Exhibit 10.8
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is entered into on this 9th day of
July, 1996, by and between Joe P. Ruthven Investments (the "Lessor"), whose
address is P.O. Box 2187, Lakeland, Florida 33806-2187, and Earth and Ocean
Sports, Inc. (the "Lessee"), whose address is 70 Airport Road, Hyannis,
Massachusetts 02601.
In consideration of the rents herein reserved and of the covenants,
agreements, and conditions herein contained to be kept and performed by the
parties hereto, Lessor and Lessee agree as follows:
1. Lease and Description of Premises. Lessor hereby leases to Lessee,
and Lessee hereby leases from Lessor, for the term, at the rental, and upon all
of the conditions set forth herein the premises known as 3010 Reynolds Road,
Unit(s) 1-3, Lakeland, Florida, containing approximately 12,242 square feet of
warehouse space and 1383 square feet of office space (the "Premises").
2. Term. The term of this Lease shall be for Three (3) years,
commencing on August 1, 1996, and ending at midnight on July 31, 1999, (the
"lease Term"), unless sooner terminated pursuant to any provisions hereof.
Occupancy may commence on July 13, 1996, and the effective date of this Lease
for the accrual and payment of rent is September 15, 1996.
3. Rental. Lessee hereby covenants and agrees to pay Lessor as rental
for the demised Premises the following amounts, plus Florida sales tax:
MONTHLY ANNUAL SALES
TERM RENT + SALES TAX* = TOTAL RENT + TAX* = TOTAL
- ---- --------- --------- ----- ---- ---- -----
9/15/96-9/30/96 $2187.50 $131.25 $2318.75
10/1/96-7/31/99 $4375.00 $262.50 $4,637.50
per month
*Sales tax subject to change.
Receipt is hereby acknowledged of the payment of Six Thousand Five Hundred Sixty
Two Dollars and 50/100 Dollars ($6,562.50), representing the first and last
month's rent, plus Florida sales tax in the amount of Three Hundred Ninety Three
Dollars and 75/100 cents Dollars ($393.75) for a total of Six Thousand Nine
Hundred Fifty Six Dollars and 25/100 Dollars ($6,956.25), paid in advance.
4. Option to Renew. Lessor grants to Lessee, subject to the conditions
set forth below, the right and option to renew this Lease for the time and at
the monthly and annual rents as follows:
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MONTHLY ANNUAL SALES
TERM RENT + SALES TAX* = TOTAL RENT + TAX* = TOTAL
- ---- --------- --------- ----- ---- ---- -----
8/1/99-7/31/2000 $4,593.75 + $275.63 = $4,869.38
8/1/2000-7/31/2001 $4,823.44 + $289.41 = $5,112.84
This is one two year option.
SEE TAB A
* Sales Tax Subject to Change
If Lessee exercises this option, Lessee shall continue to maintain a
total of one month's rent, plus Florida sales tax, as a deposit.
Except as provided above, and otherwise subject to and on all of the
terms and conditions herein contained, all other terms and conditions of this
Lease are to be and remain in full force and effect. This option must be
exercised by the giving to Lessor, on or before ninety (90) days of the
expiration date of this Lease, written notice of the exercise thereof by Lessee;
but Lessee shall in no event be entitled to renew the term hereof, even though
such notice be timely given, unless Lessee shall have timely performed all of
its obligations hereunder, and shall not then be in default in the performance
of any terms of this Lease, on the date the option is exercised and through and
including the date of the expiration of the initial term hereof.
5. Late Charge: Any installment of rent accruing under the provisions
of this Lease that is not paid when due is subject to a late charge of the
greater of: (i) Twenty-five Dollars ($25.00) or (ii) five percent (5%) of the
monthly rent, plus Florida State sales tax. All rent is due on the first day of
each month and is late and subject to the foregoing late charge if not received
by the Lessor on or before the fifth (5th) day of each month. In the event a
check is returned by a financial institution for any reason, the Lessee shall
pay late charges as if the check had not been delivered to the Lessee.
6. Date and Place of Payment: Lessee shall pay Lessor the monthly
rental herein required to be paid in advance on the first day of each and every
month without demand and at any place that shall be designated in writing by
Lessor. Until notice is furnished to the contrary, the rental shall be mailed to
Lessor at Post Office Box 2187, Lakeland, Florida 33806-2187.
7. Use.
(a) Use. The Premises shall be used and occupied only for the
purposes of __________ and for no other purpose of manufacturing, storage and
distribution.
(b) Compliance with Law.
Lessor warrants to Lessee that the Premises, in its
existing state but without regard to the use for which Lessee will use the
Premises, does not violate any applicable building code, regulation, or
ordinance at the time this Lease is executed. In the event it is
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determined that this warranty has been violated, then it shall be the obligation
of the Lessor, after written notice from Lessee, to promptly, at Lessor's sole
cost and expense, rectify any such violation. In the event Lessee does not give
to Lessor written notice of the violation of this warranty within thirty (30)
days from the commencement of the term of this Lease, it shall be conclusively
deemed that such violation did not exist and the correction of the same shall be
the obligation of the Lessee.
Except as provided in Paragraph 7(b), Lessee hereby accepts
the Premises in their condition existing as of the date of the execution hereof,
subject to all applicable zoning, municipal, county, and state laws, ordinances,
and regulations governing and regulating the use of the Premises, and accepts
this Lease subject thereto and to all matters disclosed thereby and by any
exhibits attached hereto. Lessee acknowledges that neither Lessor nor Lessor's
agent has made any representation or warranty as to the suitability of the
Premises for the conduct of Lessee's business.
8. Maintenance Repairs and Alterations.
(a) Lessor's Obligations. Subject to the provisions of
Paragraphs 7(b) and 10, and except for damage caused by any negligent or
intentional act or omission of Lessee, Lessee's agents, employees, or invitees
in which event Lessee shall repair the damage, Lessor, at Lessor's expense,
shall keep in good order, condition, and repair the foundations, exterior walls,
and the exterior roof of the Premises. Lessor shall not, however, be obligated
to paint such exterior, nor shall Lessor be required to maintain the interior
surface of exterior walls, windows, doors or plate glass. Lessor shall have no
obligation to make repairs under this paragraph until a reasonable time after
receipt of written notice of the need for such repairs. Lessee expressly waives
the benefits of any statute now or hereafter in effect which would otherwise
afford Lessee the right to make repairs at Lessor's expense or to terminate this
Lease because of Lessor's failure to keep the Premises in good order, condition,
and repair.
(b) Lessee's Obligations.
Subject to the provisions of Paragraphs 7(b) , 8(a), and
10, Lessee, at Lessee's expense, shall keep in good order, condition, and repair
the Premises and every part thereof (whether or not the damaged portion of the
Premises or the means of repairing the same are reasonably or readily accessible
to Lessee otherwise), including, without limiting the generality of the
foregoing, all plumbing, heating, air conditioning including changing filters
monthly, ventilating, electrical and lighting and bulbs and ballasts, interior
walls and interior surface of exterior walls, ceilings, windows, interior and
exterior doors, skylights located within the premises and the septic tank. In
the event only part of the building is leased by Lessee, the cost of the
maintenance of the septic tank shall be shared by the other tenants of the
building on a pro rata basis based on the number of employees of each tenant.
Lessee expressly waives the benefit of any statute now or hereafter in effect
which would otherwise afford Lessee the right to make repairs at Lessor's
expense or to terminate this Lease because of Lessor's failure to keep the
premises in good order, condition, and repair. Lessee will be responsible for
own pest control.
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If Lessee fails to perform Lessee's obligations under
this Paragraph 8(b), Lessor may, at Lessor's option, enter upon the Premises
after ten (10) days' prior written notice to Lessee, and put the same in good
order, condition, and repair, and the costs thereof, together with interest
thereon at the rate of ten percent (10%) per annum, shall be due and payable as
additional rent to Lessor, together with Lessee's next rental installment.
On the last day of the term hereof or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same condition
as received, broom clean, ordinary wear and tear excepted. Lessee shall repair
any damage to the Premises occasioned by the removal of its trade fixtures,
furnishings, and equipment pursuant to Paragraph 8(c), which repair shall
include the patching and filling of holes and repair of structural damage.
(c) Alterations and Additions.
Lessee shall not, without Lessor's prior written consent,
make any alternations, improvements, additions, or utility installments in , on,
or about the Premises, except upon the consent of the Lessor. As used in this
paragraph, the term "Utility Installation" shall mean ducting, power panels,
wiring fluorescent fixtures, space heaters, conduits, air conditioning, and
plumbing. Lessor may require that Lessee remove any or all of said alterations,
improvements, additions, or Utility Installations at the expiration of the term,
and restore the Premises to their prior condition. Lessor may require Lessee to
prove Lessor, at Lessee's sole cost and expense, a lien and completion bond in
an amount equal to the estimated cost of such improvements, to insure Lessor
against any liability for mechanic's and materialmen's liens and to ensure
completion of the work. Should Lessee make any alterations, improvements,
additions, or Utility Installations without the prior approval of Lessor, Lessor
may require that Lessee remove any or all of such.
Any alternations, improvements, additions, or Utility
Installations in, on, or about the Premises that Lessee shall desire to make and
which require the consent of Lessor shall be presented to Lessor in written
form, with proposed detailed plans. If Lessor shall give its consent, the
consent shall e deemed conditioned upon Lessee acquiring a permit to do so from
appropriate governmental agencies, the furnishing of a copy thereof to Lessor
prior to the commencement of the work, and the compliance by Lessee of all
conditions of said permit in a prompt and expeditious manner.
Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or any interest therein. Lessee shall
given Lessor not less than ten (10) days' notice prior to the commencement of
any work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises. If Lessee shall, in good faith,
contest the validity of any such lien, claim, or demand, then Lessee shall, at
its sole expense, defend itself and Lessor against the same, and shall pay and
satisfy any such enforcement thereof against Lessor or the Premises, upon the
condition that if Lessor shall require, Lessee shall furnish to Lessor a surety
bond satisfactory to
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Lessor in an amount equal to such contested lien, claim, or demand indemnifying
lessor against liability for the same and holding the Premises free from the
effect of such lien or claim. In addition, Lessor may require Lessee to pay
Lessor's attorneys' fees and costs in participating in such action if Lessor
shall decide it is to its best interest to do so.
Unless Lessor requires their removal, as set forth in
Paragraph 8(c), all alterations, improvements, additions, and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made on the Premises, shall become the
property of Lessor and remain upon and be surrendered with the Premises at the
expiration of the term of this Lease. Notwithstanding the provisions of this
paragraph, Lessee's machinery and equipment, other than that which is affixed to
the Premises so that it cannot be removed without material damage to the
Premises, shall remain the property of Lessee and may be removed by Lessee
subject to the provisions of Paragraph 8(b).
(d) No Violation of Roof. Lessee shall not do anything to
violate the warranty, if any, for the roof by piercing, cutting, or altering the
roof or place equipment, machinery, structures, or any other thing upon the roof
without the express written consent o f Lessor. Notwithstanding the written
consent of Lessor as described in this paragraph, and notwithstanding the
Lessor's obligations for repair of the roof set forth in Paragraph 8(a) of this
Lease, Lessee shall immediately be responsible for repairing (to Lessor's
reasonable satisfaction) any leak that results from any piercing, cutting or
altering of the roof or the placement of equipment, machinery, structures, or
any other thing upon the roof by Lessee, if any such leak occurs during the term
of this Lease or any time during the three (3) months immediately following the
expiration or termination of this Lease.
9. Insurance; Indemnity.
(a) Liability Insurance. Lessee shall, at Lessee's sole
expense, obtain and keep in force during the term of this Lease a policy of
combined single limit, bodily injury, and property damage insurance insuring
Lessor and Lessee against any liability arising out of the ownership, use,
occupancy, or maintenance of the Premises and all areas appurtenant thereto.
Such insurance shall be a combined single limit policy in an amount not less
than Five Hundred Thousand Dollars ($500,00.00). The policy shall contain cross
liability endorsements and shall insure performance by Lessee of the indemnity
provisions of this Paragraph 9. The limits of said insurance shall not, however,
limit the liability of Lessee hereunder. If Lessee shall fail to procure and
maintain said insurance Lessor may, but shall not be required to, procure and
maintain the same, but at the expense of Lessee. Not more frequently than each
other, if, in the reasonable opinion of the Lessor, the amount of the liability
insurance required hereunder is not adequate, Lessee shall increase said
insurance coverage as required by lessor; provided, however, that in no event
shall the amount of the liability insurance increase be more than fifty percent
(50%) greater than the amount thereof during the preceding year of the term of
this Lease. However, the failure of Lessor to require any additional insurance
coverage shall not be deemed to relieve Lessee form any obligations under this
Lease.
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(b) Property Insurance. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies covering loss or damage to
the Premises, but not Lessee's fixtures, equipment, or tenant improvements, in
the amount of the full replacement value thereof, providing protection against
all perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, and special extended perils (all risk), but not
plate glass insurance.
(c) Insurance Policies. Insurance required hereunder shall be
in companies holding a "General Policyholders Rating" of A or better as set
forth in the most current issue of "Best Insurance Guide." Lessee shall deliver
to Lessor copies of policies of liability insurance required under Paragraph
9(a)) or certificates evidencing the existence and amounts of such insurance
with loss payable clauses satisfactory to Lessor. No such policy shall be
cancelable or subject to reduction of coverage or other modification except
after ten (10) days' prior written notice to Lessor. Lessee shall, within then
(10) days' prior to the expiration of such policies, furnish Lessor with
renewals or "binders" thereof, or Lessor may order such insurance and charge the
cost thereof to Lessee, which amount shall be payable by Lessee upon demand.
Lessee shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in Paragraph 9(b).
(d) No Use that Increases Insurance Risk. In no event shall
Lessee sue the Premises in any manner that will increase risks covered by
insurance on the Premises or cause lack of coverage or cancellation of any
insurance policy covering the Premises or any portion of the Premises,
regardless of whether Lessee's use of the Premises complies with Paragraph 7 of
this Lease. Lessee shall not keep on the Premises, or permit to be kept, used,
or sold thereon, anything prohibited by the policy of fire insurance covering
the Premises. If the use of the Premises by Lessee causes an increase in the
insurance premium rate on the Premises, Lessee shall, at his own expense, pay
the additional insurance premium that is charged due to the increased hazard. If
any increased hazard insurance premium is not paid by Lessee when due, Lessor
may at Lessor's option pay the premium and such premium shall be repaid to
Lessor as an additional rent installment for the month following the date on
which such increased hazard premiums are paid.
(e) Indemnity. Lessee shall indemnify and hold harmless Lessor
from and against any and all claims arising from Lessee's use of the 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 Premises or elsewhere,
and shall further indemnify and hold harmless Lessor from and against any and
all claims arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any negligence of the Lessee, or any of Lessee's agents,
contractors, or employees, and 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; and in case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee upon notice from
Lessor shall defend the same at Lessee's expense by counsel satisfactory to
Lessor. Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons in,
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upon, or about the Premises arising from any cause, and Lessee hereby waives all
claims in respect thereof against Lessor.
(f) Exemption of Lessor from Liability. Lessee hereby agrees
that Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise, or other
property of Lessee, Lessee's employees, invitees, customers, or any other person
in or about the Premises, nor shall Lessor be liable for injury to the person of
Lessee, Lessee's employees, agents, or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water, or
rain, or from the breakage, leakage, obstruction, or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures,
or form any other cause, whether the said damage or injury results from
conditions arising upon the Premises or upon other portions of the building of
which the Premises are a part, or from other damage or injury or the means of
repairing the same is inaccessible to Lessee.
(g) Waiver of Subrogation. Lessee and Lessor each hereby
waives any and all rights of recovery against the other, or against the
officers, employees, agents, and representatives of the other, for loss of or
damage to such waiving party or its property or the property of others under its
control, where such loss or damage is insured against under and any insurance
policy in force at the time of such loss or damage. Lessee and Lessor shall,
upon obtaining the policies of insurance required hereunder, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
10. Damage or Destruction.
(a) Total Destruction. If at any time during the term of this
Lease the Premises are totally destroyed from any cause, whether or not covered
by insurance required to be maintained pursuant to Paragraph 9(b) hereof
(including any total destruction required by any authorized public authority),
this Lease shall automatically terminate as of the date of such total
destruction.
(b) Damage Near End of Term. If the Premises are partially
destroyed or damaged during the last six (6) months of the term of this Lease,
Lessor may, at Lessor's option, cancel and terminate this Lease as of the date
of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage.
(c) Abatement of Rent; Lessee's Remedies.
If the Premises are partially destroyed or damaged and Lessor
or Lessee repairs or restores them pursuant to the provisions of this Paragraph
10, the rent payable hereunder for the period during which such damage, repair,
or restoration continues shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired. Except for abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair, or restoration.
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If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 10 and shall not commence such
repair or restoration within ninety (90) days after such obligations shall
accrue, Lessee may, at Lessee's option, cancel and terminate this Lease by
giving Lessor written notice of Lessee's election to do so at any time prior to
the commencement of such repair restoration. In such even this Lease shall
terminate as of the date of such notice.
(d) Termination - Advance Payments. Upon termination of this
Lease pursuant to this Paragraph 10, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to Lessor.
Lessor shall, in addition, return to Lessee so much of Lessee's security deposit
as has not theretofore been applied by Lessor.
11. Real Property Taxes. Lessor shall pay all real property taxes
assessed against the Premises prior to the time such taxes become delinquent.
12. Personal Property Taxes.
Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment, and all other personal
property of Lessee contained in the Premises or elsewhere. When possible, Lessee
shall cause said trade fixtures, furnishings, equipment, and all other personal
property to be assessed and billed separately from the real property of Lessor.
If any of Lessee's said personal property shall be assessed with
Lessor's real property, lessee shall pay Lessor the taxes attributable to Lessee
within ten (10) days after receipt of a written statement setting forth the
taxes applicable to Lessee's property.
13. Utilities. Lessee shall pay for all electric, water, gas, heat,
light, power, telephone, sprinkler surcharges, and other utilities and services
supplied to the Premises, together with any taxes or deposits thereon. If any
such services are not separately metered to Lessee, Lessee shall pay a
reasonable proportion to be determined by Lessor of all charges jointly metered
with other Premises.
14. Assignment and Subletting.
(a) Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, subject, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Any attempted assignment, transfer, mortgagee, encumbrance, or
subletting without such consent shall be void and shall constitute a breach of
this Lease.
(b) No Release of Lessee. Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligation or alter
the primarily liability of Lessee to
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pay the rent and to perform all other obligations to be performed by Lessee
hereunder. The acceptance of rent by Lessor from any other person shall not be
deemed to be a waiver by Lessor of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Lessee or
any successor of Lessee, in the performance of any of the terms hereof, Lessor
may proceed directly against Lessee without the necessity of exhausting remedies
against said assignee. Lessor may consent to assignments or subletting of this
Lease or amendments of modifications to this Lease with assignees of Lessee,
without notifying lessee, or any successor of Lessee, and without obtaining its
or their consent thereto, and such action shall not relieve Lessee of liability
under this Lease.
(c) Attorneys' Fees. In the event Lessee shall assign or sublet
the Premises or request the consent of Lessor to any assignment or subletting,
or if Lessee shall request the consent of Lessor for any act Lessee proposed to
do, then Lessee shall pay Lessor's reasonable attorneys' fees incurred in
connection therewith.
15. Hazardous Waste. Lessee agrees that the leased Premises comply with
all applicable federal, state, and local environmental laws, regulations, and
rulings before and up to the commencement of the term of this Lease and that
there are not any hazardous or toxic substances prohibited by environmental
protection and enforcement agencies on or at the leased Premises.
Lessee will defend, indemnify, and hold Lessor harmless from and
against any and all actions, losses, liabilities, damages, claims, obligations,
debts, costs, and expenses (including attorneys' fees), known or unknown,
contingent or absolute, arising out of or resulting from any (i) petroleum based
products, (ii) oil, (iii) waste, (iv) chemical substance or mixture, (v) toxic,
hazardous, or regulated substance, mixture, or waste, and/or (vi) radioactive
substance stored, released, and/or disposed of this Lease by Lessee through and
including the date Lessor retakes possession of the leased Premises.
Lessee's obligations to take any action and indemnify Lessor
pursuant to Paragraphs 9(f) and 15 will survive the termination of this Lease
and continue until Lessee's obligations have been fulfilled.
16. Defaults; Remedies.
(a) Defaults. The occurrence of any one or more of the
following events shall constitute a material default and breach of this Lease by
Lessee:
(1) The vacating or abandonment of the Premises by
Lessee for ten (10) days; or
(2) The failure by Lessee to make any 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; or
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(3) The failure by Lessee to observe or perform any
of the covenants, conditions, or provisions of this Lease to be observed or
performed by Lessee, other than described in Paragraph 16(a)(2) above, where
such failure shall continue for a period of thirty (30) days after written
notice hereof from Lessor to Lessee; provided, that if the nature of Lessee's
default is such that more than thirty (30) days are reasonably required for its
cure, then Lessee shall not be deemed in default if Lessee commenced such cure
within said thirty (30) day period and thereafter diligently prosecutes such
cure to completion; or
(4) (i) The making by Lessee of any general
arrangement for the benefit of creditors; (ii) the filing by or against Lessee
of a petition to have Lessee adjudged bankrupt or a petition for reorganization
or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Lessee, the same is dismissed within sixty (60) days);
(ii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days; or
(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
obligation hereunder, and any of them, was materially false.
(b) Remedies. In the event of any such material default or
breach by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting lessor in the exercise of any right or remedy which
Lessor may have by reason of such default or breach:
(1) Without written notice or demand to Lessee,
re-enter the demised Premises and remove all persons thereon by force or
otherwise without being liable to indictment, prosecution, or damages therefor;
and/or
(2) Relet the demised Premises or any part thereof
for the balance of the Lease term as agent for the Lessee and receive rents
therefor and apply the same first to the payment of the expenses of reasonable
redecorating and making necessary repairs to the Premises, attorneys' fees,
broker's commission, advertising, and all other reasonable expenses of the
Lessor in re-entering the Premises and reletting the same; and/or
(3) Elect to accelerate the rent to be paid under
this Lease to make it all immediately due and payable. Lessor shall also be
entitled to recover from Lessee any special damages suffered by Lessor as a
result of Lessee's default. These remedies are not in limitation of any other
remedies at law.
Lessee shall be responsible for all costs, including
attorneys' fees, incurred by Lessor in enforcing any of the terms and provisions
of this Lease Agreement. In addition and in
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connection with the reletting of the demised Premises for the account of Lessee
as hereinabove provided, Lessor shall have the right to declare all monthly
installments due and payable and to proceed to obtain a judgment therefor
against Lessee. Thereafter, all sums collected from the reletting of the
Premises, less costs in connection therewith, shall be applied on said judgment
or if the judgment has been paid, turned over to Lessee.
Further, in the event of default on the part of Lessee, the
Lessor shall have the right to pursue any legal remedy available to it, and
Lessor shall have the right to bring distress proceedings without in any way
affecting its right to accelerate the balance of rental due and to bring an
action therefor.
(c) Default by Lessor. Lessor shall not be in default unless
Lessor fails to perform obligations required of Lessor within a reasonable time,
but in no event later than thirty (30) days after written notice by Lessee to
Lessor; provided, however, that if the nature of Lessor's obligation is such
that more than thirty (30) days are required for performance, then Lessor shall
not be in default if Lessor commences performance within such thirty (30) days
period and thereafter diligently prosecutes the same to completion.
17. Condemnation. If the Premises or any portion thereof are taken
under the power of eminent domain, or sold under the threat of the exercise of
said power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. If more than twenty-five percent
(25%) of the land area of the Premises which is not occupied by any improvements
is taken by condemnation, Lessee may, at Lessee's option, to be exercised in
writing only within ten (10) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice within ten (10) days
after the condemnation authority shall have taken possession) terminate this
Lease as of the date the condemning authority takes such possession. If Lessee
does not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the rent shall be reduced in the proportion that the land area taken
bears to the total land area of the premises. Any award for the taking of all or
any part of the Premises under the power of eminent domain or any payment made
under threat of the exercise of such power shall be the property of Lessor,
whether such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any award for loss of or damage to
Lessee's trade fixtures and removable personal property. In the event that this
Lease is not terminated by reason of such condemnation, Lessor shall, to the
extent of severance damages received by Lessor in connection with such
condemnation, repair any damage to the Premises caused by such condemnation
except to the extent that Lessee has been reimbursed therefor by the condemning
authority. Lessee shall pay any amount in excess of such severance damages to
complete such repair.
18. Surrender of Premises. Lessee shall, at the termination of the
Lease term or any renewal or extension thereof, quietly and peacefully surrender
said Premises in as good condition and substantially in the same condition as
such Premises existed at the commencement of the Lease term, ordinary wear and
tear or damage or loss by fire or the elements excepted, unless
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Lessee shall be responsible for maintenance and repair by the terms of this
Lease, in which case Lessee shall repair such damage, regardless of cause,
except damage by fire, provided otherwise in this Lease, damage hereunder,
Lessee shall have full authority to remove from the demised Premises all of its
merchandise and trade fixtures, notwithstanding the fact that the same may have
heretofore been bolted or otherwise affixed to such Premises, all conditioned
upon the Lessee not then being in default hereunder and the repair by Lessee of
any damage resulting from such removal.
19. General Provisions.
(a) Estoppel Certificate. 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 this Lease is
unmodified and in full force and effect or, if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder, or specifying
such defaults if any are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises.
Lessee's failure to deliver such statement within such time
shall be conclusive upon lessee (i) that this Lease is in full force and effect,
without notification except as may be represented by Lessor, (ii) that there are
no uncured defaults in Lessor's performance, and (iii) that not more than on two
(2) months' rent has been paid in advance or such failure may be considered by
Lessor as a default by Lessee under this Lease.
(b) Lessor's Liability. The term "Lessor" as used herein shall
mean only the owner or owners at the time in question of the fee title or a
lessee's interest in a ground lease of the Premises, and in the event of any
transfer of such title or interest, Lessor herein named (and in case of any
subsequent transfers the then grantor) shall be relieved from and after the date
of such transfer of all liability as respects Lessor's obligations thereafter to
be performed, provided that any funds in the hands of Lessor or the then grantor
at the time of such transfer, in which Lessee has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Lessor shall, subject as aforesaid, be binding on Lessor's
successor and assigns, only during their respective periods of ownership.
(c) Severability. The invalidity of any provision of this
Lease as determined by a court of competent jurisdiction, shall in no way affect
the validity of any other provision hereof.
(d) Interest on Past-Due Obligations. Except as expressly
herein provided, any amount due to Lessor not paid when due shall bear interest
at ten percent (10%) per annum from the date due. Payment of such interest shall
not excuse or cure any default by Lessee under this Lease, provided, however,
that interest shall not be payable on late charges incurred by Lessee, nor on
any amounts upon which late charges are paid by Lessee.
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(e) Time of Essence. Time is of the essence.
(f) Captions. Article and paragraph captions are not a part
hereof.
(g) Incorporation of Prior Agreements; Amendments. This Lease
contains all agreements of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such matter shall
be effective. This Lease may be modified in writing only signed by the parties
in interest of the time of the modification. Except as otherwise stated in this
Lease, Lessee hereby acknowledges that neither a real estate broker, nor any
cooperating broker on this transaction, nor the Lessor or any employees or
agents of any of said persons, has made any oral or written warranties or
representations to Lessee relative to the condition or use by Lessee of said
Premises, and Lessee acknowledges that Lessee assumes all responsibility
regarding the legal use and adaptability of the Premises and the compliance
thereof with all applicable laws and regulations in effect during the term of
this Lease, except as otherwise specifically stated in this Lease.
(h) Notices; Communications; Time. Any notice demand, or
communication given or required to be given hereunder shall be in writing and
shall be either (i) personally delivered, or by written notice hand-delivered to
Lessee at the foregoing address, or if to Lessee posted to the entrance to the
demised Premises, or (ii) transmitted by United States express, certified, or
registered mail, postage prepaid, at the parties' respective addresses appearing
on the first page hereof. Except as otherwise specified herein, all notices,
demands, and other communications given by express, certified, or registered
mail shall be deemed given when deposited into the United States mail, properly
addressed and with postage prepaid, and if given by personal delivery, on the
date of receipt. If the last day for giving notice or demand or performing any
act hereunder falls on a Saturday, Sunday, or day on which the main post offices
at Lakeland, Florida, is not open for regular transaction of business, the time
shall be extended to the next day that is not a Saturday, Sunday, or post office
holiday. Any party may change its address for purposes hereof by notice to the
others in accordance with the provisions of this paragraph.
(i) Waivers. No waiver by Lessor of any provision hereof shall
be deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provision. Lessor's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of rent
hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
rent so accepted, regardless of Lessor's knowledge of such preceding breach at
the time of acceptance of such rent.
(j) Recording. Lessee shall not record this lease without
Lessor's prior written consent, and such recordation shall, at the option of
Lessor, constitute a non-curable default of Lessee hereunder.
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(k) Holding Over. If Lessee remains in possession of the
Premises or any part thereof after the expiration of the term hereof without the
express written consent of Lessor, such occupancy shall be a tenancy from month
to month at a rental in the amount of the last monthly rental, plus all other
charges payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy.
(l) Cumulative Remedies. No remedy or election hereunder shall
be deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
(m) Covenants and Conditions. Each provision of this Lease
performance by Lessee shall be deemed both a covenant and a condition.
(n) Binding Effect and Choice of Law. Subject to any
provisions hereof restricting assignment or subletting by Lessee and subject to
the provisions of Paragraph 17(b), this Lease shall bind the parties and their
respective heirs, devisees, personal representatives, successors, and assigns.
This Lease shall be governed by the law of the State of Florida.
(o) Subordination. This Lease, at Lessor's option, shall be
subordinate to any ground lease, mortgage, or any other hypothecation for
security now or hereafter placed upon the real property of which the Premises
are a part, and to any and advances made on the security thereof and to all
renewals, modifications, consolidations, replacements, and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgage or ground lessor shall elect to have this Lease prior to the lien of
its mortgage or ground lease, and shall give written notice thereof to Lessee,
this lease shall be deemed prior to such mortgage or ground lease, whether this
Lease is dated prior or subsequent to the date of said mortgage or ground lease
or the date of recording thereof.
Lessee agrees to execute any documents required to effectuate
such subordination or to make this 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
after written demand, does hereby make, constitute, and irrevocably appoint
Lessor at Lessee's attorney-in-fact and in Lessee's name, place, and stead, to
do so.
(p) Attorneys' Fees. If either party hereto brings an action
to enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, at or before trial or on appeal, shall be entitled to that
party's reasonable attorneys' fees and costs to be paid by the losing party as
fixed by the court. Such costs include, but are not limited to, costs of appeal,
court costs, and court reporter's fees.
(q) Lessor's Access. Lessor and Lessor's agents shall have the
right to enter the Premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, lenders, or lessees, and
making such alterations, repairs, improvements, or additions to the Premises or
to the building of which they are a part as Lessor may deem
-15-
necessary or desirable. Lessor may at any time place on or about the Premises
any ordinary "For Sale" signs, and Lessor may at any time during the last one
hundred twenty (120) days of the term hereof place on or about the Premises any
ordinary "For Lease" signs, all without rebate of rent or liability to Lease.
(r) Signs. Lessee must secure permission in writing from
Lessor to erect or place any awning, marquee, or sign of any type on the
exterior of the demised Premises. All signs shall comply with all governmental
sign ordinances. No sign may be erected which, in Lessor's opinion, is
offensive, not in conformity with signs of other tenants, or otherwise
objectionable. Upon the expiration of the Lease term, Lessee shall remove such
signs and shall repair any damage and close any holes caused by removal. Lessee
is responsible for all expenses regarding signs, including any electrical costs
with respect to lighted signs. Any property not removed from the Premises upon
the expiration of the term shall become the property of Lessor.
(s) Trash. Lessee shall be responsible for the removal and
proper disposal of all trash from the leased Premises. If Lessee fails to
promptly remove and dispose of its trash and keep the Premises in a clean,
sightly, and healthful condition, as provided in this Lease, Lessor or his
agents, servants, or employees may enter the Premises without such entrance
causing or constituting a termination of this Lease or an interference with
Lessee's possession of the Premises, and Lessor may remove all trash and place
the Premises in a clean, sightly, and healthful condition; and Lessee shall pay
Lessor, in addition to the rent hereby reserved, a minimum charge of Fifty
Dollars ($50.00) per occasion or Lessor's actual expenses if more than Fifty
Dollars ($50.00).
(t) Merger. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, or a termination by Lessor, shall not
work a merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
(u) Corporate Authority. If the Lessee is a corporation, the
individual executing this Lease on behalf of Lessee represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
(v) Consents. Wherever in this Lease the consent of one party
is required to an act of the other party, such consent shall not be unreasonably
withheld.
(w) Guarantor. In the event that there is a guarantor of this
Lease, said guarantor shall have the same obligations as Lessee for payment of
and all monetary claims or items under this Lease.
(x) Quiet Possession. Upon Lessee paying the fixed rent
reserved hereunder and observing and performing all of the covenants,
conditions, and provisions on Lessee's part to
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be observed and performed hereunder, Lessee shall have quiet possession of
the premises for the entire term hereof subject to all of the provisions of this
Lease.
(y) Sidewalk and Common Areas. Lessee agrees not to obstruct
the sidewalk or common parking area in front of the demised Premises or the area
in the rear of the demised Premises. Lessee further agrees that it shall
maintain the good appearance of the sidewalk immediately in front of the demised
Premises and the area immediately to the rear of the demised Premises.
(z) Mechanic's Lien. Said Premises shall not be subject to any
lien under the Mechanic's Lien Law of the State of Florida as a result of any
improvements made by Lessee. Lessee shall not permit the Premises to be subject
to any lien for labor, services, or material furnished at the request of Lessee
or its agent, and it shall ensure that all amounts owed for labor, services, or
materials shall be paid for by it promptly.
(aa) Binding on Successors, Heirs, and Assigns: This Lease
Agreement shall be binding and obligatory upon the heirs, assigns and successors
of the respective parties.
(bb) Outside Lighting. An additional [Lessee will contract
directly with the city] $_______ per month for area lights per five thousand
(5,000) square feet of building space leased or fraction thereof shall be added
to the rent unless Lessee contracts directly with the City of Lakeland to
provide a minimum of one (1) area light per five thousand (5,000) square feet or
fraction thereof. The City of Lakeland is responsible for maintenance and
electricity for area lights per their contract agreement.
(cc) No Broker. Lessee represents to Lessor that the Premises,
or any portion of the buildings of which the Premises are a part, were not
presented to it or any person representing it by any broker or other person, and
that no broker or other person was involved in the leasing of the Premises, and
warrants that no claim for commission for said leasing shall be presented to
Lessor.
(dd) Radon Gas. Section 404.056(a), Florida Statutes, requires
that the following notification be given on real estate documents:
"Radon Gas: Radon is a naturally occurring
radioactive gas that, when it is 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 may be obtained from your
county public health unit."
(ee) Impact Fees. The Lessee shall be responsible for the
payment of any impact or growth fees or assessments which may be imposed upon
the demised Premises by any governmental agency by virtue of the Lessee's
occupation of the Premises, or by virtue of any
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alterations to the Premises or increased use in the Premises by the Lessee or
any use by the Lessee which causes the imposition of such fees or assessments.
20. Special Conditions.
[ ] Attached as Exhibit "A"
[ ] None
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals.
Signed, sealed and delivered
in the presence of: JOE P. RUTHVEN INVESTMENTS
By:
- -------------------------------- --------------------------------
Joe P. Ruthven
- -------------------------------- "Lessor"
(Witnesses as to Lessor)
Signed, sealed and delivered
in the presence of: EARTH AND OCEAN SPORTS, INC.
By:
- -------------------------------- --------------------------------
Tony Glydon
- -------------------------------- "Lessee"
(Witnesses as to Lessee)
LESSEE'S HOME ADDRESS:
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DRIVER'S LICENSE #: DATE OF BIRTH STATE
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PHONE: SOCIAL SECURITY #:
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