EXHIBIT 10.4.1
LEASE
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THIS AGREEMENT (the "Lease"), made and entered into by and between XXX XXXX
REALTY, INC., a Delaware corporation ("Landlord"), and SUPER VISION
INTERNATIONAL, INC., a Delaware corporation ("Tenant").
WITNESSETH:
1. PREMISES: Landlord, in consideration of the payments to it by Tenant of
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the rents herein contained, which Tenant agrees to promptly pay, and in
consideration of the performance by Tenant of the covenants hereinafter
provided, which Tenant agrees to fully and promptly perform, does hereby agree
to lease to Tenant:
A. That certain office/warehouse building, as outlined on the Site Plan
attached hereto as Exhibit "A" and incorporated herein by reference (the "Leased
Premises").
B. The Leased Premises includes the entire building and comprises a
total of seventy-two thousand five hundred (72,500) +/- square feet, including
approximately twelve thousand (12,000) square feet of space which will be
finished as office space, by Tenant, at Tenant's expense, along with a minimum
of one hundred (100) parking spaces (the "Building"). The legal description for
the real property on which the Building and the Leased premises are located are
more fully described in Exhibit "B" which is attached hereto and made a part
hereof. The Landlord and Tenant have agreed that even though the Leased Premises
comprises seventy-two thousand five hundred (72,500) +/- square feet, that the
Base Rental will be computed during the first twenty-four (24) months on a
reduced number of square feet as provided in Paragraph 3A hereof.
2. TERM: The initial term of this Lease shall commence as provided in
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Paragraph 5 hereof, and shall end (unless sooner terminated) as hereinafter
provided (on midnight on the date fifteen (15) years from the Date of
Commencement as defined in Paragraph 5 hereof (the "Lease Term"), subject to the
Option to Renew as hereinafter set forth. The parties hereto agree to execute,
within thirty (30) days after the Date of Commencement, a supplement to this
Lease in the form attached hereto as Exhibit "C", fixing the definite date of
the commencement and ending of the Lease Term.
3. BASE RENTAL:
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A. As annual rental for the Lease Term for the use and occupancy of the
Leased Premises, Tenant shall pay to Landlord in lawful money of The United
States of America, in advance on the first (1st) day of each and every month
during the Lease Term, the Base Rental as follows:
Month 1 - 6 - $7.10 per square foot
$7.10 x 50,000 square feet payable at the rate of $29,583.33 per month.
Month 7 - 12 - $7.10 per square foot
$7.10 x 55,000 square feet payable at the rate of $32,541.66 per month.
Month 13 - 24 - $7.45 per square foot
$7.45 x 65,000 square feet payable at the rate of $40,354.16 per month.
Month 25 - 36 - $7.82 per square foot
$7.82 x 72,500 square feet payable at the rate of $47,245.83 per month.
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Commencing in the fourth Lease Year, and payable monthly, the Base
Rental will be increased annually by an amount equal to five (5%)
percent of the Base Rental paid in the previous lease year, including
the Base Rental to be paid during the five (5) year option as provided
in Paragraph 36 hereof, should tenant exercise its option to extend the
term of this Lease.
In addition, Tenant shall pay all applicable Florida State sales tax.
B. If this Lease commences on a day other than the first (1st) day of
the month, the first (1st) monthly installment of Base Rent shall be adjusted
and prorated so that Tenant shall only pay rent for the actual number of days in
the first (1st) month of said Term, but for all other months, Tenant shall pay
the full monthly installment of Base Rent on the first (1st) day of each and
every month.
C. Rent shall be mailed or delivered by Tenant to Landlord at such
place as Landlord may designated in writing and rent shall be payable promptly
on the first day of each and every month without prior demand therefor by
Landlord.
D. Tenant hereby agrees with Landlord that Tenant shall pay to Landlord,
(if said Base Rental and other sums due hereunder having been received after the
tenth day of each month), a late charge equal to five (5%) percent of the total
monthly rental due.
4. LANDLORD'S EXPENSES:
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Landlord shall be obligated to pay "Operating Expenses" and "Taxes" for
the Building and the Leased Premises as hereinafter defined.
A. "Operating Expenses" shall mean all expenses, costs and
disbursements, of every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the maintenance and/or
operation of the Building, but shall not include the cost of individual tenant
improvements. By the way of explanation and clarification, but not by way of
limitation, operating Expenses will include the following:
(1) Wages and salaries of all employees engaged in operation and
maintenance of the Building, employer's social security taxes, unemployment
taxes or insurance, and any other taxes which may be levied on such wages and
salaries, the cost of disability and hospitalization insurance, pension or
retirement benefits, and any other fringe benefits for such employees.
(2) All supplies and materials used in the operation and/or
maintenance of the Building.
(3) Cost of all utility charges and assessments, including
electricity, water, sewer and gas used by the Building and not charged directly
to any tenant.
(4) Cost of building management, accounting, legal services,
landscaping, routine cleaning and maintenance of exterior of the Leased
Premises, cleaning and sweeping of the parking lot and sidewalks, building
operating licenses, permits, inspection fees, maintenance of exterior plumbing,
irrigation, and fire alarms, fire sprinkler system.
(5) Cost of casualty and liability insurance applicable to the
Building and Landlord's personal property used in connection therewith.
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B. "Taxes" shall mean all impositions, taxes, assessments (special or
otherwise), and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitute therefor, including all taxes whatsoever attributable in any
manner to the Building, including the land on which the Building is located.
5. LANDLORD'S CONSTRUCTION OBLIGATION: Subject to delays and circumstances
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beyond Lardlord's control, Landlord will undertake to complete construction of
the Building and to complete the installation and construction of improvements
to the Leased Premises, on or before February 1, 1997. Landlord shall construct
the Leased Premises in accordance with and install such improvements to the
Leased Premises as are described in the "Plans and Specifications for
Improvement of Leased Premises" which are attached hereto as Exhibit "D", and
made a part hereof by this reference. The improvements to the Leased Premises
which are shown on the attached Exhibit "D" will be at Landlord's sole cost and
expense.
Tenant interior buildout will be solely at Tenant's expense, with exception
for Tenant interior office overhead lighting and a/c duct work to office and
second floor sprinklers to offices which will be provided to Tenant at no charge
by Landlord.
Should the Tenant request additional improvements to the Leased Premises
other than those as shown on the Plans and Specifications for Improvement of
Leased Premises, and Landlord or Landlord's general contractor installs or
constructs such additional Tenant Improvements for the Tenant in the Leased
Premises, Tenant shall pay the Landlord within ten (10) days of notification by
Landlord thereof, all construction and installation costs, including any
architectural and engineering consulting fees, plus five (5%) percent of the
total of such cost as an administrative charge.
Landlord shall make its best efforts to complete the Leased Premises by
February 1, 1997, but if the Leased Premises are not substantially completed and
available for occupancy by said date, Tenant shall have no claim against
Landlord due to such delay, accepting that the Term of this Lease shall not
commence until the Leased Premises are deemed to be available to Tenant and the
Term shall expire one hundred eighty (180) months thereafter.
The Leased Premises shall be deemed to be available to Tenant, and Base
Rental shall begin to accrue upon the earlier of (i) fifteen (15) days after the
Landlord's General Contractor completes construction of the exterior of the
Building and notifies Tenant that Tenant may commence interior buildout, or (ii)
the date that the Tenant commences occupancy or moves in manufacturing machinery
into the Leased Premises. Actual occupancy of the Leased Premises by Tenant
shall be conclusive evidence that the Leased Premises are in good order and in
satisfactory condition at the time of such occupation.
6. UTILITIES: Tenant shall pay for the cost of all utilities consumed at
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the Leased Premises.
7. INSURANCE: Landlord shall keep the Building of which the Leased Premises
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form a part insured against loss by reason of fire or casualty with extended
coverage in an amount determined by the Landlord. Landlord shall insure the
Building in an amount sufficient to restore the Building to the condition that
existed prior to the occurrence of the fire or other casualty causing the damage
or destruction to the Leased Premises. In the event the cost of premiums on said
fire and extended insurance increases due to the hazardous nature of the use and
occupancy by Tenant of the Leased Premises, then the entire increase in
insurance cost shall
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be paid by Tenant in a lump sum within thirty (30) days following receipt of
invoice from the Landlord.
A. Landlord and Tenant agree that a mutual waiver of subrogation
standard form will be inserted in all fire and extended coverage insurance
policies carried by them with respect to the Leased Premises.
B. The Tenant shall, at all times during the Term of this Lease
purchase and maintain insurance of the kind and in the amounts specified below:
(i) Property coverage for Tenant improvements and Tenant's
personal property, furniture and equipment.
(ii) Xxxxxxx'x Compensation Insurance and Bodily Injury Liability
and Property Damage Insurance adequate to protect Landlord and naming Landlord
as an additional insured in the liability contract, against liability for injury
to or death of person in connection with the use, operation or condition of the
Leased Premises in an amount not less than ONE MILLION DOLLARS ($1,000,000.00)
for injury to or death of one person in any one accident or occurrence, in an
amount of not less than ONE MILLION DOLLARS ($1,000,000.00) for injury to or
death of more than one person in any one accident or occurrence, and against
liability for damage to property in the amount of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) for each accident or occurrence. In no event shall the limits of
such policies be considered as limiting the liability of Tenant under this
lease. All insurance required to be carried by Tenant under the provisions of
this Paragraph shall be in companies, on forms and with loss payable clauses
satisfactory to Landlord and copies of the policies of such insurance or
certificates evidencing such insurance shall be delivered to Landlord by Tenant.
(iii) The insurance policies shall provide and require that the
insurers give each party at least thirty (30) days notice prior to
cancellation.
C. Prior to commencement of the Lease, Certificates of Insurance shall
be delivered to the Landlord as evidence of the compliance with the terms and
provisions herein contained.
8. USE OF PREMISES: Tenant shall use and occupy the Leased Premises only
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for use as a general business office and for warehouse purposes and for no other
purpose without Landlord's prior written consent.
9. INTERRUPTION OF SERVICE: Landlord does not warrant that any services
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to be provided by Landlord will be free from interruption due to causes beyond
Landlord's reasonable control. In the event of temporary interruption of
services or unavoidable delay in the making of repairs, the same shall not be
deemed an eviction or disturbance of Tenant's use and possession of the Leased
Premises nor render Landlord liable to Tenant for damage by abatement of rent or
otherwise, nor shall the same relive Tenant from performance of Tenant's
obligations under this lease.
10. WAIVER OF CLAIM: Tenant waives and releases all claims against
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Landlord, its agents, employees, and servants, in respect of, and they shall not
be liable for, injury to persons or damage to property sustained by Tenant or
to the Leased Premises resulting directly, or indirectly, from any existing or
future condition, defect, matter or thing in the Leased Premises, or the
Building or any part of it, or from equipment or appurtenance therein, or from
any accident, or from any occurrence act, negligence or omission of any Tenant
or occupant of the Building, or of any other person; but nothing in this
Paragraph 10 shall be deemed to relieve Landlord from liability for damages or
injuries to person or property caused by or resulting from the gross negligence
of Landlord, its agents,
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servants or employees. Tenant shall, under no circumstances, be held liable for
the negligent or intentional acts of Landlord, its agents, servants or
employees. This Paragraph 10 shall apply also to damage caused as aforesaid or
by flooding, sprinkling devices, air conditioning apparatus, water, frost,
steam, excessive heat or cold, falling objects, broken glass, sewage, gas,
odors or noise, or the bursting or leaking of pipes or plumbing fixtures and
shall apply equally whether any such damage results from the act or omission of
other Tenants, occupants or of any other persons, and whether such damage be
caused or result from any thing or circumstance above mentioned, or any other
thing or circumstance, whether of a like or wholly different nature. If any such
damage to the Leased Premises or to the Building or any equipment or
appurtenance therein, or to any Tenant thereof, results from any act or omission
or negligence of Tenant, its agents, employees, or invitees, Landlord, at
Landlord's option, may repair such damage and Tenant shall, within ten (10) days
following demand by Landlord, reimburse Landlord forthwith for all cost of such
repairs and damages both to the Building and to the tenants or occupants
thereof, in excess of the amount, if any, paid to Landlord under insurance
covering such damages. All property in the Building or in the Leased Premises
belonging to Tenant, its agents, employees or invitees, or to any occupant of
the Leased Premises, shall be there at the risk of Tenant or other person only,
and Landlord shall not be liable for damage thereto or theft, misappropriation,
or loss thereof. Tenant agrees to hold Landlord harmless and to indemnify it
against claims and liability for injuries to all persons and for the damage to,
due to any act or omission of Tenant, its agent, employees, guests, customers,
clients and invitees.
11. CARE OF PREMISES: Tenant will, at Tenant's own expense, keep the
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Building and Leased Premises in good repair and tenantable condition during the
Lease Term. Tenant will, at its own cost and expense pay for all janitorial
cleaning, pest control, light bulb replacement and will replace at its own
expense any and all broken glass caused by Tenant in or about said Leased
Premises.
During the term of this Lease, Tenant will make no alterations, additions
or improvements in or to the Leased Premises without the written consent of
Landlord, which consent shall not be unreasonably withheld, but may be
predicated upon but not limited to Tenant's use of contractors who reasonably
are acceptable to Landlord. Any alterations, additions or improvements made by
Tenant will become the property of Landlord or at Landlord's option all or any
part of said alterations, additions or improvements shall be removed by Tenant
at the expiration of the Lease and the Leased Premises restored by Tenant to the
condition that existed prior to the alterations, additions or improvements being
made.
12. COMPLIANCE WITH LAWS AND REGULATIONS: Tenant shall comply with all
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Federal, State, County and City laws, ordinances, rules and regulations
affecting or respecting the use or occupancy of the Leased Premises by the
Tenant or the business at any time thereon transacted by the Tenant, and Tenant
shall comply with all reasonable rules and regulations which may be hereafter
adopted by Landlord for the protection, welfare and orderly management of the
Building and its Tenants or occupants.
13. HOLDING OVER: Upon expiration of this Lease, Tenant's continued
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possession of the Leased Premises shall be deemed a month-to-month tenancy
terminable by Landlord or Tenant upon fifteen (15) days' notice, but the rent
due and payable during such tenancy shall be at twice the rate due for the last
month of the unexpired term.
14. SIGNS: Tenant shall not install or locate signs in the windows and
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doors of the Leased Premises or any other part of the Building or grounds,
except the Building identification sign, and except those certain window and
door signs as required by Tenant
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for specific advertising purposes, subject to Landlord's prior written approval,
which approval, which approval shall not be unreasonably withheld.
15. WARRANTY OF QUIET ENJOYMENT: Tenant, upon paying the rents and keeping
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and performing the covenants of this Lease to be performed by Tenant, shall
peacefully and quietly hold, occupy, and enjoy the Leased Premises during said
term or any renewal thereof without any let, hindrance or molestation by
Landlord or any persons lawfully claiming under Landlord.
16. ASSIGNMENT AND SUBLETTING: Tenant shall not assign this Lease nor
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sublet all or any part of the Leased Premises without first securing Landlord's
written consent. If Landlord does consent to an assignment or subletting, the
assignee and/or subtenant shall first assume in writing all of the obligations
of Tenant under this Lease and Tenant shall, for the full term of this Lease,
continue to be jointly and severally liable with such assignee or subtenant for
the payment of rents and the performance of all obligations required of Tenant
under this Lease. The Landlord shall not unreasonably withhold its aforesaid
consent, however, the Tenant hereby acknowledges that the use of which the
Leased Premises are put and the compatibility of any occupant of the Leased
Premises with other tenants, and the ability to pay rent when due are of prime
importance and significance to the Landlord in the operation and maintenance of
the Building in which the Leased Premises are located.
17. FIRE OR OTHER CASUALTY: In the event the Leased Premises shall be
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destroyed or so damaged or injured by fire or other casualty during the Term of
this Lease, whereby the same shall be rendered untenantable, in whole or in
part, then Landlord shall have the right to render such premises tenantable by
repairs within one hundred eighty (180) days therefrom and this Lease shall not
terminate. If the Leased Premises are not rendered tenantable within said time,
it shall be optional with either party hereto to cancel this Lease, and in the
event of such cancellation, the rent shall be paid only to the date of such fire
or casualty. The cancellation herein mentioned shall be evidenced in writing.
During any time that the Leased Premises are untenantable due to causes set
forth in this Paragraph, the rent or a just and fair proportion thereof shall
xxxxx.
18. EMINENT DOMAIN: If the whole or any part of the Leased Premises shall
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be taken by any public authority under the power of eminent domain, or if so
much of the Building or grounds shall be taken by any such authority under the
power of eminent domain so that the Tenant cannot continue to operate its
business in the Leased Premises, then the Term of this Lease shall cease as of
the day possession is taken by such public authority and the rent shall be paid
up to that day with proportionate refund by Landlord of any such rent as may
have been paid in advance or deposited as security. The amount awarded for any
taking under the power of eminent domain shall belong to and be the property of
the Landlord whether such amount be awarded as compensation for diminution in
value of the leasehold or the fee of the Leased Premises or as damage to the
residue.
Tenant shall be entitled to receive that portion of the compensation
attributable to the unexpired term of this Lease and any additional compensation
attributable to the improvements constructed on the Leased Premises by the
Tenant. Tenant shall be entitled to claim independently against the condemning
authority for any damages expressly those applicable to Tenant's business, as
the same may be permitted by law.
19. WAIVER: No waiver of any of the covenants and agreements here contained
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or of any breach thereof shall be taken to constitute a waiver of any other
subsequent breach of such covenants and agreements or to justify or authorize
the
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non-observance at any other time of the same or of any other covenants and
agreements hereof.
20. NOTICES: All notices required under this Lease to be given to Tenant
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may be given to it at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or as
Tenant may designate in writing. Any such notice to be given to Landlord under
this lease shall be given to it at 0000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000,
or at such other place as Landlord may designate in writing. All notices shall
be in writing and shall be sent by certified mail, postage prepaid or by
personal delivery.
21. SUBORDINATION: This Lease shall be secondary, junior and inferior, at
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all times, to the lien of any mortgage or mortgages, or other method of
financing or refinancing and to all renewals, modifications, replacements,
consolidations and extensions thereof, and Tenant shall execute and deliver all
documents requested by any mortgagee or security holder to effect such
subordination. Landlord shall have the right to make such reasonable changes or
modifications to the Lease, with the exception of the Base Rental and the length
of the Term of the Lease, as are reasonably requested by any mortgagee to
facilitate the mortgaging of the Building.
22. FIXTURES AND ALTERATIONS: Tenant shall not, without Landlord's prior
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written consent, change, alter or make additions to the Leased Premises, nor
attach or affix any article hereto, nor permit any annoying sound device,
overload any floor, or deface the Leased Premises. Any alterations, additions or
improvements made or attached by Tenant upon the Leased Premises shall, on the
expiration or termination of this Lease, if requested by Landlord, be promptly
removed at Tenant's expense and the Leased Premises restored by Tenant at its
expense to its original condition as it existed at the time Tenant took
occupancy, ordinary wear and tear excepted. Any such alteration, addition and/or
improvement not requested to be removed shall remain on the Leased Premises and
shall become and remain the property of Landlord. All Tenant's fixtures,
installations and personal property not removed from the Leased Premises upon
expiration or termination, and not required by Landlord to have been removed as
provided in this Paragraph 22, shall be conclusively presumed to have been
abandoned by Tenant and title thereto shall pass to Landlord under this Lease as
by a xxxx of sale.
23. REDELIVERY OF PREMISES: Tenant shall, on the expiration or earlier
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termination of this Lease, deliver up the Leased Premises in as good order and
condition as it now is or may be put by Landlord, reasonable use and ordinary
wear and tear thereof and damage by fire or other unavoidable casualty,
condemnation or appropriation excepted, and Tenant shall promptly surrender all
keys to the Leased Premises to Landlord.
24. EXAMINING AND EXHIBITING PREMISES: Landlord or its duly authorized
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agent shall have the right to enter the Leased Premises at all reasonable times
to examine the condition of the same and to make repairs to the Leased Premises
or the Building. Within six (6) months prior to the date of the expiration of
the Lease, Landlord or its authorized agent shall have the right to enter the
Leased Premises at all reasonable times for the purposes of exhibiting the same
to prospective tenants.
25. INDEMNIFICATION AND HOLD HARMLESS: Landlord and Tenant will indemnify
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and save harmless the other and its agents, servants and employees from and
against any and all liability, claims, demands, damages, expenses, suits,
proceedings, actions and causes of actions of any kind, including attorney's
fees, direct and or appeal, for injury (including deaths) to persons or damage
to property when any such injury or damage shall be caused or result in whole or
in part by any act, sole negligence or fault by such
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party, its agents, servants or employees and any and all visitors to the Leased
Premises. Please see ADDENDUM 25A.
ADDENDUM 25A
Landlord hereby indemnifies and agrees to hold harmless tenant in the
event any governmental agency, authority or other such entity having
jurisdiction shall identify and make claim against the Tenant for any site
contamination prior to tenant commencing interior buildout or taking
possession of the premises. This includes ground water contamination, soil
contamination or hazardous wastes occurring prior to tenant buildout or
occupancy. Landlord is furnishing to tenant herewith a copy of the Phase II
Environmental Testing confirming that there is no known contaminants found on
the property as of the date of testing. Tenant agrees to indemnify, hold
harmless Landlord and cover all liability and cleanup expenses for any
governmental agency, authority or other such entity having jurisdiction shall
identify and make any claim against Landlord for any site contamination that
shall occur after Tenant commences buildout or occupancy. This includes ground
water contamination, soil contamination or hazardous wastes occurring after
tenant buildout or occupancy commences.
/s/ Xxxxx X. Kingstone /s/ Xxxx X. Xxxxxxx
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Xxx Xxxx Realty, Inc. Super Vision International, Inc.
26. CLEANLINESS OF PREMISES: Tenant will keep the interior of the Leased
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Premises clean and will not store any refuse, trash or hazardous materials in
the Leased Premises or in or around the Building of which the Leased Premises
form a part, other than in the refuse containers provided by Landlord.
27. OTHER PROVISIONS: Except as hereinafter provided, Landlord shall have
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the following rights exercisable without notice and without liability to Tenant:
A. To have pass keys to the Leased Premises, subject to Tenant's
security requirements.
B. To approve the weight, size and location of safes, computers and
other heavy articles or equipment in and about the Leased Premises.
C. Upon reasonable notice, at any time or times to make, at Landlord's
own expense, repairs, alterations, additions and improvements, structural or
otherwise, in or to the Leased Premises, the Building or any part thereof, and
to perform any acts related to the safety, protection and preservation thereof,
and during such operations to take into and through the Leased Premises or any
part of the Building all material and equipment required and to close or
temporarily suspend operation of entrances, doors, corridors or other
facilities, provided that Landlord shall cause as little inconvenience or
annoyance to Tenant as is reasonably necessary in the circumstances, and shall
not do any act which permanently reduces the size of the Leased Premises.
Landlord may do any such work during ordinary business hours. If Tenant however,
requests that such work be done during hours other than ordinary business hours,
then Tenant shall reimburse Landlord for overtime and other expenses incurred as
a result of such work.
D. To assess and xxxx Tenant separately for any excess trash and
garbage collected at the Leased Premises during the Lease Term.
28. DEFAULT BY TENANT: It shall be an event of default and shall be
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considered a breach of this Lease by Tenant if one or any of the following
should occur:
A. If Tenant shall default in the payment of the Base Rent or other
payment when due as herein provided, and such default shall continue for a
period of seven (7) days or more; or if default shall be made in any of the
other covenants, agreements, conditions or undertakings herein required to be
kept, observed and performed by Tenant, and such other default shall continue
for thirty (30) days after notice thereof in writing to Tenant; or
B. Tenant shall file a petition in voluntary or reorganization
bankruptcy or under any applicable Chapters of the Federal Bankruptcy Act or any
similar law, state or federal, whether now or hereafter existing, or an answer
admitting insolvency or inability to pay its debts, or fail to obtain a vacation
or stay of involuntary bankruptcy proceedings within sixty (60) days as
hereinafter provided; or
C. Tenant shall be adjudicated a bankrupt, or a trustee or receiver
shall be appointed for Tenant or for all or the major part of any of their
property in any involuntary proceedings; or any court shall have taken
jurisdiction of the major part of the property of Tenant in any involuntary
proceedings for reorganization, dissolution, liquidation or winding up of
Tenant, and such jurisdiction relinquished or vacated or stayed on appeal or
otherwise within sixty (60) days; or
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D. Tenant shall make an assignment for the benefit of its creditors; or
E. Tenant shall vacate or abandon the Leased Premises for a period of
thirty (30) days.
29. LANDLORD'S REMEDIES: Upon default by Tenant, Landlord, at its
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discretion, may then exercise any one or more of the following options:
A. Terminate this Lease, remove all persons and property from the
Leased Premises by summary proceedings or otherwise, and take possession of the
Leased Premises, all without prejudice to Landlord's right to collect from
Tenant any Base Rental, or other sum which became payable to Landlord prior to
such termination, together with all damages suffered by Landlord resulting from
Tenant's default hereunder;
B. Re-enter and take possession of the Leased Premises by any lawful
means, make alterations and repairs to the Leased Premises, and relet or attempt
to relet the Leased Premises, on behalf of Tenant and for Tenant's account, at
such rent and under such terms and conditions as Landlord may deem best under
the circumstances for the purpose of, in good faith, reducing Tenant's liability
hereunder, and Landlord shall not be deemed to have thereby accepted a surrender
of the Leased Premises, and Tenant shall remain liable for all damages suffered
by Landlord because of Tenant's default under this Lease; it being understood
that at any time during such repossession or reletting, Landlord may, by
delivering written notice to Tenant, elect to exercise its option to accept a
surrender of the Leased Premises, terminate this Lease, and retake possession of
the Leased Premises on behalf of Landlord;
C. Landlord may declare the entire remaining unpaid rent and other
charges due hereunder (discounted to the net present value computed with a ten
(10%) percent discount rate) to be immediately due and payable, and take such
action available to Landlord to recover and collect same and seek to mitigate
Tenant's damages by reletting as described in Paragraph B above; or
D. Exercise any and all rights and privileges and pursue any remedy
that Landlord may have under the laws of the State of Florida. No default
whatsoever of this Lease shall be deemed waived or any term, condition or
covenant herein varied, nor shall the Landlord's failure or delay to take
advantage of any default constitute a waiver of the Landlord's right thereby nor
any subsequent or continued breach of any requirement of this Lease. All
remedies provided for in this Lease shall be in addition to, and not in
substitution for, any remedies otherwise available to Landlord, at law or in
equity, including, but without limitation, any and all rights of Landlord to a
lien for Rent upon Tenant's furniture, fixtures, equipment and Leasehold
Improvements.
30. LIENS:
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A. Tenant agrees that Tenant, after the date of initial occupancy, will
pay all liens of contractors, subcontractors, mechanics, laborers, materialmen
and other liens of like character, and will indemnify Landlord against all legal
costs and charges arising by virtue of Tenant repairing, altering, adding to, or
improving the Premises, bond premiums for release of liens, including reasonable
attorneys fees reasonably incurred (whether litigation is necessary or not) and
discharging the Leased Premises or any part thereof from any liens, judgments,
or encumbrances caused or suffered by Tenant. It is understood and agreed
between the parties hereto that the costs and charges above referred to shall be
considered as additional rent. The foregoing shall not be deemed to authorize
any repairs, alterations, additions or improvements by Tenant.
9
B. The Tenant herein shall not have any authority to create any liens
for labor or material on the Landlord's interest in the Leased Premises or the
Building, and all persons contracting with the Tenant for the erection,
installation, alteration, or repair of improvements on or to the Leased
Premises, and all materialmen, contractors, mechanics, and laborers are hereby
charged with notice that they must look to the Tenant to secure the payment of
any xxxx for work done or material furnished during the rental period created by
this Lease.
31. ESTOPPEL CERTIFICATE: Tenant and Landlord, upon request, one from the
--------------------
other, shall give or exchange, one with the other, estoppel certificates which
shall confirm to others that the Lease is in full force and effect, that neither
party is in default and/or such other information regarding the Lease as may be
reasonably appropriate and factual, upon which any third parties to whom such
estoppel certificates are provided may rely. If requested by the holder of any
mortgage on the Building, Tenant agrees to give written notice to such lender of
any default by Landlord under the terms of this Lease together with a reasonable
period of time to cure such default.
32. VALIDITY: It is understood and agreed that in the event any provision
--------
of this Lease shall be adjudged, decreed, held or ruled to be invalid, such
portion shall be deemed severable, and it shall not invalidate or impair the
agreement as a whole or any other provisions of this Lease.
33. SUCCESSORS AND ASSIGNS: This Lease and all provisions, covenants and
----------------------
conditions thereof shall be binding upon and inure to the benefit of the heirs,
legal representatives, successors, and assigns of the parties hereto, except
that no person, firm, corporation nor court officer holding under or through
Tenant in violation of any of the terms, provisions or conditions of this Lease,
shall have any right, interest or equity in or to this Lease, the terms of this
Lease or the Leased Premises covered by this Lease.
34. DEFAULT BY LANDLORD: In the event Landlord shall default hereunder,
-------------------
Tenant shall not be authorized to withhold rent or terminate this Lease unless
otherwise authorized herein, or unless Landlord has been adjudicated in default
by a court of competent jurisdiction, and Tenant has obtained a final,
non-appealable judgment against Landlord, in which event Tenant shall be
authorized to withhold rent and offset its rent payments against the amount due
and owing Tenant by Landlord pursuant to the judgment. Tenants remedies
hereunder shall be limited to the institution of suit against Landlord for any
damages resulting from such default.
35. ENTIRE AGREEMENT: This Lease and the Exhibits attached hereto
----------------
constitute the entire agreement between the parties and supersedes all prior
agreements. No waiver, modifications, additions or addenda to this Lease shall
be valid unless in writing and signed by both the Landlord and the Tenant. The
following Exhibits listed hereafter shall be considered a part of this Lease.
EXHIBIT "A" SITE PLAN
EXHIBIT "B" LEGAL DESCRIPTION
EXHIBIT "C" SUPPLEMENT TO LEASE
EXHIBIT "D" PLANS AND SPECIFICATIONS FOR IMPROVEMENT OF
LEASED PREMISES
36. RENEWAL: If not in default, Tenant may, by giving Landlord twelve (12)
-------
months advance written notice, prior to the expiration of the then applicable
Term of this Lease, request that the Term of this Lease be extended for one (1)
additional period of five (5) years. The Base Rental for the Renewal Term shall
be as provided in Paragraph 3 hereof.
10
37. MEMORANDUM OF LEASE: Simultaneous with the commencement of the term of
-------------------
this Lease, either Landlord or Tenant shall have the right to record among the
public records of Orange County, Florida, a memorandum of this Lease in lieu of
recording this lease.
38. RADON GAS: The following notice is incorporated into this Lease
---------
pursuant to Florida Statutes, Section 404.056(8), to-wit:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risk to person who are exposed to it over time. Levels of radon
that exceed Federal and State guidelines have been found in buildings
in Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit."
39. HAZARDOUS SUBSTANCES: Tenant shall not cause or permit any hazardous or
--------------------
toxic substances, materials or waste ("Hazardous Substances") to be used,
generated, stored or disposed of in, on or under, or transported to or from the
Leased Premises or the Building ("Hazardous Materials Activities") unless Tenant
first obtains the written consent of Landlord. Both parties shall at all times
and in all respects comply with all local, state, and federal laws, ordinances,
regulations and orders relating to Hazardous Substances.
Each party shall indemnify, defend (by counsel acceptable to the other),
protect, and hold the other harmless, from and against any and all claims,
liabilities, penalties, fines, judgments, forfeitures, losses, costs (including
clean-up) or expenses (including attorney's fees, consultant's fees and expert's
fees) for the death of or injury to any person or damage to any property
whatsoever, arising from or caused in whole or in part, directly or indirectly,
by indemnitors (a) causing or permitting the presence in, on, under, or about
the Leased Premises or the Building of any Hazardous Substances; (b) causing or
permitting any discharge or release in or from the Leased Premises or the
Building of any Hazardous Substances; (c) use, storage, transportation,
generation, disposal, release or discharge of Hazardous Substances to, in, on,
under, about or from the Leased Premises or the Building; and (d) failure to
comply with any Hazardous Substances law. The obligations under this section
shall survive the expiration or earlier termination of the term of this Lease.
40. BROKER'S COMMISSION: Landlord and Tenant acknowledge that neither party
-------------------
has employed a broker or finder in connection with this transaction. Landlord
and Tenant agree to indemnify, defend and hold the other harmless from and
against any commissions or fees, or claims for commissions or fees, as a result
of any contract or agreement each has or may have with any broker or finder.
41. PARKING: Landlord shall provide non-exclusive parking for the benefit
-------
of Tenant, its employees, customers and visitors and for the benefit of other
tenants at the Building, in the areas shown on the Site Plan attached hereto as
Exhibit "A".
42. TRANSFER BY LANDLORD: If the interest of Landlord under this Lease
--------------------
shall be transferred, whether voluntarily or by reason of foreclosure, voluntary
sale or other proceedings for the enforcement of any mortgage on the Leased
Premises, Tenant shall be bound to such transferee (herein sometimes called the
"Transferee"), under the terms, covenants and conditions of this Lease, for the
balance of the Term hereof remaining, and any
11
extensions or renewal hereof which may be affected in accordance with the terms
and provisions hereof, to the same force and effect as if the Transferee were
the Landlord under this Lease, and Tenant does hereby agree to attorn to the
Transferee, including the Mortgagee under any such mortgage, if it be the
Transferee as its Landlord, said attornment to be effective and self-operative
without the execution of any further instruments upon the Transferee succeeding
to the interest of Landlord under this Lease. The respective rights and
obligations of Tenant and the Transferee, upon such attornment, to the extent of
the then remaining balance of the Term of this Lease, and any extensions and
renewals, shall be and are the same as those set forth herein.
43. FORCE MAJEURE: Landlord shall be excused for the periods of any delay
-------------
in performance of any obligation under this Lease, when the delay is a result of
any cause or causes beyond its control, which includes, but is not limited to,
all labor disputes, governmental regulations or controls, fire or other
casualty, inability to obtain any material, services or financing.
44. EFFECTIVE DATE: This lease shall become effective upon execution and
--------------
delivery by both Landlord and Tenant.
45. ATTORNEYS' FEES: In the event either Party shall find it necessary to
---------------
engage attorneys to enforce its right or the other Party's performance under
this Agreement, the non-prevailing party agrees to be responsible for the
prevailing party's expenses thereof, including but not limited to court costs
and reasonable attorneys' fees, whether or not litigation is commenced.
46. MISCELLANEOUS: Except as otherwise expressly set forth in this Lease,
-------------
the covenants, conditions, agreements, terms and provisions herein contained
shall be binding upon, and shall inure to the benefit of the parties hereto and
their respective personal representatives, successors and assigns. No rights,
however, shall inure to the benefit of any assignee or sub-lessee of Tenant
unless the assignment or sub-lease to such assignee or sub-lessee has been
approved by Landlord in writing as provided herein. It is understood and agreed
between the parties hereto that time is of the essence of all the terms,
provisions, covenants and conditions of this Lease. This Lease shall be
construed under the laws of the State of Florida.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this Lease
as of the day and year set forth below.
Signed, sealed and delivered
in the presence of: LANDLORD:
XXX XXXX REALTY, INC. a
Delaware corporation
/s/ Xxxx Xxxxxx BY: /s/ Xxxxx X. Kingstone
---------------------------- -------------------------------
Printed Name: Xxxx Xxxxxx XXXXX KINGSTONE, President
/s/ Xxxxxxx Xxxxxx Date Executed: 9/27/96
---------------------------- --------------------
Printed Name: Xxxxxxx Xxxxxx
12
TENANT:
SUPER VISION INTERNATIONAL
INC., A Delaware corporation
/s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
---------------------------- -------------------------------
Printed Name: Xxxx Xxxxxx Printed Name: Xxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxx Date Executed: 9/27/96
---------------------------- --------------------
Printed Name: Xxxxxxx Xxxxxx
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 27 day of
September, 1996, by XXXXX KINGSTONE, President of XXX XXXX REALTY, INC., a
Delaware corporation.
XXXXXXXX X XXXX
[logo] My Commission CC395253 /s/ Xxxxxxxx X Xxxx
Expires Jul. 25, 1996 -------------------
Bonded by HAI Notary Public
800-422-1555
(Print, type or stamp commissioned name of Notary Public)
Personally Known X OR Produced Identification
--- -------
Type of Identification Produced N/A
---------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 27 day of
September, 1996, by Xxxx X. Xxxxxxx, as COO of SUPER VISION INTERNATIONAL, INC.,
a Delaware corporation.
XXXXXXXX X XXXX
[logo] My Commission CC395253 /s/ Xxxxxxxx X Xxxx
Expires Jul. 25, 1996 -------------------
Bonded by HAI Notary Public
800-422-1555
(Print, type or stamp commissioned name of Notary Public)
Personally Known X OR Produced Identification
--- -------
Type of Identification Produced N/A
---------------------------
13
EXHIBIT "A"
SITE PLAN
[MAP]
EXHIBIT "B"
-----------
LEGAL DESCRIPTION
Block "A", ORLANDO CENTRAL PARK NUMBER THIRTY EIGHT, as recorded in Plat Book 6,
Page 60, Public Records of Orange County, Florida; TOGETHER WITH: the following
described A.T. & T. Easement Area, to wit: From the Northwest corner of the
Northeast one-quarter of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 29 East, run
North 89 degrees 48 minutes 17 seconds East 204.51 feet along the North boundary
of the said Northeast one-quarter; run thence South 00 degrees 11 minutes 43
seconds East 100 feet to the point of beginning of the easement area herein
described, said point being the point of intersection of the southerly right-of-
way line of the roadway now known and called Sand Lake Road (sometimes referred
to as State Road 528A) with the Westerly right-of-way line of the roadway now
known and called Presidents Drive as shown on the Plat of ORLANDO CENTRAL PARK
NUMBER THIRTY-TWO as recorded in Plat Book 5, Page 59, of the Public Records of
Orange County, Florida: from said point of beginning continue South 00 degrees
11 minutes 43 seconds East 1135.00 feet along the said Westerly right-of-way
line of Presidents Drive; run thence South 89 degrees 48 minutes 17 seconds West
10.00 feet; run thence North 00 degrees 11 minutes 43 seconds West 1135.00 feet
to the aforesaid Southerly right-of-way line of Sand Lake Road; run thence North
89 degrees 48 minutes 17 seconds East 10.00 feet along said Southerly right-of-
way line to the point of beginning.
LESS THE FOLLOWING:
A portion of Block A, ORLANDO CENTRAL PARK NUMBER THIRTY EIGHT, as recorded in
Plat Book 6, Page 60 of the Public Records of Orange County, Florida.
Being more particularly described as follows:
Commence at the Northwest corner of the Northeast 1/4 of Section 33, Township 23
South, Range 29 East, thence N 89 degrees 48' 17" E, along the Northerly line of
the Northeast 1/4 of said Section 33, and the centerline of Sand Lake Road, a
distance of 204.51 feet; thence departing the Northerly line of the Northeast
1/4 of said Section 33, and the centerline of Sand Lake Road, S 00 degrees 11'
43" E, a distance of 100.00 feet to the Southerly right of way line of Sand Lake
Road; thence departing the said Southerly right of way line, continue S 00
degrees 11' 43" E along the Westerly right of way line of Presidents Drive, a
distance of 1135.00 feet to the point of beginning; thence departing the said
Westerly right of way line S 89 degrees 48'17" W, a distance of 140.00 feet; the
S 00 degrees 11'43" E, a distance of 385.05 feet; thence S 59 degrees 00'54" W,
a distance of 80.00 feet to the Northeasterly right of way line of Florida's
turnpike; thence S 30 degrees 59'06" E, along the said Northeasterly right of
way line, a distance of 155.95 feet; thence departing the said Northeasterly
right of way line, N 89 degrees 48'17" E a distance of 153.90 feet then N 00
degrees 11'43" W, a distance of 433.61 feet; thence N 50 degrees 36'38" E, a
distance of 20.00 feet to the Westerly right of way line of Presidents Drive and
being a point on a circular curve concave Northeasterly, having a radius of
180.00 feet, and a radial bearing of N 50 degrees 36'38"E, through a central
angle of 39 degrees 11'39"; thence Northweaterly along the arc of said curve,
and the said Westerly right of way line, a distance of 123.13 feet to point of
beginning.
EXHIBIT "C"
-----------
DECLARATION BY LANDLORD AND TENANT
AS TO DATE OF DELIVERY AND ACCEPTANCE OF
POSSESSION OF LEASED PREMISES
This Declaration is hereby attached to and made a part of the Lease dated
_____________, 1996, entered into by and between _________________________, as
Landlord, and ________________________, as Tenant.
Landlord and Tenant do hereby declare that possession of the Leased Premises was
accepted by Tenant on the ____ day of ___________, 1996; the Leased Premises
required to be constructed and finished by the Landlord in accordance with the
Lease have been satisfactorily completed by Landlord and accepted by Tenant; the
Lease is now in full force and effect; and as of the date hereof, Landlord has
fulfilled all of its obligations under the Lease. The Lease Commencement Date is
hereby established as ______________ 1997, and the term of this Lease shall
expire on _______________, ____.
ATTEST: LANDLORD:
By:
--------------------------- ---------------------------
Title:
--------------------------- -----------------------
ATTEST: LANDLORD:
By:
--------------------------- ---------------------------
Title:
--------------------------- -----------------------
EXHIBIT "D"
-----------
PLANS AND SPECIFICATIONS FOR
IMPROVEMENTS OF LEASED PREMISES
1. Landlord Buildout Provisions. Landlord will be responsible for all expenses
----------------------------
related to site development, installation of the concrete slab, all
interior plumbing within the slab, including installation of services for
Tenant cabling and extrusion machinery, shower facilities, bath and
cafeteria facilities, extending power service to the Building, construction
of exterior walls, roofing, steel trusses, air conditioning system (not
internal duct work in offices) and ceiling sprinkler system outside of all
offices (including all open manufacturing areas) plus sprinklers on second
floor offices. The walls will be constructed of 100% concrete tilt wall
construction, providing for a 30' ceiling height with floor truss mounts
located on the 15' level of all perimeter walls. The floor truss mounts will
allow Tenant to, at its cost and expense, increase the size of the Demised
Premises by building out a second floor as and when needed by Tenant,
subject to Landlord's prior written approval. Landlord will install and
maintain external trees and landscaping around the exterior of the
Building. Landlord will also maintain and install a parking lot having a
minimum of 100 parking spaces adjacent to the Building. In addition,
Landlord has agreed, at its expense, to install and maintain for exterior
common area use, the following:
A. Concrete picnic tables and benches located on grass areas surrounding
perimeter of the Property.
B. Beach sand volleyball court to be located at the rear of the Building
facing the lake.
C. Basketball courts located on the perimeter of the current parking area.
Courts will be located to minimize any adverse effect on the car parking
area.
D. A runner's stretching area and "PAR" course will be installed at the
Property.
2. Tenant Buildout Provisions. Tenant will pay for all interior buildout costs
--------------------------
at the Demised Premises, including, but not limited to, all internal power
service necessary or required to operate Tenant's machinery and equipment,
air compressor units, piping, lighting in all factory areas, bath and shower
facilities, all office, R&D, and showroom facilities. Tenant will install a
fire, smoke and security alarm system with automatic notification to a
monitoring station, as selected by Tenant. All costs and expenses incurred
in such security alarm system shall be paid for by Tenant. The building will
be 100% sprinkled with interior sprinklers in all office drop ceilings at
the Leased Premises. Tenant shall pay for all drop ceilings throughout
premises and plumbing, piping and sprinkling to and within first floor
offices. Landlord will be responsible for sprinklers on second floor
offices.
XXX XXXX REALTY, INC. 0000 Xxxxxxxx Xxxxx Xxxxxxx, XX 00000 407-876-2626
Wednesday, July 29, 1998
Xxxx P, Xxxxxxx
Super Vision International, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxx, XX 00000
Dear Xxxx:
This letter of agreement is to confirm that, for consideration provided, from
years 5 through 15 of the lease between Super Vision International, Inc. and Xxx
Xxxx Realty, Inc. Super Vision will agree to pay any increase in property taxes
that may occur during that period that exceed 2.5% in any one year. This amount
will be paid in full upon presentation of the property tax xxxx showing an
increase of excess of 2.5% over the prior year during the last eleven years of
the lease. Please sign below to confirm your agreement as an amendment to our
lease.
Sincerely,
/s/ Xxxxx Kingstone
----------------------
Xxxxx Kingstone
Xxx Xxxx Realty, Inc.
APPROVED AND ACCEPTED:
/s/ Xxxx Xxxxxxx
----------------------
Xxxx Xxxxxxx
President, Super Vision International, Inc.
