached hereto as Exhibit "A"
is hereby APPROVED since the Village Council hereby finds that the applicants have met the
standards set forth in Sections 78 -362 and 78 -363 of the Tequesta Zoning Code for special exception
approval.
The term applicant(s) as used herein shall include all successors and assigns.
* The applicant's special exception approval shall expire in twelve (12) months unless a building
permit has been obtained, preliminary site plan or plat approval has occurred, or other
significant action to satisfy the requirements of this approval have occurred in accordance with
' 78 -367.
DONE AND ORDERED THIS 4th DAY OF NOVEMBER, 2010.
s
MAYOR PAT WATKINS,
VILLAGE OF TEQUESTA
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LORI McWILLIAMS, MMC ,0% Q• .........
VILLAGE CLERK
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DEPARTMENT OF COMMUNITY DEVELOPMENT
r 345 Tequesta Drive, Tequesta, FL 33469
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c Phone: 561- 768 -0450; Fax: 561- 768 -0698
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SPECIAL EXCEPTION APPLICATION
The undersigned requests a Special Exception for the Use Specified below. Should this application be approved, it
is understood that it shall only authorize that particular use described in this application and any conditions or
safeguards required by the Village of Tequesta.
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Name of Applicant: A C, L ��� sTGt-
Mailing Address: 2e5 )
Phone No. (Home) 1 5U k - C3 (Business) �(- (p 2.6 3g j S
Lot /Parcel Address: i Pt \ F', --Vj
Lot: Block: Subdivision:
Property Control Number: C) i
Existing Use: 1 -P.`1ti
Description of Special Exception
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Property Owner: , 0 e l
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NOTE: Applicant shall include the following with the application:
1 Current survey or site plan of property showing structures and setbacks.
2 Drawings to scale of proposed improvements requiring special exception use.
3 Written approval from property owner if other than applicant.
Any other documentation pertinent to this application.
Q5 V Fifteen (15) copies of all submittals.
Applcafion Fee df Five Hundred ($500. - 00) - D6llars:
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Applicant's Signature to
DIVISION 3. SPECIAL EXCEPTION USES
Sec. 78 -362. Criteria.
Special exception uses and their related accessory uses or any expansion, enlargement, or modification
of an existing special exception use shall be permitted only upon authorization of the village council
provided that such uses shall be found by the village council to comply with the following requirements
and other applicable requirements as set forth in this chapter:
(1) The proposed use is a permitted special exception use.
Answer: Yes, the Council passed an ordinance change on 10/14/10.
(2) The use is so designed, located and proposed to be operated so that the public health,
safety, welfare and morals will be protected.
Answer: Yes, proposed use is part of an existing shopping center
(3) The use will not cause substantial injury to the value of other property in the
neighborhood where it is to be located.
Answer: Proposed use will not cause substantial injury to the value of other property
in the neighborhood as it is in an existing approved shopping center
(4) The use will be compatible with adjoining development and the proposed character of
the district where it is to be located.
Answer: This is an existing shopping center and brewery will increase the ability of the
existing microbrewery.
(5) Adequate landscaping and screening is provided as required in this chapter.
Answer: Proposed use is located in an existing shopping center containing landscaping
approved by the Village in 2008.
(6) Adequate off - street parking and loading is provided and ingress and egress is so
designed as to cause minimum interference with traffic on abutting streets.
Answer: Existing shopping center contains adequate parking along with ingress and
egress.
(7) The use conforms with all applicable regulations governing the district where located,
except as may otherwise be determined for planned developments.
Answer: The proposed use conforms with existing regulation within district C -2.
Sec. 78 -363. Findings required for approval.
Before any special exception is granted, the village council shall apply the standards set forth in this
division and shall determine that satisfactory provision and arrangement of the following factors have
been met by the petitioner, where applicable:
(1) Compliance with all elements of the village comprehensive plan.
Answer: Meets requirements of comprehensive plan as it is located in an established
approved shopping center.
(2) Ingress and egress to property and proposed structures thereon with particular
reference to automotive and pedestrian safety and convenience, traffic flow and
control, and access in case of fire or catastrophe.
Answer: Meets all Village requirements as to ingress, egress, automotive, pedestrian
safety and convenience, traffic flow and fire or catastrophic event as it is located
within an existing shopping center.
(3) Off - street parking and loading area, where required, with particular attention to the
items in subsection (2) of this section.
Answer: The proposed use is located within an existing shopping with adequate
parking along with ingress and egress. See attached survey
(4) Refuse and service areas, with particular reference to subsections (2) and (3) of this
section.
Answer: Existing refuse area at rear of shopping center, approved by Village.
(5) Nuisance factors detrimental to adjacent and nearby properties and the village as a
whole. Nuisance factors shall include but not necessarily be limited to noise, odor,
smoke, glare, electrical interference and /or mechanical vibrations.
Answer: No nuisance factors related to this business.
(6) Utilities, with reference to location, availability and compatibility.
Answer: Since proposed use is located in an existing shopping center all the utilities
are presently there.
(7) Screening and buffering, with reference to type, dimensions and character.
Answer: Not required, part of an existing approved shopping center.
(8) Signs and proposed exterior lighting, with reference to glare, traffic safety, economic
effect and compatibility and harmony with properties in the district.
Answer: Sign has already been permitted by the Village
(9) Required yards and other open space.
Answer: Not applicable, existing shopping center.
(10) General compatibility with adjacent properties and other property in the district.
Answer: Proposed use Is part of the C -2 district and is compatible with other
properties in the district.
(11) Whether the change suggested is out of scale with the needs of the neighborhood or
the village.
Answer: Proposed use is consistent with the existing shopping center and not out of
scale with the neighborhood or the Village.
(12) Any special requirements set out in the schedule of site regulations in section 78 -143 for
the particular use involved.
Answer: Proposed use meets section 78 -143 in C -2 District.
Sec. 78 -368. Application; notice of hearing.
(a) A written petition for special exception shall be submitted indicating the section of this
chapter under which the special exception is sought and stating the grounds on which it
is requested, with particular reference to the written findings under section 78 -363 and
other specific conditions, if applicable, which the village council shall address. The
petition shall include all material necessary to meet the requirements of the
development concept plan listed in subsection (b) of this section and any additional
information that will demonstrate that the grant of special exception will be in harmony
with general intent and purpose of this chapter.
Response: A petition for a special exception addressing 78-363 and 78 -362 has been
submitted.
(b) A petitioner seeking special exception approval shall submit a development concept
plan on one or more sheets of paper measuring not more than 24 by 36 inches and
drawn to a scale not smaller than 100 feet to the inch. The following shall be provided
on the development concept plan: (1) -(16).
Response: This is not a development concept; it is a business within an existing
approved shopping center. See Survey.
(c) The application shall be reviewed by the land development staff within 30 days
of the submission deadline. Upon land development staff review and analysis of
all submitted materials, the building official shall forward a recommendation to
the village council.
Response: This requirement has been met.
(d) A public hearing shall be held by the village council. The property owner may
appear personally or by agent or attorney.
Response: This requirement has been met.
(e) Notice of public hearing shall be advertised a minimum of ten days in advance of
the public hearing in a newspaper of general circulation in the area. The owner
of the property for which special exception is sought or his agent or attorney
designated by him on the submitted petition shall be notified by mail of the date
and time of the hearing. Notice shall be given by mail to all owners of property
within a 300 -foot radius of the boundary lines of the property for which a special
exception is requested. The list of property owners within the stated radius shall
be provided by the applicant from the most recent tax roll information as
provided by the county appraiser's office. The applicant must furnish an affidavit
signed by the person responsible for providing the list. Notwithstanding any
other provision contained in this section, failure to provide written notice to any
adjacent property owners shall not constitute a jurisdictional defect provided that
proper legal notice has been published.
Response: This requirement has been met.
Respectfully Submitted,
- �Z
Matt Webster
Tequesta Brewing Company
561 - 628 -3853
11760 US Hwy One Suite 101
M erin Palm Beach Gardens FL 33408
IYA Merin tel 561 627 0184
l Codman, Inc. fax 561 627 8063
www.mhcreal.com
Commercial Real Estate Services, Worldwide.
October 7, 2010
Village of "Tequesta
Community Development Department
345 Tequesta Drive
Tequesta, FL 33469
RE: Tequesta Brewery @ Village Square
To Whom It. May Concern:
Please be advised that the Landlord has approved Tequesta Brewery, LLC to sell beer to
its customers as outlined in Paragraph 3 of Exhibit "E" of the lease agreement dated Dec.
28, 2009, contingent upon approval from the local agencies. In addition, the above
tenant is obligated to follow the requirements as outlined in Paragraph 7 of the lease
agreement with regard to its operation of business within the shopping center.
i
Sincerely,
Signature rt=oY `� �j- l,o___ L+'�v'� $�sr - 3 Lfo
Print Name & Title
STATE OF FLORIDA
COUNTY OF PALM BEACH
I hereby certify on the a ' day of ne$olo rte' 2010, persohally appeared
before me and produced identification, or is personally known to me, to be the person
described herein and who executed the foregoing instrument.
Witness my hand and official seal in the state and county, the day and year aforesaid.
i e ll% JENNIFER L. STONE
MY COWASSION # DDS"808
Nofwy a EXPIRES: luty 14.2013
140063MARY n Notary Disoomu Aum Co.
Commission Expires:
01 �1(4
Build on the power of our network.TM Over 300 offices worldwide. www.naiglobal.com
SECTION 5 — DESCRIPTION OF PREMISES TO BE LICENSED
i TO BE COMPLETED BY THE APPLICANT
Trade Name (D/B /A)
Street Address
ity e& Co l State Zip Code3 -6
1. Yes ❑ No Is the proposed premises movable or able to be moved?
2. Yes ❑ Nog Is there any access through the premises to any area over which you do
not have dominion and control?
3. Neatly draw a floor plan of the premises in ink, including sidewalks and other outside arras which
are contiguous to the premises, walls, doors, counters, sales areas, storage areas, restrooms, bar
locations and any other specific areas which are part of the premises sought to be licensed. A
multi-story building where the entire building is to be licen m ust show each floor plan.
;
SECTION 6 — ZONING
TO BE COMPLETED BY THE ZONING AUTHORITY GOVERNING YOUR BUSINESS: LOCATION
A. The location complies with zoning requirements for the sale of alcoholic beverages or wholesale
tobacco products pursuant to this application for a Series license.
B. Are there outside areas which are contiguous to the premises which are to be part of the
premises sought to be licensed ?" ❑ Yes ❑ No
Signed Date
Title
5
SHOPPING CENTER LEASE
THIS LEASE, made as of the "Effective Date" (as defined in the Standard Provisions) between
Tequesta Investors, LP ("LESSOR'), and Tegvesta Brewery, LLC ("LESSEE'S Iocated at
Tequesta Village Square.
WITNESSETH:
In consideration of the covenants herein contained, on the part of LESSEE to be kept and
performed, LESSOR herein leases to LESSEE the "Demised Premises ", being Bay 287, containing
4,227 square feet, as depicted on attached Exhibit "B" and located within a Shopping Center
known as Tequesta Village Square located at 287 US HWY I Tequesta, Florida TO HAVE AND
TO HOLD the same unto LESSEE on the following terms and conditions:
1. "Commencement Date" shall mean the first to occur of the date the Demised Premises are
ready for occupancy, as may be adjusted p ursuan t to Paragraph 1 of the Standard
Provisions, or November 1, 2009.
2. `Lease Tenn" shall mean Sixty Nine (69) months from the first of the month next
succeeding the Commencement Date.
3. "Permitted Use" shall mean use of the Demised Premises as a full service restaurant which
may have the ability to brew its own beer on premises and serve alcoholic beverages. In
addition, Lessee may serve food and provide catering services. Provided Lessee is not in
default of its Lease. Lessor agrees not to lease space within the shopping center to other
tenants that operate a restauraw bar that operates a brewery.
4. "Minimum Rent" shall mean $50,724 per annum (Yeas 1), payable in equal monthly
installments of $4,227 in advance, on the first day of every calendar month durin the
Lease Term.
5. Pass thru: "Operating Costs, Tax & Insurance Escrow Payment" shall mean $2,113.50 per
month.
6. "Deposit shall mean $6,752.63
7. "Prepaid Rent" —NOT APPLICABLE.
8. The "Standard Provisions ", attached hereto as Exhibit "A ", are incorporated herein by this
reference.
9. "Proportionate Share" shall mean five and eighty-six hundredths percent (5.86 %).
Signed in the presence of LESSOR-
Tequesta estairs, LP.
Richard Erenberg
Ma of Soutbpomat Associates, LLC
General Partner for
Tequesta Inv LP
Date: a - s - Date. 1 1
-M �
Signed in the presence o - LESSEE:
(Title)
Date:
Date: 7- 3lol
EXHIBITS
A. Standard Provisions.
B_ Description of Demised Premises.
C. Lessor's Work and Lessee's Work -
D. Lease Guaranty.
E. Addendum.
F. Option to Renew.
M�
STANDARD PROVISIONS
FOR
SHOPPING CENTER LEASE
i
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I
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EXHIBIT `°A"
CONTENTS
PARAGRAPH PAGE
1 _ DEMISED PREMISES, COMMENCEMENT, CONSTRUCTION AND ACCEPTANCE
2. RENT
3. SALES REPORTS AND RECORDS
4. DEPOSIT
5. TAXES
6. COMMON AREA AND OPERATING COSTS
7. PE - HOTTED USE
8. MAINTENANCE AND REPAIR
9. ALTERATIONS
10. LIENS
11. STORE FRONTS AND SIGNS 1
12. UTILITIES I
13. INSURANCE AND INDEWITY 1
14. DAMAGE AND OBLIGATION TO RESTORE
15. EMINENT DOMAIN 1
16. ASSIGNMENT AND SUBLETTING 1
17. DEFAULT AND REMEDIES I
18. LESSOR'S LIEN 1
19. SUBORDINATION AMID ATTORNMENT 1
20. TENANT ESTOPPEL CERTIFICATE 1
21. MERCHANTS' ASSOCIATION AND PUBLICITY 1
22_ NOTICES 1
23. SURRENDER 1
E
24. HOLDING OVER 1
25. BROKER'S FEE 1
26. LESSOR'S RIGHTS 1
27. NON- COMPEITTION 1
28. RELOCATION 1
29. PROPORTIONATE SHARE
30. GENERAL. PROVISIONS
1. DEMISED PREMISES. COMMENCEMENT, CONSTRUCTIO AND
ACCEPTANCE
1.1 LESSOR owns or controls the land shown on Exhibit `B" to the Lease,
together with the proposed buildings and improvements depicted thereon. The Demised Premises
shall include only the appurtenances specifically granted in the Lease, LESSOR specilically
excepting and reserving for itself the roof, the air space above the roof, the space below the floor,
the exterior portions of the Demised Premises (other than the store front), and the right to install,
maintain, use, repair and replace pipes, duct work, conduits, utility lines and wires in the Demised
Premises. LESSOR shall not unreasonably interfere with the normal business operations of
LESSEE when performing said work LESSOR farther reserves the right at any time to relocate
the buildings, automobile paddng areas and other Common Areas; to change the number of
buildings, buildings' dimensions, the number of floors in any of the buildings, store dimensions,
Common Areas, the identity and type of other stores and tenancies, to construct other buildings or
improvements in the Shopping Center, to construct double-deck or elevated parking facilities, and
to increase or decrease the size and scope of the Shopping Center, provided only that the general
location and size of the Demised Premises, reasonable access to the Demised Premises and the
parkirug facilities shall not be materially impaired.
1.2 LESSOR shall deliver the Demised Premises to LESSEE clean and free of
debris (unless LESSEE is already in possession). Except as otherwise provided in the Lease,
LESSEE hereby accepts the Demised Premises in their condition exisQng as of the
Commencement Date or the date that LESSEE takes possession of the Demised Premises,
whichever is earlier, absolutely and without exception, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the use of the Demised
Premises, and any covenants or restrictions of record, and accepts the Lease subject thereto and to
all matters disclosed thereby and by any Exhibits attached hereto. LESSEE aclmowledges that
neither LESSOR nor LESSOR'S agent has made any representation or warranty as to the present
or fugue suitability of the Demised Premises for the conduct of LESSEE'S business. LESSOR'S
liability with respect to latent defects in contraction shall not extend beyond one (1) year from the
date the Demised Premises are ready for occupancy, whether or not such defects are discovered
within said period.
2. RENT
2.1 LESSEE shall pay to LESSOR the Minimum Rent, payable in advance and
without demand, in equal monthly installments on the first day of each month of the Lease Term.
If the Lease Term should commence on a day other than the first day of the month (the
"Commencement Date"), LESSEE shall pay Minimum Rent equal to one - thirtieth (1/30th) of the
monthly Mudmuun Rent multiplied by the number of rental days in such fractional month. The
first such monthly installment of Minimum Rent shall be due and payable on or before the
Commencement Date as required by LESSOR-
2-2 The covenant of LESSEE to pay rent (being Minimum Rent, Operating
Costs and all other sums due hereunder) is separate and distinct from other covenants, and
LESSEE shall have no right of setoff or reduction in the payment of rent for any reason. Payments
required hereunder shall be in United States currency.
3. SALES REPORTS AND RECORDS.
3.1 LESSEE shall keep in the Demised Premises, or at some other Iocation
approved in writing by LESSOR, a permanent, accurate set of books and records maintained in
accordance with generally accepted accounting principles consistently applied, in which shall be
recorded and separately maintained Adjusted Gross Sales for the Demised Premises. The books
and records shall also include federal, state and local tax returns and all pertinent original sales
records relating to the Demised Premises. All books and records reflecting Adjusted Gross Sales
for the whole of the Lease Term shall be retained and preserved until one (1) year after expiration
of the Lease Term
3.2 The books and records shall be open to inspection and audit by LESSOR
and LESSOR's duly authorized agents at all reasonable times, during business hours, at any ti
1
during the Lease Term and for a period of at least one (1) year after the expiration of the Lease
Term. If LESSOR should make an audit of LESSEE'S books and records other than because of
LESSEE'S failure to submit its statements of Adjusted Gross Sales, and if it should be determined
that LESSEE has understated its Adjusted Gross Sales by more than two (2%) percent in any full
or partial calendar year, LESSEE, in addition to paying the Percentage Rent due, if any, for such
understatement, shall pay to LESSOR the cost of such audit, which such sum shall be due and
payable to LESSOR upon demand. If such audit should disclose that LESSEE overpaid
Percentage Rent, the excess, less the cost of such audit, shall be credited against the next payment
due under this Lease. The cost of such audit shall be determined on a time and expense basis, and
the rate per hour shall not exceed that charged for similar personnel by a national firm of
independent certified public accountants.
4. DEPOSIT . Concurrently with the execution of the Lease, LESSEE shall deliver to
LESSOR the Deposit as security for LESSEE'S faithful performance of LESSEE'S obligations. If
LESSEE should fail to pay rent or other charges due hereunder, or otherwise should default with
respect to any provisions of the Lease, LESSOR may use, apply or retain all or any portion of the
Deposit for the payment of any rent or other charge or for the payment of any other sum to which
LESSOR may become obligated by reason of LESSEE'S default, or to compensate LESSOR for
any loss or damage which LESSOR may suffer thereby. If LESSOR so uses or applies all or any
portion of said Deposit, LESSEE shall within ten (10) days after written demand therefore deposit
cash with LESSOR in an amount sufficient to restore the Deposit to the full amount hereinabove
stated, and LESSEE'S failure to do so shall be a material breach of the Lease. LESSOR shall not
be required to keep the Deposit separate from its general accounts nor to cause interest to accrue
thereon. If LESSEE should perform all of LESSEE'S obligations hereunder, the Deposit, or so
much thereof as shall not theretofore have been applied by LESSOR, shall be returned, without
payment of interest or other increment for its use, to LESSEE (or, at LESSOR'S option, to the last
assignee or subtenant, if any of LESSEE'S interest hereunder shall have been transfbrned) at the
expiration of the Lease Term and after LESSEE shall have vacated the Demised Premises. No trust
relationship is created herein between LESSOR and LESSEE with respect to the Deposit. The
Deposit is not an advance payment of rent and is not a measure of LESSOR'S loss or damages.
5. TAXES
5.1 LESSEE shall pay its Proportionate Share of the real property taxes
applicable to the Demised Premises for each full or partial calendar year during the Lease Term,
including any period during which LESSEE shall transact business in the Demised Premises prior
to the Commencement Date. LESSEE hereby waives any right it may have by statute or otherwise
to protest real estate taxes. LESSOR shall not be obligated to obtain discounts in the payment of
real property taxes.
5.1.1 LESSEE shall pay to LESSOR the Tax Escrow Payment on the first
day of each month. The monthly Tax Escrow Payment is based on LESSOR'S estimate of
LESSEE'S Proportionate Share of the estimated real property taxes on the Shopping Center for the
year in question and is subject to increase or decaease as determined by LESSOR to reflect an
accurate escrow of LESSEE'S obligation. The Tax Escrow Payment account shall be reconciled
annually. If LESSEE'S total Tax Escrow Payments should be less than LESSEE'S actual
Proportionate Share of the real property taxes on the Shopping Center, LESSEE shall pay to
LESSOR on demand the difference; if LESSEE'S total Tax Escrow Payments should be more than
LESSEE'S actual Proportionate Share of the real property taxes on the Shopping Center, LESSOR
shall retain such excess and credit it against the next Tax Escrow Payment(s) due from LESSEE to
LESSOR. This obligation of LESSEE shall survive termination of the Lease.
5.1.2 As used herein, the term `real property tax" shall include any form
of assessment, license fee, levy, penalty directly caused by LESSEE, water and sewer rents (except
water meter charges and sewer rent based thereon) and other govemmentai impositions, charges
and taxes (other than inheritance or estate taxes) of every kind and nature whatsoever,
extraordinary as well as ordinary, general and special, foreseen and unforeseen, and all installments
thereof (including any interest on amounts which may be paid in installments) which shall or may,
during the Lease Tenn, be levied, assessed or imposed by any audmonty having the direct or
indirect power to tax ( mcluding, without limitation, any city, county, state or federal govemment,
or any school, agricultural, lighting, drainage or other improvement district thereof) as against any
2
�� I
legal or equitable interest of LESSOR in the Demised Premises or in the real property of which the
Demised Premises are a pact, and all costs incurred by LESSOR in contesting or negotiating the
same with governmental authority. Nothing herein contained shall be construed to include as a tax
which shall be the basis of real estate taxes, any inheritance, estate, succession, transfer, gift,
franchise, corporation, income or profit tax or capital levy that is or may be imposed upon
LESSOR, provided, however, that it at any time after the date hereof, the methods of taxation
shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes now levied,
assessed or imposed on real estate as such, there shall be levied, assessed or imposed (a) a tax on
The rents received from such real estate, or (b) a license fee measured by the rents receivable by
LESSOR from the Shopping Center or any portion thereof or (c) a tax or license fee imposed upon
LESSOR which is otherwise measured by or based in whole or part upon the Shopping Center or
any portion thereof; or (d) an income or franchise tax, then the some shall be included in the
computation of real estate taxes hereunder, computed as if the amount of such tax or fee so payable
were that due if the Shopping Center were the only Property of LESSOR subject thereto. In
addition to the foregoing, should any governmental authority acting under any existing or future
law, ordinance or regulation, levy, assess or impose a tax, excise and/or assessment upon or against
the Lease, the execution thereof and/or the Minimum Rent, or any item of additional rent payable
by LESSEE to LESSOR whether by way of substitution for or in addition to any existing tax or
otherwise, and whether or not evidenced by documentary stamps or the like, LESSEE shall be
responsible for and shall pay such tax, excise and/or assessment or shall reimburse LESSOR for
the amount thereof, as the case may be.
51 LESSEE shall pay prior to delinquency all taxes assessed against and levied
upon trade fixtures, furnishings, equipment; inventory and all other personal property of LESSEE
contained in the Demised Premises or elsewhere. LESSEE shall cause said trade fixtures,
firmisbings, equipment, inventory and all other personal property to be assessed and billed
separately from the real property of LESSOR_ However, should any of LESSEES said personal
property be assessed with LESSOR'S teal property, LESSEE shall pay to LESSOR the taxes
attributable to said personal property within ten (10) days after receipt of a written statem ut
setting forth the taxes applicable to LESSEE'S personal property.
53 LESSEE shall pay any and all sales tax, tax on rentals, and any other
charges, taxes and/or impositions now in existence or hereafter imposed by any governmental
authority against the Lease, the execution hereof and/or the Minimum Rent, Parentage Rent and
any other charges payable by LESSEE.
5A Provisions herein to the contrary notwithstanding, in the event LESSOR
should be required, as a condition to entering into a lease of premises within the Shopping Center
with a key tenant (being a tenant leasing other demised premises in excess of 10,000 square feet) to
grant to such key tenant a concession to its obligation to pay its proportionate share of real property
taxes, LESSOR may elect in its sole discretion to have LESSEE'S Proportionate Share of real
property taxes redetermined to be the product of multiplying the square feet in the Demised
Premises divided by the square feet in the Shopping Center exclusive of the square fret leased to
such key tenant(s) times the balance of the real property taxes after payment by such key tenant(s).
6. COMMON AREA AND OPERATING COSTS
6.1 The term "Common Area" shall mean that part of the Shopping Center
designated by LESSOR from time to time for the common use of all tenants, including, among
other facilities, pmidng area, sidewalks, landscaping, water retention, curbs, loading areas, private
streets and alleys, lighting facilities, hallways, malls, restrooms, and other areas and improvements
provided by LESSOR for the common use of all tenants, all of which shall be subject to
LESSOR'S sole management and control. Without limiting the generality of the foregoing,
LESSOR reserves the right to enter into, modify and terminate easements and other agreements
pertaining to the maintenance and use of the parking areas and other Common Areas, to close any
and all portions of the Common Area to such extent and for such time as may, in the sole discretion
of LESSOR' S counsel, be legally necessary to prevent a dedication thereof or the accrual of rights
to any person or the public therein; to close temporarily, if necessary, any part of the Common
Area to discourage noncustomer paridng; and to make changes, additions, deletions, alterations or
improvements in and to the Common Areas, provided there shall be no unreasonable or substantial
obstruction of LESSEE'S right of ingress to or egress from the Demised Premises,
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6.2 LESSEE and its employees, customers, subteaaajs, licensees and
concessionaires shall have the nonexclusive right and license to use the Common Area as
constituted from time to time, such use to be in common with LESSOR, other tenants of the
Shopping Center and other persons permitted by LESSOR to use the same and subject to such
reasonable rules and regulations governing use as LESSOR may from time to time prescribe,
including the designation of specific areas within the Shopping Center or in reasonable proximity
thereto in which automobiles owned by LESSEE, its employees, subtenants, licensccs an d
concessionaires shall be parked LESSEE shall fiurush to LESSOR upon request a complete list of
license numbers of all automobiles operated by LESSEE, its employees, subtenants licensees and
concessionaires.
6.3 LESSOR shall operate, maintain and repair the Common Area in such
reasonable manner as LESSOR shall in its sole discretion determine. LESSEE shall pay its
Proportionate Share of the Operating Costs (as hereinafter defined) during the term of the Lease,
including any period during which LESSEE shall transact business in the Demised Premises prior
to the Commencement Date. The tern "Operating Costs" shall mean all costs, expenses and other
charges incurred by LESSOR in connection with the ownersbip, operation, insurance, maintenance
and repair of the Shopping Center, including the Common Area, and shall include, but not be
limited to, the costs and expenses of the following.
6.3.1 garbage and trash removal; maintenance, repair and replacement of
all parking lot surfaces, including cleaning sweepang; painting, striping and repaving;
mamtenar= repair and replacement of sidewalks, curbs, guardrails, bumpers, fences, screens,
flagpoles, bicycle racks, Shopping Center identification signs, directional signs, traffic signals, and
other ttafc markers and signs;
6.3.2 maintenance, repair and replacement of (a) scorn and sanitary
drainage systems, including disposal plants, lift stations and retention ponds or basins; (b)
irrigation systems; (e) electrical, gas, water, telephone and other utilities systems furnished to the
Shopping Center; (d) lighting systems (including bulbs, poles and fixtures); (e) emergency water
and sprinkler systems; (ID other utility systems, and (g) security systems, including any utility
charges in connection with any of the foregoing systems;
63.3 exterior planting, replanting and replacing of flowers, shrubbery,
plants, trees and other landscaping and the periodic cleaning of the outside of all windows in the
front of the Demised Premises and other premises in the Shopping Center;
6.3.4 maintenance, repair, cltaning, replacement and substitution of and
for all portions of the buildings in the Shopping Center (exchrding the Demised Premises and
premises leased to other tenants), including walls, roofs and roof flashings, canopies, skylights,
signs, planters, benches, fire exits, doors and hardware, windows, glass and glazing;
6.3.5 premiums or contributions for insurance, including without
limitation, liability insurance for personal injury, death, defamation and claims of false arrest;
property insurance; workmen's compensation; broad form all peril insurance which may include
flood insurance, earthquake insurance, boiler insurance and/or rent insurance; fidelity bonds for
personnel; and plate glass insurance;
63.6 maintenance, repair and acquisition costs (rental fees and/or
purchase price or in lieu of purchase price, the annual depreciation. allocable thereto) of all security
devices, machinery and equipment and all personal property taxes and other charges incurred in
connection with such security devices, machinery and equipment;
6.3.7 all license and permit fees, and all parking surcharges that may
result from any environmental or other laws, rules, regulations, guidelines or order;
6.3.8 the cost of installation and operation of music program services and
loudspeaker systems;
6.3.9 a management company and/or personnel for such purposes,
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including, without limitation, (a) security and maintenance people, (b) secretaries and bookkeepers
and (c) payroll taxes, workmen's compensation insurance and related expenses; and
6.3.10 LESSOR'S administrative costs in an amount equal to eighteen
(18 9/6) percent of the total Operating Costs.
The foregoing Subsections 6.3.1 through 6.3.I0 are for definition only and are not to be construed
to impose any obligations on LESSOR
include. 6.4 Notwithstanding the foregoing provisions, Operating Costs shall not
6.4.1 depreciation (other than depreciation as above specified);
6.4.2 costs of repairing and replacing to the extent that proceeds of
insurance or condemnation awards are received therefor, and
6.43 costs of a capital nature (to the extent they constitute improvements
beyond the original condition or utility of the item in question).
6.5 LESSEE shall pay to LESSOR the Operating Costs Escrow Payment on the
first day of each month. The monthly Operating Costs Escrow Payment is based on LESSOR'S
estimate of LESSEE'S Proportionate Share of Operating Costs for the year in question and is
subject to increase or decrease no more often than twice each year as determined by LESSOR to
reflect an accurate escrow of LESSEE'S obligation. Subsequent to the end of each full or partial
calendar year, LESSOR shall notify LESSEE of the Operating Costs and of LESSEE'S
Proportionate Share thereof for such full or partial calendar year. If the actual Operating Costs
Escrow Payments paid by LESSEE for any fill or partial calendar year should be less than the
actual amount due from LESSEE as shown on such notice, LESSEE shall pay to LESSOR the
difference between the amount paid by LESSEE and the total amount due within fifteen (15) days
after receipt of such notice. If the total Operating Costs Escrow Payments paid by LESSEE for
such full or partial calendar year should exceed the actual amount due from LESSEE as shown on
such notice, such excess shall be credited against the next Operating Costs Escrow Payment due
from LESSEE to LESSOR. If the Commencement Date is a day other than the first day of the
calendar year, or if the terns of this Lease should end on a day other than the last day of the
calendar year, LESSEE'S Proportionate Share of Operating Costs shall be billed and adjusted on
the basis of such fraction of a calendar year.
6.6 Provisions herein to the contrary notwithstanding, in the event LESSOR
should be required, as a condition to entering into a lease of premises within the Shopping Center
with a key tenant (being a tenant leasing other demised premises in excess of 10,000 square feet) to
grant to such key tenant a concession in its obligation to pay its proportionate share of Operating
Costs, LESSOR may elect in its sole discretion to have LESSEE'S Proportionate Share of
Operating Costs redetermined to be the product of multiplying the square feet in the Demised
Premises divided by the square fed in the Shopping Center exclusive of the square feet leased to
such key tenant (s) times the balance of the Operating Costs after payment by such key tenant(s).
7. PERMITTED USE
7.1 The Permitted Use is a material consideration to LESSOR in order that
there will be maintained within the Shopping Center an appropriate mix of tenants to achieve the
maximum gross sales for all tenants and assure the continued operation of the Shopping Center.
LESSEE shall continuously use and occupy the Demised Premises for the Permitted Use and for
no other use or purpose. LESSEE will not breach exclusive use provisions in other leases for space
in the Shopping Center.
7.2 LESSEE shall not abandon or vacate the Demised Premises, shall not
permit, license or suffer the occupancy of any other patty in the Demised Premises and shall:
7.2.1 Comply with all applicable statutes, ordinances, Hiles, regulations,
orders, restrictions of record and requirements in effect during the term of the Lease regulating the
5
use of the Demised Premises.
7.2.2 Keep the Demised Premises continuously and uninterruptedly open
during regular business hours (being 10:00 A-M. to 6:00 PAL Monday through Saturday or such
other hours as LESSOR should reasonably require) and for such extended howl during holiday
and peak sales periods as LESSOR in its sole discretion should determine, including, without
limitation, Thursday and Friday evenings of each week. Notwithstanding the above, the LESSEE
agrees to open for business 6 days per week and operate the business for a minimum of 40 hours
weekly.
72.3 Keep the Demised Premises and sidewalks, service ways and
loading areas 4sce nt to the Demised Premises neat, clean and free from dirt, rubbish, insects and
pests at all times and store all trash and garbage within the Demised Premises, arranging for the
regular pick up of such garbage and trash at LESSEE'S expense. LESSEE shall store all trash and
garbage within the area designated by LESSOR for such trash pick up and removal and only in
receptacles of the size, design and color from time to time prescribed by LESSOR. LESSEE shall
not operate an incinerator or bum trash or garbage within the Shopping Center.
7.2.4 Keep the inside and out of all glass in the windows and doors of the
Demised Premises clean; maintain all the display windows in a neat, attractive condition, and all
such displays shall be subject to the approval of LESSOR, which shall not be unreasonably
withheld; and keep all display windows and exterior electric signs in from of the Demised
Premises lighted from dusk until 10:00 P.M. every day, including Sundays and holidays. LESSEE
shall not use any loudspeaker, voice - making or other sound projection device in such a manner as
to be audible to anyone outside the Demised Premises, nor shall LESSEE use or display any
flashing lights visible to anyone outside the Demmd Premises.
72.5 Display no merchandise outside the Demised Premises nor in any
way obstruct the sidev.*alks adjacent thereto; not solicit business or distribute any hand bills or
other advertising mattes in the Common Area; not permit any objectionable or unpleasant odors to
emanate from The Demised Premises; nor place or permit any radio, television, loudspeaker or
amplifier on the roof or outside the Demised Premises.
7.2.6 Load or unload all merchandise supplies, fixtures, equipment and
furniture and cause the collection of rubbish only through the rear service door or doors of the
Demised Premises. No deliveries of any kind shall be made through the front entrance.
7.2.7 Maintain The decor and fixturing of the Demised Premises, the
merchandise and operation of LESSEE'S business consistent with the operation of a "first-class ",
"high- quality ", `fashionable" store or business as those standards of operation may be interpreted
from time to time (as opposed to "general ", `promotional" or "self- service" store or business).
LESSEE shall operate its business at the Demised Premises in a respectable, reputable, tasteful,
competent and dignified manner in order to enhance the image of the Shopping Center as a whole
and its reputation as a dignified and desirable place to shop and to achieve the maximum volume of
sates so that LESSOR will receive the maximum amount of Percentage Rem. The description of
the standards of operation of the business conducted in the Demised Premises as "fi stclase ,
" high - quality" and "fashionable" as opposed to "general ", "promotional" or "self- service" is
intended only as a description of the general quality of the merchandise or services LESSEE may
sell and the general quality of customer service, merchandising, fixtuaing and decor LESSEE must
maintain in the operation of the Demised Premises. The foregoing description is not intended by
LESSOR and will not be enforced to affect the retail selling price of LESSEE'S merchandise or
services.
7.3 LESSEE shall not use the Demised Premises, nor permit the use of the
Demised Premises, for the storage, transportation or disposal of `hazardous" or "toxic" materials
as commonly known or otherwise defined under any law relating to environmental conditions and
industrial hygiene, including, without limitation, the Resource Conversation and Recovery Act of
1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Super Fund Amendments and Reauthorization Act of 1986, the Hazardous
Materials Transportation Act and the Florida Air and Water Pollution Control Act Such materials
would include, without limitation, asbestos or any substance containing asbestos, urea
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formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid
containing the getup of organic compounds known as polychlorinated biphenyls, flammable
explosives, radioactive materials, chemicals known to cause cancer or reproductive toxicity,
p effluents, contaminants, emissions or related materials_ LESSEE shall provide to
LESSOR forthwith after receipt of same photocopies of all notices of violation received by it with
regard to any niles, regulations or laws applicable to such materials, the commencement of any
enforcement action, the service of any potentially responsible party demand letter from any private
or governmental party or the loss of any operating permit by reason of the use or release of any
such materials. LESSOR may enter the Demised Premises and perform any action necessary to
remediate contamination or to correct any condition giving rise to any such notice of violation.
7A In the event LESSEE should conduct such a use within the Demised
Premises which would increase the insurance premium cost or invalidate any insurance policy
carried on the Shopping Center, LESSEE shall pay as additional rem, upon demand of LESSOR,
any such increased premium cost due to LESSEE'S use of the Demised Premises. LESSEE shall
report to LESSOR any condition it believes would affect any insurance policy carried on the
Shopping Center. Further, in the event LESSEE'S use of the Demised'Pnemises increases the cost
of operating or ma the Shopping Center, LESSEE shall pay as additional rent, upon
demand of LESSOR, such additional costs as LESSOR should reasonably require. Such additional
costs would include, without limitation, increased utility and maintenance costs by reason of
extended business hours.
7.5 Upon the Commencement Date, LESSEE shall open for business in the
Demised premises and shall thereafter contimmusly, actively and diligently operate its said
business on the whole of the Demised Premises, in a high grade and reputable manner maintaining
in the Demised Premises an adequate staff of employees and a full and complete stack of
merchandise, during the hours spocifited herein throughout the Lease Term except to the extent
prevented from so doing by strikes, fire casualty or other causes beyond LESSEE'S control.
However, if LESSEE's business is to be closed for a period greater than two (2) days, LESSEE
shall provide written notice to LESSOR five (5) days before such closing
S. MAINTENANCE AND REPAIR
8.1 LESSOR shall keep the foundation, the exterior walls (except store fronts,
plate glass windows, doors, door closure devices, window and door frames, molding, locks and
hardware and painting or other treatments of exterior walls) and the roof of the Demised Premises
that LESSOR shall not be mT*ed to make any repairs occasioned by the
a good ' except n
act or neg ligence of LESSEE, its agents, emp to yees, subtenants, licesees and concessionaires,
In the evenR that the
which repairs shall be made by LESSEE, subject to LESSOR'S supervision.
Demised Premises should become in need of repairs required to be made by LESSOR herminder,
LESSEE shall give immediate written no thereof to LESSOR, and LESSOR shall not be
responsible in any way for the failure to make any such repairs until fifteen (15) days have elapsed
after delivery of such written notice. Other than as herein provided, LESSOR shall not be
responsible to maintain or make any improvements or repairs of any kind in or upon the Demised
Premises.
8.2 LESSEE shall keep and maintain in full compliance with all laws, rules and
regulations (as same may be enacted or amended from time to ti e)an in good Premises e condition
and repair (which Shall mean replacement if necessa ry) the
thereof, except as hereinbefore provided, including, Without limitation, the exterior and interior
portions of all doors, door checks, security gates, windows, glass, qty facilities, plumbing and
sewage facilities within the Demised Premises or under the floor slab (including free flow up to the
main sewer line), fixtures, heating, air conditioning (including exterior mechanical eyurpmeut),
exterior signs and exterior electrical equipment serving the Demised Premises and interior walls,
floors and ceilings.
8.3 LESSEE, at its own cost and expense, shall enter into a regularly sch eduled LESSOR, for
preventive maintearanedservice contract with a maintenance contractor approved
servicing all heating and air conditioning systems and equipment servicing the Demised Premises,
and an executed copy of such contract sball be delivered to LESSOR. This service contract must
7
include all services reasonably suggested by the equipment manufacturer within the
operations(mamteuance manual and must become effective within thirty (30) days after the date
LESSEE shall have taken possession of the Demised Premises. LESSOR may, but sball not be
required to, upon notice to LESSEE, elect to enter into such a mamtenanee/servrce contract on
behalf of LESSEE or to perform the work itself and, in either case, LESSEE shall pay to LESSOR
within ten (10) days after demand the cost of such contract or work phis ten (10%) percent of the
amount thereof (for LESSOR'S service and overhead costs).
9. ALTERATIONS
9.1 LESSEE shall not make any alterations, additions or improvements to the
Demised Premises without the prior written consent of LESSOR, except for the installation of
unattached, movable trade fixtures which may be installed without drilling, cutting or otherwise
defacing the Demised Premises. All alterations, additions, improvements and fixttres (other than
Unattached, movable trade fixtures) which may be made or installed by either party upon the
Demised Premises shall become the property of LESSOR upon installation and shall remain upon
and be surrendered with the Demised Premises at the wrminati of the Lease unless upon
termination of the Lease LESSOR requests their removal, in which event LESSEE shall remove
the same and restore the Demised Premises to their original condition at LESSEE'S expense. Any
linoleum, carpeting or other floor covering which may be cemented or otherwise affixed to the
floor of the Demised Premises shall be a permanent fixture and shall become the property of
LESSOR without credit or compensation to LESSEE.
9.2 All construction work done by LESSEE within the Demised Premises shall
be performed in good and workmanlike manner, in compliance with all governmental
requirements, and the requirements of any contract or mortgage to which LESSOR may be a party
and in such manner as to cause a minimum of interference with other construction in progress and
with the transaction of business in the Shopping Center. LESSEE agrees to indemnify LESSOR
and hold it harmless against any loss, liability or damage resulting from such work, and LESSEE
shall, if requested by LESSOR, furnish bond or other security satisfactory to LESSOR against any
such loss, liability or damage.
9.3 All venting, opening, seating, waterproofing or any altering of the roof shall
be performed by LESSOR'S roofing contractor upon LESSOR'S approval and at LESSEE'S
expense, and when completed LESSEE shall famish to LESSOR a certificate from LESSOR'S
roofing contractor that all such alterations approved by LESSOR have been completed in
accordance with the plans and specifications therefor approved by LESSOR
10. LMM . LESSEE shall not pemrit to be created nor to remain undischarged my
lien, encumbrance or charge arising out of any work of any contractor, mechanic, laborer or
matenalman which might be or become a lien, encrunbrance or charge upon the Demised Premises
or the Shopping Center or the income therefrom LESSEE shall not suffer any other matter or
thing whereby the estate, right and interest of LESSOR in the Demised Premises or in the
Shopping Center might be impaired. If any lien or notice of lien on account of an alleged debt of
LESSEE or any notice of contract by a party engaged by LESSEE or LESSEE'S contractor to
work in the Demised Premises should be filed against the Demised Premises or the Shopping
Centex, LESSEE shall, within twenty (20) days after notice of the filin thereof cause the same to
be discharged of record by payment, deposit, bond, order of court of competent jurisdiction or
otherwise. If LESSEE should fail to cause such lien or notice of lien to be discharged within the
period provided, LESSOR, in addition to any other rights or remedies, may, but shall not be
obligated to, discharge the same by either paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings. Any amount paid by LESSOR and
all costs and expenses, including attorneys' fees, incurred by LESSOR in connection therewith,
together with interest thereon at the maximum rate permitted by law or fifteen (15 %) percent per
annum, whichever is lower, from the date of payment or Wcwmg of the cost and expense, shall be
paid by LESSEE to LESSOR on demand.
THE INTEREST OF LESSOR IN THE DEMISED PREMISES SHALL NOT BE SUBJECT TO
LIENS FOR IMPROVEMENTS MADE BY OR FOR THE ACCOUNT OF LESSEE.
11. STORE FRONTS AND SIGNS LESSEE shall within thirty (30) days from lease
8
A
execution install a stoirfront sign in accordance with the sign criteria set forth in this lease.
LESSEE shall not, without LESSOR'S prior written consent, (a) make any changes to or paint the
store fi+ont; (b) install any exterior lighting, decorations or painfings; or (c) erect or install any
signs, window or door lettering, place cm decorations or advertising media of any type which
can be viewed from the exterior of the Demised Premises, excepting only dignified displays of a
customary type for its display windows not affixed to the windows. All signs, decorations and
advertising media shall conform in all respects to the sign criteria established and/or revised by
LESSOR for the Shopping Center from time to time in the exercise of its sole discretion. All
expenses incurred with regard to the design, construction and installation of LESSEE'S signs shall
be costs of LESSEE including, without limitation, professional fees and permit fees. LESSEE shall
use a sign company designated by LESSOR LESSEE shall maintain all signs in good condition
and m proper operating order. All signs and/or sign cabinets shall become the property of LESSOR
at the termination of the Lease or upon vacation of the Demised Premises.
12. UTILITIES
121 LESSEE shall contract, in its own name and shall pay the charge before
delinquency, for all utility services rendered or furnished to the Demised Premises, includ heat,
water, gas, electricity, fire protection, trash removal, sewer rental, sewage treatruerit facilities,
utility hook-ups and the lilce, together with all texts or other charges levied on such utilities.
Further, LESSEE shall pay to LESSOR upon demand its pro rata share of utility impact fees
already paid by LESSOR based on the formula applied by the applicable utility company.
LESSOR may, if it so elects, famish one or more utility services to LESSEE, and in such event
LESSEE shall pmrchase the use of such services as are tendered by LESSOR and shall pay on
demand as additional rent the rates established therefore by LESSOR, which rates shall not exceed
the rates which would be charged for the same service if famished directly by any public utility
corporation or governmental agency in the area supplying the same or similar service, plus an
additional fifteen (15 0 /6) percent (for LESSOR'S service and overhead costs). In no event shall
LESSOR be liable for the quality, quantity, faihue or intenvption of such services to the Demised
Premises. This obligation of LESSEE shall survive termination of the Lease_
122 LESSOR may, with twenty-four (24) hour notice to LESSEE, or without
notice in the event of an emergency, cut off and discontinue gas, water, electricity and any or all
utilities whenever such discontinuance would be necessary to make repairs or alterations. No such
action by LESSOR shall be construed as an eviction or disturbance of possession or as an election
by LESSOR to terminate the Lease, nor shall LESSOR be in any way responsible or liable under
such action_
12.3 In the event any governmental authority shall order mandatory energy
conservation or if LESSOR elects voluntarily to cooperate in energy conservation at the request of
any governmental authority, including, but not limited to, a reduction in operating hours or lighting
usage, then LESSEE shall comply with such requirements. LESSEE'S compliance with such
requirements shall not entitle LESSEE to any abatement of rent or damages for any injury or
inconvenience occasioned thereby, nor shall it be construed as an eviction or disturbance of
pro
13. INSURANCE AND INDEIITI I'
13.1 LESSEE shall, at LESSEE'S expense, obtain and keep in force during the
Lease Tema a policy of comprehensive general liability insurance, together with a broad form
comprehensive general liability endorsement, covering any and all claims for injuries to persons in
or upon the Demised Premises, including all damages from signs, glass, awnings, fixtures or other
appurtenance now or hereafter erected on the Demised Premises, and insuring the indemnity
provision as set forth in this Paragraph. Such insurance shall be in an amount not less than
$1,1x10,000.00 for injury to one person in one aeciderr� occurrence or casualty and not less than
$3,000,000.00 for injuries to more than one person in one accident, occurrence or casualty, or, in
lieu of the foregoing, a combined single limit of $3,000,000.00. The limits of said insurance shall
not, however, limit the liability of LESSEE. Not more frequently than each three (3) years, it in
the reasonable opinion of LESSOR, the amount of liability insurance required hereunder should
not be adequate, LESSEE shall increase said insurance coverage as required by LESSOR-
9
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13.2 LESSEE shall, at LESSEE'S expense, obtain and keep in force during the
Lease Tenn a policy or policies of property damage liability insurance, together with broad form
all peril coverage and plate glass insurance for the full replacement value of LESSEE'S
improvements and property, including, but not limited to, inventory, trade fixtures, furnishings and
other personal property.
133 LESSEE shall indemnify and hold harmless LESSOR from and against all
claims, loss, cost, damage, absent negligence or contribution by lessor or expense arising from (a)
LESSEE'S use of the Demised Premises or from the conduct of LESSEE'S business or from any
activity, work or things done, permitted or suffered by LESSEE in or about the Demised Premises
or elsewhere, (b) the utilities located within or under the Demised Premises causing injury to any
persons or property whomsoever or whatsoever, and (c) any act or omission of LESSEE, its agents,
contractors, employees, invitees, licensees, subtenants and guests. LESSEE shall further
indemnify and hold harmless LESSOR from and against all costs, attorneys' fees, expenses and
liabilities incurred in the defense of any such claim or any action or proceeding brought thereon.
13.4 LESSOR shall not be liable for Wiry to LESSEE'S business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other property of, nor to the
person of LESSEE, LESSEE'S agents, contractors, employees, invitees, licensees, subtenants and
guests, or any other person m or about the Demised Premises, whether the said damage or injury
results from a condition arising upon the Demised Premises or upon other portions of the building
of which the Demised Premises are a part, or from other sources or places, and regardless of
whether the cause of such damage or injury or the means of repaving sane is inaccessible to
LESSEE. LESSOR shall not be liable for any damages arising firm the act or neglect of any other
tenant of the Shopping Center.
13.5 LESSEE hereby waives any and all rights of recovery against LESSOR, or
against the officers, employees, agents and representatives of LESSOR, for loss of or damage to
LESSEE or its property or the property of others under its control to the extent that such loss or
damage is insured against under any insurance policy in force at the time of such loss or damages.
13.6 Any insurance policies required hereunder shall name LESSOR and, in
addition, the holder of a fast mortgage on the Shopping Center or a ground lessor thereof, if
requested to do so by LESSOR, as additional insureds as their interests may appear. Such
insurance policies may not be modified or terminated without thirty (30) days' prior written notice
to LESSOR Insurance required hereunder shall be issued by reputable and independent insurers
permitted to do business in the State of Florida and rated in Best's Insurance Guide, or any
successor thereto (or, if there be none, an organizatio having a national reputaRon) as having a
general policyholder rating of "A and a financial rating of at least "13". Such policies or duly
execrated certificates of insurance, reflecting all the requirements of this Paragraph, shall be
promptly delivered to LESSOR and renewals thereof as required shall be delivered to LESSOR at
least thirty (30) days prior to the expiration of the respective policies.
14. DAMAGE AND OBLIGATION TO RESTORE
14.1 LESSEE shall give immediate written. notice to LESSOR of any damage
caused to the Demised Premises by fire or other casualty.
14.2 If the Demised Premises should (a) be da by any uninsured casualty
or (b) be damaged to an extent in excess of fifty (50 0 /9) percent of the cost of replacement thereof,
LESSOR may elect either to terminate the Lease or to proceed to rebuild and repair the Demised
Premises. Should LESSOR elect to terminate the Lease, it shall give written notice of such
election to LESSEE within ninety (90) days after the occurrence of such casualty.
14.3 Provided LESSEE has not exercised its renewal rights and if the Demised
Premises should be partially damaged during the last twelve (12) months of the Lease, LESSOR
may elect to terminate the Lease as of the date of occurrence of such damage by giving written
notice to LESSEE within ninety (90) days after the date of occurrence of such damage.
14.4 Except as otherwise provided herein, in the event the Demised Premises
should be damaged by fire or other casualty insurable under standard fire and extended coverage
10
NSW
insurance, LESSOR shall proceed with reasonable diligence to rebuild and repair the Demised
Premises. LESSOR'S obligation to rebuild and repair shall be limited to restoring the Demised
Premises to substantially the condition in which same existed prior to the casualty, shall be limited
to the cam of the insurance proceeds available to LESSOR for such restoration and, further, shall
exclude any obligation with regard to the personal property and trade fixtures of LESSEE.
LESSEE agrees that, promptly upon completion of such work by LESSOR, it will proceed with
reasonable diligence to restore the r=ender of the Demised Premises, including, but not limited
to, the repair or restoration of signs, fixtures and equipment During any period of reconstruction
or repair of the Demised Premises, LESSEE shall continue the operation of its business within the
Demised Premises to the extent practicable_
14.5 In the event LESSOR should elect to restore the Demised Premises and
LESSEE should be deprived of the occupancy and use of a portion of the Demised Premises,
Minimum Rent shall be equitably apportioned according to the area of the Demised Premises
which is unusable by LESSEE, until such time as LESSOR shall have completed its restoration as
provided herein. In the event of total destruction of the Demised Premises, all of the LESSEE'S
financial obligations contained in the agreement shall be abated prorationally to the damaged area
and from the date of the event leading to such destruction.
14.6 In the event 75% of the Shopping Center should be damaged to such an
extent that LESSOR, in its sole discretion, should elect to discontinue operation of the Shopping
Center, LESSOR may cancel the Lease by giving written notice to LESSEE, and the Luse shall
terminate and become null and void ninety (90) days after said notice.
15. EN12ENT DOMAIN
15.1 If any part of the Shopping Center should be permanently or temporarily
taken, condemned or transferred by agreement in lieu of condemnation for any public or quasi -
public use or purpose by any competent authority, whether or not the Lease shall be terminated, the
entire compensation award therefor, both leasehold and reversion, shall be the property of
LESSOR without any deduction therefrom for any present or future estate of LESSEE, and
LESSEE hereby assigns to LESSOR all its right, title and interest to any such award. LESSEE
shall execute all documents required to evidence such result.
15.2 If the entire Demised Premises should be permanently taken, condemned or
transferred as aforesaid, the Lease shall terminate as of the time possession thereof vests in the
condemning authority. If a portion of the Demised Premises should be permanently taken,
condemned or transferred as aforesaid, LESSOR may elect to terminate the Lease or, at its own
expcase, to repair and restore the portion not affected by the taking, in which latter event the
Minimum Rent and Break Point shall be reduced in proportion to the area taken, effective at the
time possession vests in the condemning authority. If the Demised Premises or any part thereof
should be temporarily taken, condemned or transferred as aforesaid, Minimum Rent shall be abated
during the period of such temporary taking by the amount LESSOR receives from the condemning
authority to compensate it for the use of the Demised Premises,
15.3 If the Common Area or any part thereof should be permanently or
temporarily taken, condemned or transferred as aforesaid, whether or not the Lease shall be
terminated, the entire compensation therefor, both leasehold and reversion, shall be the property of
LESSOR without any deduction therefrom for any present or future estate of LESSEE and
LESSEE hereby assigns to LESSOR all its right, title and interest to any such award. LESSEE
shall execute all documents required to evidence such result In the event any portion of the
Common Area should be taken to such an extent that LESSOR, in its sole discretion, should elect
to discontinue operation of the Shopping Center, LESSOR may terminate the Lease.
16. ASSIGYM AND SUBLETTING
16.1 The identity and financial standing of LESSEE is a material consideration
of LESSOR in entering into the Lease LESSEE shall not voluntarily, mvoluntamly or by
operation of law assign, sell, mortgage, pledge or in any manner transfer the Lease or any estate or
interest therein or sublet the Demised Premises or any part thereof, or grant any license, concession
or other right to occupy any portion of the Demised Premises without the prior written consent of
11
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LESSOR, which consent LESSOR may not unreasonably withhold. Consent by LESSOR to one
or more assignments or sublettings shall not operate as a waiver of LESSOR'S rights as to any
subsequent assignments and subletting. Notwithstandmg any assignment or subletting, LESSEE
and any guarantor of LESSEE'S obligations under the Lease shall at all times remain fully
responsible and liable for compliance with all of the obligations of LESSEE, including the
payment of rent.
16.2 In the event of the transfer and assignment by LESSOR of its interest in the
Lease and in the building containing the Demised Premises, LESSOR shall thereby be released
from any further obligations, and LESSEE agrees to look solely to such successor in interest for
performance of such obligations.
16.3 If LESSEE is a corporation, any transfer of this Lease from LESSEE by
merger, consolidation or liquidation, or any change in ownership or power to vote of a majority of
its outstanding voting stock from the owners of such stock or those controlling the power to vote of
such stock as of the date of the Lease, shall constitute an assignment for the purpose of the Lease.
17. DEFAULT AND REMEDIES
17.1 The occurrence of any one or more of the following events shall constitute a
material default and breach ofthe Lease by LESSEE:
17. t .1 The vacating or abandonment of the Demised Premises.
17.1.2 The failure by LESSEE to make payment of rent or any other
payment required to be made by LESSEE hereunder, as and when due, where such failure shall
continue for a period of three (3) days after written notice thereof from LESSOR to LESSEE.
17.1.3 The failure by LESSEE to observe or perform any of the covenants,
conditions or provisions to be observed or performed by LESSEE, other than described in
Paragraphs 17.1.1 and 17.1.2 above, where such f dlure shall oontimue for a period of ten (10) days
after written notice thereof from LESSOR to LESSEE; provided, however, that if the nature of
LESSEE'S default is such that more than ten (10) days are reasonably required for its care,
LESSEE shall not be deemed to be in default if LESSEE commences such cure within said ten -day
period and thermfter diligently pursues such cure to completiom
17.1.4 If LESSEE or any guarantor should commence, in any court
pursuant to any statute either of the United States or of any State, an insolvency or bankruptcy
proceeding (including, without limitation, a proceeding for liquidation, reorganization or for
adjustment of debts of an individual with regular income), or if such a proceeding is commenced
against LESSEE or any said guarantor and either an order for relief is entered against such party or
such party fails to secure a discharge of the proceeding within thirty (3 0) days of the filing thereof;
or if LESSEE or any said guarantor becomes insolvent or is unable or admits in writing its inability
to pay its debts as they become due, or makes an assignment for the benefit of creditors or petitions
for or entree into an arrangement with its creditors or a custodian is appointed or takes possession
of LESSEE'S or any said guarantor's property, whether or not a judicial proceeding is instituted in
connection with such arrangement or in connection with the appointment of such custodian.
17.1.5 The discovery by LESSOR that any financial statement given to
LESSOR by LESSEE, any assignee of LESSEE, any subtenant of LESSEE, any successor in
interest of LESSEE or any guarantor of LESSEE'S obligations, and any of them, is materially
false.
17.2 In the event of any default or breach by LESSEE, LESSOR may after the
applicable cure period thereafter, and without limiting LESSOR in the exercise of any right or
remedy which LESSOR may have by reason of such default or breach:
17.2.1 Declare the entire rent for the balance of the Lease Tema, or any part
thereof, due and payable forthwith, and bring an action for the recovery thereof.
I
17.2.2 Terminate LESSEE'S right to possession of the Demised Premises
12
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by any lawful means and retake possession thereof for the account of LESSOR, in which event
LESSEE shall ;mme diatel surrender possession of the Demised Premises to LESSOR and all
further hablhty under the Lease on the part of LESSEE and LESSOR shall terminate.
Notwithstanding the foregoing, LESSEE shall be liable for and shall pay LESSOR the sum of all
rental and additional rent and other indebtedness accrued to the date of such termination plus, as
damages, an amount equal to the difference between (i) the total rental (Minimum Rent and
Percentage Rent, computed as stated herein) plus LESSEE'S Proportionate Share of Operating
Costs and Taxes for the remaining portion of the Lease Term (had such term not been terminated
by LESSOR prior to the date of expiration as provided herein), and (ii) the then present value of
the then fair rental value of the Deatised Premises for such period using such discount rates as
LESSOR should deem appropnate-
17.2.3 Maintain LESSEE'S right to possession, in which event the Lease
shall continue in effect whether or not LESSEE shall have abandoned the Demised Premises. In
such event, LESSOR shall be entitled to relet the Demised premises and to enforce all of
LESSOR'S rights and remedies under the Lease, inchuding the right to recover the rent as it
becomes due.
17.2.4 Pursue any other remedy now or hereafter available to LESSOR
under the laws and judicial decisions of the State of Florida
17.2.5 INTENTIONALLY OMITTED.
17.3 In the event of a proceeding involving LESSEE under the Bankruptcy
Code, 11 U.S.
C. §101 et seq., if the Lease should be assumed by LESSEE'S trustee in bankruptcy
(after he has cured all existing defaults, compenme d LESSOR for any toss resulting therefrom and
provided adequate assurance of future pwformannce), then the Lease may not be assigned by tic
trustee to a third panty, unless such party (a) exeeartes and delivers to LESSOR an agreement in
recordable form whereby such party assumes and agrees with LESSOR to discharge all obligations
of LESSEE under the Lease, (b) has a net worth and operating experience at least comparable to
that possessed by LESSEE and any guarantor hereof as of the time of execution of the Lease; and
(c) grants to LESSOR, to secure the performance of such party's obligations under the Lease, a
security interest in such parry's merchandise, imvectory, personal property, fixtures, ftunishings,
and accounts receivable (and in the proceeds of all of the foregoing) with respect to its operations
in the Demised Premises, and in connection therewith, such party shall execute such security
agreements, financing statements and other documents (the forms of which are to be prepared by
LESSOR) as are necessary to perfect such lien. If LESSOR should not be permitted to terminate
the Lease because of the provisions of the Bankruptcy Code, LESSEE as a debtor -in- possession or
any trustee for LESSEE agrees promptly, within no more than fifteen (15) days after request by
LESSOR to the Bankruptcy Court, to assume or reject the Lease, and LESSEE on behalf of itself
and any trustee agrees not to sea or request sty extension or adjournment of any application to
assume or reject the Lease by LESSOR with such Court.
17.4 If LESSOR should exercise any of its remedies hereunder, LESSEE shall be
liable for and shall pay to LESSOR, within teat (10) days after demand therefor, the costs of
removing and storing LESSEE'S or other occupant's property; the costs of repairing, altering,
remodeling or otherwise putting the Demised Premises into condition acceptable to a new tenant or
tenants; real estate commissions actually paid; that portion of the leasing commission paid by
LESSOR applicable to the unexpired term of the Lease, if applicable; and all reasonable expenses
incurred by LESSOR, including attorneys' fees.
17.5 If the Lease should be terminated, or the Lease Term should expire,
LESSOR shall have the immediate right thereafter to re -enter the Demised premises after 24bm
notice to LESSEE, and to remove all persons and property thtre:from. Such property may be
stored in a public warehouse or elsewhere at the cost of, and for the account of LESSEE, all
without service of notice or resort to legal process (all of which LESSEE expressly waives). In
such event, LESSOR shall not be deemed guilty of trespass or become liable for any loss or
damage which may be occasioned thereby.
17.6 The rights and remedies granted herein to LESSOR are distinct, separate
and cumulative remedies, and the exercise of any of them shall not be deemed to exclude
13
proper located therein, or damages by reason of any distress warrant, ' forcible detainer
procexdings, sequestration proceedings or other legal process.
17.9 LESSOR shall not be in default unless LESSOR fails to perform obligations
required of LESSOR with diligence, but in no event later than thirty (3o) days unless a potential
health code violation may occur, in which LESSOWs obligation to cure will be no later than
fifteen (15) days after written notice by LESSEE to LESSOR and to the holder of any first
mortgage covering the Demised Premises whose name and address shall have theretofore been
furnished to LESSEE m writing, specifying wherein LESSOR has failed to perform such
obligations; provided, however, that if the nature of LESSOR'S obligations is such that more than
thirty (30) days are required for performance, LESSOR shall not be in default if LESSOR
commences performance within such thirty -day period and thereafter diligently prosecutes the
same to completion.
17.10 LESSEE hereby acknowledges that late payment by LESSEE to LESSOR
of rent and other sums due hereunder will cause LESSOR to mean costs not contemplated by the
Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, bud
are not limited to, processing and accounting charges and late charges which may be imposed on
LESSOR by the terns of any mortgage covering the Demised premises, Accordingly, if any
installment of rent or any other sums due from LESSEE shall not be received by LESSOR or
LESSOR'S designee within three (3) days after such amount shall be due; LESSEE shall pay to
LESSOR a late charge equal to six (6 %) percent of such overdue amount. The parties hereby
agree that such late charge represents a fair and reasonable estimate of the costs LESSOR will
incur by reason of late payment by LESSEE. Acceptance of such late charge by LESSOR shall in
no event constitute a waiver of LESSEE'S default with respect to such overdue amount, nor
prevent LESSOR from exercising any of the other rights and remedies granted hereunder. In the
event any check tendered by LESSEE should not be honored for any reason, LESSEE shall pay to
LESSOR immediately on demand a service fee of fifty ($50.00) Dollars.
18. LESSOR'S LIEN TO SECURE THE PAYMENT OF ALL RENT AND OTHER
SUMS OF MONEY DUE AND TO BECOME DUE AND THE FAITHFUL PERFORMANCE
OF THE LEASE BY LESSEE, LESSEE HEREBY GRANTS TO LESSOR AN EXPRESS FIRST
AND PRIOR LIEN AND SECURITY RTMtEST ON ALL PROPERTY (INCLUDING
FDMMS, EQUIPMENT, CHATTELS AND MERCHANDISE) WHICH MAY BE PLACED
IN THE DEMISED PREMISES, AND ALSO UPON ALL PROCEEDS OF ANY INSURANCE
WHICH MAY ACCRUE TO LESSEE BY REASON OF DESTRUCTION OF OR DAMAGE
TO ANY SUCH PROPERTY_ SUCH PROPERTY SHALL NOT BE REMOVED
THEREFROM WITHOUT THE WRTTTF,N CONSENT OF LESSOR UNTIL ALL
ARREARAGES IN RENT AND OTHER SUMS OF MONEY THEN DUE TO LESSOR
14
AA0
LESSOR'S right to exercise any or all of the others. All charges payable by LESSEE under the
terms of the Lease shall be deemed rent for the purpose of LESSOR exercising its remedies.
17.7 No waiver of any covenant or condition or of the breach of any covenant or
condition of the Lease shall be taken to constitute a waiver of any subsequent breach of such
covenant or condition nor to justify or authorize the nonobservance on any other occasion of the
same or of any other covenant or condition hereof nor shall the acceptance of rent by LESSOR at
any time when LESSEE is in default under any covenant or condition hereof be construed as a
waiver of such default or of LESSOR'S right to terminate the Lease on account of such default,
nor shall any waiver or indulgence granted by LESSOR to LESSEE be taken as an estappel against
LESSOR, it being expressly understood that if at any time LESSEE should be in default in any of
its covenants or conditions hereunder, an acceptance by LESSOR of rent during the continuance of
such default or the failure on the part of LESSOR promptly to avail itself of such other rights or
remedies as LESSOR may have shall not be construed as a waiver of such default, but LESSOR
may at any time thereafter, if such default continues, terminate the Lease on account of such
default.
17.8 The parties hereby waive trial by jury in any proceeding brought by either
of the parties hereto against the other arising out of or in any way connected with the Lease, the
I
i
LESSOR'S ecerd3mg its right to reenter the Demised Premises and take possession of the
property located Win, or damages by reason of any du teeas wa MWa fDrdble detainer
proceedings, sequestration proceedings or other legal process.
17.9 LESSOR shall not be in default unless LESSOR fails to perform obligations
requirod of LESSOR with diligence, but in no event 100 than thirty (30) days unless a potential
heahh code violation may Occur, in which LESSOR's obligation to cure will be no later than
fifteen (15) days after written notice by LESSEE to LESSOR and to the holder of any first
mortgage covering the Demised Premises whose name and address shall have theretofore been
Amshed to LESSEE in writing, spemfying wherein LESSOR has failed to perform sock
obligations; provided, however, that if the nature of LESSOR'S obligations is such that more than
thirty (30) days are required for pftfomoance, LESSOR shall not be in default if LESSOR
commenees pe*nwnce within such thirty -day period and thereafter diligently prosecutes the
same to completion.
17.10 LESSEE hereby ad owledges that late payment by LESSEE to LESSOR
of rent and other sums due hereunder will cause LESSOR to incur costs not coatemoaoled by the
Lease, the exact amount of which will be ammmely difficult to ascertmin. Such costs inedude, but
are not limited to, processing and accounting dtarges and late charges which may be imposed on
LESSOR by the terms of any mortgage oavu* the Demised Premises. Accordingly, if any
installment of rem or any other sum due from LESSEE shall not be received by LESSOR or
LESSOR'S designee within 8ssee (3) days after such mom shall be due, LESSEE sbatl pay to
LESSOR a late charge equal to Six (6%) patent of such overdue amount The parties hereby
agree that such late charge represents a for and reasonable estimate of the costs LESSOR will
incur by reason of late payment by LESSEE. Acceptance of such late charge by LESSOR shall in
no event constitute a waiver of LESSEE'S default with rcgxd to such overdue amount, nor
prevent LESSOR from exercising any of the other rights and remedies granted hereunder. In the
event any check tendered by LESSEE should not be honored for any reason, LESSEE shall. pay to
LESSOR immediately on demand a service fee of My (550.00) Dollars.
18. XMSOR'S LIEN TO SECURE THE PAYMENT OF ALL RENT AND OTHER
SUMS OF MONEY DUE AND TO BECOME DUE AND THE FArrfln L PERFORMANCE
OF THE LEASE BY LESSEE, LESSEE HEREBY GRANTS TO LESSOR AN DRESS FIRST
AND PRIOR LIEN AND SECURITY INTEREST ON ALL PROPERTY (INCLUDING
FIXTURES, EQUIPMENT, CHATTELS AND MERCHANDISE) WHICH MAY BE PLACED
IN THE DEMISED PRW ffSES, AND ALSO UPON ALL PROCEEDS OF ANY INSURANCE
WHICH MAY ACCRUE TO LESSEE BY REASON OF DESTRUCTION OF OR DAMAGE
TO ANY SUCH PROPERTY_ SUCH PROPERTY SHALL NOT BE REMOVED
THEREFROM WITHOUT THE WRITTEN CONSENT OF LESSOR UNTIL ALL
ARREARAGES IN RENT AND OTHER SUMS OF MONEY THEN DUE TO LESSOR
14
/U4u�1
II
HEREUNDER SHALL FIRST HAVE BEEN PAID. THIS LIEN AND SECURITY INTEREST
IS GIVEN IN ADDITION TO THE LESSOR'S STATUTORY LIEN AND SHALL BE
CUMULATIVE THERETO. CONCURRENTLY WITH THE EXECUTION OF THE LEASE
(OR LATER IF REQUESTED BY LESSOR AT ITS DISCRETION), LESSEE SHALL
EXECUTE AND DELIVER TO LESSOR UNIFORM COMMERCIAL CODE FINANCING
STATEMENTS IN SUFFICIENT FORM SO THAT WHEN PROPERLY FILED, THE
SECURITY INTEREST HEREBY GIVEN SHALL BE PERFECTED. THE LIEN AND
SECURITY INTEREST CREATED HEREBY SHALL BE TERMINATED WHEN ALL OF
THE RENT AND OTHER SUMS OF MONEY BECOMING DUE DURING THE LEASE
TERM SHALL HAVE BEEN PAID IN FULL.
19. SUBORDINATION AND ATTO WMFNT
19.1 The Lease is subordinate to any ground lease, mortgage or any other
hypothecation for security now or hereafter placed upon the real property of which the Demised
Premises are a part and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause and the
subordination set forth herein are self operative, and no further instrument of subordination shall be
required for any purpose. If any mortgagee or ground lessor should elect to have the Lease prior to
the lien of its mortgage or ground lease, and should give written notice thereof to LESSEE, the
Lease shall be deemed prior to such mortgage or ground lease, whether the Tease is dated prior or
subsequent to the date of said mortgage or ground lease.
192 LESSEE agrees to execute any documents required to evidence such
subordination or to make the Lease prior to the lien of any mortgage or ground lease, as the case
may be, and failing to do so within ten (10) days afact written demand, does hereby make,
constitute and irrevocably appoint LESSOR as LESSEE'S attorney in fact and in LESSEE'S
name, place and stead, to do so.
19.3 Upon request of LESSOR, LESSEE shall, in the event any proceedings are
brought for the foreclosure of; or in the event of exercise of the power of sale under any mortgage
made by LESSOR covering the Demised Premises, attom to the purchaser upon any such
foreclosure or sale and recognize such purchaser as LESSOR under the Lease.
19.4 If, in connection with obta financing for the real property of which the
Demised Premises are a part, a banking, insurance or other recognized institutional lender should
request reasonable modifications in the Lease as a condition to such financing, LESSEE will not
unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not
increase the obligations of LESSEE hereunder, or adversely affect the leasehold interest hereby
created or LESSEE'S use and enjoyment of the Demised Premises.
20. TENANT ESTOPPEL CERTIFICATE
20.1 LESSEE shall at any time upon not less than ten (10) days' prior written
notice from LESSOR execute, acknowledge and deliver to LESSOR a statement in writing: (i)
certifying that the Lease is unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that the Lease, as so modified is in full force and effect)
and the date to which the vent and other charges are paid in advance, if any; (ii) acknowledging that
them are not, to LESSEE'S knowledge, any uncured defaults on the part of LESSOR, or specifying
such defaults if any are claimed; and (iii) otherwise be in a form reasonably acceptable to
LESSOR Any such statement may be conclusively relied upon by any prospective purchaser or
misting or prospective encumbrancer of the Demised Premises.
20.2 At LESSOR'S option, LESSEE'S failure to deliver such statement within
such time shall be a material breach of the Lease or, at LESSOR'S option, shall be conclusive upon
LESSEE that (i) the Lease is in full force and effect, without modification except as may be
represented by LESSOR, (ii) there are no uncured defaults in LESSOR'S performance and (iii) not
more than one (1) month's rent has been paid in advance.
20.3 If LESSOR desires to finance, refinance or sell the Demised Premises, or
any part thereof; LESSEE hereby agrees to deliver to any lender or purchaser designated by
15
LESSOR such financial statements of LESSEE as may be reasonably required by such lender or
purchaser_ All such financial statements shall be received by LESSOR and such lender or
purchaser in confidence and shall be used only for the purposes herein set forth.
21. MERCHANTS' ASSOCIATION AND PUBLICITY
21.I LESSEE shall become a member of any merchants' association formed by
LESSOR (or by the tenants of the Shopping Center with the approval of LESSOR), and shall
actively participate, maintain current membership, pay such dues and assessments as may be fixed
and determined from time to time by the merchants association and, further, shall comply with
such group advertising, reasonable bylaws, rules and regulations as may be adapted from time to
time by the merchants' association. In lieu of the foregoing, LESSOR may elect at any time during
the term of the Lease to provide or cause to be provided a program of advertising and promotional
events in order to assist the business of the tenants in the Shopping Center and which, in
LESSOR'S sole judgment, will serve to promote the Shopping Center. LESSEE shall contribute to
the cost of such program its Proportionate Share thereof periodically and within ten (10) days after
a request therefor from LESSOR, and such contributions shall be maintained by LESSOR as a
"marketing fund" The marketing fund shall be used by LESSOR to pay all costs and expenses
associated with the formation and carrying out of an ongoing program for the promotion and
advertising of the Shopping Center, which program may include, without limitation, special events,
shows, displays, signs, decor, seasonal events, institutional advertising for the Shopping Center,
promotional and advertising literature and other activities designed to attract customers to the
Shopping Center. In addition, LESSOR may use the marketing fund to defray the costs of
administration of the marketing fund, including (without limitation) the salary of a marketing
director and related administrative personnel, rent and insurance_ Upon reasonable notice,
LESSOR shall make available for LESSEE'S inspection, during normal business hours at
LESSOR'S office, LESSOR'S records relating to the contributions to and disbursements from the
marketing fund.
21.2 LESSEE agrees to include the name of the Shopping Center in any medium
of advertising or publicity that the Tenant shall utilize in the promotion of its business.
22. NOTICES
22.1 Any notice request, demand, approval, consent or other communication
which LESSOR or LESSEE may be required or permitted to give to the other party shall be in
writing and shall be mailed by certified mail, return receipt requested, or by facsimile at the
address specified in the Lease, or to such other address as either party shall have designated by
written notice to the other. Notwithstanding the foregoing. LESSOR may give notice to LESSEE
by personal delivery to the Demised Premises. Notice shall be deemed given three (3) days after
same shall have been deposited in an official United States Post Office, postage prepaid, or when
hand - delivered, as the case may be.
222 If the holder of record of a mortgage or a ground lessor covering the
Demised Premises should have given prior notice to LESSEE that it is the holder of such mortgage
or is a ground lessor and such notice includes the address to which notices are to be sent, LESSEE
shall give to said party notice simultaneously with any notice given to LESSOR to correct any
alleged default of LESSOR hereunder. Said party shall have the right, within thirty (30) days after
receipt of said notice, to correct or remedy such default before LESSEE may take any action under
the Lease by reason of such default, provided, however, LESSEE may take no action under the
Lease by reason of such default if such party shall have commenced, during said thirty -day period,
to remedy the alleged default and continues thereafter to use its diligence to remedy the alleged
default. Any notice of default given to LESSOR shall be null and void unless simultaneous notice
has been given to said mortgagee or ground lessor.
23. SURRENDER Upon the expiration or termination of the Lease, LESSEE shall
deliver and surrender to LESSOR the Demised Premises in a safe condition and reasonably good
order and repair, and shall deliver all keys and oombinations to locks, safes and vaults to LESSOR-
Before surrendering the Demised Premises, LESSEE shall remove all its unattached personal
property, including trade fixtures, alterations, additions and decorations, and shall repair any
damage caused thereby. All floor coverings, window, wall and ceiling treatments shall not be
16
M(A)
removed from the Demised Premises. If LESSEE should fail to restore the Demised Premises as
aforesaid or if LESSEE should fail to repair any damage caused by the removal of LESSEE'S
property from the Demised Premises, LESSOR may restore the Demised Premises, and all such
costs incurred thereby shall be an expense of LESSEE. LESSEE'S obligation to perform this
provision shall survive the end of the Lease Term. If LESSEE should fail to remove its property
upon the expiration of the Lease, said property shall be deemed abandoned and shall become the
property of LESSOR.
24. HOLDING OVER If LESSEE should refuse to give up possession of all or ray
part of the Demised Premises after the expiration or termination of the Lease Term, LESSOR, its
agent, attorney or Iegal representative, may demand 200% of the current monthly rent, and may
recover the same as provided by law at the expiration of every month, or in the same proportion for
a longer or shorter time.
25. BROKER'S FEE LESSOR and LESSEE each warrant to the other that no real
estate broker or agent has been used or consulted in connection with the lease of the Demised
Premises. Each covenants and agrees to defend, indemnify and save the other harmless from and
against any actions, damages, real estate commissions, fees, costs and/or expenses (including
reasonable attorneys' fees), resulting or arising from any commissions, fees, costs and/or expenses
due to any real estate broker or agent because of the lease of the Demised Premises and the
execution and delivery of the Lease, due to the acts of the indemnifying party.
26. LESSOR'S RIGHT'S
26.1 If LESSEE should fail to perform any maintenance or repairs required of it
hereunder, including, without limitation, the maintenance of its signs, within ten (10) days after
written notice delivered to it by LESSOR (or within such shorter period as LESSOR should require
in the event of an emergency, with or without notice), LESSOR may, at its option, make such
repairs without liability to LESSEE for any loss or damage which may result to its stock or
business by reason of such repairs, and LESSEE shall pay to LESSOR within ten (10) days after
demand the cost of such repairs plus ten (I(Ma) percent of the amount thereof (for LESSOR'S
service and overhead costs).
262 LESSOR and LESSOR'S agents shall have the right to enter upon the
Demised Premises at reasonable times for the purposes of inspecting same, showing the same to
prospective purchasers. lenders, or lessees, and making such alterations, repairs, improvements or
additions to the Demised Premises or to the building of which they are a part as LESSOR may
deem accessary and desirable. LESSOR may at any time place on or about the Demised Premises
any ordinary "For Sale" signs and LESSOR may at any time during the last one hundred twenty
(120) days of the Lease Term place on or about the Demised Premises any ordinary "For Lease"
signs, all without rebate of rent or liability to LESSEE.
27, NON - COMPETITION LESSEE acknowledges that LESSOR'S obtaining a fair
and equitable rental is dependent upon LESSEE concentrating all of its business efforts within the
geographical area in which the Shopping Center is located upon LESSEE'S business at the
Demised Premises so as to maximize LESSEE'S Adjusted Gross Sales, and LESSEE further
acknowledges that any activity by LESSEE within the geographical area of the Shopping Center in
operating or participating in the operation of a similar or competing business must necessarily have
an adverse effect on the volume of Adjusted Gross Sales by LESSEE at the Demised Premises to
the detriment of LESSOR and will deprive LESSOR of a fair rental. Therefore, in the event that
LESSEE (and if LESSEE is a corporation, any officer, director, principal shareholder, parent,
subsidiary or affiliated company of LESSEE or, if LESSEE is a partnership, any general or limited
partner of LESSEE) shall at any time during the term hereof acquire, own, operate or have any
interest in, directly or indirectly, within a radius of five (5) miles from any outside boundary of the
Shopping Center, any additional stores, including a department or concession in smother store,
conducting any business which is similar to or competing with the business to be conducted by
LESSEE in the Demised Premises (except those businesses owned or operated as of the date of the
Lease), then, in such event, the gross sales of any such business within the restricted radius shall be.
included in the Adjusted Gross Sales for the Demised Premises and the Percentage Rent provided
for in Section 2.2 hereof shall be computed upon the aggregate of the Adjusted Gross Sales for the
Demised Premises and the gross sales for such other business.
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28. RELOCATION LESSOR reserves the option, in its sole discretion, to relocate
LESSEE to other premises in the Shopping Center upon no less than thirty (30) days' written
notice. Such new premises shall be of similar size and shall be improved in a similar manner as the
premises originally let to LESSEE. LESSEE'S refusal to accept such new premises shall constitute
a material default under the Lease and shall entitle LESSOR, in its sole discretion, to terminate the
Lease, upon no less than sixty (60) days' written notice, in which event LESSEE shall be deemed
to have waived any action against LESSOR for any damages in any way connected with such
termination and LESSEE shall proceed to wind up its business in the Shopping Center.
29. PROPORTIONATE SHARE The Proportionate Share is a fraction, the numerator
of which is the number of square feet in the Demised Premises and the denominator of which is the
number of square feet in the Shopping Center. The Proportionate Share shall be increased or
decreased from time to time as the square feet in the Demised Premises and/or the Shopping
Center are increased or decreased. The Proportionate Share, Operating Costs and real property
taxes shall similarly be increased or decreased from time to time as the size of the Demised
Premises and/or the Shopping Center are increased or decreased.
30. GENERAL PROVISIONS
30.1 LESSEE shall not record the Lease without LESSOR'S prior written
consent, and any such recordation shall, at the option of LESSOR, constitute a non - curable default
of LESSEE; provided, however, LESSEE shall, within ten (10) days after request by LESSOR
execute and deliver to LESSOR a memorandum of the Lease for the purpose of recordation in a
form prescribed by LESSOR.
30.2 Nothing herein contained shall be deemed or construed by the parties
hereto, nor by any third party, as creating a relationship of principal and agent or of partnership or
of joint venture between the parties hereof Neither the method of computation of rent, not any
other provisions contained herein, nor any acts of the parties hereto, shall be deemed to create any
relationship between the parties hereto other that the relationship of lessor and lessee.
30.3 The invalidity of any provision of the Lease as determined by a court of
competent Jurisdiction shall in noway affect the validity of any other provision hereof LESSOR
and LESSEE acknowledge that they were represented by counsel in connection with the Lease and
that each of them or their respective counsel reviewed and revised the Lease and that any rule of
construction to the effect that ambiguities are to be resolved against the drafting party or LESSOR
shall not be employed in the interpretation of the Lease.
30.4 Time is of the essence.
30.5 The captions used herein are for convenience only and do not limit or
amplify the provisions hereof.
30.6 Whenever a period of time is prescribed for action to be taken by LESSOR,
LESSOR shall not be liable or responsible for and there shall be excluded from the computation of
any such period of time, any delays due to strikes, riots, acts of god, shortages of labor or materials,
war, governmental laws, regulations or restrictions or any other causes of any land whatsoever
which are beyond the reasonable and unforseen control of LESSOR,
30.7 Upon LESSEE paying the rent reserved hereunder and observing and
performing all the covenants, conditions and provisions on LESSEE'S part to be observed and
performed hereunder, LESSEE shall have quiet possession of the Demised Premises for the entire
Lease Term, subject to all the provisions of the Lease.
30.8 Each provision performable by LESSEE shall be deemed both a covenant
and a condition. The Lease contains all agreements of the parties with respect to any matter
mentioned herein_ No prior agreement or understanding pertaining to any such matter shall be
effective. The Lease may be modified in writing only, signed by the parties in interest at the time
of modification.
30.9 Subject to the provisions hereof restricting assignment or subletting by
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LESSEE and regarding LESSOR'S liability, this Lease shall bind the parties, their personal
representatives, successors and assigns. The Lease shall be governed by the laws of the State of
Florida
30.10 In computing the square footage of the Demised Premises and all premises
m the Shopping Center, LESSOR includes a propordonate factor of all meter rooms and other
utility closets as may be required and interior corridors to which LESSEE has access. All
dimensions are measured from the center line of interior walls and from the exterior face of
exterior walls.
30.11 the terms "LESSOR" and "LESSEE", as used herein, denote both singular
and plural and all genders. Where "LESSEE" consists of more than one person, whether natural or
artificial, all the persons constituting "LESSEE" shall be jointly and severally liable for all
obligations to be performed by LESSEE herein_ If LESSEE is a corporation or other entity,
LESSEE shall f nnish to LESSOR such evidence as LESSOR may reasonably require in order to
evidence the authority of LESSEE to execute and deliver the Lease and to perform its obligations
hereunder.
30.12 The Effective Date of the Lease shall be the date last executed by the parties
without amendment or deletion to the Lease and its Exlnbits.
30.13 All terms, covenants and conditions herein contained, to be performed by
LESSEE, shall be performed at its sole cost and expense, and if LESSOR shall pay any sum of
money or do any act which requires the paymeat of money, by reason of the failure, neglect or
refusal of LESSEE to perform such ternr, covenant or condition, the sum of money so paid by
LESSOR shall be deemed additional rent and shall be payable by LESSEE to LESSOR within ten
(10) days after demand therefor_
30.14 Any amount due to LESSOR not paid when due shall bear interest at one
percent (1.5%) monthly rate accruing fiiom the date due.
30.15 Provisions herein to the contrary notwithstanding, contribution or
negligence there shall be absolutely no personal liability on the part of LESSOR, its directors,
officers or shareholders, or any of its partners, their directors, officers or shareholders, with respect
to any of the terms, conditions and covenants of the Lease, and LESSEE shall look solely to the
interest of LESSOR in the Shopping Center for the satisfaction of each and every remedy of
LESSEE.
30.16 The submission of the Lease for examination by LESSEE does not
constitute an offer or an option to lease the Demised Premises, nor is it intended as a reservation of
the Demised Premises for the benefit of LESSEE, nor shall the Lease have any force or validity
until and unless a copy of it is returned to LESSEE duly executed by LESSOR.
30.17 "RADON GAS". Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
30.18 All obligations of LESSEE to pay rent or to perform any act after the
termination of the Lease shall survive such termination.
19
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EXHOBTT "C"
LESSOR'S WORK AND LESSEE'S 'WORK
Notwithstanding the terms of the Lease and Standard Provisions to the contrary,
LESSOR and LESSEE agree as follows:
1. Lessor shall deliver the Premises in "as is" condition, however existing A/C and
bathrooms shall be in working order. In addition, all interior offices/walls shall
be demolished, existing ceiling grid and tiles removed. All demolition shall be
agreed upon by both LESSOR and LESSEE prior to commencement of work.
2. LESSEE shall be responsible to complete Tenant finishes so it may open for
business. In addition to all finishes, LESSEE may construct an outdoor deck
seating area. This deck shall be located in an area mutually agreed upon by
LESSOR and LESSEE and approved by all local governmental agencies.
21
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EXElIBIT "D"
LEASE GUARANTY
['TATS IS A GENERAL GUARANTY WHICH IS ENFORCEABLE BY LANDLORD NAMED
HEREIN, ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PERSON OR ENTITY AT
ANY TIME HAVING THE RIGHTS OF LANDLORD UNDER THE LEASE DESCRIBED
BELOW, AND IS ALSO AN ABSOLUTE AND UNCONDITIONAL GUARANTY.]
THIS GUARANTY AGREEMENT IS FOR THAT CERTAIN LEASE DATED r 1-12S 1 "4t
(the "Lease "), BETWEEN TEQUESTA INVESTORS LP, AS LANDLORD, AND
AS TENANT, COVERING SUITE # 287 IN TEQUESTA VILLAGE SQUARE,
TEQUESTA, FLORIDA.
In consideration of the execution of the Lease by Landlord, the undersigned
( "Guarantor") hereby unconditionally guarantees to Landlord the full and timely performance by
Tenant of all terms and conditions of the Lease, including but not limited to the payment of the
rent and all other sums payable by Tenant Guarantor acknowledges that it has a financial
interest in Tenant and will benefit from Landlord entering into the Lease with Tenant, and that
this Guaranty Agreement is a material inducement for Landlord to enter into the Lease.
Guarantor agrees that (l) this obligation shall be enforceable against Guarantor without
the necessity for any suit or proceedings against Tenant and without the necessity of any notice
of nonpayment, nonperformance or nonobservance or any notice of acceptance of this Guaranty
Agreement or of any other notice or demand to which Guarantor might otherwise be entitled by
reason of being a guarantor, all of which are eacpressly waived; (2) immediately upon each and
every Lease breach or dehWt by Tenant, whether before or during the term of the Lease or
thereafter (e.g., in any holdover period), without any notice to or demand on Guarantor,
Guarantor will (i) pay to Landlord the sum or sums in arrears, (ii) pay to Landlord all damages,
including but not limited to any expenses, costs and fees incurred by Landlord, that may be
occasioned by Tenant's nonperformance, and (m) comply with or perform all terms and
conditions of the Lease, (3) no extension, forbearance or leniency extended by Landlord to
Tenant shall wholly or partially discharge Guarantor hereunder, notwithstanding that Guarantor
had no notice of any Lease breach or default or of any such leniency, forbearance or extension,
(4) Landlord and Tenant, without notice to or consent by Guarantor, may at any time(s) enter
into modifications, renewals, extensions, amendments and/or other agreements respecting the
Lease, and Guarantor shall not be wholly or partially released thereby, it being intended that
Guarantor shall continue as guarantor with respect to the Lease as so modified, renewed,
extended, amended or otherwise affected and notwithstanding any assignment of the Lease or
subletting in whole or in part of the premises demised by the Lease nor any holding over by
Tenant beyond the term of the Lease.
The obligations of Guarantor herein shall be co- extensive with those of Tenant under the
Lease and shall remain in effect as long as Tenant's obligations under the Lease are in effect.
This Guaranty Agreement is continu mg, absolute and unconditional and shall continue without
being affected by any impairment, release or limitation of the liability of Tenant or its estate in
bankruptcy resulting from the operation of any present or future provision of the Bankruptcy
Code of the United States or from the decision of any court interpreting the same. Guarantor
further agrees to be bound by each and every obligation of Tenant under the Lease, with the
same force and effect as if Guarantor were designated in and had executed the Lease as Tenant
thereunder.
This Guaranty Agreement is a primary guaranty of payment and performance and shall
not be subject to any counterclaim, set -off, deduction or defense. No failure or delay on the part
of Landlord in exercising any right or remedy under the Lease and/or this Guaranty Agreement
shall operate as a waiver thereof nor shall a single or partial exercise of any right or remedy
preclude any other or further exercise thereof, and all rights and remedies of Landlord hereunder
and under the Lease shall be cumulative. Until all of Tenant's obligations under the Lease are
fully performed, Guarantor waives any rights that it may have against Tenant by reason of
Guarantor's compliance with this Guaranty Agreement, and subordinates any liability or
indebtedness of Tenant held by Guarantor to the obligations of Tenant to Landlord under the
Lease.
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If Guarantor consists of more than one person and/or entity, (a) this Guaranty Agreement
shall be binding on all of them jointly and severally, and (b) notice to or from any of them will
constitute notice to or from each of them.
To be effective, any notice or other communication to Guarantor must be sent by
registered or certified mail, return receipt requested, and shall be addressed to 261 U.S. Highway
One, Tequesta, Florida 33464, or such other address as may be designated by Guarantor to
Landlord by registered or certified mail, return receipt requested, and the time of rendition of
such notice or other communication shall be 3 business days after it is deposited in an official
United States Mail receptacle, postage prepaid.
To be effective, any notice or other communication to Landlord must be sent by
registered or certified mail, return receipt requested, and shall be addressed c% Merin Hunter
Codman, Inc., 1601 Forum Place, Suite 200, West Palm Beach, Florida 33401, or such other
address as may be designated by Landlord to Guarantor by registered or certified mail, return
receipt requested, and the time of rendition of such notice or other communication shall be 3
business days after it is deposited in an official United States Mail receptacle, postage prepaid.
This Guaranty Agreement, which is to be governed by and construed in accordance with
the laws of the state in which the leased premises are located (the "Subject State "), shall also
bind Guarantor's legal or personal representatives, heirs, successors and assigns (as the case may
be) and inure to the benefit of Landlord's successors and assigns and any other person or entity at
any time having the rights of Landlord under the Lease.
Guarantor will forthwith pay to Landlord all attorneys' fees and disbursements incurred
by Landlord in connection with any breach or default by Tenant under the Lease and/or the
enforcement of this Guaranty Agreement, in each instance whether or not suit is brought (and if
suit is brought, through appeals and collection efforts).
Any stuns not paid to Landlord when due hereunder will bear interest at the rate of 15%
per annum from the due date until fill payment is received by Landlord.
As a further inducement to Landlord to make and enter into the Lease and in
consideration thereof, Guarantor agrees that in any action or proceeding brought on, under or by
virtue by this Guaranty Agreement, Guarantor shall and does hereby waive trial by jury and the
benefit of any statute of limitations defense, and Guaraator agrees that the applicable courts of
the Subject State may have jurisdiction over Guarantor upon appropriate service on Guarantor
anywhere in the United States in a matmer in accordance with the laws of the Subject State.
Without limiting the foregoing, Guarantor hereby irrevocably appoints Tenant as Guarantor's
agent for service of process related to this Guaranty Agreement.
This Guaranty Agreement contains the entire agreement between the parties with respect
to the matters covered hereby (all prior written and oral agreements between them regarding such
matters being superseded hereby), and Guarantor acknowledges that no agent, representative,
salesman or officer of Landlord or its property manager has authority to make or has made any
statement, agreement or representation, either oral or written, in connection herewith, modifying,
adding to or changing the terms and conditions herein set forth. No customs or dealings between
the parties shall be permitted to contradict or modify the terms hereof. This Guaranty Agreement
shall not be construed more strictly against one party merely by reason of such party's
preparation hereof. If any provision of this Guaranty Agreement shall be held by a court to be
invalid or unenforceable, to the maximum extent possible the remaining provisions hereof shall
in no way be affected or impaired and such remaining provisions shall continue in full force and
effect- Neither this Guaranty Agreement nor any of its provisions can be waived, modified or
terminated orally, but only by a written instrument duly executed by or on behalf of the party
against whom enforcement of any waiver, modification or termination is sought. Guarantor fully
and expressly intends that the foregoing requirements as to a writing be strictly adhered to and
strictly interpreted and enforced by any court which may be asked to consider the matter.
Notwithstanding the above, Lessor agrees that this guaranty shall not be recorded in the public
records.
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GUARANTOR:
Individually
[AA y.., e (mow,
Date of Birds:
Social Secvriv No.:
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledge before me this - 3 ,4 ` of
.� 2009, by /t/jA �iciy P (A/ : each is personally
known to me or has produced a Florida driver' as identification
Sign:
Print
Title: N blic
My Commission Expires: q' Z � /� o II
[Notarial Seal]
S kq'T
N
24
EXHIBIT "E"
ADDENDUM
THIS ADDENDUM to that Shopping Center Lease between TEQUESTA INVESTORS,
LP, a Florida limited partnership ("Lessor-) and TESQUESTA BREWING, LLC, a Florida
limited liability company ( Lessee � located at Tequesta Village Square (the " Premises). To the
extent the temis of this Addendum conflict with those contained in the Lease, the terms of this
Addendum shall control. The terms of the Lease which are not modified by the terms of this
Addendum shall remain the same and in effect.
I• Base Rent:
Months 1 -9 Zero Base Rent and zero additional rent
Months 10 -24 $12.00 psf plus full pro -rated additional rent
Months 25-48 $12.72 psf plus full pro-rated additional rent
Months 49-69 $13.48 psf plus fu11 pro- -rated additional rent
Rent Comment: ,base rent and fu11 prorated additional rent shall begin the earlier of tenaw
oPeratiog for business or on the fast day of the I& month alter delivery ofpremises from
Lessor.
2. The Shopping Center Lease is expressly contingent upon Lessee obtaining necessary
approvals from the Village of Tequesta, State of Florida Division of Alcohol, Tobacco
and Firearms, and any other applicable governmental agency for its intended occupancy
and operation of the Premises.
3. In addition to those permitted uses of the Premises as set forth in the Shopping Center
Lease, Landlord acknowledges that Lessee may choose to also include retail sales of beer
to customers.
4. Section 5, TAXES. is clarified at subsection 5.1.I to provide that the Tax Escrow
Payment is part of the Two Thousand One Hundred Fifty -Seven and 501100 Dollar
($2,250.87) pass - through cost titled "Operating Cost, Tax, and Insurance Escrow
Payment" set forth on the one page summary of the Shopping Center Lease.
5. Section 7, PERMITTED USE, is amended at subsection 722 to provide that Lessee's
brewery operating hours will be 24 hours/seven (7) days per week, and the remaining
portion of the Premises open to the public from 11:00 A.M. to 11:00 P.M. daily. Lessee
may, at Lessee's option, modify these hours during the summer season and be open six
(6) or seven (7) days per week.
6. Section 8, MAIlVTFIrIANCE AND REPAIR is clarified to provide that while Lessee
shall be responsible for maintaining an active service contract for the HVAC system for
the Premises, in the event the HVAC system roust be replaced, Lessor shall pay the cost
of replacement and shall continue to own the HVAC system.
7. Section 12, UTILITIES is amended at subsection 12.2 and 12.3 to provide that such
actions by Lessor shall not interrupt or haterfer with Lessee's ability to operate Lessee's
brewery facility, nor shall any energy consumption or energy efficiency modifications.
8. Section 13, INSURANCE AND INDEMNITY is amended to provide that both Lessor
and Lessee mutually waive subrogation of claims.
9. Section 16, ASSIGNMENT AND SUBLETTIN * is amended to provide that Lessor's
consent to same shall not be unreasonably withheld, and in the event of Lessee's sale or
merger of Lessee's business on Premises to a third party, Guarantor shall be released
from the Guaranty based upon a reasonably acceptable substitute Guarantor.
10. Section LESSOR'S LlE_ is amended to acknowledge that certain fixtures and
equipment located placed in the Premises by Lessee shall be subject to a first lien of
25
security interest superior to that of Lessor, i.e. brewery facility equipment.
11. Section 21, MERCHANTS ASSOCIATION AND PUB ICU is hereby deleted
12. Section 28, RELOCATION is hereby deleted.
13. Section 30, GENERAL PROVISIONS is amended at subsection 30.8 to provide that the
terms thereof shall be mutual.
14. Except as expressly amended hereby, all terms of the Lease shall remain in full force and
effect.
15. Bathroom Reimbursement: Lessor agrees to reimburse Lessee a sum of $2000 towards
the cost of renovating an existing bathroom. This sum will be paid upon Lessee opening for
business and submitting final release of liens to the Lessor.
LESSOR:
TEQUESTA INVESTORS, LP, a Florida limited
P �ership �
By:
RICHARD ERE BERG
Manager of South Point Associates, LLC
Dated:
07" Part�er�pr Teguesta Investors, LP
+ n d G �y
LESSEE:
TEQUESTA BREWING, LLC, a Florida limited
liability company
By: G-�-
MATT WEBSTER
Its: Manager
Dated:
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EXHIBIT `°F"
OPTION TO RENEW
Addendum to and forming a part of lease dated t 2 3 20 O j ibetween Teauesta Investors,
LP (Landlord) and l!,,..
OP TO RENEW
Provided that Tenant has been in good standing and has not been in default of any of the terms or
conditions of dais lease during the initial or subsequent terms of this lease, then the Tenant shall
have the option to be exercised by written notice to landlord at least six (6) months prior to the
expiration of the original or subsequent terms of this lease to renew this lease for two (2)
additional five (5) year term(s) upon all the teams and conditions provided in the original lease.
Notwithstanding the foregoing, however, the initial monthly rent payable during the option
period(s) shall be at four percent (4 0 /6) increase every twenty-four (24) months.
There shall be no further right of renewal,
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