EXHIBIT 10.2
LEASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of May, 2001,
by and between EASTGROUP PROPERTIES, L.P., A DELAWARE LIMITED PARTNERSHIP
("Lessor") and XXXXXXX.XXX, INC., A NEVADA CORPORATION ("Lessee").
WITNESSETH:
1. Premises. Lessor, in consideration of the payments to it by Lessee of
the rents herein contained, which Lessee agrees to promptly pay, and in
consideration of the performance by Lessee of the covenants hereinafter
provided, which Lessee agrees to fully and promptly perform, does hereby lease
to Lessee approximately 10,000 square feet of space, hereinafter referred to as
the "Leased Premises," as shown on the plan attached hereto as "EXHIBIT A" and
incorporated herein by reference, located within BLUE HERON DISTRIBUTION CENTER
(the "Center"). The address of the Leased Premises is 0000 XXXXXXX XXXXXXXXXX
XXXXX, XXXXX 000, XXXXXXX XXXXX, XXXXXXX 00000. For purposes of calculating sums
owed under this Lease, it is agreed that the Leased Premises constitutes 9.09%
of the total leasable area within [ ] the Building, or [X] the Center in which
it is located. Said percentage is hereinafter referred to as the Lessee's pro
rata share.
2. Term. The term of this Lease shall be for a period of 36 months
beginning on the earlier of the date the of the following: (i) the date the
Premises are offered by Landlord for occupancy following substantial completion
of the Landlord's Work pursuant to Paragraph (7), as reasonably determined by
Landlord, or (ii) the date the Tenant enters in occupancy, or (iii) JUNE 1, 2001
(the "Commencement Date"), and ending on MAY 31, 2004. If Landlord is required
to construct Landlord's Work pursuant to Exhibit D, the dates upon which the
Term shall commence and end shall be confirmed in Landlord's Notice of Lease
Term Dates ("Notice"), Exhibit C. Landlord shall deliver Notice to Tenant after
Landlord offers possession of the Premises to Tenant, or Tenant enters into
occupancy of the Premises. Tenant shall promptly return to Landlord a
countersigned original of the Notice, provided that Landlord's failure to
deliver the Notice shall not delay the Commencement Date. This period (including
any renewals subsequently enacted pursuant to the terms of this Lease), shall be
referred to as the "Lease Term".
3. Rental. During the first year of the Lease Term as Total Rental for the
use and occupancy of the Leased Premises, Lessee shall pay to Lessor in lawful
money of The United States of America the sum of $71,700 per year (the "Total
Rental") payable in twelve (12) equal payments of $5,975.00 per month, plus
Florida State sales tax, in advance on the first day of each and every month
during said Lease Term. As used herein, the term "Total Rental" includes the
estimated annual Operating Expense Factor of $19,200 described in Paragraph 6,
"Operating Expenses" of this Lease, an annual Base Rental of $52,500, and all
other sums anticipated to come due under this Lease, if any.
With respect to rentals, the parties also agree as follows:
(a) Lessee has deposited with Lessor simultaneously with Lessee's
execution of this Lease, the sum of $23,900.00 plus Florida State sales
tax for a total of $25,334.00 which
will be credited to Lessee FOR PAYMENT OF THE FIRST MONTH'S RENT, THE
SIXTH MONTH'S RENT, THE NINTH MONTH'S RENT AND THE TWELFTH MONTH'S
RENT.
(b) The Base Rental shall be increased by FOUR percent (4%)
beginning on the first anniversary of the Commencement Date and
continuing on the each anniversary thereafter.
(c) If this Lease commences on a day other than the first day of
the month, the first monthly installment of rent shall be adjusted and
prorated so that Lessee shall only pay rent for the actual number of
days in the first month of said term, but for all other months Lessee
shall pay the full monthly installment on the first day of each and
every month.
(d) Rent shall be mailed or delivered by Lessee to Lessor at such
place as Lessor may designate in writing and rent shall be payable
promptly on the first day of each and every month without prior demand
therefor by Lessor.
(e) Lessee hereby agrees with Lessor that in the event that
rentals and other sums due hereunder are received after the tenth
(10th) day of the month in which they are due, Lessee shall pay to
Lessor, at Lessor's option, a late charge equal to five percent (5%) of
the total sum due, plus applicable sales tax.
4. Additional Rent. In addition to Total Rental set forth herein, all
other payments (if any) to be made by Lessee to Lessor shall be deemed to be and
shall become additional rent hereunder, whether or not the same be designated as
such; and shall be due and payable within thirty (30) days following demand by
Lessor or together with the next succeeding installment of rent, whichever shall
first occur, together with sales tax thereon. Lessor shall have the same
remedies for failure to pay the same as for a non-payment of rents.
5. Security Deposit. Lessee shall, upon the execution of this Lease,
deposit with Lessor for the payment of rent and the performance of all other
covenants to be performed by Lessee, the sum of $6,333.50 (one months' Base Rent
if not filled in). Said security deposit shall be non-interest bearing. If
Lessee defaults in the payment of any monthly rental installment or fails to
perform any other covenant within ten (10) days after receipt of written demand
therefor, Lessor, at its option, may apply sufficient sums from the security
deposit towards payment thereof. If Lessor elects to so apply the security
deposit, or any part thereof, Lessee shall be obliged to immediately replenish
the security deposit for the amount so applied by Lessor. The total security
deposit shall be held by Lessor until expiration of the initial Lease Term or
until expiration of any renewal term if any renewal option which exists is
exercised, and the unused portion of the security deposit not having been used
to repair and/or restore any damage resulting from Lessee's actions or neglect
to the Leased Premises shall be refunded by Lessor to Lessee at the end of the
Lease Term. The security deposit shall not be applied to rent except upon
approval of Lessor.
6. Operating Expenses. As noted above, the term "Total Rental" includes an
annual "Operating Expense Factor" equal to $1.92 square foot of the Leased
Premises, for the calendar year in which the lease commences, to cover Lessee's
pro rata share (see Paragraph 1) of the projected operating Expenses.
With respect to Operating Expenses, the parties agree to the following:
(a) The term "Operating Expenses" used in this Lease Agreement
represents the total annualized costs of operating the Building/Center
including, but is not limited to, Owner's Association Costs and
Assessments, Common Maintenance and Service Costs, Real Estate Taxes
and Assessments, Insurance Premiums, accounting, management fees and
other reasonable costs associated with the management and operation of
the Building/Center. Said term shall not include depreciation on any
improvement, any major capital expenses or improvements (particularly
major re-roofing or pavement resurfacing work), moving or relocation
costs, legal or collection costs and real estate commission.
(b) The term "Common Maintenance and Service Costs" shall include
routine cleaning and maintenance of the exterior of the Lease Premises
to include periodic window cleaning, the cleaning maintenance and
sweeping of the parking lot and sidewalks; the care and maintenance of
the landscaping and landscaped areas to include the retention pond
areas and irrigation systems; common area exterior lighting and other
power charges, if any, domestic and irrigation water and sanitary sewer
charges and assessments; routine rubbish collection, if any; painting,
and any other costs customarily considered as common repair,
maintenance and service costs.
(c) The term "Real Estate Taxes and Assessments" shall include ad
valorem real and personal property taxes and assessments or any new and
different taxes, and assessments levied or charged against the entire
Building (and/or the Center as a completed project). All sales tax on
rents and personal property taxes charged or levied against Lessee's
furniture, fixtures and equipment in the Leased Premises shall be paid
by Lessee.
(d) The term "Insurance Premiums" shall include the costs of
insuring against loss by fire or casualty with extended coverage,
including insurance or rents, in an amount(s) determined by the Lessor.
In the event the cost of premiums on said fire and extended insurance
increases due to the hazardous nature of the use and occupancy by
Lessee of the Leased Premises, then the entire increase in insurance
cost shall be paid by Lessee in a lump sum within thirty (30) days
following receipt of invoice from the Lessor.
On the first day of each calendar year falling after the Commencement Date
throughout the Lease Term, the Operating Expense Factor portion of the Total
Rental set forth in Paragraph 3 (and, as a result, the Total Rental) shall be
adjusted to reflect Lessee's pro rata share of actual or estimated decreases or
increases in Operating Expenses. Lessor shall provide the cost data upon which
the determination of costs, and any decreases or increases, are based in a
format it shall determine to be consistent with reasonable and customary
business practice. In the event that actual Operating Expenses for a preceding
period are less than the sum paid by the Lessee under this provision, Lessor
shall refund or credit such excess to the account of the Lessee. If the sum
collected is less than the actual Operating Expenses, Lessee shall reimburse
Lessor for such variation upon invoice therefor accompanied by supporting data.
The obligation to pay Lessee's pro rata share of Operating Expenses incurred
during the Lease Term shall survive the expiration or termination of this Lease.
Lessee acknowledges that if the Building is part of a Center, the Center may
include not only the Building but other buildings either already existing or to
be constructed in the future. Lessee understands and agrees that, for the
purposes of administering the provisions of this Paragraph 6, so long as the
Building is owned and/or managed in conjunction with other buildings, Operating
Expenses and other costs reimbursable by the Lessee may be paid, recorded and
reported on a consolidated overall project basis.
Upon computation of the Operating Expenses and the corresponding adjustment of
the estimated monthly payments due from Lessee for the current lease year and
the communication of that adjustment by Lessor to Lessee, then Lessee shall pay,
with the monthly installment of Base Rent next due following communication of
such adjustment, the difference, if any, between the monthly estimated Operating
Expenses for the preceding year and the monthly estimated Operating Expenses for
the current year, multiplied by the number of months, if any, elapsed during the
then current year prior to such communication (i. e. the number of months
elapsed since the last anniversary of the Commencement Date). In no event shall
Lessor's delay in the estimated Operating Expenses each month during the Lease
Term.
7. Construction. Lessee will be accepting the Leased Premises as follows:
[ ] "As Is"
[X] With the following improvements to be made by
Landlord: "AS IS" EXCEPTING, LANDLORD WILL PAINT,
PATCH AND CARPET THE EXISTING OFFICE AREA ONLY WITH
BUILDING STANDARD MATERIALS.
[ ] With improvements to be constructed in accordance
with the attached Leasehold Improvement Addendum.
If none of the boxes in this paragraph are marked at the time of the execution
of this Lease, the Lessee shall be deemed to be accepting the Leased Premises on
an "as is" basis, with no representation or warranties from the Lessor of any
kind except as expressly provided in this Lease. LESSOR AGREES TO GRANT LESSEE
AND ITS AGENTS, EMPLOYEES, CONSTRUCTORS AND SUPPLIERS PERMISSION TO ENTER INTO
THE LEASED PREMISES PRIOR TO THE COMMENCEMENT DATE TO PERFORM THE LESSEE'S
LEASEHOLD IMPROVEMENTS AND MAKE ITS INSTALLATIONS, BUT SUCH POSSESSION SHALL BE
DEEMED TO BE UPON ALL THE TERMS, COVENANTS AND PROVISIONS OF THE LEASE, EXCEPT
FOR PAYMENT OF RENT.
A) 8. Utilities. Lessee shall pay for electric power consumed at
the Leased Premises, which shall be separately metered. Lessor
shall furnish water and sewer services to the Leased Premises
and Lessee shall reimburse Lessor for these charges as part of
the "Operating Expense Factor" pursuant to Paragraph 6. Lessor
reserves the right to install, at Lessor's discretion,
separate meters (or submeters) for any public utility, and may
further require the Lessee to place service in Lessee's name,
whereupon Lessee shall pay any necessary deposits to the
applicable utility company, and thereafter pay for such
utilities directly. LESSOR SHALL FURNISH TRASH COLLECTION
SERVICES AT THE LEASED PREMISES AND LESSEE SHALL REIMBURSE
LESSOR FOR THESE CHARGES AS PART OF THE "OPERATING EXPENSE
FACTOR" PURSUANT TO PARAGRAPH 6.
9. Insurance. Lessor shall arrange to ding of which the Leased Premises
form a part against loss by fire or casualty with all risk coverage in an amount
determined by the Lessor.
Lessee shall at all times and at its costs maintain comprehensive public
liability insurance on the Leased Premises with limits of at least $1,000,000
for personal injury, and death, and property damage. Said public liability
policies shall name Lessor as an additional insured as its interest may appear.
Lessee shall provide Lessor with a copy thereof prior to the Commencement Date
and shall exhibit receipts showing payment of premiums on request from Lessor.
Such policy shall further provide that the insurer shall not cancel, alter or
allow expiration or other termination thereof without at least thirty (30) days'
prior written notice from such insurer to Lessor.
Lessee shall at all times and at its expense maintain insurance against loss by
fire and other casualty with extended coverage on its furniture, fixtures,
inventory, equipment, supplies and personal property, and said policies shall
include a standard waiver of subrogation clause against Lessor. In addition to
the public liability coverage required above, Lessee shall also carry Fire Legal
Liability coverage in the amount of (i) $1,000,000.00 if the Leased Premises
comprise the entire Building, or (ii) $200,000.00 if the Leased Premises
comprise only a portion of the Building.
10. Use of Premises, Parking and Loading. Lessee shell we and occupy the
Leased Premises only for use as OFFICE/MANUFACTURING/WAREHOUSE DISTRIBUTION and
for no other purpose without Lessor's prior written consent. Lessor hereby
grants to Lessee, its employees, guests and invitees the right to use the
off-street auto parking lot and truck loading areas on the site upon which the
Building is situated. The auto parking lot shall be used by the Lessee, its
employees, guests and invitees, in common with other lessees of said Building,
their employees, guests and invitees, and in common with the Lessor and its
employees, guests and invitees. If the Lessor designates a portion of the
parking lot for employee parking, employees of the Lessee shall use that portion
of the lot thereby leaving the remaining parking spaces in the lot open for
guest in and out traffic. At all times in the absence of designated parking,
Lessee, its employees and guests, shall use those parking areas closest to
Lessee's premises to the extent possible. The exterior truck loading and trailer
parking areas immediate to the Lease Premises are reserved for the exclusive use
of the Lessee. Lessee shall not use, block or otherwise interfere with the
loading areas of other occupants in the Building or Center.
SEE PARAGRAPH 35 ADDITIONAL PROVISIONS REGARDING PARKING PROVISION.
No vehicle abandoned or disabled or in a state of non-operation or disrepair
shall be left upon the property of the Lessor, and Lessee shall enforce this
restriction against Lessee's employees, agents, visitors, licensees, invitees,
contractors and customers. Should Lessor determine that a violation of this
restriction has occurred, Lessor shall have the right to case the offending
vehicle, equipment, trailer or machinery to be removed from Lessor's property,
and all costs of such removal shall be the obligation of the Lessee responsible
for such vehicle under the terms of the lease and shall be reimbursed to the
Lessor by the Lessee within ten (10) days of written notice to Lessee.
Lessee shall conduct its business and control its employees, agents,
contractors, invitees and visitors in such manner as not to create any nuisance,
or interfere with, annoy or disturb any other tenant or Lessor or the operation
of the Building.
11. Interruption of Utility Service. Lessor does not warrant that any
utilities or public services will be free from interruption. In the event of
temporary interruption of such service, the same shall not be deemed an eviction
or disturbance of Lessee's use and possession of the Lease Premises nor render
Lessor liable to Lessee for damage by abatement of rent or otherwise. Nor shall
the same relieve Lessee from performance of Lessee's obligations under this
Lease.
12. Waiver of Claim: Indemnification. Lessee waives and releases all claims
against Lessor, its agents, employees, and servants, in respect of, and they
shall not be liable for, injury to person or damage to property sustained by
Lessee or by any occupant of the Leased Premises, the Building, or the Center,
or any other person occurring in or about the Building/Center, or the Leased
Premises resulting directly, or indirectly, from any existing or future
condition, defect, matter or thing in the Leased Premises, or the Building or
any part of it, or from equipment or appurtenance therein, or from accident, or
from any occurrence, act, negligence or omission of any lessee or occupant of
the Building, or any other person. This paragraph shall apply also to damage
caused as aforesaid or by flooding, sprinkling devices, air conditioning
apparatus, water, frost, steam, excessive heat or cold, falling objects, broken
glass, sewage, gas, odors or noise, or the bursting or leaking of pipes or
plumbing fixtures and shall apply equally whether any such damage results from
the act or circumstance, whether of a like or wholly different nature. If any
such damage to the Lease Premises or to the Building or any equipment or
appurtenance therein, or to Lessee thereof, results from any act or omission or
negligence of Lessee, its agents, employees or invitees, Lessor, at Lessor's
option, may repair such damage and Lessee shall, within ten (10) days following
demand by Lessor, reimburse Lessor forthwith for all cost of such repairs and
damages both to the Building and to the lessees or occupants thereof, in excess
of the amount, if any, paid to Lessor under insurance covering such damages. All
property in the Building or in the Leased Premises belonging to Lessee, its
agents, employees or invitees, or to any occupant of the Leased Premises, shall
be there at the risk of Lessee or other person only, and Lessor shall not be
liable for damage thereto or theft, misappropriation, or loss thereof. Lessee
agrees to hold Lessor harmless and to indemnify it against claims and liability
for injuries to all persons and for the damages due to any act or omission of
Lessee, its agents, employees, guests, customers, clients and invitees. Lessee
shall pay all loss or damage occasioned by or growing out of the use and
occupancy of the Leased Premises by Lessee, its agents, employees, guests,
customers and invitees, and Lessee will indemnify, protect, and save Lessor
harmless from and against any loss or liability thereof or therefor and from and
against any expense, cost and attorney's fees incurred in connection with any
claim for such loss or damage, including costs and attorney's fees on appeal.
13. Care of Premises. Lessee shall, throughout the Lease Term, take good
care of the Leased Premises and all fixtures, appurtenances, doors and windows,
locks, walls, ceilings, flooring and mechanical equipment located therein,
excepting that which may be covered by applicable warranty, and, at its sole
cost and expense, make all non-structural repairs thereto and the Leased
Premises or to any other part of the Building, or to its fixtures, equipment and
appurtenances, whether requiring structural or non-structural repairs, caused by
or resulting from carelessness, omission, neglect or conduct of Lessee, its
servants, employees, invitees or licensees, shall be repaired by the Lessee at
its sole expense to the satisfaction of Lessor
reasonably exercised. Lessee shall replace or repair, as needed, all lamps,
bulbs, ballasts and other lighting fixtures and apparatus. Lessee shall also
repair all damage to the Building and the Leased Premises caused by the moving
of Lessee's futures, furniture or equipment. All the aforesaid repairs shall be
of quality or class equal to the original work or construction. If Lessee fails
after ten (10) days' notice to proceed with due diligence to make repairs
required to be made by it, the same may be made by Lessor at the expense of
Lessee. Lessee shall give Lessor prompt notice of any defective condition in the
Leased Premises which Lessor is required to repair or replace. Lessor shall
remedy the condition with due diligence but at the expense of Lessee if repairs
are necessitated by damage or injury attributable to Lessee, Lessee's servants,
agents, employees, invitees, or licensees as aforesaid. All repair work and/or
modifications made to the Leased Premises must be made by licensed and bonded
contractor(s) approved by Lessor.
(A) Lessee shall be responsible for the cost of all maintenance
and repairs (except as may be covered under applicable warranty) to the
heating, ventilating and air conditioning system(s) serving the Leased
Premises. Lessee shall, within five (5) days of occupancy, contract
with a licensed HVAC maintenance company to maintain the system in
proper working order. The Lessee agrees to supply a copy of the
maintenance agreement to the Lessor and shall at all times during the
term of the Lease keep in full force a HVAC maintenance agreement. If
Lessee fails to enter into a maintenance agreement as herein provided,
Lessor, at Lessor's option, may elect to enter into a reasonable
service contract for the periodic professional inspection and
maintenance of all the heating, ventilating and air conditioning
equipment serving the Building and Lessee shall pay its allocated share
of the cost of the service contract.
Lessor agrees that during the Lease Term it will, at its own expense, keep the
exterior and structural parts of the Building in good condition and repair, and
that it will make such repairs promptly as they become necessary. Exterior
repairs shall be deemed to include exterior walls, foundations, pavement, roof,
gutters, downspouts, and plumbing which is a part of the structure or
foundation. Lessor shall make such interior replacements as are necessitated by
building equipment failure and repairs and replacements necessitated by fire or
perils covered by extended coverage clauses (whether or not caused by the active
or passive negligence of the Lessee) for which damage or loss insurance is
carried by the Lessor and for which insurance proceeds are recovered, including
interior reconstruction and/or redecorating necessitated by such fire or other
perils.
Lessor represents that, to the best of its knowledge, there is neither currently
nor has there been any release or discharge of any hazardous substances in or
around the Leased Premises or the Building/Center. Lessee will keep the interior
of the Leased Premises clean and will not improperly or unlawfully release,
store, handle, or dispose of any refuse, trash or hazardous materials or
contaminants in the Leased Premises or in or around the Building of which the
Leased Premises form a part. Lessee shall immediately notify Lessor and
appropriate governmental agencies and authorities having jurisdiction if a
release of such materials occurs, and shall take complete corrective action to
clean and remove the material and restore the Leased Premises in compliance with
procedures established by such authorities, and shall provide appropriate
evidence of compliance. Lessee agrees to hold Lessor harmless of and from any
losses, costs, damages, expenses or liabilities, public or private, arising
directly or indirectly as a result of such release or contamination and such
indemnification shall survive the expiration or
termination of the Lease. Such indemnified liabilities shall include the costs
of environmental consultants and engineers, cleanup and reporting expenses, and
attorneys fees and costs.
14. Compliance with Laws and Regulations. Lessee shall comply with all
Federal, State, County and City laws, ordinances, rules and regulations
affecting or respecting the use or occupancy of the Leased Premises by the
Lessee or the business at any time thereon transacted by the Lessee, and Lessee
shall comply with all rules which may be hereafter adopted by Lessor for the
protection, welfare and orderly management of the Building and its lessees or
occupants.
15. Holding Over. Upon expiration or termination of this Lease, Lessee's
continued possession of the Leased Premises shall be deemed a month-to-month
tenancy on the terms stated herein but otherwise terminable by Lessor or Lessee
upon thirty (30) days' written notice. In the event such possession continues
after a date specified in a written notice from Lessor of its desire to retake
possession of the Leased Premises, the Base Rental shall be double the Base
Rental which was in effect as of the expiration or termination of the Lease
Term.
16. Signs. Lessee shall not install or locate signs in the windows and
doors of the Leased Premises or any other part of the Building or grounds
without first securing Lessor's written consent. Any signs installed by Lessee
with Lessor's permission shall be maintained in good repair and shall be removed
and any building or grounds damaged therefrom restored by Lessee at the
expiration or earlier termination of this Lease at Lessee's expense.
17. Warranty of Quiet Enjoyment; Imposition of "Reasonableness" Standard.
Lessee upon paying the rents and keeping and performing the covenants of this
Lease to be performed by Lessee, shall peacefully and quietly hold, occupy, and
enjoy the Leased Premises during the Lease Term without any hindrance or
molestation by Lessor or any persons lawfully claiming under Lessor. Wherever
the consent or approval of either party is required herein, it is understood and
agreed that such consent or approval may not, unless expressly stated otherwise
in this Lease, be unreasonably withheld or delayed.
18. Waste; Disturbance. Lessee shall not commit nor suffer any waste upon
the Leased Premises, nor cause nor allow any nuisance or other act or thing
which does or may disturb the quiet enjoyment of any other Lessee in the
Building /Center containing the Leased Premises or any other building in the
Center, including without limitation the parking, loading and landscaped areas.
Lessee shall not make or allow any noise or odor to be made upon the Leased
Premises, whether as a part of Lessee's normal operations or otherwise, which
will or might disturb other parties.
19. Assignment and Subletting. Assignment and Subletting. Lessee shall not
assign this Lease nor sublet all or any part of the Leased Premises, except to
an affiliate entity of common ownership and business, without first securing
Lessor's written consent. In the event of an assignment or subletting, the
assignee and/or sublessee shall first assume in writing all of the obligations
of Lessee under this Lease and Lessee shall, for the full Lease Term, continue
to be jointly and severally liable with such assignee or sublessee for the
payment of rents and the performance of all obligations required of Lessee under
Lessee this hereby Lease. acknowledges that the ability to pay rent when due are
of prime importance and significance to the Lessor in the operation and
maintenance of the Building in which the Leased Premises are located.
20. Fire or Other Casualty. In the event the Leased Premises shall be
destroyed or so damaged or injured by fire or other casualty during the Lease
Term, whereby the same shall be rendered untenantable, then Lessor shall have
the right to render the Leased Premises tenantable by repairs within one hundred
twenty (120) days therefrom and this Lease shall not terminate. If the Leased
Premises are not rendered tenantable within said time, it shall be optional by
either party hereto to cancel this Lease, and in the event of such cancellation,
the rent shall be paid only to the date of such fire The or cancellation
casualty. herein mentioned shall be evidenced in writing. During any time that
the Leased Premises remain untenantable due to causes set forth in this
paragraph, the rents due hereunder or a just and fair proportion thereof shall
xxxxx.
21. Eminent Domain. If the whole of the Leased Premises shall be taken by
any public authority under the power of eminent domain, or if so much of the
Building or grounds shall be taken by any such authority under the power of
eminent domain so that the Lessee cannot continue to operate its business in the
Leased Premises, then the Lease Term of this Lease shall cease as of the day
possession is taken by such public authority and rents shall be paid up to that
day with proportionate refund by Lessor of any such rents as may have been paid
in advance or deposited as security. The amount awarded for any taking under the
power of eminent domain shall belong to and be the property of the Lessor.
Nothing herein shall limit the Lessee's ability to make an independent claim for
damages or awards.
22. Waiver. No waiver of any of the covenants and agreements here contained
or of any breach thereof shall be taken to constitute a waiver of any other
subsequent breach of such covenants and agreements or to justify or authorize
the non-observance at any time of the same or of any other covenants and
agreements hereof.
23. Notices. All. notices required under this Lease to be given to Lessee
shall be given to it at 0000 XXXXXXX XXXXXXXXXX XXXXX, XXXXX 000. XXXXXXX XXXXX,
XX 00000, or at such other place as Lessee may designate in writing. Any such
notice to be given to Lessor under this Lease shall be given to it at 0000
XXXXXXXX XXXX, XXXXX 000, XXXXX. XXXXXXX 00000, ATTN: VICE PRESIDENT ASSET
SERVICES or at such other place as Lessor may designate in writing. All notices
shall be in writing and shall be sent by certified mail, postage prepaid, or by
telecopy facsimile transmission, or by personal delivery, or by commercial
courier. Notices shall be deemed to have been given (i) in the case of mailing,
when postmarked, (ii) in the case of telecopy transmission, when received as
evidenced by a written transmission report, or (iii) in the case of hand
delivery or delivery by commercial courier, when delivered.
24. Subordination. This Lease is subject and subordinate to all mortgages
which may now or hereafter the Leased Premises or the Building of which it forms
a part, and to all renewals, modifications, consolidations, replacements and
extensions thereof. This clause shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Lessee shall execute promptly any subordination certificate that
Lessor may subsequently request; provided, however, that Lessee may condition
such subordination upon the execution and delivery by the applicable mortgage
holder of a so-called "non-disturbance" agreement in customary form.
25. Fixtures and Alterations. Lessee shall not, without Lessor's prior
written consent, attach any fixtures in or to the Leased Premises or change,
alter or make additions to the Leased Premises, nor attach or affix any article
hereto, nor permit any annoying sound device, overload any floor, or deface the
Leased Premises. Any attached fixtures or any alterations, additions or
improvements made to or attached by Lessee upon the Leased Premises shall, on
the expiration or termination of this Lease, if requested by Lessor, be promptly
removed at Lessee's expense and the Leased Premises restored by Lessee at its
expense to its original condition, ordinary wear and tear excepted. Any such
future, alteration, addition and/or improvement not requested to be removed
shall remain in the Leased Premises and shall become and remain the property of
Lessor. All of Lessee's fixtures, installations and personal property not
removed from the Leased Premises upon the expiration or termination, and not
required by Lessor to have been removed as provided in this paragraph, shall be
conclusively presumed to have been abandoned by Lessee and title thereto shall
pass to Lessor under this Lease as if by a xxxx of sale.
26. Redelivery of Leased Premises. Lessee shall, on the expiration of this
Lease, deliver up the Leased Premises in as good order and condition as it now
is or may be put by Lessor, reasonable use and ordinary wear and tear thereof
and damage by fire or other unavoidable casualty, condemnation or appropriation
excepted. Additionally, Lessee shall promptly surrender all keys to the Leased
Premises to Lessor.
27. Examination and Exhibiting of Leased Premises Examination and
Exhibiting of Leased Premises. Lessor or its duly authorized agent shall have
the right to enter the Leased Premises at all reasonable times to examine the
condition of the same and to make repairs to the Leased Premises or the
Building. Within six (6) months prior to the date of the expiration of the
Lease, Lessor or its authorized agent shall have the right to enter the Leased
Premises at all reasonable times for the purpose of exhibiting the same to
prospective lessees.
28. Events of Default. Provided that such continues to exist on the date
which is ten (10) days after Lessee's receipt of written demand from Lessor (but
subject to the condition that written demand is not required to be given on more
than two occasions in any twelve (12) month period) any of the following events
or occurrences shall constitute a breach of this Lease by Lessee and shall
constitute an "Event of Default" hereunder:
(a) The failure of Lessee to pay any Total Rentals or other
amounts due under this Lease, on or before the date when due.
(b) The failure of Lessee to observe or perform any other
covenant, agreement, condition or provision of this Lease.
(c) If Lessee becomes insolvent or admits in writing its inability
to pay its debts as they mature, or makes an assignment for the benefit
or creditors, or applies or consents to the appointment of a trustee or
receiver for Lessee or for a major part of its property.
(d) The appointment of a trustee or a receiver to take possession
of all or substantially all of Lessee's property, or the attachment,
execution or other judicial seizure of all or substantially all of
Lessee's assets located at the Leased Premises, unless such
appointment, attachment, execution or seizure is discharged within
thirty (30) calendar days after the appointment, attachment, execution
or seizure.
(e) The institution of bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or any other proceedings for
relief under any bankruptcy or insolvency law or any other similar law
for the relief of debtors, by or against Lessee, and if instituted
against Lessee, the same are not dismissed within thirty (30) calendar
days after the institution of such proceedings.
29. Lessor's Remedies. On the occurrence of any such Event of Default,
Lessor shall, in addition to any other rights or remedies available to Lessor
under this Lease and under the laws of the State of Florida, have the following
rights and remedies:
(a) Termination of Lease. Lessor may terminate this Lease and all
rights of Lessee hereunder by giving Lessee written notice that this
Lease is terminated, in which event the Term of this Lease shall
terminate and all right, title and interest of Lessee hereunder shall
expire on the date stated in such notice. Upon such termination, Lessor
shall be entitled to recover from Lessee all the fixed dollar amounts
of Total Rental accrued and unpaid for the period up to and including
such date of termination, as well as all other additional sums payable
by Lessee or for which Lessee is liable or in respect of which Lessee
has agreed to indemnify Lessor under the provisions of this Lease. In
addition, Lessor shall be entitled to recover as damages for the loss
of the bargain and not as a penalty (i) the unamortized cost to Lessor,
computed and determined in accordance with generally accepted
accounting principles, of the Lessee improvements and alterations, if
any, paid for and installed by Lessor pursuant to this Lease, plus (ii)
the aggregate sum which at the time of such termination represents the
excess, if any, of the present value of the aggregate Total Rental at
the same annual rate for the remainder of the Term as then in effect
pursuant to the applicable provisions of this Lease, over the then
present value of the then aggregate fair total rental value of the
Leased Premises for the balance of the Lease Term, such present worth
to be computed in each case on the basis of a three percent (3%) per
annum discount from the respective dates upon which such Total Rentals
would have been payable hereunder had this Lease not been terminated,
plus (iii) any damages in addition thereto, including reasonable
attorneys' fees and court costs, which Lessor shall have sustained by
reason of the breach of any of the covenants of this Lease other than
for the payment of Total Rental.
(b) Re-Entry Without Termination. Lessor may re-enter the Leased
Premises without terminating this Lease, and remove all persons and
property from the Leased Premises, and relet the Leased Premises or any
part thereof for the account of Lessee, for such time (which may be for
a term extending beyond the Lease Term) and upon such terms as Lessor
in Lessor's sole discretion shall determine, and Lessor shall not be
required to accept any lessee offered by Lessee or to observe any
instructions given by Lessee relative to such reletting. In the event
of any such reletting, Lessor may make repairs, alterations and
additions in or to the Leased Premises and redecorate the same to the
extent deemed necessary or desirable by Lessor and in connection
therewith change the locks to the Leased Premises, and Lessee shall
upon demand pay the cost thereof together with Lessor's expenses of
reletting. Lessor may collect the Total Rentals from any such reletting
and apply the same first to the payment of the expenses of re-entry,
redecoration, repairs and alterations and the expenses of reletting and
second to the payment of Total
Rental herein provided to be paid by Lessee, and any excess or residue
shall operate only as an offsetting credit against the amount of Total
Rental as the same thereafter becomes due and payable hereunder. No
such re-entry or repossession, repairs, alterations and additions or
reletting shall be construed as an eviction or ouster of Lessee or as
an election on Lessor's part to terminate this Lease unless a written
notice of such intention be given to Lessee, nor shall the same operate
to release the Lessee in whole or in part from any of the Lessee's
obligations hereunder, and Lessor may, at any time and, from time to
time, xxx and recover judgment for any deficiencies from time to time
remaining after the application from time to time of the proceeds of
any such reletting.
(c) Acceleration. Subject to the requirement that some component
of Total Rental remains due and unpaid for sixty (60) days after coming
due, Lessor may declare the entire amount of Total Rental and any other
sums or charges which would become due and payable from Lessee to
Lessor during the remainder of the Lease Term to be due and payable
immediately, in which event, Lessee agrees to pay the sum at once,
together with all Total Rental, including any other sum theretofore
due; provided, however, that such payment shall not constitute a
penalty or forfeiture or liquidated damages but shall merely constitute
payment in advance of the Total Rental for the remainder of the Lease
Term.
(d) Other Enforcement. Lessor may enforce the provisions of this
Lease and may enforce and protect the rights of Lessor hereunder by a
suit or suits in equity or at law for specific performance of any
covenant or agreement contained herein, or for the enforcement of any
other legal or equitable remedy, including recovery of all monies due
or to become due from Lessee under any of the provisions of this Lease.
(e) Surrender. If Lessor exercises either of the remedies provided
for in subparagraphs (a) and (b) hereinabove, Lessee shall surrender
possession and vacate the Lease Premises immediately and deliver
possession thereof to Lessor, and Lessor may then or at anytime
thereafter re-enter and take complete and peaceful possession of the
Lease Premises.
(f) Remedies Cumulative. The rights, privileges, elections and
remedies of Lessor under this Lease shall be cumulative, and Lessor
shall have the right to exercise such remedies at any time and from
time to time singularly or in combination. No termination of this Lease
(whether upon an Event of Default or otherwise) shall be deemed to
limit or negate Lessor's rights hereunder to indemnification from
Lessee (or Lessee's insurance carriers) for any claim or liability
asserted against or imposed upon Lessor, whether before or after the
termination of this Lease, which is directly or indirectly based upon
death, personal injury, property damage or other matters occurring
prior to the termination hereof.
(g) Attorneys' Fees and Collection Charges. In the event of any
legal action or proceeding is brought by either party to enforce this
Lease, the non-prevailing party shall pay all expenses of the
prevailing party incurred in connection with such action or proceeding,
including court costs and reasonable attorneys' fees at or before the
trial level and in any appellate or bankruptcy proceeding.
30. Liens. Lessee agrees that Lessee will pay all liens of contractors,
subcontractors, mechanics, laborers, materialmen, and other liens of like
character, and will indemnify Lessor against all legal costs and charges, bond
premiums for release of liens, including reasonable attorney's fees reasonably
incurred (whether litigation is necessary or not) in discharging the Leased
Premises or any part thereof from any liens, judgments, or encumbrance caused or
suffered by Lessee. It is understood and agreed between the parties hereto that
the cost and charges above referred to shall be considered as rent. The
foregoing shall not be deemed to authorize any repairs, alternations, additions
or improvements by Lessee.
The Lessee herein shall not have any authority to create any liens for labor or
material on the Lessor's interest in the Center, and all persons contacting with
the Lessee for the erection, installation, alteration or repair of improvements
on or to the Center (including the Leased Premises), and all materialmen,
contractors, mechanics and laborers are hereby charged with notice that they
must look to the Lessee and to the Lessee's interest only to secure the payment
of any xxxx for work done or material furnished during the Lease Term. Lessee
agrees to join Lessor in executing and publicly recording a memorandum or short
form of this Lease for the purpose of providing notice of the existence of this
paragraph.
31. Estoppel Certificate. Lessee and Lessor, upon request, one from the
other, shall give or exchange with, one with the other, estoppel certificates
which shall confirm to others that this Lease is in full force and effect, that
neither party is in default and/or such other information regarding this Lease
as may be reasonably appropriate and factual.
32 Hazardous Material. Throughout the term of this Lease, Lessee shall
prevent the presence, use, generation, release, discharge, storage, disposal, or
transportation of any Hazardous Materials (as hereinafter defined) on, under,
in, above, to, or from the Leased Premises other than in strict compliance with
all applicable federal, state, and local laws, rules, regulations, and orders.
For purposes of this provision, the term "Hazardous Materials" shall mean and
refer to any wastes, materials, or other substances of any kind or character
that are or become regulated as hazardous or toxic waste or substances, or which
require special handling or treatment, under any applicable local, state, or
federal law, rule, regulation, or order. Lessee shall indemnify, defend, and
hold harmless from and against (a) any loss, cost, expense, claim, or liability
arising out of any investigation, monitoring, clean-up, containment, removal,
storage, or restoration work (herein referred to as "Remedial Work") required
by, or incurred by Lessor or any other person or party in a reasonable belief
that such Remedial Work is required by any applicable federal, state or local
law, rule, regulation or order, or by any governmental agency, authority, or
political subdivision having jurisdiction over the Leased Premises, and (b) any
claims of third parties for loss, injury, expense, or damage arising out of the
presence, release, or discharge of any Hazardous Materials on, under, in, above,
to, or from the Leased Premises. In the event any Remedial Work is so required
under any applicable federal, state, or local law, rule, regulation or order,
Lessee shall promptly perform or cause to be performed such Remedial Work in
compliance with such law, rule, regulation, or order. In the event Lessee shall
fail to commence the Remedial Work in a timely fashion, or shall fail to
prosecute diligently the Remedial Work to completion, such failure shall
constitute an event of default on the part of Lessee under the terms of this
Lease, and Lessor, in addition to any other rights or remedies afforded it
hereunder, may, but shall not be obligated to, cause the Remedial Work to be
performed, and Lessee shall promptly reimburse Lessor for the cost and expense
thereof upon demand.
33. Miscellaneous.
(a) All approvals required of and between Lessor and Lessee under
the provisions of this Agreement shall not be unreasonably withheld or
delayed.
(b) It is understood and agreed that in the event any provision of
this Lease shall be adjudged, decreed, held or ruled to be invalid,
such portion shall be deemed severable, and it shall not invalidate or
impair the agreement as a whole or any other provision of the
agreement.
(c) This Lease and all provisions, covenants and conditions
thereof shall be binding upon and inure to the benefit of the heirs,
legal representatives, and successors, and assigns of the parties
hereto, except that no person, firm, corporation nor court officer
holding under or through Lessee in violation of any of the terms,
provisions or conditions of this Lease, shall have any right, interest
or equity in or to this Lease, the terms of this Lease or the Leased
Premises.
(d) Lessor shall have the right, at any time without liability to
Lessee to make, at Lessor's own expense, repairs, alterations,
additions and improvements, structural or otherwise, in or to the
Leased Premises, the Building or any part thereof, and to perform any
acts related to the safety, protection and preservation thereof, and
during such operations to take into and through the Leased Premises or
any part of the Building all material and equipment required and to
close or temporarily suspend operation of entrances, doors, corridors
or other facilities, provided that Lessor shall cause as little
inconvenience or annoyance to Lessee as is reasonably necessary in the
circumstances, and shall not do any act which permanently reduces the
size of the Leased Premises. Lessor may do any such work during
ordinary business hours and Lessee shall pay Lessor for overtime and
other expenses incurred if such work is done during other hours at
Lessee's request.
(e) 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. Pursuant
to Section 404.056(8), Florida Statutes.
(f) This Lease and the addenda attached hereto constitute the
entire agreement between the parties and supersedes all prior
agreements. No waiver, modifications, additions or addenda to this
Lease shall be valid unless in writing and signed by both the Lessor
and the Lessee.
(g) This Lease shall be governed by and construed in accordance
with the laws of the State of Florida.
(h) Time is of the essence of each and every provision of this
Lease.
(i) Lessor and Lessee hereby represent and warrant to each other
that neither Lessor nor Lessee nor any of their representatives,
employees or agents have dealt with or consulted any real estate broker
in connection with this Lease, other than CB Xxxxxxx Xxxxx, Inc. (the
"Broker"). Without limiting the effect of the foregoing, Lessee hereby
agrees to indemnify, defend and hold Lessor harmless from and against
any claim or demand made by any real estate broker or agent, other than
the Broker, claiming to have dealt or consulted with Lessee or any of
Lessee's representatives, employees or agents contrary to the foregoing
representation and warranty.
34. Addenda/Exhibits. The additional Addenda and Exhibits (if any) listed
below are hereby incorporated by reference and made a part of this Lease:
Exhibit A. Site Plan Exhibit C Notice of Lease Term Dates
Exhibit A-1 Suite Plan Exhibit D Rules and Regulations
Exhibit B Legal Description Exhibit E Tenant Information Business Activity
35. Additional Provisions.
(A) PARKING: TENANT SHALL BE ALLOWED A TOTAL OF 12 PARKING SPACES
ON A FIRST COME, FIRST SERVE BASIS. LANDLORD HAS RIGHT AT ANY
TIME TO DESIGNATE LOCATION OF SPACES WITH THE COMPLEX.
IN WITNESS WHERE, Lessor and Lessee have hereunto executed this Lease as of the
day and year first above written.
Signed, sealed and delivered in the LESSOR: East Group Property Services of Florida, LLC
presence of: Agent for:
EASTGROUP PROPERTIES, LP, A DELAWARE LIMITED PARTNERSHIP
/s/ By: /s/
----------------------------------------------------- -----------------------------------------------------
Print Name: Xxxx X. Xxxxxx Name: Xxxxx Xxxxxxx
/s/
----------------------------------------------------- Title: Vice President Asset Services
Print Name: Xxxxx Xxx
WITNESS: LESSEE:
/s/ XxxxXxx.xxx, Inc., a Nevada corporation
-----------------------------------------------------
Print Name: Xxxxx X. Xxxxxx
Secretary/Treasurer
By: /s/
-----------------------------------------------------
Name: Xxxxx Xxxxx
/s/
----------------------------------------------------- Title: Executive Vice President
Print Name: Xxxxxx X. Xxxxx
