Exhibit 10.4
LEASE AGREEMENT
THIS
LEASE AGREEMENT (the “Lease”) made effective the
10 day of December, 2004, between
XX XXXXXX XXXXX PARTNERSHIP, a Florida general partnership,
whose address is c/o Xxxx Xxxxx, 320 Running Xxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000, hereinafter
referred to as the “Landlord”, which term shall mean and include its successors and assigns,
wherever the context hereinafter so requires or admits; and CMS of Central Florida, Inc., whose
address is 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, hereinafter sometimes referred to as
“Tenant”, which term shall mean and include the said Tenant and its successors and assigns
wherever the context hereinafter so requires or admits.
W I T N E S S E T H :
That in consideration of the covenants and conditions herein contained and in
consideration of the rents herein reserved to be paid by the Tenant, the said Landlord does
hereby covenant, stipulate and agree to and with the Tenant as follows:
1. Description of Premises. Landlord leases to Tenant the premises located at 000
Xxxxxxx Xxxx Xxxxx (determined by Postal Service), Xxxxxxx, Xxxxxxx 00000 (“Premises” or “Demised
Premises”), which contain approximately 12,000 square feet, and which are depicted in Exhibit
“A.” The Premises are located in the Building on the property more particularly described as
follows: Xxx 00, Xxxxxxx Xxxxxxx Xxxx Xxxxx XX, Xxxx Book 54, Page 8 thru 10, Seminole County,
Florida (the “Property”).
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2. |
Term. The term of this Lease is for five (5) years beginning July 1, 2000.
Tenant has given notice that they have exercised the option to renew this lease for an
additional five (5) years, which would begin on July 1, 2005, with the same terms and
conditions, except that at the commencement of the renewal term the rental shall be
increased by 3% and shall increase annually thereafter at the rate of 5% per annum. |
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3. |
Rent. The base rent due and payable by Tenant hereunder is as follows: |
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Period |
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Annual Rent |
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Monthly Rent |
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Monthly CAM |
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Sales Tax |
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Total |
Year 5 |
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$74,280 |
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$6,190 |
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$1,355 |
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$528 |
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$8,073 |
*Year 6 |
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$76,510 |
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$6,375 |
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$1,355 |
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$541 |
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$8,272 |
Year 7 |
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$80,330 |
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$6,695 |
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TDA |
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TDA |
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TDA |
Year 8 |
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$84,350 |
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$7,029 |
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TDA |
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TDA |
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TDA |
Year 9 |
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$88,570 |
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$7,380 |
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TDA |
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TDA |
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TDA |
Year 10 |
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$93,000 |
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$7,750 |
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TDA |
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TDA |
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TDA |
In addition to the base rent, Tenant shall pay real estate Taxes, Insurance premiums
and Common Expenses as described in Paragraph 12 of this Lease (CAM). The term of current lease
is through June 30, 2005. The CAM will change yearly depending on insurance cost or building and
property tax. The base rental shall be based upon the actual rentable square footage of the
Premises, which is approximately 12,000 square feet. Tenant shall pay Landlord the first month’s
rent upon execution of this Lease, and succeeding payments shall be due in advance on the first
day of each month thereafter during the term of the lease. Rent for any partial month at the
beginning or end of the term shall be prorated. All rental payments shall be made to Landlord at
the address specified above. Tenant shall pay the rent as specified herein and in paragraph 4
hereof. In addition, Tenant shall pay any sales or use taxes that arise in connection with the
rental of the property.
4. Additional Rent. All Taxes, Insurance premiums, Common Expenses, and
expenses that Tenant assumes or agrees to pay hereunder, together with all interest and
penalties
that may accrue thereon in the event of the failure of Tenant to pay those items, and all
other
damages, costs, expenses, and sums that Landlord may suffer or incur, or that may become due,
by reason of any default of Tenant or failure by Tenant to comply with the terms and
conditions
of this Lease, shall be deemed to be additional rent, and, in the event of nonpayment,
Landlord
shall have all the rights and remedies as herein provided for failure to pay rent.
5. Security Deposit. Tenant shall be required to pay a deposit to the Landlord at the
time of the execution of this Lease.
6. Use. The Tenant may use the premises for assembly and distribution and
accompanying office use.
7. Restriction on Use. Tenant shall not use the premises in any manner that will
result in a cancellation of any insurance policy, even if such use may be in furtherance of
Tenant’s business purposes. Tenant shall not keep, use, or sell anything prohibited by any
policy
of fire insurance covering the premises, and shall comply with all requirements of the
insurers
applicable to the premises necessary to keep in force the fire and liability insurance.
8. Waste, Nuisance, or Unlawful Activity. Tenant shall not allow any waste or
nuisance on the premises. Tenant shall neither use nor occupy the demised premises or any
part
thereof for any unlawful, disreputable, or ultrahazardous business purpose nor operate or
conduct
its business in a manner constituting a nuisance of any kind. Tenant shall immediately, on
discovery of any unlawful, disreputable, or ultrahazardous use, take action to halt such
activity.
9. Compliance With Laws. The Tenant shall promptly and fully comply with all
laws, rules, ordinances and regulations of any and all duly constituted authorities having
jurisdiction, concerning or affecting the demised premises and the operations of the
Tenant’s
business thereon.
10. Easements, Agreements, or Encumbrances. The parties shall be bound by all
existing easements, agreements, and encumbrances of record relating to the demised premises,
and Landlord shall not be liable to Tenant for any damages resulting from any action taken by
a holder of an interest pursuant to the rights of that holder thereunder.
11. Utilities. All applications and connections for necessary utility services on
the demised premises shall be made in the name of Tenant only, and Tenant shall be solely liable
for utility charges as they become due, including those for sewer, water, gas, electricity, and
telephone services.
12. Common Expenses, Taxes and Insurance. Tenant shall pay Landlord, throughout
the term of this Lease, in addition to the base rent and as additional rent due hereunder, all
Common Expenses, Taxes and Insurance as such terms are defined below. The Landlord may, at
its option, estimate its annual costs of such Common Expenses, Taxes and Insurance and Tenant
shall pay one-twelfth of Tenant’s Share of such estimated annual costs on the same date
monthly
rent is due. In such event, Landlord shall determine its actual annual costs of Common
Expenses, Taxes and Insurance at the end of each calendar year and shall notify Tenant of any
adjustments due, which shall be paid by or credited to Tenant, as the case may be, within
thirty
(30) days after such notice. If Landlord does not elect to collect monthly estimated costs,
the
Tenant shall pay to Landlord the Prorate Share of actual Common Expenses, Taxes and
Insurance within thirty (30) days after Landlord’s billing thereof. Tenant shall also pay
sales tax
due on such additional rent. Such costs shall be prorated for any partial calendar year at
the
beginning or end of the lease term.
Common Expenses shall include the total cost of all maintenance, repair and replacement
which Landlord performs or causes to be performed to or for the benefit of the common area
including the cost of water, sewer and other utilities used for the common area and the cost of
landscaping and grounds keeping and the cost of service contracts and other obligations related
to the maintenance, repair and operation of the common area and the cost of water, sewer and
trash removal provided to the Premises and to all other rentable areas in the Building. Common
Expenses shall also include the cost of maintenance, repair and replacement which Landlord
performs or causes to be performed to or for the benefit of other amenities and improvements for
the common use or benefit of occupants of the Building including landscaping, irrigation and
grounds keeping of entrance medians and signs, roadways, drainage retention areas and the cost of
service contracts and other obligations related to the maintenance, repair and operation of such
amenities and improvements. Landlord shall maintain accurate records concerning the Common
Expenses, which Tenant may examine during Landlord’s normal business hours at Landlord’s office
upon reasonable notice not more frequently than quarterly.
Taxes shall include the total amount of all real estate taxes and assessments levied
or imposed upon the Property by any governmental authority having jurisdiction thereover. Tenant
shall also pay personal property taxes assessed or imposed in connection with all personal
property of Tenant maintained in, upon or about the Premises.
Insurance shall include the total costs incurred by Landlord for casualty and liability
insurance regarding the Property including coverage against loss or damage by fire and such
other risks as of now or hereafter under so-called “all risk” insurance coverage in common use
in the Central Florida Area and including, if Landlord deems necessary, coverage for loss of
rent, earthquake, flood and sink-hole damage.
13. Fire Insurance. The Landlord shall, procure, and at all tunes during the term of
this Lease and any renewal or extension thereof, maintain fire and extended coverage insurance
on the buildings and improvements located upon the demised premises in an amount not less than
one hundred percent (100%) of the full insurable value thereof, in a company or companies
acceptable to Landlord licensed and authorized to do insurance business in the State of
Florida.
The Tenant shall provide insurance for its personal property and trade fixtures brought onto
the
Premises.
14. Licenses and Permits. The Tenant shall pay for all licenses and permits required
by law for the operation by the Tenant of its business on the demised premises during the
continuance of the term of this Lease or any renewal or extension thereof, and the Landlord shall
not
be liable or responsible for any part thereof.
15. Alterations,
Additions, and Improvements.
(a) Tenant
may at any time during the lease term, subject to the conditions set
forth below and at its own expense, make any alterations, additions or improvements in and to
the demised premises. Alterations shall be performed in a workmanlike manner and shall not
weaken or impair the structural strength, or lessen the value, of the building on the
premises, or
change the purpose for which the building, or any part thereof, may be used.
(b) Conditions with respect to alterations, additions or improvements are as
follows:
(i) Before commencement of any work all plans and specifications shall be filed with and
approved by all governmental departments or authorities having jurisdiction and any public
utility company having an interest therein, and all work shall be done in accordance with
requirements of local regulations. The plans and specifications for any alteration, addition or
improvement shall be submitted to Landlord for approval prior to commencing work.
(ii) Prior to the commencement of any work, Tenant shall pay the amount of any increase in
premiums on insurance policies provided for herein because of endorsements to be made covering
the risk during the course of work.
(c) All alterations, additions and improvements on or in the demised premises at the
commencement of the term, and that may be erected or installed during the term, shall
become part of the demised premises and the sole property of the Landlord, except that all
movable trade fixtures shall be and remain the property of Tenant.
16. Repairs and Maintenance. Tenant shall, at all times during the lease and at its
own cost and expense, maintain the demised premises (including the air conditioning, heating,
plumbing and electrical systems) and keep them in good repair and shall use all reasonable
precautions to prevent waste, damage, or injury to the demised premises. Provided, however,
that Landlord shall, at its own cost and expense, make all structural repairs and maintain and
repair the roof and the exterior of the demised premises (with the exception of plate glass
windows
and doors). Tenant shall be responsible for structural repairs necessitated by any
improvements
or alterations made to the premises by the Tenant and for any repairs to the exterior caused
by
the negligence or misuse by the Tenant, its agents, employees or invitees.
17. Parking. Landlord shall provide, for the nonexclusive use of Landlord and Tenant
herein and other tenants of the building, of which the said demised premises are a part, if
any,
and their agents, employees and invitees, a parking area as shown and delineated upon the
plans
of said building by which said building has been built. Landlord reserves the right and
privilege
at any and all times to assign and reassign specific parking spaces in said parking area to
Tenant
and to the other tenants in said Building. It is further mutually understood and agreed that
Landlord shall have the right, privilege and option at any time to alter all or any part of
said
parking area.
18. Acceptance of Premises. Landlord represents that the premises are in fit
condition
for use by Tenant. Acceptance of the premises by Tenant shall be construed as recognition
that
the premises are in a good state of repair and in sanitary condition, and Tenant will accept
the
premises in their improved condition after a walk-through with punch list items per
Improvement
Plans as described in Paragraph 45(a) below.
19. Quiet Enjoyment. The Landlord covenants and agrees that it has the full and
unrestricted right and lawful authority to enter into this Lease. Tenant, upon paying said
rent and
other charges herein and otherwise fully and punctually performing all the other terms and
conditions imposed on Tenant, shall and may peaceably and quietly have, hold and enjoy the
premises hereby demised for the term aforesaid free from disturbance by the Landlord or
anyone
claiming by, through or under the Landlord.
20. Access to Premises. Tenant shall permit Landlord or its agents to enter the
demised premises at all reasonable hours to inspect the premises to determine whether the
Tenant
is complying with the provisions of this Lease, and for the purpose of doing any other
lawful acts
necessary to protect the Landlord’s interest in the premises.
21. Insurance and Indemnity. The Tenant shall indemnify, save and hold harmless the
Landlord from and against any and all claims, or liability for injury or damage to any
person or
property occurring in or about the premises occurring during the term of this Lease, when
such
injury or damage shall be caused in whole or in part by the act, neglect, fault of or
omission of
any duty of same by Tenant, its agents, servants, employees and invitees.
The Tenant shall, at its own expense, procure, and at all times during the term of this Lease
continue in force and effect:
(a) Broad
form comprehensive general liability insurance including: (i)
premises/operations, (ii) products/completed operations hazard, (iii) broad form contractual,
and
(iv) personal injury, including death. This general liability insurance shall include limits
of
liability of not less than One Million Dollars ($1,000,000.00) combined single limits for
bodily
injury and property damage.
(b) Worker’s
compensation insurance with statutory limits of liability.
(c) Such additional insurance which Landlord may require, in its discretion,
from time to time.
Certificates of insurance in form acceptable to Landlord shall be provided to Landlord at
the commencement of the term. The insurance policies shall name the Landlord and Tenant as
insured and shall provide that the policies may not be canceled or materially altered until at
least thirty (30) days’ prior written notice has been given to the Landlord. The insurance
carriers providing such insurance shall have no less than “A” rating according to A. M. Best’s
rating and shall be authorized to do business in Florida. Nothing contained herein shall absolve
Landlord for any injuries or damage caused by Landlord’s negligence or the negligence of
Landlord’s agents, servants or employees.
22. Tenant’s Property. Any property brought onto the demised premises by the
Tenant shall be at the sole risk of the Tenant. By signing this Lease the Tenant agrees that
upon
surrender or abandonment of the demised premises, as defined by Florida Statutes, the
Landlord
shall not be liable or responsible for the storage or disposition of the Tenant’s personal
property.
23. Destruction of Premises. If the Premises shall be destroyed or damaged by fire or
other casualty during the term of this Lease, to the extent so that said premises shall be
unfit, in
whole or in part, for the occupancy thereof by Tenant, the Landlord shall have the right to
rebuild and repair within 120-days after casualty the leased premises to substantially
conform to
the premises as were in existence prior to the damage or destruction, and to apply the
proceeds of
insurance provided by Tenant against the costs thereof; provided that in the event Landlord
elects
not to restore or rebuild said premises that Landlord shall furnish to Tenant written notice
of such
election not to proceed within fifteen (15) days of the date of damage or destruction to said
premises.
If Landlord elects not to restore or rebuild and has furnished the notice as provided
herein, then Tenant shall have the right but not the obligation to restore or rebuild said
premises and shall have full use of the total insurance proceeds available by virtue of the
damage or destruction to the premises.
If Tenant elects to restore or rebuild said premises, Tenant shall furnish to
Landlord
notice in writing of such election within fifteen (15) days from date of receipt of
Landlord’s notice not to restore or rebuild. If Tenant rebuilds the rent shall continue as
before.
If neither Landlord nor Tenant elects to restore or rebuild within the time provided for
herein, then this Lease shall terminate and Tenant shall vacate the premises within thirty (30)
days from date of such termination and the insurance proceeds shall be the Landlord’s.
If such restoration or rebuilding shall be performed by Landlord or Tenant, such work shall
be commenced not later than thirty (30) days after the event of such damage or destruction if
performed by Landlord, and within fifteen (15) days of the receipt of election not to restore or
rebuild if performed by Tenant. The party performing such restoration or rebuilding shall
thereafter prosecute the work with diligence to completion, the same in any event to be
completed within a reasonable time.
In the event of total destruction of the building improvements or such damage thereto as
shall render the same unfit for the carrying on of Tenant’s business on the demised premises, the
payment of rent shall cease until the building is rebuilt or until both parties elect not to
rebuild. Rental shall again commence in full if and when the improvements shall have been
substantially completed.
In the event of partial destruction or such damage that the business of Tenant may continue
to be carried on without substantial interruption, and with or without temporary repair, the
rent shall continue and not be abated.
In the event of the partial destruction or damage to the premises so that the business of
Tenant may be carried on but with substantial impairment, the rent shall be adjusted pro rata to
xxxxx that part of the rent attributable to the unfit portion for that period of time.
24. Condemnation. If the whole of the demised premises shall be taken for any public
or quasi public use under any statute by right of eminent domain, or if any part of the demised
premises is so taken and the part not so taken is insufficient for the operation of Tenant’s
business, this Lease and the term granted by it shall cease and expire as respects the entire
demised premises on the date when possession shall be given by Tenant. All rents and other
charges shall be prorated and paid to that date, and Landlord shall refund to Tenant all rents
and other charges paid by Tenant in respect of any periods subsequent to such date. The Landlord
shall be entitled to all proceeds of any condemnation; provided, however, that this provision
shall not prohibit Tenant from prosecuting by separate action against the condemning authority
any claim it may have for business damages.
25. Construction Liens. The Tenant shall not do or suffer anything to be done
whereby the land and building of which the demised premises are a part may be encumbered by any
construction or mechanic’s lien, and shall, whenever and as often as any construction or
mechanic’s lien is filed against the said land and building purporting to be for labor or
materials furnished or to be furnished to the Tenant, discharge the same of record within ten
(10) days after the date of filing. Notice is hereby given that the Landlord shall not be liable
for any labor or materials furnished or to be furnished to the Tenant upon credit, and that no
construction or
mechanic’s or other lien for any such labor or materials shall attach to or affect the
reversionary or other estate or interest of the Landlord in and to the land and building of
which the premises herein demised are a part.
26. Landlord’s Lien. Except for purchase money liens and liens which are perfected
prior to the time the personal property comes onto the premises, the Landlord shall have the
first
lien paramount to all others on every right and interest of the Tenant in and to this Lease
and on
the buildings now or hereafter constructed on the premises, and on the personal property of
the
Tenant which may be contained within the premises, which lien is granted for the purpose of
securing the payment of rent, taxes, assessments, charges, liens, penalties and damages herein
covenanted to be paid by the Tenant, and for the purpose of securing the performance of any
and
all of the covenants, conditions and obligations arising under this Lease, the same to be
performed and observed by the Tenant.
27. Subordination. This Lease shall be subject and subordinate at all times to any
and
all mortgages that now or may encumber the demised premises and to any renewal, modification,
consolidation, replacement, and extension of any such mortgage; provided that the holder of
any
such mortgage shall enter into a written agreement with Tenant to the effect that in the
event of
foreclosure or other action taken under the mortgage by the holder of the mortgage, this
Lease
and the rights of the Tenant under it shall not be disturbed but shall continue in full force
and
effect so long as Tenant shall not be in default. The Tenant shall execute any instrument
subordinating the interest of Tenant under this Lease to the lien of such mortgage that
Landlord
or the mortgagee may at any time desire, and Tenant shall duly comply with all of the
provisions
of any mortgage to which this Lease is subordinate, except the payment of interest and
principal
thereunder.
28. Assignment, Sublease, or License. Tenant shall not assign or sublease the premises,
or any right or privilege connected therewith, or allow any other person except agents and
employees of Tenant to occupy the premises or any part thereof without first obtaining the
written consent of Landlord. A consent by Landlord shall not be a consent to a subsequent
assignment, sublease, or occupation by other persons. An unauthorized assignment, sublease, or
license to occupy by Tenant shall be void and shall terminate the lease at the option of
Landlord. The interest of Tenant in this Lease is not assignable by operation of law without
the written consent of Landlord. Landlord agrees that written consent will not be unreasonably
withheld regarding assignment or subleasing of the premises provided that Tenant shall at all
times remain primarily liable. For the purpose hereof, the transfer of a majority of the issued
and outstanding capital stock of any corporate Tenant, or of a majority of the total interests
of any partnership Tenant, however accomplished, shall be deemed to be an assignment of this
Lease.
29. Hazardous
Substances.
(a) Indemnification. Tenant hereby agrees to indemnify Landlord and hold
Landlord harmless from and against any and all losses, liabilities, damages, injuries, expenses,
and costs, including, without limitation, reasonable attorneys’ fees, of any settlement,
judgment, or claims of any and every kind whatsoever paid, incurred, suffered by, or asserted
against,
Landlord, by any person, entity or governmental agency, for, with respect to, or as a direct or
indirect result of, the presence on or under, or the escape, seepage, leakage, spillage,
emission, discharge or release from the Premises of any Hazardous Substances.
This indemnification shall specifically include, without limitation, any losses,
liabilities, damage, injuries, expenses, and costs, including, without limitation, reasonable
attorney’s fees, of any settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act, the Superfund Amendment
and Reauthorization Act, the Resource Conservation Recovery Act, the Federal Water Pollution
Control Act, the Federal Environmental Pesticides Act, the Clean Water Act, the Clean Air Act,
any so called federal, state or local “Superfund” or “Superlien” statute, or any other Federal
or State statute, law, ordinance, code, rule, regulation, order or decree (all as amended)
regulating, relating to or imposing liability or standards of conduct concerning any Hazardous
Substances.
Provided, however, the indemnification herein, must arise out of (i) the presence or
suspected presence on or under the Premises of any Hazardous Substances, or any release or
discharge of any Hazardous Substances on, under or from the Premises, which condition exists
during the term of this Lease, as the same may be extended, and which are caused by the Tenant,
its employees, agents or invitees, or (ii) any activity carried on or undertaken on or off the
Premises during the term of the Lease, as the same may be extended, whether by Tenant or any
employees, agents, contractors or subcontractors of Tenant, in connection with the handling,
treatment, removal, storage, decontamination, clean-up, transport or disposal of any Hazardous
Substances located in, on or under the Premises.
(b) Definition of Hazardous Substances. For purposes of this Lease, the term
“Hazardous Substances” shall mean and include those elements or compounds which are
contained in the list of hazardous substances adopted by the United States Environmental
Protection Agency (“EPA”) and the list of toxic pollutants designated by Congress or the EPA
or
defined by any other federal, state or local statute, law, ordinance, code, rule, regulation,
order
or decree regulating, relating to, or imposing liability (including strict liability) or
standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or
at any time hereinafter in effect.
(c) Notification. If Tenant receives any notice or knowledge of (i) the
occurrence of any event involving the use, spill, release, leak, seepage, discharge or
cleanup of
any Hazardous Substance, or (ii) any complaint, order, citation or other notice with regard
to air
emissions, water discharges, or any other environmental, health or safety matter affecting
Tenant
or the Premises (an “Environmental Complaint”) from any person or entity (including, without
limitation, the EPA) then Tenant shall immediately notify Landlord orally and in writing of
any
such notice, and, if the Environmental Complaint is in writing, shall immediately deliver a
copy
of the Environmental Complaint to Landlord.
(d) Landlord’s Right to Act. Landlord shall have the right, but not the
obligation, to enter onto the Premises or to take such other actions as it deems necessary
or
advisable to cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any
such Hazardous Substance or Environmental Complaint following receipt of any notice from any
person or entity (including, without limitation, the EPA) asserting the existence of any
Hazardous Substance or an Environmental Complaint pertaining to the Premises or any part thereof
which, if true, could result in an order, suit or other action against Landlord and/or which, in
the sole opinion of Landlord, could have an adverse impact on the value of the Premises or
otherwise jeopardize Landlord’s ownership of the Premises. Any funds of Landlord used for any
purpose referred to in this subparagraph shall become additional rent and shall be payable to
Landlord on demand.
(e) Survival. The provisions of this Section shall survive the termination
of this Lease.
30. Default or Breach. Each of the following events shall constitute a default
or breach of this Lease by Tenant:
(a) If Tenant shall file a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act, or shall voluntarily take advantage of any such act
by
answer or otherwise, or shall make an assignment for the benefit of creditors.
(b) If involuntary proceedings under any bankruptcy law or insolvency act
shall be instituted against Tenant, or if a receiver or trustee shall be appointed for all or
substantially all of the property of Tenant, and such proceedings shall not be dismissed or
the
receivership or trusteeship vacated within twenty (20) days after the institution or
appointment.
(c) If Tenant shall fail to pay Landlord any rent or additional rent when the
rent shall become due and shall not make the payment within five (5) days after the date said
rent
shall be due.
(d) If Tenant shall fail to perform or comply with any of the conditions of this
Lease other than the nonpayment of rent and if the nonperformance shall continue for a period
of
twenty (20) days after notice thereof by Landlord to Tenant, or, if the performance cannot be
reasonably had within the twenty (20) day period, Tenant shall not in good faith have
commenced
performance within the twenty (20) day period and shall not diligently proceed to completion
of
performance.
(e) If Tenant shall vacate or abandon the demised premises.
(f) If this Lease or the estate of Tenant hereunder shall be transferred to or
shall pass to or devolve on any other person or party, except in the manner herein permitted.
(g) If Tenant fails to take possession of the demised premises on the term
commencement date.
31. Remedies for Tenant’s Default. If the Tenant shall make any default
hereunder, the Landlord shall have the following remedies in its sole discretion in addition to
any other
remedies permitted at law or in equity:
(a) Bring suit for the breach, which has occurred without affecting the
obligations of the parties to perform the balance of the lease.
(b) Declare the entire rental for the balance of the term of this Lease due and
payable.
(c) Reenter the premises without being liable for damage therefor, and relet
the property, or any part thereof, or operate the same, with or without the Tenant’s
furnishings,
for the balance of the term and receive rents therefor and apply the same first to the payment
of
expenses of reasonable redecorating and making necessary repairs to the premises, attorneys’
fees, brokers’ commissions, advertising and all other reasonable expenses of the Landlord in
reentering the premises and reletting the premises; and second, to the payment of the rent
hereunder.
(d) Terminate this Lease by giving the Tenant written notice of termination
which shall not excuse breaches of this Lease which have already occurred. Termination
may
occur only by written notice.
32. Landlord’s Right to Perform. Except as otherwise provided herein, if the Tenant
fails to perform any of the covenants required to be performed by Tenant, and such failure
continues after notice as provided in paragraph 31 herein, then Landlord may, but shall not
be
required to perform such act or thing with respect to which Tenant is in default, at the
expense of
Tenant. Tenant shall repay such expense to Landlord. Any act or thing done by Landlord
pursuant to the provisions hereof shall not be construed a waiver of any such default by
Tenant or
waiver of any covenant, term, or condition of this lease, or of any other right or remedy of
Landlord. Notice to Tenant shall not be required if the period for notice provided in
paragraph
31 or any other paragraph of this lease will jeopardize the premises or the rights of the
Landlord.
33. Force Majeure. If any part of the demised premises is destroyed or damaged by
fire or any other cause, or if any other casualty or unforeseen occurrence renders the
fulfillment
of this Lease by the Landlord impossible, then this Lease shall be terminated, the Tenant
shall be
liable for rent, charges for support personnel and services, additional utility charges which
have
accrued only as of the time of termination; provided, however, if such impossibility of
performance shall be due to the act or omissions of Tenant, its agents, employees, members,
licensees or invitees, then Tenant shall be liable for the entire rent charged hereunder as
well as
all accrued charges in addition to such other damages as may result from such acts or
omissions.
Tenant hereby waives any claim for damages or compensation from Landlord on account of such
termination.
34. Late Fee and Interest on Overdue Rent. Tenant shall pay a late fee of $75.00 for
each installment of rent that is more than ten (10) days overdue. Such late fee shall compensate
Landlord for additional processing fees involved. All rent overdue shall bear interest at the
rate of twelve percent (12%) per annum, after it has been due and payable for ten (10) days.
35. Attorneys’ Fees. In the case of the failure of either party hereto to perform and
comply with any of the covenants and conditions hereof within the time herein specified, and
the
said rent, or damages for the breach of any covenant or condition, is enforced or collected by
suit
or through an attorney at law, whether suit be brought or not, the party so failing to perform
and
comply hereby agrees to pay to the other party hereto a reasonable sum of money for attorneys’
fees, together with the costs, charges, and expenses of such collection or other enforcement
of
rights in any suit, or otherwise. The prevailing party in any such litigation shall be
entitled to
attorneys’ fees from the non-prevailing party.
36. Waiver. The failure of either of the parties hereto in one or more instances to
insist upon strict performance or observance of one or more of the covenants or conditions
hereof, or to exercise any remedy, privilege, or option herein conferred upon or reserved to
such
party, shall not operate and not be construed as a relinquishment or waiver for the future of
such
covenant or condition or of the right to enforce the same or to exercise such privilege,
option, or
remedy, but the same shall continue in full force and effect.
37. Surrender of Possession. Tenant shall, on the last day of the term, or on
earlier
termination and forfeiture of the lease, peaceably and quietly surrender and deliver the
demised
premises to Landlord free of subtenancies, including all buildings, additions, and
improvements
constructed or placed thereon by Tenant, except movable trade fixtures, all in good condition
and
repair. Tenant shall, if not in default hereunder, remove its equipment, goods, trade
fixtures and
effects and those of all persons claiming by, through or under it, provided that such removal
does
not cause irreparable damage to the premises. Any trade fixtures or personal property not
used
in connection with the operation of the demised premises and belonging to Tenant, if not
removed at the termination, and if Landlord shall so elect, shall be deemed abandoned and
become the property of Landlord without any payment or offset therefor. Landlord may remove
such fixtures or property from the demised premises and store them at the risk and expense of
Tenant if Landlord shall not so elect. Tenant shall repair and restore all damage to the
demised
premises caused by the removal of equipment, trade fixtures, and personal property. Tenant,
if
requested by Landlord, shall remove all business signs placed on the premises by Tenant and
restore the portion of the premises on which they were placed in the same condition as when
received.
38. Holding Over. The failure of Tenant to surrender the demised premises on the
termination of the lease term, or any renewals thereof, and the subsequent holding over by
Tenant, with or without the consent of Landlord, shall result in the creation of a tenancy at
will at a monthly rental of the last monthly rental due under the terms of this Lease payable
on the first day of each month in which the Tenant holds over. Should a tenancy at will be
created under the provisions of this section, the tenancy may subsequently be terminated by
either party hereto by that party giving thirty (30) days’ written notice of the intention to
terminate the tenancy to the other party to this Lease. This provision does not give Tenant any
right to hold over at the expiration of this term, and all other terms and conditions of this
Lease shall remain in force during any tenancy at will created by any holding over by Tenant.
39. Notices. All notices to be given with respect to this Lease shall be in writing.
Notices may be hand delivered, may be sent by registered or certified mail, postage prepaid and
return receipt requested, or may be sent by overnight delivery by a commercial delivery service
to the party to be notified at the address set forth herein or at such other address as either
party may from time to time designate in writing.
Notices shall be deemed given when actually received; provided, however, notice if not
sooner received shall be deemed to have been given three (3) days after it is deposited in the
United States mails if deposited in the manner prescribed herein. Nothing herein shall be
construed to preclude personal service of any notice in the manner prescribed for personal
service of a summons or other legal process.
40. Total Agreement; Applicable to Successors. This Lease contains the entire
agreement between the parties and cannot be changed or terminated except by a written
instrument subsequently executed by the parties hereto. This Lease and the terms and
conditions
hereof apply to and are binding upon the successors and assigns of both parties.
41. Applicable
Law. This Lease shall be governed by and construed in accordance
with the laws of the State of Florida.
42. Time of the Essence. Time is of the essence and in all provisions of this
Lease.
43. Severability. If any term or provision of this Lease shall to any extent be held
to
be invalid or unenforceable under the applicable law, the remaining provisions of this Lease
shall
not be affected thereby but shall remain in full force and effect.
44. Brokerage. None.
45. Special
Clauses.
(a) Tenant Improvements. Landlord shall prepare plans and specifications for
improvements to the Premises (the “Tenant Improvements”) which plans and specifications shall be
approved by Landlord and Tenant within fifteen (15) days from execution of this Lease (the
“Improvement Plans”). Landlord shall cause the Premises to be improved in accordance with the
Improvement Plans. Landlord shall pay for the cost of such Tenant Improvements up to an allowance
of $150,000. Should the cost of improving the Premises in accordance with the Improvement Plans
exceed such allowance or should Tenant make changes to the Improvement Plans, which increases the
cost of Tenant Improvements, Tenant shall pay such excess costs at or prior to Tenant’s occupancy
of the Premises. Landlord shall be responsible for increase or excess costs of Tenant
Improvements to the extent caused by changes to the Improvement Plans required by governmental
authority and not initially included in the design prepared by Landlord’s contractor.
(b) Rules and Regulations. Tenant shall abide by all rules and regulations
governing the Property, which rules and regulations shall be established by Landlord.