THIS LEASE is made on the 22nd day of September,
2005, by Gulfcoast Property No. 1, LLC, a Florida limited liability
company, (Landlord), and Peek Traffic Corporation, a Delaware corporation,
Summary of Lease Provisions
Section 1.01 Basic Data.
0000 0xx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
0000 Xxxxxxxxx Xxx, Xxxxxxxx, XX
0000 Xxxxxxxxx Xxx, Xxxxxxxx, XX
Tenant’s Trade Name:
Thirty-nine (39) months from Commencement Date under
Section 2.03(a), with one (1) option to renew for an additional
term of two (2) years under Section 2.03(e).
Offices, Light Manufacturing, Indoor Assembly, and Distribution.
Quixote, Corp., as per Guaranty Agreement attached as Exhibit D.
Base Rent: For
the term of October 1, 2005 through December 31, 2005, if any,
Tenant shall pay Base Rent in the amount of $25,760.00 per month with the
first installment due upon execution of this Lease and the remaining
installments being due on the first day of each month thereafter. Commencing
January 1, 2006, the Base Rent shall be $8.15 per square foot, resulting
in a total base rent of $326,000.00 per annum, based upon a 40,000 square
foot Premises as depicted in Exhibit A hereto.
Percentage Annual Adjustment to Base Rent: Starting on
January 1, 2007, the base rent shall be increased on an annual basis on
each January 1st thereafter by the percentage, if any, of
increase in the Consumer Price Index as of such date of adjustment over that
which existed one (1) year preceding the date of adjustment provided,
however, that said increase shall not be less than three percent (3%) or more
than five percent (5%) of the previous year’s Base Rent. Such increase shall
be determined by Landlord who shall notify Tenant thereof. Tenant shall, upon
notice and request by Landlord, pay the increase commencing upon the
adjustment date. Thereafter, the increase shall be payable equally with the
regular rental payments. In the event of a decrease in the Consumer Price
Index, there shall be no reduction in the rent from the previous year.
“Consumer Price Index” shall mean the Consumer Price Index as now published
by the U.S. Bureau of Labor Statistics under the caption “United States City
Average for Urban Wage Earners and Clerical Workers All Items” 1982-84 = 100.
If the manner in which the Consumer Price Index as determined by the Bureau
of Labor Statistics shall be substantially revised (including, without
limitation, a change in the base index year) and adjustment shall be made by
Landlord in such revised index which would produce results equivalent, as
nearly as possible, to those which would have been obtained if the Consumer
Price Index had not been so revised. If the Consumer Price Index shall become
unavailable to the public because publication is discontinued or otherwise, or
if equivalent data is not readily available to enable Landlord to make the
adjustment referred to in the preceding sentence, Landlord will substitute
therefore a comparable index based upon changes in the cost of living or
power of the consumer dollar published by any other governmental
agency or if no such index shall be available, then a comparable index
published by a major bank or other financial institution or by a University
or a recognized financial publication.
Operating Expenses: The costs of operating, maintaining, and
repairing the Building as more fully described in Section 3.05 and as
initially estimated in Exhibit E hereto.
Security Deposit: Three (3) months base rent consisting of
first, last, and one (1) additional month, plus applicable sales tax,
for a total amount of $86,796.50 to be paid as provided in Section 6.01.
Advance Rent: None
Condition: Tenant is leasing the Premises in its current “AS-IS”
Signage: Tenant shall be allowed one (1) lighted building sign.
Tenant may install additional county approved signage on building at Tenant’s
expense, subject to Landlord’s approval. Landlord may install signage to
identify any 2nd floor tenant in accordance with Section 7.01
Section 1.02 Exhibits and Addendum to
The Exhibits listed below are an integral part of
this Lease and all of their terms are incorporated into this Lease. Unless stated otherwise, in the event of a
conflict between the terms and provisions of an Exhibit and terms and
provisions contained within the body of this Lease, the terms and provisions of
the Exhibit shall control.
Exhibit A -
Site Plan of Building and Premises – Parking Layout
Exhibit B -
Declaration of Protective Covenants, Conditions, Easements and
Restrictions for Gulfcoast Corporate Park (delivered to Tenant prior to
Exhibit C -
Rules and Regulations
Exhibit D -
Exhibit E -
Estimated Monthly Payments
Section 1.03 Definitions.
The following defined terms, in addition to those
listed in Section 1.01, are used in this Lease.
(a) Additional Rent. Such
sums, charges and expenses, other than Base Rent, which are due under this
Lease from Tenant to Landlord, including but not limited to those costs
described in Article III.
(b) Alterations. Tenant’s work, improvements,
alterations or additions performed by Tenant.
(c) Assessments. Assessments due under the
terms and provisions of the Declaration of Protective Covenants, Conditions,
Easements, and Restrictions for Gulfcoast Corporate Park, which are prorated
among property owners on an acreage prorated basis as provided therein. The current percentage portion of Assessments
attributed to the Premises (Xxxx 00 XXX 00 xx XXXXXXXXX XXXXXXXXX XXXX, XXXXX 0
as per plat thereof recorded in Plat Book 37, Pages 82-86 of the Public
Records of Manatee County, Florida) is 4.3% of the total Assessments, for
Gulfcoast Corporate Park.
(d) Attorney’s Fees. All
fees and costs of attorneys, accountants, experts, paralegals and similar
persons, whether or not suit is brought, including, but not limited to,
appellate costs and expenses.
(e) Base Rent. The Base Rent as described in
Section 1.01(h), as adjusted pursuant to Section 3.03 and other
provisions of this Lease.
(f) Building. The building and related
improvements situated on Xxxx 00 xxx 00, Xxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx
(g) Premises. The Premises located at the
address set forth in Section 1.01(c) and consisting of Xxxx 00 xxx
00, Xxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, together with all
improvements thereon. The second floor office
space and the Common Areas in the Building shall not be part of the Premises
for purposes of the space to be occupied by Tenant, but shall be included for
purposes of Premises’ Operating Cost as provided herein.
(h) Premises’ Operating Cost. The
total cost and expense for the entire Building as more fully described in
Section 3.05, incurred in operating, maintaining, and repairing of the
Premises and the Building.
(i) Effective Date. This
instrument becomes effective as a lease upon execution and delivery by both
Landlord and Tenant. Submission of this
instrument for examination does not constitute an offer, right of first
refusal, reservation of or option for the Premises or any other space or
premises in, on or about the Building.
(j) Event of Default. One
or more of the events described in Section 16.01.
(k) Hazardous Materials. Any
oil and petroleum products and their byproducts, asbestos, polychlorobiphenyls,
hydrocarbon products and derivatives, flammable or explosive materials,
radioactive materials, hazardous materials, hazardous wastes, biomedical
wastes, biological wastes, hazardous or toxic substances, or related materials
as defined under or regulated by any Legal Requirement, including without
limitation the following statues and regulations promulgated under their
authority; 1) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.); b) the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801 et
seq.); c) the Resource Conservation and Recovery Act of 1976 as amended (42
U.S.C. Sections 6901 et seq.); d) the Water Pollution and Control Act, as
amended (33 U.S.C. 1317 et seq.); and e) Florida Statutes 403.703.
(l) Intentionally Omitted
(m) Lease. This Lease, including all
Exhibits and the Addendum, and any modifications to it which may from time to
time be duly executed by the parties hereto.
(n) Lease Term. The term of this Lease, as
provided in Section 1.01(e), as modified by Section 2.03(d).
(o) Lease Term Commencement Date. The
date upon which the Lease shall commence as provided in Section 2.03(a).
(p) Lease Year. Consecutive twelve calendar
month periods commencing on the Lease Term Commencement Date as modified by
(q) Legal Authority. Any
domestic or foreign federal, state, county, municipal, or other government or
governmental or quasi-governmental department, commission, board, bureau,
court, agency, or instrumentality having jurisdiction or authority over
Landlord, Tenant, and/or all or any part of the Premises.
(r) Legal Requirement. Any
law, statue, code, rule, regulation, ordinance, order, judgment, decree, writ,
injunction, franchise, permit, certificate, license (including any beer, wine
or liquor license), authorization, registration, or other direction or
requirement of any Legal Authority, which is now or in the future applicable to
the Premises, including those not within the present contemplation of the
(s) Rent (or rent).
Payments, in legal currency of the United States of America, by Tenant
to Landlord of the Base Rent, the Additional Rent, all applicable State and
local sales tax, and all other payments owed by Tenant to Landlord in
accordance with the terms and conditions of this Lease
Use of Common Areas, and Lease Term
Section 2.01 Lease of Premises.
In consideration of the rents, covenants, and
agreements of Tenant, Landlord leases the Premises to Tenant and Tenant leases
the Premises from Landlord, subject to the terms and conditions of this Lease.
Section 2.02 Use of Common Areas.
The use and occupation by Tenant of the Premises
shall include the non-exclusive use, in common with others, of the joint use
areas of the Building (“Common Areas”) and common areas located in Gulfcoast
Corporate Park as they may exist from time to time, subject to the terms and
conditions of the Covenants, Conditions, Easements, and Restrictions, as the
same may be amended from time to time, applicable thereto.
Section 2.03 Lease Term.
(a) Commencement Date. The
term of the Lease shall be effective October 1, 2005, unless delayed as
set forth in Section 2.03(b).
(b) Commencement Date Delay. The
parties hereto acknowledge that the right to occupy the Building is currently
held by Peek Holding Corporation (“Peek”).
In the event that Peek has not surrendered its interest in the Premises
to Landlord prior to the Commencement Date, Landlord shall pursue all
reasonable legal means to evict Peek or otherwise terminate Peek’s interest, if
any, by December 31, 2005. The
parties further acknowledge that Tenant is currently occupying the Premises
and, provided all rent payments are made as set forth in Section 1.01(h),
Landlord shall not contest Tenant’s occupancy.
At such time as the interests of Peek are terminated, this Lease shall
commence. By so acknowledging Tenant’s
occupancy, Landlord does not waive any rights Landlord now has or may have in
the future against Peek. The parties
further agree to enter into a Memorandum memorializing the Commencement Date in
the event of a delay as provided in this Section.
(c) Intentionally Omitted.
(d) Term. The Lease Term shall be that
provided in Section 1.01(e). The
Lease Term shall terminate on the last day of the period provided in
Section 1.01(e) unless sooner terminated or extended as provided in
this Lease. Should the Lease Term
Commencement Date occur on a day other than the first day of a calendar month,
the Lease Term shall include such partial month in addition to the term
described in Section 1.01(e).
(e) Option to Renew.
Provided Tenant is not in default hereunder beyond all applicable grace
or notice and cure periods, Tenant shall have the right and option to renew the
Lease Term (the “Renewal Option”) for one (1) two (2) year term. The Renewal Term shall be on the same terms
and conditions as contained in this Lease; provided, however, that the Base
Rent payable by Tenant during the Renewal Term shall be equal to the then
prevailing fair market rent for the Premises as of the commencement date of
Renewal Term (the “Renewal Rent”) as determined by Landlord. In any event, the Base Rent for the Renewal
Term shall be no less than the Base Rent being paid during the last year of the
Initial Term. In order to exercise such
Renewal Option, Tenant shall provide written notice to Landlord of its exercise
of such Renewal Option not less than nine (9) months prior to commencement
of the Renewal Term. Within ten
(10) days of Landlord’s receipt of written notice, Landlord shall provide
Tenant with written notice of the Renewal Rent rate. Tenant shall then have ten (10) days
from receipt of Renewal Rent rate notice to provide written
of its intent to cancel the Renewal Option or proceed with the Renewal Option.
Section 3.01 Commencement of Rent.
Tenant’s obligation to pay Base Rent and Additional
Rent shall commence on the Lease Term Commencement Date, provided that during
the term of October 1, 2005 through December 31, 2005, Tenant shall
not be obligated to pay for association fees, insurance or Taxes, as defined
herein as Additional Rent. Should the
Lease Term Commencement Date occur on a day other than the first day of a
calendar month, then the Rent for the period from such date to the first day of
the first full month shall be prorated on a per-diem basis and shall be paid on
the Lease Term Commencement Date.
Section 3.02 Payment of Rent.
The Base Rent and Additional Rent shall be payable
by Tenant in equal monthly installments, together with all applicable sales
taxes, on the first day of each month, in advance, at Landlord’s address set
forth in Section 1.01(a) or at such other place designated by
Landlord from time to time, without any prior demand and without any deduction,
holdback or setoff.
Section 3.03 Cost of Living Adjustment to
Commencing as of January 1, 2007, and each
January 1st thereafter during the Lease Term, the Base Rent shall be
increased by the amount that is obtained by multiplying the Base Rent for the
immediately preceding Calendar year by the percentages set forth in
Section 3.04 Real Estate Taxes and
Subject to reimbursement as set forth in
Section 3.05, Landlord shall pay all Taxes (as defined below) on or before
the same become delinquent. “Taxes”
means all ad valorem and real
property taxes, assessments or similar charges levied or assessed by any Legal
Authority against all interest in real property which are now or hereafter
becomes a part of the Premises, and such other costs and fees incurred by
Landlord in contesting any such taxes, assessments, or charges and/or
negotiating with any such Legal Authority with respect thereto. In the event any Legal Authority shall levy any
general or special assessment for public improvements applicable to the
Building (“Improvement Assessments”), Landlord shall also pay such Improvement
Assessments on or before the date same become delinquent; provided, however,
that (i) Landlord shall be required to take the benefit of any statute or
ordinance permitting any such assessment for public betterments or improvements
to be paid over a period of time; (ii) Landlord shall promptly pay any
assessments and taxes such that Tenant shall have no liability for late charges
or penalties; (iii) Premises’ Operating Costs shall only include the
payment of such installments as shall fall due prior to the expiration of the
Lease Term; and (iv) Tenant’s liability hereunder shall be limited to the
first Seven Thousand Five Hundred Dollars ($7,500.00) of assessment per acre on
a cumulative basis over any five (5) year period and Landlord shall pay
any assessments in excess of said sum, per acre (which excess amount shall not
be included in Premises’ Operating Cost).
Section 3.05 Tenant to Bear Premises’
This is to be a triple net lease and therefore from
and after January 1, 2006, the Tenant shall pay, and be responsible for,
all of Premises’ Operating Cost. The
items and charges comprising the Premises’ Operating Cost shall include, without limitation, lighting;
sewer and water charges; Taxes and Assessments; non-ad valorem taxes; sanitary
control; removal of trash, rubbish, garbage, and other refuse; cost of
security; and all other charges, costs, and expenses which arise from the
operation, maintenance, and repair of the Building, as described in
Section 1.01(j). Notwithstanding
anything contained in this Section 3.05 to the contrary, Operating
Expenses and Premises’ Operating Costs shall not include: (i) cost for
which Landlord is
by insurance or otherwise actually compensated; (ii) except for
replacement of capital items under Section 8.01, costs which are to be
capitalized in accordance with generally accepted accounting principals
consistently applied (“GAAP”) except that non-capitalized expenses which have
been capitalized by Landlord may be included in Common Area Maintenance Costs;
(iii) repairs necessitated by the gross negligent acts or omissions of
Landlord or Landlord’s agents, representatives, employees or contractors, or of
any second floor tenant, its agents, representatives, employees and
contractors; (iv) depreciation; (v) amounts paid for services not available
to Tenant; (vi) Landlord’s general overhead; (vii) Landlord’s costs
of repairs, alterations, additions, improvements or replacements made to
rectify or correct any defect in the design, materials or workmanship of the
Premises, Building or Common Areas; (viii) repairs or replacements which
are the responsibility of Landlord under this Lease; (ix) executive
salaries or salaries of service personnel to the extent that the salaries do
not relate to the management, operation, repair or maintenance of the Premises
or Common Areas; (x) charges for electricity consumption on second floor if
space is leased (Tenant shall be reimbursed actual cost if separately metered
or $1.20 per sq. foot of occupied space if not separately metered, said
reimbursement to be paid to Tenant within ten (10) days of presentation of
paid utility xxxx to Landlord); and; (xi) housekeeping service for any 2nd
floor tenant; (xii) any other expenses which, in accordance with GAAP, would
not normally be treated as operating costs by landlords of comparable buildings
in the area in which the Building is located.
Landlord and Tenant intend that Premises’ Operating Costs paid by Tenant
under this Lease shall reimburse Landlord for only actual costs incurred by Landlord
but not provide a profit to Landlord.
Section 3.06 Payment of Additional Rent.
(a) Landlord shall estimate the Taxes and the
Premises’ Operating Costs not directly paid by Tenant (e.g., Assessments and
Insurance costs), and Tenant shall pay one-twelfth (1/12) thereof monthly in
advance, together with each monthly payment of Base Rent. Landlord shall estimate and account for
Premises’ Operating Costs on a calendar-year basis and shall provide notice and
reasonable documentation of prior years’ actual expenses and the estimate of
the then-current calendar year’s Premises’ Operating Costs no later than
May 1 of each year with the change in estimated payment to be effective
with the June Rent payment each year.
If at any time during any Lease Year Landlord determines that the actual
Premises’ Operating Costs have changed over the estimated costs by an
identifiable amount (e.g. an increase or decrease in insurance cost or Regular
or Special Assessments), the Landlord shall provide Tenant notice and
reasonable documentation of said change and the estimated monthly Additional
Rent shall be adjusted effective with the next following Rent Payment, but in
no event less than twenty (20) days following Landlord’s notice. Within ninety (90) days following the end of
each calendar year, Landlord shall furnish Tenant statements of the actual
Taxes and the actual Premises’ Operating Cost not directly paid by Tenant for
that year, and there shall be an adjustment between Landlord and Tenant, with
payment to Landlord or credit to Tenant against future Rent (or payment to
Tenant if at the end of the Term hereof), as the case may require. Landlord’s failure to provide notice within
such time shall not relieve Tenant of its obligations to pay the entire amount
due from Tenant for such period. Tenant
covenants and agrees that Tenant shall remain liable to and shall pay the Taxes
and the Premises’ Operating Cost not directly paid by Tenant in the amounts and
times as set forth herein, notwithstanding any termination of this Lease by
reason of any default of Tenant; this covenant shall survive any such
(b) Tenant shall pay, as Additional Rent, all
sales, use, and other taxes imposed by any governmental authorities upon the
manufacture, sale, use, transmission, distribution or other process necessary
or incidental to the furnishing of utilities or other services to the
Premises. Tenant shall pay before
delinquency all personal property taxes and assessments on the property of
Tenant located on the Premises and on additions and improvements on the Premises
belonging to Tenant. Tenant shall also
pay, as Additional Rent, all sales taxes assessed by governmental authority
against the Base Rent and Additional Rent and other payments to be made
pursuant to this Lease, even though the taxing statute or ordinance may purport
to impose such sales tax against Landlord.
The payment of all sales tax shall be made by Tenant to Landlord on a
monthly basis, concurrently with payment of the Base Rent.
(c) Tenant shall have the right to audit
Landlord’s books and records to determine the accuracy of the Premises’
Operating Costs and Tenant’s share thereof.
In the event that the Tenant’s audit reveals that the Tenant was
overcharged for Premises’ Operating Costs, then Landlord shall, within thirty
filing Tenant’s written demand, provide additional documentation supporting the
prior year’s Premises’ Operating Costs or shall reimburse Tenant for the
overpayment. To the extent that such
overpayment is greater than or equal to five percent (5%) of Tenant’s Premises’
Operating Costs for the year in question then Landlord shall also reimburse
Tenant for Tenant’s costs.
Section 3.07 Additional Rent.
Any and all sums of money or charges required to be
paid by Tenant under this Lease other than Base Rent shall be considered
“Additional Rent” whether or not the same be so designated and Landlord shall
have all rights to enforce due and timely payment by Tenant of Additional Rent
as are available to Landlord with regard to Base Rent.
Business and Use of Premises by Tenant
Section 5.01 Use of Premises.
Tenant shall occupy the Premises without delay upon
the Lease Term Commencement Date. Except
as otherwise specifically provided herein, Tenant shall, continuously and
without interruption, use the Premises solely and exclusively for the Permitted
Use as shown in Section 1.01 (f) of this Lease. Tenant shall not use, permit or suffer the
use of the Premises for any other business or purpose, nor by any other party.
Section 5.02 Waste or Nuisance.
Tenant shall not commit or suffer to be committed
any waste upon the Premises or any nuisance or other act or thing which may
adversely affect Landlord’s interest in the Premises.
Section 5.03 Governmental Regulations.
Tenant shall, at Tenant’s sole cost and expense,
comply with all Legal Requirements of all Legal Authorities regulating Tenant’s
use and occupancy of the Premises, including but not limited to those regarding
building and zoning codes, Hazardous Materials, Americans with Disabilities
Act, and all similar matters, now in force or which may hereafter be in
force. Tenant shall cooperate with
Landlord in Tenant’s observance of all such matters. Tenant shall indemnify, defend and save
Landlord harmless form penalties, fines, costs, expenses, suits, claims,
damages and attorneys’ fees and costs resulting from Tenant’s failure to
perform its obligations in this Section or otherwise resulting from Tenant’s
occupancy of the Premises. The
provisions of this Section shall survive the expiration or termination of
Section 5.04 Hazardous Materials.
(a) Tenant shall not cause or permit any
Hazardous Materials to be brought upon, kept, used, generated or disposed of in
or about the Premises. Except to the
extent that the same shall have occurred as a result of any act or omission of
the Landlord, its agents or employees, if during the Term of this Lease the
Premises becomes contaminated in any manner caused by Tenant, Tenant shall
indemnify and hold harmless Landlord from any and all claims, damages, fines,
judgments, losses or liabilities, investigation, cleanup, removal or
restoration mandated by or related to a federal, state or local agency, or political
subdivision, and any and all sums payable for settlement of claims, attorneys’
fees, consultant and expert fees) arising from, growing out of or related to
Hazardous Materials as described or anticipated in this Section. Tenant shall comply with all terms set forth
in the Hazardous Materials Prevention Contamination, if
and Response Plan for the Gulfcoast Corporate Park and the applicable
requirements of the Manatee County Land Development Code, as amended, which
pertain to Hazardous Materials.
(b) If Tenant causes or permits the discharge of
any Hazardous Material on the Premises, Tenant shall promptly at its sole
expense take all reasonable or necessary actions to return the Premises to the
condition existing prior to the presence of the Hazardous Materials, after
first obtaining Landlord’s approval for such remedial action. Tenant’s remedial action hereunder shall
comply with all Legal Requirements and Landlord’s approval shall not be required
for remedial actions required under any Legal Requirement. If Tenant does not promptly initiate and
diligently pursue full remediation in compliance with Legal Requirements,
Landlord may, following reasonable notice to Tenant, do so and Tenant shall reimburse
Landlord, as Additional Rent.
(c) The provisions of this Section 5.04
shall survive the expiration or termination of this Lease.
(d) Notwithstanding the provisions of
Section 5.04(b), Tenant may introduce and store within the Premises,
chemicals, compounds, solvents and similar materials ordinarily used in
Tenant’s business operations, which may constitute Hazardous Materials,
provided that such materials are stored and utilized in accordance with all
Legal Requirements. Tenant shall be
liable under Section 5.04(c) for any discharge or mishandling of
materials permitted on the Premises pursuant to this Section.
Section 5.05 Radon.
The following statement is made to conform with
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.
Section 6.01 Amount of Deposit.
Upon execution of this Lease, Tenant shall deposit
with Landlord the Security Deposit as provided in Section 1.01(k). This sum may be co-mingled with other funds
of Landlord, and Landlord shall have no liability for the accrual or payment of
any interest thereon. In the event of
the failure of Tenant to keep and perform any of the terms, covenants and
conditions of this Lease, then Landlord, at its option and upon written notice
to Tenant, may apply the Security Deposit, or as much thereof as Landlord may
deem necessary, to compensate Landlord for all loss or damage sustained or
suffered by Landlord due to such default or failure on the part of Tenant. Should any portion of the Security Deposit be
so applied by Landlord, then Tenant shall, upon the written demand of Landlord,
remit to Landlord a sufficient amount in cash to restore the Security Deposit
to the original sum deposited, and Tenant’s failure to do so within fifteen
(15) days after receipt of such demand shall constitute an Event of Default
under this Lease. Should Tenant comply
with all terms, covenants and conditions and promptly pay all the Base Rent and
Additional Rent as it falls due, and all other sums payable by Tenant to
Landlord, the Security Deposit (to the extent not attributed to the first or
last month’s Base Rent) shall be returned in full to Tenant within forty-five (45)
days of the expiration of the Lease Term, as it may be extended pursuant to the
terms of this Lease.
Section 6.02 Transfer of Deposit.
Landlord may deliver the Security Deposit to the
purchaser of Landlord’s interest in the Premises, in the event that such
interest is sold, and, provided such purchaser has assumed in writing the
obligations of Landlord hereunder, thereupon Landlord shall be discharged from
any further liability with respect to the Security Deposit.
Fixtures and Alterations
Section 7.01 Installation by Tenant and
Tenant will not place or permit to be placed or
maintained on any exterior door, wall or window of the Premises any sign,
awning or canopy, or advertising matter or other thing of any kind, and will
not place or maintain any decoration, letter of advertising matter on the glass
of any window or door, nor will any illuminated sign be placed in the window
display area of the Premises without first obtaining Landlord’s written
approval and consent, which consent will not be unreasonably withheld;
provided, however, the Landlord may give consideration to the aesthetic effect
of any such sign when compared to other signage located within Gulfcoast Corporate
Park. Tenant may erect a sign within the
area designated by Landlord, which sign shall be subject to the prior written
approval of Landlord, which shall be subject to the same aesthetic standards
set forth in the previous sentence.
Notwithstanding the foregoing, Landlord hereby approves the existing
signage on and in the Building. Tenant
further agrees that such signs, awning, canopy, decoration, lettering,
advertising matter or other thing as may be approved shall be maintained in
good condition and repair at all times.
Landlord may also approve and install signage for any 2nd
Floor Tenant, to be placed in the joint use entry area, consistent with
approvals as set forth above.
Section 7.02 Responsibility of Tenant
Tenant shall make no Alterations in or to the
Premises without the written consent of Landlord, which consent may be given or
withheld in Landlord’s reasonable discretion and may be predicated on, among
other things, Tenant’s use of contractors acceptable to Landlord, Tenant’s
furnishing plans acceptable to Landlord, Tenant’s obtaining acceptable payment
and performance bonds for any Alterations.
Tenant’s obtaining the consents, if required, of Landlord’s
mortgagee(s), and Tenant’s obtaining all appropriate governmental permits and
approvals at Tenant’s expense prior to the beginning of the work. All Alterations to the Premises remaining at
the end of the Lease Term shall remain the property of Landlord. In no event shall Tenant remove such
Alterations without the prior written consent of Landlord. Upon expiration of the Term of this Lease or
early termination hereof, if Landlord notified Tenant at the time of Landlord’s
approval of such alterations that Landlord requires that such Alterations be
removed, Tenant shall remove such Alterations within five (5) days of
Landlord’s written demand for such removal and shall restore the Premises to
the condition that existed prior to the Alterations, ordinary wear and tear,
casualty loss, and condemnation excepted.
In accordance with the applicable provisions of the
Florida Construction Lien Law, Florida Statutes 713.10, no interest of
Landlord, whether personally or in the Building, or the Premises, shall be
subject to liens for improvements made by Tenant or caused to be made by Tenant
under this Lease. Further, Tenant
acknowledges that Tenant, with respect to improvements or alterations made or
caused to be made by Tenant under this Lease, shall promptly notify the
contractor making such improvements to the Premises of this provision
exculpating Landlord’s liability for such liens. In the event that a claim of lien is filed
against the Building or the Premises in connection with any work performed by
or on behalf of Tenant, Tenant shall satisfy such claim within thirty (30) days
from the date of filing. In the event
that Tenant fails to satisfy such claim within such thirty (30) day period,
Landlord may thereafter charge Tenant, as Additional Rent, all costs incurred
by Landlord in connection with the satisfaction of such claim, including
attorneys’ fees. Further, Tenant agrees
to indemnify, defend and save Landlord harmless from and against any damages or
loss incurred by Landlord as a result of any such claim of lien. If so requested by Landlord, Tenant shall
execute a short form or memorandum of this Lease which may, in Landlord’s
discretion, be recorded in the Public Records for the purpose of protecting
Landlord’s estate from claims of lien, as provided in the Florida
Statutes. Nothing contained in this
Lease shall be construed as a consent on the part of the Landlord to subject
the estate of Landlord to liability under the Mechanic’s Lien Law of the State
of Florida; it being expressly understood that the Landlord’s estate shall not
be subject to such liability.
Section 7.03 Tenant Property Removal.
Notwithstanding any contrary provision of this
Lease, upon expiration of the term of this Lease or its earlier termination,
Tenant shall promptly at its sole cost and expense remove its furniture,
fixtures and equipment from the Premises.
For the purposes hereof, Tenant’s furniture, fixtures and equipment
shall include without limitation the following: furniture, furnishings, art
work, computer systems (excluding wiring), telephone systems (excluding
wiring), modular furnishings and work stations (“cubicles”), tools, jigs,
assembly tables, air compressors, and similar personal property acquired by
Tenant with Tenant’s funds and installed upon the Premises by Tenant or at
Tenant’s direction. In no event shall
the personal property to be removed by Tenant hereunder include any personal
property constructed or originally provided by Landlord, including but not
limited to, floor coverings, wall coverings, lighting fixtures, ceiling fans,
refrigerators, dishwasher, plumbing fixtures, or heating, ventilation and air
conditioning equipment. In the event any
of the personal property to be removed by Tenant hereunder is attached to the
Premises, Tenant shall promptly repair any damage to the Premises caused by
such removal at its sole expense.
Maintenance of Premises
Section 8.01 Tenant’s Responsibility.
In the performance of its responsibilities under
Section 3.05, Tenant agrees to repair and maintain the Premises in good
order and condition, ordinary wear and tear, casualty loss, and condemnation
excepted, which maintenance and replacement, if necessary, shall be
accomplished in such manner and with such materials as shall maintain the same
quality of construction of the improvements as existed upon delivery to the
Tenant and which shall include, maintenance, repair, and replacement of all
portions of the Premises except those portions to be maintained by Landlord
under Section 8.02, including without limitation: (i) repair or replacement of broken
plate or window glass (excluding damage caused by settling or structural
defect); (ii) repair of damage caused by Tenant, its employees, agents,
contractors, customers, licensees, or invitees; (iii) interior repainting
and redecoration; (iv) repair and maintenance of all doors, including
overhead doors; (v) all janitorial work within the improvements located
upon the Premises; (vi) gardening and landscaping; (vii) resurfacing
of paving upon the Premises and line painting; (viii) lighting fixtures
and electrical system (as limited herein); (ix) sign maintenance; (x)
plumbing fixtures and plumbing system (as limited herein); (xi) heating
ventilation and air conditioning equipment and system (“HVAC System”) (as limited
herein); (xii) irrigation system (including any pump and well on the Premises
dedicated solely to irrigation of the Premises); (xiii) exterior painting;
(xiv) security system; and (xv) maintenance and cleaning of roof drains. Landlord shall not be liable for any damages
caused by or growing out of any breakage or leakage of the electrical wiring,
air conditioning or heating pipes and equipment, water closets, plumbing,
appliances, other equipment, or facilities serving the Premises, except as provided
in Section 8.02. Tenant’s responsibility for repair and replacement of the
plumbing system shall be limited to:
(i) the first Two Thousand Dollars ($2,000.00) of repair expenses
for said system in any calendar year, wherever located, and, after payment of
Two Thousand Dollars ($2,000.00) for such expenses, (ii) only those
components of said system located to the exterior of any finished wall, floor
or ceiling including but not limited to fixtures, piping and valves. Tenant’s responsibility for repair and
replacement of the electrical system shall be limited to (i) the first Two
Thousand Dollars ($2,000.00) of repair expenses for said systems in any
calendar year, where ever located, and, after payment of Two Thousand Dollars
($2,000.00) for such expenses, (ii) only those components of said system
located to the exterior of any finished wall, floor or ceiling or within a
junction box (switch or outlet box) or circuit breaker panel accessible at a
finished wall, floor or ceiling including but not limited to fixtures,
switches, outlets, and circuit breakers.
In no event shall Landlord be liable for damages or injuries arising
from failure to make repairs, nor shall Landlord be liable for damages or
injuries arising from defective workmanship or materials in making any such
repairs. Tenant’s responsibility for
maintenance and repair of the HVAC System shall be limited to maintaining a
service contract for routine inspection, servicing and maintenance of the
System with a reasonably qualified HVAC service company and performing any
repair or replacement of components of the HVAC System the cost of which on a
per occurrence basis is equal to or less than the “maximum repair expense”
(defined as follows.) Tenant’s “maximum
repair expense” shall be $500.00 per occurrence of repair during the first
shall increase by $25.00 during each subsequent Lease Year. The Tenant’s
service contract for the HVAC System shall include as a minimum quarterly inspections
of the System, replacement of filters, cleaning of coils, checking and
refilling of coolant, and related services. Such repair or maintenance
obligations of Tenant shall be considered Tenant’s responsibility for Premises’
Operating Cost or replacement. Tenant
shall provide Landlord with any and all service contracts maintained with
regard to the Premises and improvements upon the Premises.
Section 8.02 Landlord’s Responsibilities.
The Landlord’s responsibility for maintenance and
repair of the Premises and the Building shall be limited to the structural
components of the Premises and Building, including specifically foundation and
concrete slabs, walls, exterior windows, doors, and seals, roof structure,
roofing system, defective paving, the electrical system (except items
maintained by Tenant under Section 8.01), the plumbing system (except
items maintained by Tenant under Section 8.01), HVAC System (except items
maintained by Tenant under Section 8.01).
Landlord shall also be responsible for maintenance and repair of the
interior 2nd floor space and elevator serving same. In the event of repairs to the HVAC System
the cost of which exceed the “maximum repair expense” on any occurrence, the
Landlord shall bear the entire cost of such repair. In the event Tenant incurs a repetitive
“maximum repair expense” on the same compressor within any calendar year period
and Tenant reasonably believes a replacement versus a repair is required,
Landlord shall make such replacement or pay the entire cost (Tenant shall not
pay the “maximum repair expense”) for ongoing repair on the particular
compressor. In the event Landlord leases
the 2nd floor space, Landlord shall pay to modify access security
system for the building. This shall
eliminate the Tenant’s security into the joint use entrance and replace it with
a coded access and timer system to control access during non business hours.
Section 8.03 Emergency Repairs.
In the event that any portion of the Premises or a
component thereof requires emergency repair to prevent further damage to the
Premises or Tenant’s personal property therein, either party may take such
minimum steps as reasonably required to stabilize the damaged or defective
condition and the party responsible for such repair under Section 8.01 or
8.02 shall promptly reimburse the party performing the repair upon notice of
the repair and reasonable evidence of the cost thereof. In all events the party identifying the need
for emergency repair shall reasonably attempt to notify the party responsible
for said repair under Section 8.01 or 8.02 prior to undertaking any
repair, and provide written notice promptly following any such repair
describing the extent and nature of the emergency repair.
Section 8.04 Return of Premises.
Landlord shall not be obligated or required to make
or conduct any other maintenance or repairs, and the Premises shall be kept in
good repair and condition by Tenant, ordinary wear and tear, casualty loss, and
condemnation excepted. At the end of the
Lease Term, Tenant shall deliver the Premises to Landlord in good repair and
condition, reasonable wear arising from Tenant’s permitted use of the Premises,
casualty loss, and condemnation excepted.
Section 9.01 Liability Insurance.
Tenant shall, during the entire term hereof, keep in
full force and effect; commercial general liability insurance providing bodily
injury and property damage and liability insurance in an amount not less than
One Million Dollars ($1,000,000.00) per one occurrence, and worker’s
compensation insurance in the maximum amount permitted under Florida law. The policy shall name Landlord and Landlord’s
mortgagee(s) as an additional insured and Tenant as insured, and shall contain a
clause that the insurer will not cancel or change the insurance without first
giving Landlord thirty (30) days’ prior written notice. The insurance shall be with an insurance
company licensed to do business in Florida, and at least A-rated in the most current
of Best’s Insurance Reports and acceptable to Landlord and a copy of the policy
and a certificate of insurance shall be delivered to Landlord prior to the
commencement of the Lease Term. In no
event shall the limits of said insurance policies be considered as limit the
liability of Tenant under this Lease. In
the event that Tenant shall fail to obtain or maintain in full force and effect
any insurance coverage required to be obtained by Tenant under this Lease,
Landlord may procure same from such insurance carriers as Landlord may deem
proper and Tenant shall pay, as Additional Rent, any and all premiums, costs,
charges and expenses incurred or expended by Landlord in obtaining such
insurance. Notwithstanding the foregoing
sentence, Tenant shall nevertheless hold Landlord harmless from any loss or
damage incurred or suffered by Landlord from Tenant’s failure to maintain such
insurance, and this provision shall survive the expiration or termination of
Section 9.02 Fire and Extended Coverage
At all times during the Lease Term, Landlord shall
maintain in effect policies of insurance covering the Premises and the Building
in an amount not less than its full insurable value, providing protection
against any peril included within the standard classification of “Fire and
Extended Coverage,” together with insurance against vandalism, theft and
malicious mischief and insurance covering replacement of all the plate glass of
the Premises (provided such coverage is conventionally available). The proceeds of such insurance shall be used
to repair or replace the Premises so insured.
All property, including without limitation stock, inventory, fixtures
and equipment belonging to Tenant shall be on the Premises at the risk of
Tenant and shall be fully insured by Tenant, and Landlord shall not be liable
for damage, theft or misappropriation of such property of Tenant except as
results solely from the gross negligence or intentional misconduct of Landlord
or its agents, employees, or contractors.
The Landlord’s cost of providing insurance coverages hereunder shall be
paid by Tenant as an element of Premise’s Operating Cost.
Section 9.03 Prohibited Articles.
Tenant shall not keep, use, sell or offer for sale
in or upon the Premises any article which may be prohibited by the
standard form of fire and extended risk insurance policy. Tenant agrees to promptly make, at Tenant’s
cost, any repairs, alterations, changes and/or improvements to fixtures and
equipment in the Premises required by the company issuing Landlord’s fire
insurance on the Premises so as to avoid the cancellation of such
insurance. Landlord confirms that the
articles currently used, sold, or offered for sale in or upon the Premises by
Tenant do not contravene the provisions of this Section 9.03.
Section 9.04 Indemnification of Landlord
Tenant shall indemnify, defend and save Landlord
harmless from and against any and all claims, actions, damages, arising out of
any occurrence during the term of this Lease in, upon or at the Premises, or
the occupancy or use by Tenant of the Premises or any part thereof, or
occasioned wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, servants, lessees or any third party, except such claims,
actions or damages resulting from any act or omission of: (i) Landlord,
its agents, contractors, employees or servants; and (ii) any other tenants
in the Building and their respective agents, contractors, employees, servants,
or invitees. Tenant shall protect and
hold Landlord harmless and shall pay all costs and attorneys’ fees incurred by
Landlord in connection with such litigation, and any appeals thereof or
collections related thereto under this indemnity provision. Landlord shall provide prompt notice to
Tenant of any potential claim or damage which may be subject to Tenant’s
indemnification hereunder and in no event shall Landlord settle or compromise
any claim which Tenant may indemnify hereunder without notice of the terms of
settlement to Tenant, and Tenant’s approval is not to be unreasonably withheld.
The provisions of this Section shall survive the expiration or termination
of this lease.
Section 9.05 Intentionally Omitted.
Section 9.06 Waiver of Subrogation.
Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives any and all rights of
recovery, claim, action, or cause of action against the other (and against any
assignee of Landlord and assignee or subtenant of Tenant) for any loss or
damage that may occur to the Building or Premises or any improvements thereto,
or any personal property of Landlord or Tenant, arising from any cause that:
(i) is customarily insured against under the terms of special form
(all-risk) property insurance; or (ii) is insured against under the terms
of any property insurance actually carried.
The foregoing waiver shall apply regardless of the cause or origin of
the claim, including, but not limited to, the negligence of a party or that
party’s agents, officers, employees, or contractors. The parties hereto, as between themselves,
hereby waive the right to seek or collect punitive or consequential damages.
Section 10.01 Payment and Metering.
Tenant shall be solely responsible for and promptly
pay directly to the utility or other provider of such service all charges for
gas, electricity or any other utility (including water and sewer) used or
consumed in the Premises (and the 2nd floor space, in accordance
with the terms of Section 3.05), including hookup and connection fees
charged by the provider for the commencement and delivery of utility services,
but in all events excluding utility impact fees, if any, to be paid with
respect to the Premises. If any such
charges are not paid when due, Landlord may, at its option, pay the same, and
any amount so paid by Landlord shall be due to Landlord from Tenant as
and Attornment, Estoppel Certificate
Section 11.01 Subordination and Attornment.
Tenant subordinates its rights under this Lease to
the lien of any mortgages, or the lien resulting from any other method of
financing or refinancing, now or hereafter in force against the Premises or the
Building, and to all advances made or hereafter to be made upon the security
thereof; provided, however, that any such subordination shall be understood to
include a commercially reasonable non-disturbance clause which will permit the
Tenant to remain in possession of the Premises under the terms of this Lease so
long as the Tenant is not in default hereunder; and provided, further, that any
subordination provisions contained in a mortgage constituting a lien upon the
Premises shall not in any way modify or amend any of the terms of this
Lease. This section shall be
self-operative and no further instrument of subordination shall be necessary,
but Tenant shall within ten (10) days following written request by
Landlord execute and deliver any and all documents evidencing such subordination
and failure to do so shall constitute an Event of Default under this
Lease. In the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power of
sale under, any mortgage made by the Landlord covering the Premises or in the
event a deed is given in lieu of foreclosure of any such mortgage, upon receipt
of notice thereof and assumption of the obligations of Landlord hereunder by
the purchaser or grantee in lieu of foreclosure, Tenant shall attorn to the
purchaser, or grantee in lieu of foreclosure, upon any such foreclosure or
sale, and shall recognize such purchaser, or grantee in lieu of foreclosure, as
the Landlord under this Lease.
Section 11.02 Estoppel Certificate.
Tenant shall within ten (10) days following
written request by Landlord, or any mortgagee of Landlord, execute, acknowledge
and deliver to Landlord or such mortgagee a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect and stating the
modifications), and the date to which the Base Rent and any other
due from Tenant have been paid in advance, if any, and stating whether or not
there are defenses or offsets claimed by Tenant and Whether or not to the best
of Tenant’s knowledge Landlord is in default in performance of any covenant,
agreement or condition contained in this Lease, and if so, specifying each such
default. The failure of Tenant to
execute, acknowledge and deliver a statement in accordance with the provisions
of this Section within said ten (10) day period shall constitute an
Event of Default under this Lease.
Section 12.01 No Assignment.
Except as provided in Section 12.06, Tenant may
not assign this Lease in whole or in part, nor sublet all or any portion of the
Premises, nor grant occupancy rights to anyone other than Tenant, nor mortgage
or lien all or a portion of the Premises (collectively and individually, a
“transfer”), without the prior written consent of Landlord in each
instance. The consent by Landlord to any
transfer shall not constitute a waiver of the necessity for such consent to any
subsequent transfer. Landlord may refuse
to grant consent to any transfer by Tenant with or without cause and without
stating the reasons for its refusal. If
Landlord in its sole discretion consents to the transfer, any assignee or
subtenant or occupant or mortgagee or lienor, collectively and individually,
(“transferee”), shall assume all obligations under this Lease and Tenant shall
not be released from and shall remain fully liable for the performance of all
provisions of this Lease except as provided in Section 12.06.
Section 12.02 Proposal to Sublease or
Except as provided in Section 12.06, if Tenant
desires to effect a transfer to a transferee, Tenant shall submit to Landlord a
written request for the consent of Landlord to such transfer, which request
shall be accompanied by the name and address of the proposed transfer, a
description identifying the space to be sublet or occupied, a copy of the fully
executed transfer agreement or contract therefore, conditioned only upon
approval of Landlord, the nature and character of the business of the proposed
transferee, and its proposed use of the Premises, current financial information
on the proposed transferee, and such other information as Landlord may
reasonably request. Landlord shall have
the option within thirty (30) days of receipt of such notice and information to
approve or disapprove the proposed transferee, in its sole and arbitrary
Section 12.03 Transfer of Lease.
Tenant shall not have (a) advertised or
publicized in any way the availability of all or part of the Premises without
prior notice to and consent by Landlord, or (b) publicly advertised the
Premises for subletting whether through a broker, agent, representative, or
otherwise at a rental rate less than that for which space in the Building is
being offered for rent by Landlord.
Because Landlord has entered into this Lease with Tenant, and because
the terms of this Lease are particular to Tenant, as it exists at time of
execution of this Lease and as Landlord projects it will exist during the Lease
Term, Landlord may require modifications in one or more terms of this Lease
(including but not limited to Base Rent, Additional Rent, Lease Term, option or
renewal clauses, if any) before Landlord consents to any transfer, except for
transfers pursuant to Section 12.06.
Section 12.04 Results of Transfers.
If Landlord in its sole discretion permits a
transfer, the following results shall be automatically effectuated:
(a) the transfer shall be deemed to contain a
provision making such transfer subject to the terms and conditions of this
(b) except as provided in Section 12.06, the
transfer shall not release Tenant from the due, prompt and punctual performance
of all the terms, covenants and conditions contained in this Lease on its part
to be performed or observed including the payment of any Rent due and to become
due under this Lease; and
(c) the consent of Landlord to the proposed
transfer shall not constitute a waiver of any provision of this Lease and,
except for permitted transfers under Section 12.06, no further transfer
shall be made without Landlord’s prior consent in writing; the transferee shall
not further transfer the Premises without Landlord’s prior written consent and
then only upon compliance with all the provisions contained in this
Section 12.05 Events Deemed Assignment.
Except in connection with a permitted transfer under
Section 12.06, if there shall occur any change, or cumulative changes, in
the ownership of and/or power to vote the majority of the outstanding capital
stock of Tenant, whether such change or ownership is by sale, assignment,
bequest, inheritance, operation of law or otherwise, then such change or
changes shall be deemed an assignment subject to the provisions of this
Article XII, i.e., the Tenant shall provide the Landlord with all of the
information required to be delivered to Landlord under Section 12.02.
Section 12.06 Permitted Transfer.
Notwithstanding anything contained in this Lease to
the contrary, Tenant shall be entitled to transfer, sublease or assign the
entire Premises without the Landlord’s consent to: (i) any entity whose
shares are regularly and publicly traded on a National Securities Exchange as
defined in the Securities Act of 1934, as amended; or (ii) to any entity
that purchases or acquires substantially all the assets of the Tenant or
forty-nine percent (49%) or more of the voting common stock of Tenant (through
a merger, consolidation, acquisition, combination or otherwise), whether or not
such resulting entity remains in Tenant’s name or continues to operate Tenant’s
business on the Premises; (iii) to a parent, subsidiary, or affiliate of
Tenant, or to a successor of Tenant (collectively “Permitted Transferees”). In all events, such transferee shall
specifically assume and agree to be bound by Tenant’s obligations under this
Lease. No transfer, assignment or
sub-lease hereunder shall be effective until Landlord has received: (i) notice of the Permitted Transferees’
complete name, and address for notices under this Lease, the nature of the
business operations to be conducted upon the Premises by the Permitted
Transferees, and a statement whether the underlying transaction is an asset
sale or a stock transfer and (ii) only in the event of an asset sale
transaction, the Permitted Transferee’s written assumption of the obligations
under this Lease, assignment or sub-lease hereunder. The effective date of any permitted transfer
hereunder, shall in no event be earlier than fifteen (15) days after Landlord’s
receipt of the required notice.
Permitted transfers hereunder shall not release Tenant from liability
under this Lease unless such permitted transferee then possesses a net worth
(as determined in accordance with generally accepted accounting principals
consistently applied) greater than or equal to the net worth of the Tenant so
determined as of the date of such transfer, assignment or sub-lease. In the event Tenant desires to be released
from liability under this Section, reasonable evidence of the proposed
transferee’s net worth shall be provided to Landlord at the time the notice
required under this Section is provided to the Landlord. Notwithstanding any Permitted Transfer,
assignment or subletting, the Guarantor shall remain liable under its Guaranty
Agreement attached as Exhibit “D.”
Section 13.01 Rules and Regulations.
The Protective Covenants, Conditions, Easements, and
Restrictions of Gulfcoast Corporate Park attached as Exhibit “B” are a
part of this Lease, and Tenant agrees to comply with and abide by same. Tenant’s failure to keep and observe said
rules and regulations shall constitute an Event of Default under
Lease. The Protective Covenants,
Conditions, Easements, and Restrictions of Gulfcoast Corporate Park may, from
time to time, be amended and, as so amended, will supplement the rules and
regulations, and such revised rules and regulations shall automatically
become a part of this Lease. Provided,
however, Tenant shall not be required to comply with any revised Rules and
Regulations which may conflict with the obligations of the parties under this
Section 14.01 Total or Partial
If the Premises shall be damaged by fire, the
elements, unavoidable accident or other casualty, without the fault of Tenant,
but are not thereby rendered untenantable in whole or in part, Landlord shall,
to the extent of available insurance proceeds, cause such damages, except to
Tenant’s equipment and trade fixtures, to be repaired, and the Rent and other
charges payable by Tenant hereunder shall not be abated. If by reason of such occurrence, the Premises
shall be rendered untenantable only in part, Landlord shall, to the extent of
available insurance proceeds, cause the damage, except to Tenant’s equipment
and trade fixtures, to be repaired, and the Base Rent meanwhile shall be abated
proportionately as to the portion of the Premises rendered untenantable. With respect to partial destruction, Landlord
shall promptly procure necessary plans and materials necessary to obtain a
building permit to complete reconstruction, apply for and obtain such building
permit, and commence construction within one hundred eighty (180) days
following the date of partial destruction, subject to a reasonable extension in
the event the building permit is delayed due to the action or inaction of the
issuing agency and shall complete repairs and restoration of the Premises to a
condition substantially the same as the condition of the Premises prior to the
damage within one hundred eighty (180) days after commencement. If the Premises shall be rendered wholly
untenantable by reason of such occurrence, Landlord shall at its own expense
cause such damage, except to Tenant’s equipment and trade fixtures, to be
repaired and the Base Rent meanwhile shall be abated in whole. Landlord’s obligations to repair pursuant to
this Section apply and extend only to the extent of Landlord’s original
obligation to construct, as defined in this Lease. If fifty percent (50%) of more of the
Premises are rendered untenantable, then Landlord shall have the right, to be
exercised by notice in writing delivered to Tenant within sixty (60) days after
said occurrence, to elect not to reconstruct the destroyed Premises, and in
such event this Lease and the tenancy hereby created shall cease as of the date
of the said occurrence. During any
period that Base Rent is abated in whole or part under this Section or
Section 15.01, Additional Rent shall likewise be abated. If this Lease is
terminated under this Section, all Deposits and other sums due under this Lease
shall be promptly refunded to Tenant after payment of all accrued but unpaid
rents, if any. For purposes of the Article XIV and
Article XV below, the term “untenantable” shall mean a condition under
which Tenant cannot use the area in question in substantially the same manner
and to substantially the same extent as Tenant used such area prior to the
damage or taking, respectively.
Section 14.02 Damage Near End of Term.
If the Premises are destroyed or materially damaged
during the last twelve (12) months of the Lease Term and the estimated time for
repair exceeds ninety (90) days (from commencement of construction), Landlord
may at its option cancel and terminate this Lease as of the date of occurrence
of such damage by giving written notice to Tenant of its election to do so
within thirty (30) days after the date of occurrence of such damage. For the purpose hereof, the ninety (90) day
repair period shall be determined based upon a written report/ time estimate
prepared by an independent licensed general contractor obtained by Landlord.
Section 14.03 Reconstruction of
Any reconstruction of the Premises under this
Section shall be in substantial conformity with the improvements as they
existed prior to the casualty. Tenant,
at its sole cost and expense, shall be responsible for the repair and
restoration of all Tenant improvements and the replacement of its stock in
trade, trade fixtures, furniture, furnishings and equipment. Tenant shall commence the installation of
and merchandise promptly upon delivery to it of possession of the
Premises. Landlord shall have no repair
obligations if the damage of destruction is due to Tenant’s negligence or
Section 15.01 Total and Partial
If the entire Premises shall be appropriated or
taken under the power or threat of eminent domain by any public or quasi-public
authority, then this Lease shall terminate and expire as of the date of the
vesting of title thereto in such authority, and Landlord and Tenant shall
thereupon be released from any further liability or obligation hereunder
(except for any liability which has accrued prior to the date of such
termination). If any part of the Leased
Premises shall be taken as aforesaid and such partial taking shall render that
portion not so taken untenantable, then this Lease shall terminate and expire
as aforesaid. In addition, if more than
fifty percent (50%) of the net space in the Premises shall be taken as
aforesaid, Landlord or Tenant may, by written notice to the other party,
terminate this Lease, such termination to be effective as aforesaid.
If such partial taking is not so extensive as to
render the part of the Premises not so taken untenantable, then this Lease
shall continue in full force and effect except for the portion of the Premises
taken, except that the Rent and all other sums due hereunder by Tenant shall be
reduced in the same proportion that the net rentable square feet of space
contained in the part of the Premises taken bears to the original net rentable
square feet contained within the Premises leased to Tenant hereunder. In such event, Landlord shall, upon receipt
of the award in condemnation, make all necessary repairs or alterations to the
building in which the Premises are contained so as to constitute the portion of
such building not taken as a complete architectural unit. For the purposes hereof, the amount received
by Landlord shall mean that part of the award in condemnation for the value of
the diminished fee which is free and clear to Landlord of any collection by any
mortgagee, ground or underlying lessor or other party to any financing or
refinancing of the Premises.
Tenant shall have the right to claim from the
condemning authority, but not from Landlord, such compensation as may be
recoverable by Tenant in its own right for damage to Tenant’s business,
fixtures and improvements installed by Tenant at its own cost and expense
provided same does not reduce the amount to be paid to Landlord.
Whenever the Rent Payment shall be abated pursuant
to this Section 15.01, such abatement shall continue until the date which
shall be the first to occur of: (i) fifteen (15) days after Landlord
notifies Tenant that the Premises have been substantially repaired and restored;
or (ii) the date Tenant’s business operations are restored in the
Premises, as modified, if applicable.
Section 15.02 Damages
In the event of any condemnation or taking as
provided above, whether whole or partial, Tenant shall not be entitled to any
part of the award, as damages or otherwise, for such condemnation. Landlord shall receive the full amount of
such award, and Tenant hereby expressly waives any right or claim to any part
thereof. Although all damages in the
event of any condemnation shall belong to Landlord, whether such damages are
awarded as compensation for diminution in value of the leasehold or the fee of
the Premises, Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant’s own right on account of
any damage or loss to Tenant’s business by reason of the condemnation and for
or on account of any cost or loss of Tenant in removing Tenant’s merchandise,
furniture, fixtures, leasehold improvements and equipment from the Premises.
Section 15.03 Sale Under Threat of
A sale by Landlord to any authority having the power
of eminent domain, either under threat of condemnation or while condemnation
proceedings are pending, shall be deemed a taking under the power of eminent
domain for all purposes under this Article XV.
Section 16.01 Tenant’s Events of Default.
Upon the occurrence of one or more of the following
Events of Default, Landlord shall have any and all rights and remedies set
forth in this Lease:
(a) In the event Tenant should fail to pay any
one or more monthly installments of Base Rent, or any other sums required to be
paid as Additional Rent, as and when they become due; provided that Tenant
shall receive written notice of payment default and have five (5) days
following said notice to pay the monthly installment (together with any
additional sums due under Section 16.02, if any) in full as to the first
of such occurrences of such payment default during any calendar year. If Landlord provides one (1) payment
default notice in any calendar year no subsequent payment default during that
calendar year shall require notice nor be subject to any grace period.
(b) In the event a petition in bankruptcy under
any present or future bankruptcy laws (including but not limited to
reorganization proceedings) be filed by or against Tenant or any guarantor of
this Lease and such petition is not dismissed within thirty (30) days from the
filing thereof, or in the event an order for relief under Title II, U.S.C. is
entered with respect to Tenant or any guarantor of this Lease is adjudged to be
(c) In the event an assignment for the benefit of
creditors is made by Tenant or any Guarantor of this Lease;
(d) In the event of an appointment by any court
of a receiver or other court officer of the property of Tenant or of any
Guarantor of this Lease, and such receivership is not dismissed within thirty
(30) days from such appointment;
(e) In the event Tenant removes, attempts to
remove, or permits to be removed from the Premises, except in the usual course
of trade, the goods, furniture, effects or other property of Tenant brought
(f) In the event Tenant, before the expiration of
the Lease Term, substantially vacates or abandons the Premises, i.e., fails to
occupy and use the Premises for thirty (30) days or more for causes other than
fire casualty or force majeure;
(g) In the event Tenant uses the Premises for any
purpose other than the Permitted Use of Premises, or ceases to use the Premises
for the Permitted Use of the Premises;
(h) In the event an execution or other legal
process is levied upon the goods, furniture, effects or other property of
Tenant brought on the Premises, or upon the interest of Tenant in this Lease,
and the same is not satisfied or dismissed within ten (10) days from such
(i) In the event Tenant violates any other term,
condition or covenant on the part of Tenant to be performed hereunder, and
fails to commence the remedy of the same within ten (10) days after
written notice thereof is given by Landlord to Tenant and complete such remedy
within thirty (30) consecutive days after such written notice; provided,
however, that if such violation is not curable within thirty (30) days, then
Tenant shall be required to have commenced such remedy within such ten
(10) days subsequent to such notice and continuously pursues such cure
thereafter until completed.
Section 16.02 Remedies of Landlord.
(a) In the event of the occurrence of an Event of
Default by Tenant, Landlord, at Landlord’s option, may elect to do one or more
of the following:
1. Accelerate all of the remaining Rent for the
Lease Term, in which event all Rent shall become immediately due and payable.
2. Terminate this Lease and re-enter the
Premises and remove all persons and property from the Premises, either by
summary proceedings or by any other suitable action or proceeding at law, or
3. Without terminating this Lease, re-enter the
Premises and remove all persons and property from the Premises, either by
summary proceedings or by any other suitable action or proceeding at law, or
otherwise, and relet all or any part of the Premises.
4. With respect to Tenant’s default under
provisions of Section 16.01(i), Landlord may undertake to cure such
event of default in a commercially reasonable manner and Tenant shall be liable
for Landlord’s expenses incurred in curing such event of default together with
interest at the rate of eighteen percent (18%) per annum, all of which shall be
due and payable as Additional Rent hereunder.
Provided however, Landlord shall prior to incurring any expense
hereunder provide notice to Tenant of the planned curative action and
Landlord’s estimate of costs for such curative action and Tenant shall have ten
(10) days after receipt of such notice to undertake appropriate curative
action, failing which Landlord may do so as provided herein.
(b) If Landlord elects to terminate this Lease:
1. Landlord shall give written notice of such
termination, which shall take effect ten (10) days after such notice is
given, or such greater number of days as is set forth in such notice, fully and
completely as if the effective date of such termination were the date
originally set forth in this lease for the expiration of the Least Term;
2. Tenant shall quit and peacefully surrender
the Premises to Landlord, without any payment by Landlord for doing so, on a
before the effective date of termination; and
3. All Rent, including accelerated Rent, shall
become due and shall be paid up to the effective date of termination, together
with such expenses, including attorneys’ fees, as Landlord shall incur in
connection with such termination.
(c) No receipt of monies by Landlord from Tenant
after termination of this Lease shall reinstate, continue, or extend the Lease
Term, affect any notice previously given by Landlord to Tenant, or operate as a
waiver of the right of Landlord to enforce the payment of Rent.
(d) If Landlord terminates this Lease, Landlord
shall be entitled to retain, free of trust, all sums then held by Landlord
pursuant to any of the previous provisions of this Lease. In the interim following such termination
until the retention of such sums by Landlord free of trust, such sums shall be
available to Landlord, but not to Tenant, pursuant to and for the purposes
provided by the terms and conditions of this Lease.
(e) If Tenant does not pay rent by the fifth (5th)
day after it is due, a late charge of five percent (5%) of the delinquent
payment shall be due, effective as of the first day payment was to have been
made. If the Landlord does not receive
the rent due by the fifth (5th) day after it is due, the Landlord,
at the Landlord’s
may give written notice of late payment to the Tenant; provided, however, that
if such late payment notice is given, a late charge of ten percent (10%) of the
delinquent payment shall be due effective as of the first day payment was to
have been made. If the Tenant does not
pay rent plus the late charge by the fifteenth (15th) day after the
due date, interest on the outstanding amount due shall accrue at the rate of
eighteen percent (18%) per annum on the total amount due and amounts
outstanding until the same, plus all accrued interest thereon, is paid in
full. In the event any check, bank draft
or negotiable instrument given for any payment under this Lease shall be
dishonored at any time for any reason whatsoever not attributable to Landlord,
Landlord shall be entitled, in addition to any other remedy that may be
available, to an administrative charge of Two Hundred Dollars ($200.00).
(f) In the event of any re-entry and/or
dispossession by summary proceedings or otherwise without termination of this
1. All Rent shall become due and shall be paid
up to the time of such re-entry and/or dispossession, together with such
expenses, including attorney’s fees, as Landlord shall incur in connection with
such re-entry and/or dispossession by summary proceedings or otherwise; and
2. All Rent for the remainder of the Lease Term
may be accelerated and due in full, the collection of such sums being subject
to the provisions of Subsection 16.02(f), below; and
3. Landlord may relet all or any part of the
Premises, either in the name of Landlord or otherwise, for a term or terms
which may, at Landlord’s option, be equal to, less than, or greater than the
period which would otherwise have constituted the balance of the Lease
Term. In connection with such reletting:
(i) Tenant or Tenant’s representative shall pay,
as Additional Rent, to Landlord, as they are incurred by Landlord, such
reasonable expenses as Landlord may incur in connection with reletting,
including, without limitation, legal expenses, attorneys’ fees, brokerage
commissions and expenses incurred in altering, repairing, and putting the
Premises in good order and condition and in preparing the Premises for
(ii) Tenant or Tenant’s representative shall pay
to Landlord, in monthly installments on the due dates for Rent payments for
each month of the balance of the Term, the amount by which any Rent payment
exceeds the net amount, if any, of the rents for such period collected on
account of the reletting of the Premises; any suit brought to collect such
amount for any month or months shall not prejudice in any way the rights of
Landlord to collect the deficiency for any subsequent month or months by a
similar action or proceeding;
(iii) At Landlord’s option exercised at any time,
Landlord shall be entitled to recover immediately from Tenant, in addition to
any other proper claims, but in lieu of and not in addition to any amount which
would thereafter become payable under the preceding subsection, a sum equal to
the amount by which the sum of the Rent for the balance of the Lease Term,
discounted based upon the prime rate less two percent (2%) to its then-present
value, exceeds the net rental value of the Premises, discounted at the same
annual rate to its then-present value, for the balance of the Lease Term. In determining such net rental value of the
Premises, the rent realized by any reletting of the Premises, if such reletting
is upon terms generally comparable to the terms of this Lease, shall be deemed
to be such net rental value;
(iv) At Landlord’s option, Landlord may make such
commercially reasonable alterations in or upon the Premises as Landlord, in
Landlord’s sole judgment, considers advisable and necessary for the purpose of
reletting the Premises to an identifiable prospective tenant. The making of such alterations shall not
operate or be construed to release Tenant from liability under this
Section 16.02. The cost of all such
alterations and/or decorations shall be paid by Tenant to Landlord as
(v) Landlord shall have, receive, and enjoy as
Landlord’s sole and absolute property, any and all sums collected by Landlord
as Rent or otherwise on reletting the Premises after Landlord shall resume
possession of the Premises as provided by this Lease, including, without
limitation, any amounts by which the sum or sums so collected shall exceed the
continuing liability of Tenant under this Lease. If Landlord shall have accelerated Rent
payments and collected same from Tenant, and subsequently shall have relet the
Premises, then Landlord, after deducting all costs related to reletting,
including, but not limited to, those described or anticipated in this
Section 16.02, shall pay to Tenant the amount remaining which is collected
as Rent for each month, to the extent Landlord shall have previously received
the Rent for such month from Tenant.
(vi) Landlord and Tenant agree that after the
commencement of suit for possession of the Premises or after final order or
judgment for the possession of the Premises, Landlord may demand, receive, and
collect any monies due or coming due without in any manner affecting such suit,
order, or judgment. All such monies
collected shall be deemed to be payments on account of the use and occupation
of the Premises, or, at the election of Landlord, on account of Tenant’s
liability under this Lease;
(vii) The words “re-enter” and “re-entry”, as used
in this Section 16.02, are not and shall not be restricted to their
technical legal meaning, but are used in the broadest sense;
(viii) Landlord, in addition to other rights and
remedies it may have, shall have the right to (a) keep in place and use
all of the furniture, fixtures, and equipment in the Premises, including that
which is owned by or leased to Tenant, and (b) to remove all or any part
of Tenant’s property from the Premises and any property removed may, at
Landlord’s option be stored in any public warehouse or elsewhere at the cost of
and for the account of Tenant. Landlord
shall not be responsible for the care or safekeeping of such property, whether
in transport, storage or otherwise.
Tenant waives any and all claim against Landlord for loss, destruction
and/or damage or injury which may be occasioned by any of the aforesaid
acts. Tenant shall be liable to Landlord
for costs incurred by Landlord in connection with any storage, transport or
other acts anticipated in this Section 16.02 and shall not harmless and
indemnify Landlord from all loss, damage, cost, expenses and liability in
connection therewith. Landlord shall
also have the right to relinquish possession of all or any portion of such
furniture, fixtures, equipment and other property to any person (“Claimant”)
claiming to be entitled to possession of such property, and who presents to
Landlord a copy of any instrument represented to Landlord by Claimant to have
been executed by Tenant (or any predecessor of Tenant) granting Claimant the
right under various circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of
Landlord to inquire into the authenticity of Tenant’s or Tenant’s predecessor’s
signature thereon and without the necessity of Landlord
making any nature of investigation or inquiry as to
the validity of the factual or legal basis upon which the Claimant purports to
act. Tenant agrees to indemnify and hold
Landlord harmless from all cost, expense, loss, damage and liability incident
to Landlord’s relinquishment of possession of all or any portion of such
furniture, fixtures, equipment or other property to Claimant. No re-entry or taking possession of the
Premises by Landlord shall be construed as an election on Landlord’s part to
terminate this Lease unless a written notice of such intention is given to
Tenant. Notwithstanding any such
re-letting without termination, Landlord may at all times thereafter elect to
terminate this Lease for such previous default.
Any such re-entry shall be allowed by Tenant without hindrance, and
Landlord shall not be liable in damages for any such re-entry, or guilty of
trespass or forcible entry; and
(ix) Landlord shall be entitled to the issuance of
pre-judgment writs of replevin, pre-judgment distress writs, attachment writs,
break open orders, orders authorizing the locking of the Premises to protect
Landlord’s lien on personal property, fixtures and equipment, and such other
orders as may be issued by a court of law or equity without waiving any right
or remedy under Florida law. Landlord
shall have the right to take possession as allowed under Chapter 78, Florida
Statutes. The remedies described in this
Article XVI are cumulative and in addition to and without waiver of all
remedies allowed Landlord by this Lease or by case law, common law and statute
now or hereinafter in effect. Tenant
agrees that the rights and remedies granted Landlord in this Article XVI
are commercially reasonable.
Section 16.03 Waiver, Accord and
The waiver by Landlord or Tenant of any default of
any term, condition or covenant shall not be a waiver of any subsequent default
of the same or any other term, condition or covenant. The consent or approval by Landlord to or of
any act by Tenant requiring Landlord’s consent or approval shall not be deemed
to waive or render unnecessary Landlord’s consent to or approval of any
subsequent similar act by Tenant. No
re-entry hereunder shall bar the recovery of Rent or damages for the default of
any of the terms, conditions or covenants of Tenant. The receipt of Rent after default or
condition broken, or delay on the part of Landlord to enforce any right under
this Lease shall not be deemed a waiver of any preceding default by Tenant of
any term, covenant or condition of this Lease, or a waiver of the right of
Landlord to terminate this Lease or to re-enter or to re-let the Premises. No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent herein stipulated to be paid shall be deemed
to be other than on account of the earliest stipulated Rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord’s right to recover the
balance of such Rent or pursue any other remedy provided in this Lease or by
law or equity. Any waiver of rights by
either party shall be deemed not only to be a waiver of such rights by such
party but also a waiver of such rights for and on behalf of such party’s
successors and assigns.
Section 16.04 Tenant Claims.
If at any time Tenant shall claim Landlord is in
default, or assert any defense to payment of Base Rent, Additional Rent or
other sums due under this Lease, other than the defense of complete previous
payment, Tenant may not withhold any payments under this Lease but must, as a
condition precedent to the making of any such claim or defense either
(a) pay all disputed sums to Landlord, or (b) deposit all disputed
sums with the Manatee County Circuit Court.
This provision is a material inducement to Landlord to execute this
Section 16.05 Liability of Landlord.
Tenant shall look solely to the estate and property
of Landlord in the Premises for the collection of any judgment, or in
connection with any other judicial process, requiring the payment of money by
Landlord in the event of any default by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed and performed by
Landlord. Landlord shall have no personal
liability in regard to the covenants, obligations, representations or
provisions of this Lease. No other
property or estates of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of Tenant’s remedies and rights
under this Lease. Landlord shall not be
deemed in default with respect to failure to perform any of the terms,
covenants and conditions of this Lease if such failure to perform shall be due
to any strike, lockout, civil commotion, war-like operations, invasion,
rebellion, military power, sabotage, government regulations or controls,
inability to obtain any material or utilities, hurricane, windstorm, Act of
God, termination of underlying lease or any other cause beyond the control of
Section 16.06 Legal Expense.
If either Landlord or Tenant employs the services of
any attorney to enforce any of its rights under this Lease or to collect any
sums due to it under this Lease or to remedy the breach of any covenant of this
Lease, regardless of whether suit be brought, the non-prevailing party shall
pay to the prevailing party reasonable attorney’s fees and costs for such
services. Should suit be brought for the
recovery of possession of the Premises, or for Rent or any other sum due under this
Lease, or should Landlord or Tenant bring suit because of the default of any of
the other’s covenants under this Lease, the prevailing party’s reasonable
attorney’s fees and costs shall be paid by the non-prevailing party.
Section 16.07 Landlord’s Default.
Landlord shall be in default under this Lease if
Landlord fails to comply with all terms and conditions of this Lease and such
failure shall continue for a period of thirty (30) days after Landlord’s
receipt of written notice thereof from Tenant, but if such failure shall be of
a type which cannot reasonably be cured within thirty (30) days, Landlord shall
not be in default provided that it has mobilized reasonable efforts to cure
such default within the initial thirty (30) day period and thereafter
diligently and continuously pursues completion of the remedial action to cure
such default. In all events hereunder,
Tenant’s notice to Landlord of Landlord’s default shall declare with
specificity, Landlord’s alleged failure of performance.
Upon occurrence of any default by Landlord under this
Lease, Tenant shall have the option to pursue any one or more of the following
(a) Cure such default of Landlord, if applicable,
in which event Tenant may charge Landlord all costs and expenses incurred by
Tenant in connection with such cure including reasonable attorney’s fees and
costs and default interest at the rate of eighteen percent (18%) per annum on
any sums owed by Landlord to Tenant resulting from Tenant’s cure of Landlord’s
default (provided, however, before Tenant incurs any expense under the security
provision, Tenant shall provide written notice to Landlord of Tenant’s intended
curative actions, and estimate of Tenant’s costs associated therewith including
specifically any third party estimates for services to be provided to cure such
event of default and Landlord shall have ten (10) days from receipt of
such notice to undertake reasonable curative efforts, failing which Tenant may
complete its curative action as provided herein); or
(b) Take such other action available to Tenant at
law or in equity, including but not limited to, the right to recover damages
incurred by Tenant as a result of Landlord’s default. Tenant may off-set against any Rent,
Additional Rent, Premise Operating Cost or other sums of money due to Landlord
under the terms and provisions of this Lease, the amount of any damages, costs,
fees or expenses, including attorney’s fees and expenses awarded to Tenant by a
court of competent jurisdiction as a result of Landlord’s default.
Section 17.01 Right of Entry.
Upon twenty-four (24) hours’ advance notice,
Landlord and Landlord’s agents shall have the right to enter the Premises at
all times during normal business hours to examine the same, and to show them to
prospective purchasers or lessees of the Premises, and to make such repairs,
alterations, improvements or additions as Landlord may deem necessary or
desirable. Prior to the expiration of
the then-current Lease Term, Landlord may exhibit the Premises to prospective
tenants or purchasers, and place upon the Premises the usual notices, ‘‘To Let”
or “For Sale,” or similar notices, which notices Tenant shall permit to remain
thereon without molestation. In the
event of emergency, if Tenant shall not be personally present to open and
permit entry into the Premises and entry shall be necessary to deal with such
emergency, Landlord or Landlord’s agent may enter without in any manner
affecting the obligations and covenants of this Lease. Landlord or its agent may enter the Premises
to make inspections, repairs, alterations or additions in or to the
Premises. Landlord retains an easement
over and access to the unimproved portions of the Premises to install, use and
maintain pipes, lines and conduits in and through the Premises provided
Tenant’s use and occupancy is not unreasonably disturbed. Notwithstanding the foregoing, Landlord may
access the joint use entryway at any time and without notice to Tenant for
further access to the 2nd floor.
Section 18.01 Holding Over.
(a) In the event Tenant remains in possession of
the Premises after the expiration of the Lease Term, and without the execution
of a new Lease or Lease modification and renewal, Tenant, at the option of
Landlord, shall be deemed to be occupying the Premises as a tenant at
sufferance at a monthly rental rate equal to two (2) times the Base Rent
payable during the last month of the Lease Term (the “Holdover Rent.”) In addition to the Holdover Rent, Tenant
agrees to pay monthly all installments of Additional Rent as provided for in
this Lease. Such tenancy shall be
subject to all the other conditions, provisions and obligations of this Lease.
(b) Tenant and any present or future Guarantor
acknowledge that if Tenant or any other tenant shall fail to surrender the
Premises upon termination of the Lease Term (including but not limited to any
tenancy by sufferance described in Section 18.01(a). and any early
termination of either this Lease or of Tenant’s right to possession of the
Premises in the event of an Event of Default as described in Article XVI
or in the event of the termination of the underlying lease), then Tenant and
Guarantor(s), jointly and severally, shall be liable for all damages, actual
and consequential, arising from, growing out of or related to any such failure
to surrender the Premises, as well as for all other remedies in
Article XVI and elsewhere in this Lease.
Section 18.02 Successors.
All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors, and permitted
assigns of said parties; and if there shall be more than one Tenant, they shall
be bound jointly and severally by the terms, covenants and agreements
herein. In the event Landlord conveys
its interest in the Building and the purchaser assumes Landlords’ obligations
and covenants, Landlord shall thereupon be relieved of all further obligations
hereunder without alteration to the Lease terms. The terms Landlord and Tenant in this Lease
include any successors to or assigns of the original Landlord and Tenant.
Section 19.01 Landlord’s Covenant.
Landlord hereby represents and warrants to the
Tenant that it is the owner of fee simple title to the Premises and that it has
the right and authority to enter into this lease without the joinder or
approval of any person or entity.
Landlord covenants and agrees that so long as the Tenant pays all Rent
due hereunder and performs and observes all the covenants and provisions
hereof, Tenant shall peaceably and quietly enjoy the full possession and use of
the Premises, without any hindrance or molestation from the Landlord or any
other party claiming by or through the Landlord. Landlord further represents and warrants to
Tenant that as of the date of Tenant’s occupancy of the Premises under this
Lease, there shall exist unobstructed and adequate means of ingress and egress
to the Premises from an abutting public right-of-way and that the Premises are
as of the date hereof, free from all encumbrances, liens, defects in title,
tenancies, restrictions, easements or agreements which would prohibit or
restrict the use of all or a material part of the Premises for the use
contemplated herein. The Landlord
further warrants to Tenant that Landlord has no knowledge of any planned or
commenced improvements which have resulted or which may result in a special
assessment or otherwise adversely or materially affect the Premises.
Section 20.01 Entire Agreement.
This Lease with all its Exhibits and Addendum,
constitutes all agreements, conditions and understandings between Landlord and
Tenant concerning the Premises and the Building. All representations, either oral or written,
shall be deemed to be merged into this Lease Agreement. Except as herein otherwise provided, no
subsequent alteration, waiver, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by them.
Section 20.02 Relation of Parties.
Nothing in this Lease shall be construed as creating
a partnership or joint venture between Landlord and Tenant or any other party,
or to cause Landlord or Tenant to be responsible in any way for the debts or
obligations of Tenant or Landlord, respectively, or of any other party.
Section 20.03 Successors and Assigns.
The terms and conditions of this Lease shall bind
the parties and their respective successors and assigns, and shall inure to the
benefit of the parties and their respective permitted successors and
assigns. No rights, however, shall inure
to the benefit of Tenant unless the assignment to such assignee has been
approved by Landlord in writing as provided in Article XII hereof, if such
approval is required thereunder. Nothing
contained in this Lease shall in any manner restrict Landlord’s right to assign
or encumber this Lease and in the event Landlord sells or transfers its
interest in the Premises and the purchaser or transferee assumes Landlord’s
obligations under this Lease, Landlord shall thereupon be relieved from all
further obligations under this Lease.
Section 20.04 Notices.
(a) Any notices by Tenant to Landlord shall be
served by certified mail, return receipt requested, or by nationally recognized
overnight delivery service, addressed to Landlord at the address specified in
Section 1.01 (a), and/or at such other addresses as Landlord may designate
by written notice.
(b) Any notice by Landlord to Tenant shall be
served by certified mail, return receipt requested, or by nationally recognized
overnight delivery service, addressed to Tenant at the Premises or at such
address specified in Section 1.01 (b) or by delivery by Landlord to
the Premises or to such other address.
(c) All notices given under this Lease shall be
in writing, and shall be effective and deemed to have been given only upon
receipt by the party to which notice is being given, said receipt being deemed
to have occurred upon hand delivery (or by posting if to Tenant’s Premises), or
upon such date as the postal authorities or overnight delivery service shall
show the notice to have been delivered or refused, or undeliverable at the last
address given by due notice to the party giving notice, as evidenced by the
Section 20.05 Recording.
Tenant shall not record this Lease, or any
memorandum or short form thereof, without the written consent and joinder of
Landlord. However, this Lease may be
recorded by Landlord at Landlord’s option.
If this Lease is recorded by the Tenant without written consent of the
Landlord, then this Lease may, at any time, without notice and whenever the
Landlord so elects, be declared null and void.
Section 20.06 Waiver of Jury Trial;
LANDLORD AND TENANT, AND ANY GUARANTOR OF THIS
LEASE, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THEM AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, AND
TENANT’S USE OR OCCUPANCY OF THE PREMISES.
Tenant, and any Guarantor, further agrees that it shall not interpose
any counterclaim or counterclaims, except compulsory counterclaims, in a
summary proceeds or in any action based upon nonpayment of rent or any other
payment required of Tenant, or any Guarantor, hereunder. Upon Landlord’s, Tenant’s, or any Guarantor’s
request, Landlord, Tenant, and/or any Guarantor, shall participate in mediation
of a dispute between Landlord and Tenant, or any Guarantor. The cost of a mediator shall be borne equally
by Landlord and Tenant, and/or Guarantor.
Section 20.07 Time of Essence.
Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
Section 20.08 Rights Cumulative.
Any and all rights, remedies and options given in
this lease to Landlord and/or Tenant shall be cumulative and in addition to and
without waiver of any right or remedy given under any law (common law, case
law, statute, ordinance, regulation or other act of a Legal Authority) now or
hereafter in effect. Landlord and/or
Tenant shall have, to the fullest extent permitted by law, the right to enforce
any rights or remedies separately and to pursue any lawful action or
proceedings to exercise or enforce any right or remedy without thereby waiving
or being barred or estopped from exercising and enforcing any other rights and
remedies by appropriate action or proceedings.
Section 20.09 Authority.
Each party represents to the other that it has full
legal right, power, and authority to enter into, execute and perform this
Lease, and the parties executing this Lease have the full power and authority
to do so.
Section 20.10 Intentionally Omitted.
Section 20.11 Governing Law; Venue.
This Lease shall be construed in accordance with the
laws of the State of Florida. The venue
of any litigation arising out of this Lease shall be Manatee County, Florida.
Section 20.12 Terms and Headings.
The terms Landlord and Tenant as herein contained
shall include singular and/or plural, masculine, feminine and/or neuter, heirs,
successors, executors, administrators, personal representatives and/or assigns
wherever the context so requires or admits.
The terms, provisions, covenants and conditions of this Lease are expressed
in the total language of this Lease Agreement and the section headings are
solely for the convenience of the reader and are not intended to be all
inclusive. Any exhibit or attachment or
formally executed addendum or modification of this Lease shall be expressly
deemed incorporated by reference herein unless a contrary intention is clearly
Section 20.13 Force Majeure.
Landlord and/or Tenant shall not be required to
perform any term, condition, or covenant in this Lease so long as such
performance is delayed or prevented by force
majeure, which shall mean acts of God, labor disputes (whether
lawful or not), material or labor shortages, restrictions or delays by any
governmental authority, civil riots, floods, adverse weather conditions not
reasonably anticipatable, unavoidable casualties and any other cause not
reasonably within the control of Landlord and/or Tenant and which by the
exercise of due diligence Landlord and/or Tenant is unable, wholly or in part,
to prevent or overcome. Lack of money
shall not be deemed force majeure. Any party claiming a force majeure delay hereunder shall
provide written notice to the opposing party within seven (7) days after
commencement of said delay specifying the cause and extent of delay.
Section 20.14 No Waiver.
No waiver by either party of any breach by the other
party of any term or condition of this Lease, and no failure by either party to
exercise any right or remedy in respect of any such breach, shall constitute a
waiver or relinquishment for the future, or bar any right or remedy of such
party in respect of, any other breach of such term or condition or any breach
of any other term or condition of this Lease.
No payment by Tenant or receipt of payment by Landlord of an amount less
than the full amount then due Landlord under this Lease shall be construed as
anything other than a partial payment of such sum then due and owing. No endorsement or statement on any check or
letter or any form of payment of accompanying document shall be deemed to be an
accord or satisfaction or other form of settlement; Landlord may accept any
such payment without prejudice to its rights to recover the balance of sums due
and owing under this Lease or to pursue any other remedy permitted under this
Section 20.15 Survival.
All obligations of Tenant which are or may be
intended by their nature to be performed and/or complied with after the
expiration or earlier termination of this Lease shall survive such expiration
or termination. Express provisions in
this Lease which require or permit survival in specific instances, or as to
specific obligations, shall not be deemed a limitation upon the generality of
this survival clause.
Section 20.16 Provisions Severable.
Every provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law. If any provision of this Lease, or the
application of such provision to any person or circumstance, shall be
determined by appropriate judicial authority to be illegal, invalid, or
unenforceable to any extent, such provision shall, only to such extent, be
deemed stricken from this Lease as if never included. The remainder of this Lease, and the
application of such provision to persons or circumstances other than those as
to which such provision is held illegal, invalid, or unenforceable, shall not
Section 20. 17 Mortgagee Protection.
Tenant agrees to give any mortgagees, by registered
mail, a copy of any Notice of Default served upon the Landlord, provided that
prior to such Notice, Tenant has been notified, in writing (by way of Notice of
Assignment of Rents and Leases, or otherwise), of the addresses of such
mortgagees. Tenant further agrees that
if Landlord shall have failed to cure such default within the time provided for
in this Lease, then the mortgagees shall have thirty (30) days from receipt of
notice from Tenant within which to cure such default, or if such default cannot
be cured within that time, then such additional time as may be necessary if
within such thirty (30) days any mortgagee has commenced and is diligently
pursuing the remedies necessary to cure such default (including, but not
limited to, commencement of foreclosure proceedings, if necessary to effect
such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
Section 20.18 Joint Obligation.
If there is more than one Tenant, the obligations
hereunder imposed upon Tenant shall be joint and several. The individuals executing this Lease in their
representative capacities shall have no personal liability hereunder.
LANDLORD AND TENANT have executed this Lease, or have caused it
to be executed, as of the day and year designated on page one.
Signed, sealed and delivered
Gulfcoast Property No. 1, LLC, a
In the presence of:
Florida limited liability company,
(As to Landlord)
Peek Traffic Corp., a Delaware corporation
(As to Tenant)
IN CONSIDERATION OF, and as an inducement for the
granting, execution and delivery of the foregoing Lease dated
September 22nd, 2005 (hereinafter called the “Lease”), by GULFCOAST
PROPERTY NO. 1, LLC, a Florida Limited Liability Company, the Landlord therein
named (hereinafter called the “Landlord”) to, PEEK TRAFFIC CORP., a Delaware
corporation, the Tenant therein named (hereinafter called the “Tenant”), and in
further consideration of the sum of Ten Dollars ($10.00) and other good and
valuable considerations paid by the Landlord to the undersigned, the receipt
and sufficiency of which is hereby acknowledged, the undersigned QUIXOTE
CORPORATION, a Delaware Corporation, (hereinafter called the “Guarantor”),
hereby guarantees to the Landlord the full and prompt payment of rent,
including, but not limited to, the fixed minimum rent, percentage rent, common
area charges, additional rent, and any and all other sums and charges payable
by the Tenant under said Lease and any extension or renewal thereof, and hereby
guarantees the full and timely performance and observance of all the covenants,
terms, conditions and agreements therein provided to be performed and observed
by the Tenant; and the Guarantor hereby covenants and agrees to and with the
Landlord that, if default shall at any time be made by the Tenant in the
payment of any such fixed minimum rent, percentage rent, common area charge,
additional rent, or any other such sums and charges payable by the Tenant under
said Lease, or if Tenant should default in the performance and observance of
any of the terms, covenants, provisions or conditions contained in said Lease,
the Guarantor shall and will forthwith pay such rent and other such sums and
charges to the Landlord and any arrears thereof, and shall and will forthwith
faithfully perform and fulfill all of such terms, covenants, conditions and
provisions, and will forthwith pay to the Landlord all damages that may arise
in consequence of any default by the Tenant under said Lease, including,
without limitation, all reasonable attorneys’ fees and disbursements incurred
by the Landlord or caused by any such default and/or by the enforcement of this
This Guaranty is an absolute and unconditional Guaranty
of payment and of performance. It shall be enforceable against the Guarantor
without the necessity for any suit or proceedings on the Landlord’s part of any
kind or nature whatsoever against the Tenant and without the necessity of any
notice of non-payment, non-performance or non-observance or of any notice of
acceptance of this Guaranty or of any other notice or demand to which the
Guarantor hereby expressly waives; and, the Guarantor hereby expressly agrees
that the validity of this Guaranty and the obligations of the Guarantor
hereunder shall in no wise be terminated, affected, diminished or impaired by
reason of the assertion, or the failure to assert, by the Landlord against the
Tenant any of the rights or remedies reserved to the Landlord pursuant to the
provisions of the said Lease.
This Guaranty shall be a continuing Guaranty, and
the liability of the Guarantor hereunder shall in no way be affected, modified
or diminished by reason of any assignment, renewal, modification or extension
of the Lease or by reason of any modification or waiver of or change in any of
the terms, covenants, conditions or provisions of said Lease, or by reason of
any extension of time that may be granted by the Landlord to the Tenant or by
reason of any dealings or transactions or matter or thing occurring between the
Landlord and the Tenant whether or not notice thereof is given to the
All of the Landlord’s rights and remedies under the
said Lease or under this Guaranty are intended to be distinct, separate and
cumulative and no such right and remedy therein or herein mentioned is intended
to be in exclusion of, or a waiver of, any of the others.
Guarantor warrants and represents that the
undersigned has a direct financial interest in the making of said Lease.
This Guaranty, and all the terms, covenants,
conditions, agreements, and provisions hereof, shall be binding upon, and shall
inure to the benefit of the respective heirs, executors, personal
representatives, successors, and assigns of the Landlord, Tenant and Guarantor.
Words of any gender used in the Lease shall be construed to include any other
gender; words in the singular number shall be construed to include the plural;
words in the plural number shall be construed to include the singular; and Tenant
and Landlord shall be construed to mean Lessee and Lessor, when the context or
sense of this Guaranty requires. Whenever the words Landlord, Tenant, or
Guarantor are used herein, they shall be construed to mean, and
terms, covenants, conditions, agreements, and provisions shall be binding upon,
not only the named Landlord, Tenant, and Guarantor, but also the respective
heirs, executors, personal representatives, successors, and assigns of the Landlord,
Tenant and Guarantor.
IN WITNESS WHEREOF, the Guarantor has executed this
Agreement on the day and year first above written.
IN THE PRESENCE OF:
/s/Xxxx X. Xxxxx
Vice President & General Counsel
The foregoing instrument was acknowledged before me
this 19th day of September, 2005, by Xxxx X. Xxxxx, as Vice President and
General Counsel of QUIXOTE CORPORATION, who is personally known to me.
/s/Xxxxxxxxx X. Xxxxxxx
Notary Public, State of Florida
XXXXXXXXX X. XXXXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 01-05-09
Estimated Monthly Payments
TOTAL Rent Per Month
Note: Insurance and Assoc. Fees based
on May 2005 actuals.