EXHIBIT 10.1
LEASE
THIS LEASE, ("Lease") dated as of this 16th day of May , 2000 , is made by and
between AP- ADLER OAKES, LTD. (hereinafter referred to as "Landlord"), and The
Nationwide Companies, Inc. (hereinafter referred to as "Tenant").
Landlord and Tenant, in consideration of the following mutual covenants, have
agreed:
1. DEMISE. Landlord does lease to Tenant, and Tenant does lease from Landlord,
the real property and improvements described as 2307 square feet, more or less.
Reference to square footage of the Leased Premises is approximated. Terms and
conditions of this lease shall not be modified or affected if actual square
footage differs from the approximated square footage. Located as shown on the
attached Exhibit "A" ("Premises") 0000 XXXXX XXXX, XXXXX 000 , XXXXX, XXXXXXX
00000 within the property known as NEW TOWN COMMERCE PARK. (the "Property"). As
an appurtenance to the Premises, Landlord grants to Tenant a revocable,
nonexclusive license to use, in common with others, all areas within the
Property designated by Landlord as Common Facilities. The Premises shall be used
and occupied by Tenant solely as Office/Warehouse. Tenant shall be solely
responsible to determine if the intended use complies with all governmental laws
and regulations. Landlord, by execution of this Lease or otherwise, makes no
representation that the intended use complies with governmental regulations.
The Leased Premises consists of approximately 1023 square feet of office space
and approximately 1284 square feet of warehouse space for a total of 2307 square
feet.
2. TERM. The Term of this Lease shall be for a period of five (5) years,
beginning August 1, 2000 ("Commencement Date") and ending July 31, 2005,
("Termination Date"). If this Lease is executed before the Premises becomes
available, if any present tenant or occupant of the Premises holds over, or
Landlord cannot deliver possession of the Premises on/or prior to the
Commencement Date of this lease, Landlord shall not be deemed to be in default
hereunder, and Tenant agrees to accept possession of the Premises at such time
as Landlord is able to deliver the same and the Commencement date shall be
adjusted Forward accordingly; provided, however, Tenant shall not be obligated
hereunder unless Landlord is able to deliver the Leased Premises within ninety
(90) days of the Commencement Date (unless delay is caused by Tenant).
3. LANDLORD CONTROL OF COMMON AREAS: All common areas provided by Landlord for
the general use, in common, of tenants, their officers, agents, employees and
customers shall at all times be subject to the exclusive control and management
of Landlord and Landlord may do and perform such acts in the areas as, in its
good business judgment, it deems to be advisable.
4. DELIVERY OF PREMISES: Landlord has constructed the Premises prior to
execution of this Lease and Tenant certifies that it has inspected the Premises
and accepts it as is unless specifically set out to the contrary in Exhibit "C"
attached hereto. Tenant shall not perform any work and/or improvements to the
Premises without Landlord's written approval. Any work or improvement shall
be performed in accordance with Exhibit"D" hereto and shall comply with all
governmental rules, regulations and requirements. Landlord reserves the right to
make repairs, alterations and/or additions to the Premises or Property as it
reasonably believes to be necessary and proper.
5. BASE RENT. Tenant agrees to pay Landlord the following amounts as the Base
Rent for the Premises:
Total Annual Monthly
Period Base Rent Base Rent
-------------- ------------ ----------
8/1/00-7/31/01 $31,144.50 $2,595.38
8/1/01-7/31/02 $32,390.28 $2,699.19
8/1/02-7/31/03 $33,682.20 $2,806.85
8/1/03-7/31/04 $35,020.26 $2,918.36
8/1/04-7/31/05 $36,427.53 $3,035.63
Base Rent, plus all applicable sales, excise and uses taxes imposed thereon,
shall be payable in consecutive monthly installments, in advance, without
demand, on the first day of each and every month during the term of this Lease.
Tenant shall pay the Base Rent without deduction, diminution or set-off.
If possession of the Premises is delivered to Tenant prior to the Commencement
Date, Tenant shall pay a pro-rata amount of rent for such period and otherwise
comply with the terms of the Lease. All rent shall be payable to Landlord at the
address set forth in this Lease, unless Landlord directs otherwise in writing.
Any installment of rent not received within five days of its due date shall be
subject to a late charge of five percent (5%).
6. ADDITIONAL RENT. In order to give Landlord a lien of equal priority with
Landlord's lien for rent, any and all sums of money or charges required to be
paid by Tenant under this Lease, whether or not so designated, shall be
considered additional rent, payable when billed or otherwise required under this
Lease.
7. OPERATING COSTS. In addition to the base rent and other charges specified in
this Lease, Tenant agrees to pay Landlord, Tenant's proportionate share of the
operating costs of the common areas and of the building within which the
Premises are located ("the Property") less the base amount. For purposes of this
provision, the Property's operating costs shall include but not be limited to
water, sewer, common area exterior electric, dumpster, fire alarm charges,
parking area maintenance, lawn maintenance, management fees, operation and fair
market rental expenses for FlexxspaceSM accommodations of any kind and nature
and any other expense item associated with the ongoing maintenance, repair and
operation of the Property and its common facilities (excluding insurance and
real estate taxes).
The amount of operating costs attributable to the Property shall be calculated
on a pro-rata basis. Tenant's proportionate share of the operating costs
attributable to the Property is .0156, and is calculated upon the ratio of the
area of the Premises (square feet) to the total area of the property in
which the Premises is located. Base amount shall be the sum of the property
operating expenses in the base year as set out in paragraph 14.
Tenant's share of the operating cost less operating costs for the base year may
be required to be paid by Tenant as additional rent in equal monthly
installments, plus applicable tax, based upon Landlord's written estimate of the
operating costs for the following calendar year. At the end of each calendar
year, Landlord shall deliver to Tenant a statement showing the amount of the
Property's operating costs for the prior calendar year, and further showing
Tenant's share thereof. If the total of the monthly payments made by Tenant for
the period is less than Tenant's actual proportionate share for the period, then
Tenant shall pay any deficiency to Landlord within thirty (30) days of receipt
of written notice thereof. If the total monthly payments made by Tenant for the
period are more than Tenant's proportionate share for the period, then Landlord
shall credit such overpayment against future monthly payments.
8. SPECIAL ASSESSMENTS. For each Calendar Year or Partial Calendar Year, Tenant
will pay to Landlord, in addition to Base Rent as further Additional Rent,
Tenant's proportionate share of any special assessments assessed against the
Property, with applicable tax, if any. The payment of any such special
assessments shall be made by Tenant on a monthly basis, concurrently with Base
Rent. Tenant's proportionate share of any such special assessment shall be the
proportionate share stated in paragraph 7.
9. REAL ESTATE TAXES. For each Calendar Year or partial Calendar Year, Tenant
will pay to Landlord, in addition to Base Rent as further Additional Rent, a
proportionate share of all ad valorem and real estate taxes levied by any lawful
authority against the Property less ad valorem and real estate taxes of the
Property for the base year, which proportionate share shall be .0156. Landlord
may estimate the amount in the manner set out in Paragraph 7.
10. TENANTS PROPERTY. Tenant is responsible for payment of all taxes assessed
against any leasehold interest or personal property of Tenant. Landlord shall
not be responsible for any damage to personal property of Tenant or others on
the Premises caused by any reason whatsoever.
11. TENANT RESPONSIBILITY. All alterations, decorations and improvements made by
or for Tenant shall remain the property of Tenant. Upon expiration of this
Lease, Landlord has the option of requiring Tenant to remove the same and
restore the Premises to the way it was before the improvements. If Tenant does
not do so, Landlord may keep the alterations, etc. and/or the Premises to its
original condition. Tenant shall be responsible for all cost of same as well as
any damage for any delay resulting from violation of this paragraph.
12. OTHER CHANGES. Tenant on behalf of itself ,its employees, agents and
subtenants shall be obligated to pay and shall pay all licenses, parking impact
fees, other impact fees, assessments and costs associated with and/or
attributable to the operations of the Tenant, and/or on the Premises when such
costs, assessments and fees become due and payable. Tenant shall indemnify and
hold Landlord harmless for any damages, claims, costs or liability (including
fees and costs) arising out of or relating to Tenants failure to comply with
this paragraph.
13. INSURANCE. For each Calendar Year or partial Calendar Year, if insurance is
paid per calendar year, Tenant will pay to Landlord, in addition to Base Rent as
further Additional Rent, Tenant's proportionate share of Landlord's insurance
premiums on or in respect of the Property, including but not limited to public
liability, property damage, all risk perils, rent and flood insurance, if
carried by Landlord less said insurance premiums for the base year. Tenant's
proportionate share shall be that stated in paragraph 7. Landlord may estimate
the amount in the manner set out in Paragraph 7.
14. PAYMENT. For the first Calendar Year or Partial Calendar Year, the estimated
monthly payment under paragraphs 7, 9 and 13 is N/A. The base year for
computation of proportionate share and percentage share is 2001.
15. GUARD/PATROL SERVICES. Landlord, in its sole discretion, determination and
option may, but is not required to enter into a contract or contracts or
otherwise provide or make arrangement for the providing of guard, patrol and/or
security which may include security guards and/or electronic devices and/or a
guard gate and/or gate house. Tenant shall pay its proportionate share for the
expense of the services. Landlord shall in no way be responsible for the
performance or non- performance of the obligations of guard/patrol/security
personnel or service, including but not limited to negligent or intentional
acts, and Tenant hereby releases Landlord from any claims of any nature
whatsoever in connection therewith.
16. SECURITY DEPOSIT. Landlord acknowledges that it has received from Tenant the
sum of $ 2,595.38 which is to remain on deposit, without liability for interest,
with Landlord during the term of this Lease and any extensions as security for
the payment of rent and full and faithful performance by Tenant of the terms of
this Lease. In the event of any default, the sum shall be retained by Landlord
and may be applied toward damages arising from the default. The deposit shall
not be construed as liquidated damages. Upon yielding of the Premises at the
termination of this Lease, and provided no default or nonpayment has occurred,
the security deposit shall be returned to the Tenant. If Landlord conveys its
interest under this Lease, the deposit, or the part not previously applied,
shall be turned over to Landlord's grantees or assignees. Tenant shall release
Landlord from any liability with respect to the deposit and shall look solely to
the grantee or assignee. This provision shall also apply to subsequent grantees
or assignees.
Tenant shall not assign, pledge, mortgage or otherwise hypothecate its interest
in the security deposit.
This sum is not made in payment of rent. If the deposit, or any portion thereof,
is appropriated and applied by Landlord for the payment of overdue rent or other
sums due and payable to Landlord by Tenant then Tenant shall, upon written
demand by Landlord, remit to Landlord a sufficient amount in cash to restore the
security to the original sum deposited, and Tenant's failure to do so within
five (5) days after receipt of such demand shall constitute a default under this
Lease.
17. UTILITIES. Tenant shall pay for all utilities delivered to the Premises,
including electricity, gas, heat, cooling, telephone and all other utilities and
all taxes or charges on such utility services. Landlord shall not be liable for
any interruption or failure in the supply of any utilities to the Premises nor
shall rent be abated during such failure or interruption.
18. TENANT COVENANTS. Tenant agrees that: (a) Tenant will pay the rent and other
charges herein reserved at the times and in the manner aforesaid; (b) it will
not use or permit the Premises to be used for any illegal, unauthorized or
improper purposes, nor permit any disturbance, noise or annoyance detrimental to
the Premises or its neighbor; (c) it will not make any alterations or
improvements upon the Premises without the written consent of Landlord (d) it
will not undertake any alterations to the Premises which violate the ADA and it
will indemnify and hold Landlord harmless from any and all claims, damages or
suits that may be brought as a result of Tenant's alleged violation of the ADA;
(e) it will permit Landlord or its agents or employees at all reasonable times,
to enter into the Premises and (1) view the condition thereof; (2) show
prospective purchasers and/or lessees; (3) make additions, alteration and/or
improvements as deemed necessary; (f) it will, at its own expense, keep and
maintain the interior of the Premises, including but not limited to electrical
and HVAC, in good condition and repair, so as to tender it to Landlord at lease
termination, broom clean, and in the same condition as received, ordinary wear
and tear, damage by fire or other casualty, and the elements or acts of God
excepted; (g) it shall, at its own cost and expense, replace any plate glass
which may be broken during the term of this lease; (h) it pledges all personal
property on the Premises as collateral for performance under this Lease, and
grants Landlord a lien on such property; and (i) it will fully and completely
comply with any and all rules and regulations applicable to the Premises.
19. LANDLORD COVENANT. Provided Tenant is not in default under the Lease and
subject to conditions beyond the control of Landlord, including but not limited
to "acts of God," Landlord agrees that it will keep and maintain the structural
portions of the Premises, including roof and walls.
20. LIABILITY FOR DAMAGES. Landlord shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain, or leaks from any part of the Premises or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatever nature.
Landlord shall not be liable for any such damage caused by other tenants or
persons in the Premises, occupants of adjacent property, of the Project, or the
public, or caused by operations in construction of any private, public or
quasi-public work. Landlord shall not be liable in damages or otherwise for any
latent defect in the Premises or in the building of which they form a part.
21. FIRE INSURANCE. Tenant agrees that, at its own expense and cost, it shall
procure and continue to in force, in the names of Landlord, Tenant and
Landlord's managing agent, general liability insurance against any and all
claims for injuries to persons or property occurring in, upon or about the
Premises, including all damage from signs, glass, awning, fixtures or other
appurtenances, now or hereafter upon the Premises, during the term of this
lease. The insurance shall be an amount not less than $1,000,000 of injuries to
persons in one accident and not less than $300,000 for injury to one person, and
$25,000 for damage to property. The insurance shall be written in a company or
companies authorized to engage in the business of general liability insurance in
the State of Florida, shall be cancelable, in whole or in part, only after
giving Landlord and its lender written notice of its intention to do so at least
thirty (30) days in advance, shall include Landlord and all mortgagees as
additional insured. There shall be delivered to the Landlord customary
certificates evidencing the insurance is in force.
22. ADDITIONAL COST FOR INSURANCE. If the insurance rates applicable to
Landlord's fire and extended coverage insurance covering the entire building of
which the Premises are a part are increased by reason of any use of the premises
made by Tenant, then Tenant shall pay Landlord the increase. The increase shall
be paid on demand upon submission to the Tenant of evidence of the rate
increase.
23. INDEMNITY. Tenant hereby agrees to pay the costs of Landlord's defense, and
to pay, indemnify and save free and harmless Landlord, and/or any fee owner or
ground or underlying Landlord of the property from and against (a) any and all
claims, demands, fines, suites, actions, proceedings, orders, decrees and
judgments of any kind or nature(b) and from damages whether compensatory,
punitive or otherwise, by or in favor of anyone whomsoever and from and against
any and all costs and expenses, including attorney's fees, appellate and
otherwise, resulting from or in connection with (1) loss of life, bodily or
personal injury or property damage arising, directly or indirectly, out of or
from or on account of any occurrence in, upon, or from the demised premises or
occasioned or wholly or in part through the use and occupancy of the demised
premises or any improvements therein or appurtenances thereto, or (2) by any
use, act contractor or license of Tenant, or their respective employees, agents,
contractors or invitees in, upon at or from the demised premises or its
appurtenances or any common areas of the Property.
24. WAIVER OF RIGHT OF SUBROGATION. Landlord and Tenant hereby grant to each
other a waiver of any right of subrogation any insurer of one party may acquire
against the other by virtue of payment of any loss under such insurance, such
waiver to be effective only so long as each is empowered to grant such waiver
under the terms of the insurance policy or policies involved.
25. FIRE OR OTHER CASUALTY. If the Premises is damaged by fire or otherwise to
such extent so as to interfere with their use by Tenant, the rent payable for
the period commencing on the date on which Tenant gives Landlord written notice
of such damage, and ending on the date on which restoration of the Premises is
made usable would be reduced by an amount which bears the same ratio to the
floor space leased to Tenant prior to such damage. If the Premises is totally
destroyed or rendered untenantable, Landlord shall have the right, but not the
obligation, to render the Premises tenantable by repairs within ninety days (90)
from the date that insurance claims of Landlord and Tenant shall have been
settled and Landlord shall be free of all restrictions as to proceeding with the
work of repair or rebuilding. If the premises are not rendered tenantable within
said period, either party may elect to cancel this Lease, and in the event of
such cancellation, rent shall be paid only to the day of the fire or casualty.
Full rent shall resume on the sooner of (a) 15 days after notice from Landlord
to Tenant that Premises is substantially repaired or (b) date Tenant's business
operations are restored to the entire Premises. Notwithstanding the above,
Landlord may elect to cancel the Lease within ninety (90) days from damage
occurring by giving thirty (30) days notice of cancellation to Tenant.
26. SIGNS. Tenant shall not exhibit, inscribe, paint or affix any sign,
advertisement, notice or other lettering on any part of the outside of the
Premises or of the building of which the Premises are a part, or inside the
Premises if visible from the outside, without the written consent of Landlord.
If consent is given, Tenant further agrees to maintain such sign, lettering,
etc. as may be approved in accordance with all city, county, and state laws,
ordinance or requirements and in good condition and repair at all times.
27. ATTORNMENT. In the event any proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under any mortgage made by the
Landlord covering the Premises or in the event a deed is given in lieu of
foreclosure of any such mortgage, if requested to do so, Tenant shall attorn to
the purchaser or grantee in lieu of foreclosure upon any such foreclosure or
sale and recognize such purchaser or grantee in lieu of foreclosure as the
Landlord under this Lease.
28. SUBORDINATION. This Lease is subject and subordinate to the lien of any and
all mortgages which may now or hereafter encumber or otherwise affect the
Premises. Tenant shall, at Landlords, request, promptly execute a certificate or
other document confirming such subordination. Tenant shall attorn to the
successor to Landlord's interest herein, if requested to do so by such
successor, and to recognize such successor as the Landlord under this Lease.
Tenant agrees to execute and deliver upon the request of Landlord any instrument
evidencing such attornment.
29. ESTOPPEL CERTIFICATE. Tenant agrees, at any time upon not less than five (5)
days prior written notice by Landlord, to execute a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications stating such modifications), (ii) stating the
dates to which the rent and any other charges here under have been paid by
Tenant, (iii) stating whether or not, to the best knowledge of Tenant, Landlord
is in default in the performance of this Lease, and if so, specifying each such
default of which Tenant may have knowledge, and (iv) stating the address to
which notices to Tenant should be sent, (v) such other customary information as
may be necessary and proper.
30. CONDEMNATION. If the entire Premises are taken by eminent domain, this Lease
shall terminate.
In the event of any taking under the power of eminent domain which does not take
the entire Premises but which interferes substantially with the use of the
balance of the Premises by Tenant, the rent payable by Tenant shall be abated
commencing on the date on which possession is taken by the condemning authority,
in the proportion which the floor space so taken or made unusable bears to the
floor space leased to Tenant prior to the taking.
If the taking is of land only and does not interfere substantially with the use
of the balance of the Premises by Tenant, there shall be no abatement of rent.
If the taking does not take the entire Premises, Landlord shall (a) promptly, at
its own cost and expense, restore the balance of the Premises to as near their
former condition as circumstances will reasonably permit (b) inform Tenant of
its intent not to restore the Premises, thereby canceling the Lease.
All damages awarded for any taking of all or any part of the improvements owned
by Landlord under the power of eminent domain shall belong to Landlord. This
provision shall not prevent Tenant from claiming and recovering from the
condemning authority compensation for taking of Tenant's tangible property or
for Tenant's loss of business, business interruption or business removal and
relocation.
31. LIMITATION ON RESTORATION. When Landlord is obligated or elects to restore
or repair the Premises under this Lease, such obligation or election does not
include the restoration or repair of personal property of Tenant, including but
not limited to equipment and trade fixtures.
32. COMPLIANCE WITH THE LAW. Tenant shall not use the Premises or permit
anything to be done in or about the Premises, which will in any way conflict
with any law, statute, ordinance or governmental rule, regulation or requirement
now in force or which may hereafter be enacted or promulgated. Tenant shall at
its sole cost and expense promptly comply with all laws, statutes, ordinances
and governmental rules, regulations or requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Premises, excluding structural
changes not related to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction or the admission of Tenant in an
action against Tenant, whether Landlord be a party thereto or not, that Tenant
has violated any law, statute, ordinance or governmental rule, or requirement,
shall be conclusive of the fact as between Landlord and Tenant.
33. WASTE OR NUISANCE. Further, Tenant shall not commit or suffer to be
committed any waste upon the Premises or any nuisance or other act or thing
which may disturb the quiet enjoyment of any other tenant in the Property, or
which may adversely affect Landlord's interest in the Premises or the Property.
34. LIENS. Tenant shall keep the Premises and the property in which the Premises
are situated, free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. Failure to do so shall constitute a
default hereunder without notice or grace period. The interest of Landlord shall
not be subject to liens for improvements made by Tenant. Tenant shall notify
every contractor making improvements of this provision. The parties agree to
execute, acknowledge and deliver without charge a Memorandum of Lease, in
recordable form, containing a confirmation that the interest of the Landlord
shall not be subject to liens for improvements made by Tenant to the Premises.
Landlord make take such action as it deems appropriate to remove a lien. Tenant
agrees to indemnify and hold Landlord harmless from any damage, loss cost or
expense incurred by Landlord as a result of a claim of lien.
35. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, mortgage,
pledge, hypothecate or encumber this Lease, or any interest therein, and shall
not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person (the agents and servants of
Tenant excepted) to occupy or use the Premises, or any portion thereof, without
the written consent of Landlord. A consent to one assignment, subletting,
occupation or use by another person shall not be deemed to be a consent to any
subsequent assignment, subletting, occupation or use by another person shall not
be deemed to be a consent to any subsequent assignment, subletting, occupation
or use by another person. Any assignment or subletting, without consent shall be
void, and shall, at the option of Landlord, terminate this Lease. This Lease
shall not, nor shall any interest therein, be assignable as to the interest of
Tenant by operation of law without the written consent of Landlord.
Notwithstanding any assignment or sublease, Tenant shall remain fully liable on
this Lease and shall not be released from performance of any of the terms,
covenants and conditions thereof.
36. HOLDING OVER. Tenant shall pay Landlord 150% the amount of the daily base
rent in effect immediately prior to termination for each day Tenant retains
possession of the Premises after termination. Tenant shall also pay all damages
sustained by Landlord by reasons of such retention and indemnify Landlord from
and against claims by succeeding Tenant because of delay. However, if Landlord
gives notice to Tenant of Landlord's election thereof, such holding over shall
constitute renewal of this Lease from month to month or for one year, whichever
shall be specified in the notice. Acceptance by Landlord of rent after
termination shall not constitute a renewal. This provision shall not be deemed
to waive Landlord's right of reentry or any other right.
37. BANKRUPTCY OR INSOLVENCY. Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Tenant or (b) an
assignment by Tenant for the benefit of creditors or (c) any action taken or
suffered by Tenant under any insolvency, bankruptcy or reorganization act, shall
constitute a breach of this Lease by Tenant. Upon the happening of any such
event, this Lease shall terminate five (5) days after written notice of
termination from Landlord to Tenant. In no event shall this Lease be assigned or
assignable by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceeding.
38. DEFAULT. Each of the following shall be deemed to be a default by Tenant and
a breach of this Lease:
(a) Default in the payment of rent or any other sums due hereunder, or
any part thereof, for a period of three (3) days after Landlord gives Tenant
written notice of such default.
(b) Default in the performance of any other covenant or condition of
this Lease or of the rules and regulations for the building in which the
Premises are located for a period greater than that reasonably required to cure
such default by diligent action after written notice by Landlord to Tenant.
(c) Abandonment by Tenant of the premises.
(d) Default in payment of any sums due or in the performance of any
other covenant or condition of any other lease between Landlord and Tenant.
39. REMEDIES ON DEFAULT. In addition to the remedies provided by Chapter 83,
Florida Statutes, Landlord shall have the following remedies:
(a) Landlord may re-enter the Premises immediately and terminate the
Lease. Landlord may remove all persons and property from the Premises. Such
property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of Tenant.(b) Landlord may re- let the Premises or
any part of the Premises for any term without terminating the Lease, at such
rent and on such terms as he may choose, for the Tenants account. Landlord may
make such alterations or repairs of the Premises as may be necessary or
required. The duties and liabilities of the parties upon such re-letting are as
follows:
(i) In addition to Tenant's liability to Landlord for breach
of the Lease, Tenant shall be liable for all expenses of the re-letting,
including, without limitation, broker's commissions, expenses of alterations and
repairs and all other expenses of the Landlord. Tenant shall pay to Landlord
such expenses on the dates the rent are due provided herein, minus the rent
received by Landlord from re-letting.
(ii) Landlord, at its option, shall have the right to apply
the rent received from re- letting the Premises as follows:
First, to reduce Tenant's indebtedness to Landlord under the Lease, not
including indebtedness for rent;
Second, to recover expenses of re-letting and alternations and repairs
made;
Third, to recover the rent due under the Lease; and
Fourth, to payment of future rent under the Lease as it becomes due.
(iii) Notwithstanding any such re-letting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
Landlord may recover from Tenant all damages proximately resulting from the
breach, including the cost of recovering the Premises, the unpaid rent that had
been earned at time of breach, and accelerate payment of rent that would have
been earned from date of such breach until the time this Lease would have
expired but for such termination. All such amounts shall be immediately due and
payable from Tenant.
Any and all rights, remedies and options given in this Lease to Landlord
shall be cumulative and in addition to and without waiver of or in derogation of
any right or remedy given to it under any law now or hereafter in effect.
40. TRANSFER BY LESSOR. If Landlord assigns sells or conveys its interest in the
Lease or the building containing the Premises, Landlord shall be released from
any future liability upon any of the covenants or conditions, expressed or
implied; herein contained in favor of Tenant, and Tenant agrees to look solely
to the responsibilities of the successor in interest of Landlord. This Lease
shall not be affected by any such sale, and Tenant agrees to attorn to the
purchaser or assignee.
41. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be performed
by the Tenant under any of the terms of this Lease shall be performed by the
Tenant at Tenant's sole cost and expense and without any abatement of rent. If
the Tenant fails to pay any sum of money, other than rent, required to be paid
by it or fails to perform any other act on its part to be performed hereunder,
and such failure continues for ten (10) days after notice by the Landlord, the
Landlord may, but shall not be obligated, make any such payment or perform any
such other act on the Tenant's part to be made or performed as in the Lease
provided. Tenant's obligations shall not be waived by Landlord's exercise of
this option.
All sums paid by the Landlord and all necessary incidental costs together with
interest thereon at the rate of one and one-half percent (1-1/2%) per month from
the date of payment by the Landlord shall be payable to the Landlord on demand
and the Tenant covenants to pay any such sums, and the
Landlord shall have (in additional to any other right or remedy of the Landlord)
the same rights and remedies in the event of the nonpayment thereof by the
Tenant as in the case of default by the Tenant in the payment of the rent.
42. RIGHT OF RELOCATION. Landlord has the right to relocate the Tenant to space
of comparable size within the property upon which the Premises is located. Such
relocation shall be undertaken, if required, following written notice to Tenant
of not less than thirty (30) days. Landlord shall bear the expense of the
Tenant's move and build-out expense comparable to Tenant's existing space.
43. RULES AND REGULATIONS. Tenant agrees to comply with all rules and
regulations Landlord may adopt from time to time for operation of the Property,
and protection and welfare of Property, its tenants, visitors, and occupants.
The present rules and regulations, which Tenant hereby agrees to comply with,
entitled "Rules and Regulations" are attached hereto as Exhibit "B". Landlord
may amend the rules from time to time and any future rules and regulations shall
become a part of this Lease, and Tenant hereby agrees to comply with the same
upon delivery of a copy thereof to Tenant, providing the same do not materially
deprive Tenant of its rights established under this Lease.
44. LEGAL EXPENSES. In the event that it shall become necessary for Landlord to
employ the services of an attorney to enforce any of its rights or to protect
its interest under this Lease or to collect any sums due to it under this Lease
or to remedy the breach of any covenant of this Lease on the part of the Tenant
to be kept or performed, regardless of whether suit be brought, Tenant shall pay
to Landlord such fee as shall be charged by Landlord's attorney for such
services. Should suit be brought because of the breach of any covenants under
this Lease or to protect any interest or right under the Lease, the
non-prevailing party shall pay to the prevailing party all expenses of such suit
and any appeal thereof, including a reasonable attorney's fee.
45. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Landlord, terminate all or any, existing subleases or
sub-tenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or sub-tenancies.
46. WAIVERS. The waiver by Landlord of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
on any subsequent breach of the same or any other term, covenant or condition.
The subsequent acceptance of rent by Landlord shall not be deemed to be a waiver
of any preceding breach by Tenant of any term, covenant or condition of this
Lease, other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of rent.
47. NOTICES. Unless otherwise required by statute, all notices and demands which
may be or are required to be given by either party to the other shall be in
writing. All notices and demands shall be sent by United States certified or
registered mail, postage prepaid or hand delivered if receipt is obtained,
addressed as follows:
To Landlord: To Landlord's Agent:
PROPERTY Xxxxx Management Services, Inc.
(Leasing Office: Street Address) 0000 XX 000 Xxxxxx
(Leasing Office: City State Zip) Xxxxx, Xxxxxxx 00000
To Tenant:
The Nationwide Companies, Inc.
(Tenant: Street Address) 0000 Xxxxx Xxxx, Xxxxx 000
(Xxxxxx: City State Zip) Xxxxx, Xxxxxxx 00000
Notices shall be deemed to have been served upon the party to whom addressed
upon receipt. Either party may change its address by giving written notice of
such change to the other parties.
48. COVENANT OF QUIET ENJOYMENT. Landlord agrees that if the Tenant shall
perform all the covenants and conditions of this Lease, Tenant shall, at all
times during such term, have the peaceful and quiet enjoyment and possession of
the Premises.
49. SUCCESSORS AND ASSIGNS. The covenants and conditions herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of the parties.
50. HAZARDOUS MATERIALS. Subject to the remaining provisions of this paragraph,
Tenant shall be entitled to use and store only those Hazardous Materials
(defined below), that are necessary for Tenant's business provided that such
usage and storage is in full compliance with all applicable local, state and
federal statutes, orders, ordinances, rules and regulations (as interpreted by
judicial and administrative decisions). Landlord shall have the right at all
times during the term of this Lease to (i) inspect the Premises, (ii) conduct
tests and investigations to be determine whether Tenant is in compliance with
the provisions of this Paragraph, and (iii) request lists of all Hazardous
materials used and stored or located on the Premises; the cost of all such
inspections, tests and investigations to be borne by Tenant, if Landlord
reasonably believes they are necessary. Tenant shall give to Landlord immediate
verbal and follow-up written notice of any spills, releases or discharges of
Hazardous Materials on the Premises, or in any common areas or parking lots (if
not considered part of the Premises), caused by the acts or omissions of Tenant,
or its agents, employees, representatives, invitees, licensees, subtenants,
customers or contractors. Tenant covenants to investigate, clean up and
otherwise remedy any spill, release or discharge of Hazardous Materials caused
by the acts or omission of Tenant, or its agents, employees, representatives,
invitees, licensees, subtenants, customers or contractors at Tenant's cost and
expense; such investigations, clean up and remediation to be performed after
Tenant has obtained Landlord's written consent, which shall not be unreasonably
withheld; provided, however, that Tenant shall be entitled to respond
immediately to any emergency without first obtaining Landlord's written consent.
Tenant shall indemnify, defend and hold Landlord harmless from and against any
and all claims, judgments, damages, penalties, fines, liabilities, losses,
suits, administrative proceedings and costs (including, but not limited to,
attorney's and consultants fees) arising from or related to the use, presence,
transportation, storage, disposal spill, release or discharge of Hazardous
Materials on or about the Premises caused by the acts or omissions of Tenant,
its agents, employees, representatives, invitees, licensees, subtenants,
customers or contractor. Tenant shall not be entitled to install any tanks
under, on or about the
Premises for the storage of Hazardous Materials without the express written
consent of Landlord, which may be given or withheld in Landlord's sole express
written discretion. As used herein, the term "Hazardous Materials" shall mean
(i) any hazardous or toxic wastes, materials or substances, and other materials
or substances, and other pollutants or contaminants, which are or become
regulated by all applicable local, state and federal law, including but not
limited to 42 U.S.C. 6901 et seq, 42 U.S.C. 9601 et seq, any Rule or Regulations
of the Florida Resource Recovery and Management Act, Chapter 403 of Florida
Statues; (ii) petroleum; (iii) asbestos; (iv) polychlorinated biphenyls; and (v)
radioactive materials. The provisions of this Paragraph shall survive the
termination of this Lease for not less than ten (10) years from termination
thereof.
51. RADON GAS. Radon is naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in Florida. Additional information regarding
radon and radon testing may be obtained from your county public health unit.
52. INDEMNIFICATION FOR LEASING COMMISSIONS. Each of the parties represents and
warrants that it has dealt with no broker or brokers in connection with the
execution of this Lease, except Xxxxxxxxxx Commercial Realty, Inc. and each of
the parties shall agree to indemnify and hold harmless the other party for any
and all liability incurred in connection with the negotiation or execution of
this Lease for any real estate broker's leasing commission or finder's fee which
has been earned by a real estate broker or other person on such party's behalf
not previously disclosed to and acknowledged by the parties.
53. GOVERNING LAW. This Lease shall be governed, construed and enforced in
accordance with the laws of the State of Florida.
54. NO PARTNERSHIP. Landlord does not, in any way or for any purpose, become a
partner of Tenant in the conduct of its business, or otherwise, or joint venture
or a member of a joint enterprise with Tenant.
55. PARTIAL INVALIDITY. In any term, covenant or condition of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
56. RECORDING. Tenant shall not record this Lease or any memorandum thereof
without the written consent and joinder of Landlord.
57. LIABILITY OF LANDLORD. Anything contained in this Lease, at law or in equity
to the contrary notwithstanding, Tenant expressly acknowledges and agrees that
there shall at no time be or be construed as being any personal liability by or
on the part of Landlord under or in respect of this Lease or in any way related
hereto or the Premises; it being further acknowledged and agreed that Tenant is
accepting this Lease and the estate created hereby upon and subject to the
understanding that it shall not enforce or seek to enforce any claim or judgment
or any other matter,
for money or otherwise, personally or directly against any officer, director,
stockholder, partner, principal (disclosed or undisclosed), representative or
agent of Landlord, but will look solely to the Landlord's interest in the
Property for the satisfaction of any and all claims, remedies or judgments (or
other judicial process) in favor of Tenant requiring the payment of money by
Landlord in the event of any breach by Landlord of any of the terms, covenants
or agreements to be performed by Landlord under this Lease or otherwise,
subject, however, to the prior rights of any ground or underlying lessors or the
holders of the mortgages covering the Property, and no other assets of Landlord
or owners of Landlord shall be subject to levy, execution or other judicial
process for the satisfaction of Tenant's claims; such exculpation of personal
liability as herein set forth to be absolute, unconditional and without
exception of any kind.
58.FlexxspaceSM. The Property is part of the FlexxspaceSM network
(the"Network"). The Landlord, through the Network, from time to time, may, but
is not required to provide access to services, benefits and/or accommodations to
Tenants within the System. Tenant understands and agrees that Landlord is under
no legal obligation to maintain, continue or make available the Network or any
part thereof and the Network and/or use thereof is not a condition of or
consideration for Tenant entering into this Lease. Further, Landlord makes no
warranties or representations whatsoever as to any services or products obtained
through the System and Tenant agrees and acknowledges that any claim, complaint
or remedy shall be against the ultimate provider of the services or products and
not against the Landlord.
59. TIME IS OF THE ESSENCE. Time is of the essence in this Lease and for each
and all of its provisions in which performance is a factor.
60. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
61. CHOICE OF LAW. This Lease shall be governed by the laws of the State of
Florida. The venue for any action filed in connection herewith by either party
shall be the county in which the Premises are located.
62. WAIVER TRIAL BY JURY. The Parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
Parties hereto against the other on any matters whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or Occupancy of the Leased Premises, and/or any claim of Injury or
Damage.
63. ACCEPTANCE OF FUNDS BY LANDLORD. No receipt of money by the Landlord from
the Tenant after the termination of this Lease or after the service of any
notice or after the commencement of any suit, or after final judgment for
possession of the Premises shall reinstate, continue or extend the term of this
Lease or affect any such notice, demand or suit.
64. COMPLETE AGREEMENT AMENDMENTS. This Lease, including all Exhibits,
constitutes the entire agreement between parties; it supersedes all previous
understandings and agreements between the parties, if any; and no oral or
implied representation or understandings shall vary its terms, and it may not be
amended except by a written instrument executed by both parties.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and
year set forth above.
WITNESS: LANDLORD:
AP-Adler Oakes, Ltd.,
a Florida limited partnership
---------------------------- By: AP-Adler Oakes LLC,
its general partner
By: AP-Xxxxx Investment Fund, LP.,
its managing member
---------------------------- By: Xxxxx Newco GP, Inc.,
its managing general partner
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Xxxxx X. Xxxxxx, Authorized Signatory
TENANT:
----------------------------
The Nationwide Companies, Inc.
--------------------------- /s/ Xxxx Xxxxx
----------------------------------
Xxxx Xxxxx, President
GUARANTY
In consideration of Landlord entering into the Lease with Tenant (which it would
not have done but for execution of this Guaranty) and other good and valuable
consideration, the undersigned guarantor(s), jointly and severally do hereby
guaranty to the Landlord, to any mortgagee holding a mortgage on the property of
which the Leased premises is a part and their successors and assigns, full
prompt and complete payment and performance by Tenant of each and every
covenant, condition and provision contained in the Lease with no less force and
effect than if the guarantor(s) were named as the Tenant in said Lease, and the
guarantor(s) jointly and severally will on demand pay all such amounts at any
time in arrears and will make good any and all defaults occurring under said
Lease. This Guaranty shall be absolute, continuing and unlimited and the
Landlord shall not be required to take any proceedings against the Tenant or
give any notice to the guarantor(s) before the Landlord has a right to demand
payment or performance by the guarantor(s) hereunder. The undersigned
guarantor(s) further agree that this Guaranty shall remain and continue in full
force and effect as to any renewal, modification or extension of the Lease and
that this guaranty and the liability created thereunder shall not be impaired by
Landlord taking any action against the Tenant. If Landlord is required to take
any action under this Guaranty, the guarantor(s) shall be liable for any and all
attorney's fees and costs incurred as a result thereof.. Notwithstanding
anything in this guaranty to the contrary, in the event tenant at the end of the
24th month of the term of this lease is not in default or otherwise in breach
thereof, the guarantor's liability under this guaranty shall be limited to those
matters arising or accruing during the first 24 months of this leas only;
otherwise this guaranty shall remain in full force and effect for the entire
lease period.
THE UNDERSIGNED GUARANTORS(S) WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BROUGHT PURSUANT TO OR UNDER THIS GUARANTY.
Dated:
WITNESSES as to Guarantor(s):
/s/ Xxxx Xxxxx
---------------------------------- ----------------------------
Guarantor
----------------------------------
ADDENDUM TO LEASE
Tenant shall pay to Landlord the sum of $20,000.00 for additional buildout at
receipt of building permit from Town of Davie. Tenant has option to reduce
rental amount to $12.00 sq.ft. and pay an additional sum of $20,000.00 before
Certificate of Occupancy.
