EXHIBIT 10.19
AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE, entered into this 13th day of May,
2002, by and between 00000 XXXXXXXXX XXXX, LTD., a Delaware limited partnership,
hereinafter referred to as "Landlord," and POINTE BANK, a Florida banking
corporation, hereinafter referred to as "Tenant."
WHEREAS, Landlord and Tenant are parties to a lease agreement, dated
July 15, 1992, covering the Premises ("Prior Lease").
WHEREAS, the parties wish to extend the term of the Lease and modify
the terms as provided for herein.
NOW THEREFORE, the parties agree as follows:
1. PREMISES AND USE
1.1 Landlord, for and in consideration of the covenants,
conditions, agreements and stipulations herein contained, does hereby lease to
Tenant, and Tenant does hereby take and hire from Landlord, those certain
premises consisting of land (the "Land") which land is legally described on
Exhibit "A" attached hereto and a free-standing building, parking area and other
improvements on such land, with a street address of 00000 Xxxxxxxxx Xxxx, Xxxx
Xxxxx, Xxxxxxx 00000.
1.2 The freestanding building, parking area, other improvements
and the Land are hereinafter referred to as the "Premises".
1.3 To the extent permitted by applicable, law, statute, ordinance
and resolution, Tenant shall be permitted to use the Premises for banking and
general office.
1.4 This Lease is intended to operate as a triple net, bond type
Lease with all responsibilities and costs of ownership and occupancy of the
Premises being the exclusive and sole responsibility and expense of the Tenant
(except as expressly otherwise provided in this Lease) for the period of the
leasehold and the applicable option periods.
2. TERM
2.1 Landlord and Tenant agree that the Prior Lease shall control
through August 31, 2002, and until such date shall remain in full force and
effect. Except as specifically provided herein, this Lease shall control as of
September 1, 2002, hereinafter referred to as the "Commencement Date", and shall
end at midnight August 31, 2012, hereinafter referred to as the "Termination
Date."
2.2 Tenant shall, if not then in default of the Lease, have the
option to renew this Lease for two (2) successive five (5) year periods on the
same terms and conditions herein contained, provided Tenant gives Landlord six
(6) months prior written notice of its election to exercise an option prior to
the end of the Term hereof or extended Term. As used herein, the "Term" of this
Lease includes all option periods as to which Tenant exercises the option to
extend. If Tenant fails to give Landlord
timely written notice as required herein, Tenant shall be deemed to have
rejected the option to renew this Lease. Time is of the essence to this
provision.
2.3 Tenant will deliver up and surrender to Landlord possession
of the Premises upon the expiration or Termination of this Lease. Tenant shall
surrender all keys to the Premises to Landlord and shall deliver the Premises
clean and neat and in the same condition and repair which they are required to
be kept by Tenant throughout the term hereof, except to the extent Tenant is
required by Landlord or is permitted to and does elect to remove any trade
fixtures or equipment. Prior to the expiration of the term of the Lease, Tenant
shall remove all its trade fixtures and equipment from the Premises and repair
any damage to the Premises caused by removal of trade fixtures or equipment
required or permitted to be removed hereunder. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of the Lease. Any items remaining in the Premises after the expiration of
the term of the Lease shall be deemed abandoned for all purposes and shall
become the property of Landlord and the latter may dispose of the same without
liability of any type or nature, provided Landlord may at its sole option charge
Tenant for the cost of such disposal, if any.
3. RENT
3.1 Covenant To Pay Rent
Tenant hereby covenants and agrees to pay to Landlord as rent
for the Premises (all of which is collectively referred to as "Rent") all of the
following:
a. Base Rent
An annual basic rent (the "Basic Rent") in the sum of Three Hundred
Twelve Thousand Three Hundred Twenty-Eight and 50/100 ($312,328.50) dollars plus
applicable sales tax, payable in monthly installments of $26.027.38, plus
applicable sales tax, in advance of the first day of each month during each
successive twelve months period beginning on the Commencement Date ("Lease
Year"), during the Term of this Lease; and
b. Additional Rent
Additional rent (the "Additional Rent") shall mean, without limitation,
any amounts of money payable to Landlord referred to in any provision of this
Lease while this Lease is in effect, which shall include any and all charges or
other amounts which Tenant is obligated to pay to Landlord under this Lease,
other than Basic Rent plus applicable sales tax.
3.2 Rent Adjustment
Basic Rent shall be adjusted in each Lease Year following the initial
Lease Year or portion thereof, as provided in Article 4 hereof.
3.3 Payment Method
Basic Rent and all Additional Rent as provided for under this Lease
shall be paid promptly when due, in cash or by check, in lawful money of the
United States of America, without notice or
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demand and without deduction, diminution, abatement, counterclaim or set-off of
any amount or for any reason whatsoever payable to Landlord, and delivered to
care of Lehnardt & Lehnardt LLC at its offices at the address as stated in
Section 28 or to such other person and place as may be designated by notice in
writing from Landlord to Tenant from time to time.
3.4 Security Deposit
Under the Prior Lease with Landlord, Tenant deposited with Landlord the
sum of $27,763.00 as a security deposit (the "Security Deposit"). The Security
Deposit (which shall not bear interest to Tenant) shall be considered as
security for the payment and performance of the obligations, covenants,
conditions and agreements contained in this Lease. The Security Deposit shall
not constitute an advance payment of any amounts owed by Tenant under this
Lease, or a measure of damages to which Landlord shall be entitled upon a breach
of this Lease by Tenant or upon Termination of this Lease. Landlord may, without
prejudice to any other remedy, use the Security Deposit to the extent necessary
to remedy any default in the payment of Basic Rent or Additional Rent or to
satisfy any other obligation of Tenant hereunder, and Tenant shall promptly, on
demand, restore the Security Deposit to its original amount. If Landlord
transfers its interest in the Premises during the Term of this Lease, Landlord
may assign the Security Deposit to the transferee who upon such transfer shall
become obligated to Tenant for its return pursuant to the Terms of this Lease,
and thereafter Landlord shall have no further liability for its return.
As further security for Tenant's obligations hereunder Tenant hereby
assigns to Landlord all of its interest in any subleases regarding the Premises,
as they may exist from time to time.
4. COST OF LIVING ADJUSTMENT
4.1. Method of Determining Cost of Living Adjustment
Effective on the first day of September, 2003, and on each
September 1st thereafter, so long at this Lease remains in effect, the Basic
Rent set forth in Section 3 shall be increased; and Tenant thereafter covenants
to pay Landlord, during each ensuing Lease Year, such new adjusted Basic Rent in
an amount which, in each instance, shall be the greater of the following: (a)
one hundred and two percent (102%) of the Basic Rent payable at the end of the
preceding Lease Year; or (b) that amount determined by multiplying the Basic
Rent payable at the end of the preceding calendar year, by a multiplier equal to
a fraction, the numerator of which shall be the Consumer Price Index ("CPI"),
now known as the "United States Department of Labor, Bureau of Labor Statistics,
Consumer Price Index, U.S. City Average for all Urban Consumers, Seasonally
Adjusted, All items (1982-1984 = 100)," as of the month of July preceding the
commencement of the new Lease Year and the denominator of which shall be the CPI
as of the month of July immediately preceding the Commencement Date ("Base
CPI"), provided, however, such amount shall not exceed 104% of the Basic Rent
payable at the end of the immediately preceding Lease Year. In no event shall
Base Rent increase less than two percent (2%) or more than four percent (4%)
over the prior year's Basic Rent.
4.2 Equal Monthly Installments
The resulting adjusted Basic Rent, computed on the basis of Section
4.1, shall be payable in equal monthly installments, each in advance, on the
first day of each month of the applicable Lease Year.
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4.3 Alternative to CPI
In the event the CPI is discontinued, ceases to incorporate a
significant number of the items now incorporated therein, or a substantial
change is made in such CPI, the parties hereto shall attempt to agree on an
alternative formula and, if agreement cannot be reached the matter shall be
submitted to arbitration under the rules of the American Arbitration Association
then in effect.
5. Leasehold Improvements
5.1 Landlord shall:
a. enter into a contract with System Tech Services, Inc., or
any other licensed air condition contractor (the "A/C Contractor"), the terms of
such contract being described in Exhibit "B" attached hereto (the "A/C
Contract") and assume all responsibility for payment thereunder. The A/C
Contract shall provide that work will commence within thirty (30) days of the
date hereof. Once all work has been completed by the' A/C Contractor
substantially in accordance with the A/C Contract, all repairs and replacements
to the Building's air conditioning system will be the responsibility of Tenant
except as described below. The costs incurred by Landlord under the A/C Contract
shall not be funded by Leasehold Improvement Reimbursements as defined below.
Landlord will request the A/C Contractor to perform its work with cognizance of
the ongoing daily business of Tenant, however, Tenant acknowledges that the work
or A/C Contractor will be performed during normal business hours and will at
times interfere with the business of Tenant. Certain work shall be performed
during non-business hours (nights and weekends), Tenant shall be responsible for
providing access to the A/C contractor upon reasonable advance notice.
b. maintain the large air handler on the second floor so it is
capable of providing, when all other components are working as intended and
without user error, to cool 90% of the interior space of the Premises to a
temperature of 74 to 76 degrees at 54 degrees relative humidity ("RH"), plus or
minus 4 degrees RH, based on an outdoor temperature of 92 degrees at 78 degrees
"wet bulb". However, Tenant shall have the responsibility for periodic routine
maintenance of the HVAC system, which shall include, without limitation,
periodically changing all air filters, including those in the air handler. When
the air handler is not capable of meeting the above described standard and
repairs will not allow the air handler to meet the standard, Landlord shall
replace the air handler and all costs associated with it's installation,
including without limitation reconfiguration or repair work, if necessary. A
rebuild of substantially all new parts inside of the air handler with a minimum
warranty of three (3) years shall be deemed replacement. Following replacement
of the air handler, Tenant shall be responsible for maintenance of the entire
premises. If the Tenant or its service contract provider believe that the air
handler requires repairs, Tenant shall delivery written notice to Landlord.
Landlord at its selection will have its contractor make the repairs or direct
the repairs to be performed by Tenant's service contractor. If Landlord's
contractor determines that the required repairs were not the result of the air
handler malfunctioning, Tenant shall be solely responsible to reimburse Landlord
for the cost of the repairs. After the replacement of the air handler as
provided for herein, Tenant shall expand the service contract to cover the air
handler.
c. repaint the exterior of the Building in a good xxxxxxx-like
manner (including pressure wash, priming and painting) and in a color acceptable
to Tenant, and trim trees as appropriate and remove and xxxxx grind 6 Acacia
trees and replace with 0 Xxxx Xxx xxxxx (0xx XX).
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d. reimburse to Tenant an amount up to $150,000.00 ("Leasehold
Improvement Reimbursements") for Leasehold Improvements. To the extent not
previously disbursed, the right to be reimbursed for Leasehold Improvements
shall expire on September 1, 2003. The term Leasehold Improvements shall mean
any and all improvements and renovations Tenant makes in the interior or on the
exterior of the Premises which are not the responsibility of the Landlord,
together with any and all architectural and engineering fees incurred by Tenant
in connection with the same and in connection with the entering into of this
Lease. Leasehold Improvements shall not include the purchase of any furniture or
similar personal property. Leasehold Improvements may be commenced prior or
subsequent to the Commencement Date, as Landlord and Tenant shall agree.
5.2 In making any Leasehold Improvements, Tenant shall comply
with the following conditions:
a. No Leasehold Improvements shall be undertaken until Tenant
shall have procured and paid for, so far as same may be required for such
Leasehold Improvements, all necessary permits and authorizations of all
governmental authorities having jurisdiction.
b. Prior to making any Leasehold Improvements requiring a
building permit, Tenant will submit to Landlord, plans and specifications
showing in detail the proposed work and no such work shall commence until and
unless Tenant shall have received the Landlord's written approval of said plans
and specifications, which approval shall not be unreasonably withheld or delayed
(as approved the "Plans and Specifications"). After review and approval of such
Plans and Specifications no changes may be made without Landlord's approval not
to be unreasonably withheld or delayed. The cost estimates for all Leasehold
Improvements requiring Plans and Specifications shall be prepared by a licensed
architect and/or engineer selected by Tenant. Any Leasehold Improvements
effecting the structural elements of the Premises approved by Landlord shall be
performed under the supervision of such architect and/or engineer.
c. Before commencing any Leasehold Improvements, Tenant shall,
at its expense, obtain any necessary or appropriate riders to Tenant's and
Landlord's insurance policies, as appropriate, for fire and extend coverage,
comprehensive general public liability and property damage insurance covering
the risks during the course of such work, naming Landlord and Tenant as
insureds.
d. Where Leasehold Improvements require Plans and
Specifications, such Leasehold Improvements shall be made in accordance with the
Plans and Specifications and shall be performed promptly in a good and
workmanlike manner, using materials of the same or better quality as those being
replaced, and such Leasehold Improvements and the Premises shall be in
compliance with all applicable laws, municipal ordinances, building codes,
permits and requirements of all governmental authorities having jurisdiction,
and of the local Board of Fire Underwriters, if any, and, upon completion,
Tenant shall obtain and deliver to Landlord a copy of the certificate of
completion, if required.
e. The cost of any Leasehold Improvements shall be promptly
paid by Tenant so that the Premises at all times shall be free of liens for
labor and materials supplied for the Leasehold Improvements. Tenant shall not
permit or suffer to be filed or claimed against the Premises any claim of lien
or liens of any kind by any person claiming under, by, through or against
Tenant.
f. Tenant must put all persons on notice of the fact that
Tenant does not have the power to subject the interest of the Landlord in the
Premises to any mechanic's liens. All persons who
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furnish work, service or materials to the Premises upon the request of Tenant or
any person claiming under, by or through Tenant, must look to the interest of
Tenant and not to that of Landlord. The provisions of this Section are intended
to benefit only Landlord and Tenant and shall not be deemed to confer rights in
favor of any third party.
g. All Leasehold Improvements made in or upon the Premises by
Tenant shall immediately belong to Landlord and become part of the Premises,
except to the extent of any movable trade fixtures and equipment of Tenant which
may be removed as provided in Section 8.3.
h. Tenant shall indemnify, defend and hold Landlord harmless
from and against any and all injury, loss, claims or damage to any person or
property occasioned by or arising out of any work done by Tenant or its
employees, agents or contractors in making any Leasehold Improvements.
i. Tenant shall permit Landlord and its duly authorized
agents, free access to the Premises during business hours upon reasonable notice
to Tenant, and make available for audit and inspection, at any reasonable time
by Landlord, or its duly authorized agents, all of the property, equipment,
books, contracts, records, accounts, ledgers, Plans and Specifications and other
property and documents relating to the construction of the Leasehold
Improvements. Tenant shall also provide to Landlord and its duly authorized
agents such information as is in Tenant's custody or control relating to the
construction of the Leasehold Improvements as they may from time to time
reasonably request. From and after the occurrence of an Event of Default,
Landlord and its duly authorized agents may exercise any and all of the rights
to inspect the Premises with or without notice to Borrower or Tenant, without
any delay whatsoever, and upon three (3) days notice may conduct an audit and
inspection of books, contracts, records, accounts, ledgers, Plans and
Specifications and other documents and property relating to the construction of
the Leasehold Improvements all of which shall be at Tenant's sole cost and
expense.
5.3.1 Reimbursement-Leasehold Improvements Requiring Permit/Plans.
Tenant shall make or construct Leasehold Improvements as required herein at
Tenant's expense, provided Tenant shall be entitled to reimbursement for
Leasehold Improvement Reimbursements as provided herein. Tenant shall submit to
Landlord a binding cost bid by a Contractor acceptable and in a form reasonably
acceptable to Landlord with a line item breakdown of values for construction of
the Leasehold Improvements. If the binding cost bid is acceptable to Landlord
and is equal to or less than a sum equivalent to the un-applied balance of the
Leasehold Improvement Reimbursements, Tenant shall obtain necessary permits and
commence the Leasehold Improvements in accordance with the Plans and
Specifications. If the binding cost bid or the contractor is not acceptable to
Landlord, the parties shall work to make such revisions as are reasonably
required by Landlord. If the binding cost bid exceeds a sum equivalent to the
un-applied balance of Leasehold Improvement Reimbursements, Tenant shall within
the ensuing ten (10) days either: (a) agree to pay a sum ("Tenant's
Contribution") that, with the un-applied balance of the Leasehold Improvement
Reimbursements, will equal the binding cost bid; or (b) submit revised Plans and
Specifications (which may include abandonment of elements of Leasehold
Improvements) reflecting changes that will reduce specific line item values so
that the total binding cost bid is reduced to a sum equal to or less than the
unapplied balance of the Leasehold Improvement Reimbursements. If neither option
(a) nor (b) is exercised by Tenant within the time period provided, Tenant will
be deemed to have exercised option (a). Landlord shall have no obligation to
make any disbursements hereunder until Tenant's Contribution has been paid in
full.
Upon Landlord and Tenant's approving the Plans and Specifications and
issuance of all required permits, Tenant shall cause its designated contractor
("Tenant's Contractor") to construct the
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Leasehold Improvements in accordance with the Plans and Specifications, which
shall be completed in a good and workmanlike manner in accordance with all
applicable governmental codes and regulations. Additionally, Tenant shall cause
Tenant's Contractor to repair or replace, at Tenant's Contractor's option and
expense, all other defects in workmanship and materials for all work performed
by Tenant's Contractor, its agents or subcontractors, on the Building and the
Leasehold Improvements for which Tenant's Contractor is provided notice within
one (1) year of substantial completion of the Leasehold Improvements. If Tenant
requests any modification, deletion or addition to the Plans and Specifications
prior to the completion of the Leasehold Improvements, said change shall be in
writing and agreed to by Landlord, Tenant and Tenant's Contractor and the work
shall be performed by Tenant's Contractor at Tenant's expense promptly paid as
additional Tenant's Contribution as provided for herein.
a. Conditions for Interim Disbursements.
i) Tenant's Contractor and Tenant Certification. Receipt
by Landlord of a Certificate of the Tenant's Contractor and the principal of
Tenant in the form acceptable to Landlord, that (A) construction through the
date of such certification has been completed in a good and workmanlike manner
and in compliance with applicable laws and substantially in accordance with the
Plans and Specifications; (B) upon disbursement by Landlord of funds requested
by the Request for Disbursement, sufficient funds will be available to pay in
full all obligations for materials delivered, work performed, services provided
and other costs incurred in connection with the Leasehold Improvements through
the end of the period covered by such Request for Disbursement; and (C)
construction of the Leasehold Improvements is proceeding on schedule to permit
substantial completion on September 1, 2003;
ii) Lien Waivers. Receipt by Landlord of lien waivers
from (A) the Tenant's Contractor, and (B) from all subcontractors and
materialmen performing work on or supplying materials to the Leasehold
Improvements, for work performed and included and paid by disbursements before
the current Request for Disbursement for all subcontractors and the current
request for the Tenant's Contractor which as to the Tenant's Contractor may be
conditioned upon current payment;
iii) Receipt by Landlord of a Certificate of the architect
who prepared the Plans and Specifications or such other person selected by
Tenant and approved by Landlord to monitor the progress of construction (the
"Construction Monitor") stating (A) in such Construction Monitor's best
professional estimate the percentage of the Leasehold Improvements that has been
completed, including the cost of materials on site as of the date of the
certificate, and (B) that such construction has been completed in accordance
with the Plans and Specifications and as appropriate a vised binding cost bid
from the approved Contractor;
iv) Tenant shall not be in default of its obligations under
the Lease,
b. Final Disbursement. Landlord shall not make the Final
Disbursement unless and until all of the following conditions (the "Final
Disbursement Conditions") have been satisfied:
i) Certificate of Occupancy, Etc. Receipt by Landlord of
(A) all permits and approvals required for the normal use and occupancy of the
Premises, including a final certificate of occupancy or certificate of
completion shall have been duly issued by the appropriate governmental
authorities having jurisdiction;
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ii) Final Lien Waivers. Receipt by Landlord of final
unconditional lien waiver (subject only to final payment) from the Tenant's
Contractor and all mechanics or materialmen who worked performed services at the
Premises as part of Leasehold Improvements;
iii) Construction Monitor Certification. Receipt by
Landlord of a certificate of the Construction Monitor stating Leasehold
Improvements have been completed in a good and workmanlike manner in compliance
with all applicable laws and in accordance with the Plans and Specifications.
iv) Other Evidence of Completion. Receipt by Landlord of
such additional evidence as they may reasonably require that the Leasehold
Improvements has been completed in a good and workmanlike manner in compliance
with all applicable laws and in accordance with the Plans and Specifications
(except for the punch list items certified by the Construction Monitor);
v) Copy of the As-Built Plans certified to Landlord.
vi) Tenant shall not be in default of its obligations under
the Lease.
c. Disbursements Do Not Constitute Waiver. No disbursement of
any funds from the Landlord shall constitute a waiver of any of the conditions
of the obligation of Landlord to make further Disbursements or, in the event
Tenant is unable to satisfy any such condition for a period of thirty (30)
consecutive days, no such disbursement shall have the effect of precluding
Landlord from thereafter declaring such inability to be an Event of Default
hereunder
d. Procedures for Disbursements. Landlord shall promptly review
or cause to be reviewed any Request for Disbursement and accompanying
documentation and shall, on or before the first business day fifteen (15) days
after receipt thereof, either (x) if the Request for Disbursement is in
appropriate form, and is accompanied by all other documentation required under
this Lease as conditions to the requested disbursement, make the required
Disbursement, as provided in the Request for Disbursement; or (y) if the Request
for Disbursement is not in appropriate form, or is not accompanied by all other
documentation required under this Lease as conditions to the requested
disbursement, advise Tenant of any deficiency for entitlement to such requested
disbursement. Landlord's review of such information shall be limited to whether
the documentation required pursuant to this Agreement as a condition to and in
support of the requested Disbursement was presented in due form, and without
investigation or inquiry into any details of any supporting documentation.
Landlord shall not unreasonably condition approval of any disbursement on any
additional receipts, approvals, inspections or other matters.
5.3.2 Reimbursement--Improvements Not Requiring Plans/Permit.
With respect to Tenant Improvements made by Tenant which do not require Plans
and Specifications and a building permit, Tenant shall deliver to Landlord a
paid invoice for such Tenant Improvements which shall be reimbursed by Landlord
within fifteen (15) days of receipt until Tenant Improvement Reimbursements have
been fully advanced.
5.4 In conjunction with the Leasehold Improvements, Tenant and
Landlord will follow the procedures described herein with respect to the roof:
On or prior to the Commencement Date, Tenant and Landlord will mutually select a
roof expert, who shall inspect the roof and provide the parties with a report
indicating the condition of the roof as of the Commencement Date. The cost
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of such inspection will be paid for with Leasehold Improvement Reimbursements
fund. After the Commencement Date, Tenant shall be responsible for the cost of
and make all roof repairs up to an aggregate cost of $1,000 per Lease Year. Any
roof repairs in excess of an aggregate sum of more than $1,000 per Lease Year
shall at Landlord's discretion acting reasonably be performed by Landlord, or if
by Tenant, be approved in advance by Landlord, acting reasonably and shall be
paid for by Landlord. Notwithstanding the foregoing, Landlord shall, within its
exclusive discretion, determine when the roof needs to be replaced. Upon
replacement of the roof by Landlord, Landlord shall have no further obligations
regarding the roof and Tenant shall be responsible for all maintenance and
repair regarding the roof. Landlord shall assign to Tenant all warranties
relating to the roof replacement.
5.5 Upon the earlier of the Commencement Date or completion of the
Leasehold Improvements, individually or collectively, Landlord shall have no
further responsibility for repair, maintenance or replacement, whether under the
Prior Lease or this Lease, except that Landlord shall be responsible for the
structural soundness of the exterior walls and for roof repairs or replacement,
as described in Section 5.4.b hereof and the second floor air handler as
described in Section 5.1.b hereof.
6. PROPERTY TAXES, ASSESSMENT
6.1 Tenant shall pay all Real Property Taxes (as defined below)
applicable to the Premises and sales tax due thereon during the Term of the
Lease on or before their due date. Any payment due hereunder shall be prorated
as of the Commencement Date and Termination Date of this Lease.
6.2 Unless Landlord has agreed otherwise, Tenant shall pay monthly
as Additional Rent, in advance 1/12 of estimated Real Property Taxes so that by
November 1st of each year Landlord has received full estimated tax amount.
Landlord shall estimate taxes for the first Lease Year and thereafter during the
Term of the Lease, will provide estimates of the Real Property Taxes for the
following Lease Years. Commencing with the first month of the Term and
continuing thereafter during the full Term of this Lease, Tenant agrees to pay
estimated Real Property Taxes for each Lease Year (such estimate to be prorated
for any partial Lease Year) at the beginning or end of each month at the same
time Rent is due and owing. As soon as reasonably possible after receiving the
actual amount of Real Property Taxes, Landlord shall provide Tenant with a
statement thereof accompanied by a statement showing the estimated amount paid.
In the event that the estimated taxes paid exceed the actual Real Property Taxes
for the period shown on the Statement, Landlord shall pay Tenant (in the form of
cash or, at Landlord's option, a credit against rentals next due) an amount
equal to such excess. In the event that the actual Real Property Taxes exceed
the estimated taxes paid for the period shown on the statement, Tenant shall pay
Landlord, within ten (10) days or receipt of the statement, an amount equal to
the difference. If Tenant should fail to pay any Real Property Taxes, required
to be paid by it hereunder, in addition to any other remedies provided herein,
Landlord may, in its sole discretion, pay such Real Property Taxes. Any sums so
paid by Landlord shall be deemed to be Additional Rent owed by Tenant to
Landlord and due and payable as Additional Rent five (5) days after written
notice from Landlord of such payment with interest at the maximum lawful rate,
not to exceed eighteen percent (18%) per annum from the date such amount is due
to Landlord.
6.3 If at any time during the Term of this Lease the present
method of taxation shall be changed so that, in lieu of the whole or any part of
any taxes, assessments, levies or charges levied, assessed or imposed on real
estate and the improvements thereon there shall be levied, assessed or imposed
on Landlord a capital levy or other tax directly on the Rents received from
Tenant and/or any assessment, levy or charge measured by or based in whole or in
part, upon such Rents, then all such
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taxes, assessments, levies or charges, or the part thereof so measured or based,
shall be deemed to be included with the Term real property taxes for the
purposes hereof and shall be paid by Tenant.
6.4 As used herein, the Term "Real Property Taxes" shall include
any form of assessment, license fee, tax on rentals or other payments due for
the benefit of Landlord, sales tax on rental receipts, levy, or tax imposed by
any authority having the direct or indirect power to tax, including any city,
county, state, or federal government, or any school, agricultural, lighting,
drainage, or other improvement district thereof, as against any legal or
equitable interest of Landlord in the Premises or as against Landlord's right to
Rent or other income therefrom.
6.5 Tenant shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment, and all other
personal property contained in the Premises. If any of Tenant's personal
property shall be assessed with Landlord's real property, Tenant shall, at
Landlord's option, either pay to Landlord the taxes attributable to Tenant
within ten (10) days after receipt of written statement setting forth the taxes
applicable to Tenant's property or pay such taxes directly to the taxing
authorities prior to delinquency.
6.6 Provided Tenant shall have paid and continue to pay all Real
Estate Taxes when due, Tenant may contest by appropriate proceedings, the
amount, validity or application of any taxes by appropriate proceedings
diligently conducted in good faith provided that (a) no part of the Premises or
of any Rent would be subject to loss, sale or forfeiture before determination of
any contest, (b) such proceedings shall not affect the payment of Rent hereunder
or prevent Tenant from using the Premises for its intended purposes, and
(c)Tenant shall notify Landlord of any such proceedings within 10 days after the
commencement thereof, and shall describe such proceedings in reasonable detail.
Tenant will conduct all such contests in good faith and with due diligence and
will, promptly after the determination of such contest, pay and discharge all
amounts which shall be determined to be payable therein. Notwithstanding
anything to the contrary contained herein, Tenant may not take any action which
binds the Premises without consulting the Landlord.
6.7 Refunds and Rebates. Landlord covenants and agrees that if
there shall be any refunds or rebates of the taxes paid by Tenant, such refunds
or rebates shall belong to Tenant. Any refunds received by Landlord shall be
deemed trust funds and as such are to be received by Landlord in trust and paid
to Tenant forthwith. Tenant will, upon the request of Landlord and at no cost to
Landlord, sign any documents which may be necessary to secure the payment of any
such refunds or rebates.
7. MAINTENANCE AND REPAIRS
Except as otherwise provided in Sections 5.4 and 5.5 hereof, Tenant
will keep the Premises in good order and repair. Landlord agrees to assign to
Tenant any and all assignable warranties and service contracts for any labor and
materials used on or in the Premises prior to the Commencement Date. Tenant
shall assign to Landlord any and all assignable warranties and service contracts
for any labor and materials used on or in the Premises upon termination. The
delivery of such assignment shall be a condition for return of the Security
Deposit.
8. ALTERATIONS
8.1 Except for the Leasehold Improvements as set forth in
Section 5.2 of this Lease and subject to Landlord's approval not to be
unreasonably withheld, Tenant, at its own expense during the Term of the Lease,
may make alterations or additions to the Premises which it may deem necessary.
Page 10
It shall be reasonable for Landlord to withhold its approval if the value of the
Premises will be reduced or adversely affect the structural or mechanical
systems of the Premises. No approval is required for alterations or additions to
the Premises which are non-structural and do not require obtaining a building
permit from the local municipal authorities.
8.2 All salvage from such work shall belong to Tenant. All
permanent improvements shall belong to Landlord.
8.3 All trade fixtures, equipment and other personal property
owned by Tenant and installed or placed by it in the Premises may be removed by
Tenant at any time during the Term. Whether Tenant or Landlord removes any such
trade fixture, equipment and other personal property, Tenant shall repair, or be
liable for the cost of repair as Additional Rent if repair is made by Landlord,
any damage to the Premises occasioned by such removal.
9. CASUALTY INSURANCE AND DAMAGE TO PREMISES
9.1 Tenant shall at all times maintain "all risk" insurance
(including, without limitation, hurricane and flood) on the Premises insuring
against all risks of physical loss or damage in the amount of one hundred
percent (100%) of the full replacement cost of the improvements located on the
Premises with a deductible not to exceed $5,000. A copy of such policy or
certificate thereof shall be furnished to Landlord as requested by Landlord. The
Landlord and any mortgagee named by Landlord from time to time shall be named as
an additional insured and as mortgagee, respectively, on such policy, and such
policy shall state that it may not be canceled or modified prior to giving the
Landlord and mortgagee, if any, thirty (30) days prior written notice. The
proceeds from any such insurance shall be utilized to repair and rebuild the
Premises as provided in this Section 9. Any deficiency between the cost of
repair and rebuilding, and the insurance proceeds, shall be paid by Tenant.
9.2 Except as otherwise provided in Section 9.3 below, in the
event the Premises shall be partially damaged or totally destroyed by fire or
other disaster, Tenant shall promptly cause same to be restored, subject to such
changes as Tenant may reasonably require and Landlord approves prior to
commencement of reconstruction. Due allowance shall be made for (i) reasonable
time necessary (not to exceed ninety (90) days) for Tenant to adjust the loss
with insurance companies, and (2) delay occasioned by strikes, lockouts, and
conditions beyond the reasonable control of Tenant, provided such delay does not
exceed six (6) months without Landlord's consent.
9.3 Should the Premises, or a portion thereof, be rendered
untenantable by fire or other disaster, the Rent shall not xxxxx.
If such damage occurs during the last two (2) years of the Term of this
Lease and the cost of restoration of the Premises would be more than one third
(1/3) of the replacement value of the Premises, as certified by a registered
architect, Landlord or Tenant shall each have the right to terminate this Lease
by written notice to the other given within thirty (30) days after such
occurrence. If this Lease is terminated then all insurance proceeds attributable
to the Premises including without limitation rental interruption or cost to
repair damages shall be paid to Landlord. Tenant shall be responsible for any
shortfall in the insurance for deductibles, inadequate insurance or costs of
carry. If Landlord elects to terminate this Lease, such termination shall not be
effective if Tenant elects (within ten (10) days after receipt of Landlord's
notice of termination) to renew this Lease by exercising any
Page 11
remaining options which are described in Section 2.3 hereof for an additional
aggregate period of not less than ten (10) years. The provisions of this
Paragraph shall survive the termination of this Lease.
9.4 Provided this Lease is not terminated as set forth in this
Section 9, the Term of this Lease shall be automatically extended for a period
of time equal to the period of time the Premises are totally untenantable due to
fire or other disaster.
9.5 Tenant shall also maintain Workers' compensation insurance in
accordance with statutory law and employers' liability insurance with a limit of
not less than $100,000 per employee and $500,000 per occurrence; Builders risk
insurance insuring perils covered by the causes of loss - special form (all
risk) shall be purchased for the value of the alteration and/or additions made
to the Premises when the work is not insured under the Tenant's property
insurance policy and such other insurance as Landlord may, from time to time,
reasonably require, or which may, from time to time, be required by Lender so
long as such other insurance is customarily required to be carried on similar
properties by institutional lenders in the industry.
9.6 The policies required to be maintained by Tenant under this
Lease, shall be with companies having an insurance company claims paying rating
equal to or greater than a Best rating of A X. Insurers shall be licensed to do
business in the state in which the Premises are located and domiciled in the
USA. Such policies shall maintain commercially reasonable deductibles.
Certificates of insurance shall be delivered to Landlord prior to the
Commencement Date and annually thereafter at least thirty (30) days prior to the
expiration date of any prior policy. Each policy of insurance shall provide
notification to Landlord at least thirty (30) days prior to any cancellation or
modification to reduce the insurance coverage.
10. TITLE AND QUIET ENJOYMENT
10.1 Landlord warrants that it is the owner in fee of the Premises,
that the Premises are not subject to any liens or mortgages, and that Landlord
has full right and title to execute and perform this Lease. So long as this
Lease is in force and effect, Landlord agrees that it will not permit the
disturbance of, nor interference with, Tenant's quiet enjoyment of the Premises
in accordance with the Terms of this Lease.
10.2 If subsequent to the Commencement Date, Landlord secures a
mortgage, deed of trust or other encumbrance in the nature of a mortgage, other
than current year's taxes and other governmental liens, which is prior and
superior to this Lease or which is given to secure a loan, Landlord will deliver
to Tenant, a subordination, attornment and non-disturbance agreement
("Non-Disturbance Agreement") in a form reasonably acceptable to such mortgagee
or trustee duly executed by such mortgagee or trustee, to the effect that so
long as Tenant is not in default hereunder beyond any applicable cure period,
its tenancy will not be disturbed.
11. ASSIGNMENT AND SUBLETTING
11.1 Tenant may not assign or sublease this Lease, in whole or in
part, (including the transfer of a beneficial interest) without the express
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Landlord consents to a sublease of not more than a cumulative 25% of
the leaseable space in the building provided the following criteria are
satisfied.
Page 12
1. All subleases must acknowledge they are subordinate to this Lease, and
will terminate upon termination of this Lease.
2. Contain an attornment clause allowing Landlord to continue to sublease
as a direct lease following termination of this Lease.
3. Acknowledges subtenant is not in privity contract with Landlord and
has no ability to make any claim on Landlord.
4. Incorporates the restrictions on Lease, insurance, compliance with laws
and regulations, mechanics liens and the like contained herein.
5. Contains an absolute prohibition on further assignment or subletting.
Landlord shall consent or withhold such consent by notice to Tenant within
fifteen (15) days of Tenant's notice requesting Landlord's consent and, should
Landlord withhold its consent, then it shall provide Tenant with the reasons it
is doing so. If Landlord fails to respond to Tenant's request within such
fifteen (15) day period, then Landlord shall be deemed to have consented to such
assignment or subletting.
11.2 No assignment of this Lease or subletting of the Premises
shall relieve Tenant of its obligations under this Lease.
12. MECHANICS LIENS
If any mechanic's or other liens, or order for the payment of money
arising through either party, shall be filed against the Premises or additions,
alterations or extensions thereto, Tenant shall cause the same to be canceled
and discharged of record, by bond or otherwise, and shall also defend and pay
damages and attorneys fee, if any, for any action, suit or proceeding which may
be brought thereupon for the enforcement of such lien, liens or orders. Upon
failure of Tenant to comply with the provisions of this Section, Landlord may,
after thirty (30) days notice, do so on Tenant's behalf, and all sums thereby
expended by the Landlord shall on demand be paid to it by the Tenant as Rent.
13. LAW AND REGULATIONS
Tenant agrees to comply with all orders, rules, regulations and
requirements of any governmental body relating to the manner of Tenant's use,
occupancy, alterations and improvements of the Premises, and Tenant will pay all
costs and expenses incidental to such compliance and will indemnify and save
harmless Landlord therefrom.
14. LIABILITY INSURANCE
14.1 Tenant, at its own expense, shall procure and continue in force,
general liability insurance against damages occurring in the Premises during the
Term of this Lease and any extension thereof. Such insurance shall be in an
amount not less than Two Million Dollars ($2,000,000.00) combined single limit
for bodily injury and property damage. Such insurance shall name Landlord and
any mortgagee of the Premises as an additional insured or mortgagee, as the case
may be, in respect to the Premises and shall contain such endorsements and shall
be written by a company or companies authorized to engage in the business of
general liability insurance in the State of Florida and reasonably
Page 13
requested and/or acceptable to Landlord and any mortgagee. Tenant shall provide
Landlord with a copy of the policy or a certificate annually or more often as
the policy is replaced or renewed and the policy shall state that the coverage
cannot be canceled or modified without thirty (30) days prior written notice to
Landlord.
14.2 Tenant may carry the coverage described in Section 14.1 under
an umbrella policy.
14.3 Tenant agrees to defend, indemnify and save harmless Landlord
from and against any and all claims and demands whether from injury to person,
loss of life, damage to property liability, loss and all other claims, occurring
on or relating to the use of the Premises including without limitation all costs
of defending such claim action or proceeding, excepting, however, such claims or
demands as may result from any injury or damage caused by the negligent acts of
Landlord.
14.4 The provisions of Paragraph 9.6 shall apply to the liability
insurance required hereunder.
15. WAIVER OF SUBROGATION
15.1 Tenant hereby agrees not to assign to any insurance company
any right or cause of action for damage to the property of Tenant located in the
Premises which Tenant now has or may subsequently acquire against Landlord
during the Term of this Lease and expressly waives all right of recovery for
such damages.
15.2. Landlord hereby agrees not to assign to any insurance company
any right or cause of action for damages to the property of Landlord located in
the Premises which Landlord now has or may subsequently acquire against Tenant
during the Term of this Lease, and expressly waives all rights of recovery for
such damages.
16. DEFAULT
16.1 Each of the following shall be deemed a default by Tenant and
a breach of this Lease:
a. Failure to:
i. Pay Rent or any other amount payable
hereunder by Tenant for a period of five (5)
days after written notice; or
ii. Perform any other covenant or condition
of this Lease within thirty (30) days after
written notice, unless steps have, in good
faith, been commenced promptly by Tenant to
rectify the same, and are prosecuted to
completion with diligence and continuity but
in no event greater than ninety (90) days.
b. Any of the following which shall not be cured within
thirty (30) days:
i. The filing of a bankruptcy petition by or
against Tenant for adjudication,
reorganization or arrangement.
ii. Any proceedings for dissolution or
liquidation of Tenant.
Page 14
iii. Any assignment for the benefit of Tenant's
creditors.
c. After the passage of applicable cure period, if any,
Landlord may terminate this Lease by written notice to Tenant. This Lease shall
then expire on the date of the notice or on any date specified in the notice. If
the Landlord's notice specifies termination on a future date unless cured by
such date but in no event greater than ninety (90) days.
16.2 Upon Tenant's default, and after the expiration of any
applicable notice and cure periods, Landlord or its agents may immediately or at
any time thereafter, re-enter and resume possession of the Premises and remove
all persons and property therefrom, either by summary dispossess proceedings or
by a suitable action or proceeding at law, or by force or otherwise, without
being liable for any damages therefor. No re-entry by Landlord shall be deemed
an acceptance or a surrender of this Lease. Thereafter, Landlord may in its own
behalf, relet any portion of the Premises for any period of the remaining Term
for any reasonable sum to any reasonable tenant for any reasonable use or
purpose. In connection with any such reletting, Landlord may make such changes
to the Premises and may grant such concessions of free Rent as may be reasonably
appropriate or helpful in effecting such lease.
Should this Lease be terminated before the expiration of the Term of
this Lease by reason of a default by Tenant, the Premises may be relet by
Landlord, for such Rent and upon such terms as Landlord is able to obtain, and,
if the full Rent shall not be realized by Landlord, Tenant shall be liable for
all damages sustained by Landlord, including, without limitation, the deficiency
in Rent and other amounts due under the Lease including without limitation
reasonable attorneys' fees, other collection costs and all expenses (including
leasing fees) of placing the Premises in first class rentable condition. Any
damage or loss sustained by Landlord may be recovered by Landlord, at Landlord's
option, (i) at the time of the reletting, (ii) in separate actions, from time to
time, as said damage shall have been made more easily ascertainable by
successive relettings, (iii) be deferred until the expiration of the term of
this Lease, in which event the cause of action shall not be deemed to have
accrued until the date of expiration of said term, or (iv) if Landlord is unable
to find a new tenant for the Premises within sixty days from termination of the
Lease, Tenant shall immediately pay Landlord the present value (discounted at
6%) of all the Rent and other amounts due under the Lease, including without
limitation property taxes which will accrue for the remainder of the Term (as if
there had been no termination for cause) as liquidated damages. The provisions
contained in the paragraph shall be in addition to and shall not prevent the
enforcement of any claim Landlord may have against Tenant for anticipatory
breach of the unexpired term of this Lease
16.3 In the event of Tenant's default, and after the expiration of
any applicable notice and cure periods Landlord shall be entitled to recover
from Tenant, in addition to any damages becoming due hereunder, an amount equal
to the amount of all Rent reserved under this Lease, less the net Rent, if any,
collected by Landlord on reletting the Premises, which shall be due and payable,
by Tenant to Landlord, on the several days on which the Rent reserved in this
Lease would have become due and payable. Net Rent collected on reletting by
Landlord shall be computed by deducting from the gross Rents collected all
expenses incurred by Landlord in connection with the reletting of the Premises,
including broker's commission and the cost of repairing, renovating or
remodeling the Premises.
16.4 Landlord's remedies for Tenant's default shall be cumulative
and not exclusive of any other remedies provided by law, all of which shall be
available to Landlord.
Page 15
17. COMPLIANCE
Should either Landlord or Tenant fail to comply with any of the Terms
of this Lease, each may, after thirty (30) days notice to the other, comply
therewith, but neither shall be obligated to do so. The cost of such compliance
shall be payable upon demand by the non-complying party to the performing party
together with interest at eighteen percent (18%) per annum from the date paid
until the date repaid. The notice provisions shall not apply to failure to
deliver evidence of insurance as required hereunder or in the event of an
emergency.
18. LEASE SUBORDINATION
18.1 (Intentionally omitted (see Paragraph 10.2).)
18.2 From time to time, Tenant will, upon demand and without cost,
execute an instrument necessary to effectuate such subordination in a form
reasonably requested by a lender.
19. EMINENT DOMAIN
19.1 In the event all of the Premises shall be appropriated or
taken under the power of eminent domain by any public or quasi-public authority,
this Lease shall terminate and expire as of the date of such taking and Landlord
and Tenant shall thereupon be released from any further liability hereunder.
Landlord shall be entitled to all compensation due as the result of such taking,
except for any compensation for loss of business or relocation of business but
only to the extent such award does not diminish Landlord's award. Except as
specifically reserved herein, Tenant assigns all rights in any condemnation
proceeds to Landlord.
19.2 In the event more than twenty percent (20%) of the building or
twenty percent (20%) of the parking, in each case comprising a part of the
Premises, shall be appropriated or taken under the power of eminent domain by
any public or quasi-public authority, Landlord shall immediately notify Tenant
of such taking. Tenant shall have the right to Terminate and be entirely
released from this Lease as of the date of such taking upon giving to Landlord
notice in writing of such election within thirty (30) days after the receipt by
Tenant of Landlord's written notice that said premises are to be taken.
19.3 If this Lease shall be terminated in either manner provided
herein, Rent for the last month of Tenant's occupancy shall be prorated and
Landlord shall refund to Tenant any excess Rent paid in advance.
19.4 If this Lease shall not be terminated as provided in this
Section, but shall continue as to that portion of the Premises which shall not
have been appropriated or taken, Landlord, shall at its sole option (i) at its
own expense, proceed with due diligence to restore the Premises remaining to a
complete unit of like quality and character as existed prior to such
appropriation or taking; (ii) assign all condemnation proceeds relating to
reconstruction of the Premises to Tenant, in which event Tenant shall proceed
with due diligence to restore the Premises remaining to a complete unit of like
quality and character as existed prior to such appropriation or taking.
Provided, however, Landlord shall have the right, at its option, to terminate
the Lease in the event less than five (5) years of lease term are remaining,
unless Tenant exercises an option. Notwithstanding the above, Landlord shall not
be required to restore the Premises if the condemnation proceeds are
insufficient to cover the costs of
Page 16
said restoration. All Rent shall be abated pro rata in the ratio that the usable
ground floor area of the part of the Premises taken bears to the ground floor
area of the Premises before such taking.
20. OBLIGATION OF SUCCESSORS
All of the provisions hereof shall bind and inure to the benefit of the
parties hereto, their respective heirs, legal representatives, successors and
assigns, and all covenants, conditions and agreements contained herein shall be
construed as covenants running with the land during the Term of this Lease.
21. UTILITIES
Tenant shall promptly pay, when due, all charges for water, gas,
electricity and all other utilities furnished to or used upon the Premises,
including all charges for installation, termination, modification and relocation
of such service.
22. ENVIRONMENTAL COMPLIANCE
22.1 Tenant shall not use, generate, manufacture, produce, store,
release, discharge or dispose of, on, under or about the Premises, or transport
to or from the Premises, any Hazardous Substance (as defined below), or allow
any other person or entity to do so. Tenant shall keep and maintain the Premises
in compliance with, and shall not cause or permit the Premises to be in
violation of any Environmental Laws (as defined below).
22.2 Landlord and Tenant shall each give the other party prompt
notice of any of the following of which the party in question has actual
knowledge: (i) any proceeding or inquiry by any governmental authority
(including without limitation the Florida Environmental Protection Agency or
Florida Department of Health and Rehabilitative Services) with respect to the
presence of any Hazardous Substance on the Premises or the migration thereof
from or to other property; (ii) all claims made or threatened by any third party
against Tenant, Landlord or the Premises relating to any loss or injury
resulting from any Hazardous Substance; and (iii) discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Premises that
could cause the Premises or any part thereof to be subject to any restrictions
on the ownership, occupancy, transferability or use of the Premises under any
Environmental Law or any regulation adopted in accordance therewith.,
22.3 Tenant shall protect, indemnify and hold harmless Landlord,
its directors, officers, employees, agents, successors and assigns from and
against any and all loss, damage, cost, expense or liability (including
attorneys' fees and costs) arising out of Tenant's failure to comply with the
Terms of this Section 22.
22.4 "Environmental Law" shall mean any federal, state, or local
law, statute, ordinance or regulation pertaining to health, industrial hygiene,
or the environmental conditions on, under or about the Premises, including
without limitation the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended from time to time ("CERCLA"), 42 U.S.C.
Sections 9801 et seq., and the Resource Conservation and Recovery Act of 1976,
as amended from time to time ("RCRA"), 42 U.S.C, Sections 6901 et seq. The Term
"Hazardous Substance" shall include, without limitation: (i) those substances
included within the definition of "hazardous substances", "hazardous materials",
"toxic substances", or "solid waste" in CERCLA, RCRA, and the
Page 17
Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq., and in
the regulations promulgated pursuant to said laws; (ii) those substances defined
as "hazardous wastes" in any Florida Statute and in the regulations promulgated
pursuant to any Florida Statute; (iii) those substances listed in the United
States Department of Transportation Table (49 CER 172.101 and amendments
thereto) or by the Environmental Protection Agency (or any successor agency) as
hazardous substances (40 CFR Part 302 and amendments thereto); (iv) such other
substances, materials and wastes which are or become regulated under applicable
local, state, or federal law, or which are classified as hazardous or toxic
under federal, state or local laws or regulations; and (v) any material, waste
or substance which is (1) petroleum (2) asbestos (3) polychlorinated biphenyls
(4) designated as a "hazardous substance" pursuant to Section 311 of the Clean
Air Act, 33 U.S.C. Section 1251 et seq., or listed pursuant to Section 307 of
the Clean Air Act, (5) flammable explosive, or (6) radioactive materials.
22.5 Landlord shall have the right to inspect the Premises and
audit Tenant's operations thereon during normal business hours and after
reasonable notice to ascertain Tenant's compliance with the provisions of this
Lease at any reasonable time and Tenant shall provide periodic certifications to
Landlord, upon request, that Tenant is in compliance with the environmental
restrictions contained herein Landlord shall have the right, but not the
obligation, to enter into the Premises and perform any obligation of Tenant
hereunder of which Tenant is in default, including without limitation, any
remediation necessary due to environmental impact of Tenant's operations on the
Premises, without waiving or reducing Tenant's liability for Tenant's default
hereunder.
22.6 All of the Terms and provisions of this Section shall survive
expiration or Termination of this Lease for any reason whatsoever.
23. RIGHT OF FIRST OFFER; RIGHT OF FIRST REFUSAL
23.1 Provided there is no default or event of default under the
Lease on the date such right is exercised, during the Term of the Lease, Tenant
shall have a right of first offer in the event the Landlord determines to sell
the Building and makes a determination of an offering price. Tenant shall
exercise this right of first offer by agreeing to the financial terms of the
offer of sale within ten (10) business days of Landlord's notice of such offer.
23.2 Provided there is no default or event of default under the
Lease on the date such right is exercised, during the Term of the Lease, if
Landlord shall desire to sell the Premises during the term of this Lease and has
received an offer in writing (in the form of an agreement of sale or binding
letter of intent) (the "Offer Documents"), Landlord shall deliver a written
notice to Tenant ("Landlord's Original Notice") advising Tenant that Landlord
desires to accept such offer to sell the Premises and provide Tenant with a copy
of the Offer Documents including, without limitation, the price at which
Landlord desires to sell the Premises (the "Original Purchase Price" and a title
insurance commitment (the "Title Commitment") showing Landlord as the current
title holder.
23.3 Tenant shall have five (5) business days from the date the
Landlord's Original Notice is delivered to Tenant (the "Original Notice Delivery
Date") in which to agree to purchase the Premises for the Original Purchase
Price without condition (other than satisfaction of the Schedule B-1 conditions
contained in the Title Commitment relating to Landlord or the Premises). It is
understood that (i) each party shall pay for the attorneys' fees and expenses
and other costs which that party incurs, and all other closing costs shall be
allocated as commonly allocated in the community where the Premises are located
unless the Offer Documents provide to the contrary in which event the terms of
the Offer Document shall control; (ii) Tenant shall pay Landlord the amount of
the Original Purchase Price for the Property in cash at closing; (iii) the sale
of the Property shall be on an "AS IS, WHERE
Page 18
IS, WITH ALL FAULTS" basis, with no representations or warranties of Landlord
whatsoever; (iv) the conveyance shall be by special warranty deed (v) at closing
Tenant shall provide Landlord a release from all obligations of Landlord under
the Lease, arising on or after the closing date. Tenant agrees to cooperate with
Landlord in a Section 1031 exchange, provided Tenant shall not be required to
expend any funds or modify the closing date.
23.4 If Tenant does not timely deliver a Tenant's Original Offer to
Landlord within such five (5) business day period, Tenant shall be deemed to
have waived its right to purchase the Premises pursuant to the economic terms
contained in Landlord's Original Notice, and Landlord shall become entitled, for
a period of one hundred eighty (180) days, to sell the Premises at a price not
less than the Original Purchase Price. If Landlord determines to negotiate the
Original Purchase Price, then Landlord must again offer the Property to Tenant
pursuant to the provisions hereof. In addition, if Landlord does not or chooses
not to consummate the transaction provided for in the Offer Documents, then
Landlord will be required to comply with the terms and provisions of this
section with respect to any other offer Landlord desires to accept. Tenant's
Rights of First Refusal shall terminate upon sale of the Premises in compliance
with the terms hereof.
23.5 Notwithstanding the provisions of this Section 23, Tenant
shall have no right of first offer or first refusal in the event the Landlord
transfers the Premises (i) to a party controlling, controlled by, or under
common control with the Landlord, or (ii) as part of the sale by Landlord of a
group of properties including the Premises.
23.6 Tenant's rights under this Section 23 shall only be available
to Tenant hereunder, and shall not be available to any assignee or sub-tenant of
Tenant.
24. MISCELLANEOUS
24.1 Subject to Tenant's reasonable security requirements, Landlord
may at reasonable times inspect, alter or repair the Premises when necessary for
its safety or preservation. Landlord may show the Premises to others at any
reasonable time within six (6) months immediately preceding the expiration of
this Lease and may affix a notice for letting or selling the Premises to any
suitable part thereof, except show windows or entrances. Landlord may show the
Premises to prospective lenders, purchasers or tenants during normal business
hours with a Tenant representative present.
24.2 All notices, insurance policies/certificates and rental checks
shall be forwarded to Landlord in care of Lehnardt & Lehnardt, 00 Xxxxxxxxx
Xxxxx, Xxxxxxx, XX 00000 until Tenant is notified otherwise in writing. All
notices given to Tenant hereunder shall be forwarded to Tenant at 00000
Xxxxxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx, 00000, until Landlord is notified otherwise
in writing. Notices to each shall be by certified mail, return receipt
requested, facsimile transmission or by overnight courier, and shall be
effective upon receipt or refusal to accept delivery. Notice delivered by any
other means shall be effective upon receipt. Landlord may provide Tenant with
written notice in accordance with this Section of all mortgagees to receive
notices under this Lease.
24.3 If any Term or provision of this Lease or the application
thereof to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Lease or the application of such Term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby and each Term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
Page 19
24.4 Tenant shall at any time upon not less than ten (10) days
prior written notice from Landlord, execute, acknowledge and deliver to Landlord
and/or any lender or purchaser designated by Landlord, a statement in writing
(i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
Rent and other charges are paid in advance, if applicable, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed.
At Landlord's option, Tenants failure to deliver such statement within such time
shall be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification, except as may be represented by Landlord, (i) that there
are no uncured defaults in Landlord's performance, and (iii) that no Rent has
been paid in advance.
24.5 The Term "Landlord" as used herein shall mean only the owner
or owners at the time in question of the fee title of the Premises, and in the
event or any transfer of such title, Landlord herein named (and in case of any
subsequent transfers then the grantor) shall be relieved from and after the date
of such transfer of all liability as respects Landlord's obligations thereafter
to be performed, provided that any funds in the hands of Landlord or the then
grantor at the time of such transfer, in which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject to transfer of funds as aforesaid, be
binding on Landlord's successors and assigns only during their respective
periods of ownership. Tenant shall look solely to the equity of the then owner
of the Premises in the Premises for the satisfaction of any remedies of Tenant
in the event of a breach by the Landlord or any of its obligations. Such
exculpation of liability shall be absolute and without any exception whatsoever.
24.6 Time is of the essence hereof.
24.7 Any and all monetary obligations of Tenant or Landlord under
the Terms hereof to the extent accrued shall survive expiration or Termination
of the Term hereof.
24.8 The following language is required by law in any contract
involving the sale or lease of any building within the State of Florida: "RADON
GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit."
24.9 In the case of a default under the terms of this Lease, the
defaulting party shall reimburse the non-defaulting party, upon demand, for any
costs or expenses incurred by the non-defaulting party in connection with any
breach or default under this Lease, whether or not suit is commenced or judgment
entered. Such costs shall include legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise, including,
without limitation, appeals. Furthermore, if any action for breach of or to
enforce provisions of this Lease is commenced, the court in such action shall
award to the prevailing party, in whose favor a judgment is entered, a
reasonable sum as attorneys fees and costs. Such attorneys' fees and costs shall
be paid by the non-prevailing party in such action.
24.10 The captions in this Lease are for convenience only and are
not a part of this Lease and do not in any way limit or amplify the Terms and
provisions of this Lease.
Page 20
24.11 Whenever the consent or approval of either party is required
under this Lease such consent or approval shall not be unreasonably withheld or
delayed. This Lease shall be construed in accordance with applicable law of the
state in which the Premises are located.
24.12 Landlord and Tenant acknowledge that Xxxxx Xxxxxxx of Xxxxxxx
Real Estate group is representing Tenant in this transaction, and that Xxxxxxx
and the Xxxxxxx Real Estate Group shall look solely to Tenant for compensation.
Xxxxx Xxxxx of Comnet Realty, Inc. is a Real Estate Broker and has acted as a
consultant to Landlord and will look solely to Landlord for compensation.
24.13 Force Majeure: Anything in this Lease to the contrary
notwithstanding neither Landlord nor Tenant shall be in default of the
performance of any provisions of this Lease to the extent such performance shall
be delayed or prevented by strike, war, act of God, shortage of materials, labor
or equipment, governmental delays, fire or other casualty or other cause beyond
the control of party seeking to excuse such performance; provided, however, no
such excusable delay shall exceed six (6) months.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed under seal by their respective duly authorized representatives as of
the day and year first above written.
21845 POWERLINE ROAD, LTD., a POINTE BANK, a Florida banking
Delaware limited partnership, Landlord corporation, Tenant
By: 21845 Powerline Road, LLC
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ R. Xxxx Xxxxxx, Jr.
---------------------- -----------------------
Name: Xxxxxx X. Xxxxxxxx Name: R. Xxxx Xxxxxx, Jr.
------------------ -------------------
Title: Asst. Sec. Title: President
---------- ---------
Page 21
Exhibit "A"
LAND
Parcel II, DEL MAR PLAZA SUBDIVISION #1, according to the Plat thereof as
recorded in Plat Book 41, Page 108 of the Public Records of Palm Beach County,
Florida, less the East 3.00 feet thereof.
Exhibit "B"
SYSTEM TECH SERVICES CONTRACT
Main Air Handling Unit
----------------------
The Air Handling unit was found to be in fair to average mechanical condition.
There are several items that need to be addressed.
1. The evaporator coil is very dirty and should be chemically
cleaned and rinsed with a high-pressure sprayer.
2. There are refrigerant leaks that need repairing.
3. The discharge air control system is not operating properly.
4. The static pressure control system is not working properly
and should be retrofitted with a Variable Frequency Drive.
5. The fan curve should be verified and cfm increased as needed
to allow more airflow.
6. The outside air duct is in need of cleaning and a fire/smoke
damper be installed and tied to the fire alarm system.
7. The filter system should be changed to a pleated type filter
for improved filtration, reduced build-up on the coil surface
area and to increase the filter surface area for greater
volume of airflow.
8. The refrigerant piping needs to be re-insulated and re-routed
to allow for proper oil return.
9. The Hot-gas valve/injection line should be re-connected, as
this will allow the unit to modulate and maintain the proper
discharge air setpoint and prevent compressor cycling.
10. The entire interior should be cleaned, re-insulated and
painted with an anti-microbial treatment to prevent any
potential Indoor Air Quality (IAQ) issues.
11. The ductwork joints should be re-sealed around air handling
unit as well.
12. The fan assembly should be cleaned, balanced and bearings
replaced.
Main Condensing Units
---------------------
The other part of this system is the Carrier Condensing Units located on the
roof. The units are less than 2 years old and are in excellent condition:
1. The pipe supports that penetrate the roof system and provide
support for the condensing units are completely rusted away
and failure of support is imminent.
2. The actual refrigerant piping needs to be re-routed,
re-insulated and re-supported.
3. The control scheme is operating incorrectly and will need to
be changed in order to prevent further compressor failures.
4. The leak at the refrigerant drier needs to be repaired as
well.
The VAV Boxes and Duct System
-----------------------------
The VAV boxes are in desperate need of replacement, the new VAV boxes would
provide better zone control, more airflow to the areas that are needed and a
reduction in energy as well. The Duct system should be sanitized and repaired at
the required joints located throughout the system. This would require access
panels to be cut into the building ceiling and walls to allow for installation
and future service requirements. A comfort balance of the zones is recommended
as well.
Estimated Costs
---------------
The repairs that we have recommended should remedy the Air Conditioning problems
associated with the building system as we see it. We are proposing the following
budgetary figures in order to make the repairs stated above.
1. Air Handling Unit repair costs = $24,875
2. Main Condensing unit's costs = $14,765
3. VAV Boxes and associated ductwork costs = $67,455
Total retrofit costs = $107,095
