SPANISH RIVER EXECUTIVE PLAZA, LTD.
a/k/a Century Financial Plaza
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (this "Lease") is made and entered into on the
1st day of October, 1997 (the "Effective Date"), by and between Spanish River
Executive Plaza, Ltd. a/k/a Century Financial Plaza, a Florida Limited
Partnership ("Landlord") and Manchester Equipment Company, Inc., as ("Tenant").
W I T N E S S E T H:
1. DEFINITIONS. Landlord and Tenant hereby agree that the words and phrases
herein shall have the following meanings:
a) "Base Rental" shall mean the sum of $93,279.96 per annum payable
$7,773.33 monthly and as adjusted pursuant to Paragraph 5 hereof together with
all applicable Florida sales tax.
b) "Building Standard" shall mean the type of materials Landlord
designates from time to time to be the minimum quality to be used as the
Leasehold Improvements as defined herein.
c) "Building" or "Buildings" shall mean all office buildings now or
hereafter located upon the real property described in Exhibit "A" attached
hereto and made a part hereof (the "Property"). Reference to the "Property" in
this Lease shall be deemed to include the Building unless expressly provided
otherwise. The Building presently consist of one structure containing 37,002
rentable square feet. The Property has an address of 000 X.X. Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 and is known as Spanish River Executive
Plaza a/k/a Century Financial Plaza.
d) "Commencement Date" shall mean December 1, 1997.
e) "Common Areas" shall mean those areas of the Building devoted to
corridors, elevator foyers and elevator cabs, restrooms, mechanical rooms,
janitorial closets, electrical and telephone closets, vending areas and other
similar facilities provided for the common use or benefit of tenants generally
and/or the public, and Landlord shall have the right, at any time, to change
the size and location of the Common Areas.
f) "Existing Improvements" means the improvements in the Premises on
the Effective Date.
g) "Exterior Common Areas" shall mean the portions of the Property not
located within the Building and which are provided and maintained for the common
use and benefit of Landlord and tenants of the Building and their respective
employees, invitees and licensees, including, without limitation, all
unassigned, ground level, uncovered parking areas, and all streets, sidewalks
and landscaped areas.
h) "Hazardous Materials" shall mean any substance defined in the
definitions of "hazardous substances", "hazardous wastes", "hazardous
materials", "toxic substances", "contaminants", or "pollutants" under applicable
federal, state, or local laws, ordinances, codes, or regulations now or
hereafter in effect.
i) "Leasehold Improvements" shall mean those improvements, if any,
which Landlord has agreed to complete as set forth in paragraph 53 below.
j) "Lease Term" shall mean a term commencing on the Commencement Date
(December 1, 1997) and continuing until November 30, 2002 (the "Termination
Date").
k) "Lease Year" shall mean the 12 month period starting on the first
day of the first full month following the Commencement Date and thereafter,
each successive 12 month period.
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l) "Normal Business Hours" shall mean 8:00 a.m. to 6:00 p.m., Monday
through Friday, excluding legal holidays and from 9:00 a.m. to 1:00 p.m. on
Saturdays.
m) "Premises" shall mean Xxxxx 000, 000, 000, 000, 000, 000X and 257B,
but shall be known only as "Suite 270" hereafter of the Building as outlined on
the floor plan attached to this Lease as Exhibit "B" and made a part hereof.
n) "Rentable Floor Area" shall mean 5,830 rentable square feet of floor
area which includes the interior useable area of the Premises, as herein
defined, and a prorata portion of the Common Areas. The ratio of the total
Common Areas relative to the Rentable Floor Area shall not vary after the
effective date if Landlord changes the size of the Common Areas.
o) "Security Deposit" shall mean the sum of $8,239.73 which has been
paid to Landlord by Tenant concurrent with the execution of this Lease by Tenant
(See paragraph 38 below) and which Security Deposit amount shall be in addition
to and independent of the Rent Deposit as referenced in Subparagraph 5(d) below.
p) "Service Areas" shall mean those areas within the exterior walls of
the Building used for elevator mechanical rooms, building stairs, fire towers,
elevator shafts, flues, vents, stacks, pipe shafts and vertical ducts (but shall
not include any such areas designated for the exclusive use or benefit of the
Tenant). Landlord shall have the right, at any time and from time to time, to
change the size or location of the Service Areas.
q) "Substantial Completion" shall be defined as set forth in paragraph
53 below.
r) "Total Rentable Area" shall mean 37,002 square feet which includes
the total floor area within the exterior walls of the Building less the Service
Areas.
2. LEASE GRANT. Subject to and upon the terms, provisions and conditions herein
set forth, and each in consideration of the covenants of the other hereunder,
Landlord leases to Tenant and Tenant leases from Landlord the Premises.
3. LEASE TERM.
a) This Lease shall continue in force during the Lease Term until
terminated or extended as provided herein.
4. USE.
a) The Premises shall be used and occupied by Tenant solely for the
purpose of executive and general offices including, but not limited to, a
conference facility, sales, training facility, computer related service and
maintenance facility, showroom and demonstration room facility, and all lawful
purposes thereto. Tenant agrees not to use or permit the use of the Premises for
any purpose which is illegal, or which, in Landlord's reasonable opinion,
creates a nuisance or which would increase the cost of insurance coverage with
respect to the Property.
b) Tenant represents and warrants that Tenant will keep the Premises
free from contamination by Hazardous Materials and that the Premises and the
activities to be conducted thereon will not pose any hazard to human health or
violate any applicable current federal, state, or local laws, ordinances, rules,
codes, or regulations perTaining to Hazardous Materials or industrial hygiene or
environmental conditions (collectively referred to herein as "Environmental
Laws"). Tenant at its sole cost and expense shall conform to all existing and
any future changes in the Environmental Laws, whether foreseen or unforeseen,
and will take all direct and indirect actions required in order to keep its
Premises or any activities conducted therein free from any violation of any
current or future applicable Environmental Laws. Tenant agrees to indemnify,
defend and hold Landlord (and Landlord's partners, affiliates, directors,
officers, shareholders, employees, mortgagees, heirs successors and assigns, as
applicable) harmless from and against any and all claims, losses, damages
(including, without limitation, unforeseeable consequential and incidental
damages), fines or penalties resulting from the violation of any Environmental
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Laws applicable to the Building and/or the Premises which have been caused by or
necessitated by the acts of Tenant and/or its agents. All sums paid and costs
incurred by Landlord with respect to the foregoing matters shall be payable by
Tenant to Landlord as additional rent due on demand.
c) Landlord hereby represents and warrants to Tenant that to the best
of Landlord's knowledge as of the date of this Lease, no hazardous material has
been leaked, spilled, discharged or incorporated into the Premises. Landlord
shall notify Tenant immediately if Landlord should discover any hazardous
materials or violations of any laws or regulations regarding hazardous
materials. Landlord will, at Landlord's sole expense, take all action necessary
to remove or xxxxx any hazardous materials should they be found on or in the
Premises.
5. RENTAL.
a) Tenant covenants and agrees to pay during the Lease Term, to
Landlord, without any counterclaim, set off or deduction whatsoever, the Base
Rental as set forth in Section 1(a) of the Lease and this Section 5 of the Lease
and all such other sums of money as shall become due hereunder (all of which are
sometimes herein collectively called "Rent"). The Base Rental payable during
each calendar year or portion thereof during the Lease Term, shall be due and
payable in 12 equal installments on the first day of each calendar month during
the Lease Term and any extensions or renewals thereof, and Tenant hereby agrees
to pay such Base Rental and any adjustments thereto to Landlord at Land- lord's
address provided herein (or such other address as may be designated by Landlord
in writing from time to time). The Tenant hereby waives any and all right to
offset or charge any amount owed to Tenant by Landlord against the Rent,
Operating Expenses, Operating ExpeNse reimbursements, or any other monies due
the Landlord by Tenant under this Lease.
b) It is also further agreed that the Landlord may collect a "Late
Charge" equal to five percent (5%) of any monthly payment which is not paid
within ten (10) days of the due date thereof, to cover the extra expense
involved in handling delinquent payments, provided that collection of said Late
Charge shall not be deemed a waiver by the Landlord of any of its other rights
under this Lease. All installments of Rent not paid when due and payable at the
end of any grace period provided herein, shall bear interest from that date
^until paid, at eighteen percent (18%) per annum, but no more than the maximum
rate allowed under the laws of the State of Florida. Such interest and late
charges shall constitute additional rent under this Lease and shall be due and
payable on demand, but no later than the next date for any Rent due hereunder.
c) Tenant shall pay all sales and use taxes levied or assessed against
all payments of Rent due under this Lease simultaneously with each payment
required hereunder on the date required hereunder without further notice,
provided, however, that Landlord will provide Tenant with prior notice of any
change in the sales and use taxes that are so assessed. Until such further
notice, the Florida State sales tax applicable to all payments of Rent due
hereunder shall be deemed to be six percent (6%).
d) Upon Tenant's execution of this Lease, Tenant shall deposit with
Landlord the amount of $8,239.73 which shall be applied to the Base Rental
($7773.33), and sales tax ($466.40) for the first month of the Lease Term^
("Rent Deposit"), which Rent Deposit amount shall be in addition to and
independent of the Security Deposit as referenced in Paragraph 1(q) above.
e) Tenant shall pay the monthly installments of the Base Rental through
the end of the first Lease Year as set forth in paragraph 1(a) above (initially
$7773.33 per month plus sales tax), for the first three (3) years of the Initial
Lease Term and thereafter the Base Rental shall be increased according to the
following schedule:
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================================================================================
Base Rental Calculations
--------------------------------------------------------------------------------
Lease Tenant's Base Rental Base Rental
Year Dates SF Rate PSF Annually Monthly
--------------------------------------------------------------------------------
1 12/1/97-11/30/98 5,830 $16.00 $93,279.96 $7,773.33
--------------------------------------------------------------------------------
2 12/1/98-11/30/99 5,830 $16.00 $93,279.96 $7,773.33
--------------------------------------------------------------------------------
3 12/1/99-11/30-00 5,830 $16.00 $93,279.96 $7,773.33
--------------------------------------------------------------------------------
4 12/1/00-11/30/01 5,830 $16.64 $97,011.24 $8,084.27
--------------------------------------------------------------------------------
5 12/1/01-11/30/02 5,830 $17.31 $100,917.36 $8,409.78
================================================================================
6. OFFSET: The Tenant hereby waives any and all right to offset or charge any
amount owed to Tenant by Landlord against the Base Rental or Tenant's Prorata
Share of Operating Expenses, or any other monies due the Landlord by Tenant
under this Lease. Tenant shall nevertheless be able to pursue its own separate
cause of action for any alleged breach pursuant to this Lease by Landlord.
7. PAYMENT OF OPERATING EXPENSES.
Notwithstanding anything to the contrary contained herein, Tenant shall
not be obligated to reimburse Landlord for Tenant's Prorata Share of Operating
Expenses during the initial Lease Term, expiring August 31, 2002, except for
Tenant's limited reimbursement for real estate taxes and insurance costs as set
forth in Paragraph 7(c),
(f) and (g) below.
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c) "Tenant's Prorata Share" of the Operating Expenses shall be equal to
a fraction the numerator of which is the Rentable Floor Area and the denominator
of which is the Total Rentable Area (37,002 square feet). Accordingly, Tenant's
Prorata Share of the Operating Expenses for purposes of this Lease is deemed to
be 15.76%.
f) Tenant's obligation to pay its Prorata Share of the Operating
Expenses shall survive the termination of this Lease. Similarly, Landlord's
obligation to refund any overpayment of Tenant's Prorata Share of Expenses shall
survive termination of this Lease.
g) LIMITED EXPENSE REIMBURSEMENT DURING INITIAL LEASE TERM ONLY. To the
extent that real estate taxes and insurance costs during the Initial Lease Term
increase by more than 4% per annum over the amount for such items for the
calendar year 1997 (Base Year), Tenant shall pay its Prorata Share of any
increase (over and above a 4% increase) as of April 15, 1998 and each succeeding
April 15th thereafter for the preceding calendar year's Operating Expense
Reimbursement and prorated for any partial lease year.
8. SERVICES TO BE FURNISHED BY LANDLORD. Subject to Paragraph 7 of this Lease,
Landlord agrees to use commercially reasonable efforts to furnish Tenant the
following services:
a) Water at those existing points of supply provided for the general or
common use of Tenant and other tenants in the Building.
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b) Central heat and air conditioning to the Building, Service Areas,
Common Areas, and the Premises during Normal Business Hours provided Tenant
shall bear the cost of any electric consumption relating to the air conditioning
systems within Tenant's Premises and provided further that such services may be
interrupted or moderated (with shorter service hours or different temperature
settings) by any policies or regulations of any utility or governmental agency.
Tenant has certain air conditioning equipment within its Premises which Tenant
may access at its choice and Landlord represents that the utility systems,
including heating and air conditioning systems and equipment will be in working
order at the time Tenant takes occupancy.
Notwithstanding anything to the contrary as may be set forth herein,
Landlord shall replace the compressors or condensers for any HVAC equipment
within or serving Tenant's Premises provided Tenant pays for all monthly
maintenance and repairs of the HVAC, including normal replacements of fan belts
and motors, plus a monthly maintenance and filter changing contract with an
entity approved by Landlord, which approval shall not be unreasonably withheld.
Landlord shall, nevertheless, maintain, replace and repair any of the
central air conditioning distribution lines for cooled water which might service
the equipment within Tenant's Premises. Landlord shall also maintain, replace
and repair the air conditioning systems for the Common Areas.
c) Routine maintenance and electric lighting service for all Common
Areas and Service Areas of the Building in the manner and to the extent deemed
by Landlord to be standard and/or reasonable.
d) Janitorial service to the Premises and all Common Areas, Mondays
through Fridays, exclusive of normal business holidays.
e) Facilities to provide all electrical current as Landlord, in its
sole discretion, determines is necessary for normal office use within the
Premises and for use and operation of the Common Areas (interior and exterior)
with Tenant being responsible for the actual electric consumption within the
Premises.
f) All florescent bulb replacement in the Premises and florescent and
incandescent bulb replacement in the Common Areas and Service Areas; however,
Tenant shall pay for the replacement of any "high hat" lights or any other
special or customized lighting fixture not equivalent to Landlord's standard
Tenant finish improvements.
g) Control of access to the Building during other than Normal Business
Hours shall be provided in such form as Landlord deems appropriate; however,
Tenant shall be able to access its Premises twenty-four (24) hours per day,
seven (7) days per week utilizing the security access codes or controls which
Landlord shall supply to Tenant. No prior approval of Landlord shall be required
of Tenant in order to access Tenant's Premises. Landlord, however, shall have no
liability to Tenant, its employees, agents, invitees or licensees for bodily
injury, death, or for damages to or loss of property suffered or incurred by any
party whomsoever, caused by or arising from theft or burglary or entry of
unauthorized persons onto the Property and neither shall Landlord be required to
insure against any such losses except if caused by the Landlord's gross
negligence or gross negligence of the Landlord's employees. Tenant shall
cooperate fully to maintain security in the Building and on the Property and
shall follow all regulations promulgated by Landlord.
h) Elevator service to each floor of the Premises, provided that Tenant
shall be limited in its use of such elevators for the purpose of moving its
property in and out of the Building which moving activities shall be done:
(i) Only during other than Normal Business Hours or such other hours as
Landlord may approve in writing;
(ii) Only after first obtaining Landlord's consent to such use, which
request shall be submitted in writing to Landlord no less than five
(5) days in advance of each desired move (which consent shall not be
unreasonably withheld);
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(xxx) Only after arranging with Landlord to obtain security and/or other
supervisory staff of Landlord to be present during such move; and
(iv) Only after Landlord advises Tenant in writing of what physical
protections Landlord might require Tenant to provide or install in
order to protect the Building or its components as a condition
precedent to such move. Tenant shall pay Landlord promptly for all
costs associated with Tenant's moving including the operation of the
elevator (for moving purposes), the cost of any operator, supervisory
or security personnel and all other costs required herein. Tenant
shall also promptly reimburse Landlord's cost to repair any damage to
the elevator or the elevator cab(s), the Common Areas, floors, walls,
or other components of the Building resulting from Tenant's moving
activities.
The failure by Landlord to any extent to furnish the defined services
noted above, in whole or in part, or the interruption or termination of any such
services, or the failure of any equipment or machinery used in the provision of
such services to cease to function properly shall not render Landlord liable in
any respect nor be construed as an eviction (constructive or otherwise) of
Tenant, nor cause an eviction of Tenant, nor cause an offset or abatement of
Rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement hereof. Notwithstanding the foregoing, if any of the foregoing defined
services is interrupted or terminated for more than seven (7) consecutive
business days, Tenant shall have the right to xxxxx rent for up to thirty (30)
days after which Tenant shall have the right to terminate this Lease upon giving
prior written notice to Landlord provided such services have not been reinstated
in the meantime.
9. IMPROVEMENTS TO THE PREMISES.
a) Tenant shall be deemed to have accepted the Premises, Building and
Property in their "as is" condition as of the date this Lease is executed by
Tenant, provided however, the Landlord represents that the utility systems,
including heating and air conditioning systems and equipment will be in working
order at the time Tenant takes occupancy.
b) Tenant shall not make any installation(s) or improvement(s) to the
Premises except at Tenant's sole cost and expense and only after having obtained
Landlord's prior written approval; however, Landlord's approval of the Plans
referred to in Paragraph 53 shall constitute Landlord's approval. By taking
possession of the Premises, Tenant acknowledges that Tenant shall be deemed to
have accepted the Premises, in the "as is" condition as of the date Tenant takes
such possession except for the work to be performed by Landlord according to
Paragraph 53(b) below.
c) Landlord grants Tenant the right to install its own internal
security system. Tenant will pay for all costs for such installation and
maintenance and will be responsible for any costs incurred by Landlord or any
other tenant as a result of such installation. Under no circumstances will
Tenant allow penetrations to be made in any exterior doors to Tenant's Premises
for such installation.
10. MAINTENANCE AND REPAIR OF BUILDING BY LANDLORD. Except for those specific
responsibilities of Tenant as provided herein, Landlord shall repair and
maintain in good repair and serviceable condition the roof, foundations,
exterior walls and windows of the Building, underground utility and sewer pipes
outside the exterior walls of the Building (unless covered or made inaccessible
by Tenant's use of the Premises), the Exterior Common Areas, the Common Areas
(including the first floor lobby area), and the heating, air conditioning,
lighting, electrical, ventilation, plumbing, and storm drainage equipment
servicing the Building whether located inside or outside the exterior walls of
the Building except for such heating and air conditioning^ services within the
Premises which Tenant is specifically responsible, provided however, the
Landlord represents that the utility systems, including heating and air
conditioning systems and equipment will be in working order at the time Tenant
takes occupancy. Except as otherwise expressly provided herein, Landlord shall
not be required to make any repairs to the Premises.
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11. CARE OF THE PREMISES BY TENANT. Tenant shall, at its sole expense, keep the
Premises in good repair during the Lease Term, including without limitation, the
doors (both sides and door locks and hardware), interior Building windows and
interior walls within the Premises. Tenant shall not commit or allow any waste
to be committed on any portion of the Premises or the Property, and at the
termination of this Lease, Tenant shall deliver up the Premises to Landlord
broom clean and in the same good condition as exists at the Commencement Date,
ordinary wear and tear and damage by fire and other casualty excepted.
12. REPAIRS AND ALTERATIONS BY TENANT.
a) Tenant covenants and agrees with Landlord, at Tenant's sole expense,
to repair any damage done to the Premises or any part thereof, including
necessary replacement within five (5) days after written notification to Tenant,
where such damage is caused by Tenant or Tenant's agents, employees, invitees,
visitors, licensees or permitted assigns. All such work or repairs by Tenant
shall be in compliance with all applicable laws; provided, however, if Tenant
fails to make such repairs or replacements promptly, Landlord may, at its
option, make such repairs or replacements, and Tenant shall pay the cost thereof
to the Landlord within fifteen (15) days after Landlord's written demand
therefore, as additional rent. In such event, Tenant hereby grants Landlord
reasonable access to Tenant's Premises for the foregoing purposes. Tenant agrees
with Landlord not to make or allow to be made any improvements or alterations to
the Premises, install any vending machines on the Premises, or place signs on
the Premises which are visible from outside the Premises or in the corridors,
without first obtaining the prior written consent of Landlord which consent
shall not be unreasonably withheld. Any and all permanent alterations or
additions to the Premises made by Tenant shall become the property of Landlord
upon installation by Tenant. Upon termination, Landlord may, nonetheless,
require Tenant to remove any and all fixtures, equipment and other improvements
so installed on the Premises. In the event that Landlord so elects, and Tenant
fails to remove such improvements, Landlord may remove such improvements at
Tenant's sole expense, and Tenant shall promptly pay Landlord the cost of
restoring the Premises to the same condition they were in prior to the
installation thereof ordinary wear and tear excepted.
b) In the event any damage to the Building or the Property is due in
whole or in part to the action or inaction of Tenant, or Tenant's agents,
employees, invitees, visitors, licensees, or permitted sublessees or assigns,
the necessary repair, including replacement, may be made by Landlord, at
Tenant's sole cost and expense which shall be due to Landlord as Additional Rent
payable within fifteen (15) days after Landlord's written demand, in the event
Tenant fails to repair.
13. GRAPHICS. Landlord shall provide and install, at Landlord's sole expense,
all letters or numerals on doors entering the Premises or on a wall near
Tenant's main entry door. All such letters and numerals shall be in the standard
graphics as approved by Landlord for the Building, and no other sign, graphics
or other displays which are visible outside the Premises shall be permitted
without Landlord's prior written consent which consent shall not be unreasonably
withheld. A directory in the lobby designed and maintained by the Landlord shall
contain the name of all tenants within the Building. The foregoing
notwithstanding, Landlord agrees to put three (3) company names for Tenant on
the lobby directory and to install Tenant's name on the ground level exterior
sign marquee facing Spanish River Boulevard.
14. USE OF ELECTRICAL SERVICES BY TENANT.
a) Tenant's use of electrical services furnished to the Premises by
Landlord shall not exceed, either in voltage, rated capacity, or overall load
that which Landlord in its reasonable discretion determines, from time to time,
is necessary for normal office use including normal desk-top office equipment,
including computers and computer related equipment, and normal copying
equipment. In the event Tenant shall request that it be allowed to consume
electrical services in excess of that so determined by Landlord to be necessary,
Landlord may refuse to consent to such usage or may consent upon such conditions
as Landlord elects including the requirement that upgraded supply facilities,
panels, and/or sub-meters be installed at Tenant's expense.
b) Air conditioning and heat shall not be supplied to the Common Areas
of the Building other than during Normal Business Hours; however, Tenant may
utilize
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air conditioning and heating equipment within its Premises, twenty-four (24)
hours a day, seven (7) days a week, recognizing that Tenant is responsible for
100% of the electrical costs associated with the use of such air conditioning
and heating equipment, as per separate meter. No separate overtime charges will
be due for Tenant's use of the aforementioned air conditioning and heat as long
as Tenant pays for the electric consumption required.
15. PARKING.
a) No permanent or part time employee, agent, or subcontractor of
Tenant or any person who has a work station within Tenant's Premises shall be
permitted to park in any parking space designated as "Visitor" or in any space
designated (by letter identification on such parking space) for use by another
tenant ("Other Tenant") as such Other Tenant spaces may be designated from time
to time by Landlord. The Visitor Parking Spaces or other tenant spaces as
designated from time to time by Landlord shall not be occupied by any person who
conducts part-time or full-time work on or about Tenant's Premises and shall be
reserved for customers (not employees) of tenants within the Building.
b) Landlord shall have the right, after reasonable notice to Tenant and
in Landlord's sole and reasonable discretion, to change the location of any
designated or undesignated parking spaces whether for visitors, other tenants,
handicapped or otherwise.
c) During the Lease Term, Tenant shall have the right to use the
undesignated parking spaces in the parking areas located on the Property at no
cost to Tenant, such undesignated parking spaces and all driveways and walkways
located on the Property to be used by Tenant on a non-exclusive basis with
Landlord and other tenants of the Building, their employees, guests and
invitees. Landlord shall have the right, in Landlord's sole and reasonable
discretion, to establish rules and regulations for use of the driveways,
walkways, parking spaces and areas and to designate the right to the exclusive
use of particular parking spaces to other tenants in the Building or Visitors.
Landlord shall also have the right to establish or modify the methods used to
control traffic and parking on the Property, including, without limitation, the
installation of traffic control devices or the hiring of parking attendants.
d) Tenant, its employees and customers and all other tenants and
occupants of the Building shall have access to the parking area through common
driveways. The parking areas shall be available at no cost or expense to Tenant
and the use thereof shall be deemed non-exclusive and shall be available to all
tenants and their employees, licensees, and guests, other than the reserved
spaces as may be selected and located in Landlord's sole discretion and except
for the designated visitor parking spaces as may be selected and located in
Landlord's sole discretion. Landlord may, at any time, during the term of the
Lease, by notice to Tenant, designate for Tenant's use, other reasonable parking
spaces on the land, provided the total number of parking spaces is not reduced,
and said parking area is within reasonable walking distance of the Premises. No
commercial or recreational vehicles shall be parked in the parking areas except
those vehicles parked on a temporary basis while delivering, repairing or
servicing the Building and/or its tenants. Landlord shall be responsible for all
maintenance of the parking area.
e) Landlord shall not be liable for any damage to or any theft of any
vehicle, or any contents therefrom, while in or about the parking areas located
on the Property.
f) Landlord reserves the right to enforce these restrictions or
designations by towing violators or other enforcement actions as Landlord deems
necessary and reasonable.
g) Notwithstanding anything to the contrary as may be set forth in this
Lease, Tenant shall be entitled to five (5) assigned parking spaces at locations
as selected by Landlord. Such assigned spaces may be re-assigned and/or
relocated by Landlord in Landlord's sole discretion and any such re-assignment
shall have the Tenant's name on each such parking block stop. In addition,
Tenant shall have the right to twenty-five (25) unassigned parking spaces, which
shall be shared with other tenants of the Building.
h) Each employee of Tenant who is requested to park in an assigned
space at the Building shall first provide Landlord with the name, vehicle make
and license number of each such person and only those persons so pre-registered
with Landlord shall be permitted
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to park in the parking spaces specifically designated and assigned to Tenant as
provided herein. If any such employee or designee does not park in such space as
designated for its use and parks somewhere else in the parking structure or
elsewhere on the Property, Landlord may tow such automobile of any employee or
party violating these restrictions whether or not the Tenant is financially
complying with its parking charge payments to Landlord.
i) MAXIMUM NUMBER OF EMPLOYEES. Notwithstanding anything to the
contrary as may be set forth in this Lease, Tenant hereby represents to Landlord
that it shall not employ on a full time basis more than thirty-five (35) persons
who shall conduct business on or about the Premises of Tenant as defined herein
or who may, at any one time, be expected to utilize more than thirty-five (35)
parking spaces on the Property. As required in this Paragraph 15, these
employees may be required to register their names and automobiles with Landlord.
j) MEETINGS OR TRAINING SESSIONS. Tenant will be allowed to conduct
meetings or training sessions within the Premises during Normal Business Hours,
provided Tenant will not utilize more than forty (40) parking spaces at any one
time for its guest, invitees or employees.
16. LAWS AND REGULATIONS. Tenant agrees to comply with all applicable laws,
ordinances, rules and regulations of any governmental entity, agency or
authority having jurisdiction of the Premises or Tenant's use thereof.
17. BUILDING RULES AND REGULATIONS. Tenant will comply with the rules and
regulations of the Building adopted and modified by Landlord from time to time
and will cause all of its agents, employees, invitees and visitors to do so.
Landlord shall provide Tenant with notice of all such rules and regulations and
any modifications thereto. The Rules and Regulations currently in effect are
attached hereto as Exhibit "D".
In addition to the Rules and Regulations attached as Exhibit "D",
Tenant shall comply with the following:
Landlord has designated the Building and all areas within the Building
to be non-smoking areas and neither nor its invitees, customers or
employees shall be permitted to smoke within the Building or the
Premises.
No birds, dogs, cats or other animals of any kind shall be brought into
or kept about the Building or the Premises, with the exception of
animals trained to assist handicapped persons.
18. ENTRY BY LANDLORD. Tenant agrees to permit Landlord or its agents or
representatives to enter into and upon any part of the Premises at all
reasonable hours and with advance notice (and in emergencies at all times) to
inspect the condition, occupancy or use thereof, to show the Premises to
prospective purchasers, mortgagees, tenants or insurers, and to clean or make
repairs, alterations or additions thereto, and Tenant shall not be entitled to
any abatement or reduction of Rent by reason thereof; provided, however, that
Tenant's business is not reasonably interrupted by any of the foregoing
activities.
19. ASSIGNMENT AND SUBLETTING.
a) Tenant shall not assign, sublease, transfer, pledge, encumber or
otherwise convey this Lease, the Premises or any portion thereof or interest
therein (a "Transfer"), as the case may be, either voluntarily or by operation
of law, without Landlord's prior written consent, which consent shall not be
unreasonably withheld. If Tenant is either a corporation or a partnership, any
sale, transfer, pledge, encumbrance or other conveyance of any stock or
partnership interests therein shall comprise a Transfer. A partial assignment of
Tenant's leasehold interest shall comprise a Transfer. Any attempted assignment
or Transfer by Tenant in violation of the terms and covenants of this paragraph
shall be void.
b) In the event Landlord consents to any assignment of this Lease or
any sublease of all or any part of the Premises, Tenant shall pay to Landlord,
on a monthly basis, an amount equal to all rent and other consideration paid
under said assignment or sublease
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during each month in excess of the Base Rental for said month and Tenant shall
remain liable for the full and faithful performance of all the covenants and
conditions of this Lease.
20. MECHANIC'S LIENS. Tenant will not permit any mechanic's lien or liens to be
placed upon the Premises or any portion of the Property, and nothing in this
Lease shall be deemed or construed in any way as constituting the consent or
request of Landlord, express or implied, by inference or otherwise, to any
person for the performance of any labor or the furnishing of any materials to
the Premises or any part of the Property, or as giving Tenant any right, power
or authority to contract for or permit the rendering of any services or the
furnishing or any materials that would or might give rise to any mechanic's or
other liens against the Premises or any part of the Property. This provision
shall comprise notice to all parties that Landlord's interest in the Property,
including the Premises, are and shall not be subject to liens or liability to
secure or satisfy claims of any party contracting or otherwise dealing with
Tenant or Tenant's agents or contractors. In the event any such lien is claimed
against the Premises or any part of the Property, then Tenant shall discharge
same or transfer such lien to security other than the Premises and the Property,
as soon as possible, but no later than ten (10) days after notice thereof. In
the event that Tenant fails to discharge or otherwise remove any such liens,
then, in addition to any other right or remedy of Landlord, Landlord may, but
shall not be obligated to, discharge the same. Any amount paid by Landlord
pursuant to this Paragraph shall be reimbursed by Tenant to Landlord promptly
after Landlord's demand therefore as additional Rent, but no later than thirty
(30) days thereafter.
21. PROPERTY INSURANCE.
a) Subject to Tenant's compliance with Paragraph 7 of this Lease,
Landlord shall maintain fire and extended coverage insurance (broad form) on the
Building in an amount as Landlord shall deem appropriate and payments for losses
thereunder shall be made solely to Landlord or Landlord's mortgagee(s), as their
interests shall appear.
b) Tenant shall maintain, at its sole expense, in an amount equal to
full replacement cost, fire and extended coverage insurance on all of its
improvements and personal property, including removable trade fixtures, located
at the Premises and such additional amounts as are required to meet Tenant's
obligations pursuant to Paragraph 25 hereof. Upon the execution of this Lease,
upon policy renewals and upon Landlord's request from time to time, Tenant shall
provide Landlord with current certificates of insurance evidencing Tenant's
compliance with the terms of this Paragraph 21 and Paragraph 22 hereof. Tenant
shall, simultaneously with the execution of this Lease, obtain and deliver to
Landlord the written agreement or endorsement of Tenant's insurers to notify
Landlord by certified mail, return receipt requested, at least 30 days prior to
the cancellation, expiration or modification of any insurance coverage required
of Tenant herein.
22. LIABILITY INSURANCE. Tenant, at its sole expense, shall maintain a policy or
policies of comprehensive general liability insurance with respect to its
activities in the Building and on the Property, with the premiums thereon fully
paid on or before the due date therefore, issued by and binding upon an
insurance company approved by Landlord. Such insurance shall afford minimum
protection of not less than $1,000,000.00 combined single limit for bodily
injury and property damage, and Landlord shall be named as an insured thereon.
23. ASSUMPTION OF RISKS. Landlord shall not be liable to Tenant or Tenant's
customers, licensees, invitees, agents, guests or employees for any loss of
life, injury, loss or damages to its, his or their persons or property created
by any cause whatsoever, including, but not limited to:
(i) Acts or omissions of Landlord, its employees, agents or
independent contractors unless such acts or omissions are
grossly negligent or willful;
(ii) The acts or omission of any other tenant in the Building;
(iii) Construction defects, water, rain, sleet, fire, storms,
negligence and accidents, breakage, stoppage or leaks of
gas, water heating or sewer pipes, boilers, wiring or
plumbing; or
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(iv) Any other defects (latent or patent) in or about the
Premises. Tenant expressly assumes all liability for or on
account of any such loss of life, injury, loss or damage,
and shall at all times, indemnify, defend and save Landlord
harmless from and against all claims, causes of action,
liability, damage or expense, including, without limitation,
attorneys' fees and costs suffered or incurred by Landlord
by reason of any loss of life, injury, loss or damage to
persons or property arising out of, related to or connected
with the occupancy, use, repair or maintenance of the
Premises or any other portion thereof by Tenant, its
employees, agents, customers, invitees, licensees, or
contractors or due in whole or in part to the acts or
omissions of Tenant, its employees, agents, customers,
invitees, licensees, or contractors.
24. WAIVER OF SUBROGATION RIGHTS. Anything in this Lease to the contrary
notwithstanding, Tenant and Landlord hereby waive any and all rights of
recovery, claim, action, or cause of action, against the other, its agents,
officers or employees, for any loss or damage that may occur to the Premises,
the Building or the Property, or any improvements thereto, or any personal
property of Tenant or Landlord therein, by reason of fire, the elements or any
other causes which are insured against under the terms of the fire and extended
coverage insurance policies which either party is required to carry as required
herein, regardless of cause or origin, including the negligence of either party,
its agents, officers or employees; provided that such waiver by Tenant or
Landlord does not limit in any way the other party's right to recovery under
such insurance policies. Tenant shall obtain an endorsement to all of its
insurance policies which provides that the waivers set forth in this Paragraph
24 shall not limit Tenant's right to recover under such policies, and upon the
execution hereof Tenant shall deliver a copy of such endorsement to Landlord.
25. CASUALTY DAMAGE.
a) If the Premises or any part thereof shall be damaged by fire or
other casualty and all or any portion of the Building shall be so damaged that
substantial reconstruction of the Building, shall in Landlord's sole opinion, be
required (whether or not the Premises shall have been damaged by such casualty),
or if the Premises shall by reason of such occurrence be rendered substantially
untenantable, or if the holder of any mortgage on the Property should require
that the insurance proceeds payable as a result of a casualty be applied to the
payment of the mortgage debt, or if a casualty should occur during the last two
(2) years of the Lease Term or during any renewal period, or if insurance
proceeds actually received or expected to be received by the either Landlord or
Tenant (excluding amounts paid to the holders of mortgages upon the Property)
are insufficient for full repair of the casualty, or if the casualty is not
covered by Landlord's insurance, Landlord may, at its option, terminate this
Lease by notifying Tenant in writing of such termination within ninety (90) days
after the date of such damage.
b) If any of the events set forth in subparagraph (a) above take place
or occur and if Landlord does not elect to terminate this Lease, Landlord's
obligation to restore shall be limited to the restoration of the Leasehold
Improvements provided that Tenant makes available to Landlord all of Tenant's
insurance proceeds for the purposes of accomplishing this restoration to be
undertaken by Landlord, but specifically excluding any insurance proceeds that
are intended to reimburse Tenant for loss of its equipment, desks, personal
property and leasehold improvements installed by the Tenant not attached to, but
located within, the Premises.
c) Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof. If the Premises or any other portion of the Building
shall be damaged by fire or other casualty resulting from the fault or
negligence of Tenant or any of Tenant's agents, employees, or invitees, the Rent
hereunder shall not be diminished during the repair of such damage, and Tenant
shall be liable to Landlord for the entire cost of the repair and restoration of
the Building caused thereby; otherwise, Landlord shall allow Tenant a prorata
abatement of Rent during the time and to the extent the Premises are unfit for
occupancy as a result thereof.
26. CONDEMNATION. If more than twenty percent (20%) of the Property shall be
taken for any public or quasi-public use, by right of eminent domain or
otherwise, or if
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more than twenty percent (20%) shall be sold in lieu of condemnation, then this
Lease shall terminate as of the date when physical possession of the Property is
taken. If less than twenty percent (20%) of the whole of the Property is thus
taken or sold (whether or not the Premises are affected thereby), then Landlord
may, at its option, terminate this Lease by giving written notice thereof to
Tenant, in which event this Lease shall terminate as of the date when physical
possession of such portion of the Property is taken. If this Lease is not
terminated after any such taking or sale of the Property and the Premises are
directly affected by such taking, the Base Rental payable hereunder shall be
reduced in the same proportion that the Floor Area of the Premises so taken or
conveyed bears to such Floor Area immediately prior to such taking or
conveyance, and Landlord shall restore the Building and the remaining Premises
to substantially their former condition. All amounts awarded upon a taking of
any part or all of the Property shall belong to Landlord, and Tenant shall not
be entitled to and expressly waives all claims to any such compensation.
27. DAMAGES FROM CERTAIN CAUSES. Landlord shall not be liable to Tenant for any
delays in performance of Landlord's duties hereunder or for any loss or damage
to any property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition, order of
governmental body or authority or any other cause beyond the control of
Landlord. Landlord shall not be liable to the Tenant for any damage or delay or
inconvenience which may arise in connection with the repair or alteration of any
part of the Property resulting from the foregoing or other causes. However,
should Tenant's Premises become unusable due to certain causes, the rent shall
be abated during the period Tenant is not able to occupy the Premises.
28. EVENTS OF DEFAULT/REMEDIES.
a) The following events shall be deemed to be events of default by
Tenant under this Lease:
(i) Tenant shall fail to pay any Rent or any other sums of money
due hereunder and such failure shall continue for a period
of ten (10) days after the date such Rent or other sums is
due (with no notice being required of Landlord); hereinafter
referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary
provision of this Lease or any other agreement between
Landlord and Tenant, if applicable, after Landlord has
provided thirty (30) days prior written notice of such
Non-Monetary Default and Tenant has failed to cure such
Non-Monetary Default within said thirty (30) days provided;
however, if such default cannot be cured within thirty (30)
days and if Tenant is diligently attempting to cure such
Default, Landlord shall grant such additional reasonable
time as may be necessary to cure such Non-Monetary Default,
but in no event shall Landlord grant more than ninety (90)
days to cure a Non-Monetary default;
(iii)The leasehold hereunder demised shall be taken on execution
or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of
and operate its business on the Premises when the Premises
are ready for occupancy or shall cease to do business in or
vacate or abandon any substantial portion of the Premises
for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as
they become due, Tenant files a petition in bankruptcy or
for reorganization under the bankruptcy laws or an
admission, answer or other responsive pleading consenting
to, or requesting the relief afforded by the bankruptcy
laws;
(vi) Tenant makes an assignment for the benefit of creditors,
within the meaning of the bankruptcy laws or Tenant consents
to the appointment of a receiver or custodian for all or a
substantial part of its property; or
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(xxx)Xxx filing against Tenant of a petition in bankruptcy or for
reorganization under the bankruptcy laws, the adjudication
of Tenant as a bankrupt, the entry of a court order
appointing a receiver, custodian or trustee for all or a
substantial part of its property without its consent or the
assuming of custody or sequestration by a court of competent
jurisdiction of all or substantially all of Tenant's
property, and within thirty (30) days thereafter such filing
is not dismissed, or such court order is not vacated or such
assumption or sequestration is not released, or if the
Tenant does not bond off the risk to Landlord to Landlord's
reasonable satisfaction, which shall not be unreasonably
denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any
part of its interests in the Premises or in this Lease
without Landlord's prior written consent subject to the
provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other
breach of this Lease by Tenant, whether enumerated in this Paragraph or not,
Landlord shall have the option to pursue any one or more of the following
remedies:
(i) Landlord shall have the right, at its election, to cancel
and terminate this Lease and dispossess Tenant by summary
proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and
rents due under this Lease for the remainder of the existing
term (and any applicable extension or renewal thereof) to be
immediately due and payable, and thereupon all rents and
other charges due hereunder to the end of the initial term
and any renewal term, if applicable, shall be accelerated;
however, Landlord shall credit Tenant for any re-renting
income for the Premises, after deducting Landlord's costs
necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and
relet the Premises for Tenant's account, holding Tenant
liable in damages for all expenses incurred in any such
reletting and for any difference between the amount of rent
received from such reletting and the rent due and payable
under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant
is obligated to do under this Lease (and Tenant agrees to
reimburse Land- lord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's
obligations under this Lease and Tenant further agrees that
Landlord shall not be liable for any damages resulting to
the Tenant from such action). All such remedies of Land-
lord shall be cumulative and not exclusive, and in addition,
Landlord may pursue any other remedies that may be permitted
by law or in equity. Forbearance by 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 or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent
permissible by applicable law, and the unenforceability of any portion hereof
shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not
begun to cure any failure of its obligations hereunder within thirty (30) days
after the receipt by Landlord of written notice from Tenant of the alleged
failure to perform and does not continue
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to pursue the cure thereof. Except as otherwise specifically provided in this
Lease, in no event shall Tenant have the right to terminate or rescind this
Lease or to offset the Rent amount due Landlord as a result of Landlord's
default as to any covenant or agreement contained in this Lease or as a result
of the breach of any promise or inducement hereof, whether in this Lease or
elsewhere. Tenant hereby waives such remedies of termination and rescission and
hereby agrees that Tenant's remedies for default hereunder and for breach of any
promise or inducement by Landlord shall be limited to a suit for damages and/or
injunction. Tenant hereby covenants that, prior to the exercise of any such
remedies, it will give the mortgagees on the Property written notice and a
reasonable period of time in which to cure any alleged default. Notwithstanding
anything to the contrary contained herein, nothing shall prevent Tenant from
maintaining or asserting any of the foregoing remedies (or any other remedy) in
a proceeding instituted by either party to enforce that party's rights under
this Lease. Tenant is only prevented from unilaterally withholding rent without
filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY
HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT
OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A
MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
29. TENANT'S PROPERTY TAXES AND ASSESSMENTS. Tenant shall be liable for all
taxes levied or assessed against the personal property, furniture fixtures and
equipment placed by or used by Tenant in the Premises or as presently exists
within the Premises. If any such taxes for which Tenant is liable are levied or
assessed against Landlord or the Property or if the assessed value of the
Property is increased by inclusion of the personal property, furniture, fixtures
and equipment now located within the Premises or to be placed by Tenant in the
Premises or used within the Premises by Tenant, Tenant shall promptly pay to
Landlord upon demand that part of such taxes for which Tenant is liable
hereunder.
30. PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold and enjoy
the Premises against all persons claiming by, through or under Landlord, subject
to the other terms hereof, provided that Tenant pays the Rent and other sums to
be paid by Tenant hereunder and performs all of Tenant's covenants and
agreements herein contained.
31. RELOCATION. Omitted.
32. HOLDING OVER. In the event Tenant continues to occupy the Premises after the
termination of this Lease (as it may be extended by written agreement of the
Landlord and Tenant), Tenant covenants and agrees, throughout the entire
holdover period, to pay monthly rent equal to twice the Base Rental for the last
full month immediately preceding the termination of this Lease. No possession by
Tenant after the expiration of the terms of this Lease shall be construed to
extend the term of this Lease. Throughout any holdover period Tenant shall by
deemed a tenant-at-sufferance.
33. SUBORDINATION TO MORTGAGE.
a) This Lease is and shall be subject and subordinate to any ground
lease, mortgage, deed of trust or other lien created by Landlord, whether
presently existing or hereafter arising upon all or any portion of the Property
and to any renewals, refinancing and extensions thereof. Landlord is hereby
irrevocably vested with full power and authority to subordinate this Lease to
any ground lease, mortgage, deed of trust or other lien now existing or
hereafter placed upon all or any portion of the Property, and Tenant agrees upon
demand to execute such further instruments subordinating this Lease or attorning
to the holder of such ground lease, mortgage, deed of trust or other lien as
Landlord may request.^ Landlord will use its best efforts to obtain a
subordination and non-disturbance agreement from Landlord and its lender which
shall be in the form attached as Exhibit "H".
b) Tenant agrees that it shall from time to time within fifteen (15)
days after request by Landlord execute and deliver to such persons as Landlord
shall request a statement in recordable form certifying that:
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(i) This Lease is unmodified and in full force and effect or
stating any modifications thereto;
(ii) Stating the dates of which rent and other charges payable
under this Lease have been paid;
(iii)Stating that Landlord is not in default hereunder (or if
Tenant alleges a default stating the nature of such alleged
default); and
(iv) Further stating such other matters as Landlord or its
mortgagee(s) shall reasonably require. Tenant shall, in the
event of the sale or assignment of Landlord's interest in
all or any portion of the Property or in the event of any
proceedings brought for the foreclosure of, or in the event
of the exercise of the power of sale under, or transfer in
lieu of foreclosure of any mortgage, or other lien made by
Landlord covering the Premises, attorn to the purchaser and
recognize such purchaser as Landlord under this Lease and
Tenant agrees that such purchaser shall not be liable for
any prior act, omission or default by Landlord or subject to
any offset or defenses Tenant may have against Landlord.
34. LANDLORD'S LIEN. Omitted.
35. ATTORNEY'S FEES. The parties hereto agree that the prevailing party shall be
entitled to recover from the non-prevailing party all reasonable attorneys' fees
and costs incurred in litigation between the parties hereto arising out of or
related to this Lease. The term attorneys' fees and costs as used in this Lease
shall mean such costs at all levels from pretrial through final appeal.
36. NO IMPLIED WAIVER. The failure of Landlord to insist at any time upon the
strict performance of any covenant or to exercise any right or remedy in this
Lease shall not be construed as a waiver thereof for the future. No payment by
Tenant or receipt by Landlord of a lesser amount than the monthly installment of
rent due under this Lease shall be deemed to be other than on account of the
earliest rent due hereunder, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
provided in this Lease or at law or equity.
37. LIMITATION OF LIABILITY. The liability of Landlord for any default by
Landlord under this Lease shall be limited to the interest of Landlord in the
Property. Tenant agrees to look solely to such interest for the satisfaction
thereof and neither Landlord nor any of its partners shall be personally liable
for any obligations hereunder.
38. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood that
the Security Deposit shall not be considered an advance payment of rental, nor a
"Rent Deposit" as defined in Subparagraph 5(d), nor should the Security Deposit
be considered a measure of Landlord's damages in case of default by Tenant.
Landlord may, from time to time, without prejudice to any other remedy, apply
the Security Deposit to arrearage of rent or to the cost of performing any other
covenant or obligation of Tenant hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount. If
Tenant is not in default at the termination of this Lease, the balance of the
Security Deposit remaining after any such application(s) shall be returned by
Landlord to Tenant. If Landlord transfers its interest in the Premises during
the term of this Lease, Landlord may assign the Security Deposit to the
transferee and thereafter Landlord shall have no further liability for the
return of such Security Deposit.
39. NOTICE. Any notice or demand given pursuant to this Lease must be in writing
and be given or be served by depositing the same in the United States mail,
postpaid and certified and addressed to the party to be notified, with return
receipt requested, or by delivering the same in person or by commercial
overnight courier service to such party to
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be notified at the address stated in this Lease or such other address of which
notice has been given to the other party in accordance with the terms of this
Paragraph 39. Notice deposited in the mail in the manner hereinabove described
shall be effective from and after the expiration of three (3) days after it is
so deposited. Notwithstanding any provision of this Lease to the contrary
however, Landlord may always give Tenant notice by addressing or delivering same
to the Premises. Until further notice, the addresses for the parties shall be as
follows:
As to Landlord: SPANISH RIVER EXECUTIVE PLAZA, LIMITED
c/x Xxxxxx/Xxxxx Ventures,Inc., General Partner
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
With copies to: SPANISH RIVER EXECUTIVE PLAZA, LIMITED
c/x Xxxxxx/Xxxxx Ventures Management Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000-X
Xxxx Xxxxx, XX 00000
As to Tenant: Manchester Equipment Co.
Spanish River Executive Plaza
185 N.W. Spanish Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxx, XX 00000
With copies to: ------------------------------------
------------------------------------
------------------------------------
40. SEVERABILITY. If any term or provision of this Lease, or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
41. RECORDATION. Tenant agrees not to record this Lease or any memorandum
hereof, but Landlord may record this Lease or a memorandum thereof, at its sole
election, and Tenant agrees to execute such memorandum upon request by Landlord.
42. GOVERNING LAW. This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed and enforced in accordance with the laws
of the State of Florida.
43. TIME OF PERFORMANCE. Except as expressly otherwise herein provided, with
respect to all required acts of Tenant, time is of the essence of this Lease.
44. FORCE MAJEURE. Whenever a time period is herein prescribed for Landlord or
Tenant to take action, neither Landlord nor Tenant shall be liable or
responsible for, and there shall be excluded from the computation of such period
of time, any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions, financing, or
any other cause whatsoever beyond the control of either Landlord or Tenant.
45. TRANSFERS BY LANDLORD. Landlord shall have the right to transfer and assign,
in whole or in part, all its rights and obligations hereunder and in the
Premises, and, in such event and upon such transfer, Landlord shall be released
from any further obligations hereunder, and Tenant agrees to look solely to such
successor in interest of Landlord for the performance of such obligations.
However, Landlord shall remain liable
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for any adjudicated judgment in favor of Tenant provided that Tenant has
commenced, and served Landlord with written notice thereof, an action prior to
such transfer.
46. BROKERS. Landlord and Tenant represent and warrant to each other that
neither of them has employed, engaged, or consulted with any broker in
connection herewith except for Gimelstob Realty Better Homes and Gardens
("Broker"). Landlord and Tenant hereby agree to indemnify and to hold each other
harmless against any loss, expense or liability with respect to any claims for
commissions or brokerage fees arising out of any breach of the foregoing
representation and warranty. Broker shall be paid by Blasland, Xxxxx & Xxx, Inc.
for any commission due on the lease term through December 31, 1999; Broker's
commission due after December 31, 1999 shall be paid by Landlord. Such
commissions shall be paid by both parties upon Commencement of the Lease.
47. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy of this
Lease to Tenant for Tenant's review only, and the delivery hereof does not
constitute an offer to Tenant until or unless it has been fully executed by both
Tenant and Landlord.
48. CAPTIONS. The paragraph captions used herein are for convenience and
reference only.
49. JOINT AND SEVERAL LIABILITY OF TENANT. If there is more than one person
comprising Tenant, the obligations imposed upon Tenant hereunder shall be joint
and several. If there is a guarantor or guarantors of Tenant's obligations
hereunder, Landlord need not first proceed against Tenant before proceeding
against any such guarantor, nor shall any such guarantor be released from its
guaranty for any reason whatsoever, including, without limitation, any amendment
to this Lease, any waiver of any provision hereof or the failure to give such
guarantor any notice hereunder.
50. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. There are no terms,
understandings, representations or warranties, express or implied, other than
those set forth herein. All prior communications, negotiations, representations,
agreements and understanding, whether oral or written, between the parties
hereto are merged herein.
51. AMENDMENTS. This Lease may not be modified or amended, except by an
instrument in writing and signed by both parties hereto.
52. BINDING EFFECT. This Lease shall be binding upon and inure to the benefit of
Landlord, its successors and assigns, and Tenant, its heirs, personal
representatives, successors and, to the extent assignment is permitted under the
provisions hereof, Tenant's assigns.
53. LEASEHOLD IMPROVEMENTS AND ACCEPTANCE OF PREMISES.
a) SUBSTANTIAL COMPLETION. Omitted.
b) "AS IS" CONDITION OF PREMISES. Notwithstanding anything to the
contrary as may be set forth herein, Landlord and Tenant agree that Tenant is
accepting the Premises in their current "as is" condition, less reasonable wear
and tear, provided however, that Landlord represents the utility systems,
including heating and air conditioning systems and equipment be in working order
at the time Tenant takes occupancy, as of December 1, 1997, (other than removal
of existing tenant's equipment and fixtures and Landlord's obligation to paint
the Premises and clean the carpeting), and that any other tenant finish work,
improvements, or equipment as may be needed by Tenant for its specified use of
the Premises shall be paid for exclusively by Tenant and shall be installed by
Tenant only after having received Landlord's prior written approval for such
improvements, which shall not be unreasonably withheld, provided Tenant:
(i) provides a copy of the plans for such other tenant finish
work to Landlord;
(ii) pays for all costs of such other tenant finish work; and
SpanishRiver.Manchester.September 22, 1997.ajm
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Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) indemnifies Landlord for any liability in connection with
such other tenant finish work.
c) For purposes of this Lease, the Premises are already deemed to be
Substantially Complete as of the date Tenant executes this Lease with no permit
needed from the City of Boca Raton.
d) Tenant shall be solely responsible for satisfying all governmental
regulations having jurisdiction over Tenant's use of the Premises or Tenant's
operations in the Building. No exhaust system, electrical hook-up, or electric
and/or gas appliances shall be installed by Tenant without Landlord's prior
approval which approval shall not constitute compliance by Tenant with any
governmental approval as may be required herein of Tenant.
e) LEASEHOLD IMPROVEMENTS. Except for those portions of the Premises
which Tenant is accepting in their "as is" condition, those improvements which
shall be the responsibility of Landlord to complete are referred to as
"Landlord's Additional Work" and are listed separately below and unless so
identified, Landlord shall not be obligated to complete any other work or make
any improvements to the Premises. Landlord's Additional Work shall include:
(i) Re-painting the Premises throughout (painted surfaces
only) with Tenant's choice from Building Standard
Selections.
(ii) Landlord shall clean the carpets within the Premises and in
the event such cleaning is not successful pursuant to
commercial standards, Landlord will give Tenant a Seven
Hundred and No/100 Dollar ($700.00) allowance for the
purposes of installing new carpeting from Landlord's
Building Standard selections.
f) TENANT ACCEPTANCE. Tenant and its agents have been provided with
full opportunity to inspect the condition and construction quality of the
Premises prior to executing this Lease and have thereby been deemed to have
accepted all such existing conditions as of the date Tenant executes this Lease
unless any such conditions are to be changed or modified according to the
definition of Landlord's Additional Work provided in this paragraph 53.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts on the day and year first above written.
WITNESSES: TENANT:
MANCHESTER EQUIPMENT COMPANY,
INC.
_____________________________ By:/s/ Xxxxx Xxxxxxxxx
---------------------
Xxxxx Xxxxxxxxx
_____________________________ President
WITNESSES: LANDLORD:
SPANISH RIVER EXECUTIVE PLAZA,
LTD., a Florida Limited Partnership
_____________________________ By:_/s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxx, Xx., President
_____________________________ XXXXXX/XXXXX VENTURES, INC.,
General Partner
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EXHIBITS ATTACHED:
"A" Real Property Description
"B" Floor Plan of Premises
"C" Work Letter - Omitted.
"D" Rules and Regulations
"E" Floor Plan of Premises and Offered Premises - Omitted.
"F" Broker Disclosure Statement - Omitted
"G" Radon Gas Disclosure
"H" Form of Subordination and Non-Disturbance
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