EXHIBIT C
OFFICE LEASE AGREEMENT
By and Between
RIMCO XII, INC. ("Landlord")
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
and
OCUREST LABORATORIES. INC. ("Tenant")
for
Xxxxx 000
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000 ("Premises")
Dated: June 24, 1994
OFFICE LEASE AGREEMENT
TABLE OF CONTENTS
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1. Leased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Possession; Estoppel Certificate. . . . . . . . . . . . . . . . . . . . . 1
4. Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. CPI Escalation of Base Rent . . . . . . . . . . . . . . . . . . . . . . . 3
6. Additional Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(i) "Real Estate Taxes". . . . . . . . . . . . . . . . . . . . . . 3
(ii) "Operating Expenses" . . . . . . . . . . . . . . . . . . . . . 4
(iii) "Utility Expenses" . . . . . . . . . . . . . . . . . . . . . . 5
(iv) "Tenant's Proportionate Share" . . . . . . . . . . . . . . . . 5
(v) "Tax and Operating Expense Statements" . . . . . . . . . . . . 5
B. Payment of Proportionate Share of Real Estate Taxes . . . . . . . . . 5
C. Payment of Proportionate Share of Operating Expenses. . . . . . . . . 5
D. Payment of Proportionate Share of Utilities.. . . . . . . . . . . . . 5
E. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Method of Measurement . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
10. Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
11. Alterations, Additions or Improvements . . . . . . . . . . . . . . . . . .8
12. Maintenance and Repair . . . . . . . . . . . . . . . . . . . . . . . . . .9
13. Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
14. Rules and Regulations of Building . . . . . . . . . . . . . . . . . . . 10
15. Passes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
16. Extraordinary Equipment . . . . . . . . . . . . . . . . . . . . . . . . 10
17. Landlord's Access . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ll
19. Fire or Other Casualty . . . . . . . . . . . . . . . . . . . . . . . . . 11
20. Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . 12
21. Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
22. Light and Air . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
23. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
24. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
OFFICE LEASE AGREEMENT
TABLE OF CONTENTS (Continued)
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25. Waiver of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 13
26. Relocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
27. Subordination by Tenant . . . . . . . . . . . . . . . . . . . . . . . . 13
28. Tenant to Surrender Premises in Good Condition . . . . . . . . . . . . 14
29. Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
30 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
31. Landlord's Right to Cure Defaults . . . . . . . . . . . . . . . . . . . 16
32. Payments After Termination . . . . . . . . . . . . . . . . . . . . . . 16
33. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
34. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
35. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . 17
36 Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
37. Non-Liability of Landlord . . . . . . . . . . . . . . . . . . . . . . . 18
38. Inability to Perform. . . . . . . . . . . . . . . . . . . . . . . . . . 19
39. Attorneys' Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . 19
40. Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
41. Indemnity for Toxic Waste . . . . . . . . . . . . . . . . . . . . . . . 19
42. Attornment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
43. Signage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
44. Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
45. Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
46. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
47. Radon Gas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
48. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
49. Lease Validity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
50. TRIAL BY JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
EXHIBIT "A" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT "B" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
EXHIBIT "C" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. MOVING PERSONAL PROPERTY OF TENANTS. . . . . . . . . . . . . . . . . . . 24
2. SHIPPING AND RECEIVING. .. . . . . . . . . . . . . . . . . . . . . . . . 24
3. PREVENTION OF DAMAGE TO BUILDING AND PREMISES. . . . . . . . . . . . . . 24
4. NUISANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5. EXCLUSION OF PERSONS FROM BUILDING. . . . . . . . . . . . . . . . . . . 24
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OFFICE LEASE AGREEMENT
TABLE OF CONTENTS (Continued)
-----------------------------
6. COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . . . . . . 24
7. REPORTING ACCIDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8. LOST OR STOLEN PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . 25
9. LOCKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10. KEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11. PETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
12. FIREARMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
13. CANVASSING, SOLICITING, PEDDLING. . . . . . . . . . . . . . . . . . . . 25
14. VEHICLES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15. SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
16. DIRECTORY BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
17. HOUSEKEEPING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
18. WATER FIXTURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
19. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
20. WINDOWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
21. REPAIR, MAINTENANCE, ALTERATIONS AND IMPROVEMENTS . . . . . . . . . . . 27
22. PERSONAL USE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . 27
23. OBSTRUCTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
24. EMPLOYEES, AGENTS AND INVITEES. . . . . . . . . . . . . . . . . . . . . 27
25. PEST CONTROL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
26. LANDLORD NOT RESPONSIBLE FOR VIOLATIONS . . . . . . . . . . . . . . . . 27
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OFFICE LEASE AGREEMENT
THIS IS A LEASE AGREEMENT (the "Lease") made and entered into on 6/24/94
by and between RIMCO XII, INC., having its principal offices at 00000 Xxxxxxx
Xx., Xxxxxxxxxx Xxxxx, XX 00000-0000, hereinafter referred to as the "Landlord",
and OCUREST LABORATORIES, INC., a Florida corporation with offices at 0000 XXX
Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx Xxxxxxx, XX 00000, hereinafter referred to as
the "Tenant".
WITNESSETH:
1. LEASED PREMISES: In consideration of the mutual covenants and
agreements set forth herein, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, for the rental and on the terms and conditions hereinafter
set forth, those certain premises outlined on the floor plan attached hereto as
EXHIBIT A (the "Premises"), and containing approximately 1,276 square feet of
leasable area in Suite #306 in the building known as Admiralty II located at
0000 XXX Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx, XX 00000, (the "Building").
2. TERM: Subject to and upon the terms and conditions set forth herein,
the term of this Lease shall be for a period of 36 months (the "Term"),
beginning on the 1ST day of JULY, 1994, ("Commencement Date") and expiring on
the 30th day of June 30, 1997 ("Termination Date").
3. POSSESSION; ESTOPPEL CERTIFICATE: Except as hereinafter provided,
Landlord shall deliver possession of the Premises in the condition required by
this Lease on or before the Commencement Date, but delivery of possession prior
to such Commencement Date shall not affect the Termination Date. Failure of
Landlord, due to a holding over by a prior tenant or time required for
construction delays due to strikes, acts of God or any other cause beyond
Landlord's control, to deliver possession of the Premises by the date
hereinafter provided, shall automatically postpone the Commencement Date and
shall extend the Termination Date by periods equal to those which shall have
elapsed between and including the date hereinabove specified for commencement of
the term hereof and the date on which possession of the Premises is delivered to
the Tenant. The rent herein reserved shall commence on the first day of the
Term, provided however, in the event of any occupancy by Tenant prior to the
beginning of the Term, such occupancy shall in all respects be the same as that
of a tenant under this Lease, and the rent shall commence as of the date that
Tenant enters into such occupancy of the Premises. By occupying the Premises as
a tenant, or to install fixtures, facilities, or equipment, or to perform
finishing work, Tenant conclusively shall be deemed to have accepted the same
and to have acknowledged that the Premises are in the condition required by this
Lease.
Should the commencement of the rent obligations of Tenant under this Lease
occur for any reason on the day other than the first day of a calendar month,
solely for the purpose of computing the term of this Lease, the commencement
date of the Term shall become and be the first day of the first calendar month
following the date when Tenant's rent obligation commences, or the first day of
the first full calendar month following the Commencement Date set out in SECTION
2 (if such day is other than the first day of a calendar month), whichever date
is later, and the Termination Date shall be adjusted accordingly; provided,
however, that the Termination Date shall be the last day of a calendar month,
which date in no event shall be earlier than the Termination Date set out in
SECTION 2. At any time and from time to time upon five (5) days prior request by
Landlord, Tenant will promptly execute, acknowledge and deliver to Landlord, in
a form satisfactory to Landlord, a certificate indicating (a) that 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 stating the date
and nature and enclosing a complete copy of each modification), (b) the dates
and amounts of the last made and next due rental installments and the amount of
any prepaid rent, (c) that no notice has been received by Tenant of any default
which has not been cured, except as to defaults specified in said certificate,
(d) a good standing and absence of default under this Lease (e) the absence of
setoffs to charges hereunder, (f) the amount of security deposit (g) the
commencement and expiration dates hereof, and (h) such other matters as may be
reasonable requested by Landlord. Any such certificates may be relied upon by
any prospective purchasers, mortgagees, or beneficiary under any mortgage,
ground lease or deed of trust of the Building or any part thereof.
4. Base Rent: As base rent for the lease of the Premises, Tenant hereby agrees
to pay, without claim, deductions or setoffs for the Term of the Lease base
rent. ("Base Rent") as follows:
PERIOD PSF ANNUAL EQUAL MONTHLY PAYMENT:
------ --- ------ ----------------------
Lease Year 1 6/1/94-5/31/95 $16.29 $20.786.04 $1.732.17
Lease Year 2 6/1/95-5/31/96 $17.29 $22.062.04 $1.838.50
Lease Year 3 6/1/96 5/31/97 $18.29 $23.338.04 $l.944.84
Such Base Rent for each Lease Year shall be due and payable in the equal monthly
installments set forth above, in advance, on the first day of each calendar
month during the Term, commencing on the 1ST day of JULY 1994. All payments of
Base Rent shall be paid to the Landlord in lawful money of the United States of
America at the address of Landlord shown herein, or to such other party or at
such other place as Landlord may designate from time to
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time in a written notice to Tenant. If the Term commences or terminates on any
day other than the first or last day of a calendar month, the Base Rent and any
other sums due hereunder shall be prorated for such fractional calendar month.
All past due installments of Base Rent and Additional Rent (defined below) shall
bear interest at the rate of twelve percent (12%) per annum from the date due
until paid.
Anything herein to the contrary notwithstanding, in no event shall the Base
Rent provided herein ever be reduced. A "Lease Year" shall be the twelve month
period commencing with the Commencement Date of this Lease, and ending one year
later, and each following twelve-month period. If at the expiration of any
twelve month period during the Term the Term has not expired and there remains
less than twelve months prior to the expiration of the Term, the final period
during the Term shall be treated like a Lease Year and Base Rent shall be
adjusted accordingly. Notwithstanding the foregoing, no Base Rent and
Additional Rent shall be payable by Tenant for the first two months of the Term
(July and August 1994).
5. ADDITIONAL RENT: In addition to Base Rent, the Tenant shall pay "Additional
Rent" as follows in accordance with this Section:
A. DEFINITIONS
.
(i) "REAL ESTATE TAXES" means real estate tax and
assessments, general and special, assessed and levied upon the
Building and any improvements, easements or interests deemed real
property by any governmental entity having jurisdiction upon the
Building. For purposes of calculating Real Estate Taxes hereunder,
Landlord will be deemed to have taken the benefit of the provisions
of any statute or ordinance permitting any assessment to be paid over
a period of
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time and the installments of such assessment which would become due
and payable by virtue of such provisions during the Term or any
extension hereof, together with the interest thereon, will be included
in the calculation of Real Estate Taxes. In the event that the United
States or the city, county, state or other political subdivision of
any governmental authority having jurisdiction imposes a tax,
assessment or surcharge of any kind or nature upon, against, measured
by or with respect to the rentals payable by the tenants of the
Building or on the income of Landlord derived from the Building, or
with respect to Landlord's ownership of the Building either by way of
substitution for all or any part of the taxes and assessments levied
or assessed against the Building, or, in addition thereto (but not
including federal, state or local income taxes unless levied by way of
substitution), such tax, assessment or surcharge will be deemed a Real
Estate Tax for purposes of this Section 5. Notwithstanding the above
tenant will not pay any real estate taxes.
(ii) "OPERATING EXPENSES" means any and all expenses for
operation, maintenance and administration of the Building as
determined by standard building management practices, and includes the
following by way of illustration (but not limitation): personal
property taxes (except those payable by Tenant); payments made by
Landlord for common area maintenance, repairs and (subject to the
provisions set forth below) replacements; payments made by Landlord
for services for the Building; charges for the rental and, subject to
the provisions set forth below, purchase and replacement of any
equipment and facilities acquired (voluntarily or pursuant to
government directive) by Landlord to reduce energy consumption;
charges for the repair and maintenance of any equipment and facilities
acquired (voluntarily or pursuant to government directive) by Landlord
to reduce energy consumption; insurance premiums; license fees; permit
and inspection fees; charges for janitorial service and window
cleaning; wages and salaries (including employee benefits) of any
building superintendent and maintenance employees; payments made by
Landlord for the repair, maintenance and (subject to the provisions
set forth below) replacement of the air-conditioning, heating,
ventilating and all other Building systems; charges for supplies,
equipment, tools and materials necessary for operation of the
Building; charges for exterminating services, security services,
rubbish and snow removal and telephone service; landscaping costs;
administrative and overhead expenses; and management fees. The term
"Operating Expenses" does not include: (i) depreciation of the
Building or equipment, (ii) mortgage interest and principal payments,
(iii) real estate brokerage and leasing commissions, (iv) costs or
other items included within the meaning of the term "Real Estate
Taxes", (v) costs of alteration of the premises of other tenants of
the Building, (vi) any cost which Landlord incurs which is charged
directly to the tenant on whose behalf it is incurred (whether or not
the same shall finally be paid), or for which Landlord otherwise is
compensated, including costs for which Landlord receives reimbursement
from insurance proceeds, (vii) income, profit, franchise, corporate,
capital stock, estate, inheritance and any other taxes imposed on, or
measured by, the income of Landlord from the operation of the Building
or imposed in connection with any change of ownership of the Building,
(viii) costs
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of Landlord's leasing activities, including costs of tenant
improvements, renovations, decorations and alterations made at the
initiation, or in connection with the renewal, of any lease, and (ix)
costs or other items included within the meaning of the term "Utility
Expenses". If the aggregate space in the Building is not 100% occupied
by Tenants during all or a portion of any year, then Landlord shall
make appropriate adjustment for such year of those components of
expenses which may vary, depending upon the occupancy level of the
Building, employing generally accepted accounting principles so that
all of such variable components of Operating Expenses paid or incurred
by Landlord are ratably allocated to the Tenants then occupying space
in the Building. Any such adjustment shall also be deemed expenses
paid or incurred by Landlord and included in Operating Expenses for
such year, as if the Building had been 100% occupied and the Landlord
had paid or incurred such expenses. Notwithstanding any of the above
Tenant will not pay any operating expenses.
(iii) "UTILITY EXPENSES" means any and all expenses and
charges for heat, light, power, steam and/or other utilities and/or
fuels for the Building. No utility charges will be billed to tenant
except in accordance with paragraph D below.
(iv) "TENANT'S PROPORTIONATE SHARE" equals 1.5% and is
based upon 1.276 divided by 80.233 and rounded. In the event Tenant
leases the Expansion Premises, its proportionate share shall increase
to 2.8%.
(v) "TAX AND OPERATING EXPENSE STATEMENTS" means written
statements, certified by Landlord, showing the amounts of Real Estate
Taxes, Operating Expenses and Utility Expenses for each calendar year
which includes any portion of the Term or any renewal or extension
thereof.
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D. PAYMENT OF PROPORTIONATE SHARE OF ELECTRIC. Tenant shall pay
to Landlord, as Additional Rent, Tenant's Proportionate Share of any
and all Electric Expenses which become due in any calendar year during
the Term. Any such payments will be prorated for the first calendar
year and last calendar year of the Term. LANDLORD ESTIMATES 1994
ELECTRIC CHARGES TO BE $1.88 PER SQUARE FOOT.
E. Payment. All Additional Rent will be payable in monthly
installments, in advance, on the first day of each calendar month
during the Term and any extensions or renewals thereof. The amount of
the monthly installments will be estimated by Landlord and may be
increased by Landlord at any time Landlord believes such adjustment to
be necessary or appropriate to fully cover current Electrical
Expenses. At the end of each fiscal year of Landlord, Landlord will
compute the Electrical Expenses incurred during that year and any
prior year in which Landlord failed to collect Tenant's Proportionate
Share of Electrical Expenses and will deliver to Tenant a Tax and
Operating Expense Statement for such year(s). If the installments paid
by Tenant during that year are less than the Additional Rent due under
this SECTION 6 for such year, the difference will be paid to Landlord
within thirty (30) days following delivery of the statement. If the
installments paid by Tenant during that year are more than the
Additional Rent due for such year, at Tenant's option, the difference
either will be held by Landlord and applied against the next
installment(s) of additional rent falling due or will be repaid within
thirty (30) days following delivery of the statement.
7. Method of Measurement: The term "Leasable Area", as used herein,
shall refer to the area or areas of space within the Building determined as
follows:
A. Leasable Area on a single-tenancy floor is determined by
measuring from the extended plane of the inside surface of the outer
glass to the extended plane of the inside surface of the opposite
outer glass bounded by the intersections of such planes, and shall
include all areas within such plans excluding vertical penetrations
such as building stairs, fire towers, elevator shafts, flues, vents,
stacks, pipe shafts and vertical ducts. Vertical penetrations which
are for the specific use of Tenant, such as special stairs or
elevators, shall be included as Leasable Area; and
B. Leasable Area for a particular floor shall include all space
within the demising walls (measured for the midpoint of demising walls
and, in the case of exterior walls, measured as defined in 7.A
above), plus 19%, which is Tenant's proportionate share of the Common
Areas, such as elevator lobbies, corridors, toilet and mechanical
rooms, telephone and electrical closets and service areas on such
floors. Tenant's Common Area charge is 204 square feet and is included
in Leasable Area.
No deductions from Leasible Area shall be made for projections necessary to the
Building. The Leasable Area in the Premises has been calculated on the basis of
the foregoing definition and is hereby stipulated for all purposes hereof to be
1276 square feet, whether the same should be more or less as a result of minor
variations resulting from actual construction and completion of the Premises for
occupancy, so long as such work is done in accordance with the terms and
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provisions hereof.
8. Security Deposit: Simultaneously with the execution of this Lease,
Tenant has paid to Landlord the sum of TWO THOUSAND AND NO/100 DOLLARS
($2.000.00), to be held by Landlord without interest as a security deposit for
the full and faithful performance by Tenant of the terms and conditions of this
Lease. Landlord may utilize such part of the security deposit as is necessary to
cure any default of Tenant under this Lease and in such event Tenant shall
immediately replace such portions as may be expended by Landlord. Upon the
expiration of this Lease (except arising due to a default by Tenant), delivery
of the Premises to Landlord in their original condition, ordinary wear and tear
excepted, and payment to Landlord of Tenant's Additional Rent for the final
calendar year of this Lease, then the security deposit shall be returned to
Tenant without interest. Upon any conveyance of the Building by Landlord to a
successor in title, the successor shall become liable to Tenant for the return
of the security deposit and the conveying party released for same, provided that
estoppel prepared by Landlord notes credit due Tenant for such Security Deposit.
Landlord shall not be required to hold the security deposit in any special
account for the benefit of the Tenant and the security deposit may be commingled
with Landlord's funds. In the event any installment of Base Rent or other
charges accruing under this Lease shall not be paid when due (including the
return of any of Tenant's checks for insufficient or uncollected funds or
otherwise), the Landlord shall have the right, at the Landlord's sole
discretion, to require the Tenant to place with Landlord an additional security
deposit (in excess of the original security deposit), of up to two installments
of then current Base Rent, which sum shall become a part of the original
security deposit. The rights of the Landlord shall in no way be limited or
restricted by the security deposit, and the Landlord shall have the absolute
right to pursue any available remedies to protect its interests herein, as if
the security deposit had not been made.
9. USE: Tenant shall use the Premises for purposes of general offices
and no other purpose whatsoever. Tenant shall not overload, damage or deface
the Premises or do any act which may void or render voidable any insurance on
the Premises or the Building or which may increase insurance premiums. Tenant
shall comply with all federal, state and municipal laws and ordinances relating
to the use, condition or occupancy of the Premises. Tenant shall not occupy or
use the Premises for any for any business or purpose which is unlawful,
disreputable for deemed by Landlord to be hazardous or a nuisance.
10. IMPROVEMENTS:
A. If Landlord has agreed to do any work in the Premises in
preparation for Tenant's occupancy, the nature and extent of, and the
payment for, that work will be as set forth in attached Exhibit B.
Exhibit B is intended to include all Tenant improvement work on the
Premises, whether within or beyond the Standard Basic leasehold
Improvements established by Landlord and whether to be performed or
paid for by Landlord or Tenant and shall hereinafter be referred to as
the "Work."
B. Landlord and Tenant have reviewed and approved the
attached single line drawing floor plan layout (set forth in Exhibit
A), together with the attached Schedule of Building Standards set
forth in attached Exhibit B. Tenant covenants and agrees to deliver to
Landlord within Ten (10) days from the date of this Lease a detailed
floor plan
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of desired tenant improvements to be constructed and or installed
within the Premises (in addition to the standard work to be performed
by Landlord described in Exhibit B), together with working drawings
and written specifications (collectively "Tenant's Plans")
sufficiently detailed to enable Landlord to obtain firm contracts,
order any special items and secure a building permit. Tenant's Plans
are subject to the approval of Landlord.
C. All work involved in completing the Premises in
accordance with Tenant's Plans (including the purchase of the required
materials and equipment) shall be carried out by Landlord's contractor
under the sole direction of Landlord. Tenant shall cooperate with
Landlord and its contractor upon request to promote the efficient and
expeditious completion of such work. Tenant shall be responsible for
and pay for the work set forth in Tenant's Plans, to the extent that
the same exceeds the work for which Landlord is responsible in Exhibit
B. No credits are given or implied.
D. In the event the Premises are not ready for occupancy
within five (5) days after the Commencement Date of this Lease due to
(i) Tenant's request for work in excess of Building Standards, or
(ii) any changes in Tenant's Plans requested by Tenant then the term
of this Lease shall be deemed to have commenced from the Commencement
Date stipulated herein.
11. ALTERATION, ADDITIONS OR IMPROVEMENTS: Tenant will not make nor
allow to be made any alterations, additions, removals, improvements or physical
additions in or to the Premises without the prior written consent of Landlord.
Unless otherwise provided by written agreement, all such consented alterations,
additions or improvements shall be done either by, or under the direction of,
Landlord, but at the sole cost of Tenant, and shall upon installation at
Landlord's option (i) become the property of Landlord and shall remain upon and
be surrendered with the Premises, or (ii) be removed therefrom the Premises
shall be restored by Tenant to their original condition, reasonable wear and
tear excepted, at the sole expense of the tenant at the expiration or sooner
termination of the Lease. Tenant shall have no right or power to create
mechanics' liens on the Building or underlying property, shall so advise any
suppliers of material or labor for work on the Premises, and shall save harmless
Landlord on account of claims for mechanic's, materialmen's or other liens in
connect with any alteration, additions or improvements made by Tenant. The
Landlord may (i) alter, add to, subtract from, construct improvements on,
re-arrange, and construct additional facilities in, adjoining or proximate to
the Building; (ii) relocate the facilities and improvements in or comprising the
Building; (iii) do such things on or in the Building as required to comply with
any laws, by-laws, regulations, orders or directive affecting the Building or
any part thereof; and (iv) do such other things on or in the Building as the
Landlord, in the use of good business judgment, determines to be advisable. The
Landlord shall not be in breach of its covenants for quiet enjoyment or liable
for any loss, costs or damages, whether direct or indirect, incurred by the
Tenant due to any of the foregoing, provided that Landlord uses reasonable care
so as to minimize the impact to Tenant.
12. MAINTENANCE END REPAIR:
A. Landlord shall provide for the cleaning and maintenance
of the Building. including painting and landscaping surrounding the
Building, in keeping with the usual
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standard for similar office buildings. Landlord shall not be
required to maintain or repair any non-building standard or special
tenant improvements installed by Tenant in or about the Premises,
unless otherwise approved by Landlord, identifying same.
B. The first installation of electric light lamps in the
Premises will be made by the Landlord in the manner and of the style
and voltage customary in the Building. Thereafter, the Tenant shall
replace and maintain such installation of electric light lamps and
shall be liable for any damage from overloading of any of the
lighting circuits in, or leading to, the Premises, absent latent
defects existing on the Commencement Date.
C. Tenant shall keep and maintain the Premises in good
repair and condition, reasonable wear and tear, damage by fire and
other casualty excepted. Tenant shall not commit nor allow any waste
or damage to be committed on any portion of the Building or Premises.
If any repairs or replacements to the Premises are required by the
acts, whether of commission or omission, of Tenant or Tenant's agents,
employees, invitees, or visitors, Tenant shall pay Landlord the costs
and expenses of such repairs or replacement plus a 15%
administration fee, as additional rent to Landlord upon 30 days
notice.
13. SERVICES: So long as Tenant is not in default hereunder, the
Landlord shall, at its own cost and expense, furnish to the Tenant the
following services, utilities, supplies and facilities to the extent normally
furnished in similar office buildings:
(A) Access to the Premises twenty-four (24) hours a day, seven (7)
days a week.
(B) Freight and passenger elevator service as reasonably required by
the Tenant.
(C) Electricity for lighting and for normal operation of standard
office machines, appliances and equipment, heat, ventilation and air
conditioning ("HVAC") on weekdays (holidays excepted) from 8:00 a.m.
to 6:00 p.m. and on Saturdays from 8:00 a.m. to 1:00 p.m., and at the
Tenant's request, at all other times as hereinafter provided in this
Section. The Landlord shall furnish electricity and HVAC beyond the
above stated hours, provided that notice requesting such service is
delivered to the Landlord before noon on the business day when such
service is required for that evening, and by noon of the preceding
business day when such service is required on a Saturday, Sunday or
holiday by the Tenant. The Landlord's cost of supplying such
additional service shall be free to the Tenant except in the event
that the Landlord changes the policy and begins charging other tenants
in a nondiscriminatory manner. In this case, the Landlord shall xxxx
the Tenant on or before the last day of the month following the month
in which such charges are incurred (not to exceed $15.00 per hour),
and shall submit with its invoice a tabulation of the hours and the
dam on which the overtime electricity and HVAC was furnished. The
Tenant shall reimburse the Landlord therefor within fifteen (15) days
after receipt of the invoice.
(D) Cleaning and janitorial services, including removal of refuse and
rubbish and furnishing washroom supplies.
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Landlord reserves the right to stop the supply of utilities, supplies
and facilities without hereby incurring liability to Tenant when necessary by
reason of accident or emergency or for repairs, alterations, replacement or
improvements which are, in the reasonable judgment of Landlord, desirable or
necessary, or when prevented from supplying such services by strikes, lockouts,
energy shortages, difficulty of obtaining materials, governmental regulation,
accidents, or any other cause beyond Landlord's control, or bylaws, orders or
inability by exercise of reasonable diligence to obtain electricity, water, gas,
steam coal, oil or other suitable fuel or power. No diminution or abatement of
Base Rent or Additional Rent or other compensation shall or will be claimed by
Tenant unless demised premises is untenantable as a result of Landlord's action,
nor shall this Lease or any of the obligations of Tenant be affected or reduced
by reason of any such interruption, curtailment or suspension, provided that
Landlord uses reasonable efforts to correct such situations in a timely manner.
14. RULES AND REGULATIONS OF BUILDING: Tenant shall comply with the
Rules and Regulations of the Building with respect to safety, care, cleanliness
and preservation of good order in the Building that Landlord may establish from
time to time for tenants of the Building. Landlord shall not be liable to Tenant
for any failure of any other tenants of the Building to comply with such Rules
and Regulations, attached hereto as Exhibit C, but will use its best efforts to
enforce such rules in a nondiscriminatory manner.
15. PASSES: No passes are needed for this property.
16. EXTRAORDINARY EQUIPMENT: Without the prior written consent of
Landlord and Tenant's prior written agreement to pay related additional costs
and expenses, Tenant shall not install or maintain any apparatus or devices
which will increase the usage of electrical power, steam, gas or other fuel for
the Premises to an amount greater than would be required for normal general
office use for space of comparable size.
17. LANDLORD'S ACCESS: Landlord and Landlord's mortgagee(s) shall
have the right at all times during the Term given at least 24 hours notice
(except in the case of emergency which shall not require notice) to enter the
Premises to inspect the condition thereof, to show the Premises to prospective
new tenants or purchasers of the Building, to determine if Tenant is performing
its obligations under this Lease and to perform the services or to make the
repairs and restoration that Landlord is obligated or elects to perform or
furnish under this Lease, to make repairs to adjoining space, to cure and to
remove from the Premises any improvements thereto or property placed therein in
violation of this Lease. In furtherance of such rights, Landlord shall retain a
key to the Premises and Tenant shall not install any new locks tO the Premises
without the prior written consent of Landlord and furnishing Landlord with a
copy of such key. No entry into the Premises by the Landlord pursuant to a
right granted by this Lease shall constitute a breach of any covenant for quiet
enjoyment, or (except where expressed by the Landlord in writing) shall
constitute a retaking of possession by Landlord or forfeiture of Tenant's
rights hereunder.
18. INSURANCE: Landlord shall maintain during the Term fire and
extended coverage insurance insuring the Building and Premises against damage
or loss from file or other casualty normally insured against under the terms of
standard policies of fire and extended coverage
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insurance. Landlord may, at its option, preserve and maintain such other
insurance coverages as it may require in its discretion. Tenant shall be
responsible for providing, at Tenant's own expense:
A. Liability insurance with companies and in form satisfactory
to Landlord naming Landlord and Landlord's mortgagee(s) as additional
insureds thereunder as their interest may appear and providing
coverage of at least $1,000,000 single limit coverage and $1,000,000
aggregate coverage for any single incident; and
B. Contents insurance for fire, water, damage or other casualty
and theft covering all of the Tenant's stock in trade, fixtures,
furnishings, floor coverings, equipment or any other improvements
beyond the improvements for which Landlord is responsible pursuant to
attached EXHIBIT B, in an amount equal to the replacement value
thereof.
Tenant will furnish Landlord evidence of coverage and payment of premiums at
all times.
19. FIRE OR OTHER CASUALTY: If the Building is damaged or destroyed
by fire or other casualty, the Landlord shall have the right to terminate this
Lease upon delivery of written notice to the Tenant within ninety (90) days
after such damage or destruction. If a portion of the Premises is damaged by
fire or other casualty, and this Lease is not thereby terminated, the Landlord
shall, at its expense, restore the Premises, exclusive of any improvements or
other changes made to the Premises by the Tenant, to as near the condition
which existed immediately prior to such damage or destruction, as reasonably
possible, and rent shall xxxxx during such period of time as the Premises are
untenantable, in the proportion that the untenantable portion of the Premises
bears to the entire Premises. The Landlord shall not be responsible to the
Tenant for damage to, or destruction of, any furniture, equipment, improvement,
or other changes made by the Tenant in, on or about the Premises regardless of
the cause of the damage or destruction.
20. WAIVER OF SUBROGATION: Landlord and Tenant shall each use best
efforts to obtain from their respective insurers under all policies of fire
insurance maintained by either of them at any time during the Term insuring or
covering the Building or any portion thereof or operations therein, a waiver of
all rights of subrogation which the insurer of one party might have against the
other party, and Landlord and Tenant shall each indemnify the other against any
loss or expense, including reasonable attorney's fees, resulting from the
failure to obtain such waiver and, so long as such waiver is outstanding, each
party waives, to the extent of the proceeds received under such policy, any
right of recovery against the other party for any loss covered by the policy
containing such waiver; provided, however, that if at any time their respective
insurers shall refuse to permit waivers of subrogation, Landlord or Tenant, in
each instance, may revoke said waiver of subrogation effective thirty (30) days
from the date of such notice, unless within such thirty (30) day period, the
other is able to secure and furnish (without additional expense) equivalent
insurance with such waivers with other companies satisfactory to the other
party.
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21. EMINENT DOMAIN: If the entire Building is taken by eminent domain,
this Lease shall terminate automatically as of the date of taking. If a portion
of the Building is taken by eminent domain, Landlord shall have the right to
terminate this Lease by giving written notice thereof to Tenant within ninety
(90) days after the date of taking. If a portion of the Premises is taken by
eminent domain and the Landlord does not terminate this Lease, the Landlord
shall restore Premises, exclusive of any improvements or other alterations to
the Premises made by Tenant, to as near the condition which existed immediately
prior to such damage or destruction, as reasonably possible, and rent shall
xxxxx during such period of time as the Premises are untenantable, in the
proportion that the untenantable portion of the Premises bears to the entire
Leasable Area of the Building. Landlord shall, in any event, be entitled to
receive and to retain as its own, any award payable from such taking and the
Tenant disclaims any right to participate in such award to make a claim against
the award for the loss of its leasehold: provided, the Tenant may make a
separate claim against the condemning authority for loss of its trade fixtures,
moving expenses and loss of business, if such claim will not reduce the award
payable to the Landlord.
22. LIGHT AND AIR: Tenant has no right to light or air over any
premises adjoining the Building.
23. LIENS: Tenant shall not permit any mechanic's, materialmen's or
other liens to attach to the Premises, the Building, or the land on which the
Building lies and agrees immediately to discharge (either by payment or by
filing of the necessary bond, or otherwise) any mechanic's, materialmen's or
other lien which is alleged, attached or placed against any of the foregoing,
arising out of work performed by direction of Tenant.
24. INDEMNITY: Except for Landlord's gross negligence or willful
misconduct, Tenant hereby waives all claims against Landlord and Landlord's
agents and employees, for damage to any property or injury or death of any
person in, upon or about the Premises arising at any time and from any cause
whatsoever, and Tenant shall indemnify and hold Landlord and Landlord's
officers, directors, agents and employees harmless from any damage to any
property or injury to or death of any person arising from the use of the
Premises by Tenant. The foregoing indemnity obligation of Tenant shall include
reasonable attorney's fees, investigation costs and all other reasonable costs
and expenses incurred by Landlord and Landlord's agents and employees from the
first notice that any claim or demand is to be made or may be made. The
provisions of this SECTION 24 shall survive the termination of this Lease with
respect to any damage, injury or death occurring prior to such termination.
Landlord shall not be liable for any damage of any kind or for any damage to
property, death or injury to persons from any cause whatsoever by reason of the
use and occupancy of the Premises by Tenant.
25. WAIVER OF COVENANTS: Failure of Landlord to insist, in any one or
more instances, upon strict performance of any term, covenant or condition of
the Lease, or to exercise any option herein contained, shall not be construed
as a waiver, or an relinquishment for the future, of such term, covenant,
condition or option, but the same shall continue and remain in full force and
effect. The receipt by Landlord of rents with knowledge of a breach in any of
the terms, covenants or conditions of this Lease to be kept or performed by
Tenant shall not be deemed a waiver of any such breach, and Landlord shall not
be deemed to have waived any provision of
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this Lease unless expressed in writing and signed by Landlord.
26. RELOCATION: Landlord shall have the right to relocate Tenant to
comparable quarters with comparable expansion premises (if applicable) within
the Building upon at least sixty (60) days prior written notice to Tenant. Any
and all reasonable Costs incurred by Tenant in the event of such relocation
(included but not limited to Tenant's moving and relocation Costs plus
stationery reprints) and which have been agreed to in writing prior to the
move, shall be paid by Landlord at its sole cost.
27. SUBORDINATION BY TENANT: This Lease, and Tenant's rights
hereunder, are hereby made expressly subject and subordinate to any and all
mortgages, deeds of trust, restrictions, ground or underlying leases affecting
all or any portion of the Premises which are currently in existence or which may
hereafter be created by Landlord, or its successors or assigns, including any
and all extensions, modifications, consolidations, renewals, substitutions, and
amendments thereof, and to any and all advances made or to be made under same.
Tenant agrees to execute any instrument or instruments which the Landlord may
deem necessary or desirable to further evidence the foregoing subordination.
Tenant hereby irrevocably appoints Landlord as attorney-in-fact for Tenant with
full power and authority to execute and deliver in the name of Tenant any such
instrument which appointment shall be deemed coupled with an interest and
irrevocable. Further agrees to make such reasonable modifications to this Lease
(not increasing Tenant's obligations hereunder) as may be required by the holder
of any such mortgage, deed of trust, ground or underlying lease. Landlord agrees
to use reasonable efforts to secure a subordination, nondisturbance and
attornment agreement so that possession of Tenant is not disturbed in the event
of Landlord foreclosure, unless Tenant is in default under its Lease.
28. TENANT TO SURRENDER PREMISES IN GOOD CONDITION: Upon expiration
or termination of the lease Term, Tenant shall, at its expenses:
A. Remove Tenant's goods and effects and those of all persons
claiming under Tenant.
B. Quit and deliver upon the Premises to Landlord, peaceably and
quietly, in as good order and condition as the same existed on
the date the Term commenced, or were thereafter placed in by
Landlord, reasonable wear and tear and damage by fire and other
casualty excepted.
C. At the Landlord's request, restore the Premises to general
Building Standards adopted by Landlord for general application
through the Building.
Any property left in the Premises after the expiration or termination of the
Term shall be deemed to have been abandoned and then becomes the property of
Landlord to be disposed of in a lawful manner.
29. HOLDING OVER: If, with Landlord's written consent, Tenant remains
in possession of the Premises after the expiration or other termination of the
Term, Tenant shall be deemed to be occupying the Premises on a month-to-month
tenancy at a rental rate as stated in the written consent. Such month-to-month
tenancy may be terminated by Landlord or Tenant on the last day of any calendar
month by delivery of at least thirty (30) days advance notice of
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termination to the other. If, without Landlord's written consent, Tenant
remains in possession of the Premises after the expiration or other termination
of the Term, Tenant shall be deemed to be occupying the Premises upon a tenancy
at sufferance at a monthly rental equal to 1.5 times the Rent determined in
accordance with SECTIONS 4, 5 and 6.
30. DEFAULT: Tenant covenants and agrees that any of the following
events shall be a default under this Lease: (i) if any false or materially
misleading financial report or statement is furnished or made by or on behalf
of Tenant; or (ii) if any Base Rent or Additional Rent is in arrears; or (iii)
if Tenant fail to perform or observe or breach any covenant, condition or
agreement to be performed or observed by such party hereunder and Tenant shall
not have cured same within 15 days after Landlord's written notice thereof, or
shall be in breach of any other lease with Landlord or in breach of or in
default in the payment and/or performance of any obligation owing to Landlord,
whether or not related to this Lease and howsoever arising, whether by
operation or law or otherwise, present or future, contracted for or acquired,
and whether joint, several, absolute, contingent, secured, unsecured, matured
or unmatured; or (v) if Tenant shall cease doing business as a going concern,
make an assignment for the benefit of creditors, generally not pay its debts as
they become due, admit in writing its inability to pay its debts as they become
due, become insolvent (i.e. greater liabilities than assets), or take any
action looking to its dissolution or liquidation; or (vi) if Tenant should file
for relief, or have filed against them, an action under any provision of any
state or federal bankruptcy or insolvency law; or (vii) if Tenant shall abandon
or vacate the Premises and fail to pay rent hereunder; or (viii) if Tenant
fails to pay all charges for gas, sewer, electricity and other utilities which
are separately metered for the Premises within five (5) days after such are due;
or (ix) if Landlord determines, in its reasonable discretion, that unpleasant
noises or odors emanate from the Premises and Tenant does not take immediate
steps to eliminate such noises and/or odors or fails to eliminate such noises
and odors permanently within five (5) days of notice from Landlord,
In the event of any such default, Landlord may, at its option, elect
any of the following remedies:
(a) Re-take and recover possession of the Premises, terminate
this Lease, and retain Tenant's security deposit.
(b) Re-take and recover possession of the Premises, without
terminating this Lease, in which event Landlord may re-rent
the Premises as agent for and for the account of Tenant and
recover from Tenant the difference between the rental
herein specified and the rent provided in such re-rental,
less all of Landlord's costs and expenses of re-renting
including, without limitation, reasonable attorneys' fees
plus all other sums due hereunder.
(c) Permit the Premises to remain vacant in which event Tenant
shall continue to be responsible for all rental and other
payments due hereunder.
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(d) Re-take and recover possession of the Premises, and
accelerate and collect all rent due hereunder for the
balance of the term of this Lease.
(e) Take any other action as may be permitted under applicable
law.
All of the Landlord's remedies contained in this lease shall be cumulative and
election by Landlord to take any one remedy shall not preclude Landlord from
taking any other remedy not by its nature absolutely incompatible with any
previously or contemporaneously elected remedy. The Landlord may, at its option,
apply any sums received from the Tenant against any amounts due and payable by
the Tenant under this Lease in such manner as the Landlord sees fit and
regardless of the express purpose for which the tender was made and regardless
of any endorsement placed on the check by which payment is made. The Tenant
expressly waives the service of any demand for the payment of rent or for
possession and the service of any notice of the Landlord's election to terminate
this Lease or to re-enter the Premises, including any and every form of demand
and notice prescribed by a statute or other law, and agrees that the simple
breach of any covenant or provision of this Lease by the Tenant shall, of
itself, without the service of any notice or demand whatsoever, constitute a
forcible detainer by the Tenant of the Premises within the meaning of the
statutes of the State of Florida.
31. LANDLORD'S RIGHT TO CURE DEFAULTS: If Tenant defaults in the
observance or performance of any of Tenant's covenants, wherein the default can
be cured by the expenditure of money, Landlord may, but
without obligation, and without limiting any other remedies which it may have by
reason of such default, cure the default, charge the cost thereof to Tenant, and
Tenant shall pay the same, including any and all attorney's fees incurred by
Landlord in during such default forthwith as Additional Rent upon demand,
together with interest thereon at 12% per annum.
32. PAYMENTS AFTER TERMINATION: No payment of money by the Tenant to
the Landlord after the termination of this Lease, in any manner, or after the
giving of any notice by the Landlord to the Tenant shall reinstate, continue or
extend the terms of this Lease or affect any notice given to the Tenant prior
to the payment of such money, it being agreed that after the service of notice
or the commencement of a suit or after final judgment granting the Landlord
possession of said Premises, the Landlord may receive and collect any sums of
rent due or any other sums of money due under the terms of this Lease, and the
payment of such sums of money, whether as rent or otherwise, shall not waive
said notice or in any manner affect any pending suit or any judgment
theretofore obtained. Tenant expressly waives any right to redemption or
reinstatement of the Premises.
33. NOTICES: Each notice required or permitted to be given hereunder
by one party to the other shall be in writing with a statement therein to the
effect that notice is given pursuant to this Lease and the same shall be given
and shall be deemed to have been delivered, served, and given if delivered in
person or placed in the United States Mail, postage prepaid, by United States
registered or certified mail, addressed to such party at the address provided
for such party herein. Any notices to Landlord shall be addressed and given to
Landlord as follows: RIMCO
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XII, INC., 00000 Xxxxxxx Xx., X.X. Xxx 0000, Xxxxxxxxxx Xxxxx, XX 00000-0000,
Attn: Xxxx X. Xxxxx, Treasurer.
Prior to the Commencement Date, the address for notices to Tenant
shall be the address set forth for Tenant on the 1ST page of this Lease; after
the Commencement Date, the address for Tenant shall be the Premises. The
addresses stated above shall be effective for all notices to the respective
parties until written notice of a change in address is given.
34. INTERPRETATION: The captions, sections, clauses, article numbers,
section numbers and table of contents, if any, of this Lease are inserted for
convenience only and in no way limit, enlarge, define or otherwise affect the
scope or intent of the Lease or any provision thereof. The parties hereto
intend that the interpretation and enforcement of this Lease be governed by the
laws of the State of Florida. If there is more than one Tenant, the obligations
and liabilities hereunder imposed upon Tenant shall be joint and several. The
words "Landlord" and "Tenant" shall also extend to and mean the successors in
interest of the respective parties hereto and their permitted assigns although
this shall not be construed as conferring upon the Tenant the right to assign
this Lease or sublet the Premises or confer rights of occupancy upon anyone
other than Tenant. All charges due from Tenant to Landlord hereunder, including,
without limitation, any charges against Tenant by Landlord for services or work
done on the Premises by order of Tenant, except sales tax, shall be deemed
Additional Rent, shall be included in any lien for rent, and shall be paid
(including sales tax) without setoff or defense of any kind. This Lease has been
fully negotiated and reviewed by the parties and their counsel and is the work
product of both Landlord and Tenant; it shall not be more strictly construed
against either party. Provisions inserted herein or affixed hereto shall not be
valid unless appearing in the duplicate original hereof held by the Landlord
and initialled by the parties hereto. In the event of variation or discrepancy,
the Landlord's duplicate shall control. This Lease and the exhibits, schedules,
addenda, riders, and guaranty, if any, attached hereto are incorporated herein
and set forth the entire agreement between the Landlord and Tenant concerning
the Premises and Building and there are no other agreements or understandings
between them. This Lease and its exhibits, schedules, addenda, riders, and
guaranty, if any, may not be modified except by agreement in writing executed by
the Landlord and Tenant. Nothing in this Lease creates any relationship between
the parties other than that of lessor and lessee and nothing in this Lease
constitutes the Landlord a partner of the Tenant or a joint venturer or member
of a common enterprise with the Tenant.
35. ASSIGNMENT AND SUBLETTING: Tenant will not assign, mortgage, pledge,
or hypothecate this, or any interest therein, nor shall Tenant permit
the use of the Premises by any person or persons other than Tenant, nor shall
Tenant sublet the Premises, or any part thereof, without the express written
consent of Landlord, which shall in all respects be subject to the provisions
of this SECTION 35. Any sale of stock of Tenant (if a corporation), assignment
of partnership interest (if a partnership), assignment of beneficial interest
(if a trust), or other device which has the effect of transferring the practical
benefits of this Lease from the parties currently controlling Tenant, shall be
deemed a transfer of Tenant's rights requiring Landlord's consent as herein
provided. Landlord's written consent to any assignment or subletting shall not
operate to release Tenant from its obligations hereunder, nor operate as a
waiver of the necessity for a consent to any subsequent assignment or
subletting, and the terms of such consent shall be binding upon any person
holding by, under or through Tenant. In the event Tenant desires to
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sublease the Premises, or assign this Lease, Tenant shall submit to Landlord
the name of the proposed sub-tenant or assignee, along with sufficient
background and credit information to enable Landlord to determine the
qualifications of the proposed sub-tenant or assignee. Landlord shall notify
Tenant of the acceptance or rejection of the proposed sub-tenant or assignee
within ten (10) business days following the receipt by Landlord of the
aforesaid information. In the event Landlord reasonably rejects the proposed
sub-tenant or assignee, Landlord shall state the reasons for such rejection and
the burden of overcoming the reasons for the rejection shall be that of the
Tenant or proposed sub-tenant or assignee. Notwithstanding anything contained
herein to the contrary, the acceptance by Landlord of any prospective sub-tenant
or assignee is contingent upon both Tenant and the prospective subtenant or
assignee executing an affidavit, attaching a true and complete copy of the
sublease or assignment, and stating all terms of the sublease or assignment
including all consideration paid or to be paid under the sublease or assignment.
To the extent that the total consideration to be paid under the sublease or
assignment exceeds the total consideration that would have been paid by Tenant
pursuant to the terms of this Lease, Landlord may require, as a condition of its
approval of the sub-tenant or assignee, that all or any portion of said economic
benefit be paid directly to Landlord. Tenant shall not advertise that the
Premises or any part thereof is available for subletting, or that this Lease is
available for assignment nor shall Tenant cause any broker or other party to do
so unless the text and format of such advertisement is approved, in writing, by
Landlord, which consent shall not be unreasonably withheld. No such
advertisement shall contain any reference to the rental rate.
36. COMMISSIONS: Tenant represents and warrants that there are no
claims for brokerage commissions or finder's fees in connection with the
execution of this Lease except for JMB Properties Company and Xxx Xxxxx and
Associates, Inc. and Tenant agrees to indemnify the Landlord against and hold it
harmless from all liabilities arising from any such claim. It is recognized by
Landlord that the Tenant is represented by Xxx Xxxxx and Associates, Inc., who
owes its fiduciary duty to Tenant, and will earn upon execution of the Lease by
Landlord (or upon expansion or renewal as stipulated on
the Addendum to Lease), a four percent commission of Base Rents for term of the
lease, payable by Landlord within ten days of Landlord's execution. JMB
Properties, Inc., owing their fiduciary to Landlord, shall be paid a commission
under separate agreement with Landlord.
37. NON-LIABILITY OF LANDLORD:
A. Landlord and/or its successors in interest shall have the
right to transfer and assign, in whole or in part, all and every
feature of Landlord's rights and obligations hereunder as part of a
conveyance of the Building and underlying property. In the event the
Landlord hereunder or any successor owner of the Building shall sell
or convey the Building, all liabilities and obligations on the part
of the original Landlord or such
-17-
successor owner under this Lease accruing thereafter, shall terminate, and
thereupon all such liabilities and obligations shall be binding upon the new
owner. Tenant shall attorn to such new owner.
B. Landlord shall not be responsible or liable to Tenant for
any loss or damage that may be occasioned by or through the acts or
omissions of persons occupying adjoining areas or any part of the
area adjacent to or connected with the Premises or any part of the
Building or for any loss or damage resulting to Tenant or his
property from theft or a failure of the security systems in the
Building, or for any damage or loss of property within the Premises
from any other cause whatsoever, except for Landlord's gross
negligence or willful misconduct, and no such occurrence shall be
deemed to be an actual or constructive eviction from the Premises or
result in an abatement of rental.
C. If Landlord shall fail to perform any covenant, term or
condition of this Lease upon Landlord's part to be performed, and, if
as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only
against the right, title and interest of Landlord in the Building and
out of rents or other income from the Building receivable by Landlord,
or out of the consideration received by Landlord from the sale or
other disposition of all or any part
of Landlord's right, title and interest in the Building, and Landlord
shall not be liable for any deficiency.
38. INABILITY TO PERFORM: If, by reason of the occurrence of
unavoidable delays due to acts of God, governmental restrictions, strikes, labor
disturbances, shortages of materials or supplies or for any other cause or event
beyond Landlord's reasonable control, Landlord is unable to furnish or is
delayed in furnishing any utility or service required to be furnished by
Landlord under the provisions of this Lease or any collateral instrument, or is
unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions, or improvements,
whether required to be performed or made under this Lease or under any
collaterally ground lessor and their successors and assigns harmless from and
against any cost, claim, damage, expense or liability of any kind whatsoever
including, but not limited to, attorney's fees and costs at all tribunal levels
arising out of any act or omission of Tenant, its agents or any other person on
the Premises under color of authority of Tenant, giving rise to any toxic waste,
chemical pollution, or similar environmental hazard regardless of whether any
such act or omission is, at the time of occurrence, a violation of any law or
regulation. The foregoing indemnity shall survive the termination or expiration
of this Lease, anything else herein to the contrary notwithstanding. Landlord
warrants to the best of its knowledge that the Building is not in violation of
any federal or state laws regarding hazardous waste.
-18-
39. ATTORNEYS' FEES AND COSTS: Tenant shall pay to Landlord all costs,
including reasonable attorneys' fees at all tribunal levels, incurred by
Landlord in enforcing this Lease or any covenant hereof in the collection of
any rent, or other sum of money, becoming due hereunder or in the recovery of
possession of the Premises, in the event of the breach by Tenant of any of the
terms or provisions of this Lease. In the event of litigation, the prevailing
party shall be awarded the reimbursement of its attorney fees.
40. TIME: Time is of the essence with respect to Tenant's obligations
under this Lease. Any time period herein specified of five days or less shall
mean business days; any period in excess of five days shall mean calendar days.
41. INDEMNITY FOR TOXIC WASTE: Tenant (and any guarantor) hereby
agree to indemnify, defend and hold the Landlord, the holder of any mortgagee
on the Building and any ground lessor and their successors and assigns harmless
from and against any cost, claim, damage, expense or liability of any kind
whatsoever including, but not limited to, attorney's fees and costs at all
tribunal levels arising out of any act or omission of Tenant, its agents or any
other person on the Premises under color of authority of Tenant, giving rise to
any toxic waste, chemical pollution, or similar environmental hazard regardless
of whether any such act or omission is, at the time of occurrence, a violation
of any law or regulation. The foregoing indemnity shall survive the termination
or expiration of this Lease, anything else herein to the contrary
notwithstanding.
42. ATTORNMENT: In the events of any foreclosure of any mortgage
encumbering the Building, or deed-in-lieu thereof, Landlord shall be released
from all liability hereunder and Tenant shall attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as the Landlord under
this Lease. Tenant shall not be disturbed by new landlord provided that it is
not in default of the lease.
43. SIGNAGE: Tenant shall have no right to display any signage of any
kind visible from the exterior of the Premises, except for reasonable directory
information on the entrance door to the Premises and in the common areas of the
Building which shall be installed by Landlord, at Tenant's expense, in styles
and locations selected by Landlord in its sole but reasonable discretion.
44. PARKING: Tenant shall have free use of 2 covered parking spaces and
free use of 4 roof top spaces, and shall (together with its agents, employees
and invitees) make use of not more than 6 parking spaces at any one time in the
parking area for the Building. If suite 307 is leased by Tenant, then 1
additional free covered space and three additional free rooftop spaces will be
granted by Landlord.
45. RECORDING: Neither the Tenant nor anyone claiming under the Tenant
shall record this Lease or any memorandum hereof in any public records without
the prior written consent of the Landlord. At Landlord's request, Tenant shall
execute and deliver to Landlord, on Landlord's form, a memorandum of this Lease
or Notice of Lien Prohibition in accordance with
-19-
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed this
instrument this 24 day of June, 1994.
WITNESSES: LANDLORD:
RIMCO XII, INC.
/s/ XXXXX XXXX By: /s/ ILLEGIBLE
--------------------------- ------------------------------
Xxxxx Xxxx
/s/ XXXXX XXXXXXX Its: Vice President
-------------------------- -----------------------------
Xxxxx XxXxxxx
TENANT:
OCUREST LABORATORIES, INC.
/s/ ILLEGIBLE By: /s/ ILLEGIBLE
--------------------------- ------------------------------
/s/ ILLEGIBLE Its: Executive Vice President
-------------------------- -----------------------------
-21-
RULES AND REGULATIONS
1. MOVING PERSONAL PROPERTY OF TENANTS. No furniture, freight or
equipment of any kind shall be brought into or removed from the Building or any
demised premises without the consent of Landlord. All moving of same by tenants,
into or out of the Building, shall be done at such times and in such manner as
Landlord shall designate. Landlord shall have the right to prescribe the weight,
size and position of all safes and other heavy property brought into the
Building. All damage done to the Building by such moving or maintaining any such
safe or heavy property shall be repaired at the expense of the Tenant.
2. SHIPPING AND RECEIVING. No Tenant shall receive or ship articles of
any kind except through facilities and designated doors and at hours designated
by the Landlord. Hand trucks, carryalls or similar appliances shall only be used
in the Building with the consent of the Landlord and shall be equipped with
rubber tires, slide guards and such other safeguards as the Landlord requires.
3. PREVENTION OF DAMAGE TO BUILDING AND PREMISES. It shall be the duty
of every tenant to assist and cooperate with the Landlord in preventing damage
to the Building and any demised premises. If any tenant desires telegraphic or
telephonic connections, the Landlord may direct the electricians as to where and
how the wires are to be introduced. No electric wires will be permitted which
have not been authorized by the Landlord. No outside radio, television, or other
antenna shall be allowed on any part of the Building without authorization in
writing by the Landlord.
4. NUISANCE. All tenants will conduct their business, including
supervision of their agents, employees, invitees and visitors, so as not to
create any nuisance, annoyance, disturbance, excessive noise, odor or eyesore
within the Building, or on the surrounding property.
5. EXCLUSION OF PERSONS FROM BUILDING. Landlord reserves the right to
exclude or expel from the Building any person who, in the reasonable judgment
of Landlord, is under the influence of liquor or drugs, or who shall in any
manner do any act in violation of the rules and regulations of the Building.
6. COMPLIANCE WITH LAWS. All tenants will keep and maintain their
demised premises in a clean and healthful condition and comply with all laws,
ordinances, orders, rules and regulations (State, Federal, Municipal and other
agencies or bodies having any jurisdiction thereof, including rules, orders and
regulations of the Southeastern Underwriters Association for the prevention of
fires), with reference to use, conditions or occupancy of the Building or their
demised premises.
7. REPORTING ACCIDENTS. Tenants shall promptly report to Landlord any
accident of which they are aware involving personal injury or property damage
occurring within any demised premises or occurring within the public areas of
or surrounding the Building.
-22-
8. LOST OR STOLEN PROPERTY. All tenants shall take their own adequate
precautions against loss or theft of personal property belonging to them and
their agents, employees and invitees, as well as any other appropriate security
precautions. Although Landlord shall not be responsible for any such
precautions, the Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, any persons occupying,
using or entering the same, or any equipment, furnishings or contents thereof,
and the Tenant shall comply with the Landlord's reasonable requirements relative
thereto.
9. LOCKS. No additional or replacement locks shall be placed on any door
without the written consent of Landlord. Landlord may require that changes be
done by Landlord, at tenant's expense, and that Landlord retain a key to each
lock installed for security and safety purposes.
10. KEYS. Upon expiration of any lease, keys must be returned to the
Building manager or the leasing office, and a receipt obtained by the tenant.
In the event any tenant fails to return keys, Landlord may retain $50.00 of
tenant's security deposit for necessary locksmith work and administration.
11. PETS. No pets or animals are allowed in or around the Building or
any demised premises.
12. FIREARMS. No firearms of any kind shall be permitted in the building
or any demised premises.
13. CANVASSING, SOLICITING, PEDDLING. Canvassing, soliciting and
peddling in or about the Building are prohibited.
14. VEHICLES. No bicycles or vehicles shall be brought within any part
of the Building without the consent of the Landlord.
15. SIGNS. No sign, placard, picture, advertisement, name or notice
shall be inscribed, displayed, printed or affixed on or to any part of the
outside of the Building or to any interior public areas, or in any demised
premises so as to be visible from the outside, without the written consent of
Landlord. Landlord Shall have the right to remove any such objectionable item
without notice to and at the expense of the party so placing such item.
16. DIRECTORY BOARD. The directory of the Building will be provided
exclusively for the display of the name and location of tenants only. Landlord
reserves the right to exclude any other names therefrom.
15. (Continued from above): Landlord shall permit Tenant to install
building standard signage at the entry of the suite.
-23-
17. HOUSEKEEPING. Tenants shall permit window cleaners to clean the
windows of the Building during normal business hours. Tenants shall not place
any debris, garbage, trash or refuse or permit same to be placed or left in or
upon any part of the Building or surrounding property, other than in the
location provided by the Landlord specifically for such purposes. Tenants shall
not allow any undue accumulation of any debris, garbage, trash or refuse in or
outside of the Premises.
18. WATER FIXTURES. The Tenant shall not use water fixtures for any
purpose for which they are not intended, nor shall water be wasted by tampering
with such fixtures. Any cost or damage resulting from such misuse by the Tenant
shall be paid for by the Tenant.
19. PARKING. If the Landlord designates tenant parking areas in the
Building, the Tenant shall park its vehicles and shall cause its employees and
agents to park their vehicles only in such designated parking areas. The Tenant
shall furnish the Landlord, upon request, with the current license numbers of
all vehicles owned or used by the Tenant or its employees and agents and the
Tenant thereafter shall notify the Landlord of any changes in such numbers
within five (5) days after the occurrence thereof. In the event of failure of
the Tenant or its employees and agents to park their vehicles in such designated
parking areas, the Tenant shall forthwith on demand pay to the Landlord, the sum
of TWENTY DOLLARS ($20.00) per day per each car so parked. Landlord may itself
or through any agent designated for such purpose, make, administer and enforce
additional rules and regulations regarding parking by tenants and by their
employees and agents in the Building, including, without limitation, rules and
regulations permitting the Landlord or such agent to move any vehicles
improperly parked to the designated tenant or employee parking areas. No
disabled vehicle shall be left in the parking areas of the Building for more
than 24 hours. A parking area for use by tenants of the Building will be
maintained by Landlord as a cost pass thru expense item. Landlord shall use
reasonable efforts to prevent unauthorized use of the parking area but shall not
be liable to any tenant for any such unauthorized use nor does Landlord warrant
that a parking space shall, in every event, be available for each tenant nor
shall any portion of the parking area be considered a portion of any Tenant's
demised premises. Overnight parking or repairing of vehicles in the parking area
is prohibited. No disabled vehicle shall be left in the parking area for more
than 24 hours. No vehicle shall be parked except in a "lined off" parking space.
Landlord may designate a certain portion of the parking area as reserved for one
or more specific tenants and their invitees. Landlord shall have the right to
place window stickers and/or tow any vehicles violating the Building Rules and
Regulations.
20. WINDOWS. Except for the proper use of blinds and drapes approved in
writing by Landlord, no tenant shall cover, obstruct or affix any object or
material to the windows of the Building or any demised premises that might
reflect or admit light into any part of the Building, including, without
limiting the generality of the foregoing, the application of solar films.
21. REPAIR. MAINTENANCE. ALTERATIONS AND IMPROVEMENTS. The Tenant shall
carry out Tenant's repairs, maintenance, alterations and improvements in the
Premises only during times agreed to in advance by the Landlord and in a manner
which will not interfere with
-24-
the rights of other tenants in the Building.
22. PERSONAL USE OF PREMISES. The Premises shall not be used or
permitted to be used for residential, lodging or sleeping purposes or for the
storage of personal effects or property not required for business purposes.
23. OBSTRUCTIONS. The Tenant shall not obstruct or place anything in or
on the sidewalks or driveways outside the Building or in the lobbies, corridors,
stairwells or other common areas of the Building, or use such locations for any
purpose except access to and exit from the Premises without the Landlord's prior
written consent. The Landlord may remove at the Tenant's expense any such
obstruction or thing caused or placed by the Tenant (and unauthorized by the
Landlord) without notice or obligation to the Tenant.
24. EMPLOYEES. AGENTS AND INVITEES. In these Rules and Regulations,
Tenant includes the employees, agents, invitees and licensees of the Tenant and
others permitted by the Tenant to use or occupy the Premises.
25. PEST CONTROL. In order to maintain satisfactory and uniform pest
control throughout the Building, the Tenant shall engage for its own Premises
and at its sole cost, a qualified pest extermination contractor either
designated or approved by the Landlord, who shall perform pest control and
extermination services in the Premises at such intervals as reasonably required
or as may be directed by the Landlord.
26. LANDLORD NOT RESPONSIBLE FOR VIOLATIONS. Landlord is not responsible
to any tenant for the non observance or violation of the rules and regulations
by any other tenant, but will use reasonable efforts to enforce the rules.
-25-
ADDENDUM TO LEASE AGREEMENT
This Addendum to Lease made and entered into this 24th day of JUNE,
1994 by and between RIMCO XII, as "Landlord" and OCUREST LABORATORIES, INC.,
"TENANT."
WITNESSETH
Whereas, Landlord and Tenant have entered into that certain Leased
dated June 24, 1994, (the "Lease"). The Lease relates to the premises located
on the third floor of the building (hereinafter referred to as the "Premises")
consisting of approximately 1,276 leasable square feet known as Suite 306 in
the Admiralty II Building, 0000 XXX Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx, Xxxxxxx
00000.
Now, Therefore, in consideration of ten dollars and mutual promises and
covenants contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually agree as follows:
ARTICLE 1
LEASE BINDING: Except as hereinafter provided and modified, all of the
covenants, agreements, terms, provisions and conditions of the Lease are hereby
incorporated by reference herein and shall otherwise remain in full force and
effect and continue to be binding upon the parties. Defined terms which are not
defined herein shall have the same meaning as set forth in the Lease.
ARTICLE 2
*see below
RIGHT OF FIRST REFUSAL: Tenant shall have the ongoing Right of First
Refusal for Suite 307 until the Lease expires. In the event that Landlord shall
desire to enter into a lease for #307 with a third party, then prior to its
execution, it shall notify Tenant in writing of its intention, and outline the
basic terms and conditions of the proposed third party lease, and the Tenant
shall then have five (5) days in which to lease or not to lease the Expansion
Premises per the terms and conditions of the proposed third party lease.
Landlord's work for the preparation of suite 307, should Ocurest lease the space
as provided for in Article 2, is shown on Exhibit D.
ARTICLE 4
(See attached Option to Renew)
IN WITNESS WHEREOF, LANDLORD AND TENANT HAVE DULY EXECUTED THIS AMENDMENT
TO LEASE AGREEMENT THIS DAY AND YEAR FIRST ABOVE WRITTEN.
Signed, sealed and delivered LANDLORD:
in the presence of:
RIMCO XII, INC.
/s/ XXXXX X. XXXX By: /s/ ILLEGIBLE
--------------------------- ------------------------------
Xxxxx X. Xxxx
/s/ XXXXX XXXXXXX Its: Vice President
-------------------------- -----------------------------
Xxxxx XxXxxxx
Signed, sealed and delivered TENANT:
in the presence of:
OCUREST LABORATORIES, INC.
/s/ ILLEGIBLE By: /s/ ILLEGIBLE
--------------------------- ------------------------------
/s/ ILLEGIBLE Its: Executive Vice President
-------------------------- -----------------------------
ARTICLE 4 OF ADDENDUM TO LEASE AGREEMENT DATED JUNE 24, 1994
OPTION TO RENEW
Provided that Tenant is not, in default during the Term under any of
the covenants, terms, conditions and provisions of this
Lease, then Tenant shall have the option to renew this Lease (including Xxxxx
000 xxx Xxxxx 000 if Tenant properly exercises its Expansion Option) for a
further term of three (3) years, provided that, in order to exercise this Option
to Renew, Tenant is required to give to Landlord written notice thereof not less
than six (6) months before the date of expiration of the Term of this Lease.
Any renewal pursuant to this Option shall be on the same terms and conditions as
are contained in this Lease except: (i) there shall be no additional right of
renewal; (ii) the annual Base Rent payable by Tenant for the renewed Term shall
be as follows:
EQUAL
MONTHLY
PERIOD PSF ANNUAL PAYMENT
------ --- ------ -------
Option Year 1: (July 1, 1997 - June 30, 1998) $18.79 $18,921.53 $1,576.79
Option Year 2: (July 1, 1998 - June 30, 1999) $19.29 $19,425.03 $1,618.75
Option Year 3: (July 1, 1999 - June 30, 2000) $19.79 $19,928.53 $1,660.71
In addition to Base Rent, Tenant shall pay Additional Rent and all other
sums payable under the Lease increased to reflect the leasable area of the
Expansion Space which Landlord and Tenant hereby stipulate is 1,007 leasable
square feet.
EXHIBIT A
[LAYOUT OF SUITE 306]
XXXXX 000
XXXXXXXXX XX
Xxxxx # 000, consisting of approximately 1276 leasable square feet, located on
the south side of the third floor of the Admiralty II building at 0000 XXX
Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx, Xxxxxxx.
The above Premises to be modified by Landlord at its cost prior to the
Commencement Date of the Lease as delineated on Exhibit B, Landlord's Work.
EXHIBIT D
[LAYOUT OF XXXXX 000]
Xxxxx # 000, consisting of approximately 1007 leasable square feet, located
on the south side of the third floor of the Admiralty II building at 0000 XXX
Xxxxxxxxx Xxxx Xxxxx Xxxxxxx, Xxxxxxx, contiguous to the east of suite # 306.
The following is a description of Landlord's Work, to be completed by Landlord
at its sole cost prior to the commencement date of the Expansion Premises
(refer to numbers on the schematic plan above):
1. Reconfigure entry area (suites 306 and 307) to provide a new set of glass
double doors facing hallway and repair and patch walls in areas effected.
2. Replace carpet throughout suite 307 to match 306 and touch up paint where
necessary.
