Exhibit 10.9
LEASE AGREEMENT
THIS AGREEMENT is made the 31st day of March, 1997 by and between XXXXXXXXX
COMET, L.C. a Florida limited liability company, ("Landlord"), and SOFTWARE
TECHNOLOGY, INC., a Florida corporation, ("Tenant").
1. DEMISED PREMISES. Landlord does hereby demise and let unto Tenant, and
Tenant rents from landlord, all that land ("Land") as shown on the recorded Plat
Plan for Airport Corporate Center for Lot No. 2, together with the building of
approximately 30,000 square feet ("Building") to be constructed thereon on
behalf of Landlord in Airport Corporate Center ("Center"), Melbourne, Brevard
County, Florida. (Land and Building hereinafter collectively "Demised
Premises"), for a term described in Paragraph 2 hereof, and to be used and
occupied as office, engineering, manufacturing and assembly space and for no
other purpose.
2. DEMISED TERM. This Lease shall be for a term of ten (10) years (plus any
partial month if the Commencement Date is other than the first day of the month)
("Demised Term"), unless earlier terminated pursuant to the terms of this Lease,
beginning the date on which Landlord substantially completes the leasehold
improvements, as evidenced by a certificate of occupancy issued by the City of
Melbourne, in accordance with Paragraph 5 hereof and delivers the Demised
Premises to Tenant ("Commencement Date"), and ending the last day of the one
hundred twentieth (120th) month following the Commencement Date ("Expiration
Date"). Within thirty (30) days following the Commencement Date, Landlord and
tenant shall confirm the Commencement Date in writing. The Commencement Date
shall be as specified in Paragraph 6b. hereof.
3. BASIC RENT.
(a) FIRST YEAR OF THE DEMISED TERM. During the first Lease Year of the
Demised Term, Tenant agrees to pay a net Basic Rent (`Basic Rent") in the sum of
$178,000.00 per annum lawful money of the United States of America, payable in
advance during the First Year of the Demised Term of this Lease in sums of
$14,883.33 on the first day of each month subject to those conditions outlined
in Exhibit "E" attached, rent to begin on the Commencement Date. Rent due and
payable without demand or offset, at the office of Landlord (Attention:
Accounting Department).
(b) YEARS 3-10 OF THE DEMISED TERM AND EXTENDED TERMS. During the
third through tenth Lease Years and any years during the Extended Term, Tenant
agrees to pay a net Basic Rent ("Basic Rent") in the sum of: the previous Year's
Basic Rent, PLUS the lessor of: (I) an adjustment for Consumer Price Index
("CPI") increase, as defined below, or (ii) two percent (3%) of the previous
Year's Basic Rent.
ADJUSTMENT FOR CPI INCREASE: The CPI adjustment for each subsequent
Year's Basic Rent shall be: an amount equal to the percentage change
in the Consumer Price Index, as measured from the Base Index to the
Comparison Index, multiplied by the previous Year's Basic Rent. For
the purposes of this paragraph:
(a) The CPI shall mean the Consumer Price Index (Base Period 1967)
(U.S. city average for urban consumers), published by the Bureau of
Labor Statistics of the United Stated Department of Labor; provided
that if such Consumer Price Index is no longer published at regular
periods, then any similar report released by any other bureau,
department or agency of the United States Government at regular
periods, for substantially similar purposes, shall be used;
(b) The Base Index shall mean the most recent Consumer Price Index
published sixty (60) days prior to commencement of the Lease Year;
(c) The Comparison Index shall mean the most recent Consumer Price
Index published sixty (60) days prior to the end of the Lease Year.
(d) Lease Year shall mean the twelve (12) month period starting on the
Commencement Date and each anniversary thereof during the Demised
Term.
4. NET LEASE. It is the intent of the parties hereto that this is a net
lease, and that all costs of ownership, maintenance and use of the Demised
Premises, shall be paid by Tenant in addition to the payments of Basic Rent
specified above, provided, however, Landlord shall be responsible for property
management expenses, if any, structural repairs to the exterior foundation,
roofs, the plumbing in common areas and/or outside of the Building, and exterior
walls (but excluding the exterior of, and the frames surrounding all windows,
doors, plate glass, store fronts and signs). Said repairs by Landlord will be
made within a reasonable time after notice from Tenant. Landlord shall provide
all Common Area Services ("Common Area Services" is defined as exterior
janitorial services, grounds maintenance, landscaping, parking lot maintenance
and site lighting, if applicable) to the Demised Premises, at Tenant's expense.
Tenant shall have the right to approve, in advance, all contracts for Common
Area Services for the Demised Premises.
5. IMPROVEMENT OF DEMISED PREMISES.
(a) CONSTRUCTION OF THE BUILDING. After execution of this Lease and
initialing of the final plans and specifications ("Final Plans and
Specifications") for the Building, which Final Plans and Specifications are
attached hereto as Exhibit "A" and incorporated herein by reference, Landlord
shall promptly make application for all building permits and approvals. Any
changes to the Final Plans and Specifications required by Tenant during the
building or fit-up of the Demised Premises shall be by separate written change
order (including payment terms), with an extension of time to complete the
building of the Demises Premises, if necessary, signed by both parties.
(b) FIT-UP WORK. Utilizing a general contractor selected by Landlord,
Landlord shall complete and prepare the Demised Premises for Tenant's initial
occupancy in a good and workmanlike manner in accordance with Tenant's
Improvement Plan which has been initialed by both Landlord and Tenant.
(c) MATERIALS USED FOR FIT-UP WORK. Landlord shall use materials as
outlined on the attached Tenant Scope of Work (Exhibit "A"). Landlord reserves
the right, however: (1) to make substitutions of material of equivalent grade
and quality when and if any specified material shall not be readily and
reasonably available, and (2) to make changes necessitated by conditions met in
the course of construction, provided that Tenant's approval of any change shall
first be obtained (which approval shall not be unreasonably withheld) so long as
there shall be general conformity with Tenant's Improvement Plans and Tenant's
intended use of the Demised Premises and which approval must be given or denied
(with reasons stated in the case of denial) within forty-eight (48) hours after
request or approval shall be conclusively deemed to have been given.
6. INABILITY TO GIVE POSSESSION.
(a) EXCUSABLE DELAYS. Landlord shall not be liable to Tenant for any
damages caused by Landlord's inability to deliver possession of the Demised
Premises to Tenant on the Commencement Date, as a result of causes beyond
Landlord's reasonable control, including, but not limited to, delays caused by
Tenant's acts or by strikes, lockouts, labor disputes, inclement weather
(including the day(s) following inclement weather when contraction work cannot
proceed due to saturation of soils or other unsatisfactory conditions),
inability to procure materials, failure of power, restrictive governmental rules
and regulations, riots, insurrections or war ("Excusable Delays").
(b) DELIVERY OF DEMISED PREMISES. If the Landlord shall be unable to
give possession of the Demised Premises within nine (9) months of receiving the
building permit from the City of Melbourne, exclusive of Excusable Delays
("Completion Date") or because a certificate of occupancy has not been procured,
Landlord shall not be subject to any liability for such inability to give
possession under such circumstances. The payment of rent shall not commence
until the Commencement Date. The failure to give possession on the Completion
Date shall not affect the validity of this Lease or the obligations of Tenant
hereunder or extend the Demised Terms, provided, however, in the event Landlord
is unable to give possession on or before the tenth (10th) month after receiving
the building permit from the township (exclusive of Excusable Delays), then
Tenant shall have the option of declaring the Lease terminated by giving
Landlord written notification thereof, by registered mail, within two (2) weeks
of the first day of said tenth (10th) month.
7. ADDITIONAL RENT.
(a) BREACH. Tenant agrees to pay as rent in addition to the Basic Rent
any and all sums which may become due by reason of the failure of Tenant to
comply with all of the covenants of this Lease and any and all damages, costs
and expenses, including attorney's fees, which the Landlord may suffer or incur
by reason of such default, and also any and all damages to the Demised Premises
caused by any act or neglect of the Tenant.
(b) TAXES, ASSESSMENTS, ETC. Tenant will duly promptly pay as
additional rent to Landlord, as the same shall become due and payable and before
they become delinquent, all taxes, rates, assessments and other governmental
charges, and charges of every kind and nature whatsoever; nonrecurring as well
as recurring, special or extraordinary as well as ordinary, foreseen and
unforeseen, and each and every installment thereof, which shall or may during
the term of the Lease be levied, assessed or imposed, or become due and payable
or become liens upon, or arise in connection with the use, occupancy or
possession of, or any interest in, the Demised Premises, or upon the rents,
issues, income and profits therefrom so as to prevent the same from becoming or
being an enforceable lien or claim against the property or the interest of
Landlord ("Expenses"). Landlord shall apply such payment by Tenant to the
payment of such Expenses, but in no event shall Landlord be required to pay such
Expenses early or during discount periods. Such Expenses shall include all real
estate taxes, assessments, water and sewer charges which may become liens upon
the Demised Premises or any part thereof. If Landlord requests Tenant to pay
such Expenses other than to Landlord, Tenant will furnish or cause to be
furnished to Landlord not less than fifteen (15) days prior to the date on which
payment of the same would become delinquent, or subject to penalty or interest,
receipts or other evidence satisfactory to Landlord of the payment of all such
Expenses. If Landlord requests in writing, Tenant shall pay to Landlord, or as
Landlord may direct, such Expenses in advance in installments as estimated and
determined by Landlord, and deposited with Landlord, or as directed by Landlord,
for payment of all such Expenses when the same may become due and payable.
Notwithstanding the foregoing, Tenant shall not be responsible for gross
receipts or other income taxes incurred by Landlord on the rents received
hereunder unless it is imposed in lieu of another charge for which Tenant is
responsible hereunder.
If the Tenant deems excessive or illegal any such Expenses, with the
written consent of the Landlord, the tenant may make payment under protest. Any
contest, whether before or after payment, may be made in the name of the
Landlord or the Tenant or both, with the written consent of the Landlord. If
requested by Tenant, Landlord may, but shall not be required to participate in
any such contest, but the Tenant shall be entitled to any refund of any such
Expenses, and any penalty or interest thereon which may have been paid by the
Tenant, but all costs in connection with such contest shall be borne by the
Tenant.
In case of failure of the Tenant to make any of the payments to be
made by Tenant for such Expenses, the Landlord may, but shall not be required
to, pay the amount of same, with penalty and interest thereon, if any. The
amount so paid by the Landlord, with interest thereon from the date of payment
thereof by the Landlord, shall be added to and become a part of the next
installment of rent.
If at any time during the term of this Lease the methods of taxation
prevailing at the commencement of the term hereof shall be altered so that in
lieu of or as a supplement to or a substitute for the whole or any part of the
real estate taxes or assessments now levied, assessed or imposed (1) a tax,
assessment, levy, imposition or charge, wholly or partially as a capital levy or
otherwise, on the rents received therefrom or (2) a tax, assessment, levy
(including but not limited to any municipal, state or federal levy), imposition
or charge measured by or based in whole or in part upon the premises and imposed
upon the Landlord, or (3) a license fee measured by the rent payable under this
Lease, then all such taxes, assessments, levies or impositions and charges, or
the part thereof so measured or based shall be deemed to be included in the
general real estate taxes and assessments payable by the Tenant pursuant hereto
to the extent that such taxes, assessments, levies, impositions and charges
would be payable if the premises were the only property of the Landlord subject
thereto, and the Tenant shall pay and discharge the same as herein provided in
respect of the payment of general real estate taxes and assessments.
(c) INSURANCE. Landlord shall keep all buildings and improvements now
or hereafter erected upon the Demised Premises, together with Chattels therein,
insured for the benefit of Landlord against loss by fire and other casualties
and hazards usually covered by extended coverage insurance in an amount not less
than the replacement value of the Demised Premises (excluding foundations and
other parts below the surface of the lowest floor), as determined not more than
once annually by an appraiser or rating bureau satisfactory to Landlord. Tenant
agrees that it will, throughout the Demised Term, pay and discharge as
additional rent, the cost incurred by Landlord in insuring the Demised Premises
as above stated. Insurance premiums at the beginning and end of the term shall
be apportioned. It is expressly understood and agreed that if for any reason
attributable to Tenant it shall be impossible to obtain Fire insurance on the
building and improvements on the Demised Premises in an amount and in the form
and with fire insurance companies acceptable to the Landlord, the Landlord may,
if the Landlord elects, (a) terminate this Lease and the term thereof on giving
to the Tenant fifteen (15) days' notice in writing of Landlord's intention to do
so and upon the giving of such notice this lease and the terms thereof, shall
terminate and come to an end; (b) compute the additional costs for such
insurance over and above the standard cost as if the condition attributable to
Tenant did not exist and Tenant shall be obligated to pay all of such additional
cost.
Tenant shall also provide at its sole cost and expense, any insurance
on improvements made to or inside the Demised Premises by Tenant. Such policy
shall name as insured Landlord and Tenant, as their interests may appear and
shall name Landlord's first mortgagee, if any, as mortgagee. A copy of such
policy shall be furnished to Landlord and Landlord's first mortgagee.
Tenant at its own cost and expense will provide and keep in force
during the Demised Term of this Lease commercial general liability insurance
covering at lease the hazards of "premises-operations", "elevators" (if
applicable) and "independent contractors" in which Landlord shall be included as
a named insured, in such other limits of liability as may be required by
Landlord from time to time, but not less than One Million Dollars
($1,000,000.00) combined single limit, with a deductible not to exceed Five
Thousand Dollars ($5,000.00). Such insurance shall cover not only the Demised
Premises but shall also include all elevators, hoists, hallways, entranceways,
stairs or any other common areas (exterior or interior), streets, driveways,
alleys, lawns, parking and loading areas, sidewalks and curbs adjacent thereto.
All such policies shall contain provision for notice to the said
Landlord not less than ten (10) days in advance of any cancellation or material
change of such policy. In case of failure of the Tenant to make premium payments
when due, the Landlord may pay the amount of any such premiums, which amount
with interest thereon from the date of payment by Landlord shall be added to and
become part of the next installment of rent.
Copies of renewal policies or certificates for any insurance required
under this Paragraph shall be deposited by Tenant with Landlord at least ten
(10) days prior to the expiration of existing policies, and upon failure to do
so Landlord may immediately purchase, for the account of Tenant, the necessary
insurance from any reputable insurance company without notice to Tenant, and
Tenant shall reimburse Landlord for cost thereof within ten (10) days after
demand.
All insurance required hereunder shall be issues by companies licensed
to do business in Florida and acceptable to Landlord. Tenant shall have the
right to carry the insurance provided for in this Paragraph, or any portions of
such insurance under a blanket or comprehensive all-risks policy.
d. UTILITIES. Tenant further agrees to pay as additional rent all
charges for water, sewer, gas, oil, electricity, light, heat, power, telephone
or other utility used by Tenant at the Demise Premises during the Demised Term.
All charges for repair of the utility meter(s) on the Demised Premises, whether
such repairs are made necessary by ordinary wear and tear, freezing, hot water,
accident, or other causes, shall be payable by Tenant as additional rent and
shall be paid immediately when the same become due.
e. MISCELLANEOUS. Tenant agrees to pay as Additional Rent its pro-rata
share of all Center charges, as set forth in Paragraph 35 hereof, for: signage
repairs, exterior janitorial service, grounds maintenance and landscaping,
parking lot maintenance, fences and site lighting. Landlord shall perform, at
Tenant's cost and expense, the grounds maintenance, landscaping, parking lot
maintenance and site lighting for the Demised Premises and xxxx Tenant the cost
for same as Additional Rent.
8. TIME, PLACE AND WITHHOLDING OF PAYMENT. Unless provided otherwise
herein, all Basic Rent and additional rent shall be payable in advance without
prior notice or demand and without any set off or deduction whatsoever at the
office of Landlord (or at such other place as Landlord may from time to time
designate by notice in writing) and at the times provided for the payment of the
Basic Rent. Under no circumstances will Tenant be permitted to withhold rent for
any reason.
9. AFFIRMATIVE COVENANTS OF TENANT. Tenant covenants and agrees that it
will without demand:
(a) INTERFERENCE AND WASTE. Conduct its business in such a manner as
not to interfere with or be a nuisance to the conduct of the Landlord's business
or that of any of Landlord's other tenants, and shall not allow any noxious
odors or vapors to be emitted from the Demised Premises. Landlord agrees that it
will conduct its business so as not to interfere with that of the Tenant. Use of
explosives, flammables and/or corrosive agents and other like materials is not
approved unless authorized by Landlord in advance. Any cleaning agent apparatus
will be installed and vented to the outside at Tenant's cost and only if
installation is approved in writing in advance by Landlord. Tenant shall not
engage in activities that waste the premises.
(b) MAINTENANCE AND REPAIR. Keep the Demised Premises and improvements
erected thereon in good condition and repair, including all plumbing, heating,
electrical and air conditioning systems and any loading facilities including
loading doors and dock bumpers. Tenant at its own expense shall enter into a
maintenance contract ("Maintenance Contract") with a heating and air
conditioning repair service acceptable to Landlord for the Demised Term and
shall provide Landlord with a copy of same. The specifications for the
Maintenance Contract are attached hereto as Exhibit "B". The Tenant shall permit
the Landlord or Landlord's duly authorized agents to enter upon the Demised
Premises and the buildings and improvements thereon erected at any reasonable
time, and from time to time, for the purpose of inspecting and appraising the
same. The Tenant shall comply with all orders, regulations, rules and
requirements of every kind and nature relating to the Demised Premises, now or
hereafter in effect, of the Federal, State Municipal or other governmental
authorities having power to enact, adopt, impose or require the same, whether
they be usual or unusual, ordinary or extraordinary, and whether they or any of
them relate to structural changes or requirements of whatever nature, or to
changes or requirements incident thereto, or as the result of the use or
occupation thereof by Tenant, and the Tenant shall pay all costs and expenses
incidental to such compliance, and shall indemnify and save harmless the
Landlord from all expense, and damages by reason of any notices, orders,
violations or penalties filed against or imposed upon the Demised Premises or
against the Landlord as owner thereof, because of the failure of the Tenant to
comply with this covenant. Tenant further agrees to keep the Demised Premises
clean and free from all ashes, dirt and other refuse matter; replace all glass
windows, doors, etc., which are broken; and keep all waste and drain pipes open.
In the event of the failure of Tenant promptly to perform the
covenants of Paragraph 8(b) hereof, Landlord may go upon the Demised Premises
and perform such covenants, the cost thereof, at the sole option of Landlord, to
be charged to Tenant as additional and delinquent rent.
(c) COMPLIANCE. Comply with any requirements of any of the constituted
public authorities, and with the terms of any State or Federal statute or local
ordinance or regulation applicable to Tenant or its use of the Demised Premises
and save Landlord harmless from penalties, fines, costs or damages resulting
from failure to do so.
(d) FIRE. Use every reasonable precaution against fire.
(e) RULES AND REGULATIONS. Comply with reasonable rules and
regulations of Landlord promulgated as hereinafter provided (See attached
Exhibit "C").
(f) SURRENDER OF DEMISED PREMISES. Upon the expiration or other
termination of this Lease, for any reason whatsoever, surrender to the Landlord
the Demised Premises together with the buildings and improvements thereon
erected or standing thereon and the building equipment then upon the Demised
Premises, together with all alterations and replacements thereon, in good order,
condition and repair, except for reasonable wear and use thereof, and except
also, such damage by fire or other cause for which the Tenant is obligated to
maintain insurance under the provisions of this Lease if the proceeds of such
insurance have been received by Landlord, and except further, such damage by any
taking by condemnation or exercise of the right of eminent domain if the
Landlord has received the proceeds of such condemnation or exercise of eminent
domain and applied the same under the provisions of this Lease. Tenant further
agrees to promptly deliver to Landlord at his office all keys for the Demised
Premises, and shall have removed from the Demised Premises those items listed on
Exhibit "D" and such other items referred to in Paragraph 10d hereof as Landlord
shall have given Tenant notice to remove. If Tenant fails to remove said items
prior to the surrender of the Demised Premises, Landlord may dispose of the
same, at Tenant's expense.
(g) NOTICE OF CASUALTY. Give to Landlord prompt written notice of any
accident, fire, or damage occurring on or to the Demised Premises.
(h) AGENCY FOR LEASING. Not vacate or desert the Demised Promises
during the Demised Term, or any renewal term, nor permit same to be empty and
unoccupied without consent of Landlord. If, with the permission in writing of
Landlord, Tenant shall vacate or decide at any time during the Demised Term to
vacate the herein Demised Premises prior to the expiration of this Lease, or any
renewal hereof, Tenant will not cause or allow any other agent to represent
Tenant in any subletting or reletting of the Demised Premises other than an
agent approved by the Landlord, and that should Tenant do so, or attempt to do
so, the Landlord, may remove any signs that may be placed on or about the
Demised Premises by such other agent without any liability to landlord or to
said agent, the Tenant assuming all responsibility for such action.
10. NEGATIVE COVENANTS OF TENANT. Tenant covenants and agrees that he
will do none of the following things without the consent in writing of Landlord
first had and obtained:
(a) USE. Occupy the Demised Premises in any other manner or for any
other purpose than as above set forth.
(b) ASSIGNMENT, ETC. Assign this Lease or hypothecate or mortgage the
same or sublet the Demised Premises or any part thereof. Any assignment,
transfer, hypothecation, mortgaging or subletting without the written consent of
the Landlord shall be void. The following shall be considered a violation of
this covenant:
1. filing of a petition by or against the Tenant under Chapter 7,
11 or 13 of Xxxxx 00, Xxxxxx Xxxxxx Code, Bankruptcy, as now or hereafter
amended or supplemented, or the filing of any petition by or against (and if
against not dismissed within thirty (30) days) the Tenant under any future
bankruptcy act or state law for the same or similar relief;
2. the dissolution or the commencement of any action or
proceeding for the dissolution or liquidation of the Tenant, in connection with
bankruptcy or other insolvency, whether instituted by or against (and if against
not dismissed within thirty (30) days) the Tenant or for the appointment of a
permanent receiver or a permanent trustee of all or substantially all the
property of the Tenant;
3. the taking possession of the property of the Tenant by any
governmental officer or agency pursuant to statutory authority for the
dissolution, rehabilitation, reorganization, or liquidation of the Tenant; or
4. the making by the Tenant of any assignment for the benefit of
creditors.
(c) Place or allow to be placed any stand, booth, or show case upon
the doorsteps, vestibules or outside walls, pavements of said Demised Premises,
or place, erect or cause to be placed or erected any projection or device on or
in part of the Demised Premises. Tenant shall remove any projection or device
placed or erected, if permission has been granted and restore the walls, etc.,
to their former conditions, at or prior to the expiration of the lease. In case
of the breach of this covenant (in addition to all other remedies given to
Landlord in case of the breach of any conditions or covenants of this Lease)
Landlord shall have the privilege of removing said stand, booth, show case,
projection or device, and restoring said walls, etc., to their former condition,
and Tenant, at Landlord's option, shall be liable to Landlord as additional rent
for any and all expenses so incurred by Landlord.
(d) ALTERATIONS AND IMPROVEMENTS. Make any structural alterations,
improvements, or additions to the Demised Premises. All alterations, additions
and improvements (except trade fixtures, furniture and equipment listed on the
attached Exhibit "D", other than building equipment but including electrical
installations, plumbing installations, heating units, cooling and/or
refrigeration units, fire and burglar alarms and associated detection devices
and related wiring, communication equipment and lighting fixtures) which may be
made or installed by Tenant upon the Demised Premises shall upon the making or
installation thereof be and become a part of the Demised Premises and shall
remain upon and be surrendered with the Demised Premises as a part thereof at
the termination of this Lease, unless Landlord shall, prior to the termination
of this Lease, have given written notice to Tenant to remove the same, in which
event Tenant will remove such alterations, improvements, and additions and
restore the Demised Premises to the same good order and condition in which they
now are. Should Tenant fail to do so, Landlord may do so, collecting, at
Landlord's option, the cost and expense thereof from Tenant as additional rent.
(e) MACHINERY. Use or operate any machinery that, in Landlord's
opinion, is harmful to the Demised Premises or building of which the Demised
Premises is a part.
(f) WEIGHTS. Place any weights in any portion of the Demised Premises
beyond the safe carrying capacity of the structure.
(g) REMOVAL. Remove, attempt to remove or manifest an intention to
remove Tenant's goods or property from or out of the Demised Premises otherwise
than in the ordinary and usual course of business, without having first paid and
satisfied Landlord for all rent then due.
(h) VACATION. Vacate or desert the Demised Premises during the Demised
Term, or permit the same to be empty and unoccupied without the permission of
Landlord.
(i) RECORDATION. Record this lease. If Tenant violates this covenant,
Tenant hereby irrevocably authorizes, empowers and designates Landlord as its
lawful attorney for the purpose of having said Lease marked satisfied of record.
11. LANDLORD'S RIGHTS. Tenant covenants and agrees that Landlord shall have
the right to do the following things and matters in and about the Demised
Premises:
(a) INSPECTION. At all reasonable times by himself or his duly
authorized agent to go upon and inspect the Demised Premises and every part
thereof, and/or at his option to make repairs, alterations and additions to the
Demised Premises or the building of which the Demised Premises is a part.
Excepting emergencies, Landlord shall give Tenant 24 hours' prior notice of
inspection, and Tenant shall have the right to escort Landlord during such
inspection, if Tenant so desires.
(b) RULES AND REGULATIONS. At any time or times and from time to time
to make such reasonable rules and regulations as in his judgment may from time
to time be necessary for the safety, care and cleanliness of the Demised
Premises, and for the preservation of good order herein. Such rules and
regulations shall, when notice thereof is given to Tenant, form a part of this
Lease.
(c) FOR SALE OR RENT. To display a "For Sale" sign at any time and
also, after notice from either party of intention to terminate this Lease, or at
any time within three months prior to the expiration of this Lease, a "For Rent"
sign, or both "For Rent" and "For Sale" signs; and all of said signs shall be
placed upon such part of the Demised Premises as Landlord may elect and may
contain such matter as Landlord shall require. Prospective purchasers or tenants
authorized by Landlord may inspect the premises at reasonable hours at any time.
(d) DISCONTINUANCE OF FACILITIES AND SERVICES. The Landlord may
discontinue all facilities furnished and services rendered, or any of them by
Landlord, not expressly covenanted for herein, it being understood that they
constitute no part of the consideration for this Lease.
12. RESPONSIBILITY OF TENANT. Landlord shall not in any event be
responsible, and the Tenant hereby specifically assumes responsibility for any
personal or bodily injury or death of any persons (including employees of Tenant
and Landlord) and damage, destruction, or loss of use of any property, including
the Demised Premises (except as specifically provided otherwise herein)
occasioned by any event happening on or about the Demised Premises, hallways,
entranceways, stairs or any other common areas (exterior or interior),
elevators, hoists, streets, driveways, parking and loading areas, alleys, lawns,
sidewalks and curbs adjacent thereto including those resulting from any work in
connection with any alterations, changes, new construction or demolition, except
if same results solely from the negligence of Landlord, its agents, servants, or
employees. Tenant is subrogated to any rights of Landlord against any other
parties in connection therewith. Tenant shall defend, indemnify and hold
harmless Landlord from and against any and all claims, demands, suits, damages,
liability and costs (including counsel fees and expenses) arising out of or in
any manner connected with any act or omission, negligent or otherwise of Tenant,
third persons, or any of their agents, servants or employees which arise out of
or are in any way connected with the erection, maintenance, use, operation,
existence or occupation of the Demised Premises, hallways, entranceways, stairs
or any other common areas (exterior or interior), elevators, hoists, streets,
driveways, parking and loading areas, alleys, lawns, sidewalks and curbs
adjacent thereto unless due solely to the negligence of Landlord, its agents,
servants or employees.
The Landlord shall promptly notify the Tenant of any claim asserted
against the Landlord on account of any such injury or claimed injury to persons
or party and shall promptly deliver to the Tenant the original or a true copy of
any summons or other process, pleading or notice issues in any suit or other
proceeding or assert or enforce any such claim. The Tenant shall have the right
to defend any such suit with attorneys of its own selection and the Landlord
shall have the right, if it sees fit, to participate in such defense.
Tenant further shall defend, indemnify and hold harmless Landlord from
claims, demands, suits, liability for damages for personal or bodily injury or
death of any persons or damage or destruction of any property (including loss of
use thereof) caused by or in any manner arising out of any breach, violation of
nonperformance by Tenant of any covenant, term or provision of this Lease.
13. DAMAGE TO DEMISED PREMISES.
(a) In the event that the Demised Premises is totally destroyed or so
damaged by fire or other casualty not occurring through fault or negligence of
the Tenant or those employed by or acting for him, that, in Landlord's judgment,
the same cannot be repaired or restored within one hundred eighty (180) days,
this Lease shall absolutely cease and determine, and the rent shall xxxxx as of
the date of casualty for the balance of the term. If Landlord cannot locate
alternate space for Tenant to continue operation during the course of the
repairs, then Tenant shall have the right to terminate this Lease within thirty
(30) days.
(b) If the damage caused as above be only partial and such that the
Demised Premises, in Landlord's judgment, can be restored within the time period
and under the conditions as provided in Subparagraph 13(a) above, the Landlord
may, at its option, restore the same (excluding fixtures and improvements owned
by Tenant) with reasonable promptness, reserving the right to cater upon the
Demised Premises for that purpose. The Landlord also reserves the right to enter
upon the Demised Premises whenever necessary to repair damage caused by fire or
other casualty to the building of which the Demised Premises is a part, even
though the effect of such entry be to render the Demised Premises or a part
thereof untenantable. In either event the rent shall be apportioned and
suspended during the time the Landlord is in possession, taking into account the
portion of the Demised Premises rendered untenantable and the duration of the
Landlord's possession. If a dispute arises as the amount of rent due under this
clause, Tenant agrees to pay the full amount claimed by Landlord. Tenant shall,
however, have the right to proceed by law to recover the excess payment, if any.
(c) Landlord shall make such election to repair the Demised Premises
or terminate this Lease by giving notice thereof to Tenant within thirty (30)
days from the day Landlord received notice that the Demised Premises had been
destroyed or damaged by fire or other casualty.
(d) Notwithstanding the fact that Landlord may have elected to repair
the Demised Premises within said thirty (30) day period, if the mortgagee
chooses to accelerate the mortgage due to damage by fire or other casualty to
the Demised Premises or the building of which the Demised Premises is a part,
Landlord shall have the right to rescind and/or cancel said election to repair
and shall have the right to elect not to repair the damaged to the Demised
Premises or the building of which the Demised Premises is a part, provided said
notification of election not to repair is given to Tenant within thirty (30)
days after date of the receipt of said notice of acceleration.
(e) Landlord shall not be liable for any damage, compensation or claim
by reason of inconvenience or annoyance arising from the necessity of repairing
any portion of the building, the interruption in the use of the Demised
Premises, or the termination of this Lease by reason of the destruction of the
Demised Premises.
14. MISCELLANEOUS AGREEMENTS AND CONDITIONS.
(a) NON-WAIVER BY LANDLORD OR TENANT. The failure of the Landlord or
Tenant to insist upon strict performance of any of the covenants or conditions
to this lease, or to exercise any option herein conferred in any one or more
instances, shall not be construed as a waiver or relinquishment for the future
of any such covenants or conditions of this Lease or option, but the same shall
be and remain in full force and effect.
(b) ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, 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 herein.
(c) JURISDICTION AND LAW. Tenant hereby subjects itself to the
jurisdiction of the Court of Brevard County, Florida. The laws of the State of
Florida shall be applicable to this lease and any interpretations thereof.
(d) The Landlord has let the Demised Premises, with the Building and
Improvements as required by Paragraph 5, and without any representations on the
part of Landlord, his officers, employees, servants and/or agents.
15. REMEDIES OF LANDLORD. If the Tenant:
(a) Does not pay within ten (10) days after it is due any and all
installments of rent and/or any other charge or payment herein reserved,
included, or agreed to be treated or collected as rent and/or any other charge,
expense, or cost herein agreed to be paid by the Landlord; or
(b) Violates or fails to perform or otherwise breaks any non-monetary
covenant or agreement herein contained which is not corrected in compliance
within thirty (30) days after the notice; or
(c) Vacates the Demised Premises or removes or attempts to remove or
manifests an intention to remove any goods or property therefrom otherwise than
in the ordinary and usual course of business without having first paid and
satisfied the Landlord in full for all rent and other charges then due; or
(d) Files or has filed against it (and if against not dismissed in
thirty (30) days) a petition under Xxxxx 00, Xxxxxx Xxxxxx Code, Bankruptcy, as
now or hereafter amended or supplemented, whether under Chapter 7, 11 or 13 of
the aforesaid Bankruptcy Code; or if there is the commencement of any action or
proceeding under state or federal law for the dissolution or liquidation of the
Tenant in connection with bankruptcy or other insolvency, whether instituted by
or against (and if against not dismissed in thirty (30) days) the Tenant or for
the appointment of a receiver or trustee of all or substantially all of the
property of the Tenant; or if there is the taking of possession of the property
of the Tenant by any governmental officer or agency pursuant to statutory
authority for the dissolution, rehabilitation, reorganization or liquidation of
the Tenant; or if there is the making by the Tenant of an assignment for the
benefit of creditors;
Then and in any of said events, there shall be deemed to be a breach
of this Lease, and thereupon Landlord shall have the following rights:
1. To accelerate the whole or any part of the Basic Rent and
additional rent (sometimes collectively referred to herein as "Rent") and other
charges, payments, costs and expenses herein agreed to be paid by Tenant for the
entire unexpired balance of the term of this Lease, and any Rent, other charges,
payment, costs and expenses if so accelerated shall, in addition to any and all
installments of Rent already due and payable and in arrears, and/or any other
charge, expense or cost herein agreed to be paid by Tenant which may be due and
payable and in arrears, be deemed due and payable as if, by the terms and
provisions of this Lease, such accelerated Rent and other charges, payments,
costs and expenses were on that date payable in advance, provided, however, that
Landlord agrees it will not exercise this remedy unless Tenant is in arrears for
a total of three (3) monthly installments of Base Rent under the Lease.
2. To re-enter the Demised Premises and remove all persons therefrom,
either by summary dispossess proceedings or by any suitable action or proceeding
at law, without being liable to indictment, prosecution or damages therefor, and
repossess and enjoy the Demised Premises, together with all alterations,
fixtures and signs. Upon recovering possession of the Demised Premises by reason
of or based upon or arising out of a default on the part of Tenant, Landlord
may, at Landlord's option, either terminate this Lease or make such alterations
and repairs as may be necessary in order to relet the Demised Premises and relet
the Demised premises or any part or parts thereof, either in Landlord's name or
otherwise, for a term or terms which may at Landlord's option be less than or
exceed the period which would otherwise have constituted the balance of the term
of this Lease and at such rent or rents and upon such other terms and conditions
as in Landlord's sole discretion may seem advisable and to such person or
persons as may in Landlord's discretion seem best; upon each such reletting all
rents received by Landlord from such reletting shall be applied: first, to the
payment of any indebtedness other than rent due hereunder from tenant to
Landlord; second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorney's fees and all costs of such alterations
and repairs; third, to the payment of Rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of future Rent
as it may become due and payable hereunder. If such rentals received from such
reletting during any month shall be less than that to be paid during that month
by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of the Demised Premises or the making of alterations and/or
improvements thereto or the reletting thereof shall be construed as an election
on the part of Landlord to terminate this Lease unless written notice of such
intention be given to Tenant. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Demised Premises or, in the event that the
Demised Premises or any part or parts thereof are relet, for failure to collect
the rent thereof under such reletting. Tenant, for Tenant and Tenant's
successors and assigns, hereby irrevocably constitutes and appoints Landlord as
Tenant's and Landlord's agent to collect the rents due and to become due under
all subleases of the Demised Premises or any parts thereof without in any way
affecting Tenant's obligation to pay any unpaid balance of Rent due or to become
due hereunder. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for such previous
breach.
(4) To terminate this Lease and the term hereby created without any
right on the part of Tenant to waive the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken. Whereupon
Landlord shall be entitled to recover, in addition to any and all sums and
damages for violation of Tenant's obligations hereunder in existence at the time
of such termination, damages for Tenant's default in an amount equal to the
greater of (i) amount of the Rent reserved for the balance of the Demised Term,
as well as all other charges, payments, costs and expenses herein agreed to be
paid by Tenant, all discounted at the rate of nine percent (9%) per annum to
their then present worth, less the fair rental value of the Demised Premises for
the remainder of said term, also discounted at the rate of nine percent (9%) per
annum to its then present worth or (ii) three (3) months' rent, all of which
amount shall be immediately due and payable from Tenant to Landlord as
liquidated damages.
16. RIGHT OF INJUNCTIVE RELIEF. In the event of a breach or threatened
breach by Tenant of any of the covenants or provisions hereof, Landlord shall
have the right of injunction and the right to invoke any remedy allowed at law
or in equity, as if re-entry, summary proceedings and other remedies were not
herein provided for.
17. RIGHTS NOT EXCLUSIVE. No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right or remedy
herein or by law provided but each shall be cumulative and in addition to every
other right or remedy given herein or now or hereafter existing at law or in
equity or by statute.
18. WAIVERS BY TENANT. Tenant expressly waives the right to delay execution
on any real estate that may be levied upon to collect any amount which may
become due under the terms and conditions of this Lease and any right to have
the same appraised. Tenant agrees that said real estate may be sold on a writ of
execution or other process.
19. CALCULATIONS OF AMOUNTS DUE. For the purpose of calculating the
accelerated Rent payable under paragraph (1) of Paragraph 15(d) of this Article
and the "Rent reserved for the balance of the term" of this Lease for the
purposes of Paragraph (4) of Paragraph 15(d) of this Article, the amount payable
as Tenant's share of real estate taxes, Tenant's share of the cost of insurance
on the Demised Premises and Tenant's share of common area maintenance expenses
and any other charges for which Tenant is responsible hereunder for the balance
of the term hereof shall be equal to the sum of the highest amount paid or
payable by Tenant in any calendar year for each of the foregoing items
multiplied by the number of calendar years (including any fractional calendar
year) remaining in the term of this Lease.
20. RIGHT OF ASSIGNEE OF LANDLORD. The right to pursue the remedies herein
provided against Tenant and to enforce all of the other provisions of this Lease
may, at the option of any assignee of this Lease, be exercised by any assignee
of the Landlord's right, title and interest in this Lease in his, her or their
own name, any statute, rule of court, custom, or practice to the contrary
notwithstanding.
21. REMEDIES CUMULATIVE. All of the remedies hereinbefore given to Landlord
and all rights and remedies given to it by law and equity shall be cumulative
and concurrent. No termination of this Lease or the taking or recovering of the
Demised Premises shall deprive Landlord of any of its remedies or actions
against Tenant for rent or sums due at the time or which, under the terms
hereof, would in the future become due as if there has been no termination; nor
shall the bringing of any action for rent or breach of covenant, or the resort
to any other remedy herein provided for the recovery of rent be construed as a
waiver of the right to obtain possession of the premises.
22. CONDEMNATION. If at any time during the Demised Term or any renewal or
extension thereof the Demised Premises, or any portion thereof, be lawfully
condemned or conveyed in lieu of condemnation, the Landlord shall be entitled
to, and shall receive the award or payment therefor, and the Tenant shall
assign, and does hereby assign and transfer to the Landlord such award or
payment as may be made therefor, and in no event and under no circumstances
shall the Tenant be entitled to receive or retain any award or payment of any
part thereof. This Lease shall, as to the part so taken terminate as of the date
title shall vest in the condemnor, and rent shall xxxxx in proportion to the
square feet of the leased space taken or condemned.
23. EXECUTION OF ESTOPPEL CERTIFICATE. At any time, and from time to time,
upon the written request of Landlord or any first mortgagee, Tenant within
twenty (20) days of the date of such written request agrees to execute and
deliver to Landlord and/or such first mortgagee, without charge and in a form
satisfactory to Landlord and/or such mortgagee, a written statement: (a)
ratifying this Lease; (b) confirming the commencement and expiration date of the
term of this Lease and the minimum annual rental rate payable during the lease
term; (c) certifying that Tenant is in occupancy of the Demised Premises, and
that the Lease is in full force and effect and has not been modified, assigned,
supplemented or amended except by such writing as shall be stated; (d)
certifying that all conditions and agreements under this Lease to be satisfied
or performed by Landlord have been satisfied and performed except as shall be
stated; (e) certifying that Landlord is not in default under the Lease and there
are no defenses or offsets against the enforcement of this Lease by Landlord or
stating the defaults and/or defenses claimed by Tenant; (f) reciting the amount
of advance rent, if any, paid by Tenant and the date to which such rent has been
paid and, if requested by Landlord and/or Mortgagee, agreeing that Tenant shall
not pay rent to Landlord more than thirty days in advance; (g) reciting the
amount of security deposited with Landlord, if any; (h) certifying that Tenant
has no option or right of first refusal to purchase the Demised Premises or
option to extend the term of the Lease (unless specifically set froth to the
contrary in the Lease); (i) if requested by Landlord and/or Mortgagee, agreeing
that the Lease will not be modified without the prior written consent of the
Mortgagee; (j) certifying that tenant will not generate, store, handle or
otherwise deal with any amount of any hazardous substances or hazardous waste(as
defined in federal, state and local law) in or about the Demised Premises, in
excess of those levels or quantities specified for regulatory purposes; (k)
agreeing, if requested by Mortgagee, that Tenant will give Mortgagee such notice
of any default by Landlord and reasonable opportunity to cure such default, not
in excess of thirty (30) days, unless the default cannot be cured within said
time, before exercising Tenant's remedies under the Lease; and (l) any other
information which Landlord or the mortgagee shall require.
24. FAILURE TO EXECUTE ESTOPPEL CERTIFICATE. The failure of Tenant to
execute, acknowledge and deliver to Landlord and/or any first mortgagee a
statement in accordance with the provisions of Paragraph 23 above within the
said twenty (20) day period shall constitute acknowledgment by Tenant which may
be relied upon by any person holding or intending to acquire any interest
whatsoever in the Demised Premises that this Lease has not been assigned,
amended, changed, or modified, is in full force and effect and that the Basic
Rent and additional rent have been duly and fully paid not beyond the respective
due dates immediately preceding the date of the request for such statement and
shall constitute as to any persons entitled to rely on such statements a waiver
of any defaults by Landlord or defenses or offsets against the enforcement of
this Lease by Landlord which may exist prior to the date of the written request,
and Landlord at its option, may treat such failure as a deliberate event of
default.
25. SUBORDINATION AND ATTORNMENT. Tenant agrees:
(a) that, except as hereinafter provided, this Lease is, and all of
Tenant's rights hereunder are and shall always be, subject and subordinate to
any first mortgage ("First Mortgage"); and
(b) That if the holder of any such First Mortgage ("Mortgagee") or if
the purchaser at any foreclosure sale or at any sale under a power of sale
contained in any Mortgage shall at its sole option so request, Tenant will
attorn to, and recognize such mortgagee or purchaser, as the case may be as
Landlord under this Lease for the balance then remaining of the term of this
Lease, subject to all terms of this Lease; and
(c) That the aforesaid provisions shall be self-operative and no
further instrument or document shall be necessary unless required by any such
First Mortgagee or purchaser. Notwithstanding anything to the contrary set forth
above, and First Mortgagee may at any time subordinate its Mortgage to this
Lease, without Tenant's consent, by notice in writing to Tenant, and thereupon
this Lease shall be deemed prior to such Mortgage without regard to their
respective dates of execution, delivery and/or recording and in that event such
First Mortgage shall have the same rights with respect to this Lease as though
this Lease had been executed and a memorandum thereof recorded prior to the
execution, delivery and recording of the Mortgage and as though this Lease had
been assigned to such First Mortgagee. Should Landlord or any First Mortgagee or
purchaser desire confirmation of either such subordination or such attornment,
as the case may be, Tenant upon written request, and from time to time, will
execute and deliver without charge and in form satisfactory to Landlord, the
First Mortgagee or the purchaser all instruments and/or documents that may be
requested to acknowledge such subordination and/or agreement to attorn, in
recordable form.
(d) Landlord agrees that it shall procure from the mortgagee who has
agreed to provide a commitment for a five-year permanent mortgage on the
Property the mortgagee's consent to a non-disturbance agreement, in form
reasonably satisfactory to Tenant, which approval shall not be unreasonably
withheld. If Landlord is unable to produce said agreement from such mortgagee
prior to the closing of the construction mortgage, then Tenant shall have the
right to terminate this Agreement within five (5) days after receipt of such
advice from Landlord.
Landlord further agrees that it shall use reasonable efforts to obtain
a similar agreement from any successor first mortgagee.
26. FAILURE TO EXECUTE INSTRUMENTS AND DOCUMENTS. In the event Tenant fails
to execute and deliver the instruments and documents as provided for in
Paragraphs 23 and 25 within twenty (20) days after request in writing by
Landlord or such First Mortgagee or purchaser, as the case may be, Tenant does
hereby make, constitute and appoint Landlord or such First Mortgagee or
purchaser, as the case may be, as Tenant's attorney-in-fact and in its name,
place and stead to do so, or Landlord may treat such failure as a deliberate
event of default. The aforesaid power of attorney is given as coupled with an
interest and is irrevocable.
27. QUIET ENJOYMENT; EVICTION BY FORECLOSURE. Tenant, on paying the rent
reserved, and performing all the covenants and conditions hereof, shall at all
times during the Demised Term, peaceably and quietly have, hold and enjoy the
Demised Premises; provided, however, eviction of the Tenant by reason of the
foreclosure of any First Mortgage now or hereafter on the Demised Premises shall
not be construed as a breach of this covenant, nor shall any action by reason
thereof be brought against the Landlord; and provided further, that no eviction
of the Tenant for any reason whatsoever, after the Landlord shall have conveyed
the fee of the Demised Premises shall be construed as a breach of this covenant,
and no action therefor shall be brought against the Landlord.
28. TERMINATION OF LEASE. It is hereby mutually agreed that either party
hereto may terminate this Lease at the end of the Demised Term or at the end of
either option period by giving to the other party written notice thereof at
least 180 days prior thereto, but in default of such notice, this Lease shall
continue upon the same terms and conditions in force immediately prior to the
expiration of the Demised Term hereof as are herein contained except for Basic
Rent which shall be adjusted to reflect the then current market rates for space
comparable to the Demised Premises as determined by Landlord based upon other of
Landlord's rental properties for Melbourne, Florida, for a further period of one
year and so on from year to year unless or until termination by either party
hereto, giving the other one hundred eighty (180) days written notice for
removal previous to expiration of the then current term; PROVIDED, however, that
should this Lease be continued for a further period under the terms herein-above
mentioned, any allowances given Tenant on the Basic Rent during the original
term shall not extend beyond such original terms. In the event that Tenant shall
give notice, as stipulated in this Lease, of intention to vacate the Demised
Premises at the end of the Demised Term, or any renewal or extension thereof,
and shall fail or refuse so to vacate the same on the date designated by such
notice, then it is expressly agreed that Landlord shall have the option either:
(a) To disregard the notice so given as having no effect, in which
case all the terms and conditions of this Lease shall continue thereafter, as
set forth above, with full force precisely as if such notice has not been given,
or
(b) Landlord may, at any time within thirty days after the Demised
Term or any renewal or extension thereof, as aforesaid, give the said Tenant
fifteen (15) days' written notice of his intention to terminate the said Lease;
whereupon the Tenant expressly agrees to vacate said premises at the expiration
of the said fifteen (15) day period.
All powers granted to Landlord by this Lease may be exercised and all
obligations imposed upon Tenant by this Lease shall be performed by Tenant as
well during any extension of the Demised Term of this Lease as during the
Demised Term itself.
29. NOTICES. All notices required shall be in writing given by certified
mail, return receipt requested or by a recognized overnight delivery service:
TO LANDLORD: Xxxxxxxxx Comet, L.C.
0000 Xxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxx, Esquire
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
TO TENANT: Software Technology, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Such address may be changed from time to time by either party by
serving notices as above provided.
30. MECHANIC'S LIENS
(a) MECHANIC'S LIENS PROHIBITED. Tenant shall not suffer any
mechanic's lien to be filed against the Demised Premises by reason of work,
labor, services or materials performed or furnished to Tenant or anyone holding
the Demised Premises, or any part hereof, through or under Tenant. If any
mechanic's lien or any notice of intention to file a mechanic's lien shall at
any time be filed against the Demised Premises Tenant shall at Tenant's cost,
within fourteen (14) days after knowledge or notice of the filing of any
mechanic's lien cause the same to be removed or discharged of record by payment,
bond, order of a court of competent jurisdiction, or otherwise.
(b) LANDLORD'S REMEDY FOR TENANT'S BREACH. If Tenant shall fail to
remove or discharge any mechanic's lien or any notice of intention to file a
mechanic's lien within the prescribed time, then in addition to any other right
or remedy of Landlord, Landlord may, at its option, procure the removal or
discharge of the same by payment or bond or otherwise. Any amount paid by
Landlord for such purpose, together with all legal and other expenses of
Landlord in procuring the removal or discharge of such lien or notice of
intention and together with interest thereon at the highest permissible rate
shall be and become due and payable by Tenant to Landlord as additional rent,
and in the event of Tenant's failure to pay therefor within fifteen (15) days
after demand, the same shall be added to and be due and payable with the next
month's rent.
(c) NON-CONSENT OF LANDLORD TO FILING OF LIENS. Nothing contained in
this Lease shall be construed as a consent on the part of Landlord to subject
Landlord's estate in the Demised Premises to any lien or liability arising out
of Tenant's use or occupancy of the premises.
31. LEASE CONTAINS ALL AGREEMENTS. It is expressly understood and agreed by
and between the parties hereto that this Lease sets forth all the promises,
agreement, and conditions or understandings between Landlord or his Agent and
Tenant relative to the Demised Premises, and that there are no promises,
agreements, conditions or understandings, either oral or written, between them
other than are herein set forth. It is further understood and agreed that,
except as herein otherwise provided, no subsequent alteration, amendment, change
or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by them.
32. HEIRS AND ASSIGNEES. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the several
and respective heirs, executors, administrators, successors and assigns of said
parties; and if there shall be more than one Tenant, they shall all be bound
jointly and severally by the terms, covenants and agreements herein, and the
word "Tenant" shall be deemed and taken to mean each and every person or party
mentioned as a Tenant herein, be the same one or more; and if there shall be
more than one Tenant, any notice required or permitted by the terms of this
Lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The words, "his" and "him" or "its"
wherever stated herein, shall be deemed to refer to the "Landlord" or "Tenant"
whether such Landlord or Tenant be singular or plural and irrespective of
gender. No rights, however, shall inure to the benefit of any assignee of Tenant
unless the assignment to such assignee has been approved by Landlord in writing
as aforesaid.
33. SECURITY DEPOSIT. INTENTIONALLY OMITTED.
34. HEADINGS NOT PART OF LEASE. Any headings preceding the text of the
several paragraphs and subparagraphs hereof are inserted solely for convenience
of reference and shall not constitute a part of this Lease nor shall they affect
its meaning, construction or effect.
35. TENANT'S PRO-RATA SHARE OF CENTER. 14.23% (determined by dividing the
acreage of the Center (20.85 acres) by the acreage of the Land (including area
covered by the Building) (2.967 acres)).
36. LATE PAYMENT. In the event that any payment of Basic Rent or additional
rent or any other charge required to be paid by Tenant under the provisions of
this Lease, shall not be paid within fifteen (15) days of the due date, Tenant
shall pay to Landlord a late charge of five (5%) percent of such past due
payment; and such late charge shall be deemed "rent" for all purposes under this
Lease.
37. LANDLORD'S CONSENT. Landlord agrees that it shall not unreasonably
withhold any consent required of it under this Lease.
38. SEVERABILITY. If a provision of this Lease Agreement is held invalid,
it is hereby agreed that all valid provisions that are severable from the
invalid provision remain in effect. If a provision in this Lease Agreement is
held invalid in one or more of its applications, the provision remains in effect
in all valid applications.
39. LANDLORD'S LIABILITY. Anything to the contrary herein notwithstanding,
Landlord's liability for any damages or assessments hereunder shall be limited
solely to Landlord's interest in the Demised Premises or land and building of
which the Demised Premises is part, as the case may be. It is further covenanted
and agreed by the parties hereto that in no case shall the Landlord be liable
for any consequential damages.
40. SIGNAGE. Tenant shall have the right to place neat, professionally
executed signs at the front entrance and/or loading areas as shall adequately
advertise Tenant's occupancy of the Premises and direct visitors, guests and the
like to Tenant's Premises provided that they comply with any and all laws and
ordinances applicable thereto. Tenant shall not place any sign on any part of
the Building without the written consent of Landlord, which consent Landlord
shall not unreasonably withhold.
41. LANDLORD'S ENVIRONMENTAL CLAUSE.
(a) Tenant shall not cause, allow or permit the escape, disposal or
release of toxic or hazardous substances or materials, including those which are
biologically active or chemically active, which shall include, but not be
limited to, those substances listed in the Environmental Statutes, as defined
below, polychlorinated biphenyls ("PCB's"), asbestos and materials containing
PCB's and asbestos (hereinafter collectively "Hazardous Material"), in, around
or from the Demised Premises. Tenant shall not store, use or allow the storage
or use of Hazardous Materials in or around the Demised Premises in any manner
not sanctioned by law or the highest standards prevailing in the industry for
handling and storage of such Hazardous Materials. In the event that any such
Hazardous Materials are required to be used by Tenant in the ordinary course of
its business, Tenant shall send at least five (5) days' advance written notice
to Landlord of the uses of such substances, including any identification of such
substances or materials. Landlord may deny or restrict Tenant's use or manner of
use of such Hazardous Materials in or around the Demised Premises; however,
Landlord's failure to deny or restrict Tenant's use of Hazardous Materials or to
advise Tenant of an objection to Tenant's use or manner of use of same in the
Demised Premises does not indicate Landlord's approval for such use and, in any
event, Tenant shall remain strictly responsible and liable for any and all
consequences, direct or indirect, resulting from the use of such Hazardous
Materials in or around the Demised Premises.
(b) Tenant shall conduct all of its operations at the Premises in
compliance with all federal, state and local statutes (including, but not
limited tot he Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. Section 9601 et. seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (October 17,
1986) ("CERCLA"); the Resources Conservation and Recovery Act, 42 U.S.C. Section
6901 et. seq. ("RCRA"), Florida Air and Water Pollution Control Act and
regulations enacted thereunder), ordinances, regulations, orders and
requirements of common law, regarding, but not limited to, (i) discharges to the
air, soil, surface or groundwater; and (ii) handling, utilizing, storage,
treatment or disposal of any hazardous substances or toxic substances as defined
therein ("Environmental Statutes"). Tenant shall obtain all permits, licenses or
approvals and shall make all notifications and registrations required by
Environmental Statutes and shall submit to Landlord, upon, request, or
inspecting and copying all documents, permits, licenses, approvals, manifests
and records required to be submitted and/or maintained by the provisions of the
Environmental Statutes. Tenant shall also provide promptly to Lessor copies of
any correspondence notice of violation, summons, order, complaint or other
documents received by Tenant pertaining to compliance with Environmental
Statutes.
(c) Tenant shall not install at the Premises any temporary or
permanent tanks for the storage of any liquid or gas above or below ground
except as in compliance with the other provisions of this section and after
obtaining written permission to do so from Landlord.
(d) If, because of the manner in which Tenant operates its business,
the Landlord, Landlord's mortgage lender or a governmental agency shall require
testing by an environmental testing entity of its choice, to ascertain whether
there has been a release of Hazardous Materials by Tenant, its agents, servants,
employees or business invitees, in or around the Demised Premises, the
reasonable costs of such testing shall be reimbursed by Tenant to Landlord as
Additional Rent. Tenant shall execute affidavits or representations, at
Landlord's request, stating that, to the best of Tenant's knowledge and belief,
since the time that Tenant took possession of the Demised Premises, there have
been no and there presently are no Hazardous Materials present in the Demised
Premises.
(e) Tenant hereby agrees to indemnify Landlord and to hold Landlord
harmless of, from and against any and all expense, loss, cost, fines, penalties,
loss of value or liability suffered by Landlord by reason of Tenant's breach of
any of the provisions of this section.
(f) The provisions of this section shall survive the termination of
Tenant's tenancy or of this Lease.
42. OPTION TO RENEW.
Tenant shall have the right to extend the term of this Lease for two
(2) additional terms of five (5) years each ("Extend Terms #1 and #2),
commencing (#1) the first day after the Expiration Date and (#2) the first day
after the last day of Extended Term #1 ("Renewal Day"), upon the following terms
and conditions:
(a) On or before the day one hundred eighty (180) days prior to the
applicable Renewal Day, Tenant shall notify Landlord in writing by certified
mail, return receipt requested, of Tenant's election to extend the term of the
Lease, under the terms and provisions of Paragraph 42 of the Lease;
(b) At the time of the exercise of such rights and thereafter until
either Extended Term shall commence, Tenant shall not be in breach of the
performance of any of the terms, covenants or conditions of this Lease, which
breach has not been remedied before an event of default has occurred;
(c) Such Extended Term shall be upon the same terms, covenants and
conditions as in this Lease, except that (i) there will be no right to extend
this Lease beyond Extended Terms #1 and #2, and (ii) the annual Basic Rent for
the Extended Terms shall be calculated (with increases) in the same manner as
set forth in Paragraph 3(b) of the Lease.
(d) Upon the giving of such notice in writing as aforementioned, this
Lease shall be deemed extended for the Extended Term, subject to the provisions
and conditions of this paragraph, without execution of any further instruments.
(e) This Renewal Option may be assigned to a subtenant.
IN WITNESS WHEREOF, the parties hereto have executed these presents
the day and year first above written, intending to be legally bound hereby.
LANDLORD:
XXXXXXXXX COMET, L.C.
Signature Illegible By:/s/Xxxxxxx Xxxxxxxxx
---------------------------------- ------------------------------
Witness Xxxxxxx Xxxxxxxxx
TENANT:
ATTEST: SOFTWARE TECHNOLOGY, INC.
/s/Xxxxxxxx Xxxxxxxx By:/s/Xxx X. Xxxxxxx, Xx.
---------------------------------- -------------------------------
(Asst.) Secretary Xxx X. Xxxxxxx
EXHIBITS TO SOFTWARE TECHNOLOGY LEASE
Exhibit "A" Final Plans and Specifications and Tenant Scope of Work
Exhibit "B" Specifications for Maintenance Contract
Exhibit "C" Rules and Regulations
Exhibit "D" Tenant Fixtures and Equipment
Exhibit "E" Special Terms
EXHIBIT A
[Floor Plans]
EXHIBIT B
MAINTENANCE SERVICE SPECIFICATIONS FOR HVAC SYSTEMS
Service Agreements must include the following items:
a. Quarterly inspections (four per year) to include filter changing.
b. Belt replacement as needed (but at least once per year), adjust belt
tension.
c. Grease and oil all motor, bearings and additional moving parts (i.e.,
dampers).
d. Preserve exterior casing by removing rust and apply paint. Insure casing is
secure.
e. Evaporator and condenser cleaning once a year prior to spring start-up: (1)
Condensate drain pans cleaned and preserved as needed. (2) Cleaning
solution to be non-acidic type (as to protect delicate roofing materials).
f. Evaporative condensers or cooling towers shall be cleaned upon
winterization. All debris shall be removed from sumps and water drained
from lines and pump casing. (1) Upon restart, water treatment shall be
added as necessary to inhibit molds (by drip feeder or tablet method, cost
of material to be additional to base contract price).
g. Heat exchangers shall be inspected and cleaned prior to heating season.
h. Stacks shall be checked for corrosion and leakage prior to heating season;
clean as necessary, make sure flue caps are installed and intact.
i. Warning safety controls shall be checked as per manufacturer's testing
instructions with result noted on each service report.
j. Oil tanks shall be dipped and tested for water contamination prior to
heating season.
k. Lift tanks, pumps, and controls shall be serviced prior to heating season.
l. Unitary controls (i.e., fans limits, gas valves, modulating fire controls,
pressure switches, remote shut-offs) shall be checked and calibrated as
necessary.
m. Refrigerant circuits shall be leak checked prior to start up.
n. Refrigerant controls shall be checked and adjusted to manufacturer's
specifications (i.e., thermostatic expansion valve, hot gas bypass valves).
o. Unitary operating controls and safety controls (i.e., oil failure, high-low
pressure cutouts, time delay/and short cycle device), shall be tested and
adjusted to maintain complete system protection.
p. All electrical connections will be tightened.
q. All contractors will be inspected and cleaned.
r. All electric motor loads shall be monitored including amperage and voltage.
s. All motor mounts and compressor mounts shall be checked for integrity and
serviced as necessary to prevent vibration throughout units.
t. All record of all operating temperatures pressure and electrical data shall
be forwarded to the customer for each unit serviced, the record will
include model and serial number.
u. A schedule of rates will be included for standard overtime and holiday
rates for service not covered under contract.
v. A xxxx-up percentage for material shall be forwarded along with rate
schedule.
w. A guaranteed response time, a referred customer status shall be extended to
the customer for emergency call out.
x. A form listing the maintenance work completed on what date shall be
forwarded to customer with service order or invoice.
EXHIBIT C
RULES AND REGULATIONS
1. Tenant will not keep any animals or birds in the Demised Premises or in the
building nor permit any animals or birds to be brought into or kept in the
Demised Premises by others.
2. Tenant will not go, or authorize or permit anyone to go upon the roof of
the building except as authorized by Landlord for the maintenance or repair
of HVAC equipment.
3. Tenant will not make, commit or permit any improper noises or disturbances
in the building, xxxx, defile and deface the Demised Premises or the
building of which the Demised Premises is a part or interfere in any way
with other tenants, their employees or those having business with them.
4. Tenant agrees that Landlord shall in no case be liable for the admission or
exclusion of any person from said building.
5. Tenant will not occupy the Demised Premises as living quarters or sleeping
apartments or in any manner or for any use or purpose other than as herein
stated. Tenant will not use the halls, passages, elevators and stairways of
the building of which the Demised Premises are a part for any purpose other
than ingress and egress.
6. Tenant will not use the toilet rooms, water closets, urinals and other
water fixtures and apparatus on the Demised Premises or in the building of
which the same are a part for any purpose other than that for which they
were designed and constructed, nor throw sweepings, rubbish, rags, ashes,
chemicals or other injurious substances therein.
7. Tenant will give Landlord prompt notice of any canvassers, newsboys,
peddlers or beggars plying their trade in the building of which the Demised
Premises are a part.
8. Tenant will close the windows and securely lock the doors of the Demised
Premises before leaving the building each day.
9. Tenant will not hang or install on any window any window shade, blind or
curtain without the written approval of Landlord. Landlord will supply
uniform window blinds for all Tenants; however, the Tenant shall be
responsible for (all costs incurred) or replacement of the window blinds
except for reasonable wear and tear.
10. Tenant will not permit or allow any sign to be displayed or painted on the
exterior door of the Demised Premises or the building of which the Demised
Premises is a part without the consent of Landlord in writing.
EXHIBIT E
The following items shall amend and/or clarify the Lease dated March ____
1997 by and between Xxxxxxxxx Comet, L.C. ("Landlord"), and Software Technology,
Inc.("Tenant").
BASE RENT During the first lease year the Base Rent shall be calculated on
16,000 square feet of finished space and 14,000 square feet of
unfinished space as follows:
16,000 x 8.50 = $136,000.00
14,000 x 3.00 = 42,000.00
-----------
ANNUAL BASE RENT $178,000.00
Upon completion of the Tenant Improvements in the 14,000 square feet
as evidenced by a Certificate of Occupancy or one (1) year after the
Lease Commencement Date; whichever occurs first, the Base Rate shall
be as follows:
16,000 x 8.50 = $136,000.00
14,000 x 7.75 = 108,500.00
-----------
ANNUAL BASE RENT $224,500.00
At the beginning of the Third Lease Year, the Base Rate will be
adjusted per paragraph 3B of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed these presents the day
and year first above written, intending to be legally bound thereby.
XXXXXXXXX COMET, L.C.
/s/Xxxxx X. Xxxxxx
------------------------- By:/s/Xxxxxxx Xxxxxxxxx
Witness --------------------------
Xxxxxxx Xxxxxxxxx
Signature Illegible
-------------------------
Witness
SOFTWARE TECHNOLOGY, INC.
/s/Xxxxxxxx Xxxxxxxx
------------------------- By:/s/Xxx X. Xxxxxxx, Xx.
Witness -------------------------
Xxx X. Xxxxxxx, Xx.
/s/Xxxxxxx Xxxx
-------------------------
Witness
