Exhibit 10.48
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease Agreement") is made and entered this _____ day
of June, 2006, as of 1st day of October, 2006, by and between XXXXXX
INVESTMENTS, INC., a Florida corporation, as "Lessor", and DNAPrint Genomics,
Inc. a Florida corporation, as "Lessee".
W I T N E S S E T H:
In consideration of the covenants herein contained, it is agreed as
follows:
1. Leased Premises. Lessor hereby leases, lets and demises unto
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Lessee and Lessee hereby rents of and from Lessor, the Leased Premises described
in Exhibit "A" attached hereto and incorporated herein by reference.
2. Term. The initial leasehold term of Lessee shall commence as of
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12:01 a.m. October 1, 2006 ("Commencement Date"), and shall extend for five (5)
years until 11:59 p.m. on September 30, 2011 unless sooner terminated or
cancelled pursuant to a provision hereinafter contained. Provided Lessee is not
in default under the terms of this Lease, the Lessee shall have the right to
renew for one (1) additional five (5) year term ("Renewal Term"). In the event
Lessee does not desire to exercise its option to renew, it shall so notify
Lessor on or before a date sixty (60) days prior to the date of termination of
the lease term.
3. Amount of Rent/Common Area Maintenance.
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a. Lessee covenants to pay the Lessor as annual rent for the Leased Premises
the sum of Seventy-two thousand Dollars ($72,000.00) ("Rent") per annum,
plus sales tax, adjusted annually to reflect any increase in Rent. RENT FOR THE
FIRST MONTH IS PAYABLE WITH THE LAST MONTH PREPAID RENT PLUS APPLICABLE SALES
TAX, COMMON AREA MAINTENANCE ("C.A.M.") CHARGES, SEWER AND WATER CHARGES, AND
THE MONTHLY COST FOR HVAC MAINTENANCE CONTRACTS COVERING ALL THREE (3) HVAC
SYSTEMS due UPON OCCUPANCY. Thereafter each monthly installment of Rent shall
be in the amount of Six Thousand Dollars ($6000.00), plus sales tax, monthly
C.A.M. CHARGES, SEWER AND WATER CHARGES, AND THE MONTHLY COST FOR HVAC
MAINTENANCE CONTRACTS COVERING ALL THREE (3) HVAC SYSTEMS and shall be payable
in advance, before close of business day, on the first (1st) day of each
calendar month, or before close of business on the first business day following
if on a Saturday, Sunday, or legal holiday, of the term to Lessor at Lessor's
address at 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000, or at such
other place Lessor may from time to time designate in writing. Any use or sales
tax on said rental imposed by the State of Florida and any federal or local
government shall be paid at the same time and in the same manner as each payment
of Rent. All rentals and other sums under the terms of this lease to be paid by
Lessee to Lessor shall be paid in lawful money of the United States of America.
SHOULD ANY RENT PAYMENT NOT BE RECEIVED BY THE 5TH DAY OF THE MONTH, A FIVE
PERCENT (5%) LATE CHARGE SHALL BE DUE AND OWING FROM LESSEE AS CALCULATED ON THE
MONTHLY RENT AMOUNT IN ARREARS, IN ADDITION TO INTEREST RATE OF THE MAXIMUM RATE
PERMITTED BY LAW.
b. Beginning on the first day of the second year of the lease term, and on
the first day of each anniversary of the Commencement Date of this lease
thereafter, the annual rent shall be increased based on the percentage increase
of the Consumer Price Index of the United States Bureau of Labor Statistics all
urban consumers (all items 1982-84=100). The base level of such index being
used beingthe September 2006 base level. If the Consumer Price Index Number at
the end of any lease year of this lease shall exceed the above stated base
level, the higher number divided by the base level shall constitute the
"percentage of increase". The initial monthly Rent shall be multiplied by the
"percentage of increase", if any, and the resulting amount shall be the monthly
rent payable for each month during the succeeding lease year commencing with the
October 1 lease payment. In no event, however, shall the monthly rental be
reduced for any ensuing twelve months in the event the "percent-age of increase"
shall be a minus number.
The Lessee shall continue to pay rent at the then existing monthly rental until
Lessor provides notice to Lessee of the new monthly rental payment amount.
Lessor shall notify Lessee of the increased Rent, if any, within thirty (30)
days of the first day of each anniversary of the Commencement Date of this lease
thereafter, including any renewal term. Lessee shall pay to Lessor within
fifteen (15) days of first notification of an increase in rental the sum
necessary to bring Lessee current as if Lessee had been paying the new monthly
rental from the first day of the lease year and shall pay the new monthly rental
payment thereafter on the date the monthly rental payment is due.
If the computation or the publication of said Consumer Price Index shall be
changed to another basis or transferred to another governmental agency or shall
be discontinued, Lessor shall notify Lessee of an alternate index or method of
computing such increased rent which shall reasonably conform to the method
intended by the parties herein.
x. Xxxxxx shall provide at least (90) days notice to Lessee of its rent
increase amount for the Renewal Term. The maximum increase for the renewal term
shall be 7.5% over the then current Rent. If the Lessee renews this Lease,
such adjusted Rent, inclusive of such increase, shall constitute the Rent for
the renewal term, and such adjusted Rent shall be paid in twelve (12) equal
monthly installments, with appropriate sales tax. The increase in the annual
rent during each year of the renewal term thereafter shall be calculated and
increased in accordance with paragraph 3 b. hereof, provided, however, that the
initial base Rent for purposes of such calculation shall be the initial Rent
from the Renewal term and the CPI increase shall be based on the September 2011
base level .
d. A monthly C.A.M Fee of $150.00 and a monthly charge for Sewer and Water
of $30.00 for up to six employees, plus an additional $30.00 per month for each
additional six employees or portion thereof, will be due to Lessor on the first
of the month with the rent. Weekly trash collection must be contracted with
MCPUD-Manatee County Public Utilities at a minimum of one-can service. Proof of
trash collection service must be provided to Lessor on demand. Lessee
shall also pay the monthly cost for HVAC maintenance contracts covering all
three (3) HVAC systems, which contracts are currently held by Lessor. The
C.A.M., Sewer and Water and HVAC maintenance contract fees may be adjusted
quarterly by Lessor during the term of the lease or any extension thereof, with
30 days notice to Lessee, in order to reimburse Lessor for his reasonable actual
costs for such items. Lessor shall submit back up documentation supporting any
increase in the C.A.M. charges. At Lessee's option, Lessee shall be permitted to
obtain a substitute HVAC maintenance contract of similar quality and service
to the existing contract. Lessor represents and warrants that all three (3) HVAC
systems are in good, operable condition.
4. Quiet Enjoyment. Lessor covenants that so long as Lessee pays
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the Rent reserved in this Lease and performs its agreements hereunder, Lessee
shall have the right to quietly enjoy and use the Leased Premises for the term
hereof, subject only to the provisions of this Lease.
5. Improvements. Lessee shall not make any improvements or
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alterations to the Leased Premises without the prior written consent of Lessor.
Any improvement to the Leased Premises shall become the property of the Lessor
upon the normal expiration of this Lease or upon its earlier termination
according to the provisions hereof, or applicable law. Lessee shall be entitled
to remove normal trade fixtures at the termination of the Lease Agreement
provided repairs from damage due to removal are completed to return unit to as
rented condition. Lessor acknowledges Lessee's requirement to build-out the
Leased Premises to accommodate Lessee's business. Lessee agrees that any build
out of the Warehouse Area and/or other modification of the Leased Premises is
subject to Lessor's review of all plans and prior written approval, which
Lessor,shall not unreasonably withhold. . Additionally, any such build out or
modification is subject to restrictions and requirements as specified in the
Lease. All work must be properly permitted, conform to ALL MANATEE COUNTY
ZONING AND BUILDING CODES, ALL APPLICABLE STATE OF FLORIDA REQUIREMENTS, AND
ALL APPLICABLE FEDERAL REQUIREMENTS RELATED TO LESSEE'S BUSINESS. All work is
to be done by licensed and insured contractors. Final plans upon completion of
build out and other modifications must be provided to Lessor, showing all
modifications to original plans. If Lessor and Lessee cannot agree on plans and
specifications, Lessee and Lessor shall resolve any dispute through mediation in
Sarasota County
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6. Responsibility for Cost of Improvements; Liens. It is expressly
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understood and agreed that the Lessor assumes no financial or other liability
for the payment of any labor, materials, contractual or professional or other
services, or any other item in connection with any improvements to or on the
Leased Premises and all persons dealing with the Lessee shall be so notified by
Lessee. Lessee agrees that it will make full and prompt payment of all sums
necessary to pay for the cost of repairs, alterations, improvements, changes or
other work done by Lessee to the Leased Premises and further agrees to indemnify
and hold harmless Lessor from and against any and all such costs and liabilities
incurred by Lessee, and against any and all mechanic's, materialman's or
laborer's liens arising out of or from such work or the cost thereof which may
be asserted claimed or charged against the Leased Premises. Notwithstanding
anything to the contrary in this Lease, the interest of Lessor in the Leased
Premises shall not be subject to liens for improvements made by or for Lessee,
whether or not the same shall be made or done in accordance with an agreement
between Lessor and Lessee, and it is specifically understood and agreed that in
no event shall Lessor or the interest of Lessor in the Leased Premises be liable
for or subjected to any mechanic's, materialman's or laborer's liens for
improvements or work made by or for Lessee; and this Lease Agreement
specifically prohibits the subjecting of Lessor's interest in the Leased
Premises to any mechanic's, materialman's, or laborer's liens for improvements
made by Lessee or which Lessee is responsible for payment under the terms of
this Lease Agreement. All persons dealing with Lessee are hereunder placed on
notice of this provision. In the event any notice or claim of lien shall be
asserted of record against the interest of Lessor in the Leased Premises on
account of or growing out of any improvement or work done by or for Lessee, or
any person claiming by, through or under Lessee, or for improvements or work the
cost of which is the responsibility of Lessee, Lessee agrees to have such notice
or claim of lien canceled and discharged of record as a claim against the
interest of Lessor in the Leased Premises (either by payment and satisfaction or
by removal by transfer to bond or deposit as permitted by law) within thirty
(30) days after notice to Lessee by Lessor, and in the event Lessee shall fail
to do so Lessee shall be considered in default under this Lease Agreement.
7. Lessor and Lessee's Insurance.
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a. The Lessee shall at all times keep in full force and effect Lessee's
public liability insurance for the benefit of the Lessee and the Lessor, SHOWING
THE LESSOR AS AN ADDITIONAL INSURED with minimum limits of $100,000 for bodily
injury or death of each person, $300,000 for each accident and $50,000 for
property damage.
b. Evidence satisfactory to the Lessor that the insurance coverage
required hereunder is in effect shall be furnished by Lessee to the Lessor upon
execution of this Lease Agreement. The insurance policy shall be paid for by
the Lessee and proof of such payment filed with the Lessor. Each insurance
policy shall contain provisions to the effect that they are non-cancelable
except upon thirty (30) days prior written notice to the Lessor. The Lessee
agrees to renew said policy from time to time and furnish evidence of such
renewal or equivalent new insurance and proof of payment thereof to the Lessor
not less than fifteen (15) days prior to the expiration of any of said policies.
c. In the event of an insured loss to the Leased Premises, it is agreed
by the parties that the proceeds of any insurance will be promptly applied to
the repair or reconstruction of the affected structure or structures.
Destruction in whole or in part of any portion of the Leased Premises will
result in the Lessee receiving a pro-rata rent abatement for the portion of the
Leased Premises rendered unusable as a result of the loss. If the destruction
exceeds 50%, Lessee has the option of cancelling this Lease Agreement without
penalty.
x. Xxxxxx currently has Business Liability and Building Replacement
insurance coverage on the Leased Premises. Lessee will be responsible for any
increase in cost of Lessor's insurance should the nature of the Lessee's
business not conform to existing policy provisions. Lessor expressly
acknowledges that Lessee's existing business complies with the existing policy
provisions, but Lessor does not warrant that the nature of Lessee's business
will not affect the premiums of renewal or future policies.
8. Maintenance and Use of Leased Premises; Repairs. During the term of
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this Lease, Lessee shall bear the cost and expense for its trash collection. The
lawn and shrubbery maintenance costs are included in the CAM charges paid by the
Lessee and are calculated in proportion to the percentage of the square footage
that the Leased Premises represents in proportion to the total square footage of
BREL Park. Lessee shall pay for all utility services used on the Leased
Premises, including electricity and telephone. Water and Sewer charges shall
be paid as reflected in Section 3(d). Lessor may require separate meters for
electricity and water to be installed on the Leased Premises, in which case
Lessee shall be required to pay for costs of installing such separate meters.
In the event separate meters are installed for the water, Lessee shall be liable
only for the water charges actually incurred by Lessee. The Lessee agrees that
at all times the Lessee shall keep the Leased Premises and all improvements
thereon in a neat, clean, attractive and sanitary condition. Lessee shall keep
and maintain all fixtures, plumbing, electrical, wiring, air conditioning
equipment, doors, windows and all equipment and appurtenances affixed to or
located within the Leased Premises in good and substantial repair, and shall
make repairs promptly when needed to maintain the Leased Premises in the same
condition and state of repair as existed at the commencement of this Lease;
provided, however, that Lessor agrees to be responsible for major repairs of
operating systems and for roof and structural repairs to the Leased Premises.
The determination of whether a repair is a minor repair or a major repair shall
be made by the Lessor in its reasonable discretion. For example, maintenance
of the air conditioning system shall be the responsibility of the Lessee, but
replacement of the A/C Compressor shall be the responsibility of the Lessor.
Lessee shall maintain the Leased Premisesin accordance with all applicable
federal, state and local governmental laws, ordinances and requirements. Lessee
shall promptly notify Lessor in the event of any material violation of any such
law, ordinance, code or other law.
Lessee shall use the Leased Premises only to perform its business,
including scientific research and development and consumer, forensic and
genotyping, and for no other purpose. Lessee shall not provide medical services
or have any patient contact at the Leased Premises. The maximum number of
employees in the Leased Premises at any time shall not exceed (22) twenty-two
persons. There shall be no smoking in the Leased Premises or within the entry
ways to the Leased Premises or BREL Park. Lessee shall also be permitted to
reasonable personal use of the bathrooms. Lessee shall comply with all laws,
ordinances, rules and regulations of applicable governmental authority
respecting the use, operation and activities of the Leased Premises. Lessee
shall not make any unlawful, improper or offensive use of the Leased Premises,
or such other areas, or any part thereof, or cause any nuisance thereon. Lessee
shall not make any use of the Leased Premises which would make void or voidable
any policy of fire or extended coverage insurance, or cause an increase in the
cost thereof, covering the Leased Premises or BREL Park. Lessee shall keep the
hallway adjacent to the Leased Premises, if any, clean and free from rubbish.
Lessee shall use the Leased Premises only for the purposes stated in this Lease
Agreement and shall not leave said Leased Premises vacant or suffer or permit
any waste or mistreatment thereof. If said Leased Premises are serviced by a
rear hallway, the same shall be used solely as a means of ingress and egress for
bringing in supplies and equipment and for removal of trash and shall at no time
be used for the storage of supplies and equipment or trash and the portion
thereof adjacent to the Leased Premises shall be kept clean and free from
rubbish. Lessee shall not at any time use the Leased Premises in any manner
that interferes with Lessor's or other lessees' use of BREL Park.
It shall be Lessee's sole responsibility to place all garbage and trash
from the Leased Premises in trash bins identified from time to time by Lessor as
appropriate receptacles therefor, and no garbage or trash shall be allowed to
collect upon or about the Leased Premises.
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9. Assignment and Leases. This Lease Agreement may be assigned or
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pledged only upon the written consent of the Lessor, which consent may not be
unreasonably withheld No assignment or Lease shall operate to limit the
continuing primary obligation of the Lessee under covenants, terms and
conditions hereof provided that if this entire Lease is assigned with the
consent of Lessor then the assignee shall assume all obligations hereunder and
Lessee shall be wholly released from any of such obligations. This paragraph
shall not be deemed to provide for the placement of any mortgage against the
Leased Premises nor shall this paragraph authorize any subordination of this
Lease Agreement to any financing lien.
10. Payment of Taxes/Assessments. Lessor shall pay all ad valorem
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real property taxes lawfully levied upon or against the Leased Premises.
11. Eminent Domain. Nothing herein shall be construed to affect the
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right of the Lessor to exercise its rights in connection with a taking under the
powers of eminent domain with respect to the leasehold and any other interest of
the Lessee, or other persons claiming by, through or under the Lessee, according
to the statutes and laws applicable to such proceedings.
12. Lessor's Right of Access. The Lessor, its officers, agents, or
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employees, shall be afforded access to all parts of the Leased Premises and
improvements thereon, at reasonable times and from time to time, without undue
disruption to Lessee's business, for the purpose of satisfying itself that all
terms and covenants of this Lease Agreement are being complied with by Lessee.
LESSOR SHALL HAVE ACCESS TO THE LEASED PREMISES AT ANY TIME IN THE EVENT OF AN
EMERGENCY.
13. Lessor's Option to Pay Charges. The Lessor shall have the
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option, but shall have no liability or obligation, to pay any insurance premium,
tax, lien or other charge herein provided to be paid by the Lessee, and to
charge the same against the Lessee as additional Rent, which shall be due
immediately on demand, and which shall bear interest at the maximum legal rate
until paid.
14. Lessor's Remedies. Any remedies of the Lessor expressed herein
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shall in every instance be deemed supplemental and cumulative to, and not in
lieu of, any statutory or other legal or equitable remedies the Lessor may have.
Any waiver of strict performance by the Lessor on any one or more occasions
shall not constitute a waiver of its right to insist on strict performance on
any other or subsequent occasion.
15 .Signs. Lessor will permit signage by Lessee in the same size and
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same place where BREL International's signs are currently located on the marquis
in front of the property. In addition, the "stylized" sign at ground level in
the front of the property may be modified by Lessee provided that Lessee gives
Lessor written notice prior to Lessor's occupancy of the Leased Premises of its
intention to do so, and copies of its plans are provided for final review and
approval by Lessor Lessee shall not place or suffer to be placed or maintained
upon any exterior door, roof, wall or window of the Leased Premises any other
sign, awning, canopy or advertising matter or other thing of any kind, and will
not place or maintain any decoration, lettering or advertising matter on the
door of the Leased Premises and will not place or maintain any freestanding
standard within or upon the Leased Premises or BREL Park without first obtaining
the Lessor's express prior written consent which consent may not be unreasonably
withheld.
16. Parking and Common Areas. Subject to the provisions herein, Lessee
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shall be assigned five (5) parking spots in front, two (2) visitor parking spots
and three (3) parking spots on the east side, and approximately three (3) to
four (4) parking spots adjacent to the rear wall of unit (west side) for the
exclusive use of Lessee. Additional parking spots are available along west
fence and retention pond by rear building but this is open parking and available
to all BREL Park occupants. Lessee will notify the Lessor if it needs
additional spaces and at that time it will be provide up to four (4) additional
assigned spaces, if available.
Except as provided in preceding paragraph, Lessee shall have the right to
nonexclusive use, in common with Lessor, other Lessees, and the guests,
employees, and invitees of same, of the following areas: (a) automobile parking
areas and driveways, and (b) other facilities as may be designated from time to
time by Lessor, subject to the terms and conditions of this Lease Agreement and
to reasonable rules and regulations for the use thereof as prescribed from time
to time by Lessor. The parking area shall be maintained in good condition by
Lessor; provided that, Lessor shall have the right at any time and from time to
time to change or modify the design and layout of the parking area(s).,
The common areas shall be subject to the exclusive control and management
of Lessor and Lessor shall have the right to establish, modify, change and
enforce from time to time rules and regulations with respect to the common
areas; and Lessee agrees to abide by and conform to such rules and regulations.
Lessee further agrees that it and its representatives and employees will park
their automobiles only in such areas as Lessor may from time to time designate
for such parking. Lessor has the absolute right to designate, reserve, or
assign parking spaces. Lessee agrees that it will, within five (5) days after
written request therefor by Lessor, furnish to Lessor the State automobile
license numbers assigned to its cars and cars of all of its employees. Lessee
shall not permit delivery of merchandise at any place other than as designated
by Lessor.
Neither the parking area nor any other common area shall be used by Lessee,
or any agent or employee of Lessee, for any advertising, political campaigning
or other similar use, including without limitation, the dissemination of
advertising or campaign leaflets or flyers.
17. Casualty. In the event the Leased Premises are rendered
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untenantable by fire or other casualty, Lessor or Lessee shall have the option
of terminating this Lease Agreement. In such event, written notice of the
election by Lessor or Lessee shall be given to the other party within thirty
(30) days after the occurrence of such casualty. In the event Lessor elects to
rebuild the Leased Premises (and the Lessee elects not to terminate the Lease),
the Leased Premises shall be restored to its former condition within ninety (90)
days of the casualty, during which time payment of Rent or other sum due
hereunder from Lessee to Lessor shall xxxxx pro-rata based on the portion of the
Leased Premise, if any, which Lessee can utilize during such restoration and
construction. In the event either party elects to terminate this Lease
Agreement, the Rent shall be paid to and adjusted as of the date of such
casualty, and the term of this Lease Agreement shall then expire and this Lease
Agreement shall be of no further force or effect and Lessor shall be entitled to
sole possession of the Leased Premises. If the Lessor elects to rebuild but
fails to do so within ninety (90) days, Lessee has the option of terminating
this Lease Agreement, or extending the Lessor's time to rebuild by an additional
ninety (90) days.
18. Lessee's Bankruptcy or Insolvency. In the event the Lessee at
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any time during the term of this Lease Agreement should suffer or permit an
involuntary or voluntary petition in bankruptcy to be filed by Lessee or against
it or make any assignment for the benefit of its creditors, or should a receiver
or trustee be appointed for the Lessee's property and such appointment be not
vacated within thirty (30) days thereafter, or such petition be not vacated
within a like time, or should the Lessee's leasehold interest be levied upon and
the lien thereof not discharged within thirty (30) days after said levy has been
made, then upon the happening of either of said events, the same shall be deemed
an event of default.
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19. Default. In the event Lessee shall (a) fail to make any rental
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or other payment due within five (5) days after same shall become due, (b) make
an assignment for the benefit of its creditors, (c) have its leasehold estate
taken upon execution against Lessee, (d) without the prior written consent of
the Lessor, abandon or vacate the Leased Premises during the term hereof, or (e)
breach or fail to perform any of the material agreements herein other than the
agreement to pay Rent and shall fail to cure such material agreements within
twenty (20) days after written notice from Lessor, such event shall constitute
an event of default. In the event Lessee is in default under this Lease, Lessor
shall have a lien on said furniture, equipment, and other personal property of
Lessee as security against loss or damage resulting from such default, and said
property may not be removed by Lessee until such default is cured.
Upon the occurrence of any one or more events of default specified herein,
including a default under paragraph 18 hereof, Lessee shall become a Lessee at
sufferance, and Lessor, at its option and at any time thereafter, may pursue,
exercise and enforce either remedy a. or b. below:
a. Enter upon and take possession of the Leased Premises in accordance
with Section 83.20, Section 83,21 and Section 51.011 Florida Statutes
(2006).After resuming possession of the Leased Premises, Lessor may:
(1) Relet, as Lessee's agent and without terminating this Lease
Agreement, the Leased Premises for such amounts and upon such terms and
conditions as Lessor may deem best under the circumstances for the purpose of
reducing Lessee's liability, whereupon Lessee shall be liable to Lessor at the
end of the lease term for the difference between the rentals and other charges
stipulated to be paid by Lessee and what Lessor is able to recover from a
reletting, after deducting any reasonable attorney's fees, commissions and other
expenses paid by Lessor with respect to such reletting; or
(2) Terminate this Lease Agreement, whether or not the Leased Premises
or any part thereof shall have been relet, by written notice to Lessee,
whereupon this Lease Agreement shall end; provided, however, that no such
termination of this Lease Agreement shall relieve Lessee of its liability and
obligations under this Lease Agreement incurred prior to such termination. All
amounts and arrearages due and payable to Lessor by Lessee shall bear interest
at the highest rate permitted by law.
b. Treat the Lease Agreement as remaining in existence, curing Lessee's
default by performing or paying the obligation which Lessee has breached. In
such event, all sums paid or expenses incurred by Lessor directly or indirectly
in curing Lessee's default, shall become immediately due and payable and shall
bear interest at the highest rate permitted by law per annum from the date of
disbursement by Lessor until paid by Lessee. If the breach consists of a
failure to pay the Rent stipulated in this Lease Agreement and Lessor elects to
treat the Lease Agreement as remaining in existence, Lessor can take such action
as is necessary to recover the Rent due as each installment matures or for the
whole amount at the end of the term, or Lessor can immediately upon the breach
take such action as is necessary to recover the entire remaining unpaid Rent for
the balance of the term hereof.
Furthermore, Lessor may exercise any and all rights and privileges and
pursue any additional remedies that Lessor may have under the laws of either the
State of Florida or the United States of America that are available in
conjunction with whichever of the above described remedies is chosen.
The remedies for which provision is made in Paragraph 19 shall not be
exclusive and in addition thereto Lessor may pursue such other remedies as are
provided by law in the event of any breach default or abandonment by Lessee. In
any event, and irrespective of any option exercised by Lessor, Lessee agrees to
pay and the Lessor shall be entitled to recover all costs and expenses incurred
by Lessor, including reasonable attorneys' fees, in connection with collection
of Rent or damages or enforcing other rights of Lessor in the event of a breach
of default or abandonment by Lessee, irrespective of whether or not Lessor
elects to terminate this Lease Agreement by reason of such a breach, default or
abandonment.
Any and all sums due under this Agreement from Lessee to Lessor and not
paid on the date due shall bear interest from the date due at the maximum rate
permitted by law until fully paid; and if any payment of Rent is not received by
the date due Lessee shall be charged a late charge of five percent (5%) of the
amount of unpaid Rent per month for each such delinquency.
20. Waiver or Estoppels. The failure of Lessor to insist, in any one
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or more instances, upon strict performance of any covenants or agreements of
this Lease Agreement, or exercise any option of Lessor herein contained, shall
not be construed as a waiver or relinquishment for the future of such covenant,
agreement or option, but the same shall continue and remain in full force and
effect. Receipt of Rent by Lessor, with knowledge of the breach of any covenant
or agreement hereof, shall not be deemed a waiver of such breach and no waiver
by Lessor of any provision hereof shall be deemed to have been made unless
expressed in writing and signed by Lessor.
21. Mortgage Subordination and Estoppels Certificates.
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a. All rights and interests of Lessee hereunder are and shall be and
remain subject, subordinate and inferior to all mortgages, heretofore or
hereafter given and encumbering the Leased Premises, or any part thereof and
shall likewise be subordinate and inferior to all renewals, modifications,
consolidations, replacements and extensions of any such mortgage, and the right
of the holder of any such mortgage shall at all times be and remain prior and
superior to all rights and interests of Lessee. This provision shall operate as
a subordination agreement with respect to all such mortgages and all renewals,
modifications, consolidations, replacements and extensions thereof. If the
holder of any such mortgage or any person, firm or corporation agreeing to make
a loan secured by a mortgage on the Leased Premises shall require confirmation
of any subordination for which provision is herein made or a separate
subordination agreement with respect to any mortgage transaction, Lessee shall
execute such confirmation or subordination agreement in the form required by
such mortgage holder or other person, firm or corporation agreeing to make a
loan secured by a mortgage on the Leased Premises, and the execution of the same
shall not diminish or affect the liability of Lessee hereunder or any other
party responsible for or guaranteeing the obligations of Lessee under this Lease
Agreement; provided however, so long as Lessee is not in default hereunder it
shall have the right of possession so long as it attorns to the Mortgagee or
successor thereof.
b. Lessee agrees to provide at any time, within twenty (20) days of
Lessor's written request, a certificate certifying that this Lease Agreement is
unmodified and in full force and effect, or in full force and effect as
modified, and stating the modifications. The certificate shall also state the
amount of monthly Rent, the dates to which the Rent has been paid in advance,
and the amount of any security deposit or prepaid Rent. It is intended that any
such certificate delivered pursuant to this paragraph may be relied upon by any
prospective purchaser or mortgagee of the Leased Premises or any portion
thereof.
22. Condemnation.
------------
a. Entire Taking. If the whole of the Leased Premises shall be
--------------
taken or condemned or purchased in lieu thereof by any competent authority for
any public or quasi-public use or purpose, then and in that event, the term of
this Lease Agreement shall cease and terminate from the time when the possession
shall be required for such use or purpose. The Rent shall in such case be
apportioned to the date of such taking or purchase, as the case may be.
b. Partial Taking. If any part of the Leased Premises shall be
---------------
taken or condemned or purchased in lieu thereof by any competent authority for
any public or quasi-public use or purpose, then and in that event the Lessor
shall so notify the Lessee in writing and the Lessee shall have the option to
cancel this Lease Agreement, giving the Lessor written notice within twenty (20)
days after receipt of such notice from the Lessor; provided the balance of the
Leased Premises remaining cannot be suitably used by the Lessee for its purposes
heretofore stated. If the Lessee is entitled to exercise said option to cancel
and does so, then such canceling shall be effective and the Rent shall in such
case be apportioned to the date of such taking or purchase, as the case may be.
In the event the Lessee is not entitled to cancel the Lease Agreement or if it
is entitled to do so but does not exercise its option, said Lessee will be
responsible for the Rent as heretofore set forth and apportioned to the date of
such taking or purchase, i.e., after the taking or purchase in lieu thereof, the
Rent herein reserved shall be reduced and the Lessee shall be required to pay
that proportion of Rent herein reserved as the rentable floor area of the
remaining leased space bears to the rentable floor area of the leased space
before such taking or purchase.
c. Condemnation Proceedings. The Lessor and the Lessee hereby agree
-------------------------
that any award or proceedings resulting from a condemnation or sale in lieu
thereof of the whole or any part of the Leased Premises shall belong solely to
the Lessor, and the Lessee hereby waives any right to make any claim therefor as
a result of this Lease Agreement.
23. Deposits and Advances. Lessee shall deposit the sum of
-----------------------
$6,000.00 with Lessor as security for payment of Rent and all other amounts due
hereunder, and for any damages caused by Lessee to the Leased Premises. In
addition, Lessee shall deposit the sum of $TBA PRIOR TO OCCUPANCY, which sum
-----------------------
shall represent partial prepayment of the last month's rent, C.A.M., Sewer and
Water and monthly cost for HVAC maintenance contracts covering all three (3)
HVAC systems due under this Lease, plus sales tax, if any, and the balance of
which will be due as provided at termination of Lease Agreement. Any funds
transferred by Lessee to Lessor as a deposit or advance pursuant to the terms of
this Lease Agreement, or any exhibit, addendum or modification hereto, may be
commingled with other funds of Lessor and need not be placed in trust, deposited
in escrow or otherwise held in a segregated account, or in any interest bearing
account. In addition, if any sum or sums of money shall become payable by
Lessee to Lessor pursuant to the terms of this agreement, or any exhibit,
addendum or modification hereto, or by any law, ordinance or regulation
affecting this Agreement, Lessor shall have the right to apply any deposits or
advances theretofore made by Lessee against such sums due by Lessee to Lessor.
24. Right to Sell. Should Lessor sell, assign, or convey the title
--------------
to the Leased Premises, Lessee shall be obligated to Lessor's successor in title
and shall be required to maintain adherence to the conditions and requirements
of this Lease Agreement. Upon the sale, assignment or conveyance of the title
to the Leased Premises, Lessor shall thereupon be automatically released from
all liability with respect to the covenants and obligations of the Lessor
thereafter occurring; but such covenants and obligations shall be binding upon
each new owner of the Leased Premises for the respective periods during which
each shall be owner of the Leased Premises.
25. Notices. Whenever under this Lease Agreement a provision is
-------
made for any demand, notice or declaration of any kind or where it is deemed
desirable or necessary by either party to give or serve any such notice, demand,
or declaration to the other, it shall be personally served or posted at the
Leased Premises and in writing sent by first class mail, with postage prepaid,
as follows: If to the Lessor, then to: Xxxxxx Investments Inc., 0000 Xxxx
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: President; with a copy
to: Xxxx Xxxxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention:
Xxxxx X. Xxxxxxxxxxx, Esq.; if to the Lessee, then to: XxXxxxxx & Xxxxxx, P.A.,
0000 Xxx xx Xxx Xxxx., Xxxxx 000, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxx. If the mailing address of either party changes during the period of
the Lease term, notification thereof shall be furnished by such party to the
other.
4 of 8
26. Waiver of Jury Trial. Both parties agree that, should
-----------------------
litigation ensue concerning interpretation of this Lease Agreement or disputes
in any way related to this Lease Agreement, they will waive their right to a
jury trial and instead proceed before only the judge.
27. Indemnity to Lessor. The Lessee shall indemnify, exonerate and
--------------------
hold the Lessor harmless from and against all claims, suits, damages, judgments,
liabilities, losses, costs and expenses (including attorneys fees, whether for
negotiation, trial, appellate or other legal services) suffered or incurred by
the Lessor as a result of: (a) the failure or refusal by the Lessee to perform
any covenant required to be performed by Lessee hereunder; (b) failure of the
Lessee to comply with any requirements of any governmental authority; (c) any
liens or encumbrances filed against the demised Leased Premises as a result of
any act or omission of the Lessee or its representatives; and (d) any claims for
damages for injuries to person or property occurring on or in the Leased
Premises or improvements there located or resulting in any way from Lessee's
operations.
28. Relationship of Parties. Nothing contained in this Lease
-------------------------
Agreement shall be deemed or construed by the parties hereto or by any third
party to create the relationship of principal and agent or of partnership or of
joint venture or of any association whatsoever between Lessor and Lessee, it
being expressly understood and agreed that neither the method of computation of
Rent nor any of the other provisions contained in this Lease Agreement nor any
act or acts of the parties hereto shall be deemed to create any relationship
between Lessor and Lessee other than the relationship of Lessor and Lessee.
29. Governing Laws. The laws of the State of Florida shall govern
---------------
the validity, performance, and enforcement of this Lease Agreement. Any
litigation concerning this Lease between the parties shall be initiated in
Sarasota County, Florida.
30. Savings Clause. The invalidity or unenforceability of any
---------------
provision of this Lease Agreement shall not affect or impair the validity of any
other provision.
31. Paragraph Headings. The paragraph titles herein are for
-------------------
convenience only and do not define, limit, or construe the contents of such
paragraphs.
32. Covenant to Bind Successors. It is agreed that the provisions,
----------------------------
covenants, and conditions of this Lease Agreement shall be binding on the legal
representatives, heirs, successors and assigns of the respective parties hereto.
33. Radon Gas. Radon is a naturally occurring radioactive gas that,
---------
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed Federal and State guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your County Public Health Unit.
34. Entire Agreement. This Lease Agreement and the Exhibits
-----------------
attached hereto, and forming a part hereof, set forth all of the covenants,
promises, agreements, conditions, and understandings between Lessor and Lessee
governing the demised Leased Premises. There are no covenants, promises,
agreements, conditions and understandings, either oral or written, between them
other than those herein set forth. Except as herein provided, no subsequent
alterations, amendments, changes or additions to this Lease Agreement shall be
binding upon the Lessor and Lessee unless and until reduced to writing and
signed by both parties. Submission of this instrument by Lessor to Lessee for
examination shall not bind Lessor in any manner, and no lease, contract, option,
agreement to lease or other obligation of Lessor shall arise until this
instrument is signed by Lessor and delivered to Lessee.
35. Hazardous Substances. Lessee shall not cause or permit any
---------------------
Hazardous Substance to be used, stored, generated, or disposed of on or in the
Leased Premises by Lessee, Lessee's agents, employees, contractors, or invitees
without first obtaining Lessor's prior written consent, other than Hazardous
Substances used by Lessee in the ordinary course of its business and in
compliance with all applicable laws. If Hazardous Substances are used, stored,
generated, or disposed of on or in the Leased Premises except as permitted
above, or if the Leased Premises become contaminated in any manner for which
Lessee is legally liable, Lessee shall indemnify and hold harmless the Lessor
from any and all claims, damages, fines, judgments, penalties, costs,
liabilities, or losses (including, without limitation, a decrease in value of
the Leased Premises, damages caused by loss or restriction of rentable or usable
space, or any damages caused by adverse impact on marketing of the space, and
any and all sums paid for settlement of claims, attorneys' fees, consultant, and
expert fees) arising during or after the term hereof and arising as a result of
that contamination by Lessee. This indemnification includes, without
limitation, any and all costs incurred because of any investigation of the site
or any cleanup, removal, or restoration mandated by a federal, state, or local
agency or political subdivision. Without limitation of the foregoing, if Lessee
causes or permits the presence of any Hazardous Substance on the Leased Premises
and that results in contamination, Lessee shall promptly, at its sole expense,
take any and all necessary actions to return the Leased Premises to the
condition existing prior to the presence of any such Hazardous Substance on the
Leased Premises. Lessee shall first obtain Lessor's approval for any such
remedial xxxxxx.Xx used herein, "Hazardous Substance" means any substance that
is toxic, ignitable, reactive, or corrosive and that is regulated by any local
government, the State of Florida, or the United States Government. "Hazardous
Substance" includes any and all material or substances that are defined as
"hazardous waste", "extremely hazardous waste", or a "hazardous substance"
pursuant to state, federal, or local governmental law. "Hazardous Substance"
includes but is not restricted to asbestos, polychlorobiphenyls ("PCBs"), and
petroleum.
Notwithstanding any contrary language herein, Lessor hereby acknowledges that
Lessee's business uses certain chemical products and produces certain chemical
and biomedical waste products as described on Exhibit "B", attached. Lessee
shall dispose of such waste products in accordance with all local, state and
federal regulations, and shall keep records of such disposal.
36. Additional Special Provisions.
-------------------------------
a. Lessor shall maintain duplicate keys to the outside doors of the
Leased Premises. Lessee shall not change the locks without providing a
duplicate master key to Lessor.
b. Lessee agrees that it will not overburden the electrical and air
conditioning systems servicing the Leased Premises.
c. Lessee has inspected the Leased Premises and accepts same in their
current as-is condition, with no obligation of Lessor to undertake any
corrective or remedial actions regarding the Leased Premises.
37. Severance. If any term or provision of this Lease or the
----------
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby. Each term and
provision of this Lease shall be valid and be enforced to the fullest extent by
law.
38. Mutual Waiver of Subrogation. Lessor and Lessee each expressly
--------------------------------
waive any cause of action or right of recovery which either may have hereinafter
against the other for any loss or damage, as the case may be, arising out of any
risk covered by such insurance policy, whether or not such policy shall have
been taken out by the parties sustaining such loss or damage. Each party shall
obtain waiver of subrogation endorsements to its respective policies.
39. Brokers.The only real estate broker involved in the procurement of this
--------
Lease is Xxxxxxx Xxxxxxxx & Company represented by Xxxxx Xxxxxx P.A. The
commission will be paid by the Lessor under a separate agreement and in
accordance with the schedule and addendum hereby attached to this Lease.
LESSEE ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THE LEASE,
-------------------------------------------------------------------------------
NEITHERLESSOR NOR ANY AGENT OR REPRESENTATIVE OFLESSOR HAS MADE ANY
----------------------------------------------------------------------------
REPRESENTATIONS, WARRANTIES, OR STATEMENTS WITH RESPECT TO THE LEASED PREMISES.
--------------------------------------------------------------------------------
LESSEE SHALLNOTRECORD THIS LEASE OR ANY MEMORANDUM OR NOTICE THEREOF
-----------------------------------------------------------------------------
WITHOUTLESSOR'S PRIOR WRITTEN CONSENT, EXCEPT FOR COMPLIANCE WITH ANY REGULATORY
--------------------------------------------------------------------------------
FILINGS REQUIRED FROM LESSEE.
--------------------------------
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first written above.
Signed, sealed and delivered
in the presence of: XXXXXX INVESTMENTS, INC., a Florida
corporation
______________________________ By:
_______________________________
*_____________________________ XXXXXXX X. XXXXXX, President
*(Print Name of Witness)
______________________________
*_____________________________
*(Print Name of Witness) "Lessor"
(Corporate Lessee)
__________________________________ By:
_______________________________
*_________________________________ Print Name:
_______________________________
*(Print Name of Witness) Title:
_______________________________
________________________________________
*_______________________________________
*(Print Name of Witness) "Lessee"
STATE OF FLORIDA )
)
COUNTY OF SARASOTA )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the State aforesaid and in the County aforesaid to take acknowledgments,
personally appeared XXXXXXX X. XXXXXX, as President of Xxxxxx Investments Inc.,
a Florida corporation, on behalf of the corporation. He is personally known to
me or produced _______________________________ as identification.
__________________________________________________
Notary Public
Print Name: _____________________________
My commission expires:
STATE OF _________________ )
COUNTY OF _______________ )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in
the State aforesaid and in the County aforesaid to take acknowledgments,
personally appeared _______________________________________, who is personally
known to me or produced ________________________________ as identification.
___________________________________________________
Notary Public
Print Name: _____________________________
My commission expires:
Ref: DNAPrint Yonkers Lease-Final.doc
6 of 8
EXHIBIT A
Description of Leased Premises
---------------------------------
0000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
1. Unit located at 0000 Xxxx Xxxxxxxxxx Xxxxxxx includes common electrical
service well pump and exterior lighting of occupied building. Monthly rent has
been adjusted accordingly.
2. In addition to the $6,000.00 due at Lease Agreement execution and signing,
Lessee agrees to pay the additional sum of $3,000.00 to Lessor as incentive to
enter into this agreement with Lessee, which amount, once paid, is
non-refundable.
3. The Lessor will pay as commission on the Lease Agreement to Xxxxxxx Xxxxxxxx
& Company $6,000.00 (Six Thousand Dollars) upon occupancy by Lessee.
In addition, $1,250.00 per year will be paid to Xxxxxxx Xxxxxxxx & Company on
the on the anniversary of the occupancy by the Lessor estimated at this point to
be October 1, 2006 as follows:
$1,250.00 on 10/1/2007 (Year 2)
$1,250.00 on 10/1/2008 (Year 3)
$1,250.00 on 10/1/2009 (Year 4)
$1,250.00 on 10/1/2010 (Year 5)
If the Lessee should exercise the option to extend the Lease another 5 years,
Lessor will pay to Xxxxxxx Xxxxxxxx & Company a commission as follows:
$1,440.00 on 10/1/2011(Year 1)
$1,440.00 on 10/1/2012 (Year 2)
$1,440.00 on 10/1/2013 (Year 3)
$1,440.00 on 10/1/2014 (Year 4)
$1,440.00 on 10/1/2015 (Year 5)
The Lessor reserves the right to pay the commission in full for each 5 year
period or the balance of the current 5 year period at any time.
Lessor Initial: ___________
Lessee Initial: ___________
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EXHIBIT B
---------
Phenol
Chlorophorm
Ehidium Bromide
Formamide
Lessor Initial: ___________
Lessee Initial: ___________
8 of 8
