Exhibit 10.13
LEASE
THIS WRITING contains all the terms and conditions of a Lease, made and
entered into this 4TH day of OCTOBER 1993, by and between XXXXXX INDUSTRIAL PARK
("Landlord") and XXXXXXX INTERNATIONAL ("Tenant"), wherein the parties agree
that for the rents to be paid by Tenant and for the mutual covenants and
conditions herein set forth, Landlord hereby leases to Tenant 5,000 square feet
located at 0000 XXXXXXXXXX XXXXXX, XXXXXXX XXXXXX, XXXXXX, XXXXXXX said unit
consisting of approximately 5,000 square feet (the "demises premises") to be
used and occupied by Tenant as OFFICE/STORAGE and for no other purposes or uses
whatsoever without Landlords prior written consent.
1. TERM. The term of this Lease shall be FOUR YEARS, commencing on the
1ST DAY AFTER THE ISSUANCE OF THE CERTIFICATE OF OCCUPANCY OR WHEN TENANT MOVES
IN WHICH EVER OCCURS FIRST.
2. BASE RENT. Tenant shall pay without demand to Landlord a base rent
plus applicable sales tax (currently 6%) payable in monthly installments as
follows:
Maint./Mgmt/ Property Sales Total
Annual Rent Base Rent Insurance Tax Tax Monthly Rent
$27,550.00 $2,295.83 $195.00 $118.02 $156.53 $2,765.38
The rate shall increase by 5% each year over the previous years rental rate.
Each month's rent shall be payable in advance, on the first day of each and
every month of the term of this Lease except that rental payments for the first
calendar month or part thereof, shall be paid on execution of this Lease.
3. SECURITY DEPOSIT. The Landlord acknowledges that it has received
from the Tenant $1,000.00 to remain on deposit with the Landlord during the term
of this Lease and any extensions hereof as security for the payment of rent and
damages. No interest shall be payable on the deposit, and it may be commingled
with the general funds of the Landlord. If any rent or any other sum or charge
payable by Tenant to Landlord shall be overdue and unpaid, or if Landlord makes
any payments on behalf of Tenant, or if Tenant fails to perform any other terms
of this Lease, then Landlord may at its option and without prejudice to any
other remedy, immediately apply all or part of the security and damage deposit
toward the payment of any amount due from Tenant or toward losses sustained by
Landlord as a result of Tenant's default under this Lease. Tenant shall then
immediately restore its security and damage deposit to the original sum
deposited. Should the Landlord convey its interest under this Lease, the deposit
may be turned over by the Landlord to the Landlord's grantee or assignee. If the
security and damage deposit is turned over as aforesaid, the Tenant hereby
releases the Landlord from any and all liability with respect to the deposit or
its return, and the Tenant agrees to look solely to such grantee or assignee for
such application or return, and this provision shall also apply to subsequent
grantees or assigns.
4. PAYMENT OF RENT. All payments shall be made without demand and
without any deduction, set-off or counterclaim whatsoever and shall be made at
0000 Xxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxx 00000, or at such other place and to
such other person as Landlord may from time to time designate.
5. ADDITIONAL PAYMENTS BY TENANT. The Tenant shall pay for the
following as additional rent:
5.1 REAL ESTATE TAXES. During the term of this Lease, Tenant
shall pay to Landlord as additional rent his pro-rata share of all of the real
estate taxes and assessments for road, sewer, water, drainage or other
improvements and any other assessments for the property. The real estate taxes
shall be payable monthly during the term of this Lease, or any extension
thereto, within thirty (30) days after being billed therefor. If this Lease
commences or terminates during any tax year, Tenant's proportionate share of
taxes for that year shall be prorated for that portion of the tax year during
which this Lease shall be effective.
5.2 SALES AND PERSONAL PROPERTY TAXES. Tenant shall pay to
Landlord an amount equal to any sales or similar tax now or hereafter imposed
upon Landlord on account of this Lease or rents due hereunder. Tenant shall pay
such amount on the first day of each and every month of this Lease in which a
base rent installment is payable to Landlord in accordance with Article 2.
Tenant shall pay, promptly when due, and personal property tax levied against
the demised premises and attributable to Tenant's personal property, trade
fixtures and leasehold improvements placed in or about the demised premises.
5.3 UTILITIES. Tenant shall pay all charges for electricity,
gas and other utilities used on the demised premises, including the costs of
electricity to operate the air conditioning and interior lighting equipment
provided by Landlord, and additional wiring, if any, required for special
equipment, if any, installed by Tenant. The costs for electricity will be billed
to Tenant directly and it shall be Tenant's responsibility to make satisfactory
arrangements with Florida Power & Light Company to have electricity activated.
5.4 SEWER, WATER AND TRASH. Tenant agrees to pay sewer, water
and trash charges directly to the respective suppliers thereof.
5.5 PROPERTY INSURANCE. During the term of this Lease, Tenant
shall pay to Landlord as :additional rent all costs for insurance of the demised
premises in an amount equal to the property's then current market value, along
with a loss of rents policy that shall pay Landlord rent equal to 100% of all
lost rental Income. The payments for the insurance premiums shall be payable and
included with the monthly rental payment. If this Lease commences or terminates
at a time when the insurance has already been paid, Tenant's proportionate share
of insurance shall be prorated for that portion of the year during which this
Lease shall be affective.
6. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease, nor
sublet the demised premises, or any part thereof, nor use the same, or any part
thereof, nor permit the same, or any part thereof, to be used by anyone other
than Tenant, without prior written consent of Landlord. If Tenant requests such
written consent, Tenant shall compensate Landlord for any
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legal fees incurred by Landlord in drafting or evaluating documents, or in
otherwise dealing with such request. The Landlord will not unreasonably withhold
an assignment. No subletting to which the Landlord may consent shall release or
relieve the Tenant from its obligations under this Lease, and Landlord may look
solely to Tenant for payment of rent and the performance of the terms and
conditions of this Lease.
7. COMPLIANCE WITH LAWFUL ORDERS. Tenant, at its sole cost and expense,
shall promptly execute and comply with all statutes, ordinances, rules, orders,
regulations and requirements of the federal, state, county, and city governments
and of any and all their departments and bureaus applicable to the demised
premises, for the correction, prevention and abatement of nuisances or other
grievances, in, upon, or connected with the demised premises during the Lease
term. Tenant shall also promptly comply with and execute all rules, orders and
regulations of insurance underwriters and insurance rating bureaus having
jurisdiction for the prevention of fires. Tenant shall not commit or suffer any
waste on the premises. nor use the premises for any unlawful purpose. Landlord
shall not require Tenant to comply with any rules, orders, and regulations of
any such governmental entity, department, or bureau regarding any damage,
nuisance, or waste (including in particular any environmental damage), caused by
any prior tenant, which includes Xxxxxx Rental, the previous tenant. It is
agreed that the Landlord will seek to have the previous Tenant be responsible
for any such damage, nuisance or waste that occurred prior to this Lease and
which any governmental unit seeks to correct, xxxxx, diminish or otherwise
prevent. If Xxxxxx Rental fails to correct the problems the Landlord shall be
responsible.
8. ALTERATIONS. Tenant shall not, make any repairs, alterations or
additions to the demised premises or the building of which the demises premises
are a part nor attach or affix any articles thereto nor make any repairs,
alterations or additions to the electrical service and heating, cooling and air
conditioning, plumbing or sprinkler system without the written consent of the
Landlord. If alterations become necessary because of the application of laws or
ordinances or other directions, rules or regulations of any regulatory authority
having jurisdiction over the business carried on by Tenant, or because of any
act or default on the part of Tenant, or because Tenant has overloaded any
electrical or other facility, Tenant shall make such alterations at its own cost
and expense after first obtaining Landlord's written approval of plans and
specifications and furnishing such indemnifications against liens, costs and
damage as Landlord may reasonably require. All alterations, additions,
improvements and fixtures, other than trade fixtures, which may be made or
installed by Tenant upon the demised promises and which in any manner are
attached to the floors, walls or ceiling, at the termination of this Lease shall
become the property of Landlord, unless Landlord requests their removal,. and
shall remain upon and be surrendered with the demised premises as a part
thereof, without damage or injury, all without compensation or credit to Tenant.
If Landlord requests Tenant, in writing, to do so, Tenant shall, on or before
the end of the term, remove all such additions, installations and fixtures
placed in the demised premises by Tenant and so designated by Landlord and
Tenant shall pay for the reasonable cost of repairing damage occasioned by the
removal. Tenant shall insure its leasehold improvements.
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9. MAINTENANCE BY TENANT. Except as provided in paragraph 28.2, Tenant
accepts the demised premises in the condition they are `in at the beginning of
this Lease and agrees to maintain the demised premises in the same condition,
order and repair as they are at, at the commencement of said term, excepting
only reasonable wear and tear arising from the use thereof under this Lease and
damage or destruction by fire or other casualty, without the fault or neglect of
Tenant. Tenant shall keep the windows and entrance doors clean at all times.
Tenant shall pay to Landlord the cost of repairing any damage to the building or
building equipment caused by any act or neglect of Tenant or its invitees
(including, but limited to, damage to air conditioning equipment, water
apparatus, electric lights, fixtures, appliances or appurtenances of the demised
premises or damage caused by overflow or escape of water, steam or gas or from
improper use of the electrical system due to negligence of Tenant or its
invitees) to the extent Landlord is not reimbursed for such cost through
insurance carried by Landlord, it being understood that Landlord is not required
by this paragraph to maintain insurance against any particular type of loss or
in an amount which will result in a 100% recovery of any loss.
10. AIR CONDITIONING AND INTERIOR REPAIRS AND REPLACEMENT. Tenant
agrees to maintain regularly and to repair the air conditioning equipment, and
to keep such equipment in good working order. Tenant agrees to employ, at its
expense, an air-conditioning maintenance service acceptable to the Landlord to
inspect the equipment, change filters and lubricate the air conditioning
equipment no less than four times per year and maintain the equipment in good
working order, and shall provide evidence of such service, at the Landlord's
request, in the form of paid invoices for such service. Tenant agrees to pay all
costs of replacements or repairs of fixtures, lamps, tubes, ballasts, starters,
transformers, fuses, and all other interior electric service and lighting
equipment. Tenant agrees to maintain interior walls, ceiling and floors in good
order, condition and repair.
11. GLASS. Tenant shall forthwith at its own cost and expense replace
with glass of the same quality any cracked or broken glass, including plate
glass, other glass, or breakable material used in structural portions, and any
interior and exterior windows and doors in the demised premises. Tenant shall
procure and maintain during the term of this Lease a policy or policies in
companies acceptable to Landlord, insuring Landlord and Tenant, as their
interest may appear, against breakage of all such glass and breakable materials
in the demised premises and shall deposit such policy or policies, or
certificates evidencing their existence, together with evidence of the payment
of the premiums thereon, with Landlord at the commencement of the term and at
least thirty days prior to the expiration of each such policy. Should Tenant
fail to procure and maintain any such insurance, Landlord may, at its option,
obtain the insurance and keep t ' he same in force and effect, and Tenant shall
pay Landlord upon demand for the costs of the insurance.
12. SIGNS. Tenant shall not erect or install any exterior or interior
window or door signs, advertising media, or window or door lettering or placards
without Landlord's prior written consent. Tenant shall not install any lighting
or plumbing fixtures, shades or awnings, or make any decoration or painting, or
install any radio or television antenna, loud speakers, sound amplifiers or
similar devices, or make any changes to the store front without Landlord's prior
written consent. Landlord may withhold approval of any items which he deems to
be not in
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conformity with the character of the building or the neighborhood. Tenant may
install a sign on the exterior of the building conforming to county codes and
requirements with Landlord having final approval if such sign.
13. INSPECTION, ENTRY AND REPAIR. Landlord and his agent shall have the
right to enter the demised premises during all reasonable hours, to examine the
same, to make such repairs, additions or alterations as may be deemed necessary
for the safety, comfort, or preservation of the demised premises, or of the
building, and to put or keep upon the doors and windows thereof a notice "FOR
RENT" at any time within ninety (90) days before the expiration of this Lease.
The right of entry shall likewise exist for the purpose of removing placards,
signs, fixtures, alterations or additions, which do not conform to this
agreement or to the reasonable rules and regulations of the building which the
Landlord may from time to time promulgate and which shall be applicable to all
tenants. Landlord reserves the right to have a pass key to the demised premises.
It is further understood and agreed between the parties that any charges against
the Tenant by the Landlord for services or work done on the premises by order of
the Tenant or otherwise accruing under this contract shall be considered as rent
due and shall be included in any lion for rent due and unpaid.
14. RIGHT TO SHOW PREMISES. During the last ninety (90) days of this
Lease, Landlord may, during normal business hours and after reasonable notice to
Tenant, enter and exhibit the premises to prospective tenants.
15. DESTRUCTION OF DEMISED PREMISES. In the event the demised premises
are destroyed, damaged or injured by fire or other casualty insurable under
standard fire and extended coverage insurance during the term of this Lease then
Landlord shall repair the demised premises, restoring them as nearly as
practicable to their condition before the occurrence of the casualty. However,
if the Landlord notifies Tenant in writing that the demised premises cannot
reasonably be restored within one hundred twenty (120) days after the notice of
occurrence of the casualty either party may terminate this Lease by written
notice to the other. If the demised premises themselves are not damaged by fire
or other casualty, but the building is so damaged that Landlord shall determine
not to rebuild, then Landlord may terminate this Lease by written notice to
Tenant. In the event of termination under this paragraph, the rent shall be
payable only to the date of the fire or casualty and all obligations and
liabilities of Landlord and Tenant under this Lease shall thereupon terminate
and Landlord shall refund to Tenant any unearned rent paid in advance.
16. CONDEMNATION OF DEMISES PREMISES. If the demised premises are
condemned or appropriated by any public or quasi-public authority having power
of eminent domain, or sold under imminent threat, of eminent domain, then this
Lease shall terminate as of the data that possession shall be required by the
appropriating authority. If condemnation, appropriation or sale occurs with
respect to only a portion of the demised premises and the demised premises
remain tenantable, this Lease shall terminate as to the portion of the demised
premises so condemned, appropriated or sold on the day Tenant must yield
possession thereof. Landlord shall make such repairs and alterations as may be
necessary in order to restore the remaining demised premises to usable condition
and the rent payable under this Lease shall be reduced
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equitably according to Tenant's use of the part of the demised premises so
taken. In the event of a termination or partial termination as described above,
Landlord shall refund to Tenant the unearned portion of any rent paid in
advance. Tenant shall surrender the premises for which the Lease was terminated,
and Tenant shall not be entitled to participate in any award or sale price of
the premises. However, the Landlord shall not be entitled to any portion of the
award to the Tenant for loss of business, depreciation to and cost of removal of
stock and fixtures. Tenant shall be entitled to appear in any appropriation
proceedings or to claim a value for the unexpired term of this Lease.
17. DAMAGE TO TENANT. All personal property placed in, or moved into,
the demised premises shall be at risk of Tenant or owner of the personal
property, and Landlord shall not be liable to Tenant or to any other person for
damage to the personal property from any cause whatsoever unless directly
resulting from Landlord's act, or neglect after notice. Landlord shall not be
liable for any damage arising from any acts or neglect of co-tenants or other
occupants of the building or of adjacent property or of any other person. For
purposes of this clause, the term "personal property" shall include, but not be
limited to, merchandise, inventory and all improvements within the demised
premises whether installed by the Landlord or Tenant, such as ceiling tiles,
shelving or other improvements.
18. DEFAULT BY TENANT.
18.1 The prompt payment of rent for the demised premises upon
the dates named, or when billed therefor, the faithful performance of all
covenants of this Lease and the faithful observance of the rules and regulations
of the entire building, grounds and parking facilities now in existence, and
which are hereby made a part of this Lease, and of such further reasonable rules
and regulations for the entire building, grounds and parking facilities which
may be hereafter made by the Landlord, are the conditions upon which this Lease
is made and accepted. Any failure on the part of Tenant to comply with the terms
of this Lease, or any of the reasonable rules and regulations now in existence,
or hereafter prescribed by the Landlord, shall at the option of Landlord, after
giving notice as provided in this paragraph, work a forfeiture of this Lease and
all of the rights of Tenant hereunder, and thereupon Landlord, its agent or
attorneys, shall have. the right to enter the demised premises and remove all
persons therefrom and shall have the right to declare the entire rent for the
balance of the term, or any part thereof, immediately due and payable in full
and may proceed to collect same either by distress or otherwise, and thereupon
the Lease shall terminate.
The expression "entire rent for the balance of the term" as used herein shall
mean all of the rent prescribed to be paid by the Tenant to the Landlord for the
full term of the Lease, less any payments that have been made on account of and
pursuant to the terms of the Lease. Tenant shall be entitled to ten days notice
of any monetary default under this Lease and thirty days notice of any
non-monetary default, but Tenant agrees that if Tenant's default has not been
cured within the time prescribed by any notice of default, Landlord, its agent
or attorneys, may immediately re-enter the demised premises and dispossess
Tenant without further legal notice or the institution of any legal proceedings
whatsoever, to the extent that such waiver and agreement by Tenant, or such acts
by Landlord are not prohibited by law.
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18.2 If Tenant shall abandon or vacate the demised premises
before the end of the term of this Lease, or permit the rent to be in arrears or
otherwise fail to comply with the terms of this Lease, Landlord may, at its
option, forthwith terminate this Lease or may enter the demised premises as the
agent of Tenant, in any manner not prohibited by law, without being liable in
any way therefor, and relet the demised premises with or without any furniture,
fixtures, and equipment that may be situated therein, at such rent and upon such
terms and for such duration of time as Landlord may determine, and receive the
rent therefor, applying the same to the payment of the rent due hereunder. If
the full rental herein provided shall not be realized by Landlord over and above
the expenses to Landlord in reletting, Tenant shall pay any deficiency.
18.3 Tenant agrees to pay, to the extent not prohibited by
law, all expenses which Landlord may incur in reletting the demised premises
after Tenant's forfeiture of the Lease, abandonment or vacation of the demised
premises, Tenant also agrees that if Landlord retains an attorney to enforce the
provisions of this Lease, or if suit is brought for recovery of possession of
the Premises, for the recovery of rent or any other amount due under this Lease,
or because of the breach of any other covenant herein to be kept or performed by
Tenant, Tenant shall pay to Landlord all expenses incurred, including reasonable
attorneys' fees, which fees shall include services at trial and appellate
levels.
18.4 The rights and remedies of Landlord upon any default by
Tenant as set forth in this Lease shall be cumulative and not exclusive of any
other rights or remedies of law or in equity. The failure of Landlord to
promptly exercise any right or remedy shall not operate to forfeit any right or
remedy.
19. WAIVER OF JURY TRIAL. The parties hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on any
matters whatsoever arising out of or in any way connected with this Lease or
Tenant's use or occupancy of the premises.
20. LATE CHARGE FOR DELINQUENT RENT. If the Tenant defaults in the
payment of any installment of base rent or additional rent by the 10th of each
month, then the Landlord may impose a late charge of five percent of the base
rent.
21. RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT. If Tenant defaults in
the making of any payment or in the doing of any act required by this Lease to
be made or done by Tenant, Landlord may, but shall not be required to, make such
payment or do such act, and the expense thereof, if made or done by Landlord,
with interest thereon at the rate of eighteen percent (18%) per annum from the
date paid by Landlord, shall be paid by Tenant to Landlord and shall constitute
additional rent due and payable with the next monthly installment of base rent.
The making of such payment or the doing of such act by Landlord shall not
operate to cure the default or to prevent Landlord from the pursuit of any
remedy to which it would otherwise be entitled.
22. BANKRUPTCY OF TENANT. If Tenant shall become insolvent or unable to
pay its debts as they mature, or if bankruptcy proceedings shall be begun by or
against Tenant before the end of the Lease term, Landlord is hereby irrevocably
authorized at its option, to forthwith terminate this Lease, as upon a default
by Tenant. Landlord may elect to accept rent from such receiver, trustee, or
other judicial officer during the term of occupancy in a fiduciary capacity
without
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affecting Landlord's rights as contained in this Lease, but no receiver, trustee
or other judicial officer shall ever have any right, title or interest in or to
the demised premises by virtue of Landlord's election.
23. ENCUMBRANCES. Tenant, shall not in any way pledge, mortgage, or
encumber this Lease or its rights under it without prior written consent of the
Landlord.
24. LIEN AND SECURITY. Tenant hereby pledges and assigns to Landlord,
and agrees that Landlord shall have a lien upon all the carpeting, furniture,
fixtures, goods, chattels, and equipment of Tenant, which shall or may be
brought or put on the demised premises, as security for the payment of the rent
herein reserved. In the event Lessor exercises the option to terminate the
Lease, and to re-enter and relet the premises as provided in this Lease, the
Lessor may take possession of all of the Lessee's property on the premises and
sell the same at public or private sale after giving Lessee reasonable notice of
the time and place of any public sale or of the time after which any private
sale is to be made, for cash or on credit, or for such price and terms as Lessor
deems best, with or without having the property present at the sale. The
proceeds of the sale shall, to the extent not prohibited by law, be applied
first to the necessary and proper expenses of removing, storing and selling the
property including attorney's fees, then to the payment of any rent due or to
become due under this Lease, with the balance, if any, to be paid to Lessee.
Landlord agrees to execute a subordination agreement on the equipment.
25. INDEMNITY BY TENANT AND LIABILITY INSURANCE.
25.1 Tenant shall protect, save and keep Landlord harmless and
indemnified against any loss, costs, damage or expense, including reasonable
attorney's fees incurred by Landlord in the defense or payment of any .claim
arising out of or from any accident or other occurrence in the demised premises
causing injury or damage to any person or property, due or claimed to be due to
any act, failure to act or negligence on the part of Tenant, its agents,
employees, invitees, or licensees, or due or claimed to be due to any failure of
Tenant, its agents, employees, invitees, or licensees, to comply with or perform
any of the requirements of this Lease on its part to be performed, or due or,
claimed to be due to any use of the demised premises by Tenant, its agents,
employees, invitees, licensees or lessees.
25.2 Tenant agrees to procure and maintain a policy or
policies of insurance at its own cost and expense with a company authorized and
permitted to do business in the State of Florida, indemnifying Landlord from all
claim, demands or actions arising or claimed to have arisen because of the
injury to, or death of, any one or more persons in any one occurrence in amounts
of not less than $1,000,000.00 and because of damage to property in amounts of
not less than $500,000.00 made by or on behalf' of any one or more persons or
corporations alleged to have arisen from, been related to, or been connected
with the conduct and operation of Tenant's business in the demised premises, or
Tenant's occupancy thereof.
Furthermore, if experience during the term of this Lease shows the above
coverage to be insufficient, additional coverage will be procured by the Tenant
at Landlord's request. The insurance shall not be subject to cancellation except
after at least ten (10) days prior written. notice to Landlord. The policy or
policies, or duly executed certificates or certificates for the
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same, together with satisfactory evidence of the payments of the premium
thereon, shall be deposited with Landlord at the commencement of the term and
renewals thereof not less than ninety (90) days prior to the expiration of the
term of such coverage.
26. OUTSIDE AREAS. Tenant shall keep any outside area and common area
immediately adjoining the demised premises clean and free from dirt and rubbish,
and Tenant shall not permit any obstruction or any merchandise, packing
containers, and materials to be placed or kept in such areas.
27. HOLDING OVER. In the event Tenant remains in possession of the
demised premises after the expiration of the tenancy created by this Lease, and
without the execution of a new Lease, Tenant shall be deemed to be occupying the
demised premises as a tenant from month to month. at two hundred percent (200%)
of fixed base rent for the last month of the Lease, subject to all the other
conditions, provisions and obligations of this Lease insofar as the same are
applicable to a month-to-month tenancy.
28. LANDLORD'S COVENANTS.
28.1 The Landlord covenants and agrees with Tenant that so
long as Tenant shall pay the rent and keep and perform the other covenants of
this Lease to be kept and performed by Tenant, Tenant shall peaceably and
quietly hold the demised premises without any interference from the Landlord.
28.2 Landlord warrants that the demised premises comply with
all applicable rules, orders, regulations and laws respecting zoning and fire
prevention and that the plumbing and electrical will be in good working order at
the commencement of this Lease, Landlord will, at his expense, repair any
defects in the plumbing and electrical of which he is notified within seven (7)
days after occupancy of the demised premises by Tenant, but in no event shall
the Landlord's obligation to repair last more than 30 days after the Lease
commences.
29. OPERATION OF BUSINESS. Tenant agrees to keep the demised premises
open for business at least eleven months of each calendar year. During the time
that the business may be closed, the demised premises should be kept so as to
appear that they are still open for business in so far as is practicable.
30. WAIVER OF HOMESTEAD. Tenant hereby waives and renounces for himself
and family any and all homestead and exemption rights he may have now, or
hereafter, under or by virtue of the constitution and laws of the State of
Florida, or of any other State, or of the United States, as against the payment
of said rental or any portion hereof, or any other obligation or damage that may
accrue under the terms of this Lease.
31. TIME OF ESSENCE. It is understood and agreed that time is of the
essence of this Lease and this applies to all terms and conditions contained in
this Lease.
32. MECHANICS LIENS. The parties acknowledge that no improvements or
repairs are required by this Lease, and any improvements or repairs to the
demised premises which may be
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made shall be at Tenant's sole expense, unless otherwise specifically provided
in this Lease. Tenant agrees that it shall not under any circumstances permit or
allow a mechanics lien to be filed against the Landlord's property as a result
of work or materials provided to the demised premises. If any mechanics lien
shall be filed against Landlord's property as a result of work or materials
provided to the demised premises, the Tenant shall cause the lien to be removed
to a bond as provided by Florida's Mechanic's Lien Law within seven days after
Landlord's demand. Failure to remove the lien to bond within seven days after
demand constitutes a default under this Lease and shall, at Landlord's option,
be grounds for forfeiture of this Lease.
33. BINDING EFFECT. This Lease shall bind Landlord and Tenant and their
respective heirs, executors, administrators, successors and assigns.
34. NOTICES. All notices, consents, requests, payments and other
communications required or permitted to be sent by this Lease shall be in
writing and shall be delivered in person or sent by registered or certified
mail, return receipt requested, to the proper address of the other party to this
Lease, which address shall be (unless and until another address is furnished by
notice):
If to Landlord, to: 0000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
If to Tenant, to: Xxxxxxx International
0000 Xxxxxxxxxxx Xxxxxx
Xxx X & X
Xxxxxx, Xxxxxxx 00000
Notices shall be effective and deemed delivered when properly addressed and
deposited with the United States or Canadian Post Office for delivery, postage
prepaid.
35. NON WAIVER OF BREACH. No waiver of a breach of any of the covenants
or conditions of this Lease shall be construed to be a waiver of any succeeding
breach of that same covenant, condition or any other covenant or condition.
36. OPTION TO RENEW. So long as Tenant is not in default of this Lease,
Tenant shall have the option to renew this Lease of the demised premises for a
further term of One/Four year term, under and subject to the same covenants and
agreements as are herein contained. The rent for the renewal options shall be as
follows:
ANNUAL BASE RATE MONTHLY BASE RENT
---------------- -----------------
$66,974.39 $5,581.20
10
The rental rate for the renewal options shall escalate as outlined in Addendum
"A" hereto attached. Tenant must exercise the option by notifying Landlord in
writing not less than one hundred eighty (180) days prior to the expiration of
the term granted by this Lease. Tenant's right to renew is void if Tenant is not
in compliance with all terms and conditions of this Lease at the time the
renewal period commences.
37. HEADINGS. The headings to the several articles of this Lease are
for convenient reference only and shall not be construed as limited or changing
the context of any article.
38. SEVERABILITY. Each paragraph and provision of this Lease and any
part thereof, is an independent paragraph, provision or part thereof, and the
holding of any paragraph, provision or part thereof to be void or ineffective
for any reason whatsoever does not affect the validity or effectiveness of any
other paragraph, provision or part thereof.
39. ENTIRE AGREEMENT. This instrument contains the entire agreement of
Landlord and Tenant. No oral amendment, modification, or understanding shall be
made, but only an agreement in writing signed by the parties shall be valid as
an amendment, modification or change to this Lease.
40. LEASE COMMENCEMENT. This Lease will commence on the 1st day after
the Certificate of Occupancy is issued or when tenant moves in which ever occurs
first.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
instrument for the purposes herein expressed, the day and year above written.
Signed, Sealed and Delivered
in the presence of
XXXXXX INDUSTRIAL PARK ("Landlord")
/s/ XXXXXX X. ANVIL By:/s/ XXXX X. XXXXXX
------------------
Xxxx X Xxxxxx
XXXXXXX INTERNATIONAL ("Tenant")
/s/ XXXXXXXX XXX XXXXXX By:/s/ M.L. MENUDA
---------------
11
LEASE
RENEWAL
THIS WRITING contains all the terms and conditions of a Lease, made and
entered into this 4TH day of. OCTOBER 1993, by and between XXXXXX INDUSTRIAL
PARK ("Landlord") and XXXXXXX INTERNATIONAL ("Tenant"), wherein the parties
agree that for the rents to be paid by Tenant and for the mutual covenants and
conditions herein set forth, Landlord hereby leases to Tenant 10,000 square feet
located at 0000 XXXXXXXXXXX XXXXXX XXX X & C, XXXXXXX COUNTY, NAPLES, FLORIDA
said unit consisting of approximately 10,000 square feet (the "demised
premises") to be used and occupied by Tenant as OFFICE/STORAGE and for no other
purposes or uses whatsoever without Landlords prior written consent.
1. TERM. The term of this Lease shall be FOUR (4) YEARS, commencing on
the JANUARY 1, 1994 and ending on DECEMBER 31, 1997.
2. BASE RENT. Tenant shall pay without demand to Landlord a base rent
plus applicable sales tax (currently 6%) payable In monthly installments as
follows,
Property Sales Total
------------------------------ ---------------
Annual Rent Base Rent Maint./Mgmt./Insurance Tax Tax Monthly Rent
-------------------------------------------------------------------------------------------------------------------
$55,100.00 4,591.67 348.37 252.00 311.52 5,503.56
The rate shall increase by 5% each year over the previous years rental rate.
Each months RENT shall be payable in advance, on the first day of each and every
month of the term of this Lease except that rental payments for the first
calendar month or part thereof, shall be paid On execution of this Lease.
3. SECURITY DEPOSIT. The Landlord acknowledges that it has received
from the Tenant $1,590,00 to remain on deposit with the Landlord during the term
of this Lease and any extensions hereof as security for the payment of rent and
damages. No interest shall be payable on the deposit, and it may be commingled
with the general funds of the Landlord. If any rent or any other sum or charge
payable by Tenant to Landlord shall be overdue and unpaid, or if Landlord makes
any payments on behalf of Tenant, or if Tenant fails to perform any other terms
of this Lease, then Landlord may at its option and without prejudice, to any
other remedy, immediately apply all or part of the security and damage deposit
toward the payment of any amount due from Tenant or toward losses sustained by
Landlord as a result of Tenant's default under this Lease, Tenant shall then
immediately restore its security and damage deposit to the original sum
deposited. Should the Landlord convey its interest under this Lease, the deposit
may be turned over by the Landlord to the Landlord's grantee or assignee. If the
security and damage deposit is turned over as aforesaid, the Tenant hereby
releases the Landlord from. any and all liability with respect to the deposit or
its return, and the Tenant agrees to look solely to such grantee or assignee for
such application or return, and this provision shall also apply to subsequent
grantees or assigns.
4. PAYMENT OF RENT. All payments shall be made without demand and
without any deduction set-off or counterclaim whatsoever and shall be made at
0000 Xxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxx 00000, or at such other place and to
such other person as Landlord may from time to time designate.
5. ADDITIONAL PAYMENTS BY TENANT, The Tenant shall pay for the
following as additional rent:
5.1. REAL ESTATE TAXES. During the term of this Lease, Tenant
shall pay to Landlord as additional rent his pro-rata share of all of the real
estate taxes and assessments for road, sewer, water, drainage or other
improvements and any other assessments for the property. The real estate taxes
shall be payable monthly during the term of this Lease, or any extension
thereto, within thirty (30) days after being billed therefor. If this Lease
commences or terminates during any tax year, Tenant's proportionate share of
taxes for that year shall be prorated for that portion of the tax year during
which this Lease shall be effective.
5.2. SALES AND PERSONAL PROPERTY TAXES. Tenant shall pay to
Landlord an amount equal to any sales or similar tax now or hereafter imposed
upon Landlord on account of this Lease or rents due hereunder. Tenant shall pay
such amount on the first day of each and every month of this Lease in which a
base rent installment is payable to Landlord in accordance with Article 2,
Tenant shall pay, promptly when due and personal property tax envied against the
demised promises and attributable to Tenant's personal property, trade fixtures
and leasehold improvements placed in or about the demised premises.
5.3. UTILITIES, Tenant shall pay all charges for electricity,
gas and other utilities used on the demised premises, including the costs of
electricity to operate the air conditioning and interior lighting equipment
provided by Landlord, and additional wiring, if any, if any, required for
special equipment, if any, installed by Tenant. The costs for electricity will
be billed to Tenant directly and it shall be Tenant's responsibility to make
satisfactory arrangements with Florida Power & Light Company to have electricity
activated.
5.4. SEWER, WATER AND TRASH, Tenant agrees to pay sewer, water
and trash charges directly to the respective suppliers thereof.
5.5. PROPERTY INSURANCE. During the term of this Lease, Tenant
shall pay to Landlord-as additional rent all costs for insurance of the demised
premises in an amount equal to the property's then current market value, along
with a loss of rents policy that shall pay Landlord rent equal to 100% of all
lost rental income. The payments for. the insurance premiums shall be payable
and included with the monthly rental payment. If this Lease commences or
terminates at a time when the insurance has already been paid, Tenant's
proportionate share of insurance shall be prorated for that portion of the year
during which this Lease shall be effective.
6. ASSIGNMENT AND SUBLETTING, Tenant shall not assign this Lease, nor
sublet the demised premises, or any part thereof, nor use the same, or any part
thereof, nor permit the same, or any part thereof, to be used by anyone other
than Tenant, without prior written consent of
2
Landlord. If Tenant requests such written consent, Tenant shall compensate
Landlord for any legal fees incurred by Landlord in drafting or evaluating
documents, or in otherwise dealing with such request. The Landlord will not
unreasonably withhold an assignment, No subletting to which the Landlord may
consent shall release or relieve the Tenant from its obligations under this
Lease, and Landlord may look 'solely to Tenant for payment of rent and the
performance of the terms and conditions of this Lease.
7. COMPLIANCE WITH LAWFUL ORDERS. Tenant, at its sole cost and expense,
shall promptly execute and comply with all statutes, ordinances, rules, orders,
regulations and requirements of the federal, state, county, and city governments
and of any and all their departments and bureaus applicable to the demised
premises, for the correction, prevention and abatement of nuisances or other
grievances, in, upon, or connected with the demised premises during the Lease
term. Tenant shall also promptly comply with and execute all rules, orders and
regulations of insurance underwriters and insurance rating bureaus having
jurisdiction for the prevention of fires. Tenant shall not commit or suffer any
waste on the premises nor use the premises for any unlawful purpose.
8. ALTERATIONS. Tenant shall not, make any repairs, alterations or
additions to the demised premises or the building of which the demises premises
are a part nor attach or affix any articles thereto nor make any repairs,
alterations or additions to the electrical service and heating, cooling and air
conditioning, plumbing or sprinkler system without the written consent of the
Landlord. If alterations become necessary because of the application of laws or
ordinances or other directions, rules or regulations of any regulatory authority
having jurisdiction over the business carried on by Tenant, or because of any
act or default on the part of Tenant, or because Tenant has overloaded any
electrical or other facility, Tenant shall make such alterations at its own cost
and expense after first obtaining Landlord's written approval of plans and
specifications and furnishing such indemnifications against liens, costs and
damage as Landlord may reasonably require. All alterations, additions,
improvements and fixtures, other than trade fixtures, which may be made or
installed by Tenant upon the demised promises and which in any manner are
attached to the floors, walls or ceiling, at the termination of this Lease shall
become the property of Landlord, unless Landlord requests their removal,. and
shall remain upon and be surrendered with the demised premises as a part
thereof, without damage or injury, all without compensation or credit to Tenant.
If Landlord requests Tenant, in writing, to do so, Tenant shall, on or before
the end of the term, remove all such additions, installations and fixtures
placed in the demised premises by Tenant and so designated by Landlord and
Tenant shall pay for the reasonable cost of repairing damage occasioned by the
removal. Tenant shall insure its leasehold improvements.
9. MAINTENANCE BY TENANT. Except as provided in paragraph 28.2, Tenant
accepts the demised premises in the condition they are `in at the beginning of
this Lease and agrees to maintain the demised premises in the same condition,
order and repair as they are at, at the commencement of said term, excepting
only reasonable wear and tear arising from the use thereof under this Lease and
damage or destruction by fire or other casualty, without the fault or neglect of
Tenant. Tenant shall keep the windows and entrance doors clean at all times.
Tenant shall pay to Landlord the cost of repairing any damage to the building or
building equipment
3
caused by any act or neglect of Tenant or its invitees (including, but limited
to, damage to air conditioning equipment, water apparatus, electric lights,
fixtures, appliances or appurtenances of the demised premises or damage caused
by overflow or escape of water, steam or gas or from improper use of the
electrical system due to negligence of Tenant or its invitees) to the extent
Landlord is not reimbursed for such cost through insurance carried by Landlord,
it being understood that Landlord is not required by this paragraph to maintain
insurance against any particular type of loss or in an amount which will result
in a 100% recovery of any loss.
10. AIR CONDITIONING AND INTERIOR REPAIRS AND REPLACEMENT. Tenant
agrees to maintain regularly and to repair the air conditioning equipment, and
to keep such equipment in good working order. Tenant agrees to employ, at its
expense, an air-conditioning maintenance service acceptable to the Landlord to
inspect the equipment, change filters and lubricate the air conditioning
equipment no less than four times per year and maintain the equipment in good
working order, and shall provide evidence of such service, at the Landlord's
request, in the form of paid invoices for such service. Tenant agrees to pay all
costs of replacements or repairs of fixtures, lamps, tubes, ballasts, starters,
transformers, fuses, and all other interior electric service and lighting
equipment. Tenant agrees to maintain interior walls, ceiling and floors in good
order, condition and repair.
11. GLASS. Tenant shall forthwith at its own cost and expense replace
with glass of the same quality any cracked or broken glass, including plate
glass, other glass, or breakable material used in structural portions, and any
interior and exterior windows and doors in the demised premises. Tenant shall
procure and maintain during the term of this Lease a policy or policies in
companies acceptable to Landlord, insuring Landlord and Tenant, as their
interest may appear, against breakage of all such glass and breakable materials
in the demised premises and shall deposit such policy or policies, or
certificates evidencing their existence, together with evidence of the payment
of the premiums thereon, with Landlord at the commencement of the term and at
least thirty days prior to the expiration of each such policy. Should Tenant
fail to procure and maintain any such insurance, Landlord may, at its option,
obtain the insurance and keep t ' he same in force and effect, and Tenant shall
pay Landlord upon demand for the costs of the insurance.
12. SIGNS. Tenant shall not erect or install any exterior or interior
window or door signs, advertising media, or window or door lettering or placards
without Landlord's prior written consent. Tenant shall not install any lighting
or plumbing fixtures, shades or awnings, or make any decoration or painting, or
install any radio or television antenna, loud speakers, sound amplifiers or
similar devices, or make any changes to the store front without Landlord's prior
written consent. Landlord may withhold approval of any items which he deems to
be not in conformity with the character of the building or the neighborhood.
Tenant may install a sign on the exterior of the building conforming to county
codes and requirements with Landlord having final approval if such sign.
13. INSPECTION, ENTRY AND REPAIR. Landlord and his agent shall have the
right to enter the demised premises during all reasonable hours, to examine the
same, to make such repairs, additions or alterations as may be deemed necessary
for the safety, comfort, or preservation of
4
the demised premises, or of the building, and to put or keep upon the doors and
windows thereof a notice "FOR RENT" at any time within ninety (90) days before
the expiration of this Lease. The right of entry shall likewise exist for the
purpose of removing placards, signs, fixtures, alterations or additions, which
do not conform to this agreement or to the reasonable rules and regulations of
the building which the Landlord may from time to time promulgate and which shall
be applicable to all tenants. Landlord reserves the right to have a pass key to
the demised premises. It is further understood and agreed between the parties
that any charges against the Tenant by the Landlord for services or work done on
the premises by order of the Tenant or otherwise accruing under this contract
shall be considered as rent due and shall be included in any lion for rent due
and unpaid.
14. RIGHT TO SHOW PREMISES. During the last ninety (90) days of this
Lease, Landlord may, during normal business hours and after reasonable notice to
Tenant, enter and exhibit the premises to prospective tenants.
15. DESTRUCTION OF DEMISED PREMISES. In the event the demised premises
are destroyed, damaged or injured by fire or other casualty insurable under
standard fire and extended coverage insurance during the term of this Lease then
Landlord shall repair the demised premises, restoring them as nearly as
practicable to their condition before the occurrence of the casualty. However,
if the Landlord notifies Tenant in writing that the demised premises cannot
reasonably be restored within one hundred twenty (120) days after the notice of
occurrence of the casualty either party may terminate this Lease by written
notice to the other. If the demised premises themselves are not damaged by fire
or other casualty, but the building is so damaged that Landlord shall determine
not to rebuild, then Landlord may terminate this Lease by written notice to
Tenant. In the event of termination under this paragraph, the rent shall be
payable only to the date of the fire or casualty and all obligations and
liabilities of Landlord and Tenant under this Lease shall thereupon terminate
and Landlord shall refund to Tenant any unearned rent paid in advance.
16. CONDEMNATION OF DEMISES PREMISES. If the demised premises are
condemned or appropriated by any public or quasi-public authority having power
of eminent domain, or sold under imminent threat, of eminent domain, then this
Lease shall terminate as of the data that possession shall be required by the
appropriating authority. If condemnation, appropriation or sale occurs with
respect to only a portion of the demised premises and the demised premises
remain tenantable, this Lease shall terminate as to the portion of the demised
premises so condemned, appropriated or sold on the day Tenant must yield
possession thereof. Landlord shall make such repairs and alterations as may be
necessary in order to restore the remaining demised premises to usable condition
and the rent payable under this Lease shall be reduced equitably according to
Tenant's use of the part of the demised premises so taken. In the event of a
termination or partial termination as described above, Landlord shall refund to
Tenant the unearned portion of any rent paid in advance. Tenant shall surrender
the premises for which the Lease was terminated, and Tenant shall not be
entitled to participate in any award or sale price of the premises. However, the
Landlord shall not be entitled to any portion of the award to the Tenant for
loss of business, depreciation to and cost of removal of stock and fixtures.
Tenant
5
shall be entitled to appear in any appropriation proceedings or to claim a value
for the unexpired term of this Lease.
17. DAMAGE TO TENANT. All personal property placed in, or moved into,
the demised premises shall be at risk of Tenant or owner of the personal
property, and Landlord shall not be liable to Tenant or to any other person for
damage to the personal property from any cause whatsoever unless directly
resulting from Landlord's act, or neglect after notice. Landlord shall not be
liable for any damage arising from any acts or neglect of co-tenants or other
occupants of the building or of adjacent property or of any other person. For
purposes of this clause, the term "personal property" shall include, but not be
limited to, merchandise, inventory and all improvements within the demised
premises whether installed by the Landlord or Tenant, such as ceiling tiles,
shelving or other improvements.
18. DEFAULT BY TENANT.
18.1 The prompt payment of rent for the demised premises upon
the dates named, or when billed therefor, the faithful performance of all
covenants of this Lease and the faithful observance of the rules and regulations
of the entire building, grounds and parking facilities now in existence, and
which are hereby made a part of this Lease, and of such further reasonable rules
and regulations for the entire building, grounds and parking facilities which
may be hereafter made by the Landlord, are the conditions upon which this Lease
is made and accepted. Any failure on the part of Tenant to comply with the terms
of this Lease, or any of the reasonable rules and regulations now in existence,
or hereafter prescribed by the Landlord, shall at the option of Landlord, after
giving notice as provided in this paragraph, work a forfeiture of this Lease and
all of the rights of Tenant hereunder, and thereupon Landlord, its agent or
attorneys, shall have. the right to enter the demised premises and remove all
persons therefrom and shall have the right to declare the entire rent for the
balance of the term, or any part thereof, immediately due and payable in full
and may proceed to collect same either by distress or otherwise, and thereupon
the Lease shall terminate.
The expression "entire rent for the balance of the term" as used herein shall
mean all of the rent prescribed to be paid by the Tenant to the Landlord for the
full term of the Lease, less any payments that have been made on account of and
pursuant to the terms of the Lease. Tenant shall be entitled to ten days notice
of any monetary default under this Lease and thirty days notice of any
non-monetary default, but Tenant agrees that if Tenant's default has not been
cured within the time prescribed by any notice of default, Landlord, its agent
or attorneys, may immediately re-enter the demised premises and dispossess
Tenant without further legal notice or the institution of any legal proceedings
whatsoever, to the extent that such waiver and agreement by Tenant, or such acts
by Landlord are not prohibited by law.
18.2 If Tenant shall abandon or vacate the demised premises
before the end of the term of this Lease, or permit the rent to be in arrears or
otherwise fail to comply with the terms of this Lease, Landlord may, at its
option, forthwith terminate this Lease or may enter the demised premises as the
agent of Tenant, in any manner not prohibited by law, without being liable in
any way therefor, and relet the demised premises with or without any furniture,
fixtures,
6
and equipment that may be situated therein, at such rent and upon such terms and
for such duration of time as Landlord may determine, and receive the rent
therefor, applying the same to the payment of the rent due hereunder. If the
full rental herein provided shall not be realized by Landlord over and above the
expenses to Landlord in reletting, Tenant shall pay any deficiency.
18.3 Tenant agrees to pay, to the extent not prohibited by
law, all expenses which Landlord may incur in reletting the demised premises
after Tenant's forfeiture of the Lease, abandonment or vacation of the demised
premises, Tenant also agrees that if Landlord retains an attorney to enforce the
provisions of this Lease, or if suit is brought for recovery of possession of
the Premises, for the recovery of rent or any other amount due under this Lease,
or because of the breach of any other covenant herein to be kept or performed by
Tenant, Tenant shall pay to Landlord all expenses incurred, including reasonable
attorneys' fees, which fees shall include services at trial and appellate
levels.
18.4 The rights and remedies of Landlord upon any default by
Tenant as set forth in this Lease shall be cumulative and not exclusive of any
other rights or remedies of law or in equity. The failure of Landlord to
promptly exercise any right or remedy shall not operate to forfeit any right or
remedy.
19. WAIVER OF JURY TRIAL. The parties hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on any
matters whatsoever arising out of or in any way connected with this Lease or
Tenant's use or occupancy of the premises.
20. LATE CHARGE FOR DELINQUENT RENT. If the Tenant defaults in the
payment of any installment of base rent or additional rent by the 10th of each
month, then the Landlord may impose a late charge of five percent of the base
rent.
21. RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT. If Tenant defaults in
the making of any payment or in the doing of any act required by this Lease to
be made or done by Tenant, Landlord may, but shall not be required to, make such
payment or do such act, and the expense thereof, if made or done by Landlord,
with interest thereon at the rate of eighteen percent (18%) per annum from the
date paid by Landlord, shall be paid by Tenant to Landlord and shall constitute
additional rent due and payable with the next monthly installment of base rent.
The making of such payment or the doing of such act by Landlord shall not
operate to cure the default or to prevent Landlord from the pursuit of any
remedy to which it would otherwise be entitled.
22. BANKRUPTCY OF TENANT. If Tenant shall become insolvent or unable to
pay its debts as they mature, or if bankruptcy proceedings shall be begun by or
against Tenant before the end of the Lease term, Landlord is hereby irrevocably
authorized at its option, to forthwith terminate this Lease, as upon a default
by Tenant. Landlord may elect to accept rent from such receiver, trustee, or
other judicial officer during the term of occupancy in a fiduciary capacity
without affecting Landlord's rights as contained in this Lease, but no receiver,
trustee or other judicial officer shall ever have any right, title or interest
in or to the demised premises by virtue of Landlord's election.
7
23. ENCUMBRANCES. Tenant, shall not in any way pledge, mortgage, or
encumber this Lease or its rights under it without prior written consent of the
Landlord.
24. LIEN AND SECURITY. Tenant hereby pledges and assigns to Landlord,
and agrees that Landlord shall have a lien upon all the carpeting, furniture,
fixtures, goods, chattels, and equipment of Tenant, which shall or may be
brought or put on the demised premises, as security for the payment of the rent
herein reserved. In the event Lessor exercises the option to terminate the
Lease, and to re-enter and relet the premises as provided in this Lease, the
Lessor may take possession of all of the Lessee's property on the premises and
sell the same at public or private sale after giving Lessee reasonable notice of
the time and place of any public sale or of the time after which any private
sale is to be made, for cash or on credit, or for such price and terms as Lessor
deems best, with or without having the property present at the sale. The
proceeds of the sale shall, to the extent not prohibited by law, be applied
first to the necessary and proper expenses of removing, storing and selling the
property including attorney's fees, then to the payment of any rent due or to
become due under this Lease, with the balance, if any, to be paid to Lessee.
Landlord agrees to execute a subordination agreement on the equipment.
25. INDEMNITY BY TENANT AND LIABILITY INSURANCE.
25.1 Tenant shall protect, save and keep Landlord harmless and
indemnified against any loss, costs, damage or expense, including reasonable
attorney's fees incurred by Landlord in the defense or payment of any .claim
arising out of or from any accident or other occurrence in the demised premises
causing injury or damage to any person or property, due or claimed to be due to
any act, failure to act or negligence on the part of Tenant, its agents,
employees, invitees, or licensees, or due or claimed to be due to any failure of
Tenant, its agents, employees, invitees, or licensees, to comply with or perform
any of the requirements of this Lease on its part to be performed, or due or,
claimed to be due to any use of the demised premises by Tenant, its agents,
employees, invitees, licensees or lessees.
25.2 Tenant agrees to procure and maintain a policy or
policies of insurance at its own cost and expense with a company authorized and
permitted to do business in the State of Florida, indemnifying Landlord from all
claim, demands or actions arising or claimed to have arisen because of the
injury to, or death of, any one or more persons in any one occurrence in amounts
of not less than $1,000,000.00 and because of damage to property in amounts of
not less than $500,000.00 made by or on behalf' of any one or more persons or
corporations alleged to have arisen from, been related to, or been connected
with the conduct and operation of Tenant's business in the demised premises, or
Tenant's occupancy thereof.
Furthermore, if experience during the term of this Lease shows the above
coverage to be insufficient, additional coverage will be procured by the Tenant
at Landlord's request. The insurance shall not be subject to cancellation except
after at least ten (10) days prior written. notice to Landlord. The policy or
policies, or duly executed certificates or certificates for the same, together
with satisfactory evidence of the payments of the premium thereon, shall be
deposited with Landlord at the commencement of the term and renewals thereof not
less than ninety (90) days prior to the expiration of the term of such coverage.
8
26. OUTSIDE AREAS. Tenant shall keep any outside area and common area
immediately adjoining the demised premises clean and free from dirt and rubbish,
and Tenant shall not permit any obstruction or any merchandise, packing
containers, and materials to be placed or kept in such areas.
27. HOLDING OVER. In the event Tenant remains in possession of the
demised premises after the expiration of the tenancy created by this Lease, and
without the execution of a new Lease, Tenant shall be deemed to be occupying the
demised premises as a tenant from month to month. at two hundred percent (200%)
of fixed base rent for the last month of the Lease, subject to all the other
conditions, provisions and obligations of this Lease insofar as the same are
applicable to a month-to-month tenancy.
28. LANDLORD'S COVENANTS.
28.1 The Landlord covenants and agrees with Tenant that so
long as Tenant shall pay the rent and keep and perform the other covenants of
this Lease to be kept and performed by Tenant, Tenant shall peaceably and
quietly hold the demised premises without any interference from the Landlord.
28.2 Landlord warrants that the demised premises comply with
all applicable rules, orders, regulations and laws respecting zoning and fire
prevention and that the plumbing and electrical will be in good working order at
the commencement of this Lease, Landlord will, at his expense, repair any
defects in the plumbing and electrical of which he is notified within seven (7)
days after occupancy of the demised premises by Tenant, but in no event shall
the Landlord's obligation to repair last more than 30 days after the Lease
commences.
29. OPERATION OF BUSINESS. Tenant agrees to keep the demised premises
open for business at least eleven months of each calendar year. During the time
that the business may be closed, the demised premises should be kept so as to
appear that they are still open for business in so far as is practicable.
30. WAIVER OF HOMESTEAD. Tenant hereby waives and renounces for himself
and family any and all homestead and exemption rights he may have now, or
hereafter, under or by virtue of the constitution and laws of the State of
Florida, or of any other State, or of the United States, as against the payment
of said rental or any portion hereof, or any other obligation or damage that may
accrue under the terms of this Lease.
31. TIME OF ESSENCE. It is understood and agreed that time is of the
essence of this Lease and this applies to all terms and conditions contained in
this Lease.
32. MECHANICS LIENS. The parties acknowledge that no improvements or
repairs are required by this Lease, and any improvements or repairs to the
demised premises which may be made shall be at Tenant's sole expense, unless
otherwise specifically provided in this Lease. Tenant agrees that it shall not
under any circumstances permit or allow a mechanics lien to be filed against the
Landlord's property as a result of work or materials provided to the demised
9
premises. If any mechanics lien shall be filed against Landlord's property as a
result of work or materials provided to the demised premises, the Tenant shall
cause the lien to be removed to a bond as provided by Florida's Mechanic's Lien
Law within seven days after Landlord's demand. Failure to remove the lien to
bond within seven days after demand constitutes a default under this Lease and
shall, at Landlord's option, be grounds for forfeiture of this Lease.
33. BINDING EFFECT. This Lease shall bind Landlord and Tenant and their
respective heirs, executors, administrators, successors and assigns.
34. NOTICES. All notices, consents, requests, payments and other
communications required or permitted to be sent by this Lease shall be in
writing and shall be delivered in person or sent by registered or certified
mail, return receipt requested, to the proper address of the other party to this
Lease, which address shall be (unless and until another address is furnished by
notice):
If to Landlord, to: 0000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
If to Tenant, to: Xxxxxxx International
0000 Xxxxxxxxxxx Xxxxxx
Xxx X & X
Xxxxxx, Xxxxxxx 00000
Notices shall be effective and deemed delivered when properly addressed and
deposited with the United States or Canadian Post Office for delivery, postage
prepaid.
35. NON WAIVER OF BREACH. No waiver of a breach of any of the covenants
or conditions of this Lease shall be construed to be a waiver of any succeeding
breach of that same covenant, condition or any other covenant or condition.
36. OPTION TO RENEW. So long as Tenant is not in default of this Lease,
Tenant shall have the option to renew this Lease of the demised premises for a
further term of One/Four year term, under and subject to the same covenants and
agreements as are herein contained. The rent for the renewal options shall be as
follows:
ANNUAL BASE RATE MONTHLY BASE RENT
---------------- -----------------
$66,974.39 $5,581.20
The rental rate for the renewal options shall escalate as outlined in Addendum
"A" hereto attached. Tenant must exercise the option by notifying Landlord in
writing not less than one hundred eighty (180) days prior to the expiration of
the term granted by this Lease. Tenant's
10
right to renew is void if Tenant is not in compliance with all terms and
conditions of this Lease at the time the renewal period commences.
37. HEADINGS. The headings to the several articles of this Lease are
for convenient reference only and shall not be construed as limited or changing
the context of any article.
38. SEVERABILITY. Each paragraph and provision of this Lease and any
part thereof, is an independent paragraph, provision or part thereof, and the
holding of any paragraph, provision or part thereof to be void or ineffective
for any reason whatsoever does not affect the validity or effectiveness of any
other paragraph, provision or part thereof.
39. ENTIRE AGREEMENT. This instrument contains the entire agreement of
Landlord and Tenant. No oral amendment, modification, or understanding shall be
made, but only an agreement in writing signed by the parties shall be valid as
an amendment, modification or change to this Lease.
40. LEASE COMMENCEMENT. This Lease will commence on the 1st day after
the Certificate of Occupancy is issued or when tenant moves in which ever occurs
first.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
instrument for the purposes herein expressed, the day and year above written.
Signed, Sealed and Delivered
in the presence of
XXXXXX INDUSTRIAL PARK ("Landlord")
/s/ XXXXXX X. ANVIL By:/s/ XXXX X. XXXXXX
------------------
Xxxx X. Xxxxxx
XXXXXXX INTERNATIONAL ("Tenant")
/S/ XXXXXXXX XXX XXXXXX By:/s/ M.L. MENUDA
---------------
00
XXXXXX XXXXXXXXXX XXXX
0000 XXXXXXX XXXX XXXXX
XXXXXX, XXXXXXX 00000
(000) 000-0000 FAX: (000) 000-0000
October 20, 1997
HAND DELIVERY TO: MR. ART XXXXXX
For: Xx. Xxxx Xxxxxxxxx, President and CEO
Xxxxxxx International Systems Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Re: Lease Renewals with Xxxxxx Industrial Park
Dear Xxxx,
This letter reflects our latest proposal for leasing the facilities you are
presently occupying, and negates any previous offer.
We agree to lease you 0000 Xxxxxxxxxx Xxxxxx, Xxxx X, X, and C (15,000 square
feet) for three (3) years commencing January 1, 1998 at- a rate of $7.50 per
square foot plus all common use maintenance, taxes, insurance and sales tax. The
lease rate shall escalate by 5% annually over the previous year's rate.
We agree to lease the 0000 Xxxxxxxxxx Xxxxxx building (10,400 square feet) for
two (2) years commencing January 1, 1998 at a rate of $7.50 per square foot plus
all common area maintenance, taxes, insurance and sales tax. The lease rate for
the second year shall escalate by 5% over the first year's rate.
The breakout of your costs are attached hereto. You are presently paying
$22,054.52 per month. With the new lease rates, the monthly payment drops to
$18,902.57 per month.
Xxxxxx Industrial Park agrees that these leases will terminate if a new facility
is constructed for Xxxxxxx International.
If you have questions, please feel free to contact me at 000-0000,
Very truly yours,
XXXXXX INDUSTRIAL PARK
Xxxx X. Xxxxxx
Accepted:
Date: 11/12/97 By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------
President and CEO
ASSIGNMENT, ASSUMPTION AND CONSENT TO ASSIGNMENT OF LEASE
THIS AGREEMENT dated this 1ST day JUNE, 1999, among XXXXXXX
INTERNATIONAL SYSTEMS CORPORATION, hereinafter referred to as "Assignor", and
SMART DISK CORPORATION, hereinafter referred to as "Assignee", and XXXXXX
INDUSTRIAL PARK, hereinafter referred to as "Lessor".
WITNESSETH:
WHEREAS, the Assignor is the Tenant under a lease dated October 4,
1993, between the Lessor and the Assignor, covering premises located in the City
of Naples, Xxxxxxx County, Florida, more commonly known as 0000 Xxxxxxxxxx
Xxxxxx, Xxxx A, B & C, Naples, Florida ("Lease'"), which is incorporated herein
by reference and made part hereof and desires to assign its interest in said
Lease to Assignee, and
WHEREAS, the Assignee desires to acquire Assignor's interest in and to
the Lease; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties agree as follows:
1. ASSIGNMENT: Assignor assigns to Assignee as of JUNE 1, 1999
("Effective Date"), all Assignor's right, title and interest
in the Lease; provided that Assignor shall continue to remain
fully liable and responsible for the performance of the
covenants to be performed by Tenant under the Lease.
2. ASSUMPTION OF LIABILITY. The Assignee will, from and after the
Effective Date, assume the performance of all of the terms,
covenants and conditions of the Lease and agrees to pay the
rent reserved under the Lease and will perform all the terms,
covenants and conditions of the Lease; all with full force and
effect as if the assignee had signed the Lease originally as
tenant named herein.
3. INDEMNIFICATION. From and after the Effective Date, Assignee
will indemnify and hold harmless Assignor and its officers,
employees, and agents from any and all claims, liabilities,
suits, judgments, awards, damages, losses, fines, penalties,
costs and expenses, including reasonable attorneys' fees and
expenses of defense which Assignor may suffer, incur or be
liable for by reason of or arising out of the failure or
refusal of Assignee to comply with, observe or perform the
terms, covenants, condition and obligations of Assignor under
the Lease.
4. CONSENT. The Lessor consents to the assignment of the Lease by
assignor to the assignee upon the express condition that no
further assignment of the Lease shall be made without Assignee
under the terms of the original Lease.
5. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument. Facsimile copies of this Agreement shall have full
legal force and effect.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Assignment, Assumption and Consent to
Assignment of Lease as of the Effective Date written above.
WITNESSES: ASSIGNOR:
Xxxxxxx International Systems Corp.
/s/ XXXXXX XXXXXX /s/ XXXX XXXXXXX
---------------------------------- ------------------------------------
Print Name: Xxxxxx XxXxxx By: Xxxx Xxxxxxx, Secretary
/s/ XXXXX X. XXXXXXX
----------------------------------
Print Name: Xxxxx X. Xxxxxxx
ASSIGNEE:
Smart Disk Corporation
/s/ XXXXXX XXXXXX /s/ XXXXXXX X. XXXXXXXXX
---------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxx By: Xxxxxxx X. Xxxxxxxxx, President and
CEO
/s/ XXXXX X. XXXXXXX
----------------------------------
Print Name: Xxxxx X. Xxxxxxx
LESSOR:
Xxxxxx Industrial Park
/s/ XXXXX X. XXXXXXX /s/ XXXX X. XXXXXX
----------------------------------- ------------------------------------
Print Name: Xxxxx X. Xxxxxxx By: Xxxx X. Xxxxxx, Partner
/s/ XXXXXX X. XXXXXX
-----------------------------------
Print Name: Xxxxxx X. Xxxxxx
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