OFFICE LEASE AGREEMENT
EXHIBIT
10.36
This
Office Lease Agreement (this “Lease”) is made and entered into as of January 8,
2007 (the “Effective Date”), by and between TRACKSIDE BROTHERS LLC, a Florida
limited liability company (“Landlord”), and MEDSTRONG INTERNATIONAL CORPORATION,
a Delaware corporation (“Tenant”).
BASIC
TERMS
The
following terms (“Basic Terms”) are hereby incorporated into and made a part of
this Lease. Each reference in this Lease to the Basic Terms shall mean the
information set forth below and shall be construed to incorporate all of the
terms provided under the particular section in this Lease pertaining to such
information. In the event of a conflict between the Basic Terms and the
particular section in this Lease, the particular section shall prevail.
1. Landlord: Trackside
Brothers LLC, a Florida limited liability company
000
X.X.
0xx Xxxxxx
Xxxxxx
Xxxxx, XX 00000
2. Tenant: Medstrong
International Corporation, a Delaware corporation
000
X.X.
0xx Xxxxxx
Xxxxxx
Xxxxx, XX 00000
3. Leased
Premises: Approximately
3,000 square feet of office space in a building containing an aggregate of
7,388
square feet (40% of the space).
4. Term: Twelve
(12) months with a right to renew for an additional twelve (12) months with
a 4%
increase in Base Rent for the renewal year
5. Base
Rent: Tenant
shall pay $15 per square foot per annum ($3750 per month), increased by 4%
(if
term is renewed).
6. Operating
Expenses: Tenant
shall pay 40% of the Operating Expenses.*
8.
Security
Deposit: None
7. Termination: Tenant
may terminate at any time with 30 days written notice and payment of one-month’s
rent as termination fee.
1) Lease
of
Premises: Landlord, for and in consideration of the rents, covenants and
agreements hereinafter set forth, hereby leases to Tenant and Tenant hereby
leases from Landlord the office space located in the premises situated in the
city of Delray Beach, County of Palm Beach, State of Florida, described as:
3,000 square feet of office space within a 7,388 square foot mixed use building
(comprising 40% of the total space) located at 000 X.X. 0xx Xxxxxx, Xxxxxx
Xxxxx, XX 00000 (the “Leased Premises”)
2) Term:
Landlord agrees to lease to Tenant the above premises for a term of twelve
(12)
months commencing January 8, 2007 and terminating on January 7, 2008 as provided
herein.
3) Rent
and
Operating Expenses; Deferral:
a) Base
Rent: Subject to paragraph (c) below, Tenant shall pay to Landlord a monthly
rental of $3,750 (an amount equal to $15 per square foot per year comprising
the
Leased Premises) payable in advance on the 8th day of each and every calendar
month thereafter in advance.
b) Operating
Expenses: Subject to paragraph (c) below:
i) Tenant
shall pay to Landlord its pro rata share of the expenses incurred by Landlord
with respect to the ownership, maintenance and operation of the Property, namely
utilities charges (expressly excluding telephone and network expenses), taxes,
day-to-day maintenance and insurance premiums (“Operating Expenses”). The Leased
Premises comprise forty percent (40%) of the building. Based on the Operating
Expenses of 2006 (which totaled $65,028), Tenant’s pro rata share (i.e., 40%) of
total Operating Expenses is estimated at $23,400 for calendar year 2007. Tenant
shall pay the estimated amount of Operating Expenses for the first year of
the
Term in monthly installments of $1,950, in advance, on the 8th day of each
month
during the term.
ii) At
the
end of the term, Landlord shall determine the actual amount of Operating
Expenses and Tenant’s prorata share thereof and deliver a written statement of
the amount thereof to Tenant. If Tenant paid less than the amounts specified
in
said certification, Tenant shall pay the unpaid portion of the same within
ten
(10) days after receipt of such certification. In turn, if Tenant paid more
than
the amounts specified in said certification, Landlord shall reimburse Tenant
the
amount in excess within ten (10) days after receipt of such
certification.
iii) The
Operating Expenses exclude telephone and network expenses. Tenant shall be
financially responsible for all telephone and network expenses (“Telephone
Expenses”) relating to the conduct of its business. Telephone Expenses may be
billed directly to Tenant or to Landlord by the applicable provider; in the
latter case, unless otherwise mutually agreed, Landlord shall pay the billed
Telephone Expense and thereupon xxxx Tenant for such Telephone Expense. Tenant
shall reimburse Landlord for paying the Telephone Expense within fifteen (15)
business days of receiving the xxxx from Landlord.
c) Deferral
and Accrual of Base Rent and Operating Expenses: Unless otherwise agreed to
in
writing by the parties, notwithstanding paragraphs (a) and (b) above, Landlord
hereby agrees to defer and accrue the payment of Base Rent, Operating Expenses
and Telephone Expenses (that Landlord has paid) until such time that: (i) Tenant
receives financing from any source, (ii) Tenant’s employees and consultants (who
are also deferring their salaries and/or fees) are fully paid their accrued
compensation/fees, and (iii) Tenant has sufficient funding to pay Landlord
as
determined by Tenant’s Board of Directors. At such time that the foregoing
conditions are met, Tenant agrees to pay Landlord the accrued Base Rent,
Operating Expenses and Telephone Expenses payments identified in paragraphs
(a)
and (b); once the accrued amounts have been fully paid, Tenant shall make
subsequent payments in accordance with this Lease.
d) Tax
on
Rent and Expenses: Tenant shall pay to Landlord any sales tax or excise tax
on
rents which is levied or assessed by the State of Florida or any political
subdivision thereof (e.g. county) against Landlord in respect to its Base Rent,
Operating Expenses and Telephone Expenses payments.
e) Delivery
of Payments: All rental payments shall be made to Landlord, at Landlord’s office
as follows: 000 X.X. 0xx Xxxxxx, Xxxxxx Xxxxx, XX 00000.
f) Security
Deposit: No security deposit shall be required by Landlord.
4) Use:
a) General:
Tenant shall use and occupy the premises as general offices to conduct its
business operations. The premises shall be used for no other purpose. Landlord
represents that the premises may lawfully be used for such purpose.
b) Parking:
Tenant shall have a right to use the parking spaces located at the property.
Such parking spaces shall be provided to Tenant at no charge throughout the
term
of this Lease.
5) Care
and
Maintenance of Premises: Tenant acknowledges that the premises are in good
order
and repair, unless otherwise indicated herein. Tenant shall, at Tenant(s) own
expense and at all times, maintain the premises in good and safe condition
and
shall surrender the same at termination hereof, in as good condition as
received, normal wear and tear excepted. Tenant shall be responsible for all
repairs required, excepting any material structural and equipment repairs such
as by way of example the Leased Premises’ roof, exterior walls, and structural
foundations, as well as the property’s HVAC plumbing and electrical
systems.
6) Ordinances
and Statutes: Tenant shall, at Tenant's sole cost, comply with all statutes,
ordinances and requirements of all municipal, state and federal authorities
now
in force, pertaining to the use of said premises and shall faithfully observe
in
said use all municipal ordinances, state and federal statutes now in force
or
which may hereafter be in force and observe and maintain all Environmental
standards.
7) Assignment
and Subletting: Tenant shall not assign this lease or sublet any portion of
the
premises without prior written consent of the Landlord, in its sole discretion.
Any such assignment or subletting without consent shall be void and at the
option of the Landlord, may terminate this lease.
8) Utilities:
All applications and connections for necessary utility services on the demised
premises shall be made in the name of Landlord, and Tenant shall be liable
for
its pro-rata share of the utility charges (including those for sewer, water,
gas, electricity and telephone services) as Operating Expenses in accordance
with Section 3(b) above.
9) Entry
and
Inspection: Tenant shall permit Landlord or Landlord's agents to enter upon
the
premises at reasonable times and upon reasonable notice, for the purpose of
inspecting the same and shall permit Landlord at any time within sixty days
prior to the expiration of this lease, to place upon the premises any usual
“For
Sale”, “To Let” or “For Lease” signs and permit persons desiring to lease the
same to inspect the premises thereafter.
10) Alterations:
Tenant shall not, without first obtaining the written consent of Landlord,
make
any alterations, additions or improvements, in, to or about the premises.
NOTHING IN THIS LEASE SHALL BE DEEMED TO BE, OR CONSTRUED IN ANY WAY AS
CONSTITUTING, THE CONSENT OR REQUEST OF LANDLORD, EXPRESSED OR IMPLIED, BY
INFERENCE OR OTHERWISE, TO ANY PERSON, FIRM OR CORPORATION FOR THE PERFORMANCE
OF ANY LABOR OR THE FURNISHING OF ANY MATERIALS FOR ANY CONSTRUCTION,
REBUILDING, ALTERATION OR REPAIR OF OR TO THE PREMISES OR ANY PART THEREOF,
NOR
AS GIVING TENANT ANY RIGHT, POWER OR AUTHORITY TO CONTRACT FOR OR PERMIT THE
RENDERING OF ANY SERVICES OR THE FURNISHING OF ANY MATERIALS WHICH MIGHT IN
ANY
WAY GIVE RISE TO THE RIGHT TO FILE ANY LIEN AGAINST THE BUILDING OR LANDLORD’S
INTEREST IN THE PREMISES. TENANT SHALL NOTIFY ANY CONTRACTOR PERFORMING ANY
CONSTRUCTION WORK IN THE PREMISES ON BEHALF OF TENANT THAT THIS LEASE
SPECIFICALLY PROVIDES THAT THE INTEREST OF LANDLORD IN THE PREMISES SHALL NOT
BE
SUBJECT TO LIENS FOR IMPROVEMENTS MADE BY TENANT, AND NO MECHANIC’S LIEN OR
OTHER LIEN FOR ANY SUCH LABOR, SERVICES, MATERIALS, SUPPLIES, MACHINERY,
FIXTURES OR EQUIPMENT SHALL ATTACH TO OR AFFECT THE STATE OR INTEREST OF
LANDLORD IN AND TO THE PREMISES, THE BUILDING, OR ANY PORTION THEREOF. IN
ADDITION, LANDLORD SHALL HAVE THE RIGHT TO POST AND KEEP POSTED AT ALL
REASONABLE TIMES ON THE PREMISES ANY NOTICES WHICH LANDLORD SHALL BE REQUIRED
SO
TO POST FOR THE PROTECTION OF LANDLORD AND THE PREMISES FROM ANY SUCH LIEN.
TENANT AGREES TO PROMPTLY EXECUTE SUCH INSTRUMENTS IN RECORDABLE FORM IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF FLORIDA STATUTE 713.10.
11) Indemnification
of Landlord: Landlord shall not be liable for any loss, damage or injury of
any
kind, to any person, including Tenant, Tenant(s) family and Tenant(s) visitors
or property arising from any use of the Leased Premises, any part thereof or
caused by any defect in any structure, facility or other improvements thereon
or
therein or caused by or arising from any act or omission of Tenant, Tenant(s)
family, Tenant(s) visitors or any other person or by or from an accident on
the
premises or any fire or other casualty or occasioned by the failure of Tenant
to
maintain or repair the Leased Premises or by Tenant(s) breach of any obligation
under this Lease.
12) Insurance:
a) Landlord:
Landlord shall keep the Property insured for the benefit of Landlord, its
lenders and agents, in an amount in Landlord’s sole discretion which may
include:
i) loss
or
damage by fire; and
ii) such
other risk or risks which are customarily covered with respect to buildings
and
improvements similar in construction, general location, use, occupancy and
design to the Property, including but not limited to windstorms hail, explosion,
vandalism, malicious mischief civil commotion and such other coverage as
Landlord may deem appropriate or necessary.
Tenant
acknowledges and accepts that Landlord may self-insure all or a potion of the
Building, Land, Property or Premises.
b) Tenant:
Tenant, at Tenant(s) sole cost and expense, but for the mutual benefit of
Landlord and Tenant, shall maintain commercial liability insurance, including
liability against claims for personal injury, death or property damage occurring
in, upon or about the premises and on any sidewalks directly adjacent to the
premises. All such policies of insurance shall be issued in the name of the
Tenant, with the Landlord named as additional insured.
13) Eminent
Domain: If the premises or any part thereof or any estate therein or any other
part of the building materially affecting Tenant(s) use of the premise, shall
be
taken by eminent domain, this lease shall terminate on the date when title
vests
pursuant to such taking. The rent and any additional rent, shall be apportioned
as of the termination date and any rent paid for any period beyond that date
shall be repaid to Tenant. Tenant shall not be entitled to any part of the
award
for such taking or any payment in lieu thereof, but Tenant may file a claim
for
any taking of fixtures, improvements owned by Tenant and for moving expenses.
14) Destruction
of Premises: In the event of a partial destruction of the premises during the
term hereof, from any cause, Landlord shall forthwith repair the same, provided
that such repairs can be made within sixty (60) days under existing governmental
laws and regulations, but such partial destruction shall not terminate this
lease, except that Tenant shall be entitled to a proportionate reduction of
rent
while such repairs are being made, based upon the extent to which the making
of
such repairs shall interfere with the business of Tenant on the premises. If
such repairs cannot be made within said sixty (60) days, Landlord, at
Landlord(s) option, may make the same within a reasonable time, this lease
continuing in effect with the rent proportionately abated as aforesaid and
in
the event that Landlord shall not elect to make such repairs which cannot be
made within sixty (60) days, this lease may be terminated at the option of
either party. In the event that the building in which the demised premises
may
be situated is destroyed to an extent of not less than one-third of the
replacement costs thereof, Landlord may elect to terminate this lease whether
the demised premises be injured or not. A total destruction of the building
in
which the premises may be situated shall terminate this lease.
15) Landlord(s)
Remedies on Default:
a) Default:
Subject to Section 3(c), if Tenant defaults in the payment of rent or any
additional rent or defaults in the performance of any of the other covenants
or
conditions hereof, Landlord may give Tenant notice of such default and if Tenant
does not cure any such default within ten (10) business days, after the giving
of such notice (or if such other default is of such nature that it cannot be
completely cured within such period, if Tenant does not commence such curing
within such ten (10) days and thereafter proceed with reasonable diligence
and
in good faith to cure such default), then Landlord may terminate this lease
on
not less than ten (10) business days notice to Tenant. On the date specified
in
such notice the term of this lease shall terminate and Tenant shall then quit
and surrender the premises to Landlord, but Tenant shall remain liable as
hereinafter provided. If this lease shall have been so terminated by Landlord,
Landlord may at any time thereafter resume possession of the premises by any
lawful means and remove Tenant or other occupants and their effects. No failure
to enforce any term shall be deemed a waiver.
b) Limitation
of Redress: Landlord hereby agrees that under no circumstance whatsoever shall
Tenant’s default of this Lease (including, without limitation, a default in
payment) give Landlord any right, interest, ownership or access to Tenant’s
intellectual property rights including, without limitation, Tenant’s software,
domain names or trademarks. Further, Landlord shall have no right, interest,
ownership or access to any media that contains any of Tenant’s intellectual
property rights including, without limitation, Tenant’s files, servers, and
computers. Tenant shall have the right to access and remove any such media
from
the Leased Premises within two (2) days of requesting Landlord. Landlord agrees
that, in the event that it fails to allow Tenant to access and remove such
media
within the two (2) days, then, in addition to any remedies at law Tenant may
have, Tenant, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy that may be available.
16) Attorney(s)
Fees: In case suit should be brought for recovery of the premises or for any
sum
due hereunder or because of any act which may arise out of the possession of
the
premises, by either party, the prevailing party shall be entitled to all costs
incurred in connection with such action, including a reasonable attorney(s)
fee.
17) Notices:
Any notice which either party may or is required to give, shall be given by
mailing the same, postage prepaid, to Tenant at the Leased Premises or Landlord
as follows -- Trackside Brothers LLC, 000 X.X. 0xx Xxxxxx, Xxxxxx Xxxxx, XX
00000 -- or at such other places as may be designated by the parties from time
to time.
18) Heirs,
Assigns, Successors: This lease is binding upon and inures to the benefit of
the
heirs, assigns and successors in interest to the parties.
19) Option
to
Terminate/Renew:
a) Termination:
Provided that Tenant is not in default in the performance of this lease, Tenant
shall have the option to terminate the lease at any time by providing thirty
(30) days prior written notice. In such event, and as a condition for
termination, unless otherwise agreed upon by the parties in writing, Tenant
must
be current in all payments provided under Section 3 above (including, without
limitation, payment of any deferred/accrued amounts identified in Section 3(c))
and Tenant must pay to Landlord a termination fee in an amount equal to one
month of Base Rent and Tenant’s pro-rata share of Operating Expenses. The Lease
shall then terminate and there shall be no recalculation of actual Operating
Expenses and no payment from Tenant to Landlord for underpayment nor
reimbursement from Landlord to Tenant for overpayment.
b) Renewal:
Provided that Tenant is not in default in the performance of this lease, Tenant
shall have the option to renew the lease for an additional term of twelve (12)
months commencing at the expiration of the initial lease term. All of the terms
and conditions of the lease shall apply during the renewal term except that
the
Base Rent payable monthly shall be increased to an amount equal to $3,900.
Landlord shall recalculate the Operating Expenses for 2008 based on the
Operating Expenses for 2007 and Tenant’s pro-rata estimated share of Operating
Expenses shall be recalculated and paid all in accordance with Section 3(b).
The
option shall be exercised by written notice given to Landlord not less than
thirty (30) days prior to the expiration of the initial lease term. If notice
is
not given in the manner provided herein within the time specified, this option
shall expire.
20) Subordination:
This lease is and shall be subordinated to all existing and future liens and
encumbrances against the property.
21) Additional
No Waiver: No failure by Landlord to insist upon the performance of any of
the
terms of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by Landlord of full or partial rent from Tenant
or
any third party during the continuance of any such breach, shall constitute
a
waiver of any such breach or of any of the terms of this Lease.
22) Captions
and Interpretation: The captions of the Articles and Sections of this Lease
are
to assist the parties in reading this Lease and are not a part of the terms
or
provisions of this Lease.
23) Relationship
of Parties: This Lease does not create the relationship of principal and agent,
or of partnership, venture, or of any association or relationship between
Landlord and Tenant, the sole relationship between Landlord and Tenant being
that of landlord and tenant.
24) Severability:
If any covenant, condition, provision, term or agreement of this Lease shall,
to
any extent, be 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 extent permitted by Law.
25) Survival:
All obligations accruing prior to expiration of the Term shall survive the
expiration or other termination of this Lease.
26) Governing
Law; Venue: This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with the laws of
the
State of Florida without regard to principles of conflicts of law. Venue of
all
proceedings in connection therewith shall be in Palm Beach County, Florida,
and
each party hereby waives whatever their respective rights may have been in
the
selection of venue.
27)
Entire
Lease: The foregoing constitutes the entire agreement between the parties and
may be modified only by a writing signed by both parties.
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease in multiple
original counterparts as of the 8th day of January 2007.
| LANDLORD: | TENANT: | ||
|
TRACKSIDE BROTHERS LLC,
a Florida limited liability company
|
MEDSTRONG INTERNATIONAL
CORPORATION,
a Delaware corporation
|
||
| By: /s/ Xxxx Xxxxxx | By: /s/ Xxxxxxx Xxxxxxx | ||
|
Print Name:
|
Print Name:
|
||
|
|
|
||
|
Title:
|
Title: | ||
|
|
|
