EXHIBIT 10.4
LEASE AGREEMENT
By and Between
XXXXXX CORPORATION OF DELAWARE
and
XXXXXXXX.XXX, INC.
TABLE OF CONTENTS
LEASE AGREEMENT
No. Description Page
1.Premises..................................................................4
2. Term.....................................................................5
3. Rent.....................................................................5
4. Additional Rent..........................................................5
5. Late Charge..............................................................5
6. Partial Payment..........................................................6
7. Construction of this Agreement...........................................6
8. Use of Promises..........................................................6
9. Definitions..............................................................6
10.Repairs by Landlord......................................................7
11.Repairs by Tenant........................................................7
12.Alterations and Improvements.............................................8
13.Operating Expenses.......................................................9
14.Landlord's Failure to Give Possession....................................9
15.Acceptance and Waiver...................................................12
16.Signs nod Vending Machines..............................................12
17.Carding.................................................................13
18.Removal of Fixtures.....................................................13
19.Entering Premises.......................................................13
00.Xxxxxxxx of Landlord....................................................14
21.Indemnities.............................................................15
00.Xxxxxxxxx and Waiver of Subrogation.....................................15
23.Governmental Requirements...............................................17
24.Abandonment of Premises.................................................18
25.Assignment and Subletting...............................................18
26.Default.................................................................18
27.Landlord's Remedies.....................................................19
28.Destruction or Damage...................................................22
29.Eminent Domain..........................................................22
30.Servicee of Landlord....................................................23
31.Rights of Mortgage......................................................23
32.Tenant's Estoppel.......................................................25
33.Attorneys' Fees and Homestead...........................................25
34.Parking.................................................................25
00.Xxxxxxx.................................................................25
36.Waste Disposal..........................................................25
37.Surrender of Premises...................................................26
00.Xxxxxxxx of Premises....................................................26
00.Xx Estate in Land.......................................................26
40.Cumulative Rights.......................................................26
41.Paragraph Titles........................................................26
42.Damage or Theft of Personal Property....................................26
43.Holding Over............................................................27
00.Xxxxxxxx Deposit........................................................27
45.Leasehold Improvements..................................................28
46.Rules and Regulations...................................................28
47.Quiet Enjoyment.........................................................28
48.Entire Agreement........................................................28
49.Limitation of Liability.................................................28
50.Submission Agreement....................................................28
51.Authority...............................................................28
52.Relocation of Promises..................................................29
00.Xxxxxx Disclosure.......................................................29
54.Landlord's Lien.........................................................29
55.Special Stipulations....................................................29
56.Radon Gas...............................................................29
57.Force Majeure...........................................................30
Exhibits:
A Legal Description
A-1 Floor Plan showing Premises
B Acknowledgment, Acceptance and Amendment
C Work Letter
D Rules and Regulations
E Option to Renew
THIS LEASE AGREEMENT (this "Lease") is made and entered as of the 12 day of
September, 2003 by and between Xxxxxx Corporation of Delaware, a Delaware
Corporation ("Landlord") whose address is 0000 Xxxx Xx Xxx Xxxx., Xxxxx 000,
Xxxxxxxxxx, XX 00000 and Xxxxxxxx.xxx, Inc. ("Tenant") whose address is 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
WITNESSETH
WHEREAS, Landlord is the owner of certain real property located in Pinellas
County, City of Clearwater, Florida, as is more particularly described in
Exhibit A attached hereto and made a part hereof by reference (hereinafter
referred to as the "Land");
WHEREAS, there exists a nine-story office building commonly known as the
Atrium at Clearwater (the "Building") on the Land (the Land and the Building
being sometimes referred to collectively herein as the "Property"); and
WHEREAS, Tenant desires to lease space in the Building from Landlord, and
Landlord is willing to lease space in the Building to Tenant, upon the terms,
conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises, the mutual benefits to be
derived hereby, the payment by Tenant of the Rent reserved herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord does hereby rent and lease to Tenant and Tenant does
hereby rent and lease from Landlord the following described space (hereinafter
called the "Premises").
an agreed approximate 1028 rentable square feet of space
designated as Suite #120 located on the First floor of the
Building, said Premises to be located as shown on the
drawing attached hereto as Exhibit A-1 and made a part
hereof by reference.
2. TERM. Tenant hereby takes and accepts the Premises from Landlord upon the
terms and conditions contained in this Lease and as suited for the use intended
by Tenant, TO HAVE AND TO HOLD the same for a period of time (the "Term")
commencing on October 1, 2003 (the "Commencement Date") and terminating twelve
(12) full calendar months thereafter (the "Expiration Date"), unless sooner
terminated or extended as hereinafter provided. Promptly following the
Commencement Date, Landlord and Tenant shall enter into a letter agreement in
the form attached hereto as Exhibit "B", specify the Commencement Date, the
Expiration Date, the exact number of rentable square feet contained within the
Premises and the exact amount of Base Rent payable hereunder for the first Lease
Year (as hereinafter defined). The term "Lease Year", as used herein, shall mean
each and every twelve (12) month period during the Term, with the first such
twelve (12) month period commencing on the Commencement Date; provided, however,
if the Commencement Date occurs other than on the first day of a calendar month
the first Lease Year shall be that partial month plus the first full twelve (12)
months thereafter.
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3. RENT. Tenant shall pay to Landlord, at 3000 Gulf to Xxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000 or at such place as Landlord shall designate in writing to
Tenant from time to time, monthly base rental ("Base Rent") in accordance with
the following schedule:
------------------- --------------------
PERIOD BASE RENT PER MONTH
------------------- --------------------
1 - 12 months $ 1,456.33
------------------- --------------------
together with seven percent (7%) (or such other rate as may be hereafter imposed
by law, ruling, regulation or ordinance) sales tax on all Base Rent, Additional
Rent (as hereinafter defined) and all other rental and other payments, which
shall be remitted to Landlord contemporaneously with each payment to Landlord
upon which such tax is due, payable promptly in equal monthly installments on
the first day of each calendar month, in advance, in legal tender of the United
States of America, without abatement, demand, deduction or offset whatsoever,
except as expressly provided herein. A prorated monthly installment based on a
thirty-day month shall be paid in advance for any fraction of a month if the
Term shall begin on any day except the first day thereof or shall be terminated
on any day other than the last day of any month.
4. ADDITIONAL RENT. Tenant shall pay, as additional rent hereunder, all other
sums due from Tenant to Landlord under this Lease (hereinafter referred to as
"Additional Rent") (the term "Rent", as used herein, means all Base Rent and
Additional Rent payable hereunder from Tenant to Landlord). In addition to the
foregoing, Tenant shall pay and be liable for all rental, sales, use and
inventory taxes or other similar taxes, if any, on the amounts payable by Tenant
hereunder 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 Landlord by Tenant under the terms of this Lease. Such
payment shall be made by Tenant directly to such governmental body if billed to
Tenant, or if billed to Landlord, such payment shall constitute Additional Rent
hereunder and shall be paid concurrently with the payment of the Base Rent,
Additional Rent, or such other charge upon which tax is based, all as set forth
herein.
5. LATE CHARGE. Other remedies for non-payment of Rent notwithstanding, if any
monthly installment of Base Rent or Additional Rent is not received by Landlord
on or before the date due, or if any payment due Landlord by Tenant which does
not have a schedule due date is not received by Landlord on or before the tenth
(10th) business day following the date Tenant was invoiced, a late charge of
five percent (5%) of such past due amount shall be immediately due and payable
as Additional Rent and interest shall accrue from the date past due until paid
at the lower of eighteen percent(18%) per annum or the highest rate permitted by
applicable law.
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6. PARTIAL PAYMENT. No payment by Tenant or acceptance by Landlord of an amount
less than the Rent herein stipulated shall be deemed a waiver of any other Rent
due. No partial payment or endorsement on any check or any letter accompanying
such payment of Rent shall be deemed an accord and satisfaction, but Landlord
may accept such payment without prejudice to Landlord's right to collect the
balance of any Rent due under the terms of this Lease or any late charge
assessed against Tenant hereunder, and may apply the same against Tenant's
delinquent obligations hereunder in such order and manner as Landlord may
determine in its sole discretion.
7. CONSTRUCTION OF THIS AGREEMENT. No failure of Landlord to exercise any power
given Landlord hereunder, or to insist upon strict compliance by Tenant of its
obligations hereunder and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof Time is of the essence of this Lease.
8. USE OF PREMISES.
(a) Tenant shall use and occupy the Premises for general office purposes of
a type customary for first-class office buildings and for no other purpose. The
Premises shall not be used for any illegal purpose, nor in violation of any
valid regulation of any governmental body, nor in any manner to create any
nuisance or trespass, nor in any manner to vitiate the insurance or increase the
rate of insurance on the Premises or the Building, nor in any manner
inconsistent with the first-class nature of the building.
(b) Tenant shall not cause or permit the receipt, storage, use, location or
handling on the Property (including the Building and Premises) of any product,
material or merchandise which is explosive, highly in flammable, or a "hazardous
or toxic material," as that term is hereafter defined. "Hazardous or toxic
material" shall include all materials or substances which have been determined
to be hazardous to health or the environment, including, without limitation
hazardous waste (as defined in the Resource Conservation and Recovery Act);
hazardous substances (as defined in the Comprehensive Emergency Response,
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act); gasoline or any other petroleum product or by-product or
other hydrocarbon derivative; toxic substances, (as defined by the Toxic
Substances Control Act); insecticides, fungicides or substances determined to be
hazardous under the Occupational Safety and Health Act or regulations
promulgated thereunder. Notwithstanding the foregoing, Tenant shall not be in
breach of this provision as a result of the presence in the Premises of de
minimis amounts of hazardous or toxic materials which are in compliance with all
applicable laws, ordinances and regulations and are customarily present in a
general office use (e.g., copying machine chemicals and kitchen cleansers).
9. DEFINITIONS. "Landlord," as used in this Lease, shall include the party named
in the first paragraph hereof, its representatives, assigns and successors in
title to the Premises. "Tenant" shall include the party named in the first
paragraph hereof, its heirs and representatives, and, if this Lease shall be
validly assigned or sublet, shall also include Tenant's assignees or subtenants,
as to the Premises, or portion thereof, covered by such assignment or sublease.
"Landlord" and "Tenant" include male and female, singular and plural,
corporation, partnership, limited liability company (and the officers, members,
partners, employees or agents of any such entities) or individual, as may fit
the particular parties.
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10. REPAIRS BY LANDLORD. Tenant, by taking possession of the Premises, shall
accept and shall be held to have accepted the premises as suitable for the use
intended by this Lease. Landlord shall not be required, after possession of the
Premises has been delivered to Tenant, to make any repairs or improvement to the
Premise, except as set forth in this Lease. Except for damage caused by casualty
and condemnation (which shall be governed by Section 28 and 29 below), and
subject to normal wear and tear, Landlord shall maintain in good repair the
exterior walls, roof, common areas, foundation, structural portions and the
central portions of the Building mechanical, electrical, plumbing and HVAC
systems (i.e., only those portions of central distribution, but not the branches
which serve only one tenant's space), provided such repairs are not occasioned
by Tenant, Tenant's invitees or anyone in the employ or control of Tenant.
11. REPAIRS BY TENANT.
(a) Tenant shall, at its own cost and expense, maintain the Premises in
good and clean condition consistent with a first class office building,
including all necessary repairs and replacements. Tenant shall further, at its
own cost and expense, repair or restore any damage or injury to all or any part
of the Building or the rest of the Property caused by Tenant or Tenant's agents,
employees, invitees, licensees, visitors or contractor, including, but not
limited to, any repairs or replacements necessitated by (i) the construction or
installation of improvement to the Premises by or on behalf of Tenant, (ii) the
installation, use or operation of Tenant's property, or (iii) the moving of any
property into or out of the Premise; provided, however, if Tenant fails to make
such repairs or replacements promptly, Landlord may, at its option, make sure
repairs or replacements and the costs of such repairs or replacements shall be
charged to Tenant as Additional Rent and shall become due and payable by Tenant
with the monthly installment of Base Rent next due hereunder.
(b) Tenant agrees that it will make full and prompt payment of all sums
necessary to pay for the cost of all repairs, alterations, improvement, changes
or other work done by the Tenant to the Premise, and further agrees to indemnify
and save harmless the Landlord from and against any and all such costs and
liabilities incurred by Tenant and against any and all mechanics', materialmen's
or laborers' liens arising out of or from such work or the cost thereof which
may be asserted, claimed or charged against the leased building and premises.
Notwithstanding anything appearing in this Lease, the interest of the Landlord
in the Premises shall not be subject to liens for improvements or work made or
done by the Tenant, whether or not same shall be made or done in accordance with
an agreement between Landlord and Tenant, and it is agreed that in no event
shall the Landlord or the interest of the Landlord in any of the Premises be
liable for or subjected to any mechanics', materialmen's or laborers' liens for
improvements or work made or done by the Tenant, and this lease expressly
prohibits the subjecting of the interest of the Landlord in the leased premises
to any mechanics', materialmen's or laborers' liens for improvements made by the
Tenant or for which the Tenant is responsible for payment under the terms of
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this Lease, and all persons dealing with Tenant are put on notice of these
provision. In the event such a lien is filed against the interest of the
Landlord in the Premises on account of or growing out of any improvement or work
made or done by the Tenant, or any person claiming by, through or under the
Tenant, or for improvement or work the cost of which is the responsibility of
the Tenant, then Tenant agrees to have such notice or claim of lien canceled and
discharged of record as a claim against the interest of Landlord in the premises
(either by payment and satisfaction or by removal by transfer to bond or deposit
as permitted by law) within ten (10) days after notice to Tenant by Landlord
and, in the event Tenant fails to do so, Tenant shall be considered in default
under this Lease with like effect as if Tenant shall have failed to pay a rental
payment when due and within any applicable grace period provided for payment of
same. TENANT SHALL, UPON THE REQUEST OF LANDLORD, EXECUTE AND DELIVER TO
LANDLORD A SHORT FORM OF THIS LEASE IN RECORDABLE FORM, WHICH SHORT FORM LEASE
SHALL SET FORTH OR SUMMARIZE THE PROVISION OF THIS PARAGRAPH AND SHALL CONTAIN A
SUMMARY OF SUCH OTHER TERMS AND CONDITIONS OF THIS LEASE AS LANDLORD SHALL
REQUIRE. TENANT ACKNOWLEDGES AND AGREES THAT LANDLORD MAY, AT ITS OPTION, RECORD
A NOTICE PURSUANT TO SECTION 713.10 OF THE FLORIDA STATUTES IN ORDER TO FURTHER
ESTABLISH THAT LANDLORD'S INTEREST IN THE PREMISES, THE BUILDING AND THE LAND
SHALL NOT BE SUBJECT OF LIENS FOR IMPROVEMENTS MADE BY OR FOR TENANT.
(c) NOTICE OF LIEN PROHIBITION: THE TENANT HEREIN SHALL NOT HAVE ANY
AUTHORITY TO CREATE ANY LIENS FOR LABOR OR MATERIAL ON THE LANDLORD'S INTEREST
IN The LAND, BUILDING OR THE PREMISES AND ALL PERSONS CONTRACTING WITH THE
TENANT FOR THE DESTRUCTION OR REMOVEL OF ANY FACILITIES OF OTHER IMPROVEMENT OR
FOR THE ERECTION , INSTALLATION, ALTERATION, OR REPAIR OF ANY FACILITIES OR
OTHER IMPROVEMENT ON OR ABOUT THE PREMISES, AND ALL MATERIALMEN, CONTRACTORS,
MECHANICS, AND LABORERS, ARE HEREBY CHARGED WITH NOTICE THAT THEY MUST LOOK ONLY
TO THE TENANT AND THE TENANT'S INTEREST IN THE PREMISES TO SECURE THE PAYMENT OF
ANY XXXX FOR WORK DONE, LABOR PERFORMED OR MATERIAL FURNISHED AT THE REQUEST OR
INSTRUCTION OF TENANT. TENANT ACKNOWLEDGED THAT PURSUANT TO SECTION 713.10
FLORIDA STATUTES TENANT MUST NOTIFY ANY CONTRACTOR MAKING ANY IMPROVEMENT OR
PERFORMING ANY WORK UPON THE PREMISES AT THE REQUEST OR ON BEHALF OF TENANT, OF
THE FOREGOING PROVISIONS IN THIS LEASE AND THAT A KNOWING OR WILLFUL FIALURE OF
TENANT TO PROVIDE SUCH NOTICE TO THE CONTRACTOR SHALL RENDER THE CONTRACT
BETWEEN THE TENANT AND THE CONTRACTOR VOIDABLE AT THE OPTION OF THE CONTRACTOR.
IN ADDITION, TENANT ACKNOWLEDGES THAT FAILURE OF TENANT TO COMPLY WITH ANY OF
THE FOREGOING PROVISIONS SHALL CONSTITUTE A MATERIAL DEFAULT BY TENANT UNDER
THIS LEASE ENTITLING LANDLORD AT LANDLORD'S OPTION, TO EXERCISE ANY AND ALL
REMEDIES AVAILABLE TO IT UNDER THIS LEASE AND APPLICABLE LAW.
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12. ALTERATIONS AND IMPROVEMENTS. Except for minor, decorative alterations which
do not affect the Building structure or systems, are not visible from outside
the Premises and do not cost in excess of $10,000.00 in the aggregate, Tenant
shall not make or allow to be made any alterations, physical additions or
improvements in or to the Premises without first obtaining in writing Landlord's
written consent for such alterations or additions, which consent may be granted
or withheld in the sole, unfettered discretion of Landlord (if the alterations
will affect the Building structure or systems or will be visible from outside
the Premises), but which consent shall not be unreasonably withheld (if the
alterations will not affect the Building structure or systems and will not be
visible from outside the Premises). Upon Landlord's request, Tenant will furnish
Landlord plans and specifications for any proposed alterations, additions or
improvement and shall reimburse Landlord for its reasonable cost to review such
plans. Any alterations, physical additions or improvements shall at once become
the Property of Landlord; provided, however, Landlord, at its option, may
require Tenant to remove any alterations, additions or improvements in order to
restore the Premises to the condition existing on the Commencement Date. All
costs of any such alterations, addition or improvement shall be borne by Tenant.
All alterations, additions or improvements must be made in a good, first-class,
workmanlike manner and in a manner that does not disturb other tenants (i.e.,
any loud work must be performed during non-business hours) and Tenant must
maintain appropriate liability and builder's risk insurance throughout the
construction. Tenant does hereby indemnify and hold landlord harmless from and
against all claims for damages or death of persons or damage or destruction of
property arising our of the performance of any such alterations, additions or
improvements made by or on behalf of Tenant. Under no circumstances shall
Landlord be required to pay, during the Term of this Lease and any extensions or
renewals thereof, any ad valorem or Property tax on such alterations, additions,
improvements or repairs. Repairs which are to be performed by contractors or
workmen other than Landlord's contractors or workmen, any such contractors or
workmen must first be approved, in writing, by Landlord. Landlord agrees to
assign to Tenant any rights it may have against the contractor of the Premises
with respect to any work performed by said contractor in connection with
improvement made by Landlord at the request of Tenant.
13. OPERATING EXPENSES.
(a) Tenant agrees to reimburse Landlord throughout the Term, as Additional
Rent hereunder, for "Tenant's Share" (as defined hereinbelow) of the annual
"Operating Expenses" (as defined hereinbelow) in excess of the amount of the
base year of 2003 per rentable square foot per calendar year (hereinafter called
the "Base Rate"). The term "Tenant's Share" shall mean the percentage determined
by dividing the rentable square footage of the Premises by the rentable square
footage of the Building. If tenant does not lease the Premises during the entire
full calendar year in which the Term commences or ends, Tenant's Share of excess
Operating Expenses for the applicable calendar year shall be appropriately
prorated.
(b) "Operating Expenses" as used herein shall mean all those expenses of
operating servicing, managing, maintaining and repairing the Property, the
Building and all related common areas, in a manner deemed by Landlord reasonable
and appropriate and in the best interest of the tenants of the Building.
Operating Expenses shall include, without limitation, the following:
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(1) All taxes and assessments, whether general or special, applicable to
the Property and the Building, and all related common areas, which
shall include real and personal property ad valorem taxes, and any and
all costs and expenses incurred by Landlord in seeking a reduction of
any such taxes and assessments. However, Tenant shall not be obligated
for taxes on the net income from the operation of the Building, unless
there is imposed in the future a tax on rental income on the Building
in lieu of the real property ad valorem taxes, in which event such tax
shall be deemed an Operating Expense.
(2) Insurance premiums and deductible amounts, including, without
limitation, for commercial general liability, "all risks" property,
rent loss and other coverage's carried by Landlord on the Building and
the Property.
(3) Utility charges, including, without limitation, water, power, heating,
lighting, ventilation, sanitary sewer and air conditioning, but not
including those utility charges actually paid by tenant or other
tenants of the Building.
(4) Janitorial and maintenance expenses, including:
(i) Janitorial services and janitorial supplies and other materials
used in the operation and maintenance of the Building.
(ii) The cost of maintenance and service agreements on equipment,
window cleaning, grounds maintenance, pest control, security,
trash and snow removal, and other similar services or agreements.
(5) Management fees (or a charge equal to fair market management fees if
Landlord provides its own management services)
(6) The costs, including interest, amortized over its useful life as
reasonably determined by Landlord, of any capital improvement made to
the Building or the Property, by or on behalf of Landlord after the
date of this Lease which is required under any governmental law or
regulation (or any judicial interpretation thereof) that was not
applicable to the Building or the Property as of the date of this
Lease, and of the acquisition and installation of any device or
equipment designed to improve the operating efficiency of any system
within the Building or the Property or acquired to improve the safety
of the Building or the Property; The cost of any replacement by
Landlord of landscaping, glazing, common area carpet and common area
wall coverings.
(7) All services, supplies, repairs, replacements or other expenses
directly and reasonably associated with servicing, maintaining,
managing and operating the Building, the common areas or any other
part of the Property, including, but not limited to, the Building
lobby and other common use areas and vehicular and pedestrian traffic
areas.
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(8) Wages and salaries of Landlord's employees (not above the level of
Building Manager) engaged in the maintenance, operation, repair and
services of the Building, including taxes, insurance and customary
fringe benefits.
(9) Legal and accounting costs.
(10) Costs to maintain and repair the Building and Property.
(11) Landscaping and security costs unless Landlord hires a third party to
provide such services pursuant to a service contract and the cost of
that service contract is already included in Operating Expenses as
described above.
(12) The Building's allocated share (as reasonably be determined by
Landlord) of certain expenses which are incurred on a project-wide
basis including, without limitation, costs in connection with (i)
landscaping, (ii) utility and road repairs, (iii) security, (iv)
signage installation, replacement and repair and (v) taxes or
assessments which are not assessed against a particular building or
the parcel on which it is located.
(c) Landlord shall, on or before the Commencement Date and within a
reasonable time following the end of each calendar year, provide Tenant a
statement of the estimated monthly installments of Tenant's Share of excess
Operating Expenses increases which will be due for the remainder of the calendar
year in which the Commencement Date occurs or for the upcoming calendar year, as
the case may be. Estimated monthly installments shall be paid based upon the
most recent statement thereof (even if such statement pertains to a prior
calendar year) until such time as an updated statement is delivered by Landlord.
As soon as practicable after December 31 of each calendar year during the Term
of this Lease, Landlord shall furnish to Tenant an itemized statement of the
Operating Expenses within the Building for the calendar year then ended. Upon
reasonable prior written request given not later than thirty (30) days following
the date Landlord's statement is delivered to Tenant, Landlord will provide
Tenant detailed documentation to support the itemized statement. If Tenant does
not notify Landlord of any objection to Landlord's itemized statement within
thirty (30) days of Landlord's delivery thereof, Tenant shall be deemed to have
accepted such statement as true and correct and shall be deemed to have waived
any right to dispute the excess operating expenses due pursuant to that
statement.
(i) Tenant shall pay to Landlord, together with its monthly payment of
Base Rent as provided in Section 3 and 4 hereinabove, as Additional
Rent hereunder, the estimated monthly installment of Tenant's Share of
the excess Operating Expenses for the calendar year in question. At
the end of any calendar year if Tenant has paid to Landlord an amount
in excess of Tenant's Share of excess Operating Expenses for such
calendar year, Landlord shall reimburse to Tenant any such excess
amount (or shall apply any such excess amount to any amount then owing
to Landlord hereunder, and if none, to the next due installment or
installments of Additional Rent due hereunder, at the option of
Landlord). At the end of any calendar year if Tenant has paid to
Landlord less than Tenant's Share of excess Operating Expenses for
such calendar year, Tenant shall pay to Landlord any such deficiency
within thirty (30) days after Tenant received the annual statement.
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(ii) For the calendar year in which this Lease terminates, and is not
extended or renewed, the provisions of this Section shall apply, but
Tenant's Share for such calendar year shall be subject to a pro rata
adjustment based upon the number of days prior to the expiration of
the Term of this Lease. Tenant shall make monthly estimated payments
of the prorata portion of Tenant's Share for such calendar year (in
the manner provided above) and when the actual prorated Tenant's Share
for calendar year is determined Landlord shall send a statement to
Tenant and if such statements reveals that Tenant's estimated payments
for the prorated Tenant's Share for such calendar year exceeded the
actual prorated Tenant's Share for such calendar year, Landlord shall
include a check for the amount along with the statement. If the
statement reveals that Tenant's estimated payments for the prorated
Tenant's Share for such calendar year were less than the actual
prorated Tenant's Share for such calendar year, Tenant shall pay the
shortfall to Landlord within thirty (30) days of the date Tenant
receives Landlord's statement.
(iii)If the Building is less than ninety-five percent (95%) occupied
throughout any calendar year of the Term, then the actual Operating
Expenses for the calendar year in question shall be increased to the
amount of Operating Expenses which Landlord reasonably determines
would have been incurred during that calendar year if the Building had
been fully occupied throughout such calendar year.
(d) Notwithstanding anything to the contrary set forth herein, Landlord
does hereby agree that, solely for purposes of determining Tenant's Share of
Operating Expenses, the portion of Operating Expenses attributable to all items
other than taxes, insurance and utilities (such portion being referred to herein
as the "Controllable Expenses") shall not exceed in any calendar year the
Controllable Expenses in the Base Year increased by six percent(6%) per annum on
a cumulative, compound basis.
14. LANDLORD'S FAILURE TO GIVE POSSESSION. Landlord shall not be liable for
damages to Tenant for failure to deliver possession of the Premises to Tenant if
such failure is due to no material fault of Landlord, to the failure of any
construction or remodeling of the Premises by Tenant to be completed or to the
failure of any previous tenant to vacate the Premises. Landlord will use
reasonable efforts to give possession to the Tenant at the scheduled
Commencement Date of the Term. If failure to do so is caused by the act of any
previous tenant holding over, Landlord agrees to transfer to Tenant the right to
prosecute in its own name any cause of action which Landlord may have against
such tenant holding over, Tenant to hold for himself any recovery in such
action, except for any amount due Landlord as Rent hereunder.
15. ACCEPTANCE AND WAIVER. Landlord shall not be liable to the Tenant, its
agents, employees, guests or invitees (and, if Tenant is a corporation, its
officers, agents, employees, guests, or invitees) for any damage caused to any
of them due to the Building or any part or appurtenances thereof being
improperly constructed or being or becoming out of repair, or arising from the
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leaking of gas, water, sewer or steam pipes, or from electricity, and Tenant, by
moving into the Premises and taking possession thereof, shall accept, subject to
completion of any punchlist items, and shall be deemed to have accepted, subject
to completion of any punchlist items, the Premises as suitable for the purposes
for which the same are leased, and shall accept and shall be deemed to have
accepted the Building and every appurtenance thereof and Tenant by said act
waives any and all defects therein; provided, however, that this Paragraph shall
not apply to any damages or injury caused by or resulting from the gross
negligence or willful misconduct of Landlord.
16. SIGNS AND VENDING MACHINES. Tenant shall not paint or place signs, placards,
or other advertisements of any character upon the windows or inside walls of the
Premises except with the prior written consent of Landlord, and Tenant shall
place no signs upon the outside walls, common areas or the roof of the Premises.
Tenant shall not place or maintain any coin operated vending machines within the
Premises or the Building without written consent of the Landlord.
17. CARDING. Landlord may card the Premises "For Rent" or which any other
appropriate sign at any time within one hundred eighty (180) days prior to the
expiration, cancellation or termination of this Lease for any reason and during
such one hundred eighty (180) day period may exhibit the Premises to prospective
tenants of the Premises or to prospective tenants of the Premises or to
prospective mortgages of the Property.
18. REMOVAL OF FIXTURES. If not in default hereunder, Tenant may, prior to the
expiration of the Term, remove any trade fixtures and equipment which it has
placed in the Premises which can be removed without significant damage to the
Premises; provided, however, that Tenant shall repair all damage to the Premises
caused by such removal. The foregoing obligation to repair shall survive the
expiration or earlier termination of this Lease.
19. ENTERING PREMISES. Landlord may enter the Premises at reasonable hours
provided that Landlord's entry shall not unreasonably interrupt Tenant's
business operations and that prior notice is given when reasonably possible
(and, if in the opinion of Landlord any emergency exists, at any time and
without notice): (a) to make repairs, perform maintenance and provide other
services described in Section 20 below (no prior notice is required to provide
routine services) which Landlord is obligated to make to the Premises or the
Building pursuant to the terms of this Lease or to the other premises within the
Building pursuant to the Leases of other tenants; (b) to inspect the Premises to
see that Tenant is complying with all of the terms and conditions of this Lease
and with the rules and regulations hereof; (c) to remove from the Premises any
articles or signs kept or exhibited therein in violation of the terms hereof;
(d) to run pipes, conduits, ducts, wiring, cabling or any other mechanical,
electrical, plumbing or HVAC equipment through the areas behind the walls, below
the floors or above the drop ceilings; and (e) to exercise any other right to
perform any other obligation that Landlord has under this Lease. Landlord shall
be allowed to take all material into and upon the Premises that my be required
to make any repairs, improvements and addition, or any alterations, without in
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any way being deemed or held guilty of trespass and without constituting a
constructive eviction of Tenant. The Rent reserved herein shall not xxxxx while
said repairs, alterations or additions are being made and Tenant shall not be
entitled to maintain a set-off or counterclaim for damages against by reason of
loss from interruption to the business of Tenant because of the prosecution of
any such work. All such repairs, decoration, additions and improvement shall be
done during ordinary business hours, or, if any such work is at the request of
Tenant to be done during any other hours, the Tenant shall pay all overtime and
other extra costs.
20. SERVICES OF LANDLORD.
(a) The normal business hours of the Building shall be from 7:00 AM to 6:00
PM on Monday through Friday, and 7:00 AM to 1:00 PM on Saturday, exclusive of
national holidays. Landlord shall furnish the following services during normal
business hours of the Building except as noted:
(i) Elevator service for passenger and delivery needs.
(ii) Heat and air conditioning at a temperature of approximately 72 to 76
degrees Fahrenheit, using Landlord's commercially reasonable efforts
and subject to governmental regulations, Building rules and
regulations and routine repair, maintenance and replacement.
(iii) Cold running water for all restrooms and lavatories.
(iv) Soap, paper towels, and toilet tissue for public restrooms.
(v) Janitorial service, which includes sanitizing, dusting, cleaning,
mopping, vacuuming and removal of trash not requiring special
handling, five days a week.
(vi) Electrical and mechanical maintenance services are provided five days
a week.
(vii)Electric power, for small desk top types of machines, or hand held
devices, such as typewriters, adding machines and recording machines.
(viii)Electric lighting, at a level of at least 80 foot candles at desk
height except in corridor or storage areas, and including the
replacement of Building standard lamps and ballasts as needed.
(ix) Repairs and maintenance as described in Section 10 of this Lease.
(x) General management, including supervision, inspections, record
keeping, accounting, leasing and related management functions.
(b) The services provided in subparagraph (a) above, and the amount of Rent
prescribed herein, are predicted on and are in anticipation of certain factors
as follows:
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(i) Air conditioning design is based on sustained outside temperatures
being no higher than 92 degrees Fahrenheit and no lower than 22
degrees Fahrenheit with sustained occupancy of the Premises by no more
than one person per 000 xxxxxx xxxx xx xxxxx xxxx and electric power
for lighting and outlets not in excess of a total of 4 xxxxx per
rentable square foot of the Premises at 100% connected load.
(ii) Tenant shall have no right to any services in excess of those provided
herein. If Tenant uses services in an amount or for a period in excess
of that provided for herein, then Landlord reserves the right to:
charge Tenant as Additional Rent hereunder a reasonable sum as
reimbursement for the direct cost of such added services; charge
Tenant for the cost of any additional equipment or facilities or
modification thereto, necessary to provide the additional services;
and/or discontinue providing such excess services to Tenant.
(c) Landlord shall not be liable for any damages directly or indirectly
resulting from the interruption in any services described above, nor shall any
such interruption entitle Tenant to any abatement of Rent or any right to
terminate this Lease. Landlord shall use all reasonable efforts to furnish
uninterrupted services as required above.
21. INDEMNITIES. Tenant does hereby indemnify and save harmless Landlord against
all claims for damages to persons or Property which are caused anywhere in the
Building or on the property caused by the negligence or willful misconduct of
Tenant, its agents or employees or which occur in the Premises (or arise out of
actions taking place in the Premises) unless such damage is caused by the
negligence or willful misconduct of Landlord, its agents, or employees. The
indemnities set forth hereinabove shall include the application to pay
reasonable expenses incurred by the indemnified party, including, without
limitation, reasonable, actually incurred attorney's fees. The indemnities
contained herein do not override the waivers contained in Section 22(d) below.
22. INSURANCE AND WAIVER OF SUBROGATION.
(a) Tenant further covenants and agrees that from and after the date of
delivery of the Premises from Landlord to Tenant, Tenant will carry and
maintain, at its sole cost and expense, the following types of insurance, in the
amount specified and in the form hereinafter provided for:
(i) Liability Insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Premises and Tenant's use
thereof against claims for personal injury or death, property damage
and product liability occurring upon, in or about the Premises, such
insurance to be written on an occurrence basis (not a claims made
basis), to be in combined single limits amounts not less than
$1,000,000 and to have general aggregate limits of not less than
$2,000,000 for each policy year. The insurance coverage required under
this Section 22(a)(i) shall, in addition, extend to any liability of
Tenant arising out of the indemnities provided for in Section 21 and,
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if necessary, the policy shall contain a contractual endorsement to
that effect. The general aggregate limits under the Commercial General
Liability insurance policy or policies must apply separately to the
Premises and to Tenant's use thereof (and not to any other location or
use of Tenant) and such policy shall contain an endorsement to that
effect. The certificate of insurance evidencing the Commercial General
Liability form of policy shall specify all endorsements required
herein and shall specify on the face thereof that the limits of such
policy applies separately to the Premises.
(ii) Insurance covering all of the items included in Tenant's leasehold
improvement, heating, ventilating and air conditioning equipment
maintained by Tenant, trade fixtures, merchandise and personal
property from time to time in, on or upon the Premises, and
alterations, additions, or changes made by Tenant pursuant to Section
12, in an amount not less than one hundred percent (100%) of their
full replacement value from time to time during the Term, providing
protection against perils included within the standard form of
"all-risks" fire and casualty insurance policy, together with
insurance against sprinkler damage, vandalism and malicious mischief.
Any policy proceeds from such insurance shall be held in trust by
Tenant's insurance company for the repair, construction and
restoration or replacement of the property damage or destroyed unless
this Lease shall cease and terminate under the provision of Section 28
of this Lease.
(iii)Worker's Compensation and Employer's Liability insurance affording
statutory coverage and containing statutory limits with the Employer's
Liability portion thereof to have minimum limits of $500,000.00.
(iv) Business Interruption Insurance equal to not less than fifty percent
(50%) of the estimated gross earning (as defined in the standard form
of business interruption insurance policy) of Tenant at the Premises
which insurance shall be issued on an "all risks" basis (or its
equivalent).
(b) All policies of the insurance provided for in Section 22(a) shall be
issued in form acceptable to Landlord by insurance companies with a rating and
financial size of not less than A-X in the most current available "Best's
Insurance Reports", and licensed to do business in the state in which Landlords
Building is located. Each and every such policy:
(i) shall name Landlord as an additional insured (as well as any mortgagee
of Landlord and any other party reasonably designated by Landlord) and
the coverage in (ii) shall also name Landlord as loss payee.
(ii) shall (and a certificate thereof shall be delivered to Landlord at or
prior to the execution of the Lease) be delivered to each of Landlord
and any such other parties in interest within thirty (30) days after
delivery of possession of the Premises to Tenant and thereafter within
thirty (30) days prior to the expiration of each such policy, and, as
often as any such policy shall expire or terminate. Renewal or
additional policies shall be procured and maintained by Tenant in like
manner and to like extent;
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(iii)shall contain a provision that the insurer will give to Landlord and
such other parties in interest at least thirty (30) days notice in
writing in advance of any material change, cancellation, termination
or lapse, or the effective date of any reduction in the amount of
insurance; and
(iv) shall be written as a primary policy which does not contribute to and
is not in excess of coverage which Landlord may carry.
(c) Any insurance provided for in Section 22(a) may be maintained by means
of a policy or policies of blanket insurance, covering additional items or
location or insureds, provided, however, that:
(i) Landlord and any other parties in interest from time to time
designated by Landlord to Tenant shall be named as an additional
insured thereunder as its interest may appear;
(ii) the coverage afforded Landlord and any such other parties in interest
will not be reduced or diminished by reason of the use of such blanket
policy of insurance;
(iii)any such policy or policies (except any covering the risks referred
to in Section 22(a) shall specify therein (or Tenant shall furnish
Landlord with a written statement from the insurers under such policy
specifying) the amount of the total insurance allocated to the
Tenant's improvements and property more specifically detailed in
Section 22(a); and
(iv) the requirements set forth in this Section 22 are otherwise satisfied.
(d) Notwithstanding anything to the contrary set forth hereinabove,
Landlord and Tenant do hereby waive any and all claims against one another for
damage to or destruction of real or personal property to the extent such damage
or destruction can be covered by "all risks" property insurance of the type
described in Section 22(a)(ii) above. Each party shall also be responsible for
the payment of any deductible amounts required to be paid under the applicable
"all risks" fire and casualty insurance carried by the party whose property is
damaged. These waivers shall apply if the damage would have been covered by a
customary "all risk" insurance policy, even if the party fails to obtain such
coverage. The intent of this provision is that each party shall look solely to
its insurance with respect to property damage or destruction which can be
covered by "all risks" insurance of the type described in Section 22(a)(ii). To
further effectuate the provisions of this Section 22(d), Landlord and Tenant
both agree to provide copies of the Lease (and in particular, these waivers) to
their respective insurance carriers and to require such insurance carriers to
waive all rights of subrogation against the other party with respect to property
damage covered by the applicable "all risks" fire and casualty insurance policy.
23. GOVERNMENTAL REQUIREMENTS. Tenant shall, at its own expense, promptly comply
with all requirements of any legally constituted governmental or public
authority made necessary by reason of Tenant's occupancy of the Premises.
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24. ABANDONMENT OF PREMISES. Tenant agrees not to abandon the Premises during
the Term of this Lease. If Tenant does abandon the Premises for more than ninety
(90) days, Landlord may terminate this Lease, by written notice to Tenant at any
time prior to Tenant reoccupying the Premises, but such termination shall not
entitle Landlord to pursue any other remedies unless an uncured Event of Default
then exists, in which case Landlord may pursue any and all remedies provided by
this Lease, at law or in equity.
25. ASSIGNMENT AND SUBLETTING. Tenant may not, without the prior written consent
of Landlord, which consent may be withheld by Landlord in its sole, unfettered
discretion, assign this Lease or any interest hereunder, or sublet the Premises
or any part thereof, or permit the use of the individual, any transfer of a
majority or controlling interest in Tenant (Whether by stock transfer, merger,
operation of law or otherwise) shall be considered an assignment for purposes of
this paragraph and shall require Landlord's prior written consent. Consent to
one assignment or sublease shall not destroy or waive this provision, and all
later assignments and subleases shall likewise be made only upon the prior
written consent of Landlord. Subtenants or assignees shall become liable to
Landlord for all obligations of Tenant hereunder, without relieving Tenant's
liability hereunder and, in the event of any default by Tenant under this Lease,
Landlord may, at its option, but without any obligation to do so, elect to treat
such sublease or assignment as a direct Lease with Landlord and collect rent
directly from the subtenant. In addition, upon any request by Tenant for
Landlord's consent to an assignment or sublease, Landlord may elect to terminate
this Lease and recapture all of the premises (in the event of an assignment
request) or the applicable portion of the Premises (in the event of a subleasing
request); provided, however, if Landlord notifies Tenant that Landlord elects to
exercise this recapture right, Tenant may, within five (5) business days of its
receipt of Landlord's notice, notify Landlord that Tenant withdraws its request
to sublease or assign, in which case Tenant shall continue to lease all of the
Premises, subject to the terms of this Lease and Landlord's recapture notice
shall be null and void. If Tenant desires to assign or sublease, Tenant must
provide written notice to Landlord describing the proposed transaction in detail
and providing all documentation (including detailed financial information for
the proposed assignee or subtenant) reasonably necessary to let Landlord
evaluate the proposed transaction. Landlord shall notify Tenant within twenty
(20) days of its receipt of such notice whether Landlord elects to exercise its
recapture right and, if not, whether Landlord consents to the requested
assignment or sublease. If Landlord fails to respond within such twenty (20) day
period, Landlord will be deemed not to have elected to recapture and not to have
consented to the assignment or sublease. If Landlord does consent to any
assignment or sublease request and the assignee or subtenant pays to Tenant an
amount in excess of the Rent due under this lease (after deducting Tenant's
reasonable, actual expenses in obtaining such assignment or sublease, amortized
in equal monthly installments over then remainder of the Term), Tenant shall pay
75% of such excess to Landlord as and when the monthly payments are received by
Tenant.
26. DEFAULT. The occurrence of any one or more of the following shall constitute
an event of default (an "Event of Default") hereunder:
(i) If Tenant shall default in the payment of Rent herein provided as and
when due; or
(ii) If Tenant shall be in default in performing any of the terms or
provisions of this Lease other than the provision requiring the
18
payment of Rent, and fails to cure such default within ten (10) days
after the date of receipt of written notice of such default from
Landlord; or
(iii)If Tenant or any guarantor hereof is adjudicated bankrupt or
insolvent; or if Tenant or any guarantor hereof shall become
insolvent, shall make a transfer in fraud of creditors or shall make
an assignment for the benefit of creditors; or is a permanent receiver
is appointed for Tenant's or any such guarantor's property and such
receivers is not removed within sixty (60) days thereafter Tenant to
obtain such removal; or if, whether voluntarily or involuntarily,
Tenant or any such guarantor takes advantage of any bankruptcy or
other debtor relief proceedings under any present or future law; or if
there shall be filed against Tenant or any such guarantor a petition
in bankruptcy or insolvency or a similar proceeding; or if Tenant's
effects should be levied upon or attached under process against Tenant
which is not satisfied or dissolved within thirty (30) days; or
(iv) If Tenant shall do or permit to be done anything which creates a lien
upon the Premises or any other part of the Property; or
(v) If Tenant shall violate the provision of Section 25 of this Lease by
the attempted making of an unpermitted assignment, sublease or
transfer of stock or interest in the ownership of Tenant; or
(vi) If Tenant shall fail to maintain in force all policies of insurance
required by this Lease.
Any notice provided in this Paragraph may be given by Landlord, Landlord's
attorney or any agent of Landlord.
27. LANDLORD'S REMEDIES.
(a) Upon the occurrence of an Event of Default as defined in Paragraph 26
above, Landlord shall have the option to do and perform any one or more of the
following, in addition to, and not in limitation of, any other remedy or right
permitted or allowed by law or in equity or by the provisions of this Lease:
(i) terminate this Lease, in which event Tenant shall immediately
surrender possession of the Premises to Landlord and, if Tenant fails
to so surrender possession of the Premises, Landlord shall have the
right, without prejudice to any other remedy which Landlord may have
for possession or arrearages in Rent, to enter upon and take
possession of the Premises and expel or remove Tenant and any other
person who may be occupying the Premises or any part thereof, with or
without process of law and by force if necessary, without being liable
for prosecution or any claim of damages therefore and upon such
termination recover from Tenant liquidated damages calculated as
hereinafter provided in subparagraph 27(b);
(ii) without terminating this Lease, enter upon and take possession of the
Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, with or without process of
law and by force if necessary, without being liable for prosecution of
any claim for damages therefore and, if Landlord so elects, relet the
19
Premises on such terms as Landlord deems advisable and receive the
rent therefore, Tenant hereby agreeing to pay to Landlord on demand
any deficiency that may arise by reason of such reletting plus the
costs of such reletting;
(iii)enter the Premises, by force if necessary, without terminating this
Lease or being liable for prosecution or for any claim of damages
therefore, and do whatever Tenant is obligated to do under the terms
of this Lease, and Tenant agrees to reimburse Landlord on demand for
any and all expenses, including, without limitation, all attorneys'
fees and court costs which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease, and Tenant
further agrees that Landlord shall not be liable for any damages
resulting to Tenant for such action, whether caused by the negligence
of Landlord or otherwise; or
(iv) without terminating this Lease, declare immediately due and payable
the present value (calculated using a reasonable discount rate) of all
Base Rent and Additional Rent due and coming due under this Lease for
the entire remaining Term (as if by the terms of this Lease they were
payable in advance), together with the cost of recovering and
reletting the Premises (including, without limitation, attorney's fees
and expenses) and all other expenses incurred by Landlord in
connection with the Premises as of the date this provision is invoked
by Landlord, plus interest thereon, and Landlord may immediately
proceed to distrain, collect, or bring action for such sum, or may
file a proof of claim in any bankruptcy or insolvency proceedings to
enforce payment thereof, provided, however, that such payment shall
not be deemed a penalty or liquidated damages, but shall merely
constitute payment in advance of all Rent payable hereunder throughout
the term, and provided further, however, that upon receiving such
payment, Tenant shall be entitled either to remain in possession of
the Premises (subject to the performance of all other covenants,
duties and obligations hereunder) or to receive from Landlord all
rents received by Landlord from other assignees, tenants and
subtenants on account of said Premises during the remainder of the
Term (provided that the monies to which Tenant shall so become
entitled shall in no event exceed the entire amount actually paid by
Tenant to Landlord pursuant to this item (iv)), less all costs,
expenses and attorney's fees of Landlord incurred in connection with
the reletting of the Premises.
(b) If this Lease is terminated by Landlord as a result of the occurrence
of an Event of Default, Landlord shall have the right, at Landlord's election,
to recover from Tenant all damages incurred by reason of such Tenant's default
including, without limitation, a sum equal to (1) the then present value
(calculated using a reasonable discount rate) of the excess, if any, of the
total Base Rent and Additional Rent and all other sums which would have been
payable hereunder by Tenant for the period commencing with the day following the
date of such termination and ending with the scheduled expiration date of the
Term, minus the aggregate reasonable rental value of the Premises for the same
period (reasonably determined by Landlord as set forth below), plus (2) the
costs of recovering the Premises and all other reasonable expenses incurred by
Landlord due to Tenant's default, including, without limitation, attorneys' fees
20
and expenses, plus (3) the unpaid Base Rent and Additional Rent or any other
sums due by Tenant under this Lease as of the date of such termination, with
interest thereon. In determining the aggregate reasonable rental value pursuant
to item (1) above, the parties hereby agree that the following factors shall be
considered by Landlord as of the time Landlord seeks to enforce such remedy: (A)
the length of time remaining in the Term; (B) the then current market conditions
in the general area in which the Building is located; and (C) the rental rates
then being obtained for space of similar type and size in similar type buildings
in the general area in which the Building is located. Tenant agrees to pay the
aforesaid amounts at once at the address of Landlord set forth in the preamble
on page 1 of this Lease; provided, however, that such payment shall not
constitute a penalty or forfeiture but shall constitute liquidated damages for
Tenant's failure to comply with the terms and provision of this Lease (Landlord
and Tenant agreeing that Landlord's actual damages in such event would be
impossible to ascertain and that the amount set forth above is a reasonable
estimate thereof).
(c) Pursuit by Landlord of any of the foregoing remedies shall not preclude
pursuit of any other remedy herein provided or any other remedy provided by law
or in equity, nor shall pursuit by Landlord of any remedy herein provided
constitute: (i) an election of remedies thereby excluding the later election of
an alternate remedy, (ii) forfeiture or waiver of any Base Rent, Additional Rent
or other rentals, charges or assessments payable by Tenant to Landlord
hereunder, or (iii) forfeiture or waiver of any damages accruing to Landlord by
reason of the violation of any of the terms, covenants, warranties and
provisions herein contained. No action taken by or on behalf of Landlord shall
be construed to be an acceptance or a surrender of this Lease. The forbearance
of Landlord to enforce one or more of the remedies herein provided upon an Event
of Default shall not be deemed or construed to constitute a waiver of such
default. No waiver of any breach of the covenants, warranties, agreements,
provisions or conditions contained in this Lease shall be construed as a waiver
of said covenant, warranty, provision, agreement or condition or of any
subsequent breach thereof. In determining the amount of loss or damage which
Landlord may suffer by reason of termination of this Lease or the deficiency
arising by reason of any reletting of the Premises by Landlord as above
provided, allowance shall be made for all expenses of repossession and any
repairs or remodeling undertaken by Landlord following repossession. Tenant
hereby agrees to pay to Landlord all costs and expenses incurred by Landlord in
the enforcement of this Lease, including, without limitation, all fees and
expenses of all attorneys employed by Landlord to effect collection of any sums
due hereunder or to enforce any right or remedy of Landlord.
(d) If during the Term a Trustee is appointed for Tenant in any proceeding
arising under Title 11 of the United States Code Relating to Bankruptcy, as
amended, such Trustee shall have the right to assume Tenant's right and
obligations under this Lease only if the Trustee: (i) promptly (no later than
sixty (60) days following the filing of any motion or application to assume
Tenant's obligation under this Lease) cures or provides adequate assurance that
the Trustee will promptly cure any default under this Lease; (ii) compensates or
provides adequate assurance that the Trustee will promptly compensate Landlord
for any actual pecuniary loss (including, without limitation, rental and all
other sums due from Tenant, and all resulting attorney's fees and costs incurred
in connection with Tenant's bankruptcy proceedings) incurred by Landlord as a
result of Tenant's default under this Lease; and (iii) provides adequate
assurance of future performances under this Lease by the proposed assignee.
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Adequate assurance of future performance by the proposed assignee shall include,
at a minimum, that: (a) any proposed assignee of this Lease shall deliver to
Landlord a security deposit in an amount equal to at least three (3) months'
Base Rent accruing under this Lease and (b) any proposed assignee shall provide
to Landlord a current and accurate financial statement, the proposed assignee to
have a net worth equal to at least one year's Base Rent accruing under this
Lease, or, in the alternative, the proposed assignee shall provide a guarantor
of such proposed assignee's obligations under this Lease, which guarantor shall
provide Landlord with an audited financial statement meeting the requirements of
(b) hereinabove and shall execute and deliver to Landlord a guaranty agreement
in form and substance acceptable to Landlord.
28. DESTRUCTION OR DAMAGE.
(a) If the Building or the Premises are totally destroyed by storm, fire
earthquake, or other casualty, or damaged to the extent that, in Landlord's
reasonable opinion the damage cannot be restored within one hundred eighty (180)
days of the date Landlord provides Tenant written notice of Landlord's
reasonable estimate of the time necessary to restore the damage, or if the
damage is not covered by standard "all risks" property insurance, or if the
Landlord's lender requires that the insurance proceeds be applied to its loan,
Landlord shall have the right to terminate this Lease effective as of the date
for such destruction or damage by written notice to Tenant on or before thirty
(30) days following Landlord's notice described in the next sentence and Rent
shall be accounted for as between Landlord and Tenant as of that date. Landlord
shall provide Tenant with notice within sixty (60) days following the date of
the damage of the estimated time needed to restore, whether the loss is covered
by Landlord's insurance coverage and whether or not Landlord's lender requires
the insurance proceeds be applied to its loan.
(b) If the Premises are damaged by any such casualty or casualties but
Landlord is not entitled to or does not terminate this Lease as provided in
subparagraph (a) above, this Lease shall remain in full force and effect,
Landlord shall notify Tenant in writing within sixty (60) days of the date of
the damage that the damage will be restored (and will include Landlord's good
faith estimate of the date the restoration will be complete), in which case Rent
shall xxxxx as to any portion of the Premises which is not usable, and Landlord
shall restore the Premises to substantially the same condition as before the
damage occurred as soon as practicable, whereupon full Rent shall recommence:
However, Landlord shall not be responsible for the restoration of any tenant
improvements which were not originally completed by the Landlord.
29. EMINENT DOMAIN. If the whole of the Building or Premises, or such portion
thereof as will make the Building or Premises unusable in the reasonable
judgment of Landlord for their intended purposes, is condemned or taken by any
legally constituted authority for any public use or purpose, then in either of
said events, Landlord may terminate this Lease by written notice to Tenant and
the Term hereby granted shall cease from that time when possession thereof is
taken by condemning authorities, and Rent shall be accounted for as between
22
Landlord and Tenant as of that date. If a portion of the Building or Premises is
so taken, but not such amount as will make the Premises unusable in the
reasonable judgment of Landlord for the purposes herein lease, or if Landlord
elects not to terminate this Lease, this Lease shall continue in full force and
effect and the Rent shall be reduced prorata in proportion to the amount of the
Premises so taken. Tenant shall have no right or claim to any part of any award
made to or received by Landlord for such condemnation or taking, and all awards
for such condemnation or taking shall be made solely to Landlord. Tenant shall,
however, have the right to pursue any separate award that does not reduce the
award to which Landlord is entitled.
30. SERVICE NOTICE.
(a) Any notice which is required or permitted to be given by either party
under this Lease shall be in writing and must be given only by certified mail,
return receipt requested, by hand delivery or by nationally recognized overnight
courier service at the addresses set forth below. Any such notice shall be
deemed given on the date sent or deposited for delivery in accordance with one
of the permitted methods described above. The time period for responding to any
such notice shall begin on the date the notice is actually received, but refusal
to accept delivery or inability to accomplish delivery because the party can no
longer be found at the then current address, shall be deemed receipt. Either
party may change its notice address by notice to the other party in accordance
with the terms of this Section. The initial notice addresses for each party are
set forth in the preamble on page 1 of this Lease.
(b) Except as otherwise provided by law, Tenant hereby appoints as its
agent to receive service of all dispossessory or distraint proceedings and
notices thereunder, and all notices required under this Lease, the person, from
time to time, in charge of or occupying the Premises at the time of such
proceeding or notice; and if no person be in charge or occupying the Premises,
then such service of notice may be made by attaching the same to the front
entrance of the Premises.
31. RIGHTS OF MORTGAGEES.
(a) Tenant agrees that this Lease shall be subject and subordinate (i) to
any mortgage, deed to secure debt or other security interest now encumbering the
Property and to all advances which may be hereafter made, to the full extent of
all debts and charges secured thereby and to all renewals or extensions of any
part thereof, and to any mortgage, deed to secure debt or other security
interest which any owner of the Property may hereafter, at any time, elect to
place on the Property; (ii) to any assignment of Landlord's interest in the
leases and rents from the Building or Property which includes the Lease which
now exists or which any owner of the Property may hereafter, at any time, elect
to place on the Property; and (iii) to any Uniform Commercial Code Financing
Statement covering the personal property rights of Landlord or any owner of the
Property which now exists or any owner of the Property may hereafter, at any
time, elect to place on the foregoing personal property (all of the foregoing
instruments set forth in (i), (ii) and (iii) above being hereafter collectively
23
referred to as "Security Documents"). Tenant agrees upon request of the holder
of any Security Documents ("Holder") to hereafter execute any documents which
the counsel for Landlord or Holder may deem necessary to evidence the
subordination of the Lease to the Security Documents. If Tenant fails to execute
any such requested documents, Landlord or Holder is hereby empowered to execute
such documents in the name of Tenant evidencing such subordination, as the act
and deed of Tenant, and this authority is hereby declared to be coupled with an
interest and not revocable.
(b) In the event of a foreclosure pursuant to any Security Documents,
Tenant shall at the election of the Landlord, thereafter remain bound pursuant
to the terms of this Lease as if a new and identical Lease between the purchaser
at such foreclosure ("Purchaser"), as Landlord, and Tenant, as tenant, had been
entered into for the remainder of the Term hereof and Tenant shall attorn to the
Purchaser upon such foreclosure sale and shall recognize such Purchaser as the
Landlord under the Lease. Such attornment shall be effective and self-operative
without the execution of any further instrument on the part of any of the
parties hereto. Tenant agrees, however, to execute and deliver at any time and
from time to time, upon the request of Landlord or of Holder, any instrument or
certificate that may be necessary or appropriate in any such foreclosure
proceeding or otherwise to evidence such attornment.
(c) If the Holder of any Security Document or the Purchaser upon the
foreclosure of any of the Security Documents shall succeed to the interest of
Landlord under the Lease, such Holder or Purchaser shall have the same remedies,
by entry, action or otherwise for the non-performance of any agreement contained
in the Lease, for the recovery of Rent or for any other default or event of
default hereunder that Landlord had or would have had if any such Holder or
Purchaser had not succeeded to the interest of Landlord. Any such Holder or
Purchaser which succeeds to the interest of Landlord hereunder, shall not be (a)
liable for any act or omission of any prior Landlord (including Landlord); or
(b) subject to any offsets or defense which Tenant might have against any prior
Landlord (including Landlord); or (c) bound by any Rent which Tenant might have
paid for more than the current month to any prior Landlord (including Landlord);
or (d) bound by any amendment or modification of the Lease made without its
consent.
(d) Tenant hereby acknowledges that if the interest of Landlord hereunder
is covered by assignment of Landlord's interest in Lease, Tenant shall pay all
Rent due and payable under the Lease directly to the Holder of the assignment of
Landlord's interest in Lease upon notification of the exercise of the rights
thereunder by the Holder thereof.
(e) Notwithstanding anything to the contrary set forth in this Section, the
Holder of any Security Documents shall have the right, at any time, to elect to
make this Lease superior and prior to its Security Document. No documentation,
other than written notice to Tenant, shall be required to evidence that the
Lease has been made superior and prior to such Security Documents, but Tenant
hereby agrees to execute any documents reasonably requested by Landlord or
Holder to acknowledge that the Lease has been made superior and prior to the
Security Documents.
24
32. TENANT'S ESTOPPEL. Tenant shall, from time to time, upon not less than ten
(10) days prior written request by Landlord, execute, acknowledge and deliver to
Landlord a written statement 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 dates
to which Tenant has been paid, that Tenant is not in default hereunder and has
no off-sets or defense against Landlord under this Lease, and whether or not to
the best of Tenant's knowledge Landlord is in default hereunder ( and if so,
specifying the nature of the default), it being intended that any such statement
delivered pursuant to this Paragraph may be relied upon by a prospective
purchaser of Landlord's interest or by a mortgagee of Landlord's interest or
assignee of any mortgage or security deed upon Landlord's interest in the
Property of any part thereof.
33. ATTORNEY"S FEES AND HOMESTEAD. If Landlord exercises any of the remedies
provided to Landlord under this Lease as a result of Tenant's failure to comply
with its obligations, or if Landlord brings any action to enforce its rights
under this Lease, Tenant shall be obligated to reimburse Landlord, on demand,
for all costs and expenses, including reasonable attorney's fees and court
costs, incurred in connection therewith. Tenant waives all homestead rights and
exemptions which he may have under any law against any obligations owing under
this Lease and Tenant hereby assigns to Landlord his homestead exemption.
34. PARKING. No specific rights to any parking are granted under this Lease.
Tenant acknowledges and agrees it shall make its own arrangements to obtain
sufficient parking for its employees, agents and invitees. In the event that
Tenant enters into an agreement with any party for any parking (including,
without limitation, parking in the parking garage facilities serving the
Building), Tenant shall look solely to such party with respect to all matters
concerning such parking. Landlord reserves the right to build improvements upon,
reduce the size of, relocate, reconfigure, eliminate, and/or make alterations or
additions to any then existing parking garage or other facilities at any time.
35. STORAGE. If Landlord makes available to Tenant any storage space outside the
Premises, anything stored therein shall be wholly at the risk of Tenant, and
Landlord shall have no responsibility of any character with respect thereto.
36. WASTE DISPOSAL.
(a) All normal trash and waste (i.e., waste that does not require special
handling pursuant to subparagraph (b) below) shall be disposed of through the
janitorial service to be provided by Landlord as set forth hereinabove.
(b) Tenant shall be responsible for the removal and disposal of any waste
deemed by any governmental authority having jurisdiction over the matter to be
hazardous or infectious waste or waste requiring special handling, such removal
and disposal to be in accordance with any and all applicable government
governmental rules, regulations, codes, orders or requirements. Tenant agrees to
separate and xxxx appropriately all waste to be removed and disposed of through
25
the janitorial service pursuant to (a) above and hazardous, infectious or
special waste to be removed and disposed of by Tenant pursuant to this
subparagraph (b). Tenant hereby indemnifies and holds harmless Landlord and its
officers, directors, shareholders, members, partners, employees, agents,
contractors, successors and assigns from and against any loss, claims, demands,
damage or injury Landlord or any of them may suffer or sustain as a result of
Tenant's failure to comply with the provisions of this subparagraph (b).
37. SURRENDER OF PREMISES. Whenever under the terms hereof Landlord is entitled
to possession of the Premises, Tenant at once shall surrender the Premises and
the keys thereto to Landlord in the same condition as on the Commencement Date
hereof, natural wear and tear only excepted, and Tenant shall remove all of its
personalty therefrom and shall, if directed to do so by Landlord, remove all
improvements and restore the Premises to its original condition prior to the
construction of any improvements which have been made therein by or on behalf of
Tenant, including any improvements made prior to the Commencement Date. Landlord
may forthwith re-enter the Premises and repossess itself thereof and remove all
persons and effects therefrom, using such force as may be necessary without
being guilty of forcible entry, detainer, trespass or other tort. Tenant's
obligations to observe or perform these covenants shall survive the expiration
or other termination of the Term of this Lease. If the last day of the Term of
this Lease or any renewal falls on Sunday or a legal holiday, this Lease shall
expire on the business day immediately preceding.
38. CLEANING PREMISES. Upon vacating the Premises, Tenant, agrees to clean the
Premises thoroughly or to pay Landlord for the cleaning necessary to restore the
Premises to a "broom-clean" condition, regardless of whether any security
deposit has been forfeited.
39. NO ESTATE IN LAND. This Lease shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of Landlord;
Tenant's rights hereunder are not subject to levy or sale and not assignable by
Tenant except with Landlord's consent as set forth hereinabove.
40. CUMULATIVE RIGHTS. All rights, powers and privileges conferred hereunder
upon Landlord shall be cumulative but not restrictive of those given by law or
in equity.
41. PARAGRAPH TITLES; SEVERABILITY. The paragraph titles used herein are not to
be considered a substantive part of this Lease, but merely descriptive aids to
identify the paragraph to which they refer. Use of the masculine gender includes
the feminine and neuter and vice versa, where necessary to impart contextual
continuity. If any paragraph or provisions herein is held invalid by a court of
competent jurisdiction, all other paragraphs or severable provisions of this
Lease shall not be affected thereby, but shall remain in full force and effect.
42. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal property brought into the
Premises shall be at the risk of Tenant only, and Landlord shall not be liable
for the theft thereof or any damage thereto occasioned by any acts of co-tenants
or other occupants of the Building, or any other person, except, with respect to
damage to the Premises, as may be occasioned by the grossly negligent or willful
act of the Landlord, its employees and agents.
26
43. HOLDING OVER. In the event Tenant remains in possession of the Premises
after the expiration of the term hereof, or of any renewal term, with Landlord's
written consent, Tenant shall be a tenant at will and such tenancy shall be
subject to all provisions hereof, except that the monthly rental shall be at the
higher of double the monthly Base Rent payable hereunder upon such expiration of
the Term hereof, or of any renewal term, or double the then current fair market
rental value of the Premises as the same would be adjusted pursuant to the
provision of Section 3 hereof. In the event Tenant remains in possession of the
Premises after the expiration of the Term hereof, or any renewal term, without
Landlord's written consent, Tenant shall be a tenant at sufferance and may be
evicted by landlord without any notice, but Tenant shall be obligated to pay
rent for such period that Tenant holds over without written consent at the same
rate provided in the previous sentence and shall also be liable for any and all
other damages Landlord suffers as a result of such holdover including, without
limitation, the loss of a prospective tenant for such space. There shall be no
renewal of this Lease by operation of law or otherwise. Nothing in this Section
shall be construed as a consent by Landlord for any holding over by Tenant after
the expiration of the Term hereof, or any renewal term.
44. SECURITY DEPOSIT. Tenant shall pay Landlord the sum of $1,456.33(hereinafter
referred to as "Security Deposit") as evidence of good faith on the part of
Tenant in the fulfillment of the terms of this Lease, which shall be held by the
Landlord during the Term. Under no circumstances will Tenant be entitled to any
interest on the Security Deposit. The Security Deposit may be used by Landlord,
at its discretion, to apply to any amount owing to Landlord hereunder, or to pay
the expenses of repairing any damage to the Premises, except natural wear and
tear occurring from normal use of the Premises, which exists on the day Tenant
vacates the Premises but this right shall not be construed to limit Landlord's
right to recover additional sums from Tenant for damages to the Premises. In
addition to any other rights available to Landlord hereunder, the Security
Deposit shall be forfeited in the event Tenant fails to continually occupy the
Premises as Tenant for the full original Term, or if this Lease should for any
reason whatsoever be terminated prior to the normal expiration date of the
original Term. If there are no payments to be made from the Security Deposit as
set out in this Paragraph, or if there is any balance of the Security Deposit
remaining after all payments have been made, the Security Deposit, or such
balance thereof remaining, will be refunded to the Tenant within thirty (30)
days after fulfillment by Tenant of all obligations hereunder. In no event shall
Tenant be entitled to apply the Security Deposit to any Rent payment due
hereunder. In the event of an act of bankruptcy by or insolvency of Tenant, or
the appointment of a receiver for Tenant or a general assignment for the benefit
of Tenant's creditors, then the Security Deposit shall be deemed immediately and
automatically assigned to, and shall be considered to property of Landlord. The
right to retain the Security Deposit shall be in addition and not alternative to
Landlord's other remedies under this Lease or as may be provided by law and
shall not be affected by summary proceedings or other proceedings to recover
possession of the Premises. Upon sale or conveyance of the Building, Landlord
may transfer or assign the Security Deposit to any new owner of the Premises,
and upon such transfer all liability of Landlord for the Security Deposit shall
terminate. Landlord shall be entitled to coomingle the Security Deposit with its
other funds.
27
45. LEASEHOLD IMPROVEMENTS. The Work Letter, if any, attached hereto as Exhibit
C, is hereby made a part of this Lease, and its provisions shall control in the
event of a conflict with the provision contained in this Lease.
46. RULES AND REGULATIONS. The rules and regulations in regard to the Building,
annexed hereto as Exhibit D or separately furnished to tenant (referred to
throughout this Lease as the "Rules and Regulations"), and all reasonable rules
and regulations which Landlord may hereafter, from time to time, adopt and
promulgate for the government and management of the Building and common areas
are hereby made a material part of this Lease and shall, during the Term, be in
all things and at all times observed and performed by Tenant, its agents,
employees or invitees.
47. QUIET ENJOYMENT. Tenant, upon payment in full of the required Rent and full
performance of the terms, conditions, covenants and agreements contained in this
Lease, shall peaceably and quietly have, hold and enjoy the Premises throughout
the Term. Landlord shall not be responsible for the acts or omissions of any
other tenant, lessee or third party that may interfere with Tenant's use and
enjoyment of the premises.
48. ENTIRE AGREEMENT. This Lease contains the entire agreement of the parties
and no representation, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force or effect.
49. LIMITATION OF LIABILITY. Landlord's obligations and liability with respect
to this Lease shall be limited solely to Landlord's interest in the Building, as
such interest is constituted from time to time, and neither Landlord nor any
partner of affiliate of Landlord, nor any officer, director, shareholder,
member, or partner of Landlord or any partner or affiliate of Landlord, shall
have any personal liability whatsoever with respect to this Lease.
50. SUBMISSION AGREEMENT. Submission of this Lease to Tenant for signature does
not constitute a reservation of space or an option to acquire a right of entry
or an officer to lease. This Lease is not binding of effective until execution
by and delivery to both Landlord and Tenant.
51. AUTHORITY. If Tenant executes this Lease as a corporation, Limited
Partnership, limited liability company or any other type of entity, each of the
persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly organized and validly existing
corporation, limited partnership, limited liability company or any other types
of entity, that Tenant is qualified to do business in the state in which the
Premises are located, that Tenant has full right, power and authority to enter
into this Lease, and that each person signing on behalf of Tenant is authorized
to do so. In the event any such representation and warranty is false, all
persons who execute this Lease shall be individually, jointly and severally
liable as Tenant. Upon Landlord's request, Tenant shall provide Landlord with
evidence reasonably satisfactory to Tenant confirming the foregoing
representations and warranties.
28
52. RELOCATION OF PREMISES. At any time or from time to time during the Term or
any renewal thereof, Landlord shall have the unrestricted right to relocate
Tenant from the Premises to any other office space in the Building having a view
comparable to that of the original Premises. Landlord shall provide Tenant at
least ninety (90) days prior written notice of any such relocation and Landlord
shall reimburse Tenant for all reasonable expenses incurred by Tenant in
connection with such relocation including moving expenses, telecommunications
and data cabling and hookup and the cost of reasonable supply of replacement
stationery. Landlord shall, at its sole expense, renovate or construct
improvements in the relocation space that are substantially similar to those in
the Premises. Following any such relocation, Landlord and Tenant shall enter
into an amendment to this Lease to reflect that the Premises consists of the
relocation space. All other terms and conditions of the Lease shall remain
unchanged following such relocation.
53. BROKER DISCLOSURE. Landlord represents that it has dealt with no broker.
Landlord agrees that, if any other broker makes a claim for a commission based
upon the actions of Landlord, Landlord shall indemnify, defend and hold Tenant
harmless from any such claim. Tenant represent that it has dealt with no broker.
Tenant agrees that, if any broker makes a claim for a commission based upon the
actions of Tenant, Tenant shall indemnify, defend and hold Landlord harmless
from any such claim. Tenant will cause its brokers to execute a customary lien
waiver, adequate under Florida law, to extinguish any lien claims such broker
may have in connection with this Lease.
54. LANDLORD'S LIEN. Notwithstanding any other provision hereof to the contrary,
Tenant does hereby grant to Landlord, and Landlord shall have at all times, a
security interest in and a valid first lien upon all of the personal property
and trade fixtures of Tenant situated in and upon the Premises to secure the
obligations of Tenant for all Base Rent, Additional Rent and other sums to
become due hereunder and the performance by Tenant of each and all of Tenant's
other covenants and obligations hereunder. The security interest and lien
granted herein may be foreclosed in the manner and form provided by law for the
foreclosure of chattel mortgages or in any other manner provided or permitted by
law.
55. SPECIAL STIPULATIONS. Special Stipulations, if any, are set forth below. In
the event of a conflict between the Special Stipulations and the other terms of
this Lease, the Special Stipulations shall control.
NONE
56. RADON GAS. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient qualities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed Federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
29
57. FORCE MAJEURE. In the event of a strike, lockout, labor trouble, civil
commotion, an act of God, or any other event beyond Landlord's control (a "force
majeure event") which results in the Landlord being unable to timely perform its
obligations hereunder, so long as Landlord diligently proceeds to perform such
obligations after the end of the force majeure event, Landlord shall not be in
breach hereunder, this Lease shall not terminate, and Tenant's obligation to pay
any Base Rent, additional rent, or any other charges and sums due and payable
shall not be excused.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, the day and year first above written:
WITNESS: LANDLORD:
_________________________ Xxxxxx Corporation of Delaware, a
Delaware Corporation
_________________________
By: /s/ Xxxx Xxxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxxx
Title:Executive Vice President
WITNESSES: TENANT:
XXXXXXXX.XXX, INC.
/s/ Xxxxx X'Xxxx
_____________________________ By: /s/Xxxxxxx Xxxxxxxx
Name:Xxxxxxx Xxxxxxxx
Title:President
30
EXHIBIT A
LEGAL DESCRIPTION
PARCEL I:
Xxxx 0, 0, 0 xxx 0, Xxxxx "13" of XXXXX AND XXXXXX 1ST AND 2ND ADDITION TO
CLEARWATER-HARBOR, FLORIDA according to a map or plat thereof recorded in Plat
Book 1, Page 52 of the Public Records of Hillsborough County, Florida of which
Pinellas County was formerly a part, less road right-of-way, together with that
portion of said Block "13", which was formerly an alley, running East and West
through said Block "13", also vacated railroad right-of-way described as
follows: Begin at Southeast corner of said Xxx 0, Xxxxx "00"; run thence East,
along the Northerly right-of-way line of Park Street, 60.18 feet; thence
Northerly along the Easterly right-of-way line said railroad right-of-way also
the West lines of Lots 7 and 8, Block "20" of said XXXXX AND XXXXXX 1ST AND 2ND
ADDITION, 229.0 feet more or less to the Southerly right-of-way line of
Xxxxxxxxx Xxxxxx; thence West, along the said right-of-way line, 60.18 feet;
thence South along the Westerly right-of-way line of said railroad right-of-way
also the Easterly line of Lots 2 and 3, Block "13", of said XXXXX AND XXXXXX 1ST
AND 2ND ADDITION, 228.93 FEET MORE OR LESS TO THE point of beginning. All being
in Xxxxxxx 00, Xxxxxxxx00 Xxxxx, Xxxxx 15 East Pinellas County, Florida.
ALSO DESCRIBED AS:
Beginning at the Southeast corner of Xxx 0, Xxxxx 00 of said XXXXX And XXXXXX
1ST AND 2ND ADDITION; thence along the Northerly right-of-way of Park Street
(Park Avenue-Plat) (a 60 foot right-of-way), North 89 degrees 45 feet 53 inches
West, 110.22 feet to the Southwest corner of Xxx 0, Xxxxx 00 of said XXXXX AND
XXXXXX 1ST AND 2ND ADDITION; thence along the Eastern right-of-way line of Xxxxx
Xxxxxx Xxxxxx Xxxxx 00 degrees 2 feet 16 inches East 227.94 feet to the apparent
Southerly right-of-way line of Cleveland Street as it now exists; thence South
89 degrees 50 feet 1 inch East, 189.03 feet to the Easterly line of the vacated
S.C.L.R.C. right-of-way; thence South 4 degrees 42 feet 26 inches West, 228.86
feet (229.0 feet, Deed) to the Northerly right-of-way line of Park Street (Park
Avenue-Plat) (a 60 foot right-of-way): thence North 89 degrees 45 feet 53 inches
West, 60.18 feet to the POINT OF BEGINNING.
PARCEL II:
Xxxx 0 xxx 0, Xxxxx 00, XXXXX XXXXX'X FIRST AND SECOND ADDITION TO CLEARWATER
HARBOR FLORIDA, less and except the North 6 feet of Lots 8 and 9, as conveyed to
City of Clearwater as recorded in Deed Book 194, Page 471, for alley, and less
road right-of-way, according to the plat thereof, recorded in Plat Book 1, page
52, of the Public Records of Hillsborough County, Florida, of which Pinellas
County wad formerly a part.
PARCEL III:
That portion of Lots 1, 2, 3, 12, 13 and 14 and vacated railroad right-of-way
Westerly of said Xxxx 0 xxx 00, xxx xx Xxxxx "0", XXXXXXXX XXXX, as recorded in
Plat Book 1, Page 70, of the Public records of Hillsborough County, Florida, of
which Pinellas County was formerly a part, and Plat Book 3, Page 43 of the
Public Records of Pinellas County, Florida, being more particularly described as
follows:
31
From the Northeast corner of said Xxx 0, Xxxxx 0, xx x XXXXX XX XXXXXXXXXX:
thence N89 degrees 45 feet 53 inches W, along the North line of said Lot 3, also
being the South right-of-way line of park Street, 30.01 feet, to a point of
intersection with the Northerly extension of the east face of the four level
concrete parking garage and the POINT OF BEGINNING, thence leaving said North
line of Lot 3, S 0 degreed 12 feet 45 inches W, along said East face and its
Northerly extension thereof 221.20 feet to the Southeast corner of said parking
garage; thence N 89 degrees 45 feet 39 inches W, along the South face of the
four level concrete parking garage and its Westerly extension thereof, 208.32
feet to the Westerly line of a 60 foot vacated Railroad right-of-way; thence N 4
degrees 42 feet 26 inches E, along said Westerly line, 221.86 feet to said South
right-of-way line of Park Street; thence S 89 degrees 45 feet 53 inches E, along
said South right-of-way, 190.93 feet to the POINT OF BEGINNING.
Together with all the air rights previously granted to Atrium at Clearwater,
Limited in that certain Special Warranty Deed given by Community Redevelopment
Agency of the City of Clearwater, dated December 14, 1993, recorded on December
27, 1993 in Official Records Book 8515, Page 174, of the Public Records of
Pinellas County, Florida, and the air rights previously granted to Atrium at
Clearwater, Limited in that certain Special Warranty Deed from City of
Clearwater, Florida, dated November 29, 1993, recorded on December 27, 1993 in
Official Records Book 8515, Page 168, of Public Records of Pinellas County,
Florida; and the remaining air rights previously granted ATRIUM AT CLEARWATER,
LIMITED in that certain Special Warranty Deed given by COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF CLEARWATER, dated July 31, 1997 and recorded July 31, 1997
in Official Records Book 9792, page 1611, of the Public Records of Pinellas
County, Florida.
PARCEL IV:
TOGETHER WITH easements created for the benefit of the above described property
as described in that certain instrument recorded in Official Records Book 9792,
Page 1624, of the Public Records of Pinellas County, Florida, together with
easement created for the benefit of the above described property in that certain
Addendum to Easement Agreement dated August 17, 1998 and recorded in Official
Records Book 10214, Page 2205, of the Public Records of Pinellas County,
Florida.
PARCEL V:
ALSO TOGETHER WITH easement for crosswalk as described in that certain
instrument recorded in Official Records Book 8515, Page 177, of the Public
Records of Pinellas County, Florida.
32
EXHIBIT B
ACKNOWLEDGEMENT, ACCEPTANCE AND AMENDMENT
Tenant hereby acknowledges that the premises demised pursuant to the Lease to
which this Exhibit is attached (the "Lease"), and all tenant finish items to be
completed by the Landlord, or Landlord's contractors, have been satisfactorily
completed in every respect, except for the punchlist items set forth below, and
Tenant hereby accepts said premises as substantially complete and ready for the
uses intended as set forth in the Lease. Landlord shall complete the punchlist
items, if any, as soon as is reasonably possible. Possession of the Premises is
hereby delivered to Tenant, and any damages to walls, ceiling, floors or
existing work, except for any damages caused by Landlord or Landlord's
contractors in completing any punchlist items, shall be the sole responsibility
of Tenant.
If any improvements or tenant finishes are to be constructed or installed by
Tenant or Tenant's contractors, as previously approved by Landlord, Tenant
hereby agrees to indemnify and hold harmless Landlord from and against any
claims, demands, loss or damage Landlord may suffer or sustain as a result of
such work by Tenant or Tenant's contractors, including, without limitation, any
claim of lien which may be filed against the Premises or Landlord's Property as
a result of such work by Tenants contractors or representatives. In the event
any such claim of lien is filed against Landlord's Property by any contractor,
laborer or materialman performing work on the Premises at Tenant's direction,
Tenant agrees to cause such lien to be discharged, by payment of the claim or
bond, within ten (10) days of receipt of demand by Landlord.
Tenant and Landlord hereby further acknowledge and agree as follows:
1. The Commencement Date (as defined in the Lease) is October 1, 2003.
2. The exact rentable square feet contained within the Premises is 1028 square
feet; and if differing from Exhibit "A-1" attached to the Lease, the Premises
are as shown and outlined in red on Exhibit "C" attached hereto.
3. Tenant's share is 0.80%.
4. The initial Base Rent payable under the Lease is $1,456.33, payable in equal
monthly installments as provided in the Lease.
5. _____ (No.) keys to the Premises have been delivered to Tenant or Tenant's
representative.
6. The following punch list items are all that remain to be completed by
Landlord or Landlord's contractor.
none
33
7. This Acknowledgement, Acceptance and Amendment, when executed by Landlord and
Tenant, shall be attached to and shall become a part of the Lease. If any
provisions contained herein conflicts with any provision of the Lease, the
provisions hereof shall supersede and control, and the Lease shall be deemed
modified and amended to conform with the provisions hereof.
8. Other agreements or modifications: none
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands and
seals, this _____ day of ________, 2003.
WITNESSES: LANDLORD:
_____________________________ Xxxxxx Corporation of Delaware, a Delaware
Corporation
_____________________________ By:________________________
Name:______________________
Title:_____________________
WITNESSES: TENANT:
XXXXXXXX.XXX, INC.
_____________________________
_____________________________ By:______________________
Name:
Title:_____________________
34
EXHIBIT C
WORK LETTER
This WORK LETTER AGREEMENT ("Work Letter") is attached to and made part of that
certain Atrium at Clearwater Lease (to which this Exhibit is attached). The
terms, definitions and other provisions of the Lease are hereby incorporated
into this Work Letter by Reference.
In consideration of the execution of the Lease and the Mutual covenants and
conditions hereinafter contained, Landlord and Tenant agree as follows:
Tenant hereby accepts the premises in its "AS IS" condition.
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EXHIBIT D
RULES AND REGULATION
1. The sidewalks, entry passages, corridors, halls, elevators and stairways
shall not be obstructed or used for any purpose other than those of ingress
and egress. The floors, skylights and windows that reflect or admit light
into any place in the Building shall not be covered or obstructed. The
water closets and other water apparatus shall not be used for any other
purpose than those which they were constructed and no sweepings, rubbish or
other obstructing substances shall be thrown therein.
2. No advertisement or other notice shall be inscribed, painted or affixed on
any part of the outside or inside of the Building, except upon the doors,
and of such order, size and style, and at such places as shall be
designated by Landlord. Interior signs on doors will be ordered for tenants
by Landlord, the cost thereof to be charged to and paid for by tenants.
3. No tenant shall do or permit to be done in its Premises, or bring or keep
anything therein, which shall in any way increase the rate of fire
insurance on the Building, or on the property kept therein, or obstruct or
interfere with the rights of other tenants or in any way injure or annoy
them, or conflict with the laws relating to fires, or with the regulations
of the Fire Department, or any part thereof, or conflict with any of the
rules and ordinances of the Board of Health or similar agency. Tenants,
their clerks and servants, shall maintain order in the Premises and the
Building, shall not make or permit any improper noise in the Demised
Premises or the Building or interfere in any way with other tenants or
those having business with them. Nothing shall be thrown by tenants, their
clerks or servants out of the windows or doors, or down the passages or
skylights of the Building. No rooms shall be occupied or used as sleeping
or lodging apartments at any time. No part of the Building shall be used or
in any way appropriated for gambling, immoral or other unlawful practice,
and no intoxicating liquor or liquors shall be sold in the building.
4. Tenants shall not employ any persons other than the janitors of Landlord
(who will be provided with pass-keys into the offices) for the purpose of
cleaning or taking charge of the Premises, except as may be specifically
provided otherwise in the Lease.
5. No animals, birds, bicycles or other vehicles shall be allowed in the
offices, halls, corridors, elevators or elsewhere in the Building without
prior written approval of Landlord.
6. All tenants and occupants shall observe strict care not to leave their
windows open when it rains and for any fault or carelessness in any of
these respects, shall make good any injury sustained by other tenants and
by Landlord for damage to paint, plastering or other parts of the Building
resulting from such fault or carelessness. No painting shall be done, nor
shall any alterations be made to any part of the Building or the Premises
by putting up or changing any partitions, doors or window, nor shall there
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be any nailing, boring or screwing into the woodwork or plastering, nor
shall any connection be made in the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord. All
glass, locks and trimmings in or upon the doors and windows of the Building
shall be kept whole and when any part thereof shall be broken by tenant, or
tenant's agent, the same shall be immediately replaced or repaired by
tenant and put in order under the direction and to the satisfaction of
Landlord, or its agents, and shall be kept whole and in good repair.
Tenants shall not injure, overload, or deface the Building, the woodwork or
the walls of the Premises, nor carry on upon the Premises any noxious,
noisy or offensive business.
7. Two keys for each office will be furnished to tenants without charge. No
additional locks or latches shall be put upon any door without the prior
written consent of Landlord. Tenants, at the termination of their lease,
shall return to Landlord all keys to doors in the Building.
8. Landlord in all cases retains the power to prescribe the weight and
position of iron safes or other heavy articles. Tenants must make
arrangements with the superintendent of the Building when the elevator is
required for the purpose of the carrying of any kind of freight.
9. The use of burning fluid, camphene, benzene, kerosene or anything except
gas furnished to the Building or electricity for lighting the Premises is
prohibited. No offensive gases or liquids will be permitted.
10. If Tenants desire blinds, coverings or drapes over the windows, they must
be of such shape, color and material as may be prescribed by landlord, and
shall be erected only with the Landlord's consent and at the expense of the
Tenant desiring them. No awnings shall be placed on the Building.
11. If tenants require wiring for a xxxx or buzz system, such wiring shall be
done by the electrician of the Building only, and no outside wiring workers
shall be allowed to do work of this kind unless by the prior written
permission of Landlord or its agent. If telegraphic or telephonic service
is desired, the wiring for same shall be done as directed by the
electrician of the Building or by some other employee of Landlord who may
be instructed by the superintendent of the Building to supervise same, and
no boring or cutting for wiring shall be done unless approves by Landlord
or its representatives as stated.
12. At Landlord's discretion, the Building may be in the charge of a night
watchman, and every person entering or leaving the Building may be
questioned by the watchman as to the visitor's business in the Building and
shall sign his or her name on a form provided by the Building for so
registering such persons.
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EXHIBIT E
OPTION TO RENEW
1. OPTION TO EXTEND. Tenant shall have the right and option to extend the
Lease (the "Renewal Option") of the area shown on Exhibits A, consisting of
approximately 1028 rentable square feet for two (2) additional periods of
three (3) years (the "Renewal Lease Terms") provided, however, such Renewal
Option is contingent upon the following (i) Tenant is not in default at the
time Tenant gives Landlord written notice of Tenant's intention to exercise
the Renewal Option; (ii) upon the expiration Date Tenant has no outstanding
default; (iii) no event has occurred that upon notice or the passage of
time would constitute a default; (iv) Tenant is not disqualified by
multiple defaults as provided in the lease; and (v) Tenant is occupying the
Premises. Tenant shall e; (iv) Tenant is not disqualified by multiple
defaults as provided in the lease; and (v) Tenant is occupying the
Premises. Tenant shall exercise each Renewal Option by giving Landlord
written notice at lease ninety (90) days prior to the Expiration Date. If
tenant fails to give such notice to Landlord prior to said ninety (90) days
period, tenant shall forfeit the Renewal Option. If Tenant exercises the
Renewal Option, then during and such Renewal Lease Term, Landlord and
Tenant's respective rights, duties and obligations shall be governed by the
terms and conditions of the Lease.
2. TERM. If Tenant exercises the Renewal Option, then during any such Renewal
Lease Term, all references to the term "Term", as used in the Lease, shall
mean the "Renewal Lease Term".
3. BASE RENT FOR RENEWAL LEASE TERM. The Base Rent for the renewal for the
1028 square feet shall be the rent for the premises on the last year of the
lease plus three (3%) escalations for each year.
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MONTHLY PARKING CONTRACT
CENTRAL PARKING SYSTEM
CENTRAL PARKING SYSTEM, INC., Operator of the Atrium Garage hereby grants to:
XXXXXXXX.XXX, INC.
Date_______________________
BUSINESS ADDRESS 000 Xxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX 00000
PHONE:
the privilege of utilizing 3 non-reserved parking spaces in the Atrium Garage at
no charge.
This Agreement to become effective on Lease Commencement and terminate on Lease
Expiration.
Any parking spaces in addition to those outlined above shall be under separate
agreement with CENTRAL PARKING SYSTEM.
The Lessee will be issued a magnetic access card. This card is not transferable.
There will be a $10.00 charge for lost access cards. There will be no charge for
damaged cards unless they have been subjected to direct sunlight, extreme heat
or abuse. There will be a $10.00 charge for cards damaged due to abuse. Lessee
agrees to return the access card upon termination. For any cards not returned,
you will be invoiced a $10.00 fee per card.
Any misuse of your access card will result in immediate cancellation of your
parking privileges.
A set up fee shall not be required on the initial 3 parking spaces at $ 0.00 per
month.
Neither CENTRAL PARKING SYSTEM, XXXXXX CORPORATION OF DELAWARE nor Garage owners
assume any responsibility whatsoever for loss or damage of the vehicle or its
contents, however caused. AUTOMOBILES SHOULD BE LOCKED AND VALUABLES SHOULD NOT
BE LEFT IN AUTOMOBILE.
Lessee agrees to abide by any and all regulations pertaining to the use of the
facility as may from time to time be prescribed by CENTRL PARKING SYSTEM, and
further agrees to park all automobiles in any area within the facility
designated by CENTRAL PARKING SYSTEM.
No refunds, credits or allowances will be granted to lessee for absence,
vacation, or other non-use of the garage facility under this contract.
XXXXXXXX.XXX, INC. CENTRAL PARKING SYSTEM
____________________________ ________________________
____________________________
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