Exhibit 10.6
XxxxxXxXxxXxx.xxx
Miramar Park of Commerce
BUSINESS LEASE
THIS LEASE, entered into this 23rd day of October, 2000, between
Sunbeam Properties, Inc., hereinafter called the Lessor, party of the first
part, and XxxxxXxXxxXxx.xxx of the State of Delaware, hereinafter called the
Lessee or tenant, party of the second part:
WITNESSETH, That the said Lessor does this day Lease unto said Lessee,
and said Lessee does hereby hire and take as tenant 0000 Xxxxxxxxx Xxx Xxxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxx 00000 (the "Premises"), which consists of approximately
18,509 square feet as shown on Exhibit "A" attached and which is a portion of a
three-building complex (the "Building" as identified on Exhibit "A". The
Premises shall be used and occupied by the Lessee as a printing facility and
warehouse with, computer facilities and offices ancillary thereto and for no
other purposes or uses whatsoever without the express written consent of Lessor,
said consent not to be unreasonably withheld or delayed, for the term of five
(5) years. The term shall begin on the date the Lessor delivers possession of
the Premises ("Lease Commencement Date"), which Lease Commencement Date shall
not be later than 15 days after the execution hereof and the Lessee shall be
commence paying rent and Lessee's Proportionate Share (as defined below) on the
thirtieth (30) day after the Lease Commencement Date (the "Rent Commencement
Date"). Commencing on the date of execution hereof, Lessee shall have the right
to enter the Premises for the purposes of planning, cableling, wiring and other
prepatory work in connection with its occupancy thereof; provided however, that
Lessee shall not interfere with nor interrupt the outgoing tenant's conduct of
business during such period. Upon the Rent Commencement Date and ending the 31st
day of October, 2005, the Lessee shall be obligated to pay rent on the first of
each and every month the rent as follows:
$7,665.81 per month plus State Sales Tax from Rent Commencement Date thru
October 31, 2001;
$7,972.44 per month plus State Sales Tax from November 1, 2001 thru October
31, 2002;
$8,291.34 per month plus State Sales Tax from November 1, 2002 thru October
31, 2003;
$8,622.99 per month plus State Sales Tax from November 1, 2003 thru October
31, 2004;
$8,967.91 per month plus State Sales Tax from November 1, 2004 thru October
31, 2005.
Such payments are in addition to all other payments to be made under this Lease
by Lessee, including but not limited to those described in Paragraph 28.
Lessee hereby deposits $45,451.96 with Lessor for the following:
November 1-30, 2000 Rent: $7,665.81
Lessee's Proportionate Share of November 1-30, 2000
Estimated Expenses (per Paragraph 28): $ 3,053.99
Sales Tax: $ 643.19
Security Deposit: $34,088.97
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Total: $45,451.96
$11,362.69 of said security deposit shall be conditionally refunded to Lessee as
described in Paragraph 38(b). The remaining balance of the security deposit
shall be refunded to Lessee at the expiration of this Lease provided this Lease
is in good standing at that time.
In the event the term of this Lease begins or ends on other than the first or
last day of a month, rent for such month(s) shall be prorated on a per diem
basis. In the event that any monthly rental payment due hereunder is not
received by Lessor by the fifth (5th) day of any month, said payment shall bear
a late charge of ten percent (10%) of the monthly payment which shall be then
due and payable.
All payments to be made to the Lessor on the first day of each and every month
in advance without demand at the office of Sunbeam Development Corporation, 0000
00xx Xx. Xxxxxxxx in the City of Xxxxx, Xxxxxxx 00000 or at such other place and
to such other person, as the Lessor may from the time to time designate in
writing.
The following express stipulations and conditions are made a part of this Lease
and are hereby assented to by the Lessee:
FIRST: The Lessee shall not assign this Lease, nor sub-let the
Premises, or any part thereof nor use the same, or any part thereof, nor permit
the same, or any part thereof, to be used for any other purpose than as above
stipulated, nor make any alterations therein, and all additions thereto, without
the written consent of the Lessor, said consent not to be unreasonably withheld
or delayed, and all additions, fixtures, or improvements which may be made by
Lessee, except movable office furniture, equipment and other fixtures which are
not affixed to the Premises and which can be removed without damage to the
Premises, shall become the property of the Lessor and remain upon the Premises
as a part thereof, and be surrendered with the Premises at the termination of
this Lease. Notwithstanding the foregoing, the Lessor acknowledges that the
Lessee intends to sub-let a portion of the Premises which in the aggregate total
will be approximately 5,000 square feet ("Sub-Let") which Sub-Let shall be
subject to the Lessor's prior written consent, which consent shall not be
unreasonably withheld or delayed.
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SECOND: All personal property placed or moved in the Premises above
described shall be at the risk of the Lessee or owner thereof, and Lessor shall
not be liable for any damage to said personal property, or to the Lessee arising
from the bursting or leaking of water pipes, or from any act of negligence of
any co-tenant or occupants of the Building or of any other person whomsoever,
except for Lessor's willful misconduct or gross negligence.
THIRD: That the Lessee shall promptly execute and comply with all
statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and City Government and of any and all their Departments and
Bureaus applicable to said Premises, for the correction, prevention, and
abatement of nuisances or other grievances, in, upon, or connected with said
Premises during said term.
FOURTH: In the event the Premises shall be destroyed or so damaged or
injured by fire or other casualty during the life of this Lease, whereby the
same shall be rendered untenantable, then the Lessor shall have the right to
render said Premises tenantable by repairs within 180 days therefrom. If said
Premises are not rendered tenantable within said time, it shall be optional with
either party hereto to cancel this Lease, and in the event of such cancellation
the rent shall be paid only to the date of such fire or casualty. The
cancellation herein mentioned shall be evidenced in writing.
FIFTH: The prompt payment of the rent for said Premises upon the dates
named, and the faithful observance of the rules and regulations printed upon
this Lease, and which are hereby made a part of this covenant, are the
conditions upon which this Lease is made and accepted and any failure on the
part of the Lessee to comply with the terms of said Lease, or any of said rules,
shall at the option of the Lessor, be deemed a default of this Lease.
SIXTH: If the Lessee shall be in default under this Lease or shall
abandon or vacate said Premises before the end of the term of this Lease (and
Lessee shall fail to pay rent or maintain the Premises as required hereunder),
or shall suffer the rent to be in arrears, the Lessor may, at his option,
forthwith cancel this Lease or he may enter said Premises as the agent of the
Lessee, by force or otherwise (all in accordance with local law), and relet the
Premises with or without any furniture that may be therein, as the agent of the
Lessee, at such price and upon such terms and for such duration of time as the
Lessor may determine, and receive the rent therefor, applying the same to the
payment of the rent due by these presents, and if the full rental herein
provided shall not be realized by Lessor over and above the expenses to Lessor
in such re-letting, the said Lessee shall pay any deficiency, and if more than
the full rental is realized Lessor will pay over to said Lessee the excess of
demand. In the alternative, Lessor may elect to declare the entire rent for the
balance of the Lease Term, or any part thereof, due and payable forthwith, and
to bring an action for the recovery thereof.
SEVENTH: Lessee agrees to pay the cost of collection and reasonable
attorney's fees on any part of said rental that may be collected by suit or by
attorney, after the same is past due.
EIGHTH: The Lessee agrees that it will pay all charges for rent, gas,
electricity or other illumination used on said Premises, and should said charges
for rent or light herein provided for at any time remain due and unpaid for the
space of five days after the same shall have become due, the Lessor may at its
option consider the said Lessee tenant at sufferance and immediately re-enter
upon said Premises and the entire rent for the rental period then next ensuing
shall at once be due and payable and may forthwith be collected by distress or
otherwise. In addition, it shall be considered a default of this Lease in the
event a lien is placed against the Building or premises as the result of the
work performed by Lessee or Lessee's contractors, subcontractors or agents and
such lien is not released within thirty (30) days of Lessee receiving notice of
such lien. Lessor represents that the electric utility for the Premises is
separately metered and Lessee may connect same in the name of the Lessee.
NINTH: The said Lessee hereby pledges and assigns to the Lessor all the
furniture, fixtures, goods, and chattels of said Lessee, which shall or may be
brought or put on said Premises as security for the payment of the rent herein
reserved, and the Lessee agrees that the said lien may be enforced by distress
foreclosure or otherwise at the election of the said Lessor, and does hereby
agree to pay reasonable attorney's fees not to exceed ten percent of the amount
so collected or found to be due, together with all costs and charges therefore
incurred or paid by Lessor.
TENTH: [INTENTIONALLY DELETED]
ELEVENTH: The Lessor, or any of its agents, shall have the right to
enter said Premises during all reasonable business hours, to examine the same to
make such repairs, additions or alterations as may be deemed necessary for the
safety, comfort, or preservation thereof, or of said Building, or to exhibit
said Premises, and to put or keep upon the doors or windows thereof a notice
"FOR RENT" at any time within thirty (30) days before the expiration of this
Lease; provided that Lessor's entry shall not unreasonably interfere with the
business of Lessee. The right of entry shall likewise exist for the purpose of
removing placards, signs, fixtures, alterations, or additions, which do not
conform to this Lease, or to the rules and regulations of the Building.
TWELFTH: Lessee hereby accepts the Premises in the condition they are
in at date of execution of this Lease and Lessor shall deliver the Premises to
Lessee in the same condition at the commencement of the term of this Lease.
Notwithstanding the foregoing, Lessee acknowledges that the out-going tenant
shall be removing its personal property from the Premises (which may include but
is not limited to the crane, racks, other equipment, inventory and furniture).
Lessor is responsible for any damage to Premises caused by the tenant currently
occupying the Premises from the date hereof and prior to the commencement of the
term of this Lease. Lessee agrees to maintain said Premises in the same
condition, order and repair as they are at the commencement of said term,
excepting only reasonable wear and tear arising from the use thereof under this
Lease, and to make good to said Lessor immediately upon demand, any damage to
water apparatus, or electric lights, or any fixtures, appliances or
appurtenances of said Premises, or of the Building, caused by any act or neglect
of Lessee, or of any person or persons in the employ or under the control of the
Lessee.
THIRTEENTH: (a) It is expressly agreed and understood by and between
the parties to this Lease, that the Lessor shall not be liable for any damage or
injury by water, which may be sustained by the said tenant or other person or
for any other damage or injury resulting from the carelessness, negligence, or
improper conduct on the part of any other tenant or agents, or employees, or by
reason of the breakage, leakage, or obstruction of the water, sewer or soil
pipes, or other leakage in or about the said Building.
(b) Except for Lessor's negligence or intentional acts and
except as may be specifically provided elsewhere in this Lease, Lessor shall not
be liable for any damage or injury to any person or property whether it be to
the person or property of the Lessee, its employees, agents, invitees, licensees
or guests by reason of Lessee's occupancy of the Premises or because of fire,
flood, windstorm, water, acts of God or third parties or for any other reason
beyond the control of Lessor. Lessee agrees to indemnify and save harmless
Lessor from and against any and all loss, damage, claim demand, liability or
expense, including reasonable attorney's fees at trial and upon appeal, by
reason of
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damage to person or property which may arise or be claimed to have arisen as a
result of Lessee's occupancy or use of the Premises, Building and/or property of
which the Premises is a part by Lessee, its employees, agents, invitees,
licensees or guests, or in connection therewith, or in any way arising on
account of any injury or damage caused to any person or property on or in the
Premises, except to the extent occasioned by Lessor's intentional acts or gross
negligence.
FOURTEENTH: If the Lessee shall become insolvent or if bankruptcy
proceedings shall be begun by or against the Lessee, before the end of said term
the Lessor is hereby irrevocably authorized at its option, to forthwith cancel
this Lease, as for a default. Lessor may elect to accept rent from such
receiver, trustee, or other judicial officer during the term of their occupancy
in their fiduciary capacity without effecting Lessor's rights as contained in
this Lease, but no receiver, trustee or other judicial officer shall ever have
any right, title or interest in or to the above described Premises by virtue of
this Lease.
FIFTEENTH: [INTENTIONALLY DELETED]
SIXTEENTH: This Lease shall bind the Lessee and its assigns or
successors, and the heirs, assigns, administrators, legal representatives,
executors or successors as the case may be, of the Lessee.
SEVENTEENTH: It is understood and agreed between the parties hereto
that time is of the essence of this Lease and this applies to all terms and
conditions contained herein.
EIGHTEENTH: It is understood and agreed between the parties hereto that
written notice mailed or delivered to the Premises Leased hereunder shall
constitute sufficient notice to the Lessee and written notice mailed or
delivered to the office of the Lessor shall constitute sufficient notice to the
Lessor, to comply with the terms of this Lease.
NINETEENTH: The rights of the Lessor under the foregoing shall be
cumulative, and failure on the part of the Lessor to exercise promptly any
rights given hereunder shall not operate to forfeit any of the said rights.
TWENTIETH: It is further understood and agreed between the parties
hereto that any charges against the Lessee by the Lessor for services or for
work done on the Premises by order of the Lessee or otherwise accruing under
this Lease shall be considered as rent due and shall be included in any lien for
rent due and unpaid.
TWENTY-FIRST: Signage. (a) It is hereby understood and agreed that any
signs or advertising to be used, including awnings, in connection with the
Premises leased hereunder shall be first submitted to the Lessor for approval
before installation of same.
(b) Lessee may install an eighteen inch (18")
high by four-foot (4') wide sign on the glass panel over its front door. Said
sign shall be white vinyl and surface-applied and shall be subject to Lessor's
reasonable approval. The defined copy area is attached as Exhibit "D-1".
(c) Lessee may be given the opportunity to
have shared signage on a monument sign to be installed by Lessor in front of the
Building. Lessee's portion of the sign shall be installed by Lessor. The copy
and graphics shall be in Lessee's corporate colors. A conceptual example of such
signage is attached as Exhibit "D-2". Lessee shall reimburse Lessor
approximately $200.00 for such signage.
TWENTY-SECOND: All personal property placed or moved in the Premises
and tenant improvements to the Premises shall be at the risk of Lessee or the
owner thereof, and Lessor shall not be liable to Lessee for damages to same
unless caused by or due to gross negligence of Lessor, Lessor's agents or
employees. Lessee agrees to obtain liability insurance containing a single limit
of not less than $500,000.00 for both property (including but not limited to
fire hazard) and bodily injury, at its own cost. Lessee consents to provide
Lessor with a Certificate of Insurance, as above described, naming Lessor as
additional insured and favoring the Lessor with a thirty (30) day notice of
cancellation.
TWENTY-THIRD: Lessee is responsible for the maintenance and repair of
the interior of the Premises, including but not limited to plate glass windows,
all doors, all interior plumbing, the electrical and any items which the Lessee
installs or has others install. If Lessee or any agent employed by Lessee
damages the roof, the repair of said roof will be Lessee's sole responsibility.
Lessee shall, at its own cost and expense, enter into a regularly scheduled
preventive maintenance/service contract with a maintenance contractor reasonably
approved by Lessor, for servicing all heating and air conditioning systems and
equipment within the Premises. Such contract must become effective within thirty
(30) days of the date Lessee takes possession of the Premises. Lessor is
responsible for the maintenance and repair of the exterior of the Premises,
including but not limited to, the roof, all structural components of, to and for
the Premises and outside the Premises.
TWENTY-FOURTH: Lessee represents and warrants that Coldwell Banker
Commercial NRT, Inc. is the only broker representing Lessee that is due a
commission, fee or other sum which is now or in the future may be due and
payable with regard to leasing, acquisition or other such matters related to the
Demised Premises. Said fee shall be paid by Lessor. Lessor represents and
warrants that no broker has represented Lessor or that Lessor will be
responsible for any commission by any broker claiming to represent Lessor.
Lessor and Lessee each agree to indemnify and hold each other harmless from any
and all liability for the payment of any other such commissions, fees and other
sums.
TWENTY-FIFTH: Lessor agrees to provide water and sewer service to the
Building and Premises, maintain the roof, landscaping, irrigation system, the
exterior of the Building, the adjacent lake bank, lighting, loading areas,
parking areas, sidewalks and driveways, and to keep the common areas reasonably
clean of debris and to provide proper supervision and security of such areas as
necessary. Lessee agrees to pay in addition to the rent set forth herein,
Lessee's Proportionate Share of such costs (which costs include a management fee
that shall not exceed five percent (5%) of rent collected from all of the
lessees of the Building (the "Management Fee"). "Lessee's Proportionate Share"
shall be the fraction or ratio of the floor area of the Lessee's Premises
divided by the total floor area of the Building. (18,509 square feet/173,085
square feet = 10.43%). Lessor represents and warrants to Lessee that Lessee's
Proportionate Share of 10.43% is accurate. Notwithstanding the foregoing, the
Lessee's Proportionate Share shall not include any of the Exclusions to Lessee's
Proportionate Share described in Exhibit E attached hereto.
TWENTY-SIXTH: Lessor shall pay all taxes, assessments and levies
charged or assessed by any governmental authority, (hereinafter collectively
referred to as Taxes) upon its property in the Building and Lessee's Premises
and land, Buildings or Premises in or upon which the Lessee's Premises are
located, and shall cause all-risk insurance to be maintained thereon in amounts
not to exceed the full replacement cost of the improvements constituting the
Building from time to time. Lessee agrees to pay as additional rent, without
relief from valuation or appraisement laws, Lessee's Proportionate Share of any
such taxes, of any premiums payable in respect of such insurance coverage, and
of any
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premiums payable in respect of public liability insurance and rental insurance
maintained by or for the Lessor in respect of the land and the Building. Lessor
shall diligently challenge any Taxes each year when appropriate and any rebates
or refunds ("Refunds"), less the reasonable cost of Lessor's challenge, shall
operate to reduce Lessee's Proportionate Share. In the event that Taxes are
challenged for a year when this Lease was in effect and included in Lessee's
Proportionate Share and a Refund is obtained in a subsequent year, then: (i) if
this Lease is still in effect Lessee's Proportionate Share of such Refund shall
operate to reduce Lessee's Proportionate Share in the year in which received;
and, (ii) if this Lease is not still in effect, Lessee's Proportionate Share of
such Refund shall be paid by Lessor to Lessee upon Lessor's receipt of such
Refund.
TWENTY-SEVENTH: Lessee recognizes that the Premises are subject to that
certain Declaration of Protective Covenants and Restrictions for Miramar Park of
Commerce. Under the Declaration, Sunbeam Properties, Inc. currently enforces the
Declaration and operates and maintains the Common Area referred to therein. The
Lessee agrees to pay on behalf of Lessor, Lessee's Proportionate Share of any
and all maintenance or other assessments imposed by Sunbeam Properties, Inc. (or
its successor) on the Lessor as owner of the Building as provided in the
Declaration. Based on the current cap under the Declaration, Lessees'
Proportionate Share of the assessments shall not exceed $3,600.00 per year.
TWENTY-EIGHTH: (a) Lessee shall pay $3,053.99 per month plus State
Sales Tax as an estimate of Lessee's Proportionate Share of the expenses
described in Paragraphs 25, 26 AND 27. Said payment is in addition to all other
sums to be paid by Lessee including but not limited to rent. On an annual basis,
Lessor shall notify Lessee what the actual expenses were over the previous
calendar year and within ten (10) days of such notice, Lessee shall pay (or
receive a reimbursement) for the difference, if any, plus State Sales Tax,
between what Lessee paid as an estimate and the actual expenses. Lessee's share
for a partial calendar year at the beginning or end of the term of this Lease
shall be prorated on a per diem basis. In the event that Lessor adjusts its
estimate of the expenses described in Paragraphs 25, 26 and 27 to more
accurately reflect the actual expenses incurred, Lessee's monthly estimated
payment of its Proportionate Share of such expenses shall be appropriately
adjusted.
(b) Notwithstanding anything to the contrary
contained hereinabove, Lessee's Proportionate Share of Expenses described in
Paragraphs 25 and 27 shall not unreasonably exceed what is typical for similar
quality buildings located in first class business parks in Southwest Broward
County.
(c) Lessee reserves the right to inspect and audit
Lessor's records with respect to the Lessee's Proportionate Share and to set
forth objections thereof. Lessor shall keep or cause to be kept books and
records showing Lessee's Proportionate Share for each calendar year in
accordance with generally accepted accounting principles consistently applied.
If such inspection and audit reveals overstated charges of the Lessee's
Proportionate Share, Lessor shall remit the overstated amount to Lessee within
thirty (30) days of demand therefor. In addition, if such overstated amount
equals or exceeds five percent (5%) of the Lessee's Proportionate Share for that
calendar year, Lessor shall also pay the reasonable costs of Lessee's inspection
and audit to Lessee with such payment.
TWENTY-NINTH: (a) If the whole or any substantial part of the Premises
should be taken for any public or quasi-public use under governmental law,
ordinance or regulation, or by right of eminent domain, or by private purchase
in lieu thereof after a condemnation action has been actually commenced, and the
taking would prevent or materially interfere with the use of the Premises for
the purpose of which they are then being used, this Lease shall terminate and
the rent shall be abated during the unexpired portion of this Lease, effective
when the physical taking shall occur.
(b) If part of the Premises shall be taken for any public
or quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof after a
condemnation action has been actually commenced, and this Lease is not
terminated as provided in the Subparagraph above, this Lease shall not terminate
but the rent payable hereunder during the unexpired portion of this Lease shall
be reduced to such extent as may be fair and reasonable under all of the
circumstances and Lessor shall undertake to restore the Premises to a condition
suitable for the Lessee's use, as near to the condition thereof immediately
prior to such taking as is a reasonably feasible under all the circumstances.
(c) In the event of any such taking, or by private
purchase in lieu thereof after a condemnation action has been actually
commenced, Lessor and Lessee shall each be entitled to receive and retain such
separate awards and/or portion of lump sum awards as may be allocated to their
respective interest in any condemnation proceedings; provided that Lessee shall
not be entitled to receive any award for Lessee's loss of its Leasehold
interest, the right to such award being hereby assigned by Lessee to Lessor.
THIRTIETH: Should Lessee hold over and remain in possession of the
Premises at the expiration of any term hereby created, Lessee shall, by virtue
of this paragraph, become a Lessee by the month at twice the Rent per month of
the last monthly installment of Rent above provided to be paid, which said
monthly tenancy shall be subject to all the conditions and covenants of this
Lease as though the same had been a monthly tenancy instead of a tenancy as
provided herein, and Lessee shall give to Lessor at least fifteen (15) days'
written notice of any intention to remove from the Premises, and shall be
entitled to ten (10) days' notice from Lessor in the event Lessor desires
possession of the Premises; provided, however, that said Lessee by the month
shall not be entitled to ten (10) days' notice in the event the said Rent is not
paid in advance without demand, the usual ten (10) days' written notice being
hereby expressly waived.
THIRTY-FIRST: [INTENTIONALLY DELETED].
THIRTY-SECOND: Lessee shall be entitled to the use of 30 parking spaces
including striping a portion of the rear truckyard, of which 25 shall be on an
unassigned, nonreserved basis and 5 (closest to the front door, excluding
handicapped parking) shall be reserved solely for the exclusive use of Lessee's
employees or guests, as the Lessee shall determine from time to time. In its
normal course of business, Lessee will not cause more than said number of
parking spaces to be occupied at any one time by its employees or invitees.
THIRTY-THIRD: Lessee, its successors and assigns shall comply with all
of the laws, rules and regulations regarding the use of hazardous materials in,
on and about the Premises, as such laws, rules and regulations may be in effect
and as promulgated by any federal, state, county or municipal governmental body,
or any agency or instrumentality thereof.
THIRTY-FOURTH: 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 may be obtained from your county public health unit.
THIRTY-FIFTH: In any case, where either party hereto is required to do
any act, except the payment of rent or other money, the term for the performance
thereof shall be extended by a period equal to any delay caused by or resulting
from acts of God, the elements, weather, war, civil commotion, fire or other
casualty, strikes, lockouts, labor disturbances, inability to procure labor or
materials, failure of power, government regulations or other causes beyond such
party's reasonable control, whether such time be designated by a fixed date, a
fixed time or a "reasonable time".
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THIRTY-SIXTH: "As-Is". Lessee accepts the Premises in "as-is"
condition, as described in Paragraph 12, above.
THIRTY-SEVENTH: Alterations. Lessee shall not make any exterior
alterations to the Premises without the prior written approval of Lessor of the
plans and specifications for said alterations, which approval shall not be
unreasonably withheld or delayed. In addition, Lessee shall not make any
interior alterations, additions or improvements to the Premises in excess of
$500.00 without the prior written approval of Lessor of the plans and
specifications for said alterations, which approval shall not be unreasonably
withheld or delayed by Lessor. All work shall be performed by a contractor or
contractors who shall be reasonably approved in writing by Lessor. All work
performed in accordance with said approved plans and specifications; any
material deviations therefrom must first be approved in writing by Lessor.
Lessee may, without the consent of Lessor, but at its own cost and expense and
in good workmanlike manner erect such shelves, bins, machinery and other trade
fixtures as it may deem advisable, without altering the basic character of the
Building or improvements and without overloading or damaging such Building or
improvements, and in each case after complying with all applicable governmental
laws, ordinances, regulations and other requirements. All alterations,
additions, improvements and partitions erected by Lessee shall be and remain the
property of Lessee during the term of this Lease and shall become the property
of Lessor as of the date of termination of this Lease, or upon earlier vacating
of the Premises, and title shall pass to Lessor under this Lease as by a xxxx of
sale. All shelves, bins, machinery and trade fixtures installed by Lessee may be
removed by the Lessee prior to the termination of this Lease, if the Lessee so
elects, and shall be removed by the date of termination of this Lease or upon
earlier vacating of the Premises if required by Lessor; upon any such removal
Lessee shall restore the Premises to a good and Leaseable condition, less
ordinary wear and tear. All such removals and restoration shall be accomplished
in a good workmanlike manner so as not to damage the primary structure, roof or
structural qualities of the Building and other improvements within which the
Premises are situated. If Lessor shall consent to any alterations, additions or
improvements proposed by Lessee, Lessee shall construct and maintain the same to
comply with all then existing governmental laws, ordinances, rules and
regulations. Prior to commencing any work or installing any equipment (but only
if such equipment requires alterations to the Premises) in excess of $5,000.00
in, on or about the Premises, Building or Property, Lessee shall:
(1) Notice of Commencement. File a Notice of Commencement with
Broward County and provide Lessor with a copy of same;
(2) Subcontracts. Enter into a contract with its contractor
and/or other persons who will do the work and install the equipment referred to,
which contract will provide, among other things, that said work shall be done
and equipment installed in a good workmanlike manner in accordance with the
plans and specifications previously approved and consents, authorizations, and
licenses previously obtained and which contract shall provide that the
contractor, subcontractor, or other person referred to above will look solely to
Lessee for payment and will hold Lessor and the premises free from all liens and
claims of all persons furnishing labor or materials therefor, and will also
provide that similar waivers of the rights to file liens shall be obtained from
any and all said contractors or materialmen. A copy of said contract, together
with a duly executed waiver of the right to file liens executed by the
contractor, subcontractor, or other persons referred above, shall be furnished
to Lessor as a condition of Lessor approving such alterations or installations.
(3) Indemnification. Indemnify and save Lessor harmless
against any and all bills for labor performed and equipment, fixture, and
materials furnished to Lessee in connection with said work as aforesaid and
against any and all liens, bills or claims therefore or against the premises and
from and against all loss, damages, costs, expenses, suits, claims, and demands
related to such work.
(4) Insurance Lessee and/or all contractors which Lessee
employs shall procure and maintain at Lessee's and/or Lessee's contractors' own
cost and expense insurance against claims under Xxxxxxx Compensation Acts with
limits of $100,000.00 for Employers Liability Insurance.
(5) Inspections. Lessor shall have the right to place its
supervisory personnel or representatives on the job during the course of
construction, at Lessor's expense, for the purpose of making inspections and
insuring that Lessee and Lessee's contractors, suppliers, and materialman comply
with these conditions.
(6) Impact Fees. In the event Lessee's alterations to the
Premises cause the City of Miramar to assess impact fees, Lessee shall be solely
responsible for paying same. (In particular, Lessee acknowledges that the
addition of plumbing fixtures may result in water and sewer impact fees being
assessed by the City and that such fees shall be Lessee's sole responsibility to
pay.
THIRTY-EIGHTH: Tenant Improvements. (a) Lessee and Lessor agree to
work together in good faith to develop plans and specifications ("Plans and
Specifications") at Lessee's sole cost and expense for the tenant improvements
("Tenant Improvements") that Lessee shall construct within the Premises. Said
Tenant Improvements may include the build-out of approximately 1,000 square feet
of additional air conditioned offices in the Premises and air conditioning the
balance of the existing warehouse and may be competed in different phases, from
time to time, as Lessee shall determine. Lessee shall not be obligated to
perform any Tenant Improvements (but once a phase or a project is commenced by
Lessee it must be completed as provided herein). The Plans and Specifications
shall include but not be limited to fire sprinkler shop drawings, a finish
schedule, a floor plan, air-conditioning shop drawings including roof-top
locations and equipment heights, and electrical and plumbing (if any) layout.
Based on this information and other information Lessor may reasonably request of
Lessee, Lessee shall develop permit-ready drawings with which Lessee shall pull
a building permit (the fee for such permit to be paid for by Lessee). The Plans
and Specifications shall be mutually agreed to in writing prior to the
commencement of construction. Lessee shall deliver Plans and Specifications to
Lessor for Lessor's reasonable comments or approval and Lessor shall respond
within ten (10) business days or such Plans and Specifications shall be deemed
approved by Lessor. Lessee may make the Tenant Improvements as provided in this
Paragraph 38 and nothing herein shall obligate Lessee to make all or any Tenant
Improvements.
(b) Provided there are no defaults under this Lease,
Lessor agrees to return $11,362.99 of Lessee's security deposit after
satisfaction of all of the following:
(1) Lessee's completion of and full payment for at least $30,000 of
Qualifying Tenant Improvements. "Qualifying Tenant Improvements"
means all direct expenditures paid to third-parties for: (i) new
air-conditioning equipment and/or duct-work; and/or, (ii) the
build-out of new office space in previously un-built our
portion(s) of the Premises, which shall include but not be limited
to, new: drywall and metal or wood studs, doors, lighting,
flooring, bathroom facilities and all hardware, paint, design or
other expenditures commonly associated with any new such
build-out. "Qualifying Tenant Improvement shall not include any
indirect costs of Lessee, such as overhead, insurance, etc and
shall not include any expenditures by Lessee to prepare the
Premises for the Lessee's initial move in. Lessee shall provide
Lessor with written documentation supporting its payment of
Qualifying Tenant Improvements;
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(2) Lessor's receipt of final releases-of-lien from all of Lessee's
contractors and associated subcontractors and material suppliers;
(3) Lessor's receipt of an affidavit of payment from the general
contractor;
(4) Issuance of a certificate of completion or reasonably equivalent
document from the City of Miramar.
(c) Lessee shall not be permitted to commence construction of
the Tenant Improvements at the Premises until the Plans and Specifications are
mutually agreed to by Lessee and Lessor in writing and Lessee has received a
building permit for such work from the City of Miramar.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
instrument for the purpose herein expressed, the day and year above written.
Signed, sealed and delivered in the presence of:
LESSOR: Sunbeam Properties, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Witness Sign Name Xxxxxx X. Xxxxx, Vice President
---------------------------------- ----------------------------------
Witness Print Name Date
----------------------------------
Witness Sign Name
----------------------------------
Witness Print Name
LESSEE: Print on the Xxx.Xxx
---------------------------
By: /s/ Xxxx Xxxxx
---------------------------------- ----------------------------------
Witness Sign Name Xxxx Xxxxx, Chief Executive Officer
October 23, 2000
----------------------------------
Witness Print Name
----------------------------------
Witness Sign Name
----------------------------------
Witness Print Name
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Exhibit "A"
Page 1: Parcel Plan of Miramar Park of Commerce identifying the location of the
Building & Premises Page 2: Site Plan of the Building identifying the Premises
Exhibit "B"
Intentionally Deleted
Exhibit "C"
Intentionally Deleted
Exhibit "D"
Page 1: Above-Door sign standard
Page 2: Ground-Mounted Signage Standard
EXHIBIT "E"
Exclusions to Lessee's Proportionate Share
Notwithstanding anything to the contrary contained in the Lease, the
definition of "Lessee's Proportionate Share" shall not include (and Lessee shall
not be obligated to pay for) any of the following:
1. sny ground lease rental;
2. Costs of capital improvements and equipment; except for those acquired
to reduce common area operating expenses (amortized over the longest period
allowed by GAAP (Generally Accepted Accounting Principles).
3. Rentals for items (except when needed in connection with normal repairs
and maintenance of permanent systems) which if purchased, rather than rented,
would constitute a capital improvement which is specifically excluded in Section
2, above (excluding, however, equipment not affixed to the building which is
used in providing janitorial or similar services);
4. Costs incurred by Lessor for the repair of damage to the building, to
the extent that Lessor is reimbursed by insurance proceeds;
5. Costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements made for other tenants or
other occupants in the building or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for tenants or
other occupants of the building;
6. Depreciation, amortization and interest payments, except as provided
herein and except on materials, tools, supplies and vendor-type equipment
purchased by Lessor to enable Lessor to supply services Lessor might otherwise
contract for with a third party where such depreciation, amortization and
interest payments would otherwise have been included in the charge for such
third party's services, all as determined in accordance with generally accepted
accounting principles, consistently applied, and when depreciation or
amortization is permitted or required, the item shall be amortized over its
reasonably anticipated useful life;
7. Marketing costs including leasing commissions, attorneys' fees in
connection with the negotiation and preparation of letters of intent, leases,
subleases and/or assignments, space planning costs, and other costs and expenses
(including any concessions) incurred in connection with lease, sublease and/or
assignment negotiations and transactions with present or prospective Lessees or
other occupants of the building;
8. Costs incurred by Lessor for alterations which are considered capital
improvements and replacements under generally accepted accounting principles,
consistently applied, except as permitted in Sections 2 and 3 above;
9. Costs of a capital nature, including, without limitation, capital
improvements, capital repairs, capital equipment and capital tools, all as
determined in accordance with generally accepted accounting principles,
consistently applied, except as permitted in Sections 2 and 3 above;
10. Expenses in connection with services or other benefits which are not
offered to Lessee or for which Lessee is charged for directly but which are
provided to another tenant or occupant of the building the cost of which is
included as Lessee's Proportionate Share;
11. Costs incurred by Lessor due to the violation by Lessor of the terms
and conditions of any lease of space in the building, building code or zoning
violation;
12. Overhead and profit increment paid to Lessor or to subsidiaries or
affiliates of Lessor for goods and/or services in the building to the extent the
same exceeds the costs of such goods and/or services rendered by unaffiliated
third parties on a competitive basis;
13. Interest, principal, points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument encumbering the Building or
the site;
14. Lessor's general corporate overhead and general and administrative
expenses;
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15. Any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Lessor;
16. Except for making repairs or keeping permanent systems in operation
while repairs are being made, rentals and other related expenses incurred in
leasing air conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature, except equipment not affixed to the
building which is used in providing janitorial or similar services;
17. Advertising and promotional expenditures, and costs of signs in or on
the building identifying the owner of the building or other Lessees' signs;
18. Electric power costs for which any tenant directly contracts with the
local public service company;
19. Any other expenses which, in accordance with generally accepted
accounting principles, consistently applied, are not at that time being treated
as rebillable expenses by owners of comparable buildings in the area;
20. All assessments for capital improvements (which are not specifically
charged to Lessee because of what Lessee has done or not done), which can be
paid by Lessor in installments, shall be paid by Lessor in the maximum number of
installments permitted by law and not included as Lessee's Proportionate Share
except in the year in which the assessment is actually paid;
21. Costs associated with the operation of the business of the partnership
or entity which constitutes Lessor as the same are distinguished from the costs
of the building, including partnership accounting and legal matters, costs of
defending any lawsuits with any mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of Lessor's interest in the building,
costs of any disputes between Lessor and its employees, disputes of Lessor with
building management, or outside fees paid in connection with disputes with other
tenants;
22. Notwithstanding any contrary provision of this Lease, including,
without limitation, any provision relating to capital expenditures, costs
arising from the presence of hazardous materials or substances in or about the
building including, without limitation, hazardous substances in the ground water
or soil;
23. Costs arising from Lessor's or other tenant's negligence or
intentional acts;
24. Costs arising from Lessor's charitable or political contributions;
25. Costs arising from latent defects in the base, shell or core of the
building or improvements installed by Lessor or repair thereof; and
26. Costs of sculpture, paintings or other subjects of art.
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