NOTE: this is not an official copy…I scanned an original
document and converted it to text, it may contain errors do to the scanning
process.
The original is available in the Manatee County Courthouse, so I'm told.
Sugar Creek
Country Club
(813) 748-4451
PROPRIETARY LEASE
PROPRIFTARY LEASE made as of __________________________________ by and between SUGAR
CREEK COUNTRY CLUB TRAVEL TRAILER
PARK ASSOCIATION, INC., a
WHEREAS, the lessor is a
WHEREAS, the lessor is the owner of the land
and improvements erected thereon in the
WHEREAS, the lessee is the owner of Membership Certificate Number
_______ of
the lessor, to which this lease is appurtenant and
which has
been allocated to Unit No.______ in the cooperative
DEMISED PREMISES: TERM
1. (a) Lessee shall pay his rent (sometimes called maintenance
or common expense) in accordance with the fractional share of common expense allocated to each unit as set forth in the By-Laws
of the corporation.
(b)
In accordance with Section 719.108 Florida Statutes, the various owners of
proprietary leases shall be liable for the payment of assessments for upkeep and maintenance of the corporate property,
including, but not limited to, lease payments, maintenance, taxes, insurance,
repairs, betterments and utilities, and the salaries of a manager and other
employees and other operating costs and operating items.
(c) The board of directors (hereinafter referred to as
directors) of lessor, from time to time according to
Section 719.106 Florida Statutes, shall fix the sum of money needed for the operation
of the lessor corporation. It shall determine the
amount required for operating items and costs, such as; lease payments, maintenance, taxes,
insurance, repairs, betterments and utilities, salaries of a manager and other
employees and any other sums necessary to the upkeep, operation or maintenance of lessor's
property.
(d) The fractional share of
common expenses may not be changed or amended, except in accordance with the
By-Laws. However, the exact amount of maintenance or common expense
charges may be increased or decreased based upon an increase or decrease in the
estimated operating budget of the lessor.
(e) The directors of lessor are
empowered, in the manner and subject to Section 719.106 (1) (f) Florida
Statutes, to levy and collect assessments for all budgeted operating and
maintenance expenses. Special assessments, as required, are to be paid and
levied in the same manner as regular assessments. The members shall pay all assessments against their individual units
promptly when due.
(f) If the directors or lessor
fail to make a new assessment, the members shall pay the current rate until a
new rate is determined.
(g) All assessments paid by members to lessor for maintenance or common expenses shall be used by lessor to pay the obligations of lessor
as authorized
by the directors. Any excess amounts received from assessments paid by members which are held by lessor at the
conclusion of its taxable year, whether calendar or fiscal, will be deemed to be
common surplus. Each member shall own any common surplus of the cooperative in
the same fractional share as the commori expenses appurtenant
to each unit campsite are shared. The ownership of common surplus does not include
the right to withdraw or require payment or distribution of the same. The
common surplus, at the discretion of the directors, may be used by lessor to apply against future expenses of lessor.
(h) Accurate records
and books of account shall be kept by the board of directors of the lessor corporation and shall be open to inspection by
lessees in accordance with Section 719.04 Florida Statutes.
(i) Any
maintenance or common expense charges due hereunder shall be payable in equal
quarterly installments in advance on the first day of each calendar quarter,
unless the directors of lessor shall otherwise
direct. The lessee shall also pay such additional rent as may be provided
herein when due.
(j) In the event that the Developer shall be
the lessee hereunder, then the Developer, in consideration of the Developer
being excused from the payment of assessments hereunder until the first day of
the fourth calendar month following the month in which the closing of the sale
of the first unit within the cooperative
occurs and thereafter so long as the Developer guarantees that the assessment
shall not exceed a specific dollar amount, the Developer agrees to pay the portion of the common expenses incurred during
that period which exceeds the amount assessed against other unit owners.
SERVICES BY LESSOR
2. The
lessor shall maintain and manage the cooperative as a
first class travel trailer resort, and shall keep the same clean and properly
lighted and maintained, and shall provide the number of employees
requisite, in the judgment of the directors, for the proper care and service of
the resort. The maintenance obligations of the lessor
herein contained are subject, however, to the discretionary power of the
directors to determine from time to time the services and the employees that
shall be proper for maintaining and operating the resort, and to also determine
whether existing services shall be increased, reduced, changed, modified or terminated.
DAMAGE TO
3. (a)
If the unit, a permanent improvement thereon or the means of access thereto or
the cooperative facilities shall be damaged by fire or other cause covered by multiperil
policies commonly carried by cooperative corporation, the lessor
shall at its own cost and expense, with reasonable dispatch after receipt of notice of said damage, repair or replace the
damage or cause the damage to be repaired or replaced, with materials of a kind
and quality then customary in cooperatives of this type. Anything in this paragraph or paragraph 2 to the contrary
notwithstanding, lessor shall not be required to
repair or replace, or cause to be repaired or
replaced, equipment, fixtures, furniture, furnishings or decorations owned by
the lessee.
(b) Lessor agrees to use its best efforts to
obtain a provision in all insurance policies carried by it waiving the right of
subrogation against the lessee; and, to the extent that any loss or damage is
covered by the lessor by any insurance policies which
contain such waiver of subrogation, the lessor
releases the lessee from any
liability with respect to such loss or damage. In the event that lessee suffers
loss or damage for which lessor would be liable, and
lessee carries insurance which covers such
loss or damage and such insurance policy or policies contain a waiver of
subrogation against the landlord, then in such event lessee releases lessor from any liability with respect to such loss or
damage.
CHANGES IN TERMS
4. Each
proprietary lease shall be in the form of this lease unless a variation of the
lease form is authorized by lessees owning at least 75% of the lessor's membership certificates then issued. Any such
changes shall thereafter be binding on all lessees including lessees who did
not vote for such changes. Approval by lessees as provided for herein
shall be evidenced by written consent or by affirmative vote taken at a meeting
called for such purpose. Not withstanding the
foregoing, in no event shall any change in the form of proprietary lease and
any of the provisions thereof be made which shall adversely affect certain
rights granted to (i) holders of unsold membership certificates and others
deemed equivalent thereto (pursuant to paragraph 29 hereof) or (ii) the secured
party (its successors or assigns) as set forth in paragraph 13 below,
unless all such holders of unsold membership certificates or their equivalent
and any secured party affected thereby shall
have agreed to each such change.
Page 1
QUIET ENJOYMENT
5. The lessee, upon paying the rent and performing
the covenants and complying with the conditions on the part of the lessee to be
performed a herein set forth, shall,
at all times during the term hereby granted, quietly have, hold and enjoy the
unit without any trouble or hinderance from the lessor, subject however, to the rights of the lessor under the terms hereof.
INSPECTION
6. Lessee has inspected the leased property and will accept
it in its present condition on the start of this lease. On payment of the
assessments above and the due
performance of the agreements contained in this lease to be performed, lessee
shall and may peaceably and quietly hold the leased property.
USE OF COMMON AREAS
7. Lessee
shall have the right of joint use and enjoyment in common with other lessees of
the common areas and the property of lessor not
specifically leased to other lessees, except
insofar as it may be limited or restricted by this lease or by the rules and
regulations and by-laws of the corporation. Lessee's use of common areas and property shall not encroach upon
the rights of other owners.
INDEMNITY
8. The lessee agrees to save the lessor
harmless from all liability, loss, damage and expense arising from injury to
person or property occasioned by the
failure of the lessee to comply with any provision hereof, or due wholly or in
part to any act, default or omission of the lessor,
its agents, servants or contractors when acting as agent for the lessee
as provided in this lease. This paragraph shall not apply to any loss or damage
to the extent lessor is covered by insurance which provides for waiver of subrogation against the
lessee.
PAYMENT OF
9 The lessee will pay the rent (maintenance
or common expense charge) to the lessor upon the
terms and all the times herein provided, without any deduction on account
of any set-off or claim which the lessee may have against the lessor, and if the lessee shall fail to pay any installment
of rent promptly, the lessee shall pay interest thereon at the maximum legal
rate from the date when such installment shall have become due to the date of
the payment thereof, and such interest shall be deemed additional rent hereunder.
RULES
10. The lessor has adopted rules and regulations which are set out
in the by-laws of the lessor corporation,
and the directors of the lessor corporation may
alter, amend or repeal such rules and regulations and adopt new rules and
regulations. This lease shall be in all respects subject to such rules and
regulations which, when a copy thereof
has been furnished to the lessee, shall be taken to be part hereof, and the
lessee hereby covenants to comply with all such rules and regulations and see that they are faithfully
observed by the family, guests, and subtenants of the lessee. Breach of a rule
and regulation shall be a default under this lease. The lessor shall not be responsible to
the lessee for the non-observance or violation of rules and regulations by any
other lessee or person.
USE OF PREMISES
11. The lessee
shall not occupy or use the unit or permit the same or any part thereof to be
occupied or used for any purpose other than in accordance with the rules and
regulations described in paragraph 10 hereof and subject to compliance with
applicable zoning law or other rules and regulations of governmental authorities having jurisdiction.
SUBLETTING -
ASSIGNMENT
12. In order to
maintain a community of congenial residents who are financially responsible and
thus protect the value of the units, the transfer or
sub-leasing of units by a lease shall be subject to the following provisions:
(a)
Transfers Subject to Approval. The lessee may
transfer the Membership Certificate and the Proprietary Lease to his unit only
with the consent in writing of the board of directors of the corporation. The
board of directors may designate one or more officers of the corporation to
execute the consent on its behalf. The application for the transfer and
assignment must set forth the name and address of the party to whom the
Membership Certificate is to be transferred and the proprietary lease is to be
assigned. The board of directors shall have thirty (30) days in which to
investigate and approve or disapprove the transfer and assignment. If the board
of directors fails to act within the thirty (30) day period, the transfer and
assignment shall be approved automatically. If the transfer and assignment is
approved, the transfer and assignment may be accomplished as follows:
(i)
An instrument of assignment in form approved by lessor,
executed and acknowledged by the assignor, shall be delivered to the lessor; and
(ii) An agreement
executed and acknowledged by the assignee in form approved by lessor assuming and agreeing to be bound by all the
covenants and conditions of this lease to be
performed or complied with by the lessee on and after the effective date of
said assignment shall have been delivered to the lessor,
or, at the request of the lessor, the assignee shall
have surrendered the assigned lease and entered into a new lease in the same
form for the remainder of the term, in
which case the lessee's lease shall be deemed cancelled as of the effective date
of said assignment; and
(iii) The membership certificates of the lessor
to which this lease is appurtenant shall have been transferred to the assignee,
with proper transfer taxes paid and stamps affixed, if any; and
(iv) All sums due from the lessee shall have been paid to the lessor, together with a sum fixed by the directors to cover
a screening fee of the lessor and its managing agent in connection with
such assignment and transfer of membership certificate, providing same does not
exceed FIFTY DOLLARS ($50.00) (subject to
paragraphs 13 and 29 hereof); and
(v) A research or
certification from a title or abstract company or title insurance commitment as
the directors may require shall be delivered to lessor.
(b)Right of First Refusal. In the event the
directors disapprove the proposed transfer and assignment and if a lessee still
desires to consummate such transfer and assignment, he shall, thirty (30) days
before such transfer and assignment, give written notice to the secretary of
the corporation of his intention to transfer and assign on a certain date,
together with the price and other terms thereof, and the corporation shall
promptly notify the members of the corporation of the date, price, and
terms.
If the corporation disapproves any proposed transfer and assignment of a
proprietary lease and its membership certificate, the corporation shall have a
right of first refusal to take a transfer and assignment of a proprietary lease
and the membership certificates offered for sublet or assignment by such member
of the
corporation. If the corporation is desirous of exercising its options to take
an assignment of said proprietary lease and the transfer to it of the
membership certificate on the same terms and conditions as are contained in said
bona fide offer, then the corporation shall notify the member of said
proprietary lease desiring to assign the same of the exercise by the
corporation of its election to take an assignment or sublet as the case may be,
such notice to be in writing and sent by certified mail to said member within fifteen
(15) days of receipt by the corporation of the member's notice to the secretary
of the corporation of the member's intention to transfer and assign. The
corporation, in exercising its option to take an assignment, may do so for and
on its own behalf or on the behalf of any third party. If the corporation has
elected to take an assignment or sublet as aforementioned, then, upon notifying
the member of such proprietary lease and membership certificate of its election to
take an assignment, the corporation shall consummate transfer and assignment on
all the terms and conditions as those contained in said bona fide offer. If the
directors of the corporation shall so elect, it may permit its right of first
refusal to be exercised in its name for itself or for a party approved by said
directors. In the event the corporation does not exercise its right of first
refusal within the fifteen (15) day period, then that member desiring to
transfer and assign, may complete the assignment and transfer of appurtenant
membership certificate at the price and terms given in his notice, but at no
other price or terms without repeating the procedure outlined above. In the event the member makes a sublet or assignment without first
complying with the terms hereof, the corporation shall have the right to redeem
from the purchaser, according to the provisions hereof. The
corporation's rights shall be exercised by reimbursing the purchaser for the
monies expended within thirty (30) days subsequent to the board of directors
receiving notice of such transfer, and immediately after such reimbursement
said purchaser or transferee shall convey his right, title and interest in and
to the sublet or assignment of lease and membership certificate, as the case
may be, to the corporation.
(c)Death of Lessee. In the case of the
death of the lessee of a proprietary lease and owner of a membership
certificate appurtenant thereto, the surviving spouse, if any, and if not
surviving spouse, the other adult member or members of such owner's family may
occupy the unit; and if such surviving spouse or other surviving adult members
of the deceased owner's family shall have succeeded to the ownership of the
unit, the ownership thereof shall be transferred by legal process to such new
owner. In the event said decedent shall have conveyed or bequeathed the
ownership of his unit to some designated person or persons other than a
surviving spouse or adult members of his family, as aforedescribed,
or if some other person is designated by such decedent's legal representative
to receive the ownership of the unit, or under the laws of the descent and
distribution in the State of Florida, the unit descends to some person or
persons other their his surviving spouse or adult members as aforedescribed, the directors of the corporation shall,
within thirty f30) days of proper evidence of rightful designator
Page 2
served upon the president
or any other officer of the corporation, or within thirty (30) days from the date
the corporation is placed on actual notice of the said devisee or descendant,
express its refusal or acceptance of the individual or individuals so
designated as owners of the unit. If the directors of the corporation shall
consent, ownership
of the unit may be transferred by proper assignment of the proprietary lease
and its appurtenant membership certificate to the person or persons so designated, who shall
thereupon become the member of the corporation and owner of the unit, subject
to the provisions of this proprietary lease and the by-laws and articles of
incorporation of the corporation. If, however, the directors of the corporation
shall refuse to consent, then the corporation shall be given an additional
thereto transferred to it for its own account or for a party approved by said
directors upon the same terms and conditions of first refusal as provided for
in paragraph 12(b) above. The purchase price shall be paid in cash and if the
corporation and the personal representative are unable to agree upon a purchase
price within fifteen (15) days from exercise of the corporation's election to
purchase then the purchase price shall be determined by an appraiser, agreed
upon by the corporation and the personal representative or, failing such agreement,
by the Court having jurisdiction of the administration of the decedent's
estate. The expense of appraisal shall be paid by the representative of the
deceased owner out of the amount realized by the sale of said unit. In the
event the corporation does not exercise its first refusal right to purchase
then the person or persons so designated as the owner may then, and only in
such event, take title to the unit by a proper assignment of the decedent's proprietary lease and its
appurtenant membership certificate; but such transfer sale shall be subject in
all other respects to the provisions of this proprietary lease and the by-laws and articles of incorporation
of the corporation.
(d)Assignment Authorized
Without Approval. The
foregoing provisions of this paragraph 12 shall not apply to a sublet or
assignment by a member or owner of a unit to
any adult member of his immediate family (i.e. spouse, adult children or
parents); or if a unit is owned by a form of co-tenancy, or transfers of
one co-tenant to the other co-tenant. In the event of the foregoing notice of
such transfer shall be given to the corporation prior to any such assignment.
(e)Developer's
Right of First Refusal. Notwithstanding anything herein to the contrary
contained, the Developer shall have the right of first refusal to obtain, by
assignment, any proprietary lease and its appurtenant membership certificate
for any unit for which the corporation shall have the right of first refusal upon the same price
and at the same terms available to the corporation; such right of first refusal
to continue until December 31, 1986, at which time said options of first refusal shall
terminate.
(f)Assignments To
Other Than Natural Persons.
Assignment to assignees other than individual assignees (natural persons) is
expressly prohibited, unless written consent
therefor is first obtained from the board of
directors. Directors' consent therefor may be
withheld without limitation or explanation. If the sub-lessee or assignee of an assignment of a proprietary lease and
membership certificate appurtenant thereto is a corporation, the approval may be conditioned upon approval by the
corporation of those who will occupy the unit.
(g) Release Upon Assignment. If the lease shall be assigned in compliance
herewith, the lessee-assignor shall have no further liability on any of the covenants of this lease to be thereafter performed.
(h) Further Assignment.
Regardless of any prior consent theretofore given, neither the lessee nor his personal
representative, nor administrator, nor any trustee or receiver of the property of the
lessee, nor anyone to whom the interests of the lessee shall pass by law, shall
be entitled further to assign this lease, except upon compliance with the requirements
of this lease.
(i) Subleases
- The owner of a proprietary lease may sublet the unit provided that any
sublease for a period in excess of six (6) months will require that the owner
obtain approval of the proposed sublessee in the same
manner as would be required under the provisions of this section if the owner
were transferring and assigning the proprietary lease and membership certificate to such sublessee. A sublease for a period of less than six (6)
months need only be informally approved by the Manager retained by the board of
directors of the corporation or the corporate officer authorized to give such
approvals, but the sublessee shall be subject to all of the
rules and regulations of the corporation.
(j) Approval or Disapproval by
Board. The approval or disapproval by the board of directors of any
transfer of a proprietary lease or sublease of any unit shall be final
and no liability shall be incurred by the board of directors by reason of such
approval or disapproval.
(k) Status Report. If this lease
is then in force and effect, lessor will, upon
request of lessee, deliver to the assignee a written statement that this lease
remains on the date thereof in force and effect; but no such statement shall be
deemed to be a warrantee that there is no default under the lease.
(I) Screening
Fees. The corporation shall require the deposit of a reasonable screening fee
simultaneously with the filing of any application for a transfer, assignment of
a proprietary lease or a sublease of any unit for a period of more than six (6)
months. The purpose of this screening fee is to defray the corporation's
expenses in determining whether to approve or disapprove the proposed transfer
or sublease. The screening fee shall be a reasonable fee to be set from time to time by
the board of directors of the corporation and in no event shall such screening
fee exceed the maximum fee allowed by law, the provisions of the articles of
incorporation or the by-laws.
PLEDGE
13. (a) A pledge and/or leasehold mortgage of this lease and the
membership certificate to which it is appurtenant shall not be a violation of
this lease; but, except as otherwise provided elsewhere herein, neither the pledgee or mortgagee nor any transferee of the pledged
security shall be entitled to have the membership certificates transferred of
record on the books of the lessor, nor to vote such
membership certificates, nor to occupy or permit the occupancy by others of the unit nor to
sell such membership certificates or this lease, without first obtaining the
consent of the lessor in accordance with and after
complying with all of the provisions of paragraph 12, as the case may be. The
acceptance by lessor of payments by the pledgee or any transferee of the pledged security on
account of rent or additional rent shall not constitute a waiver of the aforesaid
provisions.
(b) Notwithstanding the provisions of subparagraph (a) of this paragraph
13 or any other provisions of this lease to the contrary, the following
provisions shall govern and be binding:
(i) The lessor
agrees that it shall give to any holder of a security interest in the
membership certificate or pledgee or mortgagee of
this lease who so requests (any such holder being hereinafter referred to as a
"secured party"), a copy of any notice of default which the lessor gives to the lessee pursuant to the terms of this
lease, and if lessee shall fail to cure the default specified in such notice
within the time and in the manner provided for in this lease, then the secured
party shall have an additional period of time, equal to the time originally
given to the lessee, to cure said default for the account of the lessee or to
cause same to be cured, and the lessor will not act
upon said default unless and until the time in which the secured party may cure
said default or cause same to be cured as aforesaid, shall have elapsed, and the
default shall not have been cured.
(ii) If this lease is terminated by the lessor
as provided in paragraph 25 of this lease, or by agreement with lessee, (1) the
lessor promptly shall give notice of such termination
to the secured party and (2) upon request of the secured party made within
thirty (30) days of the giving of such notice to the lessor
(i) shall commence and prosecute a summary dispossess
proceeding to obtain possession of the unit, all at the expense of the secured
party, and (ii) shall, within sixty
(60) days of its receipt of the aforesaid request by the secured party, reissue
the aforementioned membership certificates to, and shall enter into a new
proprietary lease for the unit with the
secured party or any individual designated by the secured party, or the
individual nominee of the individual so designated by the secured party, all without the consent of the directors to
which reference is made in paragraphs 12 and 36. The secured party or the
individual designated by the secured party
(if and as long as such individual by himself or a member of his family does
not actually occupy the unit) shall have all of the rights provided for in
paragraphs 12, 16 and 29 of this lease as if he were a holder of unsold
membership certificates; and accordingly, no surplus shall be payable by the lessor to the lessee as otherwise provided in paragraph
26(c).
(iii) As to the priority between the lien of a secured party and the
lien for a corporation assessment, whether a regular or special assessment, the
lien for
assessment shall be subordinate and inferior to any institutional secured party
regardless of when said assessment was due, but not to any other secured party.
The corporation shall maintain a register of secured parties and said
register shall designate whether said secured party is an institutional secured
party or a noninstitutional secured party. If the owner of an
institutional security agreement-leasehold mortgage, or any other purchaser or
purchasers of a unit obtains title to the unit (proprietary lease and its
appurtenant membership certificate) as a result of the foreclosure of the
institutional security agreement-leasehold mortgage, or by voluntary
conveyance in lieu of such foreclosure, such acquirer of title, his successors
and assigns, shall not be liable for their share of common expenses or assessments by the
corporation pertaining to such unit or chargeable to the former owner of such
unit which became due prior to acquisition of title as a result of the foreclosure or voluntary conveyance in
lieu of said foreclosure. Such unpaid share of common expenses or assessments
shall be deemed to be common expenses collectable
from all of the members-owners of the units in the cooperative including such
acquirer, his successors and assigns. It is understood that such acquirer shall
be liable for his share of common expenses or assessments attributable to his
unit from the date of acquisition of said unit (proprietary lease and
appurtenant
Page 3
membership certificate for said
unit). In the event of the foreclosure or a voluntary conveyance in lieu of
foreclosure pertaining to a noninstitutional security
agreement-leasehold mortgage, then such acquirer of title, his successors and
assigns shall pay to the corporation on behalf of the lessee of the proprietary
lease, all rents and additional rents, common expense or maintenance charges and
other sums owed by the lessee to the lessor under
this lease for a period ending on the date of reissuance
of the aforementioned membership certificate of the lessor
including without limitation, sums owed under paragraphs 26(a) and 26(c) of
this lease.
(iv) If the purchase by the lessee of the membership certificate
allocated to the unit was financed by an institutional security agreement-leasehold mortgage,
and a default or an event of default shall have occurred under the terms of the
security agreement-leasehold mortgage or either of them entered into between the
lessee and the institutional secured party, and if (1) notice of said default
or event of default shall have been given to the lessor;
(2) an individual designated by the secured party, shall be entitled to become
the owner of the membership certificate and the lessee under this lease
pursuant to the terms of said security agreement-leasehold mortgage, or either
of them; (3) not less than five days' written notice of an intended transfer of
the membership certificate and this lease shall have been given to the lessor and the lessee, and (4) the lessor
shall be furnished with such affidavits, certificates, and opinions of counsel,
in form and substance
reasonably satisfactory to the lessor, indicating
that the foregoing conditions (1) through (4) have been met, then (a) a
transfer of the membership certificate and
the proprietary lease shall be made to such individual, upon request, and
without the consent of the directors, and (b) the individual to whom such
transfer is made (if and as long as
such individual, by himself or a member of his family, does not actually occupy
the unit) shall have all of the rights provided for in paragraphs 12, 16, and 29 of this lease as if he were a holder
of an unsold membership certificate.
(v) If the purchase by the lessee of the membership certificate allocated
to the unit was financed by a noninstitutional
security agreement-leasehold mortgage, and a default or event of default shall
have occurred under the terms of the security agreement-leasehold mortgage or
either of them entered between the lessee and the noninstitutional
secured party, and if (1) notice of said default or event of default shall have
been given to the lessor, (2) an individual
designated by the secured party, or the individual nominee of the individual so
designated by the secured party, shall be entitled to become the owner of the
membership certificate and the lessee under this lease pursuant to the terms of said
security agreement-leasehold mortgage, or either of them, (3) not less than
five (5) days written notice of an intended transfer of the membership
certificate and this lease shall have been given to the lessor
and the lessee, (4) there shall have been paid, on behalf of the lessee, all rent,
additional rent, common expenses and assessments and other sums owed by the
lessee to the lessor under this lease for a period ending on the date of
transfer of the aforementioned membership certificate as hereinafter provided,
and (5) the lessor shall be furnished with such
affidavits, certificates and opinions of counsel, in form and substance
reasonably satisfactory to the lessor, indicating
that the foregoing petitions (1) through (5) have been met, then (a) a transfer
of the membership certificate and the proprietary lease shall be made to such
individual, upon request, and without the consent of the directors, and (b) the
individual to whom such transfer is made (if and as long as such individual, by
himself or a member of his family, does not actually occupy the unit) will have
all of the rights provided for in paragraphs 12, 16 and 29 of this lease as if
he were a holder of unsold membership certificate.
(vi) Without the prior written consent of any secured party who has requested
a copy of any notice of default as hereinbefore provided in subparagraph (a) of this paragraph
13; (a) the lessor and the lessee will not enter into
any agreement modifying or cancelling this lease; (b)
no change in the forms, terms or conditions of this lease, as permitted by
paragraph 4, shall eliminate or modify any rights, privileges or obligations of
a secured party as set forth in this paragraph 13; (c) the lessor
will not terminate or accept a surrender of this lease, except as provided in
paragraph 16 of this lease and in subparagraph (b) (i)
of this paragraph 13; (d) the lessee will not assign this lease or sublet the unit; (e) any
modification, cancellation, surrender, termination or assignment of this lease
or any sublease of the unit not made in accordance with the provisions hereof
shall be void and of no effect, (f) the lessor will
not consent to any further pledge or mortgage on this lease or security
interest created in the membership certificate; (g) the lessee will not make
any further pledge or mortgage or create any further security interest in the membership
certificate or this lease; and (h) any such further pledge or mortgage or
security interest shall be void and of no effect.
(vii) A secured party claiming or exercising any of the rights and
privileges granted it pursuant to the provisions of this subparagraph (b) shall
be deemed
to have agreed to indemnify lessor for all loss,
liability, or expense (including reasonable attorneys' fees) arising out of
claims by lessee, or his successors or assigns, against lessor
or the secured party, or their respective successors or assigns, for acts or
omissions to act on the part of either lessor or
secured party, or their respective successors or assigns, pursuant to this
subparagraph (b). Lessor will give the secured party
written notice with reasonable promptness of any such claim against lessor and the secured party may contest such claim in the
name and on behalf of lessor with counsel selected by
the secured party at the secured party's sole expense. Lessor
shall execute such papers and do such things as are reasonably necessary to
implement the provisions of this subpart (vii).
(viii) Upon lessee's final payment under the loan given by the secured
party or upon prepayment of said loan, secured party will give lessor notice of such final payment or prepayment.
(ix) Upon request of a holder of an unsold membership certificate or
others deemed equivalent thereto (referred to in paragraph 29 below), lessor shall enter into an agreement (commonly known as a
"recognition agreement") with a secured party pursuant to which lessor will acknowledge and agree that the foregoing
provisions of this subparagraph (b) shall enure to
the benefit of, and apply to, the secured party. The recognition agreement may
contain such additional or different provisions as the secured party may request
and lessor shall execute and deliver same to lender
provided only that such additional or different provisions are approved by
counsel to lessor (which approval may not be
unreasonably withheld or delayed and shall be given or deemed given if same are
substantially similar tenor to the provisions of this subparagraph (b)). All
costs and expenses incurred by lessor in connection
with such recognition agreement (including legal fees) shall be borne entirely
by lessor and no charge therefore may be assessed to
said holder of an unsold membership certificate, or his equivalent, successors
or assigns, including the individual acquiring this lease and the appurtenant
membership certificate from the holder of an unsold membership certificate. The
provisions of this subpart (ix) shall not apply to a lessee who is not a holder of an
unsold membership certificate, or others deemed equivalent thereto.
(x) Subject to the
provisions of subpart (ix) above, a recognition agreement between a lender and lessor may contain such additional or different provisions as the lessor and said lender may agree to.
REPAIRS BY THE LESSEE
OR LESSOR
14. (a) The lessee shall take
possession of the unit and its appurtenances and fixtures "as is" as
of the commencement of the term hereof. Subject to the provisions of paragraph 3 above, the lessee
shall keep the unit clean and shall maintain, repair and replace any items that
are damaged by him, his guests, family or
subtenants, including all lighting and electrical fixtures and equipment, and
all meters, fuse boxes or circuit breakers and electrical wiring and conduits,
as well as all telephone and plumbing hook-ups.
REPORTS TO LESSOR
(b)Lessee shall promptly report to the
corporation any defects or needs for repairs, the responsibility for the remedy
of which is that of the corporation.
LESSOR'S
RESPONSIBILITY
(c)The lessor shall maintain, repair and replace at the lessor's own expense all of the following: (1) all common
areas; (2) all conduits, plumbing, wiring and other facilities for furnishing of
utility services; (3) all property owned by the cooperative; (4) all incidental
damage caused to a unit caused by any of the foregoing work. No lessee other than
the Developer shall make any alterations in the portions of the resort which
are to be maintained by the lessor, or make any additions thereto or
do any work which would jeopardize the safety or soundness of the cooperative
or impair any easement, without first obtaining approval of the directors of
the corporation.
LESSOR'S RIGHT TO
REMEDY LESSEE'S DEFAULTS
15. If the lessee shall fail for 15 days after notice
to keep the unit clean or to make repairs required hereunder, the lessor may clean the unit and make such repairs, or arrange
for others to do the same, or remove any objectionable condition or equipment,
or perform such act, without liability on the lessor;
provided that, if the condition
requires prompt action, notice of less than fifteen (15) days may be given or,
in case of emergency, no notice need be given. In all such cases the lessor, its agents, servants and contractors shall, as
between the lessor and lessee, be conclusively deemed
to be acting as agents of the lessee and all contracts therefore made by the lessor shall be so
construed whether or not made in the name of the lessee. If lessee shall fail
to comply with any of the other covenants or provisions of this lease within
the time required by a notice from lessor (not less
than 5 days), then lessor may, but shall not be
obligated, to comply therewith, and for
such purpose may enter upon the unit of lessee. The lessor
shall be entitled to recover from the lessee all expenses incurred or for which
it has contracted hereunder, such
expenses to be payable by the lessee upon demand as additional rent.
ALTERATIONS
16. The lessee shall not, without first obtaining the
written consent of the lessor, which consent shall
not be unreasonably withheld or delayed, make any alteration in, on or about the unit. The performance by lessee of
any work in the unit shall be in accordance with any applicable rules and
regulations of the lessor and governmental agencies having jurisdiction
thereof. The lessee shall not in any case install or use any appliances which
will overload the existing wiring.
Page 4
LEASE SUBORDINATE TO
MORTGAGES
17. This lease is and shall be subject and subordinate to all present
mortgages of record encumbering the cooperative and property at or prior to the
execution
of effective date of this agreement, and to any and all extensions,
modifications, consolidations, renewals, refinances, future advances and
replacements thereof. This clause shall be self-operative and no further
instrument of subordination shall be required by any such mortgage. In
confirmation of such subordination the lessee shall at any time, and from time to
time, on demand, execute any instruments that may be required by any mortgagee
for the purpose of more formally subjecting this lease to the lien of any Such
mortgage or mortgages and the duly elected officers, for the time being, of the
lessor are and each of them is hereby irrevocably
appointed the attorney-in-fact and agent of the lessee to execute the same upon
such demand, and the lessee hereby ratifies any such instrument hereafter executed by virtue of
the power of attorney hereby given.
MECHANIC'S LIEN
18. In case a
notice of mechanic's lien against the cooperative shall be filed purporting to be
for labor or material furnished or delivered at the resort the unit to or for the lessee, or anyone claiming
under the lessee, the lessee shall forthwith cause such lien to be discharged
by payment, bonding or otherwise; and if the lessee shall fail to do so within
ten (10) days after notice from the lessor, then the lessor may cause such lien to be discharged by payment,
bonding or otherwise, without investigation as to the validity thereof or of
any offsets or defenses thereto, and shall have the right to collect, as
additional rent, all amounts so paid
and all costs and expenses paid or incurred in connection therewith, including
reasonable attorneys' fees and disbursements, (including appellate fee and
costs), if any, together with
interest thereon from the time or times of payment.
COOPERATION
19. The lessee
shall always in good faith endeavor to observe and promote the cooperative
purposes for the accomplishment of which the lessor
is incorporated.
RIGHT OF ENTRY
20. The lessor and its agents and their authorized workmen shall be
permitted to visit, examine, or enter upon the unit at any reasonable hour of
the day upon notice or at any time and without notice in case of
emergency, to make or facilitate repairs or to cure any default by the lessee,
but the lessor shall thereafter restore the unit to
its proper and usual condition at lessor's expense if
such repairs are the obligation of lessor, or at
lessee's expense if such repairs are the obligation of the lessee or are caused
by the act or omission of the lessee or any of the lessee's family, guests,
agents, employees or subtenants. The right and authority hereby reserved do not impose, nor does the lessor assume by reason thereof, any responsibility or
liability for the care or supervision of the unit.
WAIVERS
21. The failure
of the lessor to insist, in any one or more
instances, upon a strict performance of any of the provisions of this lease, or
to exercise any right or option
herein contained, or to serve any notice, or to institute any action or proceeding,
shall not be construed as a waiver, or a relinquishment for the future of any such provisions, options or rights, but such
provision, option or right shall continue and remain in full force and effect.
The receipt by the lessor of rent, with knowledge of the breach of any covenant hereof,
shall not be deemed a waiver of such breach, and no waiver by the lessor of any provision hereof shall be deemed to have been made unless in a writing expressly
approved by the directors.
NOTICES
22. Any notice by
or demand from either party to the other shall be duly given only if in writing
and sent by certified or registered mail, return receipt requested; if by the lessee, addressed to the lessor at the principal office of the lessor;
if to the lessee, addressed to the lessee at the address maintained in the corporation records. Either party may, by notice
served in accordance herewith, designate a different address for service of
such notice or demand. Notices or demands shall be deemed given on the date when mailed, except notices of change
of address shall be deemed served when received.
REIMBURSEMENT OF
LESSOR'S EXPENSES
23. If the
lessee shall, at any time, be in default hereunder and the lessor
shall incur any expense (whether paid or not) in performing acts which the
lessee is required to perform, or in instituting any action or proceeding based
on such default, or defending or asseting a
counterclaim in, any action or proceeding brought by the lessee, the expense
thereof to the lessor including reasonable attorney's
fees and disbursements (appellate fee and costs, if any), shall be paid by the
lessee to the lessor, on demand, as additional rent.
LESSOR'S IMMUNITIES
24. The lessor shall not be liable, except by reason of lessor's negligence for any failure or insufficiency of
water supply, electric current, telephone or other service to be supplied by
the lessor hereunder, or for interference with light,
air, viewer other interests of the lessee. No abatement of rent or other
compensation or claim of eviction
shall be made or allowed because of the making or failure to make or delay in
making any repairs, alterations or decorations to the resort, or any fixtures
or appurtenances therein, or for space taken to comply with any law, ordinance
or governmental regulation, or for interruption or curtailment of any service
agreed to be furnished by the lessor, due to
accidents, alterations or repairs, or to difficulty or delay in securing supplies
or labor or other cause beyond lessor's control, unless due to lessor's negligence.
TERMINATION OF LEASE
BY LESSOR
25. If upon or any time after, the happening of any of the events mentioned in subdivisions (a) and (i) inclusive of this paragraph 25, the lessor shall give to the lessee a notice stating that the term hereof will expire on a date at least five (5) days thereafter, the term of this lease shall expire on the date so fixed in such notice as fully and completely as if it were the date herein definitely fixed for the expiration of the term, and all right, title and interest of the lessee hereunder shall thereupon wholly cease and expire, and the lessee shall thereupon quit and surrender the unit to the lessor, it being the intention of the parties hereto to create hereby a