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Exhibit 10.31
LEASE AGREEMENT
TABLE OF CONTENTS
Article Heading Page
------- ------- ----
1. Premises
2. Term
3. Rent
4. Use
5. Maintenance
6. Surrender of Premises
7. Quiet Enjoyment
8. Assignment
9. Utilities and Taxes
10. Signage and Store Windows
11. Alteration to the Premises and Removal of Equipment
12. Liens
13. Casualty
14. Insurance
15. Indemnification
16. Inspection and Repair
17. Default
18. Waiver or Estoppel
19. Subordination; Non-Disturbance: Rights of Security Instrument Holder
20. Condemnation
21. Assessments
22. Deposits and Advances
23. Security Deposit
24. Additional Construction
25. Notices
26. Tenant's Acquiescence to Statements
27. Environmental Laws
28. Public Accommodation
29. Miscellaneous
Exhibit A - Legal Description and Site Plan
Exhibit B - Rental Rider
LEASE AGREEMENT
THIS LEASE, made and entered into this day of , 2003, by and between
Xxxxxx Xxxxxxxx as Landlord, and DNA Print Genomics, Inc. as Tenant;
WITNESSETH:
In consideration of the mutual covenants and agreement hereinafter set
forth, and the rent reserved by Landlord to be paid by Tenant, Landlord hereby
leases and demises unto Tenant, and Tenant hereby does lease from Landlord that
certain real property situated in Sarasota County, Florida. Florida, hereinafter
described, for the terms, and at the rentals, and upon the terms and conditions,
hereinafter set forth:
1. Premises. Landlord is the owner of certain property, the legal
description of which is attached as Exhibit "A" hereto. The portion of the real
property leased and demised by Landlord unto Tenant (hereinafter "Premises") is
that portion of the property as shown on the site plan also attached as Exhibit
"A". The premises contains approximately 4000 square feet of gross leasable
area.
The premises are being rented to Tenant in an "as is"
condition.
2. Term. The term of this Lease, and the accrual of rents
hereunder, shall commence on the following date: June 1, 2003 (hereinafter
referred to as the "Commencement Date") and the term shall extend for a period
of 2 years thereafter, ending at 11:59 p.m. on the following date: May 31, 2005
("Expiration Date"). Notwithstanding the foregoing, Tenant shall also have, at
Tenants sole discretion, one Five (5) year option commencing on the Expiration
Date and expiring on May 31, 2010.
3. Rent.
Tenant agrees to pay Landlord, without demand, setoff or
deduction, a fixed minimum rent (hereinafter referred to as "Base Rent") for the
term as set forth in the "Rental Rider" attached hereto and made a part hereof.
Each monthly installment of Base Rent, as referred to in said Rider, shall be
payable in advance to Landlord on the first (1st) day of each calendar month of
the term. If the Commencement Date, as hereinabove defined, is not on the first
(1st) day of a calendar month, Base Rent for the period between Commencement
Date and the first day of the following month shall be prorated, on a per diem
basis, at the monthly rental rate hereinabove provided, and shall be payable on
the Commencement Date. In addition to the Base Rent herein reserved, Tenant
shall also pay the amount of any use or sales tax on said rental imposed by the
State of Florida and any federal or local government, which taxes and other
assessments shall be paid at the same time and in the same manner as each
payment of rent.
4. Use. Tenant, its successors and assigns, agrees to use the
Premises exclusively for the following purposes: Lab/Office space and for no
other use or purpose whatsoever. Tenant, at Tenant's expense, shall comply with
all laws, ordinances, rules and regulations of governmental authorities, now in
force or which may hereafter be in force, which shall impose any duty upon
Landlord or Tenant with respect to the use, occupation or alteration of the
Premises.
5. Maintenance. Landlord shall not be called upon and shall have
no obligation to make any repairs, improvements or alterations whatsoever to the
Premises except that during the term of this Lease, Landlord shall maintain the
exterior walls (but not storefronts, glass, plate glass, doors or painting) in
good structural repair, and shall keep the roof of the building watertight;
provided, however, that Landlord shall not be required to make any repairs to
the roof or any part of the Premises until written notice of the need for such
repairs is given to Landlord by Tenant. It is further provided that Landlord
shall not be liable for or required to make any repairs, or perform any
maintenance, to or upon the Premises which are required by, related to or which
arise out of negligence, fault, misfeasance or malfeasance of and by Tenant, its
employees, agent, invitees, licensees or customers, in which event Tenant shall
be solely responsible therefor; and if such repairs are undertaken by Landlord,
it shall be solely at the expense of Tenant and Tenant shall pay said amounts
within 30 days of receipt of billing therefor, or in the alternative shall be
considered in default under the terms of this Lease.
Tenant shall repair, service, keep and maintain the interior
of the Premises, including all plumbing, wiring, piping, sprinkler system, and
fixtures, doors, equipment and appurtenances, as well as the exterior
storefront, in good and substantial repair and in a condition of first class
appearance during the entire term of this Lease and shall replace all glass in
the windows and doors broken during the Lease term. Tenant agrees to make
repairs promptly as they may be needed at Tenant's expense.
6. Surrender of Premises. Tenant shall, upon expiration of the
term hereof, or any earlier termination of this lease for any cause, surrender
to Landlord the Premises, but said surrender shall not include any building
apparatus, equipment then upon the premises, and any or all alterations,
improvements and other additions thereto that have been made or installed by
either party in or upon the Premises. If Tenant shall remove such items, Tenant
and shall repair and correct any damage caused by such removal. If Tenant is not
then in default, Tenant may remove its signs and other attached or non-attached
personal property, but not, air conditioning equipment, floor and wall
coverings, and permanent partitions, which items shall remain in the Premises
and become the property of Landlord upon installation of same. However, at
Landlord's request upon expiration or termination of the Lease term, Tenant
shall be required to remove such fixtures as Landlord may designate, including
but not limited to floor coverings, and shall repair and correct any damage
caused by such removal. Tenant agrees that upon the end of the term or upon
termination of this Lease, Tenant shall deliver up the Premises to Landlord in
good condition and repair and in broom clean condition with all glass and all
windows and doors intact, ordinary wear and tear excepted.
7. Quiet Enjoyment. Landlord covenants that so long as Tenant
pays the rent reserved in this Lease and performs its agreements hereunder,
Tenant shall have the right to quietly enjoy and use the Premises for the term
hereof, subject only to the provisions of the agreement.
8. Assignment. Tenant acknowledges that Tenant's agreement to
operate in the leased Premises for the use permitted in Article 4 hereunder was
a primary inducement and precondition to Landlord's agreement to lease the
Premises to Tenant. Accordingly, Tenant shall not assign the Lease nor any right
hereunder, nor let or sublet all or any part of the Premises, nor suffer or
permit any person or corporation to use any part of the Premises, without first
obtaining the express prior written consent of Landlord, which consent shall not
be unreasonably withheld.
Notwithstanding any portion of the foregoing to the contrary,
in the event that this Lease is attempted to be assumed under federal bankruptcy
law by a trustee in bankruptcy for Tenant or by Tenant as debtor in possession
(hereinafter collectively referred to as "Trustee") and there exists a default
as defined under this Lease or such state of facts which with the giving of
notice and the passage of time would constitute a default (such state of facts
being hereinafter referred to as "default"), such attempted assumption shall not
be effective unless Trustee; (i) cures, or provides adequate assurance that it
will promptly cure such default, and (ii) compensates, or provides adequate
assurance that it will promptly compensate Landlord for any actual pecuniary
loss to Landlord resulting from such default, and (iii) provides adequate
assurance of future performance of Tenant's obligations and covenants under this
Lease. For purposes of this provision, "adequate assurance of future
performance" shall be deemed to include, without limitation, assurance of source
of rental and other consideration due under this Lease, that percentage rental
due under this Lease shall not decline substantially, that assumption or
assignment of this Lease shall not breach any provision in any other lease or
financing agreement relating to the Premises.
If Landlord shall not be permitted to terminate this Lease as
provided herein because of the provisions of the Federal Bankruptcy code
(currently Title 11 of the United States Code), the Trustee agrees promptly,
within no more than 15 days upon request by Landlord to the bankruptcy court, to
assume or reject this Lease, and Tenant on behalf of itself and any Trustee
agrees not to seek or request any extension or adjournment of such time
requirement. In no event after the assumption of this Lease by Trustee shall any
existing default remain uncured for a period in excess of 10 days. Landlord
shall have no obligation to provide Trustee with any service or utilities unless
Trustee shall have paid and is current on all payments and obligations under
the Lease Agreement, including but not limited to rental obligations.
9. Utilities and Taxes. Tenant shall pay all costs and expenses
for gas, water, electricity, heat. cooling, sewerage and any and all other
utilities furnished to or used in connection with the Premises for any purpose
whatsoever during the term of this Lease, promptly as each thereof shall become
due and payable; Tenant's failure to so pay utilities costs and expenses shall
constitute an event of default hereunder. Tenant shall pay any assessment for
Tenant's personalty and business equipment on the Premises. Tenant shall pay all
real estate taxes and assessments against the premises (and if Tenant, then
payment shall be made within the maximum (4%) discount time period and evidences
of payment shall be provided to Landlord).
10. Signage and Store Windows. Tenant shall not place or suffer to
be placed or maintained upon any exterior door, roof, wall or window of the
Premises any sign, awning, canopy or advertising matter or other thing of any
kind, and will not place or maintain any decoration, lettering or advertising
matter on the glass of any window or door of the Premises and will not place or
maintain any freestanding standard within or upon the Premises, without first
obtaining the Landlord's express prior written consent.
11. Alteration to the Premises and Removal of Equipment. Tenant
shall not make any alteration or addition to the Premises, including the
installation of air conditioning, without first obtaining the express prior
written consent of Landlord. All alterations or additions made by Tenant shall
comply with all laws, codes, rules and regulations of governmental authorities.
Any plans, specifications or work drawings approved by Landlord shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, codes, rules and regulations of
governmental authorities. Upon expiration and termination of this Lease all
installations, improvements and alterations made by Tenant, including electric
lighting fixtures installed by Tenant, and all other improvements, replacements,
repairs and alterations to the Premises made by Tenant during the term of this
Lease, shall remain a part of the Premises as the property of Landlord.
12. Liens. Tenant agrees that it will make full and prompt payment
of all sums necessary to pay for the cost of repairs, alterations, improvements,
changes or other work done by Tenant to the Premises and further agrees to
indemnify and hold harmless Landlord from and against any and all such costs and
liabilities incurred by Tenant, and against any and all mechanic's,
materialman's or laborer's liens arising out of or from such work or the cost
thereof which may be asserted, claimed or charged against the Premises.
Notwithstanding anything to the contrary in this Lease, the interest of Landlord
in the Premises shall not be subject to liens for improvements made by or for
Tenant, whether or not the same shall be made or done in accordance with an
agreement between Landlord and Tenant, and it is specifically understood and
agreed that in no event shall Landlord or the interest of Landlord in the
Premises be liable for or subjected to any mechanic's, materialman's or
laborer's liens for improvements or work made by or for Tenant; and this Lease
specifically prohibits the subjecting of Landlord's interest in the Premises to
any mechanic's, materialman's, or laborer's liens for improvements made by
Tenant or for which Tenant is responsible for payment under the terms of this
Agreement. In the event any notice or claim of lien shall be asserted of record
against the interest of Landlord in the Premises on account of or growing out of
any improvement or work done by or for Tenant, or any person claiming by,
through or under Tenant, or for improvements or work the cost of which is the
responsibility of Ten ant, Tenant agrees to have such notice or claim of lien
canceled and discharged of record as a claim against the interest of Landlord in
the Premises (either by payment and satisfaction or by removal by transfer to
bond or deposit as permitted by law) within ten (10) days after notice to Tenant
by Landlord, and in the event Tenant shall fail to do so Tenant shall be
considered in default under this Lease. Any fees and costs incurred by Landlord
resulting from a lien as described in this Article shall be paid by Tenant,
including reasonable attorneys' fees.
At Landlord's request, at or subsequent to execution of this
Lease Agreement, Landlord and Tenant shall execute a memorandum of this Lease in
conjunction herewith, which memorandum Landlord may record among the Public
Records of the county in which the Premises is located, setting forth certain
provisions of this Lease.
13. Casualty. In the event the Premises or a portion thereof are
rendered untenantable by fire or other casualty, Landlord shall have the option
of terminating this Lease or rebuilding the Premises, and in event of such
casualty written notice of the election by Landlord shall be given to Tenant
within thirty (30) days after the occurrence of such casualty. In the event
Landlord elects to rebuild the Premises, the Premises shall be restored to its
former condition within a reasonable time, during which time Base Rent shall be
payable only for the portion of the Premises which remains tenantable (on a pro
rata square footage basis). In the event Landlord elects to terminate this
Lease, the rent shall be paid to and adjusted as of the date of such casualty,
and the term of this Lease shall then expire and this Lease shall be of no
further force or effect and Landlord shall be entitled to sole possession of the
Premises.
14. Insurance. Tenant agrees to carry, or cause to be carried, at
its expense, during the tern hereof workmen's compensation insurance and public
liability insurance on the Premises and any adjacent parking or common areas,
providing coverage of not less than $1,000,000 for personal injury or death
arising out of anyone occurrence, and for property damage insurance in an amount
of not less than $500,000 for damage to property arising out of anyone
occurrence. Tenant further agrees to carry, or cause to be carried, at its
expense, during the term hereof insurance for fire, extended coverage, vandalism
and malicious mischief, insuring the improvements constituting the Premises for
the full insurable value thereof.
Tenant agrees to carry at its expense public liability
insurance on the leased Premises during the term hereof, covering both Landlord
and Tenant as insureds, with terms and company satisfactory to Landlord, for
limits of not less than $1,000,000 combined single limit for personal injury or
death arising out of anyone occurrence including property damage.
As to any policy to be carried by Tenant hereunder, said
policy shall provide that Landlord and Tenant shall be given a minimum of 30
days written notice by registered mail by the insurance company prior to
cancellation, termination or change in such insurance. As to any policy to be
carried by Tenant hereunder, Tenant upon request from Landlord shall provide
Landlord with copies of the policies or certificates evidencing that such
insurance is in full force and effect and stating the terms thereof. If Tenant
fails to comply with this sub-paragraph, Landlord shall have the right but not
the obligation to obtain any such insurance and to pay the premiums therefor,
and in such event the entire amount of such premiums shall be immediately due
and payable by Tenant to Landlord.
15. Indemnification. Landlord shall not be liable for injury or
damage caused to any person or property by reason of the failure of Tenant to
perform any of its covenants or agreements hereunder, nor for such damages or
injury caused by reason of any defect in the Premises now or in the future
existing, or for any damages or injury caused by reason of any present or future
defect in the plumbing, wiring or piping of the Premises. Tenant agrees to
indemnify and hold harmless Landlord from and against any and all loss, damage,
claim, demand, liability or expense by reason of any damage or injury to persons
(including loss of life) or property which may arise or be claimed to have
arisen as a result of or in connection with, or in any way related to the
occupancy or use of the Premises by Tenant, whether or not occurring or
resulting in damage or injury within the Premises. This obligation to indemnify
shall include reasonable legal and investigation costs and all other reasonable
costs, expenses and liabilities from the first notice that any claim or demand
is to be made or may be made. Tenant acknowledges that the foregoing provisions
of this Article shall apply and become effective from and after the date Tenant
or its agents enter the leased Premises to undertake activities, including but
not limited to installation of interior improvements, permitted hereunder, even
if such activities are prior to the Commencement Date.
16. Inspections and Repair. Landlord or its representatives shall
have the right at any reasonable time to enter upon the Premises for the purpose
of inspection or for the purpose of making or causing to be made any repairs or
otherwise to protect its interest, but the right of Landlord to enter, repair or
do anything else to protect its interest, or the exercise or failure to exercise
said right, shall in no way diminish Tenant's obligations or enlarge Landlord's
obligations under this Lease, or affect any right of Landlord, or create any
duty or liability by Landlord to Tenant or any third party. Landlord shall have
the right to display on the exterior of the Premises "for rent" or "for sale"
signs provided that no such signs shall be placed or maintained on the Premises
prior to the ninetieth (90th) day before the expiration or termination of the
Lease term.
17. Default. In the event Tenant shall (a) fail to make any rental
or other payment due hereunder (all of such payment obligations being referred
to as "monetary obligation") within ten (10) days after same shall become due
(without requirement of written notice of default), or (b) be adjudged bankrupt,
or (c) make an assignment for the benefit of its creditors, or (d) have its
leasehold estate taken upon execution against Tenant, or (e) abandon the
Premises during the term hereof, or (f) breach or fail to perform any of the
agreements herein (other than a monetary obligation), and shall fail to cure
such non-monetary obligation breach within ten (10) days after written notice
from Landlord, such event shall constitute an event of default and may, at
Landlord's option, constitute a premature termination. Tenant hereby waives any
requirement for written notice of monetary obligation default.
Upon the occurrences of anyone or more events of default
specified herein, Tenant shall become a tenant at sufferance, and Landlord, at
its option and at any time thereafter, may pursue, exercise and enforce either
remedy (a) or (b) below, without notice or demand except as hereinafter
provided:
(a) Enter upon and take possession of the leased
Premises, using such force or means as may be necessary and legally permitted,
and dispossess and remove all persons, goods and chattels, without liability in
law or in equity for any damages caused by such removal, possession and entry;
Tenant hereby waives any and all claims for damages therefor and hereby
discharges Landlord therefrom. Upon said entry by Landlord, Tenant shall at once
surrender possession of the Premises and shall be liable in damages and subject
to equitable action for failure to do so. Surrender of the Premises shall not in
and of itself constitute a termination of this Lease nor relieve Tenant from any
of the terms, covenants, and conditions hereof. After resuming possession of the
Premises, Landlord may:
(i) Relet, as Tenant's agent and without
terminating this Lease, the Premises for such amounts and upon such terms and
conditions as Landlord may deem best under the circumstances, whereupon Tenant
shall be liable to Landlord in general damages for the difference between the
rentals and other charges stipulated to be paid by Tenant and what Landlord is
able to recover from a re-letting, after deducting any attorney's fees,
commissions and other expenses paid by Landlord with respect to such re-letting;
or
(ii) Terminate this Lease, whether or not the
leased Premises or any part thereof shall have been relet, by written notice to
Tenant, whereupon this Lease shall end; provided, however, that no such
termination of this Lease shall relieve Tenant of its liability and obligations
under this Lease incurred prior to such termination. Upon such termination.
Tenant shall be immediately liable for the damages, present and prospective,
which were the necessary and direct result of Tenant's breach, as well as for
any special damages as may have resulted from such breach. All amounts and
arrearages due and Payable to Landlord by Tenant shall bear interest at the
highest rate permitted by law.
(b) Treat the Lease as remaining in existence, curing
Tenant's default by performing or paying the obligation which Tenant has
breached, all sums paid or expenses incurred by Landlord directly or indirectly
incurring Tenant's default, which amounts shall become immediately due and
payable and shall bear interest at the highest rate permitted by law from the
date of disbursement by Landlord until paid by Tenant. If the breach consists of
a failure to pay the rent stipulated in this Lease and Landlord elects to treat
the Lease as remaining in existence, Landlord can take such action as is
necessary to recover the rent due as each installment matures or for the whole
amount at the end of the term, or Landlord can immediately upon the breach take
such action as is necessary to recover the entire remaining unpaid rent for the
balance of the term hereof.
Furthermore, Landlord may exercise any and all rights and
privileges and pursue any additional remedies that Landlord may have under the
laws of either the State of Florida or the United States of America that are
available in conjunction with whichever of the above described remedies is
chosen.
The remedies for which provision is made in this Article shall
not be exclusive and in addition thereto Landlord may pursue such other remedies
as are provided by law in the event of any breach, default or abandonment by
Tenant. In any event, and irrespective of any option exercised by Landlord.
Tenant agrees to pay and the Landlord shall be entitled to recover all costs and
expenses incurred by Landlord, including reasonable attorneys' fees, in
connection with collection of rent or damages or enforcing other rights of
Landlord in the event of a breach of default or abandonment by Tenant,
irrespective of whether or not Landlord elects to terminate this Lease by reason
of such a breach, default or abandonment. Tenant hereby expressly waives any and
all rights of redemption, if any, granted by or under any present or future law
in the event Tenant shall be evicted or dispossessed for any cause, or in the
event Landlord shall obtain possession of the Premises by virtue of the
provisions of this Lease, or otherwise.
Any and all sums due under this Agreement from Tenant to
Landlord and not paid on the date due shall bear interest from the date due at
the maximum rate permitted by law until fully paid; and if any payment of rent
is not received within thirty (30) days after the date due, Tenant shall be
assessed an amount of not more than $100.00 per month for each month of
delinquency, in addition to other sums owing hereunder.
18. Waiver or Estoppel. The failure of Landlord to insist, in
anyone or more instances, upon strict performance of any covenants or agreements
of this Lease, or exercise any option of Landlord herein contained, shall not be
construed as a waiver or relinquishment of any right or remedy of Landlord
hereunder and shall not be deemed a waiver of any subsequent breach or default
by Tenant of the covenants or conditions herein. Receipt of rent by Landlord,
with knowledge of the breach of any covenant or agreement hereof, shall not be
deemed a waiver of such breach and no waiver by Landlord of any provision hereof
shall be deemed to have been made unless expressed in writing and signed by
Landlord.
19. Subordination: Non-Disturbance: Rights of Security Instrument
Holder.
A. Subordination. All rights and interests of Tenant
hereunder are and shall be and remain subject, subordinate and inferior to all
mortgages, trust deeds, ground leases or security instruments (all of which
shall be referred to herein as "Security Instrument"), heretofore or hereafter
given and encumbering the Premises, or any part thereof, and shall likewise be
subordinate and inferior to all renewals, modifications, consolidations,
replacements and extensions of any such Security Instrument, and the right of
the holder of any such Security Instrument shall at all times be and remain
prior and superior to all rights and interests of Tenant. This provision shall
operate as a subordination agreement with respect to all such Security
Instruments and all renewals, modifications, consolidations, replacements and
extensions thereof. If the holder of any such Security Instrument or any person,
firm or corporation agreeing to make a loan secured by a Security Instrument on
the Premises shall require confirmation of any subordination for which provision
is herein made or a separate subordination agreement with respect to any
transaction, Tenant shall execute such confirmation, estoppel certificate or
subordination agreement in the form required by such Security Instrument holder
or other person, firm or corporation agreeing or proposing to make a loan
secured by a Security Instrument on the Premises, and the execution of the same
shall not diminish or affect the liability of Tenant hereunder or any other
party responsible for or guaranteeing the obligations of Tenant under this
Lease. Failure of Tenant to execute such documentation upon request of Landlord
shall constitute an event of default under this Lease. In the event any
proceedings are brought for foreclosure, or in the event of the exercise of the
power of sale under any Security Instrument, made by Landlord covering the
Premises, Tenant shall attorn to the Security Instrument Holder or purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this Lease.
B. Non-Disturbance. Notwithstanding the provisions of
subparagraph A herein, provided that Tenant is current in payment of rent and is
not otherwise in default under the terms of this Lease, and upon attornment to
Security Instrument Holder, Tenant's rights to peaceful occupation and
possession of the Premises will not be disturbed for its term under this Lease.
20. Condemnation.
A. In the event a part of the demised Premises be taken
by reason of the exercise of the right of eminent domain by any public or
quasi-public authority, or be conveyed in settlement of threatened eminent
domain proceedings (both of which are hereinafter referred to as a "taking"),
there shall be an equitable abatement of the rental herein provided. Said
equitable abatement shall result in the decrease of rental payable by the
percentage decrease in the square footage of the Premises resulting from the
condemnation. If the proceeding shall result in the taking of all of the
Premises or such a substantial and material portion of the Premises as will in
Landlord's reasonable judgment preclude Tenant from operating Tenant's business
from the Premises, then this Lease and the terms hereof shall cease and expire
and both parties hereto shall hereinafter be released from any obligation
hereunder.
B. Landlord reserves unto itself, and Tenant assigns to
Landlord, all right to damages accruing on account of any taking or condemnation
of any part of the Premises, or by reason of any act of any public or
quasi-public authority for which damages are payable; provided, however, that
Tenant may recover from the condemning authority an amount payable for business
damages. Tenant agrees to execute such instruments of assignment as may be
required by Landlord, to join with Landlord in any petition for the recovery of
damages, if requested by Landlord, and to turn over to Landlord any such damages
that may be recovered in any such proceeding. Landlord does not reserve to
itself, and Tenant does not assign to Landlord, any damages payable for trade
fixtures installed by Tenant at its cost and expense and which are not to remain
part of the realty.
21. Assessments. Tenant shall pay as additional rent a pro rata
share of all ad valorem taxes levied or assessed against the Premises. Tenant's
pro rata share of any and each such tax or assessment shall be determined by
multiplying the amount of such tax or assessment by a fraction, the numerator of
which shall be the gross leasable area of the Premises and the denominator of
which shall be the total square footage of the gross leasable area within the
building owned by Landlord in which the Premises is located. Upon receipt of
each xxxx for any tax or assessment against the Premises, Landlord shall advise
Tenant in writing of the amount of such tax or assessment, and Tenant's pro rata
portion thereof payable by Tenant to Landlord, and Tenant shall pay said portion
to Landlord together with and as a part of the monthly installment of Base Rent
next becoming due. If the term of this Lease does not commence on the first
(1st) day of a calendar year and end on the last day of a calendar year,
Tenant's share of any tax or assessment for the year in which the lease term
commences shall be prorated from the Commencement Date, and Tenant's share of
any such tax or assessment for the year in which the Lease term ends shall be
prorated to the date upon which the Lease term ends.
22. Deposits and Advances. Any funds transferred by Tenant to
Landlord as a deposit or advance pursuant to the terms of this Lease, or any
exhibit, addendum or modification hereto, may be commingled with other funds of
Landlord and need not be placed in trust, deposited in escrow or otherwise held
in a segregated account. In addition, if any sum or sums of money shall become
payable by Tenant to Landlord pursuant to the terms of this Lease, or any
exhibit, addendum or modification hereto, or by any law, ordinance or regulation
affecting this Lease, Landlord shall have the right to apply any deposits or
advances theretofore made by Tenant against such sums due by Tenant to Landlord.
23. Security Deposit. Upon execution hereof Tenant has deposited
with Landlord, and Landlord hereby acknowledges receipt of, the sum of $5,000.00
which shall be held by Landlord, without accrual of interest, as security for
the faithful performance by Tenant of all of the terms of this Lease by Tenant
to be observed and performed. Said deposit shall not be mortgaged, assigned,
transferred or encumbered by Tenant without the express prior written consent of
Landlord and any such act on the part of the Tenant shall be without force and
effect and shall not be binding upon Landlord. If any of the rents herein
reserved or any other sum payable by 'Tenant to Landlord hereunder shall be
overdue or unpaid, or should Landlord make payments on behalf of Tenant, or if
Tenant shall fail to perform any of the terms of this Lease, then Landlord, at
its option and without prejudice to any other remedy which Landlord may have on
account thereof, may appropriate and apply said entire deposit, or so much
thereof as may be necessary to compensate Landlord, toward the payment of any
rent or additional sum due hereunder or to any loss or damage sustained by
Landlord due to such breach on the part of Tenant; and Tenant shall forthwith
upon demand restore said security deposit to the original sum deposited. Should
Tenant comply with all of the terms and promptly pay all of the rentals and all
other sums payable by Tenant to Landlord as they become due, said deposit shall
be returned in full to Tenant at the end of the term. In the event of Bankruptcy
or other creditor debt proceedings against Tenant, the security deposit shall be
deemed to be first applied to the payment of rent and other charges due Landlord
for all periods prior to the filing of such proceedings.
Landlord may deliver the security and any other deposit made
hereunder by Tenant to the purchaser of Landlord's interest in the Premises in
the event that such interest be sold or otherwise conveyed, and thereupon
Landlord shall be discharged from any further liability with respect to such
deposit; and this provision shall also apply to any subsequent transferee of
Landlord.
24. Additional Construction. Landlord hereby reserves the right at
any time to make alterations or additions to, subdivide, or change the building
dimensions in the building in which the Premises is contained, or construct
additional stories on the building in which the Premises is located, and to
build adjacent to the building in which the Premises is located.
25. Notices. All notices and payments to be made to Landlord under
the terms of this Lease shall be delivered to Landlord at 0000 000xx Xxxxxx,
Xxxxxxxxx, Xxxxxxx 00000. All notices to be sent to Tenant under the terms of
this Lease, and legal notices which might be delivered to Tenant in conjunction
with actions concerned with enforcement of terms of this Lease or recoveries
thereunder, shall be delivered to Tenant at the Premises, or to such other
address as either party may subsequently request in writing.
26. Tenant's Acquiescence to Statements. Tenant's failure to
object to any statement, invoice or billing rendered by Landlord within a period
of 30 days after Tenant's receipt thereof shall constitute acquiescence by
Tenant with respect thereto and shall render such statements, invoice or billing
an account stated between Landlord and Tenant.
27. Environmental Laws.
A. Notwithstanding any other provision of this
Agreement, and in addition to any and all other Agreement requirements, and any
other covenants and warranties of Tenant, Tenant hereby expressly warrants,
guarantees, and represents to Landlord, upon which Landlord expressly relies,
that Tenant is knowledgeable of any and all Federal, State, regional, and local
governmental laws, ordinances, regulations, orders and rules, without
limitation, that are now or may hereafter come into being, which govern or which
in any way, apply to the direct or indirect results and impacts to the
environment arid natural resources due to, or in any way resulting from, the
conduct by Tenant of its operations pursuant to or upon the Premises. Tenant
expressly represents, covenants, warrants, guarantees, and agrees that it shall
comply with all applicable Federal, State, regional, and local laws, regulations
and ordinances protecting the environment and natural resources including, but
not limited to, the Federal Clean Water Act, Safe Drinking Water Act, Clean Air
Act, Resource Conservation Recovery Act, Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("Superfund"), and all rules and
regulations promulgated or adopted thereunder as same may from time to time be
amended. Tenant further expressly represents, covenants, warrants, guarantees,
and agrees that it shall fully comply with all State and local laws, ordinances,
rules, and regulations protecting the environment.
B. Tenant hereby expressly assumes and accepts full
responsibility and liability for compliance with all such governmental laws and
regulations in the handling and disposal of any and all hazardous waste and/or
toxic materials, and all pollutants or contaminants of any kind, resulting from
or arising out of Tenant operations conducted on the Premises, and Tenant shall,
prior to commencement of any such operations pursuant to this Agreement, secure
any and all permits, and properly make all necessary notifications as may be
required by any and all governmental agencies having jurisdiction over parties
Or the subject matter hereof. Tenant further represents, warrants, guarantees,
and covenants to Landlord, upon which Landlord hereby expressly relies, that
Tenant, its employees, agents, contractors, and all persons working for, or on
behalf of, Tenant have been fully and properly trained in the handling of all
such hazardous and toxic waste materials, and other pollutants and contaminants,
and that such training, complies with any and all applicable Federal, State and
local laws, ordinances, regulations, rulings, orders, and standards which are
now or are hereafter promulgated.
C. Tenant hereby expressly agrees to indemnify and hold
Landlord harmless from and against any and all liability for fines and physical
damage to property or injury or deaths to persons, including reasonable expense
and attorney's fees, arising from or resulting out of, or in any way caused by,
Tenant's failure to comply with any and all applicable Federal, State, and local
laws, ordinances, regulations, rulings, orders and standards, now or hereafter,
promulgated for the purpose of protecting the environment. Tenant understands
that this indemnification is in addition to and is a supplement of Tenant's
indemnification agreement set forth in Article 15 of this Agreement and Tenant
in full understanding of the broad extent of this indemnification hereby
expressly acknowledges that it has received full and adequate consideration from
Landlord to legally support this indemnification agreement. This clause shall
survive termination of this Agreement; provided, however, that Tenant's
obligations hereunder shall not apply to any matter not arising out of, incident
to or in connection with Tenant's activities under this Agreement.
D. Violation of any part of the foregoing provisions or
disposition by Tenant of any sanitary waste, pollutants, contaminants, hazardous
waste, toxic waste, industrial cooling water, sewage or any other materials in
violation of the provisions of this section of this Agreement shall be deemed to
be a default under this Agreement and, unless cured within ten (10) days of
receipt of this notice from Landlord or, if said default cannot be completely
cured within that period and uses its best efforts to completely cure said
default as expeditiously as possible, shall be deemed to be a material breach as
provided for under this Agreement, and shall be grounds for termination of this
Agreement, and shall also provide Landlord grounds for taking whatever other
action it may have in addition to termination based upon default as provided for
under this Agreement. Tenant shall be strictly liable for, and hereby expressly
assumes all responsibility for all citations, fines, environmental controls and
monitoring, clean-up and disposal, restoration and corrective measures resulting
from or in any way connected with the improper use, handling, storage, and/or
disposal of all pollutants or contaminated materials, as same are defined by
law, by Tenant or by Tenant's employees, invitees, suppliers or service or
furnishers of materials or any other person whomsoever, regardless of whether or
not a default notice has been issued and notwithstanding any other obligations
imposed upon Tenant pursuant to the terms of this Agreement. All such remedies
of Landlord with regard to environmental requirements as set forth herein shall
be deemed cumulative in nature and shall survive termination of this Agreement.
28. Public Accommodation. Tenant acknowledges that the Premises
may constitute a place of public accommodation or a commercial facility under
Title III of the Americans with Disabilities Act (the "ADA") and that the ADA is
applicable to both an owner, and lessee of a place of public accommodation or
commercial facility. Tenant further acknowledges that, under the ADA, any
structural alteration to the Premises must comply with accessibility standards
set forth in the rules promulgated by the Department of Justice, 28 C.F.R.
ss.36.101, et. seq. In the event Tenant makes any structural alteration to the
Premises which would require compliance with Title III of the ADA and the
accessibility standards promulgated by the Department of Justice. Tenant agrees
to design and build such structural alterations and to make any other changes to
any portion of the building common area or parking area in which the Premises
are located or which are affiliated with the Premises which are necessitated by
such structural alterations, so as to comply with the ADA and the accessibility
standards. Tenant hereby agrees to indemnify and hold Landlord harmless from and
against any and all liabilities, claims, demands, damages, expenses, fees,
fines, penalties, suits, proceedings, actions, and causes of action of any and
every kind and nature arising or growing out of or in any way connected with any
structural alteration of the Premises by Tenant.
29. Miscellaneous. This Lease and the exhibits attached hereto
constitute the sole and exclusive agreement between the parties with respect to
the Premises. No amendment, modification or revision of this Lease shall be
effective unless in writing and executed by both parties hereto.
Except as otherwise expressly stated, any reference to or
requirement for Landlord's consent shall mean a consent in Landlord's sole
discretion.
If any term or provision of this Lease or the application
thereof to any present or circumstantial, to any extent, be held to be invalid
or unenforceable by a court of competent jurisdiction, the remainder of this
Lease shall be in full force and effect, and only the provision found to be
unenforceable shall be stricken from the terms hereof.
Should Landlord be unable to perform any of its obligations
contained in this Lease due to circumstances beyond its control, including but
not limited to labor disputes, governmental regulations or controls, fire or
other casualty, inability to obtain material or services, strikes, acts of
nature, or any other cause, Landlord shall not be considered in default under
the terms of this Lease and Tenant shall not be excused from the obligation to
pay all rents and charges required under this Lease as the same become due.
Disclosure - Florida law requires the following statement in
connection with the lease of any building in Florida: "Radon Gas - Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit."
All Exhibits referred to herein are incorporated by reference
and made a part of this Lease.
NOTE: Landlord and Tenant waive the right to a trial by jury in any action or
proceeding based upon, or related to, the subject matter of this Lease. This
waiver is knowingly, intentionally, and voluntarily made by Tenant and Tenant
acknowledges that neither Landlord nor any person acting on behalf of Landlord
has made any representations of fact to induce this waiver of trial by jury or
in any way to modify or nullify its effect. Tenant further acknowledges that it
has been represented or has had the opportunity to be represented in the signing
of this Lease and in the making of this waiver by independent legal counsel,
selected of its own free will, and that it has had the opportunity to discuss
this waiver with counsel.
This Lease shall be construed according to Florida law. Any
action brought hereunder shall be filed and heard in Sarasota County.
The terms and conditions of this Lease are binding upon the
heirs, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Lease on the day and
year first above mentioned.
LANDLORD
Signed, sealed and delivered in the presence of:
Witness as to Landlord Xxxxxx Xxxxxxxx
Witness as to Landlord
TENANT DNA Print Genomics, Inc.
Sign
By:
----------------------------------
Witness as to Tenant
As its:
------------------------------
Witness as to Tenant
EXHIBIT "A"
LEGAL DESCRIPTION
Xxx 0, 0 xxx 0, Xxxxx 0, xxx Xxx 0, Xxxxx 6, Map of Subdivision of Xxxx 0, 0, 0,
0, 0, 0, 0, 00, 00, 13, 13, 14, 1 and 16 of Block "Q", PLAT OF SARASOTA, as per
plat thereof recorded in Plat Book A, Page 10, of the Public Records of Sarasota
County, Florida.
EXHIBIT "B"
RENTAL RIDER
1. LEASE TERM RENTAL AMOUNT: $ 5,387.73
2. OPTION PERIOD RENTAL AMOUNT: $ 5,387.73
