OFFICE LEASE
THIS OFFICE LEASE ("Lease") is entered into by and between ECHELON
INTERNATIONAL CORPORATION, a Florida corporation, its successors and assigns
("Landlord"), and IXION BIOTECHNOLOGY, INC., a Delaware corporation, its
permitted successors and permitted assigns ("Tenant"), effective as of September
18, 1998 ("Effective Date").
ARTICLE 1. SUMMARY OF LEASE PROVISIONS
1.1. BASIC DATA. Certain fundamental provisions of this Lease are presented
in this summary format in this Article to facilitate convenient reference by the
parties hereto. All references in this Lease to the following terms shall be
accorded the meanings or definitions given in this Article, as though such
meaning or definition were fully set forth throughout the text hereof, unless
such meanings are expressly modified, limited or expanded elsewhere in this
Lease. This Article, together with the terms herein referenced, shall constitute
an integral part of this Lease.
(a) "Additional Rent" shall be "Tenant's Proportionate Share of the
Operating Costs in Excess of the Operating Stop," as defined and discussed
in Sections 1.1(o), below and 3.2(b), below, and any and all other sums of
money or charges, other than Annual Gross Rent, required to be paid by
Tenant under this Lease, whether or not the same be so designated.
(b) "Annual Base Rent" shall equal the sum of (i) the "Annual Gross Rent"
and (ii) "Tenant's Proportionate Share of Operating Costs in Excess of the
Operating Stop".
(c) "Annual Gross Rent" shall be equal to the sum of (i) the Fixed Annual
Net Rent and (ii) the Operating Stop, at the rate as scheduled below each
and every Lease Year during the Term, as follows:
Fixed Annual Estimated Estimated
Lease Term Net Rent Amortized Improvements Operating Stop Monthly Payment
1-12 $40,529.28 $10,232.64 $29,343.60 $6,675.46
12-24 $41,733.12 $10,232.64 $30,223.91 $6,849.14
25-36 $42,987.12 $10,232.64 $31,130.63 $7,029.20
(note: The above schedule does not include any sales or use tax assessed on
rental, nor "Tenant's Proportionate Share of Operating Costs in Excess of
the Operating Stop" (as defined in Section 1.1(o), below), nor any
additional charges due for excess utility usage, as provided in Article 5,
below, nor parking, as provided in Article 18, below)
(d) "B.O.M.A." shall mean the standard method of floor measurement as
published by the Builders, Owners and Managers Association International
Reprint, ANSI/BOMA 265.1-1996. The rentable square footage of the Leased
Premises shall be calculated by its measurement pursuant to the guideline
of B.O.M.A., which shall also include a common area percentage add on
factor to the Leased Premises proportionate to the total area of the
Building.
(e) "Building" shall mean the building located on certain real property
located at 00000 Xxxxxxxx Xxxxxxxxx, located in the Progress Center, in the
City of Alachua, Alachua County, Florida.
(f) "Business Days" shall mean all days, except Saturdays, Sundays, New
Year's Day, President's Day, Memorial Day, Independence Day, Christmas Day,
Labor Day, Thanksgiving, and other recognized holidays.
(g) "Commencement Date" shall mean the earliest to occur of: (i) the date
on which Tenant opens up for business in and on the Lease Premises or any
portion thereof; or (ii)or the date of "Substantial Completion" of the
"Leasehold Work", as provided in the Work Agreement attached hereto as
Exhibit "B". Notwithstanding the foregoing, in the event that the Leasehold
Work has not been Substantially Completed by November 30, 1998, then, in
such event, Tenant shall have the right to terminate this Lease by written
notice to the other, whereupon all rights and liabilities arising hereunder
shall cease.
(h) "Default Rate" means interest at the highest rate permitted by law.
(i) "Landlord's Work" shall mean all work to be performed by Landlord to
complete the Leased Premises in substantial accordance with the Plans
attached as Exhibit "B".
(j) "Lease Year" shall mean each twelve (12)-month period beginning on the
Commencement Date and each anniversary thereof, provided the Commencement
Date is on the first day of a month. If the Commencement Date falls on a
day other than the first day of a month, then the first Lease Year shall
begin on the first day of the calendar month next following the
Commencement Date. If the Commencement Date falls on a day other than the
first day of a month, then the Term shall be extended by the period of time
("Partial Lease Year") from such Commencement Date through the end of the
calendar month in which the Commencement Date falls.
(k) "Leased Premises" shall be deemed to mean 3,744 square feet of usable
area, which area shall be located in the north wing substantially
identified by labeling on the floor plan attached hereto and made a part
hereof as Exhibit "A". The Leased Premises are designated as Suite 111.
(l) "Normal Business Hours" shall mean from 8:00 a.m. to 6:00 p.m. during
all Business Days.
(m) "Operating Costs" shall have the meaning set forth in Section 3.2 of
this Lease.
(n) "Operating Costs Stop" shall have the meaning set forth in Section 3.2
of this Lease.
(o) "Plans" shall mean the final Landlord approved plans and specifications
(working drawings) prepared by Landlord for the renovation, wiring, piping,
construction and completion of the Leased Premises attached as Exhibit "B".
(p) "Rent" shall mean the Fixed Annual Net Rent and Tenant's Proportionate
Share of Operating Costs (as defined in Section 3.2 below), and any
Additional Rent payable by Tenant to Landlord under this Lease.
(q) "Rent Commencement Date" shall mean (a) the date on which Tenant takes
possession of the Leased Premises; or (b) the Commencement Date, whichever
is earlier. Taking possession of the Leased Premises by Tenant shall be
deemed to establish conclusively that the Landlord's Work has been
substantially completed in accordance with the Plans, are suitable for the
purposes for which the Leased Premises are let, and that the Leased
Premises are in good and satisfactory condition as of the date possession
was so taken by Tenant.
(r) "Rentable Area" or "Rentable Square Footage" shall mean the total
rentable area (as it exists from time to time) based on the B.O.M.A.
method. Rentable Area of the Leased Premises is hereby deemed to mean 5,016
rentable square feet.
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(s) "Tenant's Proportionate Share" shall be a percentage, determined by
dividing the Rentable Square Footage in the Leased Premises by the number
of rentable square feet in the Building (based on t he B.O.M.A. method). In
the event of any change in the area of the Leased Premises (except a change
relating to relocation pursuant to Section 19.11) or the Building, Tenant's
Proportionate Share shall be adjusted to reflect such change or event on a
prorated, daily basis. (t) "Tenant's Proportionate Share of the Operating
Costs" shall have the meaning set forth in Section 3.2 below.
(u) "Term" shall mean three (3) Lease Years (plus Partial Lease Year, if
applicable) commencing on the Commencement Date and ending at 11:59 p.m. on
the last day of the third (3rd) Lease Year ("Expiration Date") or on such
earlier date in which the Term of this Lease shall expire or be canceled or
terminated pursuant to any of the conditions or covenants of this Lease or
pursuant to law. Tenant shall have two, one-year renewal options.
(v) "Use" shall mean general office or laboratory use including manufacture
of diagnostic kits and reagents, therapeutic compounds and cell lines, and
for no other purpose whatsoever.
ARTICLE 2. LEASED PREMISES AND TERM
2.1. Leased Premises. Subject to the rent, terms and conditions herein set
forth, Landlord hereby leases to Tenant and Tenant hereby rents from Landlord
the Leased Premises, subject to the terms and provisions of this Lease to have
and to hold for the Term, unless the Term shall be sooner terminated as
hereinafter provided. In addition, as an appurtenance to this Lease, Tenant
shall have the general and non-exclusive right to use the Common Area subject to
the terms and conditions of this Lease. For purposes of this Lease, Common Area
shall include all areas, improvements, facilities and equipment from time to
time designated by Landlord for the general and nonexclusive common use or
benefit of Tenant, other tenants of the Building, Landlord, and their respective
officers, partners, directors, employees, agents, licensees, contractors,
customer and invitees, to the extent customers and invitees are under the
principals control or direction, including the following: (i) any areas in the
Building devoted to lobbies, conference rooms, hallways, elevators, rest rooms,
janitorial closets, mailrooms, and other similar facilities provided for the
common use or benefit of tenants generally and/or for the public located in the
Building (but shall not include any such areas designated for the exclusive use
or benefit of a particular tenant); (ii) portions of the Building used for
mechanical rooms, electrical facilities, telephone closets, fire towers and
building stairs (but shall not include any such areas designated for the
exclusive use or benefit of a particular tenant); (iii) elevator shafts, vents,
stacks, pipe shafts and vertical ducts; and (iv) those portions of the Building
and/or the Building Land which are provided and maintained for the common use
and benefit of Landlord and tenants of the Building only and employees and
invitees and licensees of Landlord and such tenants; including, without
limitation, all atriums, walkways, parking areas, and all streets, sidewalks and
landscaped areas comprising the Building Land.
2.2. Landlord's Reservation. Landlord shall retain absolute dominion and
control over the Common Area and shall operate and maintain the Common Area in
such manner as Landlord in its sole discretion, shall determine; provided,
however, such exclusive right shall not operate to prohibit Tenant from its
material benefit and enjoyment of the Lease Premises for the permitted Use as
defined in Section 1.1(v). Tenant acknowledges that without advance notice to
Tenant and without any liability to Tenant in any respect, Landlord shall have
the right to:
(a) Close off any of the Common Area to whatever extent required in the
opinion of Landlord to prevent a dedication of any of the Common Area or
the accrual of any rights by any person or the public to the Common Area,
provided such closure does not materially deprive Tenant of the benefit and
enjoyment of the Leased Premises for its permitted use;
(b) Temporarily close any of the Common Area for maintenance, alteration or
improvement purposes;
(c) Select, appoint or contract with any person for the purpose of
operating and maintaining the Common Area, on such terms and conditions as
Landlord deems reasonable;
(d) Change the size, use, shape or nature of any such Common Area, provided
such change does not materially deprive Tenant of the benefit and enjoyment
of the Leased Premises. So long as Tenant is not thus deprived of the use
and benefit of the Leased Premises, Landlord will also have the right at
any time to change the arrangement or location of, or both, or to regulate
or eliminate the use of any concourse, or any elevator, stairs, toilet or
other public conveniences in the Building, without incurring any liability
to Tenant or entitling Tenant to any abatement of rent;
(e) Expand the existing Building or other buildings to cover a portion of
the Common Area, convert the Common Area to a portion of the Building or
other buildings, or convert any portion of the Building (excluding the
Leased Premises) or other building to Common Area. Upon erection or any
buildings or expansion of the Building, or change in Common Area, the
portion of the Building upon which such structures have been erected will
no longer be deemed to be a part of the Common Area. In the event of any
such changes in the size or use of a building or Common Area, Landlord may
make an appropriate adjustment in the rentable square feet of the Building
and a corresponding adjustment to Tenant's Proportionate Share;
(f) In addition to the other rights of Landlord under this Lease, Landlord
reserves to itself and its respective successors and assigns the right to:
(i) change the street address and/or name of the Building; (ii) erect, use
and maintain pipes and conduits in and through the Leased Premises; (iii)
grant to anyone the exclusive right to conduct any particular business or
undertaking in the Building; (iv) control the use of the roof and exterior
walls of the Building; and (vi) use Tenant's name in promotional materials
relating to the Building. Landlord may exercise any or all of the foregoing
rights without being deemed to be guilty of an eviction or disturbance or
interruption of the business of Tenant or Tenant's use or occupancy of the
Leased Premises.
2.3. Term. This Lease is effective and enforceable upon the date of
execution hereof by both parties ("Effective Date"). The Term of this Lease
shall commence on the Commencement Date as defined in Section 1, above, and
shall extend to the last day of the third (3rd) Lease Year (or the last day of
the first or second renewal term, as the case may be) at 12:00 a.m. midnight or
on such earlier date on which the term of this Lease may expire or be terminated
pursuant to the provisions of this Lease or pursuant to law. Promptly upon the
occurrence of the Commencement Date, the parties shall execute an instrument
confirming the Commencement Date and the expiration date of the initial term
hereof, but the failure of any party to do so shall not release any of the
parties from any of their obligations hereunder.
Tenant shall have the option to extend the term of this Lease for two
periods of one year each, upon condition there is no default at the commencement
of the extended terms. The extended terms shall be upon conditions, and terms
and rent determined and payable, as mutually agreed upon by Landlord and Tenant
at such time (which shall include a reduction in that component of Rent
attributable to amortization of improvements set forth in Section 1.1(b) above,
which shall have been amortized during the initial Term). Tenant shall exercise
each renewal option by notifying the Landlord in writing at least 90 days prior
to the expiration of the initial term or the first renewal term as the case may
be.
ARTICLE 3. RENT
3.1. Annual Gross Rent and Annual Base Rent. Tenant agrees to pay to the
order of Landlord, without demand, set-off or deduction during the Term, the
Annual Base Rent, in an amount equal to the sum of the Annual Gross Rent,
specified in Section 1.1(b), and Tenant's Proportionate Share of Operating Costs
in Excess of the Operating Stop (as defined in Sections 1.1(p) and Section 3.2,
below). The Annual Gross Rent shall be due and payable in twelve (12) equal
monthly installments, in advance, commencing on the Commencement Date and
continuing on the first day of each and every subsequent calendar month during
the Term, in the amount as scheduled in Section 1.1(b); provided, however, that
the installment of the Annual Gross Rent payable for the first full calendar
month following the Commencement Date (and if the Commencement Date occurs on a
date other than on the first day of a calendar month, the installment of Annual
Gross Rent prorated from such date until the first day of the following month)
shall be due and payable at the time of execution and delivery of this Lease.
Tenant shall pay, as Additional Rent, all other sums due under this Lease.
Tenant shall pay the Annual Gross Rent, Tenant's Proportionate Share of
Operating Expenses in Excess of the Operating Stop, and all other Additional
Rent by good check or in lawful currency of the United States of America. All
forms of Rent due under this Lease shall be paid to Landlord at c/o Echelon Real
Estate Services, Inc., 00000 Xxxxxxxx Xxxxxxxxx, Xxx 00, Xxxxxxx, XX 00000, or
such other location as Landlord may designate in writing from time to time.
3.2. Tenant's Proportionate Share of Operating Costs in Excess of the
Operating Stop3.2. Tenant's Proportionate Share of Operating Costs in Excess of
the Operating Stop.
(a) For the purpose of this Lease, the term "Operating Costs" shall mean
the total cost and expense (as hereinafter defined), incurred by Landlord
during any calendar year in owning, operating, managing, and maintaining
and repairing the Building, including, if the Rentable Area of the Building
is less than ninety-five percent (95%) occupied, all additional costs and
expenses of operation, management and maintenance of the Building which
Landlord determines that it would have paid or incurred during any calendar
year in which ninety-five percent (95%) of the rentable area of the
Building was occupied; (provided, however, if during any calendar year, the
total Operating Costs charged to tenants as "grossed up" exceeds 100
percent of the actual operating expenses paid by Landlord, then the amount
in excess of 100 percent due to such "grossing up" shall be returned to
such tenants according to their pro rata shares). Only those component
expenses that are affected by variations in occupancy levels shall be
grossed up. The items and charges comprising Operating Costs shall
specifically include, without limitation:
(i) landscaping and exterior pest control;
(ii) maintenance (including janitorial costs), repair and replacement
costs of the Buildings, and the cost of supplies, tools, materials, and
equipment for Buildings repairs and maintenance that, under GAAP, would
not be capitalized;
(iii) exterior window washing;
(iv) the cost of personnel (including a property manager and employees
supervised and reporting to such manager) necessary or convenient to
implement the services specified in this Lease, with all customary
employment and normal retirement benefits incident thereto, including
without limitation, pension and medical and life insurance benefits, and
security personnel, if such personnel are employed; all services,
supplies, repairs, replacements, rents, or other expenses for
maintaining, managing and operating the Buildings including parking and
common areas;
(v) the cost of any capital equipment and improvements (including, but
not limited to, the heating, ventilating and air-conditioning system
serving the Buildings) and of the installation thereof that (1) are
primarily for the purpose of safety, saving energy, or reducing Operating
Costs of the Buildings or (2) may be required by a governmental law or
regulation not previously applicable to the Buildings or not in effect at
the time when it was constructed or (3) as may be required to comply with
the terms and provisions of the Americans with Disabilities Act ("Act")
and its regulations, to the extent the same were in effect as of the
Commencement Date but not enforced prior to the Commencement Date, (the
cost of such capital improvement items and installation shall be
amortized over such reasonable periods as Landlord shall determine,
together with interest on the unamortized amount at a fluctuating rate
per annum that is at all times equal to the prime interest rate for Chase
Manhattan Bank, or if unavailable, CitiBank or other similar banking
institution, as reported from time to time in the money rates column in
The Wall Street Journal);
(vi) all real property taxes and current installments of special
assessments which become due during the Term (and any tax or assessment
to the extent levied or assessed in lieu thereof) (with appropriate
proration for any partial calendar year) and all reasonable real estate
tax consultant expenses and attorneys' fees incurred for the purpose of
maintaining an equitable assessed valuation of the Leased Premises, AND
all current assessments levied by any property owner's association
governing and maintaining the land on which the Building is located; and
(vii) all insurance premiums Landlord is required to pay, including
public liability insurance and property damage and other insurance as is
customary for similar projects located in the Alachua area, with respect
to the Building; and,
(viii) an annual management fee equal to four percent (4%) of the Annual
Base Rent, payable in equal monthly installments of one twelfth of the
estimated annual fee, to be paid concurrently with the Tenant's payment
of its share of the remaining Operating Costs.
The term "Operating Costs" shall not include the following: repairs,
restoration or other work occasioned by fire, wind, the elements or other
casualty; income, capital stock, estate, inheritance and franchise taxes of
Landlord; expenses incurred in leasing to or procuring of lessees, leasing
commissions, advertising expenses and expenses for the renovating of space
for new lessees; interest or principal payments on any mortgage or other
indebtedness of Landlord; any depreciation allowance or expense (except as
expressly permitted hereinabove); and operating expenses which are the
responsibility of Tenant; ad valorem taxes and other taxes on the personal
property of Tenant located within the Leased Premises, to the extent the
same has not been paid for by Tenant directly.
Landlord shall have the right with regard to any and all management and
maintenance obligations of Landlord under this Lease, to contract with such
person(s) or entity or entities for the performance and accomplishment of
such of the obligations as Landlord shall deem proper, including entities
in which Landlord may hold an ownership or other interest, provided that
such entities charge the same competitive amounts as if this were a
third-party arms' length transaction. Landlord may incur certain operating,
management and maintenance obligations, costs and expenses pertaining to
the Leased Premises, together with or in combination with Landlord's
operations, repair, management and maintenance of other properties located
in the same development park or project. To the extent such costs and
expenses are shared costs or jointly billed to Landlord, Landlord agrees
that it shall apportion the costs and expenses among the Leased Premises
and the other properties subject to such services, repair or maintenance in
a fair and equitable fashion.
(b) The parties each acknowledge that the Annual Gross Rent specified in
Section 3.1 above does not provide for escalating operating and maintenance
expenses, real estate taxes and utility costs which shall hereafter affect
the Leased Premises or the Building, in excess of an amount equal to $5.85
per rentable square foot ("Operating Stop"). Accordingly, Tenant shall pay
to Landlord, Tenant's Proportionate Share of the Operating Costs in excess
of the Operating Stop, as additional rent ("Additional Rent"), which amount
due shall be computed by multiplying Landlord's Operating Costs for the
calendar Year in question by Tenant's Proportionate Share, and deducting
therefrom an amount obtained by multiplying $5.85 by the total number of
rentable square feet in the Leased Premises. At Landlord's option, Tenant's
Proportionate Share of the Operating Costs in Excess of the Operating Stop
shall be paid by Tenant in monthly installments in such amounts as are
estimated and billed by Landlord at the beginning of each twelve (12) month
period commencing and ending on dates designated by Landlord, each
installment being due on the first (1st) day of each calendar month. Within
one hundred twenty (120) days, after the end of each calendar year, the
monthly installments paid or payable shall be adjusted between Landlord and
Tenant in accordance with the actual Operating Costs.
(c) Within one hundred twenty (120) days following the end of each year, or
as soon as reasonably practical, Landlord shall deliver Tenant an annual
itemized statement for Tenant's Proportionate Share of the Operating Costs
in Excess of the Operating Stop, certified by Landlord or its accountant
showing in reasonable detail the total Operating Costs actually incurred
for the preceding year and the method of calculation thereof. If Tenant's
Proportionate Share of the actual Operating Costs in Excess of the
Operating Stop exceeds the total of the estimated monthly payments made by
Tenant for such year, Tenant shall pay Landlord the amount of the
deficiency within thirty (30) days of the receipt of the statement. If
Tenant's Proportionate Share of the actual Operating Costs in Excess of the
Operating Stop is less than the total of the estimated monthly payments
made by Tenant for such year, then Landlord shall credit Tenant's account
(or, if at the end of the term of this Lease, pay Tenant) the amount of the
credit within thirty (30) days of the receipt of the statement. The
obligations of Tenant and Landlord to make payment adjustment required
under this Section shall survive the termination of this Lease. Failure of
Landlord to provide such statement within the time prescribed shall not
relieve Tenant of its obligations hereunder.
(d) Notwithstanding any other provision in this Lease, during the year in
which the Lease terminates, Landlord, prior to the termination date, shall
have the option to invoice Tenant for Tenant's Proportionate Share of the
Operating Costs in Excess of the Operating Stop based upon the previous
year's Operating Costs. Tenant's Proportionate Share of Operating Costs in
Excess of the Operating Stop in any Year during the Lease Term having less
than 365 days shall be appropriately prorated. If this Lease shall
terminate on a day other than the last day of a calendar year, the amount
of any Additional Rent payable by Tenant applicable to the year in which
such termination shall occur shall be pro rated on the ratio that the
number of days from the commencement of the calendar year to and including
the termination date bears to 365. The obligations of Tenant and Landlord
to make payment adjustment required under this Section shall survive the
termination of this Lease.
3.3. Late Payment Charge. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Rent and other sums due hereunder after the expiration of
any applicable grace period will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of which will be extremely difficult to
ascertain. Accordingly, other remedies for nonpayment of Rent notwithstanding,
and except as expressly provided herein, in the event any installment payment of
Annual Base Rent due Landlord hereunder shall not be paid within ten (10) days
after the due date, Tenant shall pay Landlord a late payment fee of five percent
(5%) of the unpaid past due amount, in addition to such other amounts owed under
this Lease. In addition, Tenant shall pay Landlord interest on any delinquent
payment due Landlord hereunder at the highest rate permitted by Florida Law, as
provided in Chapter 687, Florida Statutes ("Default Rate"); provided that
interest shall not be payable on late charges incurred by Tenant or on any
amounts upon which late charges are paid by Tenant to the extent such interest
would cause the total interest to be in excess of that legally permitted.
3.4. Increase in Insurance Premiums. If an increase in any insurance
premiums paid by Landlord for the Building is caused by Tenant's use of the
Leased Premises, or if Tenant vacates the Leased Premises and causes an increase
in such premiums, then Tenant shall pay as Additional Rent the amount of such
increase to Landlord.
3.5. Security Deposit. Upon the full execution of this Lease and unless
waived by Landlord in writing, Tenant shall pay to Landlord a security deposit
in the amount of $0. The security deposit shall be held by Landlord for the
performance of Tenant's covenants and obligations under this Lease. It being
expressly understood that the security deposit shall not be considered an
advance payment of rental or a measure of Landlord's damage in case of default
by Tenant. Upon the occurrence of any event of default by Tenant or breach by
Tenant of Tenant's covenants under this Lease, Landlord may, from time to time,
without prejudice to any other remedy, use the security deposit to the extent
necessary to make good any arrears of rent, or to repair any damage or injury,
or pay any expense or liability incurred by Landlord as a result of the event of
default or breach of covenant, and any remaining balance of the security deposit
shall be returned by Landlord to Tenant upon termination of this Lease. If any
portion of the security deposit is so used or applied, Tenant shall upon ten
days written notice from Landlord, deposit with Landlord by cash or cashier's
check an amount sufficient to restore the security deposit to its original
amount.
3.6. Holding Over. In the event that Tenant does not vacate the Leased
Premises upon the expiration or termination of this Lease and continues to hold
over in possession of the Leased Premises without the written consent of
Landlord, Tenant shall be a tenant at will for the holdover period and all of
the terms and provisions of this Lease shall be applicable during that period,
including the obligation to pay Rent, except that Tenant shall pay Landlord as
an installment of the Annual Base Rent for the period of such holdover an amount
equal to two times (200%) the Annual Base Rent which would have been payable by
Tenant had the holdover period been a part of the original term of this Lease.
The rental payable during the holdover period shall be payable to Landlord on
demand.
3.7. Sales Tax. In addition to the Annual Gross Rent and the Additional
Rent to be paid by Tenant hereunder, Tenant shall be liable and pay to Landlord
all rental, sales and use taxes, if any, levied or imposed by any city, state,
county or other governmental body having authority, such payments to be in
addition to all other payments required to be paid to Landlord by Tenant under
the terms of this Lease. Any such payment shall be paid concurrently with the
payment of the Rent or other charge upon which the tax is based as set forth
above.
3.8. Rights to Additional Rent. Landlord shall have the same rights and
remedies with respect to Additional Rent as with respect to Fixed Annual Net
Rent.
ARTICLE 4. OCCUPANCY AND USE
4.1. Use. Tenant warrants and represents to Landlord that the Leased
Premises shall be used and occupied solely for the purposes set forth in Article
1 and for no other purposes whatsoever. Notwithstanding the foregoing, Tenant
shall not use the Leased Premises in violation of any exclusive uses heretofore
granted to other tenants in the Building. Landlord and Tenant acknowledge and
agree that Tenant's utilization of the Leased Premises for its permitted Use
does not violate any such exclusive use. Tenant shall occupy the Leased
Premises, conduct its business and control its agents, employees, invitees and
visitors (to the extent such invitees and visitors are within the Leased
Premises) in such a manner as is lawful, reputable and will not create a
nuisance. Tenant shall not permit any operation which emits any excessive or
offensive odor or matter which intrudes into other portions of the Building, or
outside of the Leased Premises, use any apparatus or machine which makes undue
noise or causes undue vibration in any portion of the Building or otherwise
materially interfere with, annoy or disturb any other lessee in its normal
business operations or Landlord in its management of the Building. Tenant shall
neither permit any waste on the Leased Premises nor allow the Leased Premises to
be used in any way which would, in the reasonable opinion of Landlord, be extra
hazardous on account of fire or which would in any way increase or render void
the fire insurance on the Building. If any governmental license or permit shall
be required for the proper and lawful conduct of Tenant's business in the Leased
Premises, Tenant shall, at its expense, duly procure and thereafter maintain
such license or permit and shall at all times comply with the terms and
conditions of same. Tenant shall not at any time knowingly suffer the Leased
Premises to be used or occupied in violation of (i) the Certificate of Occupancy
for the Leased Premises or for the Building, (ii) any of the provisions of this
Lease, or (iii) zoning ordinances, or (iv) Tenant's permits, or (v) any laws,
ordinances, orders, rules or regulations of governmental and quasi governmental
authorities having jurisdiction over the Building, or the operations or business
of Tenant.
4.2. Signs. Except as expressly permitted hereinafter, Tenant shall not
place any signs or other advertising matter or material on the exterior of the
Building, anywhere upon the Common Areas, or in any portion of the interior of
the Leased Premises which is visible beyond the Leased Premises, except those
signs submitted to Landlord in writing and approved by Landlord in writing, and
which signs are in conformance with Landlord's sign criteria established for the
Building. Landlord shall provide, at Landlord's expense, a directory in the
lobby of the Building listing all Building tenants, but shall have no obligation
to list any assignees or subtenants. If any prohibited sign, advertisement or
notice is exhibited by Tenant, Landlord shall have the right to remove the same,
and Tenant shall pay upon demand any and all expenses incurred by Landlord in
such removal, together with interest thereon at the Default Rate.
4.3. Compliance with Laws, Rules and Regulations. Tenant, at Tenant's sole
cost and expense, shall comply with all present and future laws, ordinances,
orders, and rules and regulations of all state, federal, municipal, and local
governments, departments, commissions, and boards having jurisdiction over the
Leased Premises, Tenant's business, or any activity or condition on or about the
Leased Premises, including, without limitation, all Environmental Laws and any
other laws relating to the improvements on the Leased Premises or the air, soil
or groundwater in and around the Leased Premises (collectively, the "Laws").
Tenant warrants that its business and all activities to be conducted or
performed in, on, or about the Leased Premises shall comply with all of the
Laws. Tenant agrees to change, reduce, or stop any such activity, or install
necessary equipment, safety devices, pollution control systems, or other
installations at any time during the Term hereof to so comply. Without
limitation to the foregoing, Tenant agrees:
(a) If, during the Term hereof, Landlord or Tenant is required to alter,
convert, or replace the HVAC system serving the Leased Premises in order to
comply with any of the Laws concerning indoor air pollution or quality, or
in order to meet any applicable limitation on, standard for, or guideline
relating to indoor air quality or the emission of any indoor air pollutant,
including, without limitation, those adopted by the Occupational Safety and
Health Administration, the American Society of Heating, Refrigeration, and
Air Conditioning Engineers, or the Environmental Protection Agency, Tenant
acknowledges and agrees that such costs of any such conversion or
replacement, including without limitation, the purchase and installation of
new equipment, and the alteration of existing HVAC equipment in the Leased
Premises to accommodate any new equipment, shall either be paid by Tenant
or shall be includable in the Operating Costs.
(b) Tenant covenants and agrees, at its sole cost and expense, to comply
with Laws regarding the collection, sorting, separation, and recycling of
waste products, garbage, refuse, and trash. Tenant shall sort and separate
such waste products, garbage, refuse, and trash into such categories as
provided by law. Each separately sorted category of waste products,
garbage, refuse, and trash shall be placed in separate receptacles
reasonably approved by Landlord. Such separate receptacles may, at
Landlord's option, be removed from the Leased Premises in accordance with a
collection schedule prescribed by law. Landlord reserves the right to
refuse to collect or accept from Tenant any waste products, garbage,
refuse, or trash that is not separated and sorted as required by law, and
to require Tenant to arrange for such collection at Tenant's sole cost and
expense, utilizing a contractor satisfactory to Landlord. Tenant shall pay
all costs, expenses, fines, penalties, or damages that may be imposed on
Landlord or Tenant by reason of Tenant's failure to comply with the
provisions of this Section, and, at Tenant's sole cost and expense, shall
indemnify, defend, and hold Landlord harmless (including legal fees and
expenses) from and against any actions, claims, and suits arising from such
noncompliance, utilizing counsel reasonably satisfactory to Landlord.
Landlord shall not be responsible for collection, storage, transportation
or disposal of any hazardous waste as defined under Environmental Law and
Tenant shall be solely responsible for such costs.
(c) Tenant will comply with the reasonable rules and regulations of the
Building adopted from time to time by Landlord, a current copy of which are
set forth on Exhibit "C" attached to this Lease. Landlord shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed necessary for the safety, care,
cleanliness, preservation of good order and operation or use of the
Building or the Leased Premises. The Rules and Regulations, as changed in
accordance with this section from time to time, are hereinafter called the
"Rules and Regulations."
4.4. Warranty of Possession. Landlord warrants that it has the right and
authority to execute this Lease. Landlord covenants and agrees that, upon
Tenant's paying on a monthly installment basis the Annual Gross Rent, Tenant's
Proportionate Share of Operating Expenses in Excess of the Operating Stop, and
any other Additional Rent required hereunder and performing all of the other
covenants herein on its part to be performed, Tenant shall and may peaceably and
quietly hold and enjoy the Leased Premises without hindrance by Landlord or
persons claiming through or under Landlord (including, without limitation, any
mortgagee of Landlord), subject to the terms, covenants and conditions of this
Lease. Landlord shall not be responsible for the acts or omissions of any other
lessee or third party not claiming through or under Landlord that may interfere
with Tenant's use and enjoyment of the Leased Premises.
4.5. Inspection. Upon reasonable prior notice, Landlord and Landlord's
agents shall have the right during Normal Business Hours to enter the Leased
Premises, to examine the same, and to show them to prospective purchasers or
lenders of the Building, and to examine and correct any environmental
conditions. Upon reasonable prior notice (except in the case of an emergency),
Landlord and Landlord's agents shall have the right outside of Normal Business
Hours to enter the Leased Premises to make such repairs or alterations as
required under this Lease or as Landlord may reasonably deem necessary or
desirable, and Landlord shall be allowed to take all material into and upon the
Leased Premises that may be required therefore without the same constituting an
eviction of Tenant in whole or in part, and the Rent reserved herein shall in no
wise xxxxx while said repairs or alterations are being made; provided, however,
if the necessity of such repairs do not arise due to the fault of Tenant and
Tenant is prevented from operating in the Leased Premises in whole or in part,
then in such event the Annual Gross Rent and all other charges shall be
proportionately abated during said period. During the twelve (12) months prior
to the expiration of the Term hereof, upon reasonable prior notice, Landlord may
during Normal Business Hours exhibit the Leased Premises to prospective tenants.
Nothing herein contained, however, shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, for the care,
maintenance or repair of the Leased Premises or the Building or any part
thereof, except as otherwise herein specifically provided. Notwithstanding the
foregoing, no prior notice shall be required to permit Landlord or its
authorized agents to enter the Leased Premises to supply janitorial service or
any other service to be provided by Landlord pursuant to this Lease; provided,
however, that with respect to any entry not pursuant to reasonable prior notice
(other than the supply of janitorial service), Landlord shall promptly provide
notice that it or its authorized agents entered the Leased Premises, setting
forth the date, time, and purpose of the entry. Landlord shall at all times have
and retain a key with which to unlock all of the doors in, upon and about the
Leased Premises. Tenant shall not change Landlord's lock system unless Tenant
provides Landlord with a pass key, or in any other manner prohibit Landlord from
entering the Leased Premises. Landlord shall have the right to use any and all
means which Landlord may deem proper to open any door in an emergency without
liability therefor.
ARTICLE 5. UTILITIES AND SERVICE
5.1. Building Services. Landlord shall provide the Leased Premises with
trash removal service, elevator service, and with water and electricity for
lighting, receptacles for the operation of office machines and other incidental
uses during the term of this Lease. Tenant shall pay all telephone charges for
service to the Leased Premises. Landlord shall furnish Tenant hot and cold water
at those points of supply provided for general use of other tenants in the
Building. In addition, Landlord shall furnish central heating and air
conditioning in season during Normal Business Hours, and at temperatures and in
amounts as are in accordance with the standards of office buildings in the
Alachua County area, subject, however, to being in compliance with any
governmental regulations. Landlord shall also provide routine maintenance,
painting and electric lighting service for all public areas and special service
areas of the Building in the manner and to the extent deemed by Landlord to be
standard and in accordance with the standards of first class office buildings in
the Alachua County area. Landlord may, in its sole discretion, provide
additional services not enumerated herein. Landlord will not be liable to Tenant
or any other person, for direct or consequential damage, or otherwise, for any
failure to supply any heat, air conditioning, elevator, cleaning, lighting or
security or for any surges or interruptions of electricity, or other service
Landlord has agreed to supply during any period when Landlord uses reasonable
diligence to supply such services. Landlord reserves the right temporarily to
discontinue such services, or any of them, at such times as may be necessary by
reason of accident, repairs, alterations or improvements, strikes, lockouts,
riots, acts of God, governmental preemption in connection with a national or
local emergency, any rule, order or regulation, conditions of supply and demand
which make any product unavailable, Landlord's compliance with any mandatory or
voluntary governmental energy conservation or environmental protection program,
or any other happening beyond the control of Landlord. Landlord will not be
liable to Tenant or any other person or entity for direct or consequential
damages resulting from the admission to or exclusion from the Building of any
person. Landlord will not be liable for damages to persons or property or for
injury to, or interruption of, business for any discontinuance permitted under
this Section, nor will such discontinuance in any way be construed as an
eviction of Tenant or cause an abatement of rent or operate to release Tenant
from any of Tenant's obligations under this Lease. Landlord reserves the right
from time to time to make changes in the utilities and services provided by
Landlord to the Building provided such changes do not detract from the level of
the existing utilities and services.
5.2. Security and Theft or Burglary. Landlord shall not be liable to Tenant
for losses to Tenant's property or personal injury caused by criminal acts or
entry by unauthorized persons (other than the negligence or wilful misconduct of
Landlord, or Landlord's agents or contractors) into the Leased Premises or the
Building.
5.3. Janitorial Service. Landlord shall keep the Leased Premises and the
exterior and public areas of the Building cleaned and well maintained. Without
limiting the foregoing, Landlord shall provide, and shall include the cost
thereof in the Operating Costs, cleaning and janitorial services and window
cleaning services of a nature and of a quality equal to that of other general
office buildings in the Alachua County area, and the replacement of building
standard light bulbs and ballasts. Landlord shall not provide additional or
extra janitorial service to kitchens or storage areas included in the Leased
Premises.
5.4. Excessive Utility Consumption. Tenant shall pay all utility costs and
additional improvement costs occasioned by high electrical consumption
electrodata processing machines, advanced telecommunications equipment,
computers and other equipment of high electrical consumption, including without
limitation, the cost of installing, servicing and maintaining any special or
additional inside or outside riders, wiring or lines, meters or submeters,
transformers, poles, or air conditioning costs.
5.5. Window Covering. Landlord, at its option, may furnish and install
window coverings on all exterior windows to maintain a uniform exterior
appearance. Tenant shall not remove or replace these window coverings or install
any other window covering which would affect the exterior appearance of the
Building.
5.6. Charge for Service. All costs of Landlord for providing the services
set forth in this Article 5 (except those charges paid by Tenant pursuant to
Section 5.4) shall be subject to the Additional Rent provisions in Section 3.2.
ARTICLE 6. REPAIRS AND MAINTENANCE
6.1. Landlord Repairs. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Leased
Premises or the Building during the term of this Lease except as are set forth
in this Lease. Landlord shall maintain only (a) the roof, structure, columns,
exterior walls and exterior windows, foundation, interior load-bearing walls and
demising walls and floors, in sound, watertight condition and good state of
repair; and (b) the elevators, and all Building systems and facilities
including, but not limited to, the base building electrical, water, gas, sewer,
life safety, mechanical and HVAC (including the Leased Premises' air handling
equipment, but excluding separate package air-conditioning systems specially
installed by or for Tenant for Tenant's sole use, if any) supplied to the Leased
Premises in good operating condition, maintenance and repair; and (c) the
sidewalks, curbs, driveways, parking areas (if any) and landscaping in good
condition and repair, open and free of debris or other obstruction. The Landlord
will also keep the public portions of the Building, toilets and common areas in
clean, sightly, good operating condition and repair. Landlord's cost of
maintaining and repairing the items set forth in this section are subject to the
Additional Rent provisions in Section 3.2. Landlord shall not be liable to
Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any abatement or reduction of
rent by reason of any repairs, alterations or additions made by Landlord under
this Lease. Tenant understands and agrees that Landlord may, at any time or from
time to time during the term of this Lease, perform substantial renovation work
in and to the Building or the mechanical systems serving the Building (which
work may include, but need not be limited to, the repair or replacement of the
Building's exterior facade, exterior window glass, elevators, electrical
systems, air conditioning and ventilating systems, plumbing system, common
hallways, or lobby), any of which work may require access to the same from
within the Leased Premises. Tenant agrees that:
(a) Landlord shall have access to the Leased Premises at all reasonable
times, upon reasonable notice, for the purpose of performing such work;
and
(b) Landlord shall incur no liability to Tenant, nor shall Tenant be
entitled to any abatement of rent on account of any noise, vibration,
or other disturbance to Tenant's business at the Leased Premises
(provided that Tenant is not denied access to said Leased Premises)
which shall arise out of said access by Landlord or by the performance
by Landlord of the aforesaid renovations at the Building.
Landlord shall use reasonable efforts (which shall not include any obligation to
employ labor at overtime rates) to avoid disruption of Tenant's business during
any such entry upon the Leased Premises by Landlord. Landlord shall not be
liable to Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any abatement or reduction of
rent by reason of any repairs, alterations or additions made by Landlord under
this Lease.
6.2. Tenant Repairs. Tenant shall not suffer any damage, waste or
deterioration to occur to the Leased Premises and shall maintain the interior
non-structural portions of the Leased Premises and the fixtures and
appurtenances therein in good and sightly condition, and shall make all repairs
necessary to keep them in good working order and condition (including structural
repairs when those are necessitated by the negligence or willful misconduct of
Tenant or its agents, employees, invitees, licensees or visitors) ordinary wear
and tear and Acts of God excepted, and subject to the provisions of Articles 8
and 11 hereof. For purposes of this Lease, ordinary wear and tear shall not
include any environmental contamination in violation of any Environmental Law.
All repairs, replacements and restorations made by Tenant shall be equal in
quality and class to the originals thereof and shall be completed in compliance
with applicable law. Tenant covenants that any repairs or replacements (as the
case may be) required by the terms of this Lease to be made by Tenant shall be
commenced and completed expeditiously; provided, however, if Tenant fails to
make the repairs or replacements, in an emergency promptly after notice, or
otherwise fails to make the repairs or replacements within thirty (30) days
after notice or in the event that such repair or replacement is of such a nature
as cannot with diligent effort be cured within said thirty (30) day period,
Tenant shall have failed to commence to cure within said period or failed to
diligently prosecute remedial efforts to completion within a reasonable time
thereafter, then Landlord may, at its option, make the repairs or replacements,
and the cost of such repairs or replacements shall be charged to Tenant as
Additional Rent and shall become payable by Tenant with the payment of the rent
next due hereunder.
6.3. Request for Repairs. Tenant must notify Landlord of its request for
repairs or maintenance to the Leased Premises that are the responsibility of
Landlord pursuant to any provision of this Lease and such request must be made
to Landlord at the address provided for in the notice section.
6.4. Tenant Damages. At the termination of this Lease, by lapse of time or
otherwise, Tenant shall deliver the Leased Premises to Landlord in as good
condition as existed at the Commencement Date of this Lease, ordinary wear and
tear excepted. The cost and expense of any repairs necessary to restore the
condition of the Leased Premises shall be borne by Tenant. For purposes of this
Lease, ordinary wear and tear shall not include any environmental contamination
in violation of any Environmental Law.
ARTICLE 7. ALTERATIONS AND IMPROVEMENTS
7.1. Leasehold Improvements. If construction to the Leased Premises is to
be performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Leased Premises in
accordance with plans and specifications agreed to by Landlord and Tenant.
Within seven days of receipt of plans and specifications, Tenant shall execute a
copy of the plans and specifications and, if applicable, change orders setting
forth the amount of any costs to be borne by Tenant. In the event Tenant fails
to execute the plans and specifications and change order within the seven day
period, Landlord may, at its sole option, declare this Lease canceled or notify
Tenant that the Annual Base Rent shall commence on the completion date even
though the improvements to be constructed by Landlord may not be complete. Any
changes or modifications to the approved plans and specifications shall be made
and accepted by written change order or agreement signed by Landlord and Tenant
and shall constitute an amendment to this Lease. Notwithstanding anything
contained herein to the contrary, in the event that Tenant is not in default at
expiration of this Lease, Tenant shall be entitled to keep and remove the
emergency generator installed in the Leased Premises without additional charge
or cost to be paid to Landlord.
7.2. Tenant Alterations. All additions, changes, improvements,
construction, or alterations by Tenant ("Alterations") must be in accordance
with the requirements of this Lease. In the event Tenant undertakes Alterations
following the Effective Date, Tenant must obtain the prior written consent and
approval of Landlord, which consent shall not be unreasonably withheld.
Landlord's approval of any such Alterations may also be conditioned upon
Landlord's approval of plans, contractors, contractor lien indemnification, and
terms of access for construction. Any Alterations to the Leased Premises made by
Tenant (to the extent that they cannot be removed without damage to the Leased
Premises) shall at once become the property of Landlord and shall be surrendered
to Landlord upon the termination of this Lease provided, however, Landlord, at
its option (upon written notice not less than 20 days prior to the end of the
Term or any renewal term), may require Tenant to remove and/or repair any
Alterations in order to restore the Leased Premises to the condition existing at
the time Tenant took possession, all costs of removal and/or repair and
restoration to be borne by Tenant. This clause shall not apply to moveable
equipment (including emergency power generators, autoclaves, water treatment
systems, etc.) or furniture owned by Tenant which may be removed by Tenant at
the end of the term of this Lease if Tenant is not then in default and if such
equipment and furniture are not then subject to any other rights, liens and
interests of Landlord. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
the Alterations and for final approval thereof upon completion and shall cause
the Alterations to be performed in a good and workmanlike manner in accordance
with the requirements of all applicable governmental authorities. All
Alterations shall be diligently performed in a good and workmanlike manner,
using materials and equipment at least equal in quality and class to the
original installations of the Leased Premises.
7.3. Liens. Nothing contained in this Lease shall be construed as a
consent on the part of the Landlord to subject the estate of Landlord to
liability under the Construction's Lien Law of the State of Florida, it being
expressly understood that the Landlord's estate or interest in the Leased
Premises or the Building shall not be subject to such liability, including any
liens of any nature arising by reason of Tenant's construction, alteration,
repair, restoration, replacement or reconstruction of any improvements on the
Leased Premises or by reason of any other act or omission of Tenant (or of any
person claiming by, through or under Tenant). All persons dealing with Tenant
are hereby placed on notice that such persons shall not look to Landlord or to
Landlord's credit or assets (including Landlord's interest in the Leased
Premises or any improvements constructed thereon) for payment or satisfaction of
any obligations incurred in connection with the construction, alteration,
repair, restoration, replacement or reconstruction thereof. Tenant shall
strictly comply with the Construction's Lien law of the State of Florida, as set
forth in Chapter 713, Florida Statutes, including, without limitation, the terms
of Florida Statutes 713.10, pursuant to which Tenant acknowledges Tenant shall
be responsible to provide such notice to any contractor dealing directly or
indirectly with Tenant in performing any such work on or within the Building or
any other area of Landlord's real property. This paragraph shall be construed so
as to prohibit, in accordance with the provisions of Chapter 713, Florida
Statutes, the interest of Landlord in the Leased Premises and Building being
subject to any lien for any improvements made by Tenant or any other person on
the Leased Premises or the Building. Notwithstanding the foregoing, Tenant, at
its expense, shall cause any lien filed against the Tenant's interest under this
Lease, the Leased Premises, the Building for work, services or materials claimed
to have been furnished to or for the benefit of Tenant to be satisfied or
transferred to bond within twenty (20) days after Tenant's having received
notice thereof. In the event that Tenant fails to satisfy or transfer to bond
such claim of lien within said twenty (20) day period, the Landlord may do so
and thereafter charge the Tenant as additional rent, all costs incurred by the
Landlord in connection with the satisfaction or transfer of such claim,
including attorneys' fees plus interest thereon at the Default Rate. Further,
Tenant agrees to indemnify, defend, and save the Landlord harmless from and
against any damage or loss incurred by the Landlord as a result of any such
contractor's Claim of Lien. This Section shall survive the termination of this
Lease.
ARTICLE 8. CASUALTY
8.1. Substantial Destruction. If the Leased Premises shall be substantially
damaged by fire, windstorm, or otherwise during the Lease Term, Landlord shall
have the right to either terminate this Lease, provided that notice thereof is
given to Tenant not later than one hundred twenty (120) days after such damage
or destruction, or to proceed to repair such damage and restore the Leased
Premises to substantially their condition at the time of such damage (but only
to the extent of Landlord's original obligation to construct pursuant hereto and
to the extent only of proceeds received by Landlord from its insurers. Tenant,
at its sole cost and expense, shall repair and restore whatever trade fixtures,
equipment and improvements it had installed prior to the damage or destruction.
The terms "substantially damaged" and "substantial damage," as used in this
Article, shall have reference to damage of such a character as cannot reasonably
be expected to be repaired or such that the Leased Premises cannot be restored
within ninety (90) days after the commencement of construction.
8.2. Partial Destruction. If during the Term, the Leased Premises shall be
partially damaged (as distinguished from "substantially damaged") by fire or
other casualty, Landlord shall forthwith proceed to repair such damage and
restore the Leased Premises to substantially their condition at the time of such
damage (but only to the extent of Landlord's original obligation to construct
pursuant hereto and to the extent only of proceeds received by Landlord from its
insurerers), except Tenant, at its sole cost and expense, shall repair and
restore whatever trade fixtures, equipment and other improvements it had
installed prior to the damage or destruction (but only to the extent of proceeds
received by Tenant from its insurers).
8.3. Abatement of Rent. If the provisions of Subsection 8.1 or 8.2 of this
Article 8 shall become applicable, the Annual Gross Rent and all other charges
specified in this Lease shall be abated or equitably reduced proportionately
during any period in which, by reason of such damage or destruction (i) there is
substantial interference with the operation of the business of Tenant in the
Leased Premises, or (ii) in the case of Section 8.2, Landlord shall fail to make
repairs by reason of the failure to receive insurance proceeds, such abatement
or equitable reduction shall continue for the period commencing with such
destruction or damage and ending with the completion by Landlord of such work of
repair and/or restoration as Landlord is obligated to do. In the event of the
termination of this Lease pursuant to this Section 8, this Lease, and the Term
hereof, shall cease and come to an end as of the date of such damage or
destruction. Any Annual Gross Rent or other charges paid in advance by Tenant
shall be promptly refunded by Landlord.
8.4. Landlord's Limitation of Obligation. Despite anything contained in
this Lease to the contrary, and without limiting Landlord's right or remedies
hereunder:
(a) If damage or destruction occurs to the Leased Premises or any part
thereof by reason of any cause in respect of which there are no
proceeds of insurance available to Landlord, or
(b) If the proceeds of insurance are insufficient to pay Landlord for the
costs of rebuilding or making fit the Leased Premises), or
(c) If any mortgagee or other person entitled to the proceeds of insurance
does not consent to the payment to Landlord of such proceeds for such
purpose, or
(d) If in Landlord's reasonable opinion any such damage or destruction is
caused by any fault, neglect, default, negligence, act, or omission of
Tenant, or those for whom Tenant is in law responsible, or any other
person entering upon the Leased Premises under express or implied
invitation of Tenant,
then Landlord may, without obligation or liability to Tenant, terminate
this Lease on 30 days' written notice to Tenant and all Rent shall be
adjusted as of, and Tenant shall vacate and surrender the Leased Premises
on such termination date.
8.5. Landlord's Right to Terminate. In the event that the Building has been
damaged or destroyed by fire or other casualty to the extent that the cost of
restoration of the Building will exceed a sum constituting sixty percent (60%)
of the total replacement cost thereof, Landlord shall have the right to
terminate this Lease provided that notice thereof is given to Tenant not later
than sixty (60) days after such damage or destruction and Landlord elects not to
restore the Building and terminates all other leases for space in the Building.
ARTICLE 9. INSURANCE
9.1. Tenant's Insurance. Tenant shall, at its sole expense, maintain in
effect at all times during the Term insurance coverage with limits not less than
those set forth below with insurers licensed to do business in the state of
Florida: a) Workers Compensation Insurance - statutory limits as required by
State law, and as same may be amended from time to time; b) Employer's Liability
Insurance - minimum limit $500,000; and c) Commercial General Liability
Insurance, with a combined single limit of $1,000,000 per occurrence and general
aggregate limits of $3,000,000. These policies shall be endorsed to include
Landlord and Landlord's mortgagee, if any, as an additional insured, state that
the insurance is primary over any insurance carried by Landlord, and the
commercial general liability policy shall be written on a standard Insurance
Services Office, Inc. (ISO) policy form with a 1988 or later edition date or its
equivalent. The policy must be written on an occurrence basis and include
Coverage A (Bodily Injury and Property Damage Liability), Coverage B (Personal
and Advertising Injury Liability) and Coverage C (Medical Payments). Upon
Tenant's default in obtaining or delivering the policy or certificate for any
such insurance or Tenant's failure to pay the charges therefor, Landlord may,
upon ten (10) days notice to Tenant, procure or pay the reasonable charges for
any such policy or policies (for not more than a 12 month period) and charge the
Tenant therefor plus interest thereon at the Default Rate as additional rent.
The limits of insurance specified in this Section may be adjusted upward by
Landlord not more than once every three (3) years in the event that Landlord
shall reasonably determine that because of any unexpected rates of inflation the
limits specified offer inadequate protection to Landlord; provided, however, any
such upward adjustment shall not exceed the then coverage customarily maintained
for similar premises in Alachua area.
9.2. Tenant's Personal Property Insurance. Tenant shall at all times during
the term hereof and at its cost and expense, maintain in effect policies of
insurance covering all of Tenant's personal property, trade fixtures and
equipment located in the Leased Premises, in an amount equal to their full
replacement value, providing protection against any peril included within the
standard classification of "Fire and Extended Coverage", together with insurance
against sprinkler damage, vandalism, theft and malicious mischief.
9.3. Landlord's Insurance. Landlord, as a portion of the Operating Costs,
shall maintain at all times during the term of this Lease: a) standard all-risk
fire and casualty insurance, covering the Building in amounts at least equal to
the full replacement cost of the Building at the time in question, but in no
event less than such coverage as is required to avoid co-insurance provisions;
b) comprehensive public liability insurance; (c) employer's liability insurance;
d) worker's compensation insurance in statutory limits; and, e) such other
insurance coverage as is customarily carried in respect of comparable Buildings.
The limits set forth in subsections b, c, and d of this section may be set or
adjusted by Landlord from time to time during the Term hereof to at least such
minimum limits and coverage customarily maintained for similar premises in the
Alachua area.
9.3. General Requirements. All policies of insurance required under this
article shall provide that they will not be cancelled upon less than thirty (30)
days prior written notice to Landlord and Tenant. Tenant shall furnish to
Landlord a certificate or certificates of insurance certifying that the
insurance coverage required is in force, upon request. The coverage shall be
issued by companies licensed to do business in the State of Florida and rated
A:VIII or better in Best's Insurance Guide (or similar rating in an equivalent
publication if no longer published) and shall otherwise be reasonably
satisfactory to the parties. Not less than thirty (30) days prior to expiration
of the coverage, renewal policies or certificates of insurance evidencing
renewal shall be provided. Any insurance required by the terms of this Lease may
be under a blanket policy (or policies) covering other properties of Tenant
and/or its related or affiliated corporations. If such insurance is maintained
under a blanket policy, the respective party shall procure and deliver to the
other party a statement from the insurer or general agent of the insurer setting
forth the coverage maintained and the amount thereof allocated to the risk
intended to be insured hereunder.
ARTICLE 10. INDEMNIFICATION
10.1. Tenant's Indemnification. Tenant shall indemnify, defend and save
Landlord harmless from and against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury and/or
damage to or destruction of property arising from or out of any occurrence in,
upon or at the Leased Premises, or the occupancy or use by Tenant of the Leased
Premises or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, servants, subtenants or
concessionaires. In case Landlord shall be made a party to any such litigation
commenced by or against Tenant, then Tenant shall protect and hold Landlord
harmless and pay all costs and attorney's fees incurred by Landlord in
connection with such litigation, and any appeals thereof.
10.2. Landlord Not Liable. Except for the negligence or intentional
misconduct of Landlord or its agents, employees, invitees, licensees or
visitors, Tenant agrees Landlord shall not be liable to Tenant, Tenant's
employees, agents, invitees, licensees or visitors, or to any other person, for
an injury to person or damage to property on or about the Leased Premises caused
by any act or omission of Landlord, its agents, servants or employees, or of any
other person entering upon the Leased Premises under express or implied
invitation by Tenant, or caused by the improvements located on the Leased
Premises becoming out of repair, the failure or cessation of any service
provided by Landlord (including security service and devices), or caused by
leakage of gas, oil, water or steam or by electricity emanating from the Leased
Premises.
10.3. Landlord's Indemnification.
(a) Landlord shall indemnify, defend and save Tenant harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or
destruction of property arising from or out of any occurrence in, upon or
at the Leased Premises occasioned wholly or in part by any act or omission
of Landlord, its agents, contractors, employees, servants, subtenants or
concessionaires. In case Tenant shall be made a party to any such
litigation commenced by or against Landlord, then Landlord shall protect
and hold Tenant harmless and pay all costs and attorney's fees incurred by
Tenant in connection with such litigation, and any appeals thereof.
(b) Landlord shall indemnify, protect, defend and hold Tenant harmless from
and against any and all claims, demands, losses, liabilities and penalties
(including, without limitation, reasonable attorneys' fees at all trial and
appellate levels, whether or not suit is brought) arising directly or
indirectly from or out of or in any way connected with: (a) the presence of
any Hazardous Substances (as hereinafter defined) in the Building, caused
by the acts of Landlord, its agents or employees; or (b) any violation or
alleged violation of any Environmental Law (as hereinafter defined) in the
Building, caused by the acts of Landlord, its agents or employees.
10.4. Tenant Not Liable. Except for the negligence or intentional
misconduct of Tenant or its agents, employees, invitees, licensees or visitors,
Landlord agrees Tenant shall not be liable to Landlord, Landlord's employees,
agents, invitees, licensees or visitors, or to any other person, for an injury
to person or damage to property on or about the Leased Premises caused by any
act or omission of Tenant, its agents, servants or employees, or of any other
person entering upon the Leased Premises under express or implied invitation by
Tenant.
ARTICLE 11. CONDEMNATION
11.1. Substantial Taking. If, after the Commencement Date and before the
termination of this Lease: (i) any portion of the Leased Premises is taken by
eminent domain or conveyed in lieu thereof; or (ii) as a result of a taking by
eminent domain or the action of any public or quasi-public authority or a
conveyance in lieu thereof, the means of ingress or egress to and from the
Building is so permanently altered as to materially and adversely affect the
flow of traffic in, to, from or about the Building; then, in any of the
foregoing events, the Lease Term shall, at the option of Tenant, cease and
terminate as of the day possession shall be taken by the acting governmental or
quasi-governmental authority (the "Date of Taking"). Such option to terminate
shall be exercisable by Tenant giving written notice to Landlord on or before
thirty (30) days after the Date of Taking, which notice shall provide for a
termination date (the "Termination Date") not later than ninety (90) days after
the Date of Taking and Tenant shall pay Rent up to the Termination Date, and
Landlord shall refund such Annual Gross Rent and other payments as shall have
been paid in advance and which cover a period subsequent to the Termination
Date. In the event Tenant does not terminate this Lease, Landlord shall promptly
and diligently restore the Building and the Leased Premises and the Building and
Common Areas to as near to their condition prior to such taking or conveyance as
is reasonably possible, and, during the course of such restoration, there shall
be a fair and equitable abatement of all Annual Gross Rent and other charges,
taking into account the extent to which Tenant shall be required to close down
all or a portion of its operations until restoration has been completed; and,
after such restoration, there shall be fair and equitable abatement of Annual
Gross Rent and other charges on a permanent basis, taking into account the
reduction in the size of the Leased Premises, reduction in Common Areas, and the
like. If fifty percent (50%) or more of the rentable area in the Building is
taken by eminent domain or conveyed in lieu thereof, then Landlord shall have
the right to terminate this Lease by giving written notice to Tenant on or
before thirty (30) days after the Date of Taking; provided that Landlord also
terminates all Leases for premises within the Building.
11.2. Restoration. If any portion of the Leased Premises shall be so taken
or conveyed and this Lease is not terminated, then the Lease Term shall cease
only with respect to that portion of the Leased Premises so taken or conveyed,
as of the day possession shall be taken, and Tenant shall pay Annual Gross Rent
and all other payments up to that day, with an appropriate refund by Landlord of
such Rent as may have been paid in advance for a period subsequent to the date
of the taking of possession and, thereafter, the Annual Gross Rent and all other
payments shall be equitably adjusted. Landlord shall, at its expense, make all
necessary repairs or alterations so as to constitute the remaining portion of
the Leased Premises a complete architectural unit. It is understood and agreed
that Tenant shall not have the right to claim damages for the value of its
leasehold estate, nor shall Tenant have the right to share in any award granted
to Tenant, nor shall Tenant have the right to claim damages that in any way may
be in derogation of Landlord's award.
ARTICLE 12. ASSIGNMENT OR SUBLEASE
12.1. Landlord Assignment. Landlord shall have the right to sell, transfer
or assign, in whole or in part, its rights and obligations under this Lease and
in the Building. Any such sale transfer or assignment shall operate to release
Landlord from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer, provided such transferee or assignee assumes
such liabilities in writing. The acceptance of rent by any such transferee or
assignee shall constitute assumption of such liabilities.
12.2. Tenant Assignment.
(a) Tenant shall not assign, in whole or in part, this Lease, or allow it
to be assigned, in whole or in part, by operation of law or otherwise or
mortgage or pledge the same, or sublet the Leased Premises, in whole or in
part, without the prior written consent of Landlord, which shall not
unreasonably be withheld (except that the Lease may be assigned without
consent to a company which has acquired all or substantially all of the
stock or assets of Tenant and further provided that the acquiring company
has expressly assumed all obligations of tenant under this lease), and in
no event shall any such assignment or sublease ever release Tenant or any
guarantor from any obligation or liability hereunder.
(b) If Tenant desires to assign or sublet all or any part of the Leased
Premises, it shall so notify Landlord at least thirty days in advance of
the date on which Tenant desires to make such assignment or sublease.
Tenant will simultaneously with such request give Landlord (i) the name and
address of the proposed assignee or subtenant, (ii) the terms of the
proposed assignment or sublease, (iii) reasonably satisfactory and complete
information about the nature, financial condition, business and business
history of the proposed assignee or subtenant, and its proposed initial use
of the Leased Premises, and (iv) a fee in the amount of One Thousand and
No\100 Dollars ($1,000.00) to reimburse Landlord for all its expenses
including, without limitation, reasonable attorneys fees associated with
Tenant's request to assign, sublet or otherwise encumber the Leased
Premises under the terms of the Lease. The consent by Landlord to any
assignment or subletting shall not constitute a waiver of the necessity for
such consent to any subsequent assignment or subletting. Within fifteen
days after Landlord's receipt of Tenant's proposed assignment or sublease
and all required information concerning the proposed sublessee or assignee,
Landlord shall have the following options: (1) as to a requested sublease
with a sublease term that coincides with ninety-five percent or more of the
remaining term of this Lease, cancel this Lease as to the Leased Premises
or portion thereof proposed to be sublet (provided, however, that Tenant
shall have ten (10) days to nullify Landlord's cancellation of this Lease
by written notice to Landlord that it is withdrawing the sublease request);
(2) consent to the proposed assignment or sublease, and, if the rent due
and payable by any assignee or sublessee under any such permitted
assignment or sublease (or a combination of the rent payable under such
assignment or sublease plus any bonus or any other consideration or any
payment incident thereto) exceeds the rent payable under this Lease for
such space, Tenant shall pay to Landlord all such excess rent and other
excess consideration, less Tenant's reasonable expenses incurred in
connection with such subletting, including without limitation, reasonable
brokerage commissions, improvements allowances, and alteration costs,
within ten days following receipt thereof by Tenant; or (3) refuse, in
Landlord's reasonable judgment, to consent to the proposed assignment or
sublease, which refusal shall be deemed to have been exercised unless
Landlord gives Tenant written notice providing otherwise. Upon the
occurrence of an event of default, if all or any part of the Leased
Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or provided by law may, at its option,
collect directly from the assignee or sublessee all rents becoming due to
Tenant by reason of the assignment or sublease. Any collection directly by
Landlord from the assignee or sublessee shall not be construed to
constitute a novation or a release of Tenant or any guarantor from the
further performance of its obligations under this Lease. Tenant shall
deliver to Landlord within twenty (20) days after any assignment or
subletting a copy of the executed assignment or sublease agreement. Any
assignment or sublease shall provide that the assignee or subtenant shall
comply with all applicable terms and conditions of this Lease to be
performed by Tenant hereunder. The permitted use of the Leased Premises
shall not change in connection with any assignment or sublease.
ARTICLE 13. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
13.1. Rights of Mortgagee. Tenant hereby acknowledges and agrees that this
Lease is and shall be subject and subordinate to the lien of any existing or
future mortgage or deed of trust encumbering all or any part of the Building, or
any part thereof. Notwithstanding the foregoing, Tenant shall, within 10 days of
Landlord's request, execute such subordination instruments as may be requested
by a lienholder to document the subordination of this Lease to any mortgage lien
encumbering the Building or any part thereof. Furthermore, Tenant will, upon
request of the lienholder, be a party to an agreement acknowledging and agreeing
that, if such lienholder succeeds to the interest of Landlord, Tenant will
recognize said lienholder (or successor in interest of the lienholder) as its
landlord under the terms of this Lease. Tenant hereby constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such instrument on behalf
of Tenant, provided a copy of such instrument is promptly delivered to Tenant.
ARTICLE 14. LANDLORD'S LIEN
14.1. Liens. Nothing contained in this Lease shall be construed as a
consent on the part of the Landlord to subject the estate of Landlord to
liability under the Construction Lien Law of the State of Florida, it being
expressly understood that the Landlord's estate shall not be subject to such
liability. Tenant shall strictly comply with the Construction Lien law of the
State of Florida, as set forth in Chapter 713, Florida Statutes. Notwithstanding
the foregoing, Tenant at its expense, shall cause any lien filed against the
Tenant's interest under this Lease, the Leased Premises, the Building or the
Common Area for work, services or materials claimed to have been furnished to or
for the benefit of Tenant (other than on account of the Landlord's Work) to be
satisfied or transferred to bond within twenty (20) days after Tenant's having
received notice thereof. In the event that Tenant fails to satisfy or transfer
to bond such Claim of Lien within said twenty (20) day period, the Landlord may
do so and thereafter charge the Tenant as additional rent, all costs incurred by
the Landlord in connection with the satisfaction or transfer of such claim,
including attorneys' fees plus interest thereon at the Default Rate. Further,
the Tenant agrees to indemnify, defend, and save the Landlord harmless from and
against any damage or loss incurred by the Landlord as a result of any such
mechanic's Claim of Lien. This Section shall survive the termination of this
Lease.
ARTICLE 15. DEFAULT AND REMEDIES
15.1. Default by Tenant. The following shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any installment
of Annual Gross Rent, any installment of Tenant's Proportionate Share of
Operating Costs in Excess of the Operating Stop or reconciliation thereof, any
other Additional Rent, or any other charge or assessment against Tenant pursuant
to the terms hereof when due and shall not cure such failure within ten (10)
days of such due date; (ii) Tenant shall fail to comply with any term,
provision, covenant, agreement or warranty made under this Lease by Tenant,
other than the payment of any installment of Annual Gross Rent, any installment
of Tenant's Proportionate Share of Operating Costs in Excess of the Operating
Stop or reconciliation thereof, any other Additional Rent or other charge or
assessment payable by Tenant, and shall not cure such failure within thirty (30)
days after written notice thereof to Tenant; (iii) a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
of all or substantially all of Tenant's assets is filed against Tenant in any
court pursuant to any statute either of the United States or of any state and
Tenant fails to secure or diligently proceed to secure a discharge thereof
within sixty (60) days, or if Tenant voluntarily files a petition in bankruptcy
or makes an assignment for the benefit of creditors or petitions for or enters
into an arrangement with creditors; or (iv) Tenant shall do or permit to be done
anything which creates a lien upon the Leased Premises for work performed by,
through or under Tenant which Tenant fails to remove or bond off within thirty
(30) days after written notice thereof.
15.2. Remedies for Tenant's Default.
(a) Upon the occurrence of any event of default set forth in this Lease,
Landlord, besides other rights or remedies that it may have and without
prior notice (except as specified in Subsection 15.1 above), shall have the
right to (i) terminate Tenant's right of continued possession of the Leased
Premises and declare the entire remaining unpaid Rent for the balance of
the then existing Term of this Lease to be immediately due and payable
forthwith and take action to recover and collect the same either by
distress or otherwise, but in the event Landlord is able to relet the
Leased Premises during such periods from time to time, Tenant shall consent
to such reletting and Tenant shall be entitled to a credit against such
damages in the amount of the rents and other sums received by Landlord from
any such reletting of the Leased Premises, less any reasonable costs
incurred by Landlord in connection with the repossessing of the Leased
Premises, including, without limitation, reasonable attorneys' fees,
brokerage commissions and any costs of allowance, repairs or alterations,
or (ii) terminate this Lease, in which event Tenant shall immediately
surrender the Leased Premises to Landlord, or (iii) terminate Tenant's
right of continued possession of the Leased Premises and from time to time,
without terminating this Lease, relet the Leased Premises or any part
thereof for the account and in the name of Tenant, for any such lease term
or terms and conditions as Landlord, in its reasonable discretion, may deem
advisable, and with the right to make alterations, additions and repairs to
the Leased Premises deemed by Landlord to be necessary in conjunction with
such reletting. Notwithstanding any other remedy set forth in this Lease,
in the event Landlord has made rent concessions of any type or character,
or waived any base rent, and Tenant fails to take possession of the Leased
Premises on the commencement or completion date or otherwise defaults at
any time during the term of this Lease, the rent concessions, including any
waived base rent, shall be cancelled and the amount of the base rent or
other rent concessions shall be due and payable immediately as if no rent
concessions or waiver of any base rent had ever been granted. A rent
concession or waiver of the base rent shall not relieve Tenant of any
obligation to pay any other charge due and payable under this Lease
including without limitation any sum due under Section 2. Notwithstanding
anything contained in this Lease to the contrary, this Lease may be
terminated by Landlord only by mailing or delivering written notice of such
termination to Tenant, and no other act or omission of Landlord shall be
construed as a termination of this Lease.
(b) Should Landlord terminate Tenant's right of possession of the Leased
Premises pursuant to Subsection (a) (iii) above, then Tenant shall pay to
Landlord, within ten (10) days of Landlord's demand, all of the following:
(i) any unpaid Rent and other charges to be paid by Tenant hereunder up to
the date when Landlord shall have so terminated Tenant's right of
possession, plus interest thereon at the Default Rate from the due date
together with the initial leasehold or tenant improvements or allowances
incurred by Landlord in connection with the execution of this Lease
(prorated for the unexpired portion of the Term, such that Tenant does not
have to pay for that portion attributable to the period prior to such
Default); (ii) the reasonable costs of recovering possession of the Leased
Premises and any reasonable legal fees and expenses directly related to the
breach, the recovery of possession, and the collection of unpaid Rent and
other charges; (iii) the reasonable costs incurred by Landlord in repairing
and restoring the Leased Premises to the condition which same were to have
been surrendered to Landlord at the expiration of the Lease term or to a
condition required to lease premises to a new tenant; (iv) the reasonable
costs of removing any of Tenant's property from the Leased Premises and, if
same be stored, the reasonable cost of transporting and storing same (if
Landlord shall store such property in the Building then Landlord shall be
entitled to a reasonable storage fee hereunder); and (v) all reasonable
brokerage fees and commissions and allowances (prorated for the unexpired
portion of the Term) incurred by Landlord in reletting the Leased Premises.
(c) Rents received by Landlord from any reletting pursuant to Subsection
(a)(iii) above, shall be applied first to the payment of any of the items
enumerated in Subsection (b) above, in such order as Landlord shall deem
appropriate, and second to the payment of rent and other sums due and
unpaid by Tenant hereunder as of the date of Landlord's receipt of said
rents. The residue, if any, shall be held by Landlord and applied in
payment of future rent or damages in the event of termination as the same
may become due and payable hereunder.
(d) No such reletting of the Leased Premises by Landlord pursuant to
Subsection (a) (iii) above shall be construed as an election on its part to
terminate this Lease unless a notice of such intention be given by Landlord
to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction; and notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach provided it has not been cured.
(e) Should Landlord at any time terminate this Lease for any breach
pursuant to Subsection (a)(ii) above, then in addition to any other remedy
Landlord may have by reason of such breach, Landlord shall have the right
to recover from Tenant all or any of the following: (i) any unpaid rent and
other charges to be paid by Tenant hereunder up to the date of termination,
plus interest thereon at the Default Rate from the due date; (ii) the
reasonable costs of recovering possession of the Leased Premises and
collecting said arrearages in rent and other charges, including any
reasonable legal fees and expenses directly related to the breach, the
recovery of possession, and the collection of unpaid Rent and other charges
to be paid by Tenant and the total cost of brokerage commissions and
initial leasehold or tenant improvements or allowances incurred by Landlord
in connection with the execution or renewal of this Lease (prorated for the
unexpired portion of the Term) ; (iii) costs, as reasonably estimated by
Landlord which would be incurred in repairing or restoring the Leased
Premises to the condition in which the same were to have been surrendered
to Landlord at the expiration of the Lease term; (iv) the reasonable costs
of removing any of Tenant's property from the Leased Premises, and, if same
be stored, the reasonable cost of transporting and storing same (if
Landlord shall store such property in the Building then Landlord shall be
entitled to a reasonable storage fee hereunder); (v) all brokerage fees and
commissions (prorated for the unexpired portion of the Term)incurred by
Landlord in reletting the Leased Premises; and (vi) compensation for the
loss of profits occasioned by the breach and resultant termination of this
Lease, which loss the parties agree shall be determined by calculating the
total amount of Rent to be paid by Tenant, and any other charges to be paid
by Tenant, as if this Lease had not been terminated, from the date of
termination to the expiration date and deducting therefrom the fair market
rent value of the Leased Premises for a like period expected to be
collected by Landlord during such period. (f) Landlord shall have the right
to recover, in execution of judgment(s) rendered in legal proceedings or
otherwise, either jointly or from time to time severally, the applicable
sums specified in clauses (i) through (v) of Subsection (b) and clauses (i)
through (vi) of Subsection (e), and Landlord's recovery of one or more of
such sums shall not constitute a waiver of Landlord's right to recover from
Tenant the remaining sum(s).
(g) Tenant hereby waives all rights of redemption, now or hereafter
granted, to the extent such rights may be lawfully waived.
(h) Pursuit of any of the foregoing remedies shall not preclude pursuit of
any other remedy herein provided or any other remedy provided by law or at
equity, nor shall pursuit of any remedy herein provided constitute an
election of remedies thereby excluding the later election of an alternate
remedy, or a forfeiture or waiver of any Annual Gross Rent, Tenant's
Proportionate Share of Operating Costs in Excess of the Operating Stop or
other Additional Rent or other charges and assessments payable by Tenant
and due to Landlord hereunder or of any damages accruing to Landlord by
reason of violation of any of the terms, covenants, warranties and
provisions herein contained. All of Tenant's and Landlord's obligations
under this Section shall survive the termination of this Lease.
(i) Notwithstanding anything herein to the contrary, in the event that
Tenant abandons the Leased Premises for a continuous period of three weeks
or more for any reason other than casualty or condemnation or force majeure
not relating to Tenant's business operations, Landlord shall have the sole
and exclusive remedy to terminate this Lease without prior notice.
"Abandon" means the vacating of all or substantially all of the Leased
Premises by Tenant, whether or not Tenant is in default of the rental
payments due under this Lease or any other provision of this Lease.
In addition to Landlord's remedies under this Article 15, Landlord may, at its
sole discretion and without notice, invoke the following provisions:
(a) Upon a Tenant's bankruptcy, this Lease and all rights of Tenant
hereunder shall automatically terminate with the same force and effect as
if the date of any such event were the date stated herein for the
expiration of the Term, and Tenant shall vacate and surrender the Leased
Premises, but shall remain liable as herein provided. Landlord reserves any
and all remedies provided herein or at law or in equity.
(b) If this Lease is not terminated in accordance with subsection (a) above
because such termination is not allowed under the Bankruptcy Code
(hereinafter defined), upon the filing of a petition by or against Tenant
under the Bankruptcy Code, Tenant, as debtor and as debtor in possession,
and any trustee who may be appointed, agree:
(1) to perform promptly each and every obligation of Tenant under this
Lease until such time as this Lease is either rejected or assumed by
order of a United States Bankruptcy Court or other United States Court of
competent jurisdiction; or deemed rejected by operation of law, pursuant
to 11 U.S.C. ss. 365(c)(4);
(2) to pay monthly in advance on the first day of each month as
reasonable compensation for use and occupancy of the Leased Premises an
amount equal to all Annual Base Rent and all other Additional Rent;
(3) to reject or assume this Lease within sixty (60) days of the filing
of such petition under Chapter 7 of the Bankruptcy Code or within thirty
(30) days of the filing of a petition under any other Chapter;
(4) to give Landlord at least forty-five (45) days prior written notice
of any proceeding relating to any assumption of this Lease;
(5) to give Landlord at least thirty (30) days prior written notice of
any abandonment of the Leased Premises; (6) to be deemed conclusively to
have rejected this Lease in the event of the failure to comply with any
of the above;
(7 to have consented to the entry of an order by an appropriate United
States Bankruptcy Court providing all of the above, waiving notice and
hearing of the entry of same; and
(8 that this is a "lease of real property" as such term is used in the
Bankruptcy Code.
(c) Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord hereunder, whether or not
expressly denominated as Rent, shall constitute "rent" for the purposes of
Section 502(b)(7) of the Bankruptcy Code, including, without limitation,
reasonable attorneys' fees incurred by Landlord by reason of Tenant's
bankruptcy.
(d) Nothing contained in this Section 15.3 shall be deemed in any manner to
limit Landlord's rights and remedies under the Bankruptcy Code, as
presently existing or as may hereafter be amended. In the event that the
Bankruptcy Code is interpreted or amended during the term of this Lease to
so permit, or is superseded by an act so permitting, the following
additional acts shall be deemed an event of default under this Lease: (i)
if Tenant is adjudicated insolvent by the United States Bankruptcy Code or
(ii) if a petition is filed by or against Tenant under the Bankruptcy Code
and such petition is not vacated within one hundred twenty (120) days. In
either of such events, this Lease and all rights of Tenant hereunder shall
automatically terminate with the same force and effect as if the date of
either such event were the date stated herein for the expiration of the
Term, and Tenant shall vacate and surrender the Leased Premises, but shall
remain liable as herein provided. Landlord reserves any and all rights and
remedies provided herein or at law.
ARTICLE 16. TENANT'S REPRESENTATIONS
16.1. Tenant's Representations. Tenant, in order to induce Landlord to
enter into this Lease, hereby represents:
(a) That Tenant has full power and authority to conduct its business as
presently conducted and to enter into this Lease. That this Lease has been
duly authorized, executed and delivered by Tenant and constitutes and legal
and binding obligation of Tenant.
(b) That, to Tenant's knowledge, no litigation or proceedings (or
threatened litigation or proceeding or basis therefor) exists which could
materially and adversely affect the ability of Tenant to perform its
obligations under this Lease or which would constitute a default on the
part of Tenant under this Lease, or which would constitute such a default
with the giving of notice or lapse of time, or both.
(c) That Tenant is in compliance with Environmental Law at all of its
facilities and locations.
ARTICLE 17. REAL ESTATE COMMISSION
17.1. Brokers. Except for Echelon Real Estate Services, Inc. ("Broker"),
Landlord and Tenant hereby represent and warrant, each to the other, that they
have not disclosed this Lease or the subject matter hereof to, and have not
otherwise dealt with, any broker, finder or any other person, firm, corporation
or other legal entity so as to create any legal right or claim of whatsoever
kind or nature for a commission or similar fee or compensation with respect to
the Leased Premises or this Lease. Landlord and Tenant hereby indemnify each
other against, and agree to hold each other harmless from, any liability or
claim (and all expenses, including attorneys' fees, incurred in defending any
such claim or in enforcing this indemnity) for a real estate brokerage
commission or similar fee or compensation arising out of or in any way connected
with any claimed dealings with the indemnitor and relating to the Leased
Premises or this Lease. Landlord and Tenant each acknowledge that Echelon Real
Estate Services, Inc., licensed under Chapter 475, Florida Statutes, represents
Landlord in connection with the procurement of Tenant and the negotiation of the
terms of this Lease and shall be compensated by Landlord pursuant to a separate
agreement. The provisions of this Section shall survive the expiration or sooner
termination of this Lease.
ARTICLE 18. DELETED
ARTICLE 19. OTHER PROVISIONS
19.1. Hazardous Substances.
(a) Hazardous Substances. The term "Hazardous Substances," as used in this
Lease shall mean all substances, pollutants, contaminants, chemicals, wastes,
products or other materials listed, designated or otherwise determined to be
hazardous, toxic, dangerous or injurious to human health, safety or the
environment by any agency, court or executive pursuant to or which are otherwise
regulated or controlled by Environmental Law. By way of example and without
limitation, the term shall include all hazardous substances defined under 40
C.F.R. Part 302, all hazardous wastes defined by 40 C.F.R. Parts 260 and 261 and
similar rules and their successors as well as all petroleum and petroleum
products, asbestos, PCB's, nuclear and radioactive material, including naturally
occurring radioactive materials. As used in this Lease, the term "Environmental
Law" shall mean all laws and regulations relating to environmental protection,
growth management, planning, wetlands or other protected habitat, protected
species, historical and archeological resources, zoning, human health, welfare
and/or safety applicable to the Tenant, its operations or the Leased Premises or
any activities on, in or under the Leased Premises now or hereafter, including,
but not limited to, the federal Resource Conservation and Recovery Act, the
federal Toxic Substances Control Act, the federal Comprehensive Environmental
Response, Compensation and Liability Act, the federal Clean Water Act, the
federal Clean Air Act, Chapters 163, 373, 376, and 403 Florida Statutes or the
laws of other states as applicable, law relating to and rules of the local
governments including county land development codes and other federal, state,
regional, and local laws and rules, codes, ordinances, regulations, guidelines,
plans, orders, and directives of governmental authorities and agencies with
jurisdiction over or which are otherwise applicable to the Tenant, its
operations, activities or business, or the Leased Premises.
(b) Tenant Restrictions. Tenant shall not cause or permit:
(i) Any violation of Environmental Law on, under, or about the Leased
Premises, or arising from Tenant's use or occupancy of the Leased
Premises, including, but not limited to, outdoor or indoor air
quality, soil and ground water conditions; or
(ii) The use, generation, release, manufacture, refining, production,
processing, storage, treatment or disposal of any Hazardous Substance on,
under, or about the Leased Premises, or the transportation to or from the
Leased Premises of any Hazardous Substance, except as specifically set
forth in Exhibit "D", which shall be in strict compliance with all
Environmental Law. Tenant shall update this exhibit on a periodic basis
prior to any material or substantial change in the items or matters listed
thereon, and shall not engage in such uses or use any such matters on the
revised exhibit unless and until it has been approved by Landlord in the
exercise of its reasonable discretion, which shall not be unreasonably
withheld, conditioned or delayed.
(c) Environmental Clean-up.
(i) Tenant shall, at Tenant's own expense, comply with all
Environmental Law regulating the use, generation, storage,
transportation, treatment or disposal of Hazardous Substances.
(ii)Tenant shall, at Tenant's own expense, make all submissions to,
provide all information required by, and comply with all
requirements of Environmental Law.
(iii) Should any governmental entity or any third party demand that any
environmental investigation, environmental survey, contamination
assessment plan, preliminary contamination assessment plan,
remedial action plan, cleanup plan or other removal, remedial
action or other environmental corrective action be conducted or
prepared or that a clean-up, removal, remedial action or other
environmental corrective action be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances
or other violation of Environmental Law that occurs during the term
of this Lease at or from the Leased Premises, or which arises at
any time from Tenant's use or occupancy of the Leased Premises,
then Tenant shall, at Tenant's own expense, prepare and submit the
required plans and all related bonds and other financial
assurances; and Tenant shall carry out all such actions plans to
the satisfaction of the authorities under Environmental Law and
Landlord.
(iv) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, treatment or disposal of Hazardous
Substances that is requested by Landlord. If Tenant fails to fulfill any
duty imposed under this Section (c) within a reasonable time, Landlord may
do so; and in such case, Tenant shall cooperate with Landlord in taking all
necessary actions, including , but not limited to, the preparation of all
documents Landlord deems necessary or appropriate, and Tenant shall execute
all documents promptly upon Landlord's request. No such action by Landlord
and no attempt made by Landlord to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Section (c)
or an assumption of liability by Landlord.
(v) Tenant's obligations and liabilities under this Section (c) shall
survive the expiration of this Lease.
(d) Tenant's Indemnity.
(i) Tenant shall indemnify, defend, and hold harmless Landlord, the
manager of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from
all liabilities, obligations, penalties, fines, claims, litigation,
demands, defenses, judgments, suits, proceedings, actions, costs,
disbursements or expenses of any kind or of any nature whatsoever
(including without limitation, attorneys' and experts' fees and
disbursements whether at trial, during arbitration or mediation or
on appeal) arising out of or in any way connected with any deposit,
spill, discharge, or other release of Hazardous Substances or any
violation of Environmental Law that occurs during the term of this
Lease, at or from the Leased Premises, or which arises at any time
from Tenant's use or occupancy of the Leased Premises, or from
Tenant's failure to provide all information, make all submissions,
and take all steps required by Environmental Law.
(ii)Tenant's obligations and liabilities under this Section (d) shall
survive the expiration of this Lease.
19.2. 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 the county
health public health unit.
19.3. Americans with Disabilities Act. Tenant covenants and agrees, at its
expense without reimbursement or contribution by Landlord, to keep, maintain,
alter and replace, if necessary, the interior non-structural portions of the
Leased Premises so as to maintain compliance of same with the Americans with
Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (the "Act"), as amended from
time to time, and all rules and regulations promulgated to further the purpose
of and to enforce the Act (the "ADA").
ARTICLE 20. MISCELLANEOUS
20.1. Waiver. Failure of Landlord or Tenant to declare an event of default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default, but
Landlord or Tenant shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit of any one
or more of the remedies set forth in Article 15 above shall not preclude pursuit
of any one or more of the other remedies provided elsewhere in this Lease or
provided by law, nor shall pursuit of any remedy constitute forfeiture or waiver
of any rent or damages accruing to Landlord or Tenant by reason of the violation
of any of the terms, provisions or covenants of this Lease. Failure by Landlord
or Tenant to enforce one or more of the remedies provided upon an event of
default shall not be deemed or construed to constitute a waiver of the default
or of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Without limiting the generality of the
foregoing, no action taken or not taken by Landlord or Tenant under the
provisions of this Section or any other provision of this Lease (including, by
way of example rather than of limitation, the Landlord's acceptance of the
payment of rent after the occurrence of any event of default) shall operate as a
waiver of any right to be paid a late charge or of any other right or remedy
which the either party hereto would otherwise have against the other party on
account of such event of default under the provisions of this Lease or
applicable law (each party hereto hereby acknowledging that, in the interest of
maintenance of good relations between Landlord and Tenant, there may be
instances in which the other party chooses not immediately to exercise some or
all of its rights on the occurrence of an event of default).
20.2. Attorney's Fees. In the event that it shall become necessary for
either Landlord or Tenant to employ the services of attorneys to enforce any of
their respective rights under this Lease or to collect any sums due to them
under this Lease or to remedy the breach of any covenant of this Lease on the
part of the other to be kept or performed, the nonprevailing party (Tenant or
Landlord as the case may be) shall pay to the prevailing party such reasonable
fees as shall be charged by the prevailing party's attorneys for such services,
including services at all trial and appellate levels and post judgment
proceedings and such prevailing party shall also have and recover from the
nonprevailing party (Landlord or Tenant as the case may be) all other costs and
expenses of such suit and any appeal thereof or with respect to any postjudgment
proceedings.
20.3. Successors. This Lease shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective heirs, personal representatives,
successors and assigns.
20.4. Captions. The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
20.5. Notice. Any notice, demand, consent, approval or other communication
to be given to or served upon any party hereto, in connection herewith, must be
in writing, and may be given by facsimile transmission, certified mail or
guaranteed overnight delivery service, return receipt requested. If a notice is
delivered by United States Mail, it shall be deemed to have been given and
received two (2) days following the deposit of a certified letter containing
such notice, properly addressed, with postage prepaid, with the United States
Mail. If delivered by facsimile transmission or by guaranteed overnight delivery
service, it shall be deemed to have been given and received the same day that
the notice is faxed or delivered into the custody of the overnight delivery
service. If the notice is given otherwise than by certified mail, facsimile
transmission or guaranteed overnight delivery service, it shall be deemed to
have been given when delivered to and received by the party to whom it is
addressed. Notices shall be given to the parties hereto at the following
addresses:
To Landlord: ECHELON INTERNATIONAL CORPORATION
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx XxXxxxx
Facsimile Number: (000) 000-0000
Copy To: Echelon Real Estate Services, Inc.
00000 Xxxxxxxx Xxxxxxxxx, Xxx 00
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
To Tenant: IXION BIOTECHNOLOGY, INC.
00000 Xxxxxxxx Xxxxxxxxx, Xxx 00
Xxxxxxx, XX 00000
Attention: General Counsel
and Xxxxx Xxxxxxxx, Esq.
000 XX 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Either party hereto may, at any time by giving five (5) business days' written
notice to the other party hereto, designate any other address in substitution of
the foregoing address to which notice shall be given and other parties to whom
copies of all notices hereunder shall be sent.
20.6. Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application for such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
20.7. Landlord's Liability. Tenant shall look solely to (i) the estate and
property of the Landlord in the Building and the Building Land, (ii) the rents
and other income (including, without limitation, insurance proceeds payable to
Landlord) from the Building receivable by Landlord, and (iii) the consideration
received by Landlord from the sale of all or any part of the Building, for the
collection of any judgment, or in connection with any other judicial process,
requiring the payment of money by Landlord in the event of any default by
Landlord with respect to any of the terms, covenants and conditions of this
Lease to be observed and performed by Landlord, and no other property or estates
of Landlord shall be subject to levy, execution or other enforcement procedures
for the satisfaction of Tenant's remedies and rights under this Lease. The
provisions of this Section are not designed to relieve Landlord from the
performance of any of its obligations hereunder, but rather to limit Landlord's
liability in the case of a recovery of a money judgment against Landlord. The
foregoing limitation shall not apply to or limit any injunctive or other
equitable declaratory or other forms of relief that Tenant may be entitled to.
The word "Landlord" as used in this Lease shall mean only the owner from time to
time of Landlord's interest in this Lease. In the event of any assignment of
Landlord's interest in this Lease, the assignor shall no longer be liable for
the performance or observation of any agreements or conditions on the part of
Landlord to be performed or observed subsequent to the effective date of such
assignment provided the assignee specifically assumes all such obligations.
20.8. Estoppel Certificates. Tenant agrees at any time and from time to
time, upon not less than fifteen (15) days prior written request of Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified, and
stating the modifications), the date to which the rental and other charges have
been paid in advance, if any, and whether or not any violations are in existence
as of the date of said statement, that Tenant has accepted possession of the
Leased Premises, the date on which the term commenced; and, as to whether, to
the best knowledge, information and belief of the signer of such certificate,
the other party is then in default in performing any of its obligations
hereunder (and, if so, specifying the nature of each such default); and as to
any other fact or condition with respect to this Lease reasonably requested by
the other party hereto or such other addressee, it being intended that any such
statement delivered pursuant to this Section may be relied upon by any
prospective purchaser of the fee or mortgagee or assignee of any mortgage upon
the fee.
20.9. No Recording. Tenant shall not record this Lease or any memorandum or
short form hereof without the written consent and joinder of Landlord.
20.10. Waiver of Jury Trial. The parties hereto waive trial by jury in
connection with any proceedings or counterclaims brought by either of the
parties hereto against the other.
20.11. Relocation Option. In the event Landlord determines to lease the
Leased Premises to a third party or utilize the same for other purposes during
the term of this Lease, Tenant agrees to relocate to other space in the Building
designated by Landlord upon sixty (60) days prior written notice to Tenant,
provided such other space is of equal or larger size than the Leased Premises.
Landlord shall pay all out-of-pocket expenses of any such relocation, including
the expenses of moving and reconstruction of all Tenant's furnishings and
Landlord furnished improvements. In the event of such relocation, this Lease
shall continue in full force and effect without any change in the terms or
conditions of this Lease, but with the new location substituted for the old
location set forth in Section 1.1 of this Lease and modification to the rental
terms, as appropriate, due to modification in the sized of the Leased Premises.
20.12. Corporate Authority. If Tenant executes this Lease as a corporation,
each of the persons executing this Lease on behalf of Tenant does hereby
personally represent and warrant that Tenant is a duly authorized and existing
corporation, that Tenant is qualified to do business in the state in which the
Leased Premises are located, that the corporation has full right and authority
to enter into this Lease, and that each person signing on behalf of the
corporation is authorized to do so. In the event any representation or warranty
is false, all persons who execute this Lease shall be liable, individually, as
Tenant.
20.13. Financial Reports. Within 15 days after Landlord's request, Tenant
will furnish Tenant's most recent audited financial statements (including any
notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have been
prepared by an independent certified public accountant, or, failing those,
Tenant's internally prepared financial statements, certified by Tenant. Landlord
agrees that it will not disclose any aspect of such information which Tenant
designates as confidential except: (i) to Landlord's lenders or prospective
purchasers of the Building; (ii) in litigation; and (iii) if required by court
order.
20.14. Time of Essence. Time is of the essence of each and every provision and
term of this Lease.
20.15. Exhibits and Riders. Incorporated into this Lease by reference.
Exhibit A - Floor Plan of Leased Premises
Exhibit B - Tenant Improvement Specifications
Exhibit C - Rules and Regulations
Exhibit D - Permitted Environmental Matters
20.16. Complete Understanding.16. Complete Understanding. This Lease
represents the complete understanding between the parties hereto as the subject
matter hereof, and supersedes all prior written or oral negotiations,
representations, warranties, statements or agreements between the parties hereto
as the same. No inducements, representations, understandings or agreements have
been made or relied upon in the making of this Lease, except those specifically
set forth in the provisions of this Lease. Neither party hereto has any right to
rely on any other prior or contemporaneous representation made by anyone
concerning this Lease which is not set forth herein. This Lease may not be
altered, waived, amended or extended except by an instrument in writing signed
by Landlord and Tenant. Landlord and Tenant acknowledge that each of them and
their counsel have had an opportunity to review this lease and that this lease
will not be construed against Landlord merely because Landlord has prepared it.
20.17. Governing Law. This Lease shall be governed in all respects by the laws
of the State of Florida.
ARTICLE 21. SIGNATURES
In Witness Whereof, this Lease was executed as of "Effective Date" as
specified hereinabove.
WITNESSES:
TENANT:
IXION BIOTECHNOLOGY, INC.
By:__________________________________
Xxxxxx X. Xxxxxx
Its: Chairman and Chief
Executive Officer
(Corporate Seal)
Date:_____________________, 1998
WITNESSES: LANDLORD:
ECHELON INTERNATIONAL CORPORATION
By:
Xxxxxx X. XxXxxxx, President
Date:______________________, 1998
EXHIBIT "A"
FLOOR PLAN OF LEASED PREMISES
EXHIBIT "B"
LEASED PREMISES IMPROVEMENTS
1. This Agreement sets forth the terms and conditions governing the design,
permitting and construction of the leasehold improvements ("Landlord's Work") to
be installed in the Leased Premises in accordance with the Floor Plan, which is
hereby approved by Tenant.
2. Landlord shall pay all costs of construction of the Landlord's Work directly
to the contractor or materialmen, which costs may consist of: (i) governmental
agency plan check, permit and other fees (including any changes required by any
governmental entity or authority having jurisdiction thereof); (ii) sales and
use taxes; and (iii) the costs of materials and labor incurred in connection
with the Landlord's Work performed consistently with the floor plan.
3. "Substantial Completion" of the Leased Premises shall be conclusively deemed
to have occurred as soon as the Landlord's Work has been constructed in
accordance with the approved floor plan. The issuance of a temporary certificate
of occupancy by the proper governmental entity shall not be required for
Substantial Completion but, if granted, shall be deemed conclusive evidence that
Substantial Completion has occurred. Notwithstanding the above, the Leased
Premises shall be considered Substantially Complete even though (a) there remain
to be completed in the Leased Premises punch list items, including but not
limited to minor or insubstantial details of construction, decoration or
mechanical adjustment, the lack of completion of which will not materially
interfere with Tenant's permitted use or occupancy of the Leased Premises (which
items shall be completed within a reasonable time, not to exceed thirty (30)
days, and/or (b) there is a delay in the Substantial Completion of the Leased
Premises due to a delay caused by Tenant.
4. Tenant has reviewed and inspected the condition of the Building and Leased
Premises and agrees to accept the same, as to be improved by the Landlord's
Work. The taking of possession of the Leased Premises by Tenant shall constitute
an acknowledgment by Tenant that the Leased Premises are in good condition.
5. The following is a list of Landlord's Work:
Clean and repaint cabinets.
Patch and paint all walls.
Clean tile floors and replace damaged tiles as needed.
Install Carpet in lab offices.
Remove walls and electrical devices in furnace rooms.
Install (7) 110V and (1) 208V emergency outlets and hook them into
emergency generator as shown on floor plan.
Install emergency generator.
Add communication and electric outlets as shown on floor plan.
Install central vacuum lines (if central building vacuum pump is
available) or install individual vacuum lines for tenant provided pumps.
Interior piping for Gas outlets as shown on floor plan.
Total project costs: $38,990
Tenant allowance 12,540
Amount amortized in Lease 26,458 (amortized over 36 mths
10% = $2.04/sq ft or
$10,232.64/year)
Landlord's Work does not include DI water system or hookup, or any hookup
or related charges for natural gas service.
EXHIBIT "C"
RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant two keys without charge. Additional keys
will be furnished at a nominal charge. Tenant shall not change locks or
install additional locks on doors without prior written consent of
Landlord. Tenant shall not make or cause to be made duplicates of keys
procured form Landlord without prior approval of Landlord. All keys to
Leased Premises shall be surrendered to Landlord upon termination of this
Lease.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the Leased Premises
for Tenant to Landlord for Landlord's approval before performance of any
contractual service. Tenant's contractors and installation technicians
shall comply with Landlord's rules and regulations pertaining to
construction and installation. This provision shall apply to all work
performed on or about the Leased Premises, including installation of
telephone, telegraph equipment or any other physical portion of the Leased
Premises or Building.
3. Tenant shall not at any time occupy any part of the Leased Premises or
Building as sleeping or lodging quarters.
4. Tenant shall not place, install or operate on the Leased Premises or in any
part of the Building any engine, stove or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the
Leased Premises or Building any explosives, gasoline, kerosene, oil, acids,
caustics, or any flammable, explosive or hazardous material without written
consent of Landlord.
5. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Leased Premises or the Building
regardless of whether such loss occurs when the area is locked against
entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the Leased Premises or Building.
7. Employees of Landlord shall not receive or carry messages for or to any
Tenant or other person or contract with or render free or paid services to
any Tenant or to any of Tenant's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways shall be blocked or obstructed or
any rubbish, litter, trash, or material of any nature placed, emptied or
thrown into these areas or such area used by Tenant's agents, employees or
invitees at any time for purposes inconsistent with their designation by
Landlord.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of
the Building shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the Building by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the Building or down the
stairways or other passages.
12. Tenant and its employees, agents and invitees shall park their vehicles
only in those parking areas designated by Landlord. Tenant shall not leave
any vehicle in a state of disrepair (including without limitation, flat
tires, out of date inspection stickers or license plates) on the Leased
Premises or Building. If Tenant or its employees, agents or invitees park
their vehicles in areas other than the designated parking areas or leave
any vehicle in a state of disrepair, Landlord, after giving written notice
to Tenant of such violation, shall have the right to remove such vehicles
at Tenant's expense.
13. Parking is prohibited in areas not striped for parking, in aisles, where
"No Parking" signs are posted, on ramps, in cross hatched areas, and in
other areas as may be designated by Landlord. Parking stickers or other
forms of identification supplied by Landlord shall remain the property of
Landlord and not the property of Tenant and are not transferable., Every
person is required to park and lock his vehicle. All responsibility for
damage to vehicles or persons is assumed by the owner of the vehicle or its
driver.
14. Movement in or out of the Building of furniture or office supplies and
equipment, or dispatch or receipt by Tenant of any merchandise or materials
which requires use of elevators or stairways, or movement through the
Building entrances or lobby, shall be restricted to hours designated by
Landlord. All such movement shall be under supervision of Landlord and
carried out in the manner agreed between Tenant and Landlord by
prearrangement before performance. Such prearrangement will include
determination by Landlord of time, method, and routing of movement and
limitations imposed by safety or other concerns which may prohibit any
article, equipment or any other item from being brought into the Building.
Tenant assumes, and shall indemnify Landlord against, all risks and claims
of damage to persons and properties arising in connection with any said
movement.
15. Landlord shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort or
duration in connection with the elevator service.
16. Tenant shall not lay floor covering within the Leased Premises without
written approval of the Landlord. The use of cement or other similar
adhesive materials not easily removed with water is expressly prohibited.
17. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and peddling within the Building.
18. Landlord reserves the right to exclude from the Building, between the hours
of 6:00 p.m. and 8:00 a.m. on weekdays and at all hours on Saturday, and
all hours on Sunday and legal holidays, all persons who are not known to
the Building security personnel and who do not present a key or other
appropriate authorization to the Building signed by the Tenant. Each Tenant
shall be responsible for all persons for whom it supplies a key.
19. There shall be no smoking in any area inside the Building.
20. It is Landlord's desire to maintain in the Building, the highest standard
of dignity and good taste consistent with comfort and convenience for
Tenant. Any action or condition not meeting this high standard should be
reported directly to Landlord. Your cooperation will be mutually beneficial
and sincerely appreciated. Landlord reserves the right to make such other
and further reasonable rules and regulations as in its judgement may from
time to time be necessary, for the safety, care and cleanliness of the
Leased Premises and for the preservation of good order therein.
EXHIBIT "D"
PERMITTED ENVIRONMENTAL MATTERS
