EXHIBIT 10.7
COMMERCIAL/INDUSTRIAL BUILDING LEASE
BETWEEN
CAP-EAST ASSOCIATES
a Florida general partnership,
as Landlord
and
WORLD DIAGNOSTICS, INC.,
a Delaware Corporation,
as Tenant
DATE OF LEASE: August 9, 0000
Xxxxx Xxxxxxxxx Xxxx,
Xxxxxxxx X
00000 X.X. 00xx Xxxxxx
Suites 208 and 209,
Xxxxx Xxxxx, Xxxxxxx 00000,
Premises
SUMMARY OF CERTAIN LEASE PROVISIONS
The Lease Summary set forth below (the "Lease Summary") forms an
integral part of this Lease, and all terms and other provisions of the Lease
Summary have the respective meanings or amounts as stated and are hereby
incorporated by reference into the Lease, except and to the extent more
specifically set forth in the text of the Lease and its Exhibits, Schedules and
Supplements.
A. Date of Lease Execution: August 9, 2000
B. Landlord: Cap-East Associates,
a Florida general partnership
C. Landlord's Address: 00000 XX 00xx Xxxxxx
Xxxxx, XX 00000
D. Tenant: World Diagnostics, Inc.,
a Delaware corporation
E. Tenant's Trade Name(s): N/A
F. Tenant's Address: 00000 X.X. 00xx Xxxxxx
Xxxxx _000 & 209______
Xxxxx Xxxxx, XX 00000
G. Building: Building B, as shown on Exhibit "A"
H. Area of
Improvements (Section 1.1): Approximately 9,900 square feet
I. Tenant's Proportionate
Share: 27.65%
J. Intended Use of
Premises (Article 3): Warehouse / Distribution with Ancillary Office Uses
Not to Exceed fifty-nine percent (59%) of Total
Square Footage of Building Under Air Conditioned
Area
K. Term of Lease (Section 1.3): 10 Years
L. Commencement Date: November 15, 2000
M. Expiration Date: The last day of the one hundred twentieth
(120) full calendar months after the Commencement
Date.
N. Base Rent (Section 2.1):
Rental Period Monthly Base Rent Current Sales Tax Total Estimated
(estimate) (excluding Additional Rent, Monthly Rent
CAM, increased operating (excluding Additional Rent,
costs or sales tax) CAM or increased
operating costs)
Lease Year 1 $9,075.00 $589.88 $9,664.88
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Lease Year 2 $9,347.25 $607.57 $9,954.82
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Lease Year 3 $9,627.67 $625.80 $10,253.47
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Lease Year 4 $9,916.50 $644.57 $10,561.07
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Lease Year 5 $10,213.99 $663.91 $10,877.90
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Lease Year 6 $10,520.41 $683.83 $11,204.24
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Lease Year 7 $10,836.03 $704.34 $11,540.37
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Lease Year 8 $11,161.11 $725.47 $11,886.58
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Lease Year 9 $11,495.94 $747.24 $12,243.18
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Lease Year 10 $11,840.82 $769.65 $12,610.47
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O. Security Deposit (Section 2.7): $27,225.00
($18,150.00 due upon Lease execution and $9,075.00
due upon occupancy)
P Cost Pass-Throughs (Section 2.3): Operating Costs
Q. Base Year: 2000
R. Comprehensive General
Liability Insurance (Article 5) $3,000,000
S. Guarantor(s): None
T. Guarantor's Address: N/A
U. Broker(s) (Section 19.14): Easton & Associates and Codina Realty Services
Each party agrees to indemnify the other party
for any and all brokerage commission(s) or
finder's fee(s) (and all attorney's fees and
costs of any kind relating to any dispute,
litigation proceeding, or matters connected to
such brokerage commission(s) or finder's
fee(s) asserted by a person, firm or
corporation other than the Broker(s) claiming
to have been engaged by the indemnifying
party. Landlord agrees to pay the Broker(s) a
brokerage commission upon execution of this
Lease in accordance with its agreement(s) with
the Broker(s).
V. Option to Renew; Addendum 1: Tenant has one (1) five (5) year option to
renew.
W. Parking: Tenant shall be entitled to thirty (30)
unassigned parking spaces
X. Option to Terminate: Tenant shall have a one (1) time option to
terminate this Lease at the commencement of the
sixth year by providing Landlord with written
notice no later than one hundred eighty (180) days
prior to the expiration of the fifth Lease Year of
this Lease and payment of certain fees as set forth
in Section 19.19 below.
LEASE
THIS LEASE (this "Lease," which term shall include all amendments,
modifications and assignments hereof) is dated as of the _15___ day of _August
___________, 2000 (the "Effective Date"), by and between CAP-EAST ASSOCIATES, a
Florida general partnership ("Landlord"), and World Diagnostics, Inc., a
Delaware Corporation ("Tenant").
ARTICLE 1
GRANT AND TERM
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the "Premises" (subsequently defined) which Premises are shown as
summarized on the site plan attached hereto and made a part hereof as Exhibit A
attached hereto, together with the right to the use, in common with others, of
the Common Areas (as herein defined). The Premises shall consist of
approximately 9,900 square feet, located in the Building B in Phase I of Lakes
Corporate Park, a development located in Miami-Dade County, Florida (as
described in Exhibit B), as such development may be added to or reduced from
time-to-time (the "Development"). The Development may include common parking
areas, streets sidewalks, driveways, storm drainage facilities, landscaped
areas, and retention ponds (the "Common Areas"). References to the approximate
square feet of the Premises as set forth above and otherwise in this Lease, have
been computed by measuring from each of the outermost finished surfaces of the
exterior walls of the Building enclosing the Premises to the midpoint of any
interior demising walls, without deduction or reduction for (i) vestibules,
columns, projections or vertical penetrations from the floor necessary to the
Building; or (ii) any indentions to the exterior building walls for entrances,
doors, windows, decorative features or otherwise; or (iii) those portions of the
Building containing mechanical, plumbing or electrical systems serving the
Building.
1.2 The Premises shall be constructed substantially in the location
depicted on Exhibit A attached hereto. Landlord and Tenant shall construct the
improvements in accordance with the provisions of the Workletter attached hereto
and made a part hereof and marked Exhibit C (the "Workletter"). Except as
expressly set forth in the Workletter, Landlord shall have no construction or
similar obligations.
1.3 The term hereof (the "Term") is anticipated to commence on the
Commencement Date and shall terminate on the Expiration Date (unless the Term
shall be terminated or extended in accordance herewith). If Landlord fails to
deliver possession of the Premises to Tenant on or prior to the scheduled
Commencement Date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any loss or damage (whether direct, consequential or
otherwise), and in such case the Commencement Date shall be the date upon which
Landlord delivers the Premises to Tenant substantially in accordance with
Landlord's obligations under the Workletter. If Landlord fails to deliver
possession of the Premises on or before the "Estimated Completion Date", then,
for each day after the Estimated Completion Date (subsequently defined) that
possession is so delayed, Tenant shall be entitled to two (2) days of possession
without payment of Base Rent. If possession of the Premises is not delivered to
Tenant within one hundred twenty (120) days of the Estimated Completion Date,
Tenant may terminate this Lease, by delivering written notice to Landlord within
ten (10) days thereafter. The free rent and right to terminate, as set forth
above, shall be Tenant's sole remedies and measures of damage for any delay in
delivery of possession, and Landlord shall not be liable in any other manner to
Tenant for such delay(s). The parties agree to execute, within thirty (30) days
after the Commencement Date, a supplement to this Lease, in the form attached
hereto as Supplement 1, fixing the definite date of the Commencement Date and
the Expiration Date. The first "Lease Year" shall begin on the Commencement Date
and shall extend through the last day of the twelfth (12th) full calendar month
after the Commencement Date. Thereafter, each "Lease Year" shall commence on the
day following the expiration of the preceding Lease Year and shall end at the
expiration of twelve (12) calendar months thereafter; provided, however, that
the last "Lease Year" shall end on the Expiration Date.
ARTICLE 2
RENT
2.1 Tenant shall pay to Landlord all sums due hereunder from time to
time from the Commencement Date without prior demand, together with all
applicable Florida sales tax thereon; however, unless otherwise provided in this
Lease, payments other than Tenant's regular monthly payments of Base Rent and
"Increased Operating Costs" (subsequently defined), shall be payable by Tenant
to Landlord within five (5) days following demand, except as otherwise provided
in this Lease. All other charges other than Base Rent that are required to be
paid by Tenant to Landlord under this Lease shall constitute Additional Rent.
Base Rent and Additional Rent (Base Rent and Additional Rent are collectively
referred to as "Rent"), for any "Lease Year" consisting of more than twelve (12)
months shall be prorated on a per diem basis, based upon a period of 365 days.
Rent payable for any partial month shall be prorated on a per diem basis, based
upon a thirty (30) day month. Tenant agrees that its covenant to pay Rent and
all other sums under this Lease is an independent covenant and that all such
amounts are payable without counterclaim, set-off, deduction, abatement, or
reduction whatsoever, except as may be expressly provided for in this Lease.
2.2 Subject to any escalation which may be provided for in this Lease,
Tenant shall pay Base Rent for the Term in the initial amount specified in the
Lease Summary, which, except for the first installment (which shall be payable
upon Lease execution), shall be payable throughout the Term in equal monthly
installments in advance on the first day of each calendar month of each year of
the Term, such monthly installments to be in the amounts (subject to escalation)
specified in the Lease Summary. The obligation of Tenant to pay Rent shall
commence on the [Rent ] Commencement Date. The Base Rent described above shall
be adjusted at the beginning of the second and each succeeding Lease Year during
the Term of this Lease as provided in the Lease Summary.
2.3 In addition to the Base Rent specified in this Lease, commencing
January 1, 2001. Tenant shall pay to Landlord as Additional Rent for the
Premises Tenant's Proportionate Share of the amount by which the annual
"Operating Costs" (as subsequently defined) exceed the Operating Costs incurred
during the Base Year. Such excess is referred to as the "Increased Operating
Costs." Tenant's obligation to pay its proportionate share of Increased
Operating Costs shall commence as of the first day immediately subsequent to the
last day of the Base Year. The amount of Increased Operating Costs payable to
Landlord by Tenant may be estimated by Landlord for such period(s) as Landlord
may determine from time to time (not to exceed twelve (12) months), and Tenant
shall pay to Landlord the amounts so estimated in equal installments, in
advance, on the first day of each month during such period. Within a reasonable
period of time after the end of the period for which estimated payments have
been made, Landlord shall furnish to Tenant a statement, showing the actual
amount payable by Tenant based upon actual costs. If such actual Increased
Operating Expenses for such calendar year shall exceed Tenant's payment so made,
Tenant shall pay to Landlord the deficiency within twenty (20) days after
receipt of said statement. If Tenant's payments shall exceed such actual
Increased Operating Expenses, as shown on such statement, such excess shall be
applied against payments next becoming due under this Lease, or, if the Lease
has expired, shall be promptly refunded to Tenant. For purposes of this Lease,
Operating Costs means are but not limited to all "Taxes," "Common Area
Maintenance Charges," "Insurance Premiums" (as such terms are subsequently
defined), and all other charges payable by the owner(s) of the Building under
that certain Declaration of Protective Covenants and Restrictions for Lakes
Corporate Park dated _______________and recorded in Official Records Book _____,
Page _____, of the Public Records of Miami-Dade County, Florida and any
supplements, amendments, replacements or additions thereto (collectively, the
"Declaration").
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2.3.1 Notwithstanding anything to the contrary contained in Section
2.3, the aggregate amount of the Tenant's pro rata share of Operating Costs
pursuant to this Article 2 shall not increase by more than 5% per Lease Year
except with respect to insurance premiums and real property taxes for which
there shall be no cap.
2.4 Rent shall be paid to or upon the order of Landlord at Landlord's
Address or as otherwise designated in writing by Landlord. Landlord may change
its address by notice to Tenant of such change pursuant to Section 19.2 hereof.
No payment by Tenant or receipt by Landlord of an amount less than the Rent due
hereunder shall be deemed to be other than on account of the earliest stipulated
Rent due hereunder. Nor shall any endorsement or statement on any check or any
letter accompanying any check be deemed to be an accord and satisfaction.
2.5 Any Base Rent or Additional Rent payable by Tenant to Landlord
under this Lease which is not paid within ten (10) days after due, will be
subject to (i) a late payment charge, as Additional Rent, of five percent (5%)
of the delinquent amount, in each instance, to cover Landlord's additional
administrative costs and (ii) if any payment shall remain overdue for more than
twenty (20) days, interest on all such unpaid sums (other than the late charge),
at a per annum rate equal to the lesser of the highest rate permitted by law or
eighteen percent (18%)]. The rate of interest determined pursuant to the
preceding sentence is sometimes hereinafter referred to as the "Maximum Interest
Rate." Such late charges and interest will be due and payable upon demand, and
will accrue from the date that such Base Rent, Additional Rent, late charges or
other sums are payable under the provisions of this Lease until actually paid by
Tenant. Such late charges and interest shall not be considered the granting of a
grace period.
2.6 Tenant shall also pay all applicable Florida sales tax levied on
Rent, as well as any taxes attributable to the personal property and trade
fixtures owned by Tenant.
2.7 Landlord acknowledges receipt of a security deposit in the amount
specified on the Lease Summary to be held by Landlord, without any liability for
interest thereon, as security for the performance by Tenant of all its
obligations under this Lease. Landlord shall be entitled to commingle the
security deposit with Landlord's other funds. If Tenant defaults in any of its
obligations under this Lease, Landlord may at its option, but without prejudice
to any other rights which Landlord may have, apply all or part of the security
deposit to compensate Landlord for any loss, damage, or expense sustained by
Landlord as a result of such default (including sales taxes). If all or any part
of the security deposit is so applied, Tenant shall restore the security deposit
to its original amount on demand of Landlord. Subject to the provisions of this
Section 2.7, within thirty (30) days following termination of this Lease, if
Tenant is not then in default or if no default would occur after a lapse of
time, the security deposit will be returned by Landlord to Tenant.
2.8 To secure the payment of all Rent and other sums of money due and
to become due hereunder and the faithful performance of this Lease by Tenant,
Tenant hereby gives to Landlord an express first and prior contract and
landlord's lien and security interest on all property now or hereafter acquired
(including fixtures, equipment, chattels, and merchandise) by Landlord (and not
by any customer of Landlord) which may be placed in the Premises and also upon
all proceeds of any insurance which may accrue to Tenant by reason of
destruction of or damage to any such property. Such property shall not be
removed therefrom without the written consent of Landlord until all arrearages
in rental and other sums of money then due to Landlord hereunder shall first
have been paid. All exemption laws are hereby waived in favor of said lien and
security interest. This lien and security interest is given in addition to
Landlord's statutory lien and shall be cumulative thereto. Landlord shall, in
addition to all of its rights hereunder, also have all of the rights and
remedies of a secured party under the Uniform Commercial Code as adopted in the
State of Florida. To the extent permitted by law, this Lease shall constitute a
security agreement under Article 9 of the Florida Uniform Commercial Code.
Notwithstanding the foregoing, Landlord agrees to subordinate its lien to a bona
fide institutional lender providing acquisition financing or lease financing for
Tenant's furniture, fixtures, and equipment, so that Landlord will have a second
lien on such furniture, fixtures and equipment.
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ARTICLE 3
USE
Tenant intends to use the Premises solely as a warehouse/distribution
facility with ancillary office use not to exceed fifty-nine percent (59%) of the
Premises under air conditioning (the "Intended Use"). Tenant's use of the
Premises shall comply with all zoning and building requirements. Tenant shall
not use or permit the Premises to be used for any unlawful purpose. Tenant's use
of the Premises shall at all times be consistent with uses typical of a
first-class commercial/industrial park, as such standards exist from time to
time, in the area of Miami Lakes, Miami-Dade County, Florida and in strict
compliance with the Declaration, and the Design and Development Standards
described therein.
ARTICLE 4
TAXES, COMMON AREA
MAINTENANCE CHARGES AND
INSURANCE
4.1 "Taxes" means real estate taxes, assessments (general or special),
personal property and any other ad valorem taxes, special taxing district
charges, sewer rents, special or other assessments, rates and charges, local
improvement rates, and any other federal, state or local governmental charge,
general, special, ordinary or extraordinary (but not including income or
franchise taxes or any other taxes imposed upon or measured by Landlord's income
or profits, except as provided herein), which may now or hereafter be levied,
assessed or imposed against, or with respect or attributable to, the Building or
against the owner(s) of the Building as to the Building, the land upon which the
Building is located or any portion thereof or interest therein, and the Common
Areas. "Taxes" shall include any reasonable amounts, charges, or legal fees
incurred to contest or dispute Taxes. Notwithstanding the year for which any
such taxes or assessments are levied, in the case of special taxes or
assessments which may be payable in installments, the amount of each
installment, plus any interest payable thereon, payable during any year shall be
considered Taxes assessed and levied for that year. Except as provided in the
preceding sentence, all references to Taxes assessed, levied, confirmed or
imposed during a particular year or Taxes "for" a particular year shall be
deemed to refer to Taxes levied, assessed or otherwise imposed during such year
without regard to when such Taxes are payable.
4.2 "Common Area Maintenance Charges" means the total of all items of
all costs and expenses related to operating, securing, insuring, complying with
applicable law, administering, promoting, repairing, cleaning, preserving,
altering, landscaping, legal fees and costs of any kind (except with respect to
enforcement actions against tenants and negotiation of leases), lighting,
replacing, maintaining and enhancing the utility of, the Building and Common
Areas, payment of reasonable management fees with respect to the Building and
Common Areas, promotional charges, and utilities for the Building. Common Area
Maintenance Charges shall not include the following:
4.2.1 Costs of space planning, tenant improvements, marketing
expenses, real estate broker commissions, and other costs, disbursements and
expenses for leasing, renovating, or improving space for other tenants or
occupants (and not Tenant) in the Building;
4.2.2 Costs of a capital nature with respect to roof
replacement and structural components of the Building, except that the annual
amortization of these costs over the useful life on a straight line basis, of
the cost of such capital improvements, repairs, and replacements shall be
included;
4.2.3 Legal fees arising out of collection and enforcement
disputes and negotiations and lease negotiations with tenants of the Building or
park;
4.2.4 Items and services that Landlord provides selectively to
one or more tenants or occupants of the Building or park, other than Tenant and
which Landlord is not obligated to provide Tenant;
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ARTICLE 5
INSURANCE
5.1 Tenant shall procure and maintain policies of insurance, at its own
cost and expense, insuring:
5.1.1 Tenant shall secure the following commercial general
liability insurance coverage naming Landlord, and Landlord's and Landlord's
mortgagee and/or the lessor under any present or future ground lease of the
Premises and the land thereunder (such mortgagee or lessor being hereinafter
collectively referred to as the "Mortgagee"), if required, as additional
insureds. Such insurance shall be primary/non-contributing and not apply as
excess to any other insurance secured by or available to Landlord or any
Mortgagee.
5.1.1.1 Commercial General Liability of: (i) $1,000,000 per
occurrence; (ii) $2,000,000 General Aggregate - Per Location Basis; (iii)
$1,000,000 Products and Completed Operations; (iv) $1,000,000 Personal Injury -
Employee Exclusions Deleted; (v) $1,000,000 Contractual Liability; (vi) $50,000
Real Property Legal Liability; and (vii) $5,000 Medical Payments.
5.1.1.2 Commercial Automobile Insurance of $1,000,000 Combined
Single Limit Per Occurrence for bodily injury or property damages covering all
owned, non-owned or hired vehicles used in connection with Tenant's occupancy
and use of the Premises, naming Landlord as additional insured.
5.1.1.3 Commercial Umbrella/Excess Liability of $1,000,000
with a combined single limit in excess of the amounts set forth in Section
5.1.1.1 and Section 5.1.1.2.
5.1.2 The Tenant's improvements (leasehold and otherwise) at
any time situated upon the Premises against loss or damage by fire, explosion,
windstorm, malicious mischief, vandalism, and all other insurable casualties
insured by a full and complete extended coverage endorsement for not less than
one hundred percent (100%) of the full replacement cost of such improvements,
excluding foundations, as reasonably determined by Landlord.
5.1.3 Tenant from and against all workmen's compensation
claims and which would include a waiver of subrogation in favor of Landlord; and
5.1.4 Intentionally Omitted.
5.1.5 All personal property of Tenant or the personal property
of others, on a replacement cost basis, kept, stored or maintained on the
Premises against loss or damage by fire, windstorm or other casualties.
5.1.6 Such other matters as Landlord may reasonably require
from time to time. All insurance required to be provided shall include a
standard New York or Florida mortgagee endorsement (without contribution), to
the extent applicable.
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5.2 All policies referred to above shall: (i) be taken out with
insurers licensed to do business in Florida and reasonably acceptable to
Landlord; (ii) be in a form reasonably satisfactory to Landlord; (iii) be
non-contributing with, and shall apply only as primary and not as excess to any
other insurance available to Landlord or any Mortgagee; (iv) contain an
undertaking by the insurers to notify Landlord by certified mail not less than
thirty (30) days prior to any material change, cancellation, or termination; and
(v) with respect to Section 5.1.2, contain replacement cost, demolition cost,
and increased cost of construction endorsements. Accord Standard Certificates of
Insurance shall be delivered to the Landlord, and Mortgagee if required,
promptly upon request or, if required by a Mortgagee, copies of such insurance
policies certified by an authorized officer of Tenant's insurer as being
complete and current, shall be delivered to the Landlord promptly upon request.
If (a) Tenant fails to take out or to keep in force any insurance referred to in
this Article 5, or should any such insurance not be approved by either Landlord
or any Mortgagee, and (b) Tenant does not commence and continue to diligently
cure such default within forty-eight (48) hours after written notice by Landlord
to Tenant specifying the nature of such default, then Landlord shall have the
right, without assuming any obligation in connection therewith, to effect such
insurance at the sole cost of Tenant and all outlays by Landlord shall be paid
by Tenant to Landlord without prejudice to any other rights or remedies of
Landlord under this Lease. Tenant shall not keep or use on the Premises any
article which may be prohibited by any fire or casualty insurance policy in
force from time to time covering the Premises or the Improvements.
5.3 Except as otherwise provided herein, whenever (a) any loss, cost,
damage or expense resulting from fire, explosion or any other casualty or
occurrence is incurred by either of the parties hereto, or anyone claiming by,
through, or under it in connection with the Premises, and (b) such party then is
covered in whole or in part by insurance with respect to such loss, cost, damage
or expense or is required under this Lease to be so insured, then the party so
insured (or so required to be insured) hereby waives any claims against and
releases the other party from any liability said other party may have on account
of such loss, cost, damage or expense to the extent of any amount recovered by
reason of such insurance (or which could have been recovered had such insurance
been carried as so required). The parties agree to furnish to each insurance
company which has issued or will issue policies of casualty insurance on the
Improvements, written notice of said waivers and to have the insurance policies
properly endorsed, if necessary, to acknowledge such subrogation waivers.
5.4 The Landlord shall throughout the Term carry (i) insurance on the
Building and the machinery and equipment contained therein or servicing the
Building and owned by the Landlord (excluding any property with respect to which
the Tenant and other tenants are obliged to insure pursuant to section 5.1 or
similar section of their respective leases); (ii) public liability and property
damage insurance with respect to the Landlord's operations in the Building; and
(iii) such other forms of insurance as the Landlord or its mortgagee in their
sole and absolute discretion consider advisable.
ARTICLE 6
UTILITIES
Tenant will pay, when due, all separately metered or billed charges of
every nature, kind or description for utilities consumed by Tenant at the
Premises, including all charges for water, sewerage, special assessments, heat,
gas, light, garbage, electricity, telephone, steam, power or other public or
private utility services. In the event that any utilities are not separately
metered or billed, Tenant agrees to pay Tenant's Proportionate Share of all
utilities for the Building as part of Common Area Maintenance Charges.
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ARTICLE 7
MAINTENANCE AND ALTERATIONS
7.1 Landlord agrees to keep the following in good repair as a prudent
owner: (i) the entrances, sidewalks, corridors, parking areas and other Common
Areas solely servicing the Building. The costs of any and all repairs and
maintenance of such items shall be Operating Expenses. Notwithstanding the
foregoing provisions of this Section 7.1 or Article 5, if any part of the
Building is destroyed, damaged, suffers a casualty, or requires repair as the
result of any act or omission of Tenant, its agents, invitees, licensees,
contractors, or employees, Landlord shall be entitled to repair or replace same
and the reasonable cost of any such repairs or replacements shall be paid to
Landlord by Tenant upon demand by Landlord. If, in any emergency, it shall
become necessary to make promptly any repairs or replacements required to be
made by Tenant, Landlord may re-enter the Premises and proceed forthwith to have
the repairs or replacements made and pay the costs thereof. Upon demand, Tenant
shall reimburse Landlord for the reasonable cost of making the repairs. Tenant
shall otherwise, at its sole cost, repair and maintain the Premises including,
but not limited to, base building mechanical and electrical systems, all to a
standard consistent with a first class commercial/industrial building, with the
exception only of those repairs which are the obligation of Landlord pursuant to
this Lease. Without limiting the generality of the foregoing, Tenant is
specifically required to maintain and make repairs to (ii) windows, plate glass,
doors, and any fixtures or appurtenances composed of glass serving the Premises;
(iii) Tenant's sign; (iv) any heating or air conditioning equipment serving the
Premises ("HVAC") (which shall include, without limitation, a preventive
maintenance HVAC service contract, which service contract shall be entered into
between Tenant and one of Landlord's approved HVAC contractors). Such service
contract shall include, without limitation, preventive HVAC maintenance no less
than quarterly); (v) the Premises or the Building when repairs to the same are
necessitated by any act or omission of Tenant, or the failure of Tenant to
perform its obligations under this Lease. All repair and maintenance performed
by Tenant in the Premises shall be performed by contractors or workmen
designated or approved by Landlord. At the expiration or earlier termination of
the Term, Tenant shall surrender the Premises to Landlord in as good condition
and repair as Tenant is required to maintain the Premises throughout the Term.
Tenant shall also furnish, maintain, and replace all electric light bulbs,
tubes, and tube casings located within or serving the Premises and Tenant's
signage, all at Tenant's sole cost and expense.
7.2 Tenant will not make any alterations, additions, or improvements to
the Premises without the prior written consent of Landlord and, if required by
the terms of any mortgage on the Premises, without the prior written consent of
the Mortgagee; provided, however, that Tenant may make non-structural
alterations not exceeding $10,000 in the aggregate, without the prior written
consent of Landlord. Tenant shall obtain all required building permits and other
necessary governmental approvals. Landlord reserves the right to withhold its
consent in its sole and absolute discretion with respect to any alterations,
additions or improvements which are structural in nature. In any event, both the
contractors used and the plans and specifications for the alterations,
additions, or improvements shall be subject to Landlord's prior approval, which
approval shall not be unreasonably withheld or delayed or conditioned upon
payment or consideration (except such payment or consideration as is required to
be paid or made to Landlord under this Lease. All alterations, additions, or
improvements made by either of the parties hereto on the Premises will be
property of Landlord and will remain on and be surrendered with the Premises at
the termination of this Lease, except that Landlord may require alterations or
improvements made by either party be removed and the Premises restored by Tenant
at Tenant's sole cost and expense to the condition thereof as the commencement
of this Lease.
7.2.1 All fixtures and equipment paid for by Landlord and all
fixtures and equipment which may be paid for and placed on the Premises by
Tenant from time to time but which are so incorporated and affixed to the
Premises that their removal would involve damage or structural change to the
Premises or which fixtures have become essential to the operation of the
Premises and its systems, will be and remain the property of Landlord. Landlord
reserves the right at any time, however, to require Tenant to remove such
fixtures and equipment at Tenant's sole cost and expense, and to restore the
Premises as required by Articles 7 and 19 hereof.
7.2.2 All furnishings, equipment, and fixtures other than
those specified in this Article, which are paid for and placed on the Premises
by Tenant from time to time (other than those which are replacements for
fixtures originally paid for by Landlord) will remain the property of Tenant,
but their removal will be at Tenant's expense and such removal will be in
compliance with Articles 7 and 17 hereof.
7
ARTICLE 8
COMPLIANCE WITH LAWS AND
ORDINANCES
8.1 Except with respect to matters arising prior to the Commencement
Date, and except as to matters which are expressly stated to be Landlord's
responsibility hereunder and for any structural matter, Tenant shall, at its
sole cost and expense throughout the Term, comply or cause compliance with, or
remove or cure any violation of, any and all present and future laws,
ordinances, orders, rules, regulations and requirements of all federal, state,
municipal and other governmental bodies having jurisdiction over the Premises,
(excluding, without limitation, the Americans with Disabilities Act) as such
laws, ordinances, etc. exist as of the Effective Date and as the same may
hereinafter be amended or supplemented, and whether or not such compliance is
related to Tenant's specific use of the Premises. Landlord covenants that at the
Commencement Date, the Premises shall comply with all laws, ordinances, orders,
rules, regulations and requirements (as then applied or interpreted) of all
federal, state, municipal and other governmental bodies, including, without
limitation, the South Florida Building Code, and all Environmental Laws.
8.2 After prior written notice to Landlord, Tenant, at its sole cost
and expense, shall have the right to contest the validity or application of any
law or ordinance referred to in this Article 8 in the name of Tenant, or if
required by law, in Landlord's name (but at Tenant's sole cost), or both, by
appropriate legal proceedings diligently conducted, but only if, by the terms of
any such law or ordinance, compliance therewith pending the prosecution of any
such proceeding may legally be delayed incurring of any lien, surcharge or
liability of any kind against the Premises, or any portion thereof, and without
subjecting Landlord or Tenant to any liability, civil or criminal, for failure
to so comply therewith until the final determination of such proceeding;
provided, however, if any lien, charge or civil liability would be incurred by
reason of any such delay, Tenant nevertheless, may contest as aforesaid and
delay as aforesaid, provided that such delay would not subject Tenant or
Landlord to criminal liability and Tenant (a) prosecutes the contest with due
diligence and in good faith; (b) agrees to indemnify, defend and hold harmless
Landlord and the Premises from any charge, liability or expense whatsoever and
(c) provides Landlord or such governmental body as may require the same, with
adequate security in the form of a bond or otherwise to adequately protect
Landlord, the Development and Landlord's interest in the Premises. If necessary
or proper to permit Tenant to so contest the validity or application of any such
law or ordinance, Landlord shall execute and deliver any appropriate papers or
other documents; provided, however, Landlord shall not be required to execute
any document or consent to any proceeding which would result in the imposition
of any cost, charge, expense or penalty on Landlord or the Premises (with
adequate security therefore), unless Tenant otherwise insures or indemnifies
Landlord or the Premises (with adequate security therefor) against such cost,
charge, expense or penalty.
ARTICLE 9
MECHANIC'S LIENS
The parties hereto expressly acknowledge and agree that the interest of
Landlord in the Premises shall not be subject to liens for improvements made by
Tenant, and Tenant shall so notify all contractors making any such improvements
of such provision in this Lease. A notice of this provision shall be recorded by
Landlord in the Miami-Dade County, Florida Clerk's office. Tenant shall not
suffer or permit any mechanic's lien or other lien to be filed against the
Premises, or any portion thereof, by reason of work, labor, skill, services,
equipment or materials supplied or claimed to have been supplied to the Premises
at the request of Tenant, or of anyone holding the Premises, or any portion
thereof, by, through or under Tenant. If any such mechanic's lien or other lien
at the time shall be filed against the Premises or any portion thereof and
Tenant is the cause of same, Tenant, within thirty (30) days after the date
Tenant first becomes aware of the filing of the same, shall cause said lien, at
Tenant's election, either to be discharged of record or to be bonded over in a
manner which is reasonably acceptable to Landlord. If Tenant shall fail to
discharge such mechanic's lien or liens or other lien or to bond over the same
within such period, then Landlord may, but shall not be obligated to, discharge
the same by paying to the claimant the amount claimed to be due or by procuring
the discharge of such lien as to the Premises by deposit of a cash sum or a bond
or other security, or in such other manner as is now or may in the future be
provided by present or future law for the discharge of such lien as a lien
against the Premises. Any amount paid by Landlord, or the value of any deposit
so made by Landlord, together with all costs, fees and expenses in connection
therewith (including reasonable attorneys' fees), together with interest thereon
at the Maximum Interest Rate, shall be repaid by Tenant to Landlord within
thirty (30) days after demand therefor. Tenant shall indemnify, defend and hold
harmless Landlord and the Premises from all losses, costs, damages, expenses,
liabilities, suits, penalties, claims, demands and obligations, including,
without limitation, reasonable attorneys' fees, resulting from the assertion,
filing, foreclosure or other legal proceedings with respect to any such
mechanic's lien or other lien.
8
ARTICLE 10
DEFAULTS OF TENANT
10.1 The occurrence of any one or more of the following events shall
constitute an "Event of Default":
10.1.1 If default shall be made in the due and punctual
payment of any Rent or in the payment of any other amount to be paid by Tenant
to Landlord, when and as the same shall become due and payable, and such default
shall continue for a period of ten (10) days after the date on which such Rent
is due and payable and Tenant receives written notice
10.1.2 If default shall be made by Tenant in keeping,
observing or performing any of the terms contained in this Lease, other than as
referred to in Section 10.1.1, and such default shall continue for a period of
twenty (20) days after written notice thereof given by Landlord to Tenant, or,
provided that there shall be no risk of loss to the Building, the Premises or
any interest of Landlord therein, such longer period (not to exceed sixty (60)
days) as is reasonable to cure said default, with due diligence and in good
faith.
10.1.3 The filing of a petition by Tenant for adjudication as
a bankrupt or insolvent, or for its reorganization or for the appointment of a
receiver or trustee of Tenant's property; the filing of a petition against
Tenant for adjudication as a bankrupt or insolvent, or for its reorganization or
for the appointment of a receiver or trustee of Tenant's property and the
failure to discharge or dismiss such proceedings within sixty (60) days from its
filing; an assignment by Tenant for the benefit of creditors; or the taking
possession of the Premises or any other property of Tenant by any governmental
office or agency pursuant to statutory authority for the dissolution or
liquidation of Tenant.
10.2 If an Event of Default occurs, Landlord shall have the rights and
remedies hereinafter set forth, which shall be distinct, separate and
cumulative.
10.2.1 Landlord may terminate this Lease by giving Tenant
written notice of its election to do so, in which event the Term shall end and
all right, title and interest of Tenant hereunder shall expire on the date
stated in such notice, in which event, Tenant will remain liable for all Rent
and other charges due hereunder through the date of such termination and all
damages resulting from Tenant's default.
10.2.2 Landlord may terminate Tenant's right to possess the
Premises without terminating this Lease by giving written notice to Tenant that
Tenant's ten (10) days written notice for monetary defaults and thirty (30) days
written notice for non-monetary defaults right of possession shall end on the
date stated in such notice, whereupon Tenant's right to possess the Premises or
any part thereof shall cease on the date stated in such notice and Landlord may
enter the Premises to take possession thereof and to remove Tenant's property
therefrom and to dispose of the same as Landlord sees fit. Such entry and
repossession may be effectuated by summary dispossession proceedings or
otherwise as permitted by law.
10.2.3 Landlord may enforce the provisions of this Lease and
may enforce and protect the rights of Landlord hereunder by a suit or suits in
equity or at law for the specific performance of any covenant or agreement
contained herein, and for the enforcement of any other appropriate legal or
equitable remedy, including, without limitation, injunctive relief, and for
recovery of all monies due or to become due from Tenant under any provision of
this Lease.
10.2.4 Landlord may remedy or attempt to remedy any default of
Tenant under this Lease for the account of Tenant and may enter upon the
Premises for such purposes. No notice of Landlord's intention to perform such
covenants need be given Tenant unless expressly required by this Lease. Landlord
shall not be liable to the Tenant for any loss or damage caused by acts of
Landlord in remedying or attempting to remedy such default and Tenant shall pay
to Landlord all reasonable expenses incurred by Landlord in connection with
remedying or attempting to remedy such default. Any expenses incurred by
Landlord shall constitute Additional Rent and shall hereunder accrue interest
from the date of payment by Landlord until repaired by Tenant at the highest
rate permitted by law.
10.3 If Landlord exercises either of the remedies provided for in
Sections 10.2.1 and 10.2.2, Tenant shall surrender possession of and vacate the
Premises and immediately deliver possession thereof to Landlord, in broom-clean
condition, and Landlord may re-enter and take complete and peaceful possession
of the Premises.
9
10.4 If Landlord terminates Tenant's right to possess the Premises
without terminating this Lease, such termination of possession shall not release
Tenant, in whole or in part, from Tenant's obligation to pay the Rent hereunder
for the full Term. In such event, Landlord shall be entitled to recover as
damages all Rent and other sums due and payable to Landlord on the date of
termination plus (1) an amount equal to the Rent and other sums provided herein
to be paid by Tenant for the residue for the Term hereof and (2) the cost of
performing any other covenants to be performed by Tenant. Alternatively,
Landlord shall have the right, from time to time, to recover from Tenant, and
Tenant shall remain liable for, all Rent and any other sums due and payable to
Landlord during the period from the date of such notice of termination of
possession to the stated end of the Term. Landlord shall make commercially
reasonable efforts to re-let the Premises or any part thereof for the account of
Tenant for such time (which may be for a term extending beyond the Term) and
upon such terms as Landlord, in its sole discretion, shall determine and
Landlord will not be responsible for failure to relet the Premises or, in the
event of reletting, for failure to collect the rent therefor. Landlord may let
or relet other premises prior to reletting the Premises hereunder. Also, in any
such case, Landlord may make repairs, alterations and additions in or to the
Premises to the extent reasonably necessary, and Tenant within thirty (30) days
after written demand, shall pay the cost thereof, together with Landlord's
reasonable expenses of re-letting, such additional expenses to be construed
under this Lease as Additional Rent. Landlord shall collect the rents from any
such re-letting and apply the same first to the payment of its unreimbursed
expenses of re-entry, repair and alteration and its unreimbursed expenses of
re-letting and second to the payment of Rent herein provided to be paid by
Tenant, and any excess or residue, until the expiration of the Term, shall
operate only as an offsetting credit against the amount of Rent due and owing
which thereafter becomes due and payable hereunder. No such reentry,
repossession, repairs, alterations, additions or reletting shall be construed as
an eviction or ouster of Tenant or as an election on Landlord's part to
terminate this Lease, unless a written notice of such intention is given to
Tenant, nor shall same operate to release Tenant, in whole or in part, from any
of Tenant's obligations hereunder, and Landlord, at any time and from time to
time, may xxx and seek a judgment for any deficiencies from time to time
remaining after the application of the proceeds of any such re-letting.
10.5 All property removed from the Premises by Landlord pursuant to any
provisions of this Lease or by law shall be handled, removed or stored by
Landlord at the cost and expense of Tenant. Tenant shall pay Landlord for all
expenses incurred by Landlord in such removal and for storage charges for such
property so long as the same shall be in Landlord's possession or under
Landlord's control. All such property not removed from the Premises or retaken
from storage by Tenant within thirty (30) days after notice from Landlord, at
Landlord's option, shall be deemed conclusively to have been conveyed by Tenant
to Landlord as by xxxx of sale, without further payment or credit by Landlord to
Tenant.
10.6 If Landlord terminates Tenant's right to possess the Premises
without terminating this Lease, Tenant shall continue to have such right, if
any, as Tenant may have to assign this Lease or sublet the Premises (but only in
whole), pursuant to the terms of this Lease, as if Tenant were not in default
under this Lease. Tenant's right to so assign or sublet shall terminate in the
event Landlord notifies Tenant that Landlord has sublet the Premises, unless
such assignment or sublet terminates prior to the termination of the Term or any
validly exercised extension of the Term, in which event Tenant's right to assign
or sublet shall recommence upon termination of Landlord's assignment or sublet
during the Term or any validly exercised extension of the Term.
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ARTICLE 11
DESTRUCTION AND RESTORATION
11.1 Subject to the provisions of Paragraph 11.3:
11.1.1 If at any time during the Term hereof the Premises or
the Building is destroyed or damaged and such damage is "substantial" (as herein
defined), and such damage was caused by a casualty insured against under the
provisions of this Lease, this Lease shall continue in full force and effect,
("Insurance Proceeds"), Landlord shall commence the repair of such damage within
one hundred and twenty (120) days following the later of (a) Landlord's receipt
of notice from Tenant of the occurrence of such loss or (b) Landlord's receipt
of insurance proceeds.
11.1.2 If at any time during the Term hereof the Premises is
damaged and such damage is not "substantial" (as hereinafter defined), Landlord
shall commence the repair of such damage (unless caused by Tenant or its
invitees, employees, contractors, agents or other persons under Tenant's
control) and if such non-substantial damage is caused by a casualty insured
against under the provisions of this Lease, Landlord shall commence such repair
as soon as is reasonably possible after (and only to the extent of) Landlord's
receipt of insurance proceeds, and this Lease shall continue in full force and
effect.
11.1.3 Subject to the provisions of Sections 11.2 and 11.3, if
at any time during the Term hereof the Premises or the Building is destroyed or
damaged and if such damage is "substantial" (as hereinafter defined), and if
such damage was caused by a casualty not required to be insured against under
the provisions of this Lease, then Landlord at its option shall either (i)
commence the repair of such damage at Landlord's expenses, in which event this
Lease shall continue in full force and effect, or (ii) cancel and terminate this
Lease as of the date of the occurrence of such damage, by giving Tenant written
notice of its election to do so within sixty (60) days after the date of
occurrence of such damage.
11.2 If the Premises or the Building is destroyed or damaged during the
last two (2) years of the Term of this Lease and the estimated cost of repair
exceeds twenty-five percent (25%) of the replacement cost of the Premises prior
to such destruction or damage, either party may, at its option, cancel and
terminate this Lease as of the date of occurrence of such damage by giving
written notice to the other of its election to do so ("Cancellation Notice")
within thirty (30) days after the date of occurrence of such damage. If neither
party shall elect to terminate this Lease, the repair of such damage shall be
governed by Section 13.1 or Section 13.2, as the case may be.
11.3 With respect to destruction and restoration:
11.3.1 If the Premises is destroyed or damaged and Landlord
repairs or restores it pursuant to the provisions of this Article, Tenant shall
continue the operation of its business in the Premises to the extent reasonably
practicable from the standpoint of prudent business management, and the Rent
payable hereunder for the period during which such damage, repair, or
restoration continues shall be abated in proportion to the degree of which
Tenant's use of the Premises is impaired. Tenant shall have no claim against
Landlord for any damage suffered by Tenant by reason of such damage,
destruction, repair, or restoration.
11
11.3.2 If Landlord shall be obligated to repair or restore the
Premises under the provisions of this Article and if Landlord shall not commence
such repair or restoration within ninety (90) days after such obligation shall
accrue, and thereafter diligently pursue same in a reasonable manner to
completion, Tenant may at its option cancel and terminate this Lease, as its
sole and exclusive remedy against Landlord, as of the date of occurrence of such
damage by giving Landlord written notice of its election to do so at any time
prior to the commencement of such repair or restoration or after commencement,
at such time as Landlord has commenced such repair or restoration but Landlord
has failed to diligently pursue same and Tenant has given Landlord written
notice of such failure and fifteen (15) days have elapsed since Landlord's
receipt of Tenant's notice therefor and Landlord has not recommenced such repair
or restoration.
11.4 In the event of any reconstruction of the Premises under this
Article, said reconstruction shall be in substantial conformity with the
condition of the Premises which Landlord was required to deliver at the
Commencement Date and Landlord's obligation to reconstruct the Premises shall be
only to the extent of such condition. Tenant, at its sole cost and expense,
shall be responsible for the repair and restoration of all items constructed on
or brought upon the Premises by Tenant and the replacement of its stock in
trade, trade fixtures, furniture, furnishings, and equipment and merchandise
hereof promptly upon delivery to it of possession of the Premises and shall
diligently prosecute such installation to completion.
11.5 Upon any termination of this Lease under any of the provisions of
this Article, the parties shall be released thereby without further obligations
to the other party coincident with the surrender of possession of the Premises
to Landlord except for items which have theretofore accrued and be then unpaid.
11.6 For the purpose of this Article,
11.6.1 "substantial" damage to the Premises shall be deemed to
be damage, the estimated cost of repair of which exceeds ten percent (10%) of
the replacement cost of the Building or the Premises, as the case may be; and
11.6.2 the determination in good faith by Landlord, provided
same is based upon a construction bid from a reputable general contractor, or
appropriate subcontractors, of the estimated cost of repair of any damage and/or
of the estimated replacement cost of any Improvements shall be conclusive for
the purpose of this Article.
ARTICLE 12
CONDEMNATION
12.1 If, during the Term, the entire Premises or the Building, or such
portion thereof as Landlord, in its reasonable discretion, determines would
render the Premises or the Building unusable, shall be taken as the result of
the exercise of the power of eminent domain or conveyed under threat thereof
(hereinafter referred to as the "Proceedings"), this Lease and all right, title
and interest of Tenant hereunder shall terminate on the earlier of taking of
possession by the condemning authority or the date of vesting of title pursuant
to such Proceedings. The entire condemnation award for the Premises shall be
payable to Landlord without any deduction for the value of Tenant's leasehold
estate; provided, however, that Tenant shall be entitled to such award as may be
allowed for such trade fixtures and other personal property of Tenant as Tenant
has a right to remove at the expiration of this Lease as provided hereunder, as
well as any relocation expenses to which Tenant is entitled under applicable
law.
12
12.2 If during the Term, less than the entire Premises or the Building
shall be taken, but such taking, in Landlord's reasonable judgment, shall not
render the Premises or the Building unusable, this Lease, upon the earlier of
taking of possession by the condemning authority or vesting of title in the
Proceedings, shall terminate as to the parts so taken. Landlord and Tenant shall
each be entitled to awards for damages as set forth in Section 12.1. If this
Lease is not terminated following such a condemnation or taking, Landlord, as
soon as reasonably practicable after such condemnation or taking and the
termination and payment of Landlord's award on account thereof, shall expend as
much as may be necessary of the net amount which is awarded to Landlord and
released by Mortgagee, if any, in restoring, to the extent originally
constructed by Landlord (consistent, however, with zoning laws and building
codes then in existence), so much of the Premises as was originally constructed
by Landlord to an architectural unit as nearly like its condition prior to such
taking as shall be practicable. Should the net amount so awarded to Landlord be
insufficient, in the reasonable estimate of Landlord, to cover the cost of
restoring the Premises and the Building, Landlord may, but shall have no
obligation to, supply the amount of such insufficiency and restore the Premises
to such an architectural unit, with all reasonable diligence, or Landlord may
terminate this Lease by giving notice to Tenant within a reasonable time after
Landlord has determined the estimated net amount which may be awarded to
Landlord and the estimated cost of such restoration. If the net amount so
awarded is insufficient to restore the Premises and the Building and should
Landlord elect not to pay the insufficiency, Landlord shall, prior to electing
to terminate this Lease, notify Tenant, in writing, of the amount of such
deficiency and Tenant shall have fifteen (15) days after receiving Landlord's
notice within which to advise Landlord, in writing, whether or not Tenant elects
to pay such insufficiency and, if so, to simultaneously deliver to Landlord a
check in payment of the amount of the insufficiency. If Tenant does not timely
elect and pay to Landlord the amount of such insufficiency, this Lease shall
terminate immediately.
12.3 In the event of any termination of this Lease, or any part
thereof, as a result of any such Proceedings, Tenant shall pay to Landlord all
Rent and all other charges payable hereunder with respect to that portion of the
Premises so taken, apportioned to the date of such termination.
12.4 If Landlord does not elect to terminate this Lease in the event of
a partial taking of the Premises or the Building, the Rent payable hereunder
during the period from and after the earlier of the taking of possession by the
condemning authority and the date of vesting of title in such Proceedings
through to the expiration or termination of this Lease (as the Term may be
extended) shall xxxxx and be diminished in proportion to the reduction in
rentable area of the Premises by reason of the condemnation or taking.
13
ARTICLE 13
ASSIGNMENT AND SUBLETTING
13.1 Tenant, shall not, any time during the Term, without Landlord's
advance written consent, which consent will not be unreasonably withheld,
delayed or conditioned. (a) assign or transfer this Lease or any interest under
it; or (b) sublet the Premises or any part thereof. If Landlord does consent to
such assignment or subletting the same shall not relieve Tenant from liability
for performance of any covenant or obligation hereunder. The word "assignment"
as used herein shall include a mortgage or other encumbrance of this Lease or of
the Premises or any part thereof or a transfer of a controlling interest in, the
ownership interest of Tenant or of any entity directly or indirectly controlling
Tenant. Notwithstanding the foregoing, Landlord's consent shall not be required
in the event Tenant desires to assign this Lease or sublet all or any portion of
the Premises to any subsidiary of Tenant, or any direct or indirect subsidiary
of Tenant's parent corporation (an "Affiliate") or should Tenant or its parent
corporation merge with another entity or sell all or a substantial portion of
Tenant's assets (including Tenant's interest in the Lease) to a third party (the
"Successor"), provided the Successor's net worth (determined in accordance with
generally accepted accounting principles) is at least equal to or better than
that of Tenant at the time of such assignment or sublet or on the date hereof,
whichever is better. Landlord shall have fifteen (15) days from the date of
Landlord's receipt of Tenant's written request for consent to assign or sublet
and receipt by Landlord of all information reasonably requested by Landlord,
within which to respond, in writing, to such Tenant's request. In determining
whether or not to grant or withhold its consent, Landlord may consider, without
limitation, the following factors: (a) the assignee's or sublessee's use of the
Premises; (b) the assignee's or sublessee's financial status and
creditworthiness (as compared to the Tenant at the Commencement Date); ( c) the
compatibility of the assignee and/or sublessee and its use with or upon other
owners, tenants and buildings, or proposed owners, tenants or buildings; (d) the
use of hazardous or toxic materials; (e) any increased costs or risks which may
be suffered by Landlord or any of the other tenants in the Building; (f) parking
requirements; (g) the effect of such assignee or sublessee upon Landlord's sales
and leasing operations within the Development; and (h) any need to alter the
Premises. Notwithstanding Tenant's continuing liability hereunder, the financial
ability of any proposed assignee or sublessee and of the required sureties shall
be deemed to be material in Landlord's consideration of any proposed assignment
or sublet hereunder. Any attempted assignment, transfer, or subletting without
such consent shall, at the option of Landlord, constitute grounds for
termination of this Lease or an Event of Default under Article 10 of this Lease.
Landlord shall have the right to require Tenant to furnish Landlord with any
information reasonably requested by Landlord relating to proposed assignee's or
sublessee's financial condition, the proposed assignee's or sublessee's business
history and background, including that of the principals, and the financial
condition of any required sureties. If it shall be determined by a court having
proper jurisdiction that Landlord's consent has been unreasonably withheld,
Landlord shall in no event be liable for any money judgment by reason thereof.
Notwithstanding any provision in this Lease to the contrary, if an Event of
Default has occurred which is continuing, Landlord may withhold its consent to
any assignment or subletting in its sole and absolute discretion.
13.2 If Tenant shall assign this Lease, the assignee expressly shall
assume in writing all of the obligations of Tenant hereunder and the assigning
Tenant shall not be relieved of any obligations under this Lease.
13.3 Tenant shall be required to furnish to Landlord, within no more
than ten (10) days from the date of such occurrence, copies of all documents
evidencing any such assignment and assumption or sublease. Each subletting or
assignment to which Landlord has consented shall be by an instrument in writing
in form reasonably satisfactory to Landlord, and shall be executed by the
sublessor or assignor and by the sublessee or assignee in each instance, as the
case may be, and each sublessee or assignee shall agree in writing for the
benefit of Landlord herein to assume, to be bound by, and to perform the terms,
covenants, and conditions of this Lease to be done, kept, and performed by
Tenant.
14
19.16 Intentionally Deleted
13.5 Tenant shall be responsible to pay to Landlord reasonable
attorneys' and reasonable accountants' fees and costs incurred by Landlord
relating to assignment of this Lease or subletting of the Premises, said payment
being due from Tenant to Landlord simultaneously with the granting of Landlord's
consent. Cost not to exceed $1,000.00
13.6 If Tenant shall either assign this Lease or sublease (singularly
or in the aggregate) a portion or all of the Premises and the rent or any other
compensation paid or called for to be paid in such sublease, exceeds the Rent or
pro rata portion of the Rent, as the case may be, for the Premises or portion
thereof, Tenant shall pay Landlord fifty percent (50%) of such excess (after
deduction of Tenant's reasonable direct out of pocket expenses associated with
such assignment or subleasing, including, without limitation, reasonable
attorneys' fees and free rent periods, subtenant improvements (amortized over
the term of the sub-tenant's or assignee's lease), and costs and brokerage fees
incurred in connection with such assignment) when received by Tenant.
13.7 In the event an order for relief is entered in favor of Lessee
under the provisions of the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C.
ss.101 et seq. (hereinafter referred to as the "Bankruptcy Code"), this Lease
may not be assigned by Tenant or any Trustee of Tenant unless this Lease is
first assumed in accordance with the provisions of Section 365 of the Bankruptcy
Code. At the time of such assumption, Tenant or Tenant's Trustee shall cure all
defaults under this Lease, which, with respect to the curing of rent arrearages,
shall require full payment thereof, in cash or cash equivalent, on or before the
assumption, and Tenant or Tenant's Trustee shall provide adequate assurance of
future performance by the assignee under this Lease, including, without
limitation, the deposit with Lessor of a security deposit in an amount
equivalent to the monthly rental due for the next succeeding three (3) months
after the assumption. In the event this Lease is assigned to any person or
entity pursuant to the provisions of the Bankruptcy Code, any and all monies or
other consideration payable or otherwise to be delivered in connection with such
assignment shall be and remain the exclusive property of Lessor and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other consideration constituting
Tenant's property under the preceding sentence not paid or delivered to Lessor
shall be held in trust for the benefit of Landlord and be promptly paid or
delivered to Landlord. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease and any amendments and/or rules and regulations relating thereto, on and
after the date of such assignment.
15
ARTICLE 14
SUBORDINATION,
NON-DISTURBANCE,
NOTICE TO MORTGAGEE AND
ATTORNMENT
14.1 This Lease is and shall be subject and subordinate to the lien of
any mortgage, deed of trust, security instrument or other document of like
nature, hereinafter referred to as "Mortgage", which is or at any time may be
placed upon the Premises, or any portion thereof or any interest therein, and to
all present and future ground or underlying leases of the Land, and to any
replacements, renewals, amendments, modifications, extensions or refinancing of
any of the foregoing, and to each and every advance made under any Mortgage
(unless the Mortgagee requires in writing that this Lease be superior thereto);
provided that the Mortgagee agrees in writing that so long as no Event of
Default is continuing, neither Tenant's right to quiet enjoyment under this
Lease, nor the right of Tenant to continue to occupy the Premises and all
portions thereof, and to conduct its business thereon in accordance with the
covenants, conditions, provisions, terms and agreements of this Lease, shall be
interfered with or disturbed by Landlord or anyone claiming by, through or under
Landlord, including Mortgagee. Tenant agrees at any time hereafter, and from
time to time within thirty (30) days after demand of Landlord, to execute and
deliver to Landlord any instruments, releases or other documents that reasonably
may be required to effect or confirm the subordination or superiority of this
Lease to the lien of any such Mortgage or to any such ground or underlying
lease. The lien of any Mortgage shall not cover Tenant's trade fixtures or other
personal property located in or on the Premises.
14.2 If any Mortgagee shall succeed to the rights of Landlord under
this Lease or to ownership of the Premises, whether through foreclosure or the
delivery of a deed in lieu thereof, then upon the written request of such
Mortgagee, and provided that such Mortgagee agrees in writing to assume and be
bound by all of Landlord's obligations hereunder, Tenant shall attorn to and
recognize such Mortgagee as Tenant's landlord under this Lease, and shall
execute and deliver any instrument that such Mortgagee may reasonably request to
evidence such attornment. Subject to the terms of Section 19.7 hereof, in the
event of any other transfer of Landlord's interest hereunder, upon the written
request of the transferee and Landlord, and provided such transferee agrees in
writing to assume and be bound by all of Landlord's obligations hereunder,
Tenant shall attorn to and recognize such transferee as Tenant's landlord under
this Lease and shall execute and deliver any instrument that such transferee and
Landlord reasonably may request to evidence such attornment.
14.3 In the event of any act or omission by Landlord which would give
Tenant the right to terminate this Lease or to claim a partial or total
eviction, Tenant shall not exercise any such right until (i) it has notified
Mortgagee in writing if the name and address of Mortgagee shall previously have
been furnished by written notice to Lessee, of such act or omission, and (ii) a
reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice, provided such holder, with reasonable
diligence, shall have commenced and continued to remedy such act or omission or
to cause the same to be remedied. During the period between the giving of such
notice and the remedying of such act or omission, the Base Rent, and any
Additional Rent due hereunder shall be abated and apportioned to the extent that
any part of the Premises shall be untenantable.
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19.16.1 Within ten (10) days after written request by Landlord, Tenant
shall deliver in a form supplied by Landlord, an estoppel certificate to
Landlord as to the status of this Lease, including whether this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that this Lease is in full force and effect as modified and identifying the
modification agreements); the amount of Base Rent and Additional Rent then being
paid and the dates to which same have been paid; whether or not there is any
existing or alleged default by either party with respect to which a notice of
default has been served, or any facts exist which, with the passing of time or
giving of notice, would constitute a default, and if there is any such default
or facts, specifying the nature and extent thereof; and any other matters
pertaining to this Lease as to which Landlord shall request such certificate.
Landlord, and any prospective purchaser, lender, or ground lessor shall have the
right to rely on such certificate.
19.17
ARTICLE 15
SIGNS
15.1 Tenant may not erect any signs on the exterior or interior of the
Improvements or on the landscaped area adjacent thereto or on the interior of
the Premises, which signs are visible from the exterior of the Premises, unless
such signs (i) do not cause any irreparable structural damage or other damage to
the Improvements; (ii) do not violate applicable governmental laws, ordinances,
rules or regulations; (iii) do not violate any covenants, conditions or
restrictions affecting the Premises and (iv) are in complete compliance with
Landlord's sign criteria, attached hereto as Exhibit D. Any signs on the
exterior of the Premises or on the interior of the Premises, which signs are
visible from the exterior of the Premises, shall require Landlord's prior
written consent, which consent will not be unreasonably withheld, delayed or
conditioned upon payment or consideration (except such payment or consideration
as is required to be paid or made under this Lease). Specifications for the
initial signs to be affixed to the Premises shall be submitted by Tenant to
Landlord, for Landlord's approval, so as to be included within the Working Plans
(as defined in the Workletter), which sign specifications, when approved, shall
then become a part of the Working Plans. The cost for such approved signs shall
be borne by Tenant.
ARTICLE 16
LANDLORD'S ACCESS
16.1 Tenant agrees to permit Landlord and its authorized
representatives, at Landlord's sole cost and expense, to enter upon the Premises
at all reasonable times during ordinary business hours, upon not less than
twenty-four (24) hours' prior notice (except in the event of an emergency in
which event no prior notice will be required), provided that Tenant's
representative is present for the purpose of inspecting the same and making any
necessary repairs or replacements which are the obligation of Landlord. Landlord
may, during the progress of any work required hereunder, keep and store upon the
Premises all reasonably necessary materials, tools and equipment. Landlord shall
use good faith effort to avoid interfering with Tenant's use of the Premises.
16.2 Landlord is hereby also given the right at all reasonable times
during ordinary business hours, upon not less than two (2) hours' prior notice,
to enter upon the Premises and to exhibit the same for the purpose of mortgaging
or selling the same or, during the final twelve (12) months of the Term, leasing
the same.
16.3 In exercising its rights hereunder, Landlord shall use such
efforts as are reasonable under the circumstances to refrain from any acts which
may interfere with Tenant's use or occupancy of the Premises or access thereto.
Without limiting the generality of the foregoing, Landlord acknowledges that it
is necessary for Tenant to control access to the Premises in order to avoid
unauthorized persons from viewing Tenant's trade secrets, proprietary products,
technology and/or processes. Accordingly, while within the Premises, Landlord
and its representatives, at Tenant's option, and to the extent reasonable under
the circumstances, shall be accompanied by a representative of Tenant and shall
comply with reasonable directions of such representative relative to safety and
to the protection of Tenant's trade secrets and other proprietary information.
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ARTICLE 17
SURRENDER AND HOLDING-OVER
17.1 Upon termination of this Lease, whether by forfeiture, lapse of
time or otherwise, or upon termination of Tenant's right to possession of the
Premises, Tenant will at once surrender and deliver up the Premises, together
with all improvements thereon, to Landlord, in good condition and repair,
reasonable wear and tear and damage by casualty and condemnation excepted. Said
improvements shall include all plumbing, lighting, electrical, heating, cooling
and ventilating fixtures and equipment, and all alterations.
17.2 Upon termination of this Lease, Tenant shall remove Tenant's
personal property, trade fixtures and equipment (to the extent the same do not
constitute an integral part of the Premises); provided, however, that Tenant
shall repair any injury or damage to the Premises which may result from such
removal and shall restore the Premises to the same condition as existed prior to
the installation thereof. If Tenant does not remove Tenant's personal property,
trade fixtures and equipment from the Premises prior to the expiration or
earlier termination of the Term, Landlord, upon five (5) days' notice to Tenant,
at its option, may remove the same (and repair any damage occasioned thereby)
and dispose thereof or deliver the same to any other place of business of Tenant
or warehouse the same, and Tenant shall pay the cost of such removal, repair,
delivery and warehousing to Landlord within thirty (30) days after demand
therefor.
17.3 Tenant shall have no right to occupy the Premises or any portion
thereof after the expiration of this Lease or after the termination of this
Lease or of Tenant's right to possession pursuant to Article 10 hereof. In the
event Tenant or any party claiming by, through or under Tenant holds over,
Landlord may exercise any and all remedies available to it at law or in equity
to recover possession of the Premises, and for damages. Notwithstanding anything
contained herein to the contrary, in the event Tenant or any party claiming by,
through or under Tenant holds over after the expiration of the Term, Landlord
may elect, in lieu of, or in addition to, any other remedy provided by law or
herein, that the same shall constitute a month-to-month tenancy upon the same
terms as in this Lease at a rate of Rent equal to one hundred and fifty percent
(150%) of the monthly Rent for the month in which the Term expires.
ARTICLE 18
HAZARDOUS AND
TOXIC MATERIALS
18.1 As used herein:
18.1.1 "Claim" shall mean and include any demand, cause of
action, Proceeding or suit (i) for damages, liabilities, costs, losses, injuries
to person or property, damages to natural resources, fines, penalties, interest,
or contribution; (ii) for the costs of site investigations, feasibility studies,
information requests, health or risk assessments or Response (as such term is
herein defined) actions; or (iii) for enforcing this Article 18.
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18.1.2 "Environmental Law" shall mean and include all federal,
state and local statutes, ordinances, regulations and rules relating to
environmental quality, health, safety, contamination and clean-up, including,
without limitation, the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean
Water Act, 33 U.S.C. Section 1251 et seq., and the Water Quality Act of 1987;
the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.W.
Section 136 et seq.; the Marine Protection, Research, and Sanctuaries Act, 33
U.S.C. Section 1401 et seq.; the National Environmental Policy Act, 42 U.S.C.
Section 4321 et seq.; the Noise Control Act, 42 U.S.C. Section 4901 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., as
amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et
seq., as amended by the Superfund Amendments and Reauthorization Act; the
Emergency Planning and Community Right-to-Know Act; the Radon Gas and Indoor Air
Quality Research Act; the Toxic Substances Control Act ("TSCA"), 15 U.S.C.
Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et seq., and
the Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and any
state lien and superlien and environmental clean-up statutes, with implementing
regulations and guidelines. Environmental Laws shall also include all state,
regional, county, municipal and other local laws, regulations and ordinances
insofar as they are equivalent or similar to the federal laws recited above or
purport to regulate Hazardous Materials.
18.1.3 "Hazardous Materials" shall mean and include the
following, including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under CERCLA or RCRA;
oil and petroleum products and natural gas, natural gas liquids, liquefied
natural gas and synthetic gas usable for fuel; pesticides regulated under FIFRA;
asbestos and asbestos-containing materials, PCBs and other substances regulated
under TSCA; source material, special nuclear material, byproduct material and
any other radioactive wastes, however produced, regulated under the Atomic
Energy Act or the Nuclear Waste Policy Act; and chemicals subject to the OSHA
Hazard Communication Standard, 29 C.F.R. 1910.1200 et seq., and any other
hazardous or toxic substance, material or water which is or becomes regulated by
any local, state or federal government or special district.
18.1.4 "Manage" or "Management" means to generate,
manufacture, process, treat, store, use, re-use, refine, recycle, reclaim, blend
or burn for energy recovery, incinerate, accumulate speculatively, transport,
transfer, dispose of or abandon Hazardous Materials into the environment, as
"environment" is defined in CERCLA.
18.1.5 "Release" or "Released" shall mean any actual or
threatened spilling, leaking, pumping, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of Hazardous Materials into
the environment, as "environment" is defined in CERCLA.
18.1.6 "Response" or "Respond" shall mean action taken in
compliance with Environmental Laws to correct, remove, remediate, clean up,
prevent, mitigate, monitor, evaluate, investigate, assess or xxxxx the Release
of a Hazardous Material.
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18.2 During the Term, Tenant, at its sole cost and expense, shall (a)
comply with all the Environmental Laws relating to its use of the Premises, and
permits issued thereunder; (b) conduct any Management of Hazardous Materials by
Tenant on the Premises in compliance with Environmental Laws; (c)(c) not cause
or allow the Release of any Hazardous Materials on, to or from the Premises,
except in compliance with Environmental Laws and permits issued thereunder; (d)
arrange for the lawful transportation and off-site disposal of all Hazardous
Materials that it generates; and (e) secure, maintain, and comply with all
permits required by Environmental Laws in connection with Tenant's use of the
Premises. Prior to using, storing, or maintaining any Hazardous Materials on or
about the Premises, Tenant shall provide to Landlord a plan regarding Hazardous
Waste Management (a "Management Plan") which shall include a list of the types
and quantities of any Hazardous Materials to be used, stored, or maintained, a
description of the response steps Tenant shall take to inspect for, detect,
minimize, and mitigate any release of Hazardous Materials and the name,
telephone number and qualification of a licensed company that will handle
emergency clean-up for Tenant. Tenant shall immediately deliver to Landlord a
revised Management Plan each time the Tenant adds or changes the types and
quantities of Hazardous Materials to be used, stored or maintained. Tenant shall
at all times strictly comply with the Management Plan. Tenant shall also provide
Landlord with a copy of any Hazardous Materials inventory statement required by
any applicable regulations or Environmental Laws, and any reports required by
any and all regulatory agencies.
18.3 Tenant shall give written notice to Landlord at least seven (7)
days in advance of any production, generation, handling, storage, treatment,
transportation, disposal, release, or removal of hazardous waste or hazardous
substances from or on the Premises. Tenant warrants and represents that it will
not use or employ Landlord's and/or the Building property, facilities,
equipment, or services to handle, transport, store, treat, or dispose of any
hazardous waste or hazardous substance, whether or not it was generated or
produced on the Premises; and Tenant further warrants and represents that any
activity on or relating to the Premises shall be conducted in full compliance
with all applicable laws. In addition, Landlord reserves the right to cause the
Premises to be periodically inspected (but not more than one (1) time per
calendar quarter) by a reputable environmental consulting firm. The cost of such
inspections, as well as the cost to comply with such consultant's
recommendations, shall be fully paid by Tenant within ten (10) days after
receiving a statement of charges from Landlord.
18.4 Tenant shall provide Landlord with the results of environmental
studies, reports and tests, with transportation and disposal contracts for
Hazardous Materials, with any permits issued under Environmental Laws and with
any other relevant or applicable documents pertaining to the condition of the
Premises or demonstrating that Tenant complies with this Article 18 and all
Environmental Laws relating to the Premises. Landlord agrees that any documents
or information furnished by Tenant to Landlord under this Article 18 shall be
confidential and shall not be disclosed to any third party (with the exception
of Mortgagees, prospective purchasers, or Landlord's attorneys, underwriters,
consultants, contractors, and investors), unless required by law, without the
prior consent of Tenant, which consent will not be unreasonably withheld.
18.5 If Tenant's Management of Hazardous Materials at the Premises or
Tenant's use of the Premises (a) results in a Release which is not in compliance
with Environmental Laws or permits issued thereunder; (b) gives rise to
liability or a Claim or requires a Response under common law or any
Environmental Law or permit issued thereunder; (c) causes a significant public
health effect; or (d) creates a nuisance, Tenant, in any and all such
occurrences and at its sole cost and expense, shall: (i) immediately notify
Landlord verbally and in writing of any Release, which notice shall identify the
Hazardous Materials involved and the emergency procedures taken or to be taken;
and, (ii) promptly take all applicable action in Response in compliance with all
applicable laws; provided that Landlord's approval of the remediation plan to be
undertaken by Tenant shall first be obtained.
18.6 Any increase in the premium for any insurance carried by Landlord
on the Building which arises from Tenant's use and/or storage of Hazardous
Materials shall be fully paid by Tenant within ten (10) days after Tenant's
receipt of a statement from Landlord. Tenant shall procure and maintain at its
sole cost and expense, such additional insurance as may be necessary to comply
with any requirement of any federal, state or local governmental agency or
special district.
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18.7 If the Tenant shall breach any of the warranties, representations,
agreements or covenants in this Article 18 or if the presence of Hazardous
Materials on the Premises caused or permitted by Tenant results in contamination
of the Premises, the Building or any adjacent real properties, then Tenant shall
indemnify, defend and hold Landlord, its partners, officers, managing agents and
mortgagees, their heirs, successors and assigns, harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities and losses
(including without limitation, diminution in value of the Premises, the Building
or the Development, damages for the loss or restriction on the use of rentable
or usable space or any amenity of the Premises or the Building, damages arising
from any adverse impact on marketing of space in the Building or the
Development, sums paid in settlement of claims, actual attorneys' fees and
costs, whether suit is brought or not, consultant's fees and expert fees) which
arise during or after the term of the Lease as a result of such contamination.
This indemnification includes, without limitation, costs incurred in connection
with any investigation of site conditions, including regular inspections, or any
clean-up, remedial, removal or restoration work required or recommended by any
federal, state or local governmental agency or political subdivision because of
the presence of Hazardous Materials. The indemnity, defense and hold harmless
obligations of Tenant set forth in this Section 18 shall survive the expiration
or earlier termination of this Lease.
18.8 Landlord warrants that at the time of the Lease commencement, the
Premises shall be materially free of the presence of contamination from
Hazardous Materials, Landlord shall indemnify, defend and hold Tenant harmless
from any and all claims, judgments, damages, penalties, costs, liabilities and
loss arising from any contamination which precedes the Commencement Date,
arising directly from any contamination caused by any act or omission of
Landlord, except as may be set forth in this Lease.
ARTICLE 19
MISCELLANEOUS PROVISIONS
19.1 To the fullest extent allowed by law, Tenant, at all times, shall
indemnify, defend and hold Landlord, its officers, directors, employees and
agents, harmless from and against any and all claims by or on behalf of any
person or persons, firm or firms, corporation or corporations, arising from the
conduct or management of or from any work or things whatsoever done in or about,
the Premises (except to the extent arising out of Landlord's negligence or other
wrongful conduct), and further will indemnify, defend and hold Landlord, its
officers, directors, employees, and agents, harmless against and from any and
all claims arising during the Term and based upon any breach or default on the
part of Tenant in the performance of any covenant or agreement on the part of
Tenant to be performed pursuant to the terms of this Lease, or arising from any
act or neglect of Tenant, its agents, servants, employees, licensees, or
contractors, or arising, from any accident, injury or damage whatsoever caused
to any person, firm or corporation occurring during the Term in or about the
Premises, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in or with respect to any such claim or action or
proceeding brought thereon. To the fullest extent allowed by law, Landlord, at
all times, shall indemnify, defend and hold Tenant, its officers, directors,
employees, and agents, harmless from and against any and all claims by or on
behalf of any person or persons, firm or firms, corporation or corporations,
arising from the conduct or management of, or from any work or things whatsoever
done in or about, the Premises to the extent arising out of Landlord's
negligence or other wrongful conduct, and further will indemnify, defend and
hold Tenant, its officers, directors, employees, and agents harmless against and
from any and all claims arising during the Term and based upon any breach or
default on the part of Landlord in the performance of any covenant or agreement
on the part of Landlord to be performed pursuant to the terms of this Lease, or
arising from any act or neglect of Landlord, its agents, servants, employees,
licensees or contractors, whenever and wherever occurring or arising from any
accident, injury or damage whatsoever caused to any person, firm or corporation
occurring prior to or after the Term in or about the Premises, and from and
against all costs, attorneys' fees, expenses and liabilities incurred in
connection with any such claim or action or a proceeding brought thereon.
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19.2 All notices, demands and requests which may not be or are required
to be given, demanded or requested by either party to the other shall be in
writing. All notices, demands and requests by Landlord to Tenant shall be sent
by United States registered or certified mail, postage prepaid, or by commercial
overnight delivery service or other personal delivery service (with evidence or
receipt), addressed as follows:
World Diagnostics, Inc.
00000 XX 00xx Xxxxxx
Xxxxx, XX 00000
with a copy to Tenant at the Premises or at such other place as Tenant may from
time to time designate by written notice to Landlord. All notices, demands and
requests by Tenant to Landlord shall be sent by United States registered or
certified mail, postage prepaid, or by commercial overnight delivery service or
other personal delivery service (with evidence of receipt), addressed to
Landlord as follows:
Cap-East Associates
00000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
With copy to:
Xxxxxxx X. Xxxxxx, Esquire
Xxxxxxxxx Traurig
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such other place as Landlord from time to time may designate by written
notice to Tenant. Notices, demands and requests which shall be served upon
Landlord by Tenant, or upon Tenant by Landlord, by mail in the manner aforesaid,
shall be deemed served or given on the second business day after mailing; and
notices served by overnight delivery service shall be deemed served or given on
the second (2nd) business day after delivery to such service, and notices served
by personal delivery shall be deemed served or given upon delivery or attempted
delivery.
19.3 Landlord covenants and agrees that Tenant, upon paying the Rent,
and upon observing and keeping the covenants, agreements and conditions of this
Lease on its part to be kept, observed and performed, shall lawfully and quietly
hold, occupy and enjoy the Premises (subject to the provisions of this Lease)
during the Term (as it may be extended from time to time as expressly provided
herein) without hindrance or molestation by Landlord or by any person or persons
claiming under Landlord.
19.4 Tenant and Landlord, each without charge at any time and from time
to time, within twenty (20) days after written request by the other party, shall
certify by written instrument, duly executed, acknowledged and delivered to any
Mortgagee, assignee of a Mortgagee, proposed Mortgagee, or to any purchaser or
proposed purchaser or transferee of Landlord, Tenant, or the Premises or any
interest therein:
19.4.1 that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the same is in full force and
effect, as modified, and identifying the modifications);
19.4.2 the amount of Base Rent and Additional Rent then being
paid and the dates to which the Rent has been paid in advance;
19.4.3 whether to the best of its knowledge or not there is
any existing or alleged any breaches or defaults committed by the Landlord, or
otherwise existing under this Lease, and specifying in detail such breach or
default, if any, or any set-offs or defenses against the enforcement of any
covenant, condition, provision, term or agreement of this Lease, as the case may
be, to be performed or complied with (and, if so, specifying the same and the
steps being taken to remedy the same);
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19.4.4 that Tenant has made no advancements to or on behalf of
Landlord for which it has the right to deduct from, or offset against, future
Rent payments;
19.4.5 Tenant has accepted the Premises and is in full and
complete possession thereof;
19.4.6 the Commencement Date and the Termination Date; and
19.4.7 such other statements or certificates as Landlord or
any Mortgagee may reasonably request.
19.5 Upon not less than thirty (30) days' prior written request, by
either party, the parties hereto agree to execute and deliver to each other a
memorandum of lease, in recordable form, setting forth the following:
19.5.1 the date of this Lease;
19.5.2 the parties to this Lease;
19.5.3 the Term of this Lease;
19.5.4 the extension options set forth in Addendum 1;
19.5.5 the legal description of the Premises; and
19.5.6 such other matters reasonably requested by Landlord or
Tenant to be stated therein.
19.6 Tenant shall not use the Premises for any other use or purpose
other than the "Intended Use" without the prior written consent of Landlord,
which consent will not be unreasonably withheld or delayed or conditioned upon
payment or any consideration (except payments or consideration to be paid under
this Lease). In the event, subsequent to the Effective Date, Tenant proposes to
change the use of the Premises to other than the Intended Use and Landlord had
previously granted to either a tenant within the Development, or a purchaser of
a parcel within the Development, or if Landlord is currently negotiating with a
proposed Tenant or owner, either an exclusive use ("Exclusive Use") or an
agreement of restrictive covenant or covenants ("Covenants"), Tenant shall not
be permitted to use the Premises in such a manner that would cause a violation
of such Exclusive Use or Covenants. In determining whether to permit any
proposed New Use, the Landlord may consider, without limitation: (a) the effect
or possible effect upon other tenants and owners in the development; (b) the use
of hazardous, toxic or dangerous materials; (c) parking requirements; (d) damage
or alterations, or potential damage or alterations to the Premises; or (e) the
effect or potential effect upon future sales or leases within the Development.
If any covenant, condition, provision, term or agreement of this Lease shall, to
any extent, by held invalid or unenforceable, the remaining covenants,
conditions, provisions, terms and agreements of this Lease shall not be affected
thereby, but each covenant, condition, provision, term or agreement of this
Lease shall be valid and in force to the fullest extent permitted by law. This
Lease shall be construed and be enforceable in accordance with the laws of the
State of Florida.
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19.7 The covenants and agreements herein contained shall bind and inure
to the benefit of Landlord and its successors and assigns, and Tenant and its
successors and assigns.
19.8 The caption of each article of this Lease is for convenience and
reference only and in no way defines, limits or describes the scope or intent of
such article or of this Lease.
19.9 This Lease does not create the relationship of principal and
agent, or of partnership, joint venture, or of any association or relationship
between Landlord and Tenant, the sole relationship between Landlord and Tenant
being that of landlord and tenant.
19.10 All preliminary and contemporaneous negotiations are merged into
and incorporated in this Lease. This Lease contains the entire agreement between
the parties and shall not be modified or amended in any manner except by an
instrument in writing executed by the parties hereto.
19.11 There shall be no merger of this Lease or the leasehold estate
created by this Lease with any other estate or interest in the Premises by
reason of the fact that the same person, firm, corporation or other entity may
acquire, hold or own directly or indirectly, (a) this Lease or the leasehold
interest created by this or any interest therein, and (b) any other estate or
interest in the Premises or any portion thereof. No such merger shall occur
unless and until all persons, firms, corporations or other entities having an
interest (including a security interest) in (1) this Lease or the leasehold
estate created hereby, and (2) any such other estate or interest in the Premises
or any portion thereof, shall join in a written instrument expressly effecting
such merger and shall duly record the same.
19.12 All obligations, monetary or otherwise, accruing prior to
expiration of the Term (as it may be extended from time to time) shall survive
the expiration or other termination of this Lease.
19.13 Time is of the essence of this Lease, and all provisions relating
thereto shall be strictly construed.
19.14 Each party represents and warrants to the other that the only
broker, finder or other agent each has used in connection with this agreement
and the transaction contemplated hereby is and has been Easton & Associates and
Codina Realty Services (singularly and collectively, the "Broker"). Each party
agrees to indemnify the other party for any claim for brokerage commission or
finder's fee asserted by a person, firm or corporation other than the Broker
claiming to have been engaged by the indemnifying party. Landlord agrees to pay
the Broker a brokerage commission upon execution of this agreement in accordance
with its agreement with the Broker.
19.15 To the extent either party indemnifies and agrees to defend the
other under the terms of this Lease, the indemnifying party shall have the right
to select counsel to undertake such defense, which counsel shall be reasonably
acceptable to the indemnified party.
19.16 Intentionally Deleted.
19.17 This Lease may be executed in counterparts, each of which when
taken together shall constitute one instrument.
19.18 This Lease represents the product of the joint negotiation,
preparation and agreement of and between the parties hereto and is not to be
construed against one party or the other as the principal drafter.
24
19.19 Provided Tenant is not in default beyond any applicable grace
periods, Tenant shall have the right ("Termination Option") to cancel this Lease
effective at the end of the 5th Lease Year ("the Termination Date"). Tenant may
only exercise the Termination Option by a written notice ("Termination Notice")
to Landlord not less than ninety (90) days prior to the effective date of such
termination. In the event that Tenant exercises the Termination Option, this
Lease shall terminate on the Termination Date and Tenant shall pay to Landlord
on or prior to the Termination Date a termination payment ("Termination
Payment") equal to the sum of the unamortized cost (calculated on a straight
line bases with no interest) of the Tenant Improvement Allowance and leasing
commissions paid by Landlord in connection with this Lease. In the event the
Tenant fails to pay the Termination Payment required herein, Tenant's exercise
of the Termination Option shall be deemed ineffective and void. On the
Termination Date, provided Tenant pays the Termination Payment, plus any other
sums then due and owing to Landlord under this Lease, to Landlord on or before
the Termination Date and surrenders the Premises to Landlord in the condition
required upon expiration of this Lease, Tenant shall be released from all
further obligations under this Lease accruing from and after the Termination
Date (except for any obligations which expressly survive termination or
expiration of this Lease).
ARTICLE 20
LANDLORD'S REPRESENTATIONS AND
WARRANTIES
In addition to the other representations and warranties made herein,
Landlord hereby represents and warrants to Tenant that as of the date hereof the
following representations and warranties are true, correct and complete and that
the same will be true, correct and complete on and as of the Commencement Date:
20.1 Landlord is the owner of the Premises in fee simple; and
20.2 Landlord has full power, right and authority to enter into this
Lease and to perform each and all of the terms, provisions, covenants,
agreements, matters and things herein provided to be performed by Landlord, and
to execute and deliver all documents provided hereunder to be executed and
delivered by Landlord; and this Lease does not, nor does or will the performance
by Landlord of its obligations hereunder, contravene any provision of law or any
covenant, indenture or agreement binding upon Landlord, upon the Premises or
upon the Land.
ARTICLE 21
RADON GAS
Radon is a 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 buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
ARTICLE 22
EXCULPATION
Except as expressly stated to the contrary in this Lease, no
enforceable default on the part of the Landlord shall be deemed to have occurred
unless Lessee shall have given Lessor notice of such default in which Lessee
shall specify the default, and Lessor shall have failed to have remedied such
default within thirty (30) days of the date thereof; provided, however if such
default is of a nature that it cannot reasonably be cured within said period,
then no enforceable default will be deemed to have occurred so long as Lessor is
diligently pursuing the cure thereof. Except as expressly stated to the contrary
in this Lease, or where Tenant's remedies are expressly stated, Tenant's sole
remedies shall be to seek damages or specific performance and Landlord shall in
no event be liable for consequential damages. Tenant agrees that it shall look
solely to the estate and property of Landlord in the building and real property
on any proceeds from the sale thereof for the collection of any judgment (or any
other judicial process) requiring the payment of money by Landlord in the event
of any default or breach by Landlord with respect to any of the terms,
covenants, and conditions of this Lease to be observed and performed by Landlord
and no other property or estates of Landlord or the entities comprising Landlord
shall be subject to levy, execution, or other enforcement procedures for the
satisfaction of Tenant's remedies.
25
ARTICLE 23
TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer or transfers of Landlord's interest in the
Premises, provided the transferee assumes in writing Landlord's obligations and
liabilities under this Lease accruing from and after the date of such transfer,
the transferor shall be automatically relieved of any and all obligations and
liabilities on the part of Landlord accruing from and after the date of such
transfer. All of the provisions of this Lease shall bind and inure to the
benefit of the parties hereto, and their respective heirs, legal
representatives, successors, and assigns.
ARTICLE 24
WAIVER
The waiver by Landlord of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition or any subsequent breach of the same or any other term,
covenant, or condition herein contained. The subsequent acceptance of Rent
hereunder 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 Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent. No covenant, term, or condition of this Lease shall be deemed to have been
waived by Landlord, unless such waiver be in writing by Landlord.
ARTICLE 25
ATTORNEYS' FEES AND COSTS
If, as a result of any breach or default in the performance of any of
the provisions of this Lease, either party hereto uses the services of an
attorney in order to secure compliance with such provisions or recover damages
therefor, and litigation results, then in such event, the prevailing party in
such litigation shall be entitled to recover from the nonprevailing party herein
reasonable court costs and attorneys' fees for both trial and appellate
proceedings.
ARTICLE 26
RENT PROVISION
Notwithstanding anything that may be contained in this Lease to the
contrary, no provision in this Lease shall be interpreted so as to have the
effect of providing for payment of Rent, or any increment thereof, based in
whole or in part on the income, net revenues, net income, or profits derived by
Tenant from the Premises, but may, if applicable, be construed to provide for
Rent, gross receipts or sales or otherwise included in the term "rents from real
property" as such term is defined in Section 856 (d) of the Internal Revenue
Code. Further, no assignment of this Lease, or sublet under this Lease, will be
approved if the effect thereof shall result in payment to Landlord of rental
based in whole or in part on the income, net revenues, net income, or profits
derived by Tenant, Tenant's assignee or Tenant's sublessee from the Premises,
but may, if applicable, result in payment to Landlord of rental based in part on
a fixed percentage of gross receipts or sales or otherwise included in the term
"rents from real property" as such term is defined in Section 856 (d) of the
Internal Revenue Code. All documents relating to any permitted assignment or
sublet shall refer to this restriction.
26
IN WITNESS WHEREOF, each of the parties has caused this Lease to be
duly executed as of the day and year first above written.
Witnesses as to Landlord: LANDLORD:
CAP-EAST ASSOCIATES,
------------------------------ a Florida general partnership
------------------------------ By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Printed Name: Xxxxxx X. Xxxxxx
---------------------
Title: President
----------------------------
Witnesses as to Tenant: TENANT:
WORLD DIAGNOSTICS, INC.,
------------------------------ a Delaware corporation
------------------------------ By: /s/ Xxx Xxxxxx
------------------------------
Printed Name: Xxx X. Xxxxxx
---------------------
Title: President and CEO
----------------------------
27
EXHIBIT A
Legal Description
A portion of Tracts 9, 10 and 64, "FLORIDA FRUIT LANDS COMPANYS' SUBDIVISION NO.
1" of Section 13, Township 52 South, Range 40 East, according to the plat
thereof as recorded in Plat Book 2 at Page 17 of the Public Records of Dade
County, Florida, all being more particularly described as follows:
Beginning at the southwesterly most corner of the plat of "MIAMI LAKES EAST
SECTION ONE", as recorded in Plat Book 122, Page 48 of the Public Records of
Dade County, Florida; thence North 00 degrees 06 minutes 50 seconds East, along
the west right of way line of N.W. 59th Avenue, as shown on the last mentioned
plat, for 235.20 feet; thence North 87 degrees 42 minutes 52 seconds West, along
the South line of "MIAMI LAKES EAST SECTION FIVE" (Plat Book 153, Page 49) of
the Public Records of Dade County, Florida for 460.33 feet; thence South 00
degrees 06 minutes 50 seconds West along a line 460.00 feet West of and parallel
with the West right of way line for X.X. 00xx Xxxxxx for 554.13 feet; thence
South 89 degrees 53 minutes 10 seconds East for 460.00 feet; thence North 00
degrees 06 minutes 50 seconds East along a line 35.00 feet West of an parallel
with the East line of said Tracts 9 and 64 for 301.49 feet to the Point of
Beginning.
00
XXXXXXX X
Xxxx Xxxx
Xxxxxxxx X
16250 N.W. 59th Avenue
Suite 208 & 209
Xxxxx Xxxxx, Xxxxxxx 00000
29
EXHIBIT C
WORKLETTER
1. Definitions. Terms which are defined elsewhere in this Lease shall
have the same meanings in this Workletter. Terms which are defined in this
Workletter shall have the same meanings elsewhere in this Lease. In addition to
the terms defined elsewhere in this Workletter, the following terms shall have
the following meanings:
a. "Completion Date" means the date on which Landlord's Work
is substantially completed, which is estimated to be, November 15, 2000 subject
to the provisions in item 5 below.
b. "Detailed Specifications" means the general description and
detailed specifications for Landlord's Work attached to this Workletter.
c. "Landlord's Architect" means Xxxxxxxxx, Xxxxxxx Architects.
d. "Landlord's Contractor" means Tower Group or such other
contractor hired by Landlord to do the Landlord's Work, which Contractor may be
an affiliate or related entity of Landlord.
e. "Landlord's Work" means the shell work required to be
performed by Landlord pursuant to Exhibit C-1 and the tenant improvement work
required to be performed by Landlord under this Workletter.
f. "Substantial completion" or "substantially completed" means
that the County of Miami-Dade, State of Florida has issued a final or temporary
certificate of occupancy for the Premises, subject to customary punchlist items.
g. "Working Plans" means the permitable working drawings,
plans and specifications for all of Landlord's Work, as approved by Tenant,
(other than for shell construction which is described in Exhibit C-1) which
approval Tenant will not unreasonably withhold or delay. The Working Plans shall
comply with those specifications set forth on Schedule One attached hereto.
2. Approval of Working Plans.
No later than four (4) weeks from approved floor plan, Landlord shall
at its sole cost and expense provide Tenant the Working Plans for Landlord's
Work, which shall incorporate all of the Detailed Specifications. The Working
Plans shall be subject to the reasonable approval of Tenant, which approval
Tenant will not unreasonably withhold or delay. Tenant assist in, cooperate
with, and respond promptly to all inquiries and other matters with respect to
the preparation of the Working Plans. The Working Plans shall be and remain the
property of Landlord and may be used by Tenant with respect to development of
the Premises hereunder and for no other reason.
30
3. Performance of Landlord's Work.
a. Landlord shall promptly cause the Landlord's Contractor to
do the Landlord's Work covered by the Working Plans as the same may be amended,
and approved by both Landlord and Tenant, from time to time in accordance with
the provisions of this Workletter.
b. Tenant may from time to time request revisions to the
Working Plans (a "Change") by sending written notice of such request to
Landlord. The cost of incorporating any Change requested by Tenant to the
approved Working Plans or Detailed Specifications shall be at Tenant's expense.
Within five (5) business days after receipt of such request, Landlord shall
notify Tenant in writing of Landlord's good faith estimate of the cost of
performing the work necessary to incorporate such Change into the Landlord's
Work. Landlord shall not cause Landlord's Contractor to commence any work
necessary to incorporate a Change into the Landlord's Work until Tenant has
approved, in writing, Landlord's estimate of the cost of such work and has
agreed to pay an increase in construction costs resulting from such Change.
Landlord shall not be responsible for any delay in the Commencement Date of the
Lease originating out of changes in the Landlord's Work as provided in this
Workletter, arising out of any changes or revisions requested by Tenant. Tenant
shall pay the cost of such additional work that may be requested by Tenant (the
"Additional Work") which shall be evidenced by a Change. No portion of the
Allowance (as hereafter defined) shall be used for the cost of the Additional
Work. The cost of such Additional Work shall be paid by Tenant to Landlord
within thirty (30) days of Landlord's invoice for same.
c. Landlord shall cause the Landlord's Work to be done in a
first-class xxxxxxx-like manner using only good grades of materials and shall
comply with all governmental laws, ordinances, codes, rules and regulations
applicable at the time of the performance of the Landlord's Work, including
without limitation the Americans with Disabilities Act.
4. Payment for Landlord's Work; Tenant Improvement Allowance.
Tenant shall pay the "Cost of Landlord's Work" (as such term is
subsequently defined), less the "Allowance" (as such term is defined below).
"Cost of Landlord's Work" means (i) all architectural fees and costs,
construction management fees and costs, engineering fees and costs and any other
fees, costs and expenses of any kind incurred or payable by the Landlord in
connection with the performance of Landlord's Work; (ii) all fees and charges
imposed by any governmental entity or authority in connection with the
Landlord's Work; (iii) sales and use taxes; (iv) insurance fees associated with
the construction of Landlord's Work; (v) testing and inspecting costs; and (vi)
the costs and charges for materials and labor, contractor's profit and
contractor's general overhead incurred by Landlord in having the Landlord's Work
completed. Tenant shall receive from Landlord as a credit against the cost of
Landlord's Work, an allowance (the "Allowance") of $150,000.00 to be used solely
as a credit towards the Cost of Landlord's Work. All costs over the Allowance
will be paid for by Tenant. Each invoice for the Landlord's Work shall be paid
by Landlord and Tenant pro rata. Landlord's share shall be based upon the ratio
of the Allowance to the total cost of the Landlord's Work and Tenant's share
shall be the balance. All items of Landlord's Work, whether the cost is covered
by the Allowance or not, shall become the property of Landlord upon the
expiration or earlier termination of the Lease and shall remain on the Premises
at all times during the term of this Lease. Tenant shall not be entitled to
payment or rent reduction for any part of the Allowance not used by Tenant.
31
5. Access to Premises by Tenant's Contractors.
If Landlord shall permit Tenant to do work, installation, or decorating
in the Premises, in addition to that herein provided to be done by Landlord,
then (i) Tenant shall use only such contractors which Landlord shall approve,
which approval shall not be unreasonably withheld, delayed or conditioned upon
payment of any consideration (except as herein provided); and (ii) Landlord will
permit entry of such contractors into the Premises for these purposes, prior to
the commencement of the term of the Lease and while Landlord's contractors are
working at the Premises, but only at such time or times as Landlord shall deem
feasible in the circumstances. This license to enter before commencement of the
Term is conditioned upon Tenant's workmen, mechanics, and contractors working in
harmony and not interfering with the workmen, mechanics and contractors of
Landlord. If at any time such entry or work by Tenant shall cause any disharmony
or interference, this license may be withdrawn by Landlord upon forty-eight
hours' written notice to Tenant.
Workmen's Compensation, public liability and property damage insurance, all in
amounts and with companies and on forms satisfactory to Landlord, shall be
provided and at all times maintained by Tenant's contractors engaged in the
performance of Tenant's work, and before proceeding with the work, certificates
of such insurance shall be furnished to Landlord.
Such entry shall be deemed to be under all the terms, covenants,
provisions and conditions of the Lease except the covenant to pay Rent and
escalation. All Tenant's materials, work, installations and decorations of any
nature brought upon or installed in the Premises before the commencement of the
Term of the Lease shall be at Tenant's risk, and neither Landlord nor any party
acting on Landlord's behalf shall be responsible for any damage thereto or loss
or destruction thereof.
6. Acceptance of Work.
a. Landlord shall give Tenant five (5) business days' prior
written notice of the date on which the Landlord's Work is expected to be
substantially completed. On or before the date of expected substantial
completion, Tenant shall conduct an inspection of the Premises and the
Landlord's Work with Landlord's representatives, and develop with such
representatives and deliver to Landlord a punchlist of all items of the
Landlord's Work which are not complete or which require correction (the
"Punchlist"). Landlord shall cause Landlord's Contractor to complete and/or
correct all items on the Punchlist (or within such other reasonable time period
if same cannot be completed within thirty (30) days, provided such work is
commenced within thirty (30) days and thereafter diligently pursued, in good
faith, to a timely completion) and shall give Tenant written notice when all of
the items on the Punchlist have been completed and/or corrected. The existence
of Punchlist items shall not negate substantial completion.
b. Landlord and Tenant agree to cooperate with each other in
scheduling the inspections of the Premises and the Landlord's work described in
this Paragraph 7, to make their respective personnel and representatives
available on reasonable notice to attend such inspections and develop the
Punchlist within the inspection time described in this Paragraph 7 and to act
reasonably in determining whether or not an item of the Landlord's Work should
be included in the Punchlist.
32
ADDENDUM 1
Subject to the provisions of this Addendum, Landlord hereby grants
Tenant the option to extend the Term on the same terms, conditions and
provisions as contained in this Lease, except as otherwise expressly provided
herein, for one (1) consecutive period of five (5) years (the "Extension
Period"). If exercised in accordance herewith, the Extension Period shall
commence on the first (1st) day after the Expiration.
Said option to extend shall be exercisable in the following manner:
i. Not less than one hundred eighty (180) days prior to the
Expiration Date, Tenant by written notice to Landlord ("Extension Notice") may
exercise Tenant's option to extend for the Extension Period. If the option to
extend the Term, is not extended in the aforesaid manner, the Term and Tenant's
rights hereunder and its rights to occupy and possess the Premises shall expire
on the Expiration Date.
ii. If Tenant delivers an Extension Notice as aforesaid, the
Term shall be extended on the same terms, conditions and provisions as contained
herein except there shall be no further extension. Base Rent and Additional Rent
during an Extension Period shall be computed in accordance with the provisions
of Article 2 hereof.
iii. At Landlord's election, the option to extend as set forth
in this Addendum 1 may not be exercised by Tenant if an Event of Default has
occurred and is continuing under the Lease.
Tenant shall be deemed to have accepted the Premises in an "as-is"
condition as of the date of the commencement of the Extension Period, it being
understood and agreed that Landlord shall have no additional obligations to
renovate or remodel the Premises or any portion of the Building as a result of
Tenant's renewal of the Lease.
Tenant's option to renew shall not be transferable by Tenant, except
with the prior written consent of Landlord, which consent may be withheld in the
sole and absolute discretion of Landlord.
Witnesses as to Landlord: LANDLORD:
CAP-EAST ASSOCIATES,
------------------------------ a Florida general partnership
------------------------------ By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Printed Name: Xxxxxx X. Xxxxxx
---------------------
Title: President
----------------------------
Witnesses as to Tenant: TENANT:
WORLD DIAGNOSTICS, INC.,
------------------------------ a Delaware corporation
------------------------------ By: /s/ Xxx Xxxxxx
------------------------------
Printed Name: Xxx X. Xxxxxx
---------------------
Title: President and CEO
----------------------------
33
EXHIBIT 10.9
FIRST AMENDMENT OF LEASE
AMENDMENT made as of this19th day of December, 2000 between CAP-EAST
ASSOCIATES, a Florida general partnership, as Landlord ("Landlord") and WORLD
DIAGNOSTICS, INC., a Delaware corporation ("Tenant").
W I T N E S S E T H :
WHEREAS, by Lease (the "Lease"), dated as of August 15, 2000, between
Landlord and Tenant, Landlord leased to Tenant the premises known as Suite 208 &
209 (APremises@) in the building (the ABuilding@) known as Lakes Corporate Park,
Building B, 00000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000;
WHEREAS, Landlord is performing Landlord=s Work (as defined in the
Lease) and Landlord and Tenant desire to modify the Lease to (i) provide that
Tenant shall pay its pro rata share of the Cost of Landlord=s Work (as defined
in the Lease) upon the terms and conditions set forth herein and (ii) set forth
the Rent Commencement Date; and
WHEREAS, Tenant desires to have an additional option to terminate the
Lease at the end of the third (3rd) Lease Year and Landlord is willing to grant
Tenant such a termination option upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth below, Landlord and Tenant hereby agree as follows:
1. Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings ascribed thereto in the Lease.
2. As of the date of this Amendment, the Lease is hereby amended as
follows:
(1) The term ARent Commencement Date" as used in Section 2.2 of the
Lease shall be deemed to be AFebruary 1, 2001".
(2) The following Section 19.20 shall be deemed inserted in
the Lease:
"19.20 Provided Tenant is not in default beyond any applicable
grace periods, Tenant shall have the right ("Year 3
Termination Option") to cancel this Lease effective at the end
of the third (3rd) Lease Year ("Year 3 Termination Date").
Tenant may only exercise the Year 3 Termination Option by a
written notice ("Year 3 Termination Notice") to Landlord not
less than ninety (90) days prior to the effective date of such
termination. In the event that Tenant exercises the Year 3
Termination Option, this Lease shall terminate on the Year 3
Termination Date and Tenant shall pay to Landlord on or prior
to the Year 3 Termination Date a termination payment ("Year 3
Termination Payment") equal to the sum of (a) the unamortized
cost (calculated on a straight line basis with no interest) of
the Tenant Improvement Allowance and leasing commissions paid
by Landlord in connection with this Lease and (b) $28,883.01
(representing the then current Monthly Base Rent for three
months). In the event the Tenant fails to pay the Year 3
Termination Payment required herein, Tenant=s exercise of the
Year 3 Termination Option shall be deemed ineffective and
void. On the Year 3 Termination Date, provided Tenant pays the
Year 3 Termination Payment, plus any other sums then due and
owing to Landlord under this Lease, to Landlord on or before
the Year 3 Termination Date and surrenders the Premises to
Landlord in the condition required upon expiration of this
Lease, Tenant shall be released from all further obligations
under this Lease accruing from and after the Year 3
Termination Date (except for any obligations which expressly
survive termination or expiration of this Lease). The Year 3
Termination Option shall be in addition to any other option to
terminate contained in this Lease."
(3) The following sentence shall be deemed inserted at the end of
Paragraph 4 in the Work Letter:
"Landlord and Tenant acknowledge that the Cost of Landlord's
Work is estimated to be $240,910.74 and that Tenant's pro rata
share of the Cost of Landlord's Work is estimated to be
$90,910.74 (Cost of Landlord's Work less the Allowance).
Notwithstanding anything to the contrary contained herein,
Tenant shall deliver simultaneously with the execution of this
amendment a check payable to Landlord in the amount of
$45,455.37 representing one-half of Tenant's estimated pro
rata share of the Cost of Landlord=s Work. The proceeds from
said check shall be earmarked and held by Landlord in a
segregated account to be used for the sole purpose of paying
for Tenant's pro rata share of the Cost of Landlord's Work as
provided herein. The balance of Tenant=s pro rata share of the
Cost of Landlord's Work shall be due and payable within ten
(10) days of the date that Landlord delivers to Tenant
possession of the Premises and a statement setting forth
Landlord's calculation of the remaining balance (which may be
greater or lesser than the estimate) of Tenant's pro rata
share of the Cost of Landlord=s Work."
3. Except as modified and amended by this Amendment, all of the terms,
covenants and conditions of the Lease are hereby ratified and confirmed and
shall continue to be and remain in full force and effect throughout the
remainder of the term thereof.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
duly executed as of the day and year first above written.
Witnesses as to Landlord: LANDLORD:
----------------------------- CAP-EAST ASSOCIATES,
a Florida general partnership
----------------------------- By: /s/ Xxxxxxx X. Nar
------------------------------
Printed Name: Xxxxxxx X. Nar
---------------------
Title: Agent for Cap-East Associates
----------------------------
Witnesses as to Tenant: TENANT:
----------------------------- WORLD DIAGNOSTICS, INC.
a Delaware corporation
----------------------------- By: /s/ Xxx Xxxxxx
------------------------------
Printed Name: Xxx X. Xxxxxx
---------------------
Title: President and CEO
----------------------------
