EXHIBIT 10.51
Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between Regent Holding, LLC,
a Florida limited liability company ("Landlord"), and Xxxxxx Technologies, Inc.,
a Delaware company ("Tenant"):
WITNESSETH:
1.01 PREMISES: In consideration of the obligation of Tenant to pay rent
and of the other terms, provisions and covenants hereof, Landlord leases to
Tenant and Tenant leases from Landlord, all that portion of certain real
property situated within the County of Palm Beach, State of Florida, legally
described in Exhibit A , and the buildings and improvements to be constructed
thereon as outlined on the site plan contained in Exhibit B (the "Premises"),
including any truck loading areas specifically marked in red on said Exhibit B
for the exclusive use of Tenant. The Premises and the building within which the
Premises are located (the "Building") are part of a larger development (the
"Development") commonly known as Congress Corporate Plaza Phase II. The parties
agree that for the purposes of this Lease the Premises shall be deemed to
consist of approximately 17,853 Rentable Square Feet and the Development shall
be deemed to consist of approximately 106,100 Rentable Square Feet, as measured
by Landlord's predecessor in accordance with the methods of calculating areas
and volumes of buildings, as promulgated by The American Institute of
Architects. The Rentable Square Feet shall mean the square footage of the
Premises measured from the exterior roof line. Landlord and Tenant acknowledge
and accept the square footage as set forth in the Lease and neither Landlord nor
Tenant shall have the right to demand remeasurement or recalculation of the
Rentable Square Feet amounts within the Building or the Premises. Tenant shall
be entitled to the use of parking within the development at a ratio of four (4)
non-reserved parking spaces for each 1,000 rentable square feet it occupies
under this Lease.
2.01 TERM OF LEASE: The term of this lease shall commence on the "Rent
Commencement Date", as hereinafter defined, and ending Sixty (60) months
thereafter, provided however, that in the event the rent commencement date is a
date other than the first day of a calendar month, said term shall extend for
said number of months in addition to the remainder of the calendar month
following the rent commencement date.
2.02 RENT COMMENCEMENT DATE: The "Rent Commencement Date" shall be the
date of March 1 2004 ,. and Tenant's Lease with Landlord dated August 4, 1992
for Suite 226 ("Prior Lease") shall continue day to day at the usual rate until
the Rent Commencement Date. Tenant shall have no additional Rent obligation
beyond January 31, 2004, for Xxxxx 000, per the lease dated August 28, 1998).
provided however, that if Landlord shall be delayed in substantial completion of
the Premises solely as a result of Tenant's changes in the Space Plan (attached
hereto as Exhibit C) or Working Drawings (attached hereto as Exhibit D), the
Rent Commencement Date and the payment of rent hereunder shall be delayed by the
number of days of such delay and the Prior Lease shall continue day to day at
the usual rate until the Rent Commencement Date. Such continuation shall not be
considered a hold over pursuant to the terms of the Prior Lease. Tenant
acknowledges that no representations as to the repair of the premises have been
made by Landlord, unless such are expressly set forth in the lease. After such
"Rent Commencement Date" Tenant shall, upon demand, execute and deliver to
Landlord a letter of acceptance of delivery of the premises. In the event of any
dispute as to substantial completion of work performed, execute or required to
be performed by Landlord, the certificate of Landlord's architect or general
contractor shall be conclusive.
3.01 BASE RENT: Tenant agrees to pay to Landlord rent for the premises,
in advance on or before the first of the month, without demand, deduction or set
off, for the entire term hereof according to the following Schedule:
MONTH MONTHLY BASE RENT ANNUAL BASE RENT
----- ----------------- ----------------
1-12 $16,427.76 $197,097.12
13-24 $16,915.72 $202,988.61
25-36 $17,421.55 $209,058.63
37-47 $17,942.27 $197,364.91
48 $0.00 $0.00
49-60 $18,492.73 $221,912.79
4.01 SECURITY DEPOSIT: Tenant agrees to deposit with Landlord on the
date prior to commencement of any of the Tenant Improvements, including any
necessary demolition work, but in no event later than January 5, 2004, the sum
of FORTY-FIVE THOUSAND SEVEN HUNDRED FORTY-FOUR AND 08/100 DOLLARS ($45,744.08),
which sum shall be held by Landlord, without obligation for interest, as
security for the full, timely and faithful performance of Tenant's covenants and
obligations under this Lease, it being expressly agreed that such deposit is not
an advance rental deposit or a measure of Landlord's damages. Upon the
occurrence of any event of default by Tenant, Landlord may, from time to time,
without prejudice to any other remedy, use such funds to the extent necessary to
make good any arrears of rent or other payments due Landlord hereunder, and any
other damage, injury, expense or liability caused by Tenant's default and Tenant
shall pay to Landlord on demand the amount so applied in order to restore the
security deposit to its original amount. Although the security deposit shall be
deemed the property of Landlord, any remaining balance of such deposit shall be
returned to Tenant by Landlord at such time after termination of this Lease when
Landlord shall have reasonably determined that all Tenant's obligations under
this Lease have been fulfilled. In no event is the security deposit to be
returned until Tenant has vacated the Premises and delivered possession to
Landlord. Landlord shall not be obligated to hold the security deposit in a
separate fund, but may mix the security deposit with other funds of the
Landlord.
4.02 LETTER OF CREDIT: In addition to the Security Deposit paid by
Tenant under the Lease (Paragraph 4.01), Tenant agrees to supply Landlord with
an irrevocable Letter of Credit in the amount of $52,000.00 within ten (10) days
of execution of this Lease Agreement, drawn on Silicon Valley Bank. The Letter
of Credit must specify that it will be in full force and effect until thirty
(30) days after the expiration of the Lease Term unless otherwise released
pursuant to the terms of the Lease Agreement. Provided Tenant has not been in
monetary default or an uncured material default of the Lease at any time and
Tenant remains a Tenant in good standing, the Letter of Credit shall be reduced
by twenty percent (20%) per year at the expiration of each twelve-month period.
Notwithstanding the foregoing, at the end of the second twelve month period
(twenty-four months after the Rent Commencement Date, hereinafter referred to as
the "Second Year Anniversary") or at anytime thereafter, provided Tenant has not
been in monetary default or an uncured material default of the Lease, is a
Tenant in good standing and Tenant has been profitable for the twelve (12) month
period immediately preceding the Second Year Anniversary, Landlord shall release
the Letter of Credit in its entirety. Tenant shall provide Landlord with audited
financial statements for the purpose of determining Tenant's profitability.
5.01 PERMITTED USE: The Premises shall be continuously used for the
sole purpose of general business offices and/ or for receiving, storing,
shipping, selling (other than at retail) and providing products, materials,
services and merchandise made and/or distributed by Tenant and for no other use
or purpose. Tenant shall at its own cost and expense obtain any and all licenses
and permits necessary for any such use. Landlord assumes no responsibility for
damage, burglary or any casualty whatsoever to such vehicles. The overnight
parking of automobiles, trucks or other vehicles, and the outside storage of any
property including trash or garbage are prohibited. Tenant agrees that it shall,
at its own cost and expenses keep its employees, agents, customers, invitee,
and/or licensees from parking on any streets running through or contiguous to
the buildings or development of which the premises are part thereof. Tenant
agrees that no washing of any type will take place in the premises including the
truck apron and parking areas, however Tenant shall be permitted to have its
employee's cars washed by a car wash service on an occasional basis. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise
or vibrations to emanate from the Premises, nor take any other action which
would constitute a nuisance or would disturb or endanger any other tenants of
Development or unreasonably interfere with such tenants' use of their respective
premises or permit any use which would adversely affect the reputation of the
Development. Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive, highly flammable or constitutes a
hazardous substance or waste, with the exception of commercially acceptable
office supplies. Tenant shall not permit the Premises to be used for any purpose
(including, without limitation, the storage of merchandise) in any manner which
would render the insurance thereon void or increase the insurance rate thereof.
Tenant agrees to indemnify and hold Landlord harmless against any and all loss,
costs and claims, including attorney's fees relating to the improper storage,
handling, transportation or disposal of explosive, highly flammable or hazardous
materials or resulting from any other improper use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to Tenant's use of the
Premises, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of any violations or nuisances in
or upon, or connected with, Tenant's use of the Premises, all at Tenant's sole
expense. If, as a result of any change in the governmental laws, ordinances and
regulations, the Premises must be altered to accommodate lawfully the use and
occupancy thereof, such alterations shall be made only with the consent of
Landlord, but the entire cost thereof shall be borne by Tenant; provided that
the necessity of Landlord's consent shall in no way create any liability against
Landlord for failure of Tenant to comply with such laws, ordinances and
regulations. by Tenant shall take whatever other actions are necessary so that
Tenant's use of the Premises complies with the Fire Prevention Code of the
National Fire Protection Association and any other fire prevention laws,
ordinances, rules or regulations applicable to the Premises.
6.01 TENANT'S TAXES: Tenant shall be responsible to pay before
delinquency all franchise taxes, assessments, levies or charges measured by or
based in whole or in part upon the rents payable hereunder or the gross receipts
of Tenant and all sales taxes and other taxes imposed upon or assessed by reason
of the rents and other charges payable hereunder. The Florida sales tax imposed
on rent and on other charges payable hereunder shall be paid by Tenant to
Landlord with the payment of Tenant's rental payments and other charges payable
hereunder.
7.01 DEFINITION OF OPERATING COSTS: The term "Operating Costs" shall
mean all costs and expenses paid or incurred by Landlord or on Landlord's behalf
in connection with the ownership, management, repair, replacement, remodeling,
maintenance and operation of the Development (including, without limitation, all
assessed real property taxes, assessments (whether general or special) and
governmental charges of any kind and nature whatsoever including assessments due
to deed restrictions and/or owner's associations, which accrue against the
building and/or development of which the premises are a part, the costs of
maintaining and repairing parking lots, parking structures, easements, and
landscaping, property management fees, utility costs to the extent not
separately metered, insurance premiums, depreciation of the costs of replacement
(as defined below) of the building and improvements in the Development but not
including any structural repairs or replacements which are normally chargeable
to capital accounts under sound accounting principles. The term "operating
costs" does not include; (i) costs of alterations of tenants' premises; (ii)
costs of curing construction defects; (iii) interest and principal payments on
mortgages, and other debt cost; (iv) real estate brokers' leasing commissions or
compensation; (v) any cost or expenditure for which Landlord is reimbursed,
whether by insurance proceeds or otherwise; (vi) cost of any service furnished
to any other occupant of the Building which Landlord does not provide to tenant
hereunder. Structural repairs and replacements are repairs and replacements to
the foundations, load-bearing walls, columns and joists and replacement of
roofing and roof deck. Notwithstanding anything contained herein to the
contrary, depreciation of any capital improvements which are intended to reduce
Operating Costs, or are required under any governmental laws, regulations or
ordinances which were not applicable to the Building or the Development at the
time it was constructed, or are recommended by the N.F.P.A. Life Safety Code,
shall be included in Operating Costs. The useful life of any such improvement as
well as all nonstructural replacements shall be reasonably determined by
Landlord in accordance with generally accepted accounting principles. In
addition, interest on the undepreciated cost of any such improvement or
non-structural replacement (at the prevailing construction loan rate available
to Landlord on the date the cost of such improvement was incurred) shall also be
included in Operating Costs. If Landlord selects the accrual method of
accounting rather than the cash accounting method for Operating Costs purposes,
Operating Costs shall be deemed to have been paid when such expenses have
accrued, in accordance with generally accepted accounting principles, provided
that change in the use of accounting method does not take effect until the
beginning of the next full calendar year. Landlord shall have the right at any
time and from time to time to elect, which election shall be subject to
revocation, to exclude that portion of Operating Costs attributable to any
separately assessed part of the Development and any separate building within the
Development. During any period that Operating Costs attributable to any
separately assessed part of the Development and/or separate building are so
excluded from Operating Costs, then for the purposes of calculating Tenant's
proportionate share of Operating Costs as provided in Section 7.02, the
denominator shall not include the rentable area of such separately assessed part
of the Development and/or such separate building. Landlord may, in a reasonable
manner, allocate insurance premiums for so-called "blanket" insurance policies
which insure other properties as well as the Development and said allocated
amount shall be deemed to be an Operating Cost.
If at any time during the term of this lease, the present method of taxation
shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
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and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/ or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "taxes" for the purposes hereof.
7.02 TENANT'S PROPORTIONATE SHARE OF OPERATING COSTS: Tenant shall pay
to Landlord, as additional rent, its proportionate share of operating costs
calculated in accordance with generally accepted accounting principles on the
basis of the ratio set forth in Section 8.01. Any payments with respect to any
partial calendar year in which the Term commences or ends shall be prorated.
Tenant agrees to pay $5,281.51 per month as an escrow amount for operating costs
as defined in Article 7.01. Landlord may, at any time, deliver to Tenant its
estimate (or revised estimate) of such additional amounts payable under this
Section for each calendar year. On or before the first day of the next month and
on or before the first day of each month thereafter, Tenant shall pay to
Landlord as additional rent such amount as Landlord reasonably determines to be
necessary to bring and keep Tenant current. As soon as practicable after the
close of each calendar year, Landlord shall deliver to Tenant a statement
showing the total amount payable by Tenant under this Article. If such statement
shows an amount due from Tenant that is less than the estimated payments
previously paid by Tenant, it shall be accompanied by a refund of the excess to
Tenant or at Landlord's option the excess shall be credited against the next
monthly installment of rent. If such statement shows an amount due from Tenant
that is more than the estimated payments paid by Tenant, Tenant shall pay the
deficiency to Landlord, as additional rent. In the event an amount is due and is
not paid within thirty (30) days after the date of Landlord's statement to
Tenant, the unpaid amount shall bear interest at the rate of eighteen (18%)
percent per annum from the date of such statement until payment by tenant.
Landlord's failure to submit statements as called for herein shall not be deemed
to be a waiver of Tenant's requirement to pay the sums herein provided unless
such statements are not submitted within two (2) years. Landlord and Tenant
acknowledge that certain of the costs of management, operation and maintenance
of the Development are allocated among all of the buildings in the Development
using methods of allocation that are considered reasonable and appropriate under
the circumstances. Tenant hereby consents to such allocations provided that the
determination of such costs and the allocation of all or part thereof to
Operating Costs hereunder shall be in accordance with generally accepted
accounting principles applied on a consistent basis. Tenant or its'
representatives shall have the right after seven (7) days prior written notice
to Landlord to examine Landlord's books and records of Operating Costs during
normal business hours within ninety (90) days following the furnishing of the
statement to Tenant, and shall have thirty (30) days thereafter to notify
Landlord of any discrepancies. Should Tenant's audit find more than a 5%
difference in Operating Costs, Landlord agrees to pay for the cost of Tenant's
audit, not to exceed $2,000. Should Tenant's audit, find less than a 5%
difference in Operating Costs, Tenant agrees to pay for Landlord's costs of
defending such claim, not to exceed $2,000. Unless Tenant takes written
exception to any item within ninety (90) days following the furnishing of the
statement to Tenant (which item shall be paid in any event), such statement
shall be considered as final and accepted by Tenant. The taking of exception to
any item shall not excuse Tenant from the obligation to make timely payment
based upon the statement as delivered by Landlord. Furthermore, at Tenant's
request by written notice to Landlord, Landlord agrees to provide Tenant once
per year with a revised statement of Landlord's up-dated Operating Costs
estimates. Such statement shall be based on Landlord's best knowledge of same
and shall be used by Tenant only for information purposes and not to replace the
then current escrow amount for Operating Costs.
8.01 TENANT'S PROPORTIONATE SHARE: (a) Tenant's "proportionate share"
as used in this Lease with respect to the Building shall mean a fraction the
numerator of which shall be the rentable area contained in the Premises and the
denominator of which shall be the rentable area contained in the Building, as
determined by Landlord. Tenant's "proportionate share" as used in this Lease
with respect to costs relating to more than the Building, shall mean a fraction
the numerator of which shall be the rentable area contained in the Premises and
the denominator of which shall be the rentable area of all buildings, as
determined by Landlord, within the Development. Notwithstanding anything
contained in the Lease to the contrary, Landlord shall have the right, from time
to time, to add to or exclude from the Development real property and any
buildings constructed thereon in accordance with generally accepted accounting
principles. In the event Landlord elects to add to or exclude from the
Development, Landlord shall notify Tenant in writing of any such addition or
exclusion which notice shall describe the property added or excluded. Tenant's
use and access to public utilities (including telephone lines, electricity and
water) shall be limited to Tenant's proportionate share as defined herein.
9.01 TENANT'S OBLIGATIONS: (a) Tenant shall at its own cost and expense
keep and maintain all parts of the Premises and such portion of the Development
within the exclusive control of Tenant in good condition, promptly making all
necessary repairs and replacements, whether ordinary or extraordinary, with
materials and workmanship of the same character, kind and quality as the
original, including but not limited to, windows, glass and plate glass, doors,
skylights, any special office entries, interior walls and finish work, floors
and floor coverings, heating and air conditioning systems, interior electrical
systems and interior plumbing work and fixtures, sprinkler systems, water
heaters, dock board, truck doors, and dock bumpers. Tenant as part of its
obligation hereunder shall keep the whole of the Premises in a clean and
sanitary condition. Tenant will as far as possible keep all such parts of the
Premises from deteriorating, ordinary wear and tear excepted, and from falling
temporarily out of repair, and upon termination of this Lease in any way, Tenant
will yield up the Premises to Landlord in good condition and repair, loss by
fire or other casualty covered by insurance to be secured pursuant to Article 15
excepted (but not excepting any damage to glass or loss not reimbursed by
insurance because of the existence of a deductible under the appropriate
policy). Tenant shall not damage any demising wall or disturb the integrity and
supports provided by any demising wall and shall, at its sole cost and expense,
properly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees. Tenant shall, at its own cost and expense, as
additional rent, pay for the repair of any damage to the Premises, the Building,
or the Development resulting from and/or caused in whole or in part by the
negligence or misconduct of Tenant, its agents, servants, employees, patrons,
customers, or any other person entering upon the Development as a result of
Tenant's business activities or caused by Tenant's default hereunder.
If Tenant has complied with the maintenance requirements as described in this
Paragraph 9.01(b), and the HVAC system serving the Premises needs replacement(as
determined by a mutually agreeable independent HVAC contractor), whether whole
or in part, then Tenant's portion of the cost of replacement shall be the
pro-rata portion of the cost of replacement based upon the remainder of the
lease term and a 8 year life for the equipment. As example, if there is 2 years
remaining on the term, and a portion of the system needs replacement, Tenant's
portion would be 2/8 of the cost.
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(b) Tenant at its own cost and expense, shall enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord, for servicing all heating and air conditioning systems and
equipment servicing the Premises and an executed copy of such contract shall be
delivered to Landlord. Landlord acknowledges that the contract currently in
place is approved. This service contract must include all services suggested by
the equipment manufacturer within the operations/maintenance manual and must
become effective within thirty (30) days of the date Tenant takes possession of
the Premises. Landlord may (but shall not be required to), upon notice to
Tenant, elect to enter into such a maintenance service contract on behalf of
Tenant or perform the work itself and, in either case, charge Tenant therefore,
together with a reasonable charge for overhead.
9.02 LANDLORD'S OBLIGATIONS: Landlord shall maintain in good repair,
reasonable wear and tear and any casualty covered by the provisions of Article
15 excepted, all parts of the Development, other than tenants' demised premises
or portions of the Development within the exclusive control of tenants of the
Development, making all necessary repairs and replacements, whether ordinary or
extraordinary structural or nonstructural, including roof, foundation, walls,
down spouts, gutters, regular mowing of any grass, trimming, weed removal and
general landscape maintenance, including any rail spur areas, exterior painting,
exterior lighting, exterior signs, water and sewage plumbing and the maintenance
of all paved areas including driveways and alleys, including, but not limited
to, cleaning, repaving, restripping and resealing. The term walls" as used
herein shall not include windows, glass or plate glass, doors, special store
front or office entry. Landlord will comply with all applicable laws and
regulations, including without limitation in completion of the Tenant
Improvements.
9.03 INTERRUPTIONS OF SERVICE: Unless caused solely by the gross
negligence or willful misconduct of Landlord, interruptions of any service shall
not be deemed an eviction or disturbance of Tenant's use and possession of the
Premises, or render Landlord liable for damages by abatement of rent or
otherwise or relieve Tenant from performance of Tenant's obligations under this
lease. Should any equipment or machinery furnished by Landlord cease to function
properly, Landlord shall use reasonable diligence to repair the same. Similarly,
the curtailment, rationing or restriction on use of water, gas, electricity or
any resource, service or utility shall not affect Tenant's obligations hereunder
and Landlord may cooperate in a reasonable manner with the efforts of national,
state or local governmental agencies or utilities in reducing energy or other
resource consumption.
9.04 NOTICE TO LANDLORD TO REPAIR: In the event Tenant discovers the
necessity for Landlord to repair any part of the Premises, Building or
Development, which Landlord is obligated to repair and maintain hereunder,
Tenant shall provide Landlord with written notice specifically describing the
repair or maintenance required. Landlord shall have a reasonable time, but in no
event more than sixty (60) days, to repair the Premises, Building or Development
if such repairs can be reasonably accomplished in said time period. If Landlord
is not diligently pursuing such repair in a timely and reasonable manner, then
Tenant shall provide written notice to Landlord of its intention to make such
repair at Landlord's expense. Such notice shall provide Landlord a reasonable
cure period. After the end of such cure period Tenant shall have the right to
repair and all reasonable costs incurred by Tenant shall offset rent due. In no
event shall Tenant be permitted to terminate this Lease as a consequence of
Landlord's failure to maintain or repair the Premises, Building or Development.
10.01 ALTERATIONS: Tenant shall not make any alterations, additions or
improvements to the Premises (including, without limitation, the roof and wall
penetrations) for an amount greater than $10,000.00 without the prior written
consent or Landlord. If Landlord shall, consent to any alterations, additions or
improvements proposed by Tenant, Tenant shall construct the same in accordance
with all governmental laws, ordinances, rules and regulations and all
requirements of Landlord's and Tenant's insurance policies and only in
accordance with plans and specifications approved by Landlord; and any
contractor or person selected by Tenant to make the same, or, at Landlord's
option and discretion, the alterations, additions or improvements shall be made
by Landlord for Tenant's account and Tenant shall fully reimburse Landlord for
the entire cost thereof. Tenant may, without the consent of Landlord, but at its
own cost and expense and in good workmanlike manner erect such shelves, bins,
machinery and other trade fixtures as it may deem advisable, without altering
the basic character of the Building or Development and without overloading the
floor or damaging such Building or Development, and in each case after complying
with all applicable governmental laws, ordinances, regulations and other
requirements. All shelves, bins, machinery and trade fixtures installed by
Tenant may be removed by Tenant prior to the termination of this Lease if Tenant
so elects, and shall be removed by the date of termination of this Lease or upon
earlier vacating of the Premises if required by Landlord; upon any such removal
Tenant shall restore the Premises to their original condition. All such removals
and restoration shall be accomplished in a good and workmanlike manner so as not
to damage the primary structure or structural quality of the Building.
Notwithstanding anything contained in this section, Tenant shall not make any
alterations, additions or improvements to the Premises that include roof
penetrations without the prior written consent or Landlord.
11.01 SIGNS AND WINDOW TREATMENT: Tenant shall not install any signs
upon the Building or Development. Landlord will provide, at Tenant's request and
cost, Landlord's standard identification sign, which sign shall be removed by
Tenant upon termination of this Lease at which time Tenant shall restore the
property to the same condition as prior to installation of said sign. Tenant
shall not install drapes, curtains, blinds or any window treatment without
Landlord's prior written consent, which shall not be unreasonably withheld.
Landlord may from time to time require Tenant to change its signage to conform
to a revised standard for the Building, provided Landlord pays the cost of
removing and replacing such signs. Landlord shall maintain all signs and the
reasonable cost thereof shall be charged to Tenant. Tenant shall be permitted to
retain its existing monument sign on Xxxxx Xxxxx Road at no additional rental
cost. The upkeep and maintenance of such signage shall be at Tenant's sole
expense and responsibility.
12.01 INSPECTIONS: Landlord and Landlord's agents and representatives
shall have the right to enter and inspect the premises at any reasonable time
during business hours provided that Landlord give Tenant at least one (1) days
written notice, for the purpose of ascertaining the condition of the premises or
in order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this lease. During the period that is six (6) months
prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any reasonable
time during business hours provided that Landlord give Tenant at least one (1))
days written notice for the purpose of showing the premises and shall have the
right to erect on the premises a suitable sign indicating the premises are
available. Tenant shall give written notice to Landlord at least thirty (30)
days prior to vacating the premises and shall arrange to meet with Landlord for
a joint inspection of the premises prior to vacating. In the event of Tenant's
failure to give such notice or arrange such joint inspection, Landlord's
inspection at or after Tenant's vacating the premises shall be conclusively
deemed correct for purposes of determining Tenant's responsibility for repairs
and restoration.
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13.01 UTILITIES: Tenant shall pay for all gas, heat, light, power,
telephone, and other utilities and services used on or from the Premises,
including without limitation, any maintenance charges for utilities. Tenant
shall furnish and install all electric light bulbs, tubes and ballasts, other
than those originally provided to the Premises by Landlord.
14.01 ASSIGNMENT AND SUBLETTING: (a) Tenant shall not have the right to
assign, sublet, transfer or encumber this lease, or any interest therein,
without the prior written consent of Landlord, whose consent shall not be
unreasonably withheld. It shall be deemed reasonable for Landlord in determining
whether to withhold its consent to such proposed assignment or subletting, to
consider the usage, character, and reputation of the proposed sublessee or
assignee. Any attempted assignment, subletting, transfer or encumbrance by
Tenant in violation of the terms and covenants of this Paragraph shall be void.
All cash or other proceeds of any assignment, fifty (50%) percent of such
proceeds, less Tenant's reasonable costs incurred in connection with assigning
or subleasing the Premises, as exceed the rentals called for hereunder in the
case of a subletting and all cash or other proceeds of any other transfer of
Tenant's interest in this lease shall be paid to Landlord, whether such
assignment, subletting or other transfer is consented to by Landlord or not,
unless Landlord agrees to the contrary in writing, and Tenant hereby assigns all
rights it might have or ever acquire in any such proceeds to Landlord. Provided
there is no uncured default of the Lease, and Tenant remains liable to Landlord,
Landlord consent shall not be required in the event Tenant assigns this lease to
a wholly owned subsidiary or affiliate or in the event of a share purchase,
merger or sale of substantially all of the assets of Tenant provided, however,
Tenant shall provide notice thereof to the Landlord within 30 days of such
assignment. Tenant may advertise and offer said space for sublease at such terms
as determined by Tenant. These covenants shall run with the land and shall bind
Tenant and Tenant's heirs, executors, administrators, personal representatives,
representatives in any bankruptcy proceeding, successors and assigns. Any
assignee, sublessee or transferee of Tenant's interest in this lease (all such
assignees, sublessee and transferees being hereinafter referred to as
"successors"), by assuming Tenant's obligations hereunder shall assume liability
to Landlord for all amounts paid to persons other than Landlord by such
successors in contravention of this Paragraph. No assignment, subletting or
other transfer, whether consented to by Landlord or not, shall relieve Tenant of
its liability hereunder. Upon the occurrence of an "event of default" as
hereinafter defined, if the premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided, as provided
by law, may at its option collect directly from such assignee or subtenant all
rents becoming due to Tenant under such assignment or sublease and apply such
rent against any sums due to Landlord for Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release of Tenant
from the further performance of Tenant's obligations hereunder.
(b) If this lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code 11 U.S.C. 101 et seq., (The bankruptcy Code"),
any and all monies or other considerations payable or otherwise to be delivered
in connection with such assignment shall be paid or delivered to Landlord, shall
be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of the Landlord and be promptly
paid or delivered to Landlord.
(c) Any person or entity to which this lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption.
15.01 FIRE AND CASUALTY DAMAGE: (a) Landlord agrees to maintain
insurance covering the building of which the premises are a part in an amount
not less than eighty (80%) percent (or such greater percentage as may be
necessary to comply with the provisions of any co-insurance clauses of the
policy) of the replacement cost thereof, insuring against the perils of Fire,
Lightning, Windstorm, Extended Coverage, Vandalism and Malicious Mischief,
extended by Special Extended Coverage Endorsement to insure against all other
Risks of Direct Physical Loss, such coverages and endorsements to be as defined,
provided and limited in the standard bureau forms prescribed by the insurance
regulatory authority for the state in which the premises are situated for use by
insurance companies admitted in such state for the writing of such insurance on
risks located within such state. Subject to the provisions of subparagraphs
15.01 (c), 15.01 (d), and 15.01 (e) below, such insurance shall be for the sole
benefit of Landlord and under its sole control.
(b) If the building situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, tenant shall give written notice
thereof to Landlord.
(c) If the buildings situated upon the premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged
thereby that rebuilding or repairs cannot in Landlord's reasonable estimation be
completed within one hundred fifty (150) days after the date upon which Landlord
is notified by Tenant of such damage, this lease shall terminate and the rent
shall be abated during the unexpired portion of this lease, effective upon the
date of the occurrence of such damage.
(d) If the buildings situated upon the premises should be damaged by
any peril covered by insurance to be provided by Landlord under subparagraph
15.01 (a) above, but only to such extent that rebuilding or repairs can in
Landlord's reasonable estimation be completed within one hundred fifty (150)
days after the date upon which Landlord is notified by Tenant of such damage,
this lease shall not terminate, and Landlord shall at its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and repair such buildings
to substantially the condition in which they existed prior to such damage,
except that Landlord shall not be required to rebuild, repair or replace any
part of the partitions, fixtures, additions and other improvements which may
have been placed in, on or about the premises by Tenant unless Tenant pays the
cost associated with such rebuild, repair or replacement and except that
Landlord may elect not to rebuild if such damage occurs during the last year of
the term of the lease exclusive of any option which is unexercised at the time
of such damage. If the premises are untenantable in whole or in part following
such damage, the rent payable hereunder during the period in which they are
untenantable shall be reduced to such extent as may be fair and reasonable under
all of the circumstances. In the event that Landlord should fail to complete
such repairs and rebuilding within two hundred (200) days after the date upon
which Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this lease by delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights and or obligations hereunder
shall cease and terminate. Should construction be delayed because of changes,
deletions, or additions in construction requested by Tenant, strikes, lockouts,
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casualties, acts of God, war, material or labor shortages, governmental
regulation or control or other causes beyond the reasonable control of Landlord,
the period of restoration, repair or rebuilding shall be extended for the time
Landlord is so delayed. To the extent Landlord undertakes to rebuild or repair
the Premises, Building or Development as a result of a casualty as set forth
herein, in no event shall Landlord's obligations exceed the amount of insurance
proceeds available (or insurance proceeds that would have been available if
Landlord carried the insurance required in Section 15.01 above with the
exception of any insurance coverages no longer customarily available to owners
of similar properties within the South Florida area at anytime beyond the
execution of this Lease Agreement.
(e) Notwithstanding anything hereunto the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
(f) Each of Landlord and Tenant hereby releases the other from any loss
or damage to property caused by fire or any perils insured in policies of
insurance covering such property, even if such loss or damage shall have been
caused by the fault or negligence of the other party, or anyone for whom such
party may be responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage occurring
during such times as the releasor's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of the Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies such a clause or endorsement.
Landlord shall have no liability for any loss or damage to Tenant's business or
personal property arising out of, but not limited to any of the following
causes: hurricanes; excessive rain; roofing defects; bursting pipes; fire;
windstorm; malfunction of electrical system, HVAC, sewer or water system;
interruption of utility services unless caused by the gross negligence or
willful misconduct of Landlord or any of Landlord's agents on or about the
Premises, Building or Development.
16.01 LIABILITY: Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the gross negligence or willful
misconduct of Tenant, its agents, servants or employees of any other person
entering upon the premises, or caused by the buildings and improvements located
on the premises becoming out of repair, or caused by leakage of gas, oil, water
or steam or by electricity emanating from the premises, and Tenant hereby
covenants and agrees that it will at all times indemnify and hold safe and
harmless the property, the Landlord (including without limitation the trustee
and beneficiaries if Landlord is a trust), Landlord's agents and employees from
any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, arising out of
any such damage or injury; except injury to persons or damage to property the
sole cause of which is the gross negligence or willful misconduct of Landlord or
the failure of Landlord to repair any part of the premises which Landlord is
obligated to repair and maintain hereunder after proper notice in accordance
with section 9.04 above.
17.01 CONDEMNATION: (a) If the whole or any substantial part of the
Premises or Building should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof and the taking would prevent or materially
interfere with the use of the Premises or Building for the purpose for which
they are then being used, this Lease shall terminate effective when the legal
taking shall occur as if the date of such taking were the date originally fixed
in the Lease for the expiration of the Term
(b) If the part of the Premises or Building shall be taken for any
public or quasi-public use under governmental law, ordinance or regulation, or
by right of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided above, this Lease shall not terminate but
the rent payable hereunder during the unexpired portion of this Lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the Premises to a
condition suitable for Tenant's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all the
circumstances.
(c) In the event of any such taking or private purchase in lieu
thereof, Landlord and Tenant shall each be entitled to receive and retain such
separate awards and/or portion of lump sum awards as may be allocated to their
respective interests in any condemnation proceedings; provided that Tenant shall
not be entitled to receive any award for the loss of any improvements paid for
by Landlord or for Tenant's loss of its leasehold interest, the right to such
award as to such items being hereby assigned by Tenant to Landlord.
Notwithstanding any of the provisions within this Section 17.01, Landlord agrees
that it shall provide timely notice to Tenant upon Landlord's knowledge of same.
18.01 HOLDING OVER: Tenant will, at the termination of this lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed. If
Landlord agrees in writing that Tenant may hold over after the expiration or
termination of this lease, unless the parties hereto otherwise agree in writing
on the terms of such holding over, the hold over tenancy shall be subject to
termination by Landlord at any time upon not less than fifteen (15) days advance
written notice, or by Tenant at any time upon not less than thirty (30) days
advance written notice, and all of the other terms and provisions of this lease
shall be applicable during that period, except that Tenant shall pay Landlord
from time to time upon demand, as rental for the period of any hold over, an
amount equal to double the rent in effect on the termination date, computed on a
daily basis for each day of the hold over period. Should Tenant provide nine (9)
months prior written notice of its intent to hold over beyond the term, Tenant
shall pay one hundred fifty (150%) percent of the rent in effect on the
termination date for the first two (2) months beyond the expiration date, and
double rent thereafter. Provided Landlord gives written notice to Tenant that
Landlord has entered into a Lease Agreement with a new tenant, Tenant shall also
pay to Landlord all damages sustained by Landlord resulting from retention of
possession by Tenant, including the loss of any proposed subsequent tenant for
any portion of the premises. No holding over by Tenant, whether with or without
consent of Landlord, shall operate to extend this lease except as otherwise
expressly provided. The preceding provisions of this paragraph shall not be
construed as consent for Tenant to hold over.
19.01 QUIET ENJOYMENT: Landlord represents and warrants that it has
full right and authority to enter into this Lease and that Tenant, upon paying
the rental herein set forth and performing its other covenants and agreements
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herein set forth, shall peaceably and quietly have, hold and enjoy the Premises
for the Term without hindrance or molestation from Landlord, subject to the
terms and provisions of this Lease. Landlord agrees to make reasonable efforts
to protect Tenant from interference or disturbance by other tenants or third
persons; however, Landlord shall not be liable for any such interference or
disturbance, nor shall Tenant be released from any of the obligations of this
Lease because of such interference or disturbance. In the event this Lease is a
sublease, then Tenant agrees to take the Premises subject to the provisions of
the prior lease.
20.01 EVENTS OF DEFAULT: The following events shall be deemed to be
events of default by Tenant under this lease: (a) Tenant shall fail to pay any
installment of the rent herein reserved when due, or any other payment or
reimbursement to Landlord required herein when due and such failure shall
continue for a period of five (5) days from the date such payment was due.
Notwithstanding anything herein to the contrary, in the event Landlord does not
receive any installment on the due date, Landlord shall send written notice to
Tenant and if Tenant pays such installment within three (3) days of receipt of
the notice, the late payment of the installment shall not be an event of default
unless there are more than two (2) occurrences in any 12-month period in which
an installment is more than five (5) days late.
(b) Tenant or any guarantor of Tenant's obligations hereunder shall
generally not pay its debts as they become due or shall admit in writing its
inability to pay its debts or shall make a general assignment for the benefit of
creditors; or Tenant or any such guarantor shall commence any case, proceeding
or other action seeking to have an order for relief entered on its behalf as a
debtor to adjudicate it as bankrupt or insolvent, or seeking reorganization or
relief of debtors or seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or of any substantial part of its
property; or Tenant or any such guarantor shall take any action to authorize or
in contemplation of any of the actions set forth above in this paragraph; or
(c) Any case, proceeding or other action against Tenant or any
guarantor of Tenant's obligations hereunder shall be commenced seeking to have
an order for relief entered against it as debtor or to adjudicate it as bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property.
(d) A receiver or trustee shall be appointed for all or substantially
all of the assets of the Tenant.
(e) Tenant shall desert or vacate any substantial portion of the
premises, unless Tenant agrees to maintain the HVAC and all other systems in
good condition including but not limited to maintaining temperature within the
Premises at no higher than 78 degrees Farenheit .
(f) Caused as a result of Tenant's act or omission, Tenant shall fail
to discharge any lien placed upon the premises in violation of Paragraph 25.01
hereof within twenty (20) days after any such lien or encumbrance is filed
against the premises.
(g) Tenant shall fail to comply with any material term, provision or
covenant of this lease (other than the foregoing in this Paragraph 20.01, and
shall not cure such failure within twenty (20) days after written notice thereof
to Tenant.
(h) Tenant shall fail to continuously operate its business at the
premises for the permitted use set forth in Paragraph 5.01 whether or not Tenant
is in default of the rental payment due under this lease, unless Tenant agrees
to maintain the HVAC and all other systems in good condition including but not
limited to maintaining temperature within the Premises at no higher than 78
degrees Farenheit.
20.02 REMEDIES: (a) Upon the occurrence of any of such events of
default described in Paragraph 20.01 hereof. Landlord shall have the option to
pursue any one or more of the following remedies without any notice or demand
whatsoever;
(1) Landlord, in addition to all rights and remedies provided in the Lease, may
declare the entire amount of the Base Rent which would have become due and
payable during the remainder of the Term of this Lease, as adjusted from time to
time, to be due and payable immediately, along with Tenant's proportionate share
of Operating Costs as defined in the Lease due for the remainder of the term of
the Lease. The projected operating costs due for the remainder of the lease
term, shall be actual operating costs due for the year of the default,
multiplied by the remaining term of the Lease. Tenant agrees to pay the
accelerated annual base rent, and additional rent charges to Landlord at once,
it being agreed that such payment shall constitute payment in advance of the
rent stipulated for the remainder of the Term. In the event Landlord collects
the accelerated rent from Tenant, Landlord shall pay Tenant for rents received
if the premises are relet less all and any expenses or expenditures incurred by
Landlord in procuring such replacement tenant. It is expressly understood that
Landlord shall have no obligation to relet the Demised Premises. The acceptance
by Landlord of the payment of the accelerated rent shall not constitute a waiver
of any default then existing or thereafter occurring hereunder, provided however
that Tenant shall not be obligated to pay any amounts above and beyond its
obligations under this Lease.
(2) In the event Landlord elects to repossess the Premises by eviction
proceedings or otherwise, he may do so with or without terminating this Lease,
and shall have the option of accelerating the annual base rent and additional
rent charges as set forth herein, in addition to pursuing any of the other
remedies set forth in the Lease or permitted by law.
(3) Terminate this lease, in which event Tenant shall immediately surrender the
premises to Landlord, and if Tenant fails so to do, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearage in
rent, commence appropriate legal action for possession of the premises in
accordance with the laws of the state of Florida.
(4) Upon any termination of Tenant's right to possession only without
termination of the Lease, Landlord may, but need not, relet the Premises or any
part thereof for such rent and upon such terms as Landlord, in its sole
discretion, shall determine (including the right to relet the Premises for a
greater or lesser term than that remaining under this Lease, the right to relet
the Premises as a part of a larger area, and the right to change the character
use made of the Premises). If Landlord decides to relet the Premises or a duty
to relet is imposed upon Landlord by law, Landlord and Tenant agree that
Landlord shall only be required to use the same efforts Landlord then uses to
lease other properties Landlord owns or manages (or if the Premises is then
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managed for Landlord, then Landlord will instruct such manager to use the same
efforts such manager then uses to lease other space or properties which it owns
or manages); provided, however, that Landlord (or its manager) shall not be
required to give any preference or priority to the showing or leasing of the
Premises over any other space that Landlord (or its manager) may be leasing or
have available and may place a suitable prospective tenant in any such available
space regardless of when such alternative space becomes available; provided,
further, that Landlord shall not be required to observe any instruction given by
Tenant about such reletting or accept any tenant offered by Tenant unless such
offered tenant has a credit worthiness reasonably acceptable to Landlord, leases
the entire Premises, agrees to use the Premises in a manner consistent with the
Lease and leases the Premises at the same rent, for no more than the current
term and on the same other terms and conditions as in this Lease without the
expenditure by Landlord for tenant improvements or broker's commissions. In such
case, Landlord may, but shall not be required to, make repairs, alterations and
additions in or to the Premises and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay the cost
thereof, together with Landlord's expenses of reletting, including, without
limitation, any broker's commission incurred by Landlord. If the consideration
collected by Landlord upon any such reletting plus any sums previously collected
from Tenant are not sufficient to pay the full amount of all rent, including any
amounts treated as additional rent hereunder and other sums reserved in this
Lease for the remaining portion of the Term, together with the costs of repairs,
alterations, additions, redecorating, and Landlord's expenses of reletting and
the collection of the rent accruing therefrom (including attorney's fees and
broker's commissions), Tenant shall pay to Landlord the amount of such
deficiency upon demand and Tenant agrees that Landlord may file suit to recover
any sums falling due under this subsection from time to time:
(5) In the event Tenant fails to pay any installment of rent hereunder within
seven (7) days of when such installment is due, to help defray the additional
cost to Landlord for processing such late payments Tenant shall pay to Landlord
on demand a late charge in an amount equal to five (5%) percent of such
installment; and the failure to pay such amount within five (5) days after
demand therefore shall be an event of default hereunder. The provision for such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
(6) In the event Tenant's check, given to Landlord in payment, is returned by
the bank for non-payment, Tenant agrees to pay all expenses incurred by Landlord
as a result thereof.
(7) Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law (all
such remedies being cumulative), nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants herein contained. No act or thing done by Landlord or
its agents during the Term shall be deemed a termination of this Lease or an
acceptance of the surrender of the Premises, and no agreement to terminate this
Lease or accept a surrender of said Premises shall be valid unless in writing
signed by Landlord.
(8) In the event that Landlord elects to repossess the premises without
terminating the lease, or in the event Landlord elects to terminate the lease,
then Tenant at Landlord's option, shall be liable for and shall pay to Landlord,
at the address specified for notice to Landlord herein, all rental and other
indebtedness accrued to the date of such repossession, plus rental required to
be paid by Tenant to Landlord during the remainder of the lease term until the
date of expiration of the term as stated in Section 3.01 diminished by any net
sums thereafter received by Landlord through reletting the premises during said
period (after deducting expenses incurred by Landlord as provided in
subparagraph 20.02 (h). In no event shall Tenant be entitled to any excess of
any rental obtained by reletting over and above the rental herein reserved.
Actions to collect amounts due by Tenant to Landlord under this subparagraph may
be brought from time to time, on one or more occasions, without the necessity of
Landlord's waiting until expiration of the lease term.
(9) In case of any event of default or breach by Tenant, Tenant shall also be
liable for and shall pay to Landlord, at the address specified for notice to
Landlord herein, in addition to any sum provided to be paid above, brokers' fees
incurred by Landlord in connection with reletting the whole or any part of the
premises; the costs of removing and storing Tenant's or other occupant's
property; the costs of repairing, altering, remodeling or otherwise putting the
premises into condition acceptable to a new tenant or tenants, and all
reasonable expenses incurred by Landlord in enforcing or defending Landlord's
rights and/or remedies including reasonable attorney's fees.
(10) If Tenant should fail to make any payment or cure any default hereunder
within the time herein permitted, Landlord, without being under any obligations
to do so and without thereby waiving such default, may make such payment and/or
remedy such other default for the account of Tenant (and enter the premises for
such purpose), and thereupon Tenant shall be obligated to, and hereby agrees, to
pay Landlord upon demand, all costs, expenses and disbursements (including
reasonable attorney's fees) incurred by Landlord in taking such remedial action.
21.01 RIGHTS RESERVED TO LANDLORD: Subject to the express rights and
obligations of Tenant contained herein, Landlord reserves and may exercise the
following rights without affecting Tenant's obligations hereunder:
(a) To change the name or the street address of the Building or the
Development upon reasonable notice to Tenant;
(b) To install and maintain a sign or signs on the exterior of the
Building;
(c) To designate all sources furnishing sign painting and lettering, lamps
and bulbs used on the Premises;
(d) To retain at all times pass keys to the Premises;
(e) To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building or the Development, provided
that it has no detrimental effect on Tenant's business;
(f) To change the arrangement and/or location of entrances and corridors in
and to the Building and to add, remove, rename or modify buildings,
roadways, parking areas, walkways, landscaping, lakes, grading and
other improvements in or to the Development.
22.01 INTENTIONALLY OMITTED
23.01 LANDLORD'S LIEN: Landlord shall retain all statutory rights
afforded by law.
24.01 SUBORDINATION:. Tenant accepts this Lease subject and subordinate
to any mortgage and/or deed of trust now or at any time hereafter constituting a
lien or charge upon the Development, the Building, or the Premises, without the
8
necessity of any act or execution of any additional instrument of subordination;
provided, however, that if the mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this Lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this Lease shall be deemed superior to such lien, whether
this Lease was executed before or after said mortgage or deed of trust. Tenant
shall at any time hereafter on demand execute any instruments, releases or other
documents which may be required by any mortgagee for the purpose of evidencing
the subjection and subordination of this Lease to the lien of any such mortgage
or for the purpose of evidencing the superiority of this Lease to the lien of
any such mortgage as may be the case. Tenant upon request, shall be provided
with a non-disturbance agreement from Landlord's lender, at Tenant's sole cost
and expense.
25.01 MECHANICS LIENS AND OTHER TAXES: (a) Tenant shall have no
authority, express or implied, to create or place any lien or encumbrance of any
kind or nature whatsoever upon, or in any manner to bind the interests of
Landlord in the premises or to charge the rentals payable hereunder for any
claim in favor of any person dealing with Tenant, including those who may
furnish materials or perform labor for any construction or repairs, and each
such claim shall affect and each such lien shall attach to, if at all, only the
leasehold interest granted to Tenant by this instrument. Neither Tenant nor
anyone claiming by, through or under Tenant, including, without limitation,
contractors, subcontractors, materialmen, mechanics and laborers, shall have any
right to file or place mechanic's, materialmen's or other liens of any kind
whatsoever upon the demised premises or upon the tract of land described on
Exhibit A, or any portion thereof; on the contrary, any such liens are
specifically prohibited and shall be null and void and of no further force or
effect.
Tenant covenants and agrees that it will pay or cause to be paid all sums
legally due and payable by it on account of any labor performed or materials
furnished in connection with any work performed on the premises on which any
lien is or can be validly and legally asserted against its leasehold interest in
the premises or the improvements thereon and that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the premises or under the terms of this
lease. Tenant agrees to give Landlord immediate written notice if any lien or
encumbrance is placed on the premises.
(b) Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the premises. If
any such taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and if Landlord elects to pay the same or if the
assessed value of Landlord's property is increased by inclusion of personal
property, furniture or fixtures placed by Tenant in the premises, and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord
upon demand that part of such taxes.
26.01 NOTICES: Each provision of this instrument or of any applicable
governmental laws, ordinances regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
shall be deemed to be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord shall be payable to: REGENT HOLDING, LLC or to such other
entity at the such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith.
(b) Any notice or document required or promised to be delivered
hereunder shall be deemed to be delivered, whether actually received or
not, when deposited in the United States Mail, postage prepaid,
Certified or Registered Mail, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they
have theretofore specified by written notice delivered in accordance
herewith:
Landlord: Tenant:
REGENT HOLDING, LLC XXXXXX TECHNOLOGIES, INC.
C/O: XXXXXXXX XXXX COMPANY ATTENTION LEGAL DEPARTMENT
0000 X. XXXXXXXX XXXXX, XXXXX 000 902 XXXXX XXXXX XXXX, XXXXX 000
XXXX XXXXX, XXXXXXX 00000 XXXX XXXXX, XXXXXXX 00000
If and when included within the term "Landlord", or "Tenant", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of notices
and payments. All parties included within the terms "Landlord" and "Tenant",
respectively, shall be bound by notices given in accordance with the provisions
of this paragraph to the same effect as if each had received such notice.
27.01 MISCELLANEOUS: (a) Words of any gender used in this Lease shall
be held or construed to include any other gender, and words in the
singular number shall be held to include the plural, unless the context
otherwise requires.
(b) The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding
upon, the parties hereto and upon their respective heirs, legal
representatives, successors and permitted assigns, except as otherwise
herein expressly provided. Landlord shall have the right to assign any
of its rights and obligations under this Lease and Landlord's grantee
or Landlord's successor, as the case may be, shall upon such
assignment, become Landlord hereunder, thereby freeing and relieving
the grantor or assignor, as the case may be, of all covenants and
obligations of Landlord hereunder. Each party agrees to furnish to the
other, promptly upon demand, a secretary's certificate, proof of due
authorization by partners, or other appropriate documentation
evidencing the due authorization of such party to enter into this
Lease. Nothing herein contained shall give any other tenant in the
Development or the Building any enforceable rights either against
Landlord or Tenant as a result of the covenants and obligations of
either party set forth herein. If there is more than one Tenant, the
obligations of Tenant shall be joint and several. Any indemnification
of, insurance of, or option granted to Landlord shall also include or
be exercisable by Landlord's agents and employees.
(c) The captions inserted in this Lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the interpretation
of this Lease.
9
(d) This provision is not intended to be a measure or agreed amount of
Landlord's liability with respect to any particular breach and shall
not be utilized by any court or otherwise for the purpose of
determining any liability of Landlord hereunder, except only as a
maximum amount not to be exceeded in any event. In addition, it is
expressly understood and agreed that nothing in this Lease shall be
construed as creating any liability against Landlord, or its successors
and assigns, personally, and in particular without limiting the
generality of the foregoing, there shall be no personal liability to
pay any indebtedness accruing hereunder or to perform any covenant,
either express or implied, herein contained, and that all personal
liability of Landlord, or its successors and assigns, of every sort, if
any, is hereby expressly waived by Tenant, and that so far as Landlord,
or its successors and assigns is concerned Tenant shall look solely to
Landlord's equity in the Development for the payment thereof.
(e) Except as set forth in Section 8.01 above, this Lease may not be
altered, changed or amended except by an instrument in writing signed
by both parties hereto.
(f) All obligations of Tenant not fully performed as of the expiration
or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the Term, including without
limitation, all payment obligations with respect to Operating Costs and
all obligations concerning the condition of the Premises. Upon the
expiration or earlier termination of the Term, and prior to Tenant
vacating the Premises, Landlord and Tenant shall jointly inspect the
Premises and Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises, including
without limitation heating and air conditioning systems and equipment
therein, in good condition and repair, provided however that Tenant
shall not be responsible for such amounts if it kept in force during
the term of the Lease the required maintenance contracts on such
equipment. Any work required to be done by Tenant prior to its vacation
of the Premises which has not been completed upon such vacation, shall
be completed by Landlord and billed to Tenant at cost plus fifteen
percent. Tenant shall also, prior to vacating the Premises, pay to
Landlord the amount, as estimated by Landlord, of Tenant's obligation
hereunder for Operating Costs. All such amounts shall be used and held
by Landlord for payment of such obligations of Tenant hereunder, with
Tenant being liable for any additional costs therefor upon demand by
Landlord, or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied, as the case may be. Any
security deposit held by Landlord shall be credited against the amount
payable by Tenant under this Section.
(g) If any clause, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair
or render invalid or unenforceable the remainder of this Lease nor any
other clause, phrase, provision or portion hereof, nor shall if affect
the application of any clause, phrase, provision or portion hereof to
other persons or circumstances, and it is also the intention of the
parties to this Lease that in lieu of each such clause, phrase,
provision or portion of this Lease that is invalid or unenforceable,
there be added as a part of this Lease a clause, phrase, provision or
portion as similar in terms to such invalid or unenforceable clause,
phrase, provision or portion as may be possible and be valid and
enforceable.
(h) Submission of this Lease shall not be deemed to be a reservation of
the Premises. Landlord shall not be bound hereby until its delivery to
Tenant of an executed copy hereof signed by Landlord, already having
been signed by Tenant, and until such delivery Landlord reserves the
right to exhibit and lease the Premises to other prospective tenants.
Notwithstanding anything contained herein to the contrary Landlord may
withhold delivery of possession of the Premises from Tenant until such
time as Tenant has paid to Landlord the security deposit required
hereunder and the first month's rent as required hereunder, and any
other sums required hereunder.
(i) Tenant shall at any time and from time to time within ten (10 )
business days after written request from Landlord, execute and deliver
to Landlord an estoppel certificate, in form reasonably satisfactory to
Landlord.
(j) Whenever a time period is prescribed for action to be taken by the
parties , each party shall not be liable or responsible for, and there
shall be excluded from the computations for any such time period, any
delays due to causes beyond the control of the other party, except as
it relates to Tenant's obligation to pay any rent due to Landlord.
(k) 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 a 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. The above
statement is incorporated in the lease as a requirement in order to
comply with Florida Statute 404.056(8).
28.01 EFFECTIVE DATE: All references in this Lease to the "date hereof"
or similar references shall be deemed to refer to the last date in
point of time, on which all parties hereto have executed this Lease.
29.01 SURRENDER: Tenant shall peaceably surrender the Premises to
Landlord on the expiration date, in accordance with Move Out Standards
attached hereto as Exhibit E, except for (i) reasonable wear and tear;
(ii) loss by fire or other casualty; and (iii) loss by condemnation.
Tenant shall, on Landlord's request, remove Tenant's property on or
before the expiration and promptly repair all damage to the premises or
building caused by such removal.
(b) If Tenant abandons or surrenders the premises, or is dispossessed
by process of law or otherwise, Tenant shall remove its personal
property from the Premises. If Tenant fails to remove its personal
property, Landlord, at its option may treat such failure as a hold over
as defined in the Lease, and/or may (without liability to Tenant for
loss thereof), at Tenant's sole cost and in addition to Landlord's
other rights and remedies under this Lease, at law or in equity: (a)
remove and store such items; and /or (b) upon ten days prior notice to
Tenant, sell all or any such items at private or public sale for such
price as Landlord at its discretion may obtain. Landlord shall apply
the proceeds of any such sale to any amounts due to Landlord under this
Lease from Tenant (including Landlord's attorneys fees and other costs
incurred in the removal, storage and/or sale of such items), with any
remainder to be paid to Tenant.
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30.01 TENANT IMPROVEMENTS: Landlord at its sole cost and expense shall
perform, or cause to be performed, certain Tenant Improvements ("Tenant
Improvements") to the Premises as set forth in Exhibit D ("Construction
Drawings"), attached and made a part hereof and mutually agreed upon by
Landlord and Tenant. Furthermore, Landlord and Tenant agree that Tenant
shall contribute $12,580.00 towards the costs of the Tenant
Improvements, which Tenant shall pay 100% upon construction
commencement. In the event Tenant elects to make any modifications to
the Construction Drawings or Tenant Improvement Specifications, such
modifications shall be made at Tenant's sole cost and expense
("Tenant's Share"). Tenant's Share (if such Tenant's Share actually
increases the cost of the Tenant Improvements), if any, shall be paid
by Tenant as additional rent, upon construction commencement Landlord
shall perform, or cause to be performed the Tenant Improvements
substantially in accordance with the Construction Drawings provided,
however, that Landlord may make non-material changes in design or
construction which are necessary in the reasonable judgment of Landlord
or its architects, contractors, agents, or representatives. Landlord
assumes no responsibility for existing improvements in the premises
which do not meet building code. Tenant also may alter or modify the
Construction Drawings at any time, but any such change, alteration, or
modification is subject to Landlord's reasonable approval, and must
conform to all relevant building codes, ordinances, regulations, energy
regulations, and any other governmental requirements. The cost of such
change, alteration, or modification by the Tenant shall be at the
Tenant's sole cost and expense, and shall delay the Rent Commencement
Date as outlined within Section 2.02 of this Lease Agreement.
The cost of any changes and/or additions made to the Premises at the
request of Tenant after Landlord and Tenant have agreed on the
Construction Drawings, including, but not limited to, the actual cost
of such changes and/or additions, the cost of revisions in the plans
and specifications and the cost of any delays in construction, whether
or not such changes are finally agreed to, shall be paid upon
Landlord's presentation of a xxxx therefore, such amount shall be
treated as additional rent.
All work not within the scope of Landlord's construction of the
Premises, such as the furnishing and installation of floor covering
other than as described in the Tenant Improvement Specifications,
furniture, telephone equipment, and office equipment, shall be
furnished and installed by Tenant at Tenant's expense. Tenant shall
conduct its work in such a manner as to maintain harmonious labor
relations and as to not to interfere unreasonably with or delay the
work of Landlord's contractors or the subcontractors of other tenants.
Tenant's contractors, subcontractors, and labor shall be reasonably
approved by Landlord and shall be subject to the administration
supervision of Landlord's construction supervisor. Contractors and
subcontractors engaged by Tenant shall employ persons and means to
insure so far as may be possible the progress of the work without
interruption on account of strikes, work stoppages, or similar causes
for delay. Landlord shall give access to the Premises to Tenant to
adapt the Premises for Tenant's use provided, however, that if such
entry is prior to the Rent Commencement Date, such entry shall be
subject to all of the terms and conditions of the Lease except the
payment of rent, and such entry shall not delay the Rent Commencement
Date. All work performed by Tenant or at Tenant's expense shall conform
to and comply with any and all local, state, and federal building
codes, ordinances, and the N.F.P.A. Life Safety Code.
The parties acknowledge that the Tenant Improvement shall be completed
while Tenant is occupying and doing business in the Premises. Landlord
shall use reasonable efforts to complete the Tenant Improvements on or
before March 11, 2004 in accordance with section 2.02 above. Tenant
agrees to cooperate with Landlord and Landlord's Contractor to enable
the Landlord to complete the Tenant Improvements promptly. Subject to
delays by Tenant, any governmental authorities or by force majeure,
should Landlord fail to substantially complete the Tenant Improvements
by June 1, 2004, Tenant shall receive a per diem rent abatement for
each day Landlord is late beyond June 1, 2004.
Landlord agrees that it and its agents and contractors will comply with
all applicable laws and regulations with respect to Tenant
Improvements. Landlord further agrees that it and its agents and
contractors will adhere to all reasonable Tenant policies while on the
Premises, including without limitation Tenant's security policy.
Landlord will ensure that throughout the course of completing the
Tenant Improvements, it and its agents and contractors will keep the
Premises reasonably free from litter and construction materials and
will cooperate with Tenant to keep the interruption to Tenant's
business at a minimum.
31.01 INDEMNIFICATION: The Tenant will indemnify and hold harmless the
Landlord against and from any and all claims arising from (i) the
Tenant's occupancy of the Premises, (including, but not limited to,
statutory liability and liability under workers' compensation laws),
(ii) any breach or default in the performance of any obligation on the
Tenant's part to be performed under the terms of this Lease, (iii) any
act or negligence of the Tenant, or any officer, agent, employee,
guest, or invitee of the Tenant, (iv) all costs, reasonable attorneys'
fees, expenses and liabilities incurred in or about any such claim or
any action or proceeding brought thereon, and, in any case, action or
proceeding brought against the Landlord by reason of any such claim.
The Tenant upon notice from the Landlord will defend the same at the
Tenant's expense. (a). The Tenant, as a material part of the
consideration to the Landlord assumes all risk of damage to property or
injury to persons, in, upon or about the Premises, (i) except that the
Tenant does not assume any risk for damage to the Tenant resulting from
the willful misconduct or gross negligence of the Landlord or its
authorized representatives, (ii) from any cause whatsoever except that
which is caused by the failure of the Landlord to observe any of the
terms and conditions of the Lease if such failure has persisted for an
unreasonable period of time after written notice of such failure.
The Landlord is not liable for any claims, costs or liabilities arising
out of or in connection with the acts or omissions of any other tenants
in the Building. The Tenant waives all of its claims in respect thereof
against the Landlord.
(b) Landlord agrees to indemnify and hold harmless the Tenant from and
against claims for bodily injury and property damage: (i) in the Common
Areas of the Building; and (ii) caused by the gross negligence,
negligence or willful misconduct of the Landlord, its employees, agents
or contractors, or (iii) any breach by the Landlord of its obligations
under this Lease.
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32.01 INSURANCE BY TENANT: Tenant shall, during the Lease Term, procure
at its expense and keep in force the following insurance:
(1) Commercial general liability insurance naming the Landlord as an
additional insured against any and all claims for bodily injury and
property damage occurring in, or about the Premises arising out of
Tenant's use and occupancy of the Premises. Such insurance shall have a
combined single limit of not less than One Million Dollars ($1,000,000)
per occurrence with a Two Million Dollar ($2,000,000) aggregate limit
and excess umbrella liability insurance in the amount of Two Million
Dollars ($2,000,000). If the Tenant has other locations that it owns or
leases, the policy shall include an aggregate limit per location
endorsement. Such liability insurance shall be primary and not
contributing to any insurance available to Landlord and Landlord's
insurance shall be in excess thereto. In no event shall the limits of
such insurance be considered as limiting the liability of Tenant under
this lease.
(2) Personal property insurance insuring all equipment, trade fixtures,
inventory, fixtures and personal property located on or in the Premises
for perils covered by the cause of loss - special form (all risk)
except, coverage for flood, earthquake and boiler and machinery. Such
insurance shall be written on a replacement cost basis in an amount
equal to one hundred percent (100%) of the full replacement value of
the aggregate of the foregoing.
(3) Workers' compensation insurance in accordance with statutory law
and employers' liability insurance with a limit of not less than
$100,000 per employee and $500,000 per occurrence.
The policies required to be maintained by Tenant shall be with
companies rated AX or better in the most current issue of Best's
Insurance Reports. Insurers shall be licensed to do business in the
state in which the Premises are located and domiciled in the USA. Any
deductible amounts under any insurance policies required hereunder
shall not exceed $100,000. Certificates of insurance shall be delivered
to Landlord prior to the commencement date and annually thereafter
within thirty (30) days after the expiration date of the old policy,
however Tenant shall use best efforts to deliver new certificate prior
to the expiration of the previous years policy. Tenant shall have the
right to provide insurance coverage which it is obligated to carry
pursuant to the terms hereof in a blanket policy, provided such blanket
policy expressly affords coverage to the Premises and to Landlord as
required by this Lease. Each policy of insurance shall provide
notification to Landlord at least thirty (30) days prior to any
cancellation or modification to reduce the insurance coverage.
33.01 WAIVER OF SUBROGATION: Landlord and Tenant hereby mutually waive
their respective rights to recovery against each other for any loss of,
or damage to, either parties' property, to the extent that such loss or
damage is insured by an insurance policy required by its insurer
whereby the insurer waives its rights of subrogation against the other
party. The provisions of this clause shall not apply in those instances
in which waiver of subrogation would cause either party's insurance
coverage to be voided or otherwise made uncollectible.
34.01 ACCEPTANCE OF PREMISES/TENANT IMPROVEMENTS: Tenant acknowledges
that it has inspected the Premises, knows the condition thereof, and
accepts such Premises, and specifically the buildings and improvements
comprising the same, in their present condition, as suitable for the
purposes for which the Premises are leased, subject to Landlord's
completion of the Tenant Improvements described in Paragraph 30.01.
35.01 INSURANCE BY LANDLORD: Landlord shall, during the Lease Term,
procure and keep in force the following insurance, the cost of which
shall be deemed as Tenant's Proportionate Share of Operating Costs
payable, by Tenant pursuant to Paragraph 7.02:
(1) Property insurance insuring the building and improvements and
rental value insurance for perils covered by the causes of loss -
special form (all risk) and in addition coverage for flood, earthquake
and boiler and machinery (if applicable). Such coverage (except for
flood and earthquake) shall be written on a replacement cost basis
equal to ninety percent (90%) of the full insurable replacement value
of the foregoing and shall not cover Tenant's equipment, trade
fixtures, inventory, fixtures or personal property located on or in the
Premises.
(2) Commercial general liability insurance against any and all claims
for bodily injury and property damage occurring in or about the
Building or the Land. Such insurance shall have a combined single limit
of not less than One Million Dollars ($1,000,000) per occurrence per
location with a Two Million Dollar ($2,000,000) aggregate limit.
(3) Such other insurance as Landlord reasonably deems necessary and
prudent or required by Landlord's beneficiaries or mortgagees of any
deed of trust or mortgage encumbering the Premises.
36.01 ADA - GENERAL COMPLIANCE: Beyond the Rent Commencement Date,
Tenant, at Tenant's sole expense, shall comply with all laws, rules,
orders, ordinances, directions, regulations and requirements of
federal, state, county and municipal authorities now in force or which
may hereafter be in force, which shall impose any duty upon the
Landlord or Tenant with respect to the use or occupation of the
Premises, and that the Tenant shall use all reasonable efforts to fully
comply with the Americans With Disabilities Act.
37.01 HAZARDOUS SUBSTANCE - GENERAL: The term "Hazardous Substances,"
as used in this lease shall mean pollutants, contaminants, toxic or
hazardous wastes, or any other substances the use and/or the removal of
which is required or the use of which is restricted, prohibited or
penalized by any "Environmental Law," which term shall mean any
federal, state or local law, ordinance or other statute of a
governmental or quasi-governmental authority relating to pollution or
protection of the environment. Tenant hereby agrees that (i) no
activity will be conducted on the Premises that will produce any
Hazardous Substance, except for such activities that are part of the
ordinary course of Tenant's business activities (the "Permitted
Activities") provided said Permitted Activities are conducted in
advance in writing by Landlord; Tenant shall be responsible for
obtaining any required permits and paying any fees and providing any
testing required by any governmental agency, (ii) the Premises will not
be used in any manner for the storage of any Hazardous Substances
12
except for the temporary storage of such materials that are used in the
ordinary course of Tenant's business (the "Permitted Materials")
provided such permitted Materials are properly stored in a manner and
location meeting all Environmental Laws and approved in advance in
writing by Landlord; Tenant shall be responsible for obtaining any
required permits and paying any fees and providing any testing required
by any governmental agency; (iii) no portion of the Premises will be
used as a landfill or a dump; (iv) Tenant will not install any
underground tanks of any type; (v) Tenant will not allow any surface or
subsurface conditions to exist or come into existence that constitute,
or with the passage of time may constitute a public or private
nuisance; (vi) Tenant will not permit any Hazardous Substances to be
brought into the Premises, except for the Permitted Materials described
below, and if so brought or found located thereon, the same shall be
immediately removed, with proper disposal, and all required cleanup
procedures shall be diligently undertaken pursuant to all Environmental
Laws. Landlord or Landlord's representative shall have the right but
not the obligation to enter the Premises for the purpose of inspecting
the storage, use and disposal of Permitted Materials to ensure
compliance with all Environmental Laws. Should it be determined, in
Landlord's sole reasonable opinion, that said Permitted Materials are
being improperly stored, used, or disposed of, then Tenant shall
immediately take such corrective action as reasonably requested by
Landlord. Should Tenant fail to take such corrective action within 24
hours, Landlord shall have the right to perform such work and Tenant
shall promptly reimburse Landlord for any and all costs associated with
said work. If at any time during or after the term of the lease, the
Premises is found to be so contaminated or subject to said conditions,
Tenant shall diligently institute proper and thorough cleanup
procedures at Tenant's sole cost. Tenant agrees to indemnify and hold
Landlord harmless from all claims, demand, actions, liabilities, costs,
expenses, damages and obligations of any nature arising from or as a
result of the use of the Premises by Landlord. The foregoing
indemnification and the responsibilities of Tenant shall survive the
termination or expiration of this Lease.
38.01 OPTION TO RENEW: Provided Tenant has not been in default, and
subject to Tenant providing written notice to Landlord no less than
nine (9) months and no more than twelve (12) months prior to the
expiration of the lease, Tenant shall have the option to extend the
lease for an additional period of five (5) years upon the same terms
and conditions with the exception of Base Rent, Tenant Improvements and
the security provision under section 42 of the Lease and other
provisions of this lease that due to their nature do not apply to a
renewal term. Base Rent shall be negotiated in good faith by both
parties based upon market terms at the time the option is exercised,
except that Tenant shall not pay less than $12.94/SF in the first year
of the renewal period. Landlord shall be responsible for recarpet and
repaint only. The security provision under section 42 of this Lease
shall not apply to the renewal term.
39.01 BROKERS DISCLOSURE: Landlord covenants, warrants and represents
that no broker or finder except Xxxxxxxx Xxxx Realty Services, Inc., as
Landlord's sole representative and Tenant covenants, warrants and
represents that no broker or finder except Colliers Lanard and Xxxxxx,
P.A., as Tenant's sole representative (Xxxxxxxx Xxxx Realty Services,
Inc. and Colliers Lanard and Xxxxxx, P.A. hereinafter collectively
referred to as "Brokers") were instrumental in consummating this Lease
and that neither Landlord nor Tenant has had conversations or
negotiations with any broker, except Brokers, concerning the subject
matter of this Lease. Each party agrees hereby to indemnify and hold
the other harmless against and from any and all claims for any
brokerage commissions or fees and all costs, expenses and liabilities,
including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by such party with any
broker, except Brokers, or any breach of the foregoing covenant,
warranty and representation.
40.01 PREVAILING PARTY: The parties hereto shall have all remedies
existing in law and equity to enforce the terms of or obligations
arising out of the Lease. In the event any legal action or proceeding
is commenced to interpret or enforce the terms of or obligations
arising out of the Lease, or to recover damages for the breach thereof,
the party prevailing in any such action or proceeding shall be entitled
to recover reasonable attorney's fees, court costs and expenses, at
both trial and appellate levels.
41.01 WAIVER OF JURY TRIAL, RIGHT TO COUNTERCLAIM AND RIGHT OF
REDEMPTION: It is mutually agreed by and between Landlord and Tenant
that, to the fullest extent allowed by law, the respective parties
hereto do hereby waive trial by jury in any action, proceeding or
counterclaim brought by either party hereto against the other
pertaining to any matter whatsoever arising out of or in any way
connected with this Lease, Tenant's use of occupancy of the Premises or
any claim of injury or damage. It is further mutually agreed that in
the event Landlord commences any summary proceeding for possession of
the Premises, Tenant will not interpose any counterclaim of whatever
nature or description in any such proceeding but, rather, will assert
any such claim which Tenant might have in a separate independent
action. Furthermore, Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the
event of Tenant's being evicted or dispossessed for any cause, or in
the event of Landlord's obtaining possession of the Premises, by reason
of the violation by Tenant of any of the covenants and conditions of
this Lease, or otherwise to redeem and repossess the Premises, or any
part thereof, or to reinstate this Lease
42.01 RIGHT OF FIRST REFUSAL: Landlord shall grant Tenant a Right of
First Refusal to lease any space adjacent to its Premises ("ROFR
Space") during the term of the lease. Landlord, upon receiving a bona
fide third party offer to lease the ROFR Space, shall notify Tenant of
the terms upon which the space has been proposed to be leased and
Landlord's willingness to lease said space on those terms. Tenant shall
have five (5) business days to notify Landlord of its willingness to
lease the ROFR Space on those terms except that Landlord shall only be
obligated to repaint and recarpet the ROFR Space and Tenant shall lease
such space for a minimum of 3 years. Furthermore, Tenant's rental rate
shall be adjusted to a reduced rate to reflect a smaller tenant
improvement allowance and brokerage commission payable by Landlord, but
in no event shall Tenant's rental rate for the ROFR space be lower than
the Base Rental Rent Tenant is paying at the time it exercises its
ROFR. Failure by Tenant to notify Landlord shall be deemed a decision
by Tenant to not lease the ROFR Space. If the ROFR Space is ultimately
not leased by such bona fide third party only, Tenant's right shall
once again exist as to the ROFR Space. However, if the ROFR Space is
leased and then subsequently becomes vacant, Landlord shall have no
further obligation to offer such space to Tenant.
43.01 SECURITY: Landlord shall provide manned security for no less than
64 hours per week to patrol the Development. Tenant hereby agrees to
pay Landlord as additional rent, 50% of Landlord's cost for the manned
security. The remaining cost of the manned security shall be treated as
an Operating Cost for the Development. Tenant shall pay to Landlord, as
additional rent, its proportionate share of such Operating Cost
calculated on the basis of the ratio set forth in Section 7.02
13
The parties acknowledge that Landlord is currently affiliated with
Congress Corporate Plaza I. Landlord may, in its sole discretion elect
to share the cost of manned security with Congress Corporate Plaza I .
In the event Landlord shares the cost of manned security with Congress
Corporate Plaza I, Tenant will nonetheless, be obligated to pay 50% of
Landlord's total cost of the manned security and Tenant's pro-rata
share of the remaining 50% treated as an Operating Cost for the
Development.
44.01 MONITORING, INSPECTING AND REMEDIATING MOLD
a. MONITORING OF PREMISES. Tenant, as its sole cost and expense,
shall:
(i) Regularly monitor the Premises for the presence of mold or
for any conditions that reasonably can be expected to give
rise to mold (the "Mold Conditions"), including, but not
limited to, observed or suspected instances of water damage,
mold growth, repeated complaints of respiratory ailment or eye
irritation by Tenant's employees or any other occupants in the
Premises, or any notice from a governmental agency of
complaints regarding the indoor air quality at the Premises;
and
(ii) Promptly notify Landlord in writing if it suspects molds
or Mold Conditions at the Premises.
b. INSPECTION OF PREMISES. In the event of suspected mold or Mold
Conditions at the Premises, Tenant, shall promptly cause an
inspection of the Premises to be conducted to determine if
mold or Mold Conditions are present at the Premises, and
shall:
(i) Notify Landlord, in writing, at least three (3) days prior
to the inspection, of the date on which the inspection shall
occur and which portion of the Premises shall be subject to
the inspection;
(ii) Prepare an inspection report, keep the results of the
inspection report confidential, and promptly provide a copy to
Landlord.
c. REMEDIATION OF MOLD. In the event the inspection required by
Paragraph b hereof determines that mold or Mold Conditions are
present at the Premises, then
(i) Tenant at its cost and expense shall promptly;
(A) Hire trained and experienced mold remediation
contractors to prepare a remediation plan and to
remediate the mold or Mold Conditions at the
Premises;
(B) Send Landlord notice, in writing, with a copy of
the remediation plan, at lease three (3) days prior
to the mold remediation.
(C) Provide Landlord with a draft of the mold
remediation report and give Landlord a reasonable
opportunity to review and comment thereon, and when
such report is finalized, promptly provide Landlord
with a copy of the final remediation report.
(ii) The cost of inspection, remediation plan, and
remediation shall be paid by Tenant unless it is
determined that the Mold Conditions were caused by
the gross negligence, willful misconduct, and breach
of Lease of the Landlord.
d. POST-REMEDIATION INSPECTION. Tenant acknowledges and agrees
that Landlord shall have a reasonable opportunity to inspect
the remediated portion of the Premises after the conclusion of
the mold remediation. If the results of Landlord's inspection
indicate that the remediation does not comply with the final
remediation report or any other applicable federal, state, or
local laws, regulatory standards or guidelines, including,
without limitation, the EPA Guidelines, then Tenant, at its
sole cost and expenses, shall immediately take all further
actions necessary to ensure such compliance as set forth
above.
The parties intending to be bound hereby execute or cause this Lease to
be executed this 14th day of January, 2004.
WITNESSES: LANDLORD: Regent Holding, LLC
/s/ XXXX XXXXX /s/ XXX GHETIS
--------------------------- ----------------------------------
By: Xxx Ghetis
Title: President
WITNESSES: TENANT: Xxxxxx Technologies, Inc.
/s/ XXXXXXX XXXX /s/ XXXXXX XXXXXXXX
--------------------------- ----------------------------------
By: Xxxxxx Xxxxxxx
/s/ XXXXXXXX XXXXXXX
---------------------------
Title: CFO
14
EXHIBIT A
LEGAL DESCRIPTION
Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxx XX, Xxxxxxxx 0
Approximately 17,853 square feet of office space located in a building
containing approximately 53,022 square feet situated on a portion of
approximately 9.49 acres on a parcel of land lying in Xxxxxxx 0, Xxxxxxxx 00
Xxxxx, Xxxxx 43 East and being more particularly described as 000 Xxxxx Xxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 as shown in Exhibit B. Further
described as Congress Corporate Plaza, Phase II situated within a development
known as Congress Corporate Plaza containing approximately 106,100 square feet.
15
EXHIBIT B
DRAWINGS OMITTED
16
EXHIBIT C
DRAWINGS OMITTED
17
EXHIBIT D
CONSTRUCTION DRAWINGS
Attached approved Final Construction Drawings produced by Xxxxxx Architectural
with revision date of December 23, 2003.
Project Number DT02
Signed by Lessor 1/14/04
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EXHIBIT E
MOVE OUT STANDARDS
At the expiration or earlier termination of this Lease, Tenant shall surrender
the Premises in the same condition as they were upon delivery of possession
thereto under this Lease (after completion of the Tenant Improvements),
reasonable wear and tear excepted, and shall deliver all keys to Landlord.
Before surrendering the Premises, Tenant shall remove all personal property,
trade fixtures, unless Landlord requests, in writing, that Tenant not remove
some or all of such fixtures (other than trade fixtures), additions or
improvements installed by or on behalf of Tenant (except the Tenant
Improvements) or situated in or about the Premises. By the date which is twenty
(20) days prior to such expiration or earlier termination of this Lease,
Landlord shall notify Tenant in writing of those fixtures (other than trade
fixtures), alterations, additions and other improvements which Landlord shall
require Tenant not to remove from the Premises. Tenant shall, at its sole cost
and expense, repair any damage caused by the installation or removal of such
signs, trade fixtures, furniture, furnishings, fixtures, additions and
improvements which are to be removed from the Premises by Tenant hereunder. If
Landlord fails to so notify Tenant at least twenty (20) days prior to such
expiration or earlier termination of this Lease, then Tenant shall remove all
tenant signage, alterations, furniture, furnishings, trade fixtures, additions
and other improvements (other than the Interior Improvements) installed in or
about the Premises by, or on behalf of Tenant. Tenant shall ensure that the
removal of such items and the repair of the Premises will be completed prior to
such expiration or earlier termination of this Lease. If Tenant fails to remove
its personal property and trade fixtures upon the expiration or earlier
termination of this Lease, the same shall be deemed abandoned, and Landlord
shall have the right to store or dispose of the abandoned property. If Landlord
does not elect to store such property, Landlord may consider such property to be
abandoned by Tenant, and Landlord may thereupon dispose of such property in any
manner deemed appropriate by Landlord. Any proceeds realized by Landlord on the
disposal of any such property shall be applied first to offset all expenses of
storage and sale, and then credited against Tenant's outstanding obligations to
Landlord under the Lease. Any balance remaining after satisfaction of all
obligations of Tenant under the Lease shall be delivered to Tenant. Any such
disposition shall not be considered a strict foreclosure or other exercise of
Landlord's rights in respect of the security interest granted under Section 27.
Tenant shall surrender the Premises, at the time of the expiration or earlier
termination of the Lease, in a condition that shall include, but is not limited
to, addressing the following items:
1. Lights: Premises lights will be fully
operational with all bulbs
functioning.
2. Dock Levelers & Roll Up Doors: Must be in good working condition.
3. Dock Seals: Free of tears and broken backboards
repaired.
4. Warehouse Floor (if applicable): Free of stains, clean and free of
debris, and swept with no racking
bolts, floor bolts or other
protrusions left in floor. Patch all
floors and repair cracks with an
epoxy or polymer.
5. Tenant-Installed Equipment & Wiring: Removed and space turned to same
condition when originally leased.
(Remove air lines, junction boxes,
conduit, etc.)
6. Walls: Sheetrock (drywall) damage must be
patched and fire-taped so that there
are no holes in any area of the
Premises.
7. Roof: Any tenant-installed equipment must
be removed and roof penetrations
properly repaired by Landlord's
licensed roofing contractor. Active
leaks must be fixed by notifying
Landlord.
8. Signs: All exterior signs must be removed,
unless Tenant is otherwise notified
by Landlord, as set forth in the
first paragraph if this Exhibit D,
and holes patched and paint
touched-up as necessary. All window
signs inside and outside, unless
Tenant is otherwise notified by
Landlord, as set forth in the first
paragraph if this Exhibit D, must
likewise be removed.
9. Heating & Air Conditioning System: A written report from a licensed
HVAC contractor within the last
three months stating that all
evaporative coolers and heaters (if
any) are operational and safe and
that the HVAC System is also in good
and safe operating condition. This
section does not apply in the event
a maintenance contract is maintained
as required pursuant to the terms of
the Lease.
10. Overall Cleanliness: Clean windows, sanitize bathroom(s),
vacuum carpet, and remove any and
all debris from office and
warehouse. Remove all pallets,
debris and personal belongings from
exterior of Premises.
11. Upon Completion: Contact Landlord's property manager
to coordinate date of turning off
power, turning in keys, and
obtaining final Landlord inspection
of Premises which, in turn, will
facilitate refund of the Security
Deposit.
Tenant's Initials /s/ JTP
---------------
Landlord's Initials /s/ LG
---------------
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