Exhibit 10.9
LEASE AGREEMENT
THIS LEASE, is executed at Hillsborough County, Florida this thirteenth day
of August 1996, by and between Xxxxxxx X. and Xxxx X. Xxxxxxx (the
"Landlord") and Xxx Xxxxxx, C.E.O. of Bright Technologies, Inc. (the
"Tenant").
1. DESCRIPTION OF PREMISES
1.01 Landlord hereby leases to Tenant and Tenant leases from
Landlord on the terms, convenants and conditions set forth herein, those
premises shown on Exhibit "A" attached hereto, (the "Leased Premises"),
located in the building, the location of which is indicated on Exhibit "A"
attached hereto (the "Building"). The Leased Premises are located at: 0000
Xxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx.
2. TERM
2.01 The term of this Lease shall commence on October 1, 1996, (the
"Commencement Date") and shall end at midnight on the date which is three (3)
full years from the Commencement Date or, if the Commencement Date is not the
first day of a calendar month, from the first day of the calendar month next
succeeding the Commencement Date. As used herein the term "Lease Year" shall
mean each year of the term commencing on the Commencement Date and ending at
the expiration of twelve calendar months thereafter.
3. RENT
During the full term of this Lease, Tenant shall pay Landlord at its
place of business set forth herein or at such place as Landlord may
designate, without notice, demand, reduction, setoff or any defense, a total
rental (the "Annual Rent") consisting of the sum total of the following:
3.01 MINIMUM ANNUAL RENT
Tenant shall pay a minimum annual rent (the "Minimum Annual Rent") of
Nineteen Thousand Four Hundred Forty Dollars and No/100 ($19,440.00). The
foregoing shall be payable in equal monthly installments of One Thousand Six
Hundred Twenty Dollars and No/100 ($1,620.00) plus applicable taxes in
advance on or before the first day of each month. If the Commencement Date
is a date other than the first day of a calendar month, the first monthly
installment of Minimum Annual Rental shall be prorated daily from such date
to the first day of the next calendar month and payable in advance.
4. SALES TAX
4.01 Tenant agrees to pay Landlord any sales or use tax or excise
tax imposed or levied against the rent of any other charge or payment
required hereunder to be made by virtue of the renting of the premises which
has been imposed or levied by any governmental body having jurisdiction
thereof. The current State of Florida sales tax is six and one-half percent
(6.5%).
5. SECURITY DEPOSIT
5.01 Tenant has this day deposited with Landlord the sum of Three
Thousand Two Hundred Forty Dollars and No/100 ($3,240.00) as security deposit
for the full and faithful performance by Tenant of all the terms, convenants
and conditions of this Lease upon Tenant's part to be performed, which said
sum shall be returned to Tenant after the time fixed as the expiration of the
term herein, provided Tenant has fully and faithfully carried out all of said
terms, covenants and conditions of Tenant's part to be performed. In the
event of a bonafide sale, subject to this Lease, Landlord shall have the
right to transfer the security to the buyer for the benefit of Tenant and
Landlord shall be thereupon automatically released by Tenant from all
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liability for the return of such security deposit, and Tenant agrees to look
solely to the new Landlord for the return of the said security deposit, and
it is agreed that this shall apply to every transfer or assignment made of
the security deposit to a new Landlord.
6. PARKING AND COMMON AREAS
6.01 Tenant shall be entitled to park in common with other tenants
of Landlord. Tenant agrees not to overburden the parking facilities and
agrees to cooperate with Landlord and other tenants in the use of parking
facilities. Landlord reserves the right in its absolute discretion to
allocate parking spaces among the tenants in the building.
"Parking" as used herein means the use by Tenant's employees, its
visitors, invitees, and customers for the parking of motor vehicles with the
use of and/or visits to the Leased Premises. (There will be no assigned
parking unless elected by the Landlord in specific instances). Tenant agrees
and covenants to park all trucks, trailers or other commercial vehicles in
the parking spaces at the rear of the buildings or where otherwise assigned
by the Landlord.
6.02 No vehicle may be repaired or serviced in the parking area.
This includes any motorized vehicle, equipment or machinery and steam
cleaning, lubrication, sand blasting, painting or other such maintenance is
specifically prohibited in the parking areas, roadways or service area. Any
vehicle abandoned or disabled or in a state of non-operation or disrepair is
prohibited from the property and will be considered as trespassing on same.
Tenant hereby agrees to enforce said restrictions against Tenant's own
vehicles and equipment and vehicles and equipment known to be owned by its
employees, invitees and agents. Should the Landlord in its sole discretion
determine that a violation of this provision has occurred, the offending
vehicle, equipment, trailer or machinery shall be deemed abandoned and may be
removed by Landlord from the property at the sole cost of Tenant. Should the
Landlord be required to pay any towing, removal or storage charges, such
charges shall be for the account of Tenant and Tenant shall, upon demand, pay
said charges to Landlord within three (3) days of demand. Landlord shall not
be responsible for theft, collision, vandalism, fire, acts of God or any
other cause of casualty to vehicles, equipment, trailers or machinery parked
or stored on the Property. In addition, Landlord shall not be responsible
for the loss or damage caused to the illegally parked or stored items while
under tow or while in storage.
7. DELAY IN DELIVERY OF POSSESSION
7.01 If Landlord, for any reason or cause beyond its reasonable
control, cannot deliver possession of the Leased Premises to Tenant at the
commencement of the term of this Lease, this Lease shall not be void or
voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom, but in that event there shall be a proportionate
reduction of rent covering the period between the commencement of the term
and the time when Landlord can deliver possession. The term of this Lease
shall be extended by such delay. Tenant and Landlord shall execute a Lease
modification agreement to alter the effective date of the Lease.
7.02 Landlord will permit Tenant access to the premises for
installing equipment and furnishings in the Premises prior to the term when
it can be done without material interference with remaining work in
compliance with Landlord's builders risk insurance policy and provided Tenant
cooperates with Landlord and its contractors.
8. USE OF PREMISES
8.01 The Leased Premises may be used and occupied only for
Office/Warehouse and for no other purposes, without Landlord's prior written
consent. Tenant shall promptly comply with all laws, ordinances, orders and
regulations affecting the Leased Premises and their cleanliness, safety,
occupation and use. Tenant shall not do or permit anything to be done in or
about the Leased Premises, or bring or keep anything in the Leased Premises
that will in any way increase the fire and extended coverage insurance upon
the building. Tenant will not perform any act or carry on any practices that
may injure the Building or be a nuisance or menace to tenants of adjoining
premises. Tenants shall not cause, maintain or permit any outside storage on
or about the Leased Premises, including pallets or other refuse. The rear
access areas of the Tenant's suite must remain clean and unobstructed.
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9. UTILITIES
9.01 Tenant shall pay directly to the supplier, all charges for all
utilities, including but not limited to electric services. The cost for said
electric service shall be separately metered to the Leased Premises at
Tenant's expense and in Tenant's own name. Landlord shall not be liable for
Tenant for any compensation, damages, or be required to reduce Tenant's rent
by reason of any loss or damages caused to Tenant arising from power failures
or service failures of other utilities.
If Tenant uses the water for other than restroom or drinking
purposes, the water charge may, at the option of Landlord, be increased
accordingly at any time during the term of the Lease. Such a surcharge, if
any, shall be paid to Landlord by Tenant as additional rent.
Should Tenant's trash volume or frequency be of such size as to
create additional cost for pickup, additional container size, more frequency
of pickup or special handling, Landlord, at its option, may impose a trash
charge on the Tenant.
Should Landlord charge Tenant for additional water, sewer or trash
service, Tenant shall remit the amounts so charged to Landlord within ten
(10) days after receipt of an invoice.
9.02 Tenant shall pay for all telephone, or for such other services
provided in or upon the Lease Premises as Tenant shall elect to contract for.
10. ACCEPTANCE OF PREMISES
10.01 By execution hereunder and occupancy, should the Leased
Premises be already complete and improved, Tenant acknowledges that it has
examined the Leased Premises and accepted them "as is" and as being in the
condition and improved as called for by this Lease.
11. ALTERATIONS, MECHANICS' LIENS
11.01 Alterations may not be made to the Leased Premises without
the prior written consent of Landlord and any alterations of the Leased
Premises excepting movable furniture, equipment and trade fixtures shall, at
Landlord's option, become part of the realty and belong to Landlord. This
provision also applies to all draperies, special wall coverings or floor
coverings as well as additional electrical fixtures or circuits.
11.02 Should Tenant desire to alter the Leased Premises and
Landlord approves and consents in writing to such alterations, at Landlord's
option, Tenant shall permit Landlord to make said alterations and amortize
the total cost of same as additional rental for the balance of the Lease term
or any extension thereof if applicable and mutually agreeable. Should
Landlord elect to not provide said alterations, Tenant shall only contract
for the alterations with a contractor approved by Landlord and all said
alterations shall be subject to Landlord's approval and written consent
relative to design, location, materials and workmanship.
11.03 Notwithstanding anything in paragraph 11.02 above, Tenant
may, upon written consent of Landlord, install trade fixtures (except trade
fixtures or other trade equipment which would effectively convert service
area as shown in Exhibit "A" attached hereto to additional office area),
machinery or other trade equipment in conformance with the ordinances of the
applicable city and county, and the same may be removed upon the termination
of this Lease provided Tenant shall not be in default under any of the terms
and conditions of this Lease, and the Leased Premises are not damaged by such
removal. Tenant shall return the Leased Premises on the termination of this
Lease in the same condition as when rented to Tenant, reasonable wear and tear
excepted. Tenant shall keep the Leased Premises, the Building, and property
in which the Leased Premises are situated free from any liens arising out of
any work performed for, materials furnished to, or obligations incurred by
Tenant. All such work, provided for above, shall be done at such times and
in such manner as Landlord may from time to time designate.
All fixtures, improvements, alterations and additions which may be
made or installed by either Landlord or Tenant in or about the Leased
Premises which are in any manner attached to the floors, walls or ceilings,
except trade fixtures, shall belong to and be the property of Landlord and
shall remain on the Leased Premises during the term of this Lease and at the
expiration or termination hereof, except for such property, if any which the
Landlord may designate in writing that Tenant either shall or may remove.
Tenant agrees to repair all damage to the Leased
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Premises caused by any such removal (including removal of trade fixtures) and
to restore the Leased Premises to the condition in which they were prior to
the removal of said articles. Any such property so designated by Landlord to
be removed, which shall be left in or upon the Leased Premises, shall be
deemed to have been abandoned by tenant and may be retained or disposed of by
Landlord at Tenant's expense, as Landlord shall desire.
12. WASTE AND QUIET CONDUCT
12.01 Tenant shall not commit or suffer any waste upon the Leased
Premises, or cause any nuisance, or perform any act to do anything which may
disturb the quiet enjoyment of any other Tenant in the building.
12.02 Tenants, their employees and agents, shall maintain order in
the building and shall not make or permit any improper noise in the building
or interfere in any way with other tenants or those having business with
them. No room shall be occupied or used as a sleeping or living quarters at
any time.
Tenant shall not (without the Landlord's written consent) put up or
operate any electric heating device, steam engine, boiler or machinery upon
the premises, or carry on any mechanical business thereon, or use or allow to
be used upon the Leased Premises oil, burning fluids, gasoline, or kerosene
for heating, warming, or lighting. No article deemed hazardous on account of
fire and no explosives shall be brought into said premises. No offensive
gases or liquids will be permitted. Tenant shall keep the premises equipped
with all safety appliances required by law or ordinance or any other
regulation of public authority and shall comply with all reasonable rules and
regulations hereafter made by Landlord of which Tenant has been given notice.
13. FIRE INSURANCE HAZARDS
13.01 No use shall be made or permitted to be made of the Leased
Premises, no acts done, which will increase the existing premium rate upon
insurance on the Building or cause the cancellation of any insurance policy
covering the Building, or any part thereof, nor shall Tenant sell, or permit
to be kept, used or sold, in or about the Leased Premises, any article which
may be prohibited by the Standard form of fire insurance policies. Tenant
shall, at its sole cost and expense, comply with any and all requirements,
pertaining to the Leased Premises, or any insurance organization or company,
necessary for the maintenance of reasonable fire and public liability
insurance, covering the Leased Premises, Building and appurtenances. Tenant
agrees to pay to Landlord as additional rent, any increase in premiums other
than for standard coverages for insurance policies caused by Tenant's use of
Leased Premises.
14. TAXES
14.01 Tenant shall pay taxes or assessments of any nature imposed
or assessed upon its trade fixtures, equipment, machinery, inventory,
merchandise or other personal property located on the Premises and owned by
or in the custody of Tenant as promptly as all such taxes or assessments may
become due and payable without any delinquency. Landlord shall pay all ad
valorem property taxes which are now or hereafter assessed upon the Building
and Premises, except as otherwise expressly provided in this lease.
15. LIABILITY INSURANCE
15.01 Tenant, at its own expense, shall provide and keep in force
with companies acceptable to Landlord public liability insurance for the
benefit of Landlord and Tenant jointly against liability for bodily injury
and property damage in the amount of not less than One Million Dollars
($1,000,000) in respect to injuries to or death of more than one person in
any one occurrence, and in the amount of not less than Five Hundred Thousand
Dollars ($500,000.00) per occurrence in respect to damage to property, such
limits to be for any greater amounts as may be reasonable indicated in
circumstances from time to time existing. Tenant shall furnish Landlord with
a certificate of such policy within 30 days after the occupancy date of this
Lease and whenever required shall satisfy Landlord that such policy is in
full force and effect. Such policy shall name Landlord as an additional
insured. The policy shall further provide that it shall not be canceled or
altered without thirty (30) days prior written notice to Landlord.
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16. INDEMNIFICATION BY TENANT
16.01 Tenant shall indemnify and hold harmless Landlord against and
from any and all claims arising from Tenant's use of Leased Premises or the
conduct of its business or from any activity, work, or thing done, permitted
or suffered by the Tenant in or about the Leased Premises, and shall further
indemnify and hold harmless Landlord against and from any and all claims
arising from any act, neglect, fault or omission of the Tenant, or of its
agents or employees, and from and against all costs, attorney's fees, expense
and liabilities incurred in or about such a claim, and in case any action or
proceeding be brought against the Landlord in reason of any such claim,
Tenant, upon notice from Landlord in writing, shall defend the same at
Tenant's expense by utilization of attorneys reasonable satisfactory to
Landlord. The obligations of Tenant under this section arising by reason of
any occurrence taking place during the term of this Lease shall survive any
termination of this Lease.
17. REPAIRS
17.01 Tenant is responsible, at its expense, to keep and maintain the
interior of the Leased Premises in a clean and sanitary condition. Repair and
maintenance to the Premises including replacement of bulbs, lamps and
ballasts, shall be by Tenant at Tenant's expense. Landlord will maintain the
exterior of the building within which the Premises are located, including
walls, the roof, and all common areas.
17.02 Tenant shall not injure, overload or deface the building. No
connection shall be made to electric wires or electric fixtures without
consent of the Landlord. The water closets and all other water apparatus
shall be used soley for the purposes intended, and no sweepings, rubbish,
sanitary napkin, or other obstructing substances shall be thrown therein. The
cost of repair resulting from a violation of this subparagraph, shall be at
the expense of the Tenant.
17.03 Not more than two keys for each unit will be furnished without
charge; the charge for additional keys shall be Five Dollars ($5.00) each. No
additional locks or latches shall be put upon any door without written consent
of Landlord. Tenant, at termination of the Lease of the Premises, shall return
to Landlord all keys to doors in the Building.
17.04 Tenant shall be responsible for preventive and routine
maintenance (except that covered under any warranty) of the heating,
ventilating, and air conditioning system. Maintenance made under this
paragraph shall be made at Tenant's expense. Said mechanical units require
periodic filter change and routine service and adjustments at least two to
three times annually.
18. AUCTIONS, SIGNS, ADVERTISING
18.01 Tenant shall not conduct or permit to be conducted any sale by
auction on the Leased Premises. Landlord shall have the right to control
landscaping and approve the placing of signs and the size and quality of the
same. Tenant shall place no exterior signs on the Leased Premises without
the prior written consent of Landlord. Any signs not conforming with this
Lease may be immediately removed by Landlord. Tenant shall order the exterior
building sign identifying its occupancy on a timely basis from the approved
sign firm as authorized by Landlord and cause it to be installed no later
than 30 days after occupancy of the Leased Premises.
18.02 In order to provide architectural control of the Building,
Tenant may install only such exterior signs, marquees, billboards, outside
lighting fixtures and/or other decorations on the Premises as shall have the
prior written approval of Landlord. The care and maintenance of all such
approved signs shall be the sole responsibility of Tenant. Landlord shall
have the right to remove any such sign or other decoration and shall fully
restore the Premises at the cost and expense of Tenant if any such exterior
work is done without Landlord's prior written approval. Tenant shall not
permit, allow, or cause to be used in, on or about the Premises any sound
production devices, mechanical or moving display devices, brights lights or
other advertising media, the effect of which would be visible or audible from
the exterior of the Premises.
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19. ENTRY BY LANDLORD
19.01 Tenant shall permit Landlord and Landlord's agent to enter the
Leased Premises at all reasonable times for the purpose of inspecting the
same or for the purpose of maintaining the Building, or for the purpose of
making repairs, alterations, or additions to any portion of the Building,
including the erection and maintenance of such scaffolding, canopies, fences,
and props as may be required, or repairs or for the purpose of showing the
premises to prospective tenants during the last 6 months of this Lease
without any liability to Tenant for any loss of occupation or quiet enjoyment
of the Leased Premises thereby occasioned; Landlord shall at all times have
and retain a key with which to unlock all of the doors in, upon and about the
Leased Premises, excluding Tenants vaults and safes.
20. ABANDONMENT
20.01 Tenant shall not vacate nor abandon the Leased Premises at any
time during the term of this Lease, nor permit the Leased Premises to remain
unoccupied for a period longer than thirty (30) consecutive days during the
term of this Lease; and if Tenant shall abandon, vacate or surrender the
Leased Premises; or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Leased Premises shall,
at the option of the Landlord, be deemed abandoned, and available to Landlord
to use or sell to offset rental amount due and payable. Should the premises
be vacated or abandoned, Landlord shall have the right to enter the Leased
Premises at any time.
21. DESTRUCTION
21.01 In the event of (A) a partial destruction of the Leased Premises
or the Building during the Lease term which requires repairs to either the
Leased Premises or the Building or (B) the Leased Premises or the Building
being declared unsafe or unfit for occupancy by any authorized public
authority for any reason other than Tenant's act, use or occupation which
declaration requires repairs to either the Leased Premises or the Building,
Landlord shall forthwith make repairs, provided repairs can be made within
one-hundred and twenty (120) days under the laws and regulations of
authorized public authorities, but partial destruction (including any
destruction necessary in order to make repairs required by any declaration)
shall in no way annul or void this Lease, except that Tenant shall be
entitled to proportionate reduction of rent while such repairs are being made.
The proportionate reduction is to be based upon the extent to which the
making of repairs shall interfere with the business carried on by Tenant in
the Lease Premises. If repairs cannot be made within one hundred twenty (120)
days, Landlord may, at its option, make such repairs within a reasonable
time, this Lease continuing in full force and effect and the rent to be
proportionately abated, as is this paragraph provided. In the event that
Landlord does not so elect to make repairs which cannot be made within one
hundred twenty (120) days, or repairs cannot be made under current laws and
regulations, this Lease may be terminated at the option of either party. A
total destruction (including any destruction required by any authorized
public authority) of either the Leased Premises or the building shall
terminate this Lease. In the event of any dispute between Landlord and Tenant
relative to the provisions of this paragraph, they may each select an
arbitrator, the two arbitrators so selected shall select a third arbitrator
and the three arbitrators so selected shall hear and determine the
controversy and their decision theron shall be final and binding on both
Landlord and Tenant who shall bear the cost of such arbitration equally
between them. Landlord shall not be required to repair any property installed
in the Leased Premises by Tenant. Tenant waives any right under applicable
laws inconsistent with the terms of this paragraph and in the event of a
destruction agrees to accept any offer by Landlord to provide Tenant with
comparable space within the project in which the Premises are located on the
same terms as in this Lease contained.
Notwithstanding anything to the contrary herein provided, in the
event a mortgagee requires the insurance proceeds be applied to such
indebtedness, the Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant, whereupon, all rights and
obligations hereunder shall cease and terminate.
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22. ASSIGNMENT AND SUBLETTING
22.01 Without Landlord's consent, Tenant shall not assign, mortgage,
or hypothecate this Lease, or any interest in this Lease, or permit the use
of the Leased premises by any person or persons other than Tenant, or sublet
the Leased Premises, or any part of the Leased Premises. Any transfer of
this Lease from Tenant by merger, consolidation or liquidation shall
constitute an assignment for purposes of this Lease. Any attempted
assignment or subletting without Landlord's consent shall void and shall at
the option of the Landlord terminate this Lease. Consent by Landlord to any
assignment or subletting shall not release Tenant from its primary liability
under the Lease, and Landlord's consent to one assignment, subletting or
occupation or use by other parties shall not be deemed a consent to other
subleases or assignments or occupation or use by other parties.
23. TRANSFER OF LANDLORD INTEREST
23.01 If Landlord shall sell, assign or transfer all or any part of its
interest in the Premises or in this Lease to successor in interest which
expressly assumes the obligations of Landlord hereunder, then Landlord shall
thereupon be released and discharged from all covenants and obligations
hereunder, and Tenant shall look solely to such successor in interest for
performance of all of Landlord's obligations. Tenant's obligations under
this Lease shall in no manner be affected by Landlord's assignment hereunder,
and Tenant shall thereafter attorn and look solely to such successor in
interest as the Landlord hereunder.
24. INSOLVENCY OF TENANT
24.01 Either (A) the appointment of a receiver to take possession of
all or substantially all of the assets of Tenant, or (B) a general assignment
by Tenant for the benefit of creditors, or (C) any action taken or suffered
by Tenant under any insolvency or bankruptcy act shall, if any such
appointment, assignments or action continues for a period of thirty (30)
days, constitute a breach of this Lease by Tenant and Landlord may at its
election without notice, terminate this Lease and in that event be entitled
to immediate possession of the Leased Premises and damages as provided herein.
25. EVENTS OF DEFAULT
25.01 Should Tenant fail to comply with any terms provision or
convenant of this Lease (other than the following in paragraph 26.01 and
26.02), and shall not cure such failure within twenty (20) days, after
written notice (notice by registered mail deemed to be constructive notice)
thereof to Tenant, said event shall be deemed to be events of default by
Tenant under this Lease.
25.02 The filing of a petition by or against Tenant for adjudication
as a bankrupt under the Bankruptcy Code as now or hereafter amended or
supplemented or for reorganization within the meaning of the Bankruptcy Code,
or the filing of any petition by or against the Tenant under any future
bankruptcy act for the same or similar relief; the dissolution or the
commencement of any action or proceeding of dissolution or liquidation of the
Tenant, whether instituted by or against the Tenant, or for the appointment
of a receiver or trustee of the property of the Tenant; the taking possession
of the property of the Tenant by any governmental office or agency pursuant
to statutory authority for the dissolution or liquidation of the Tenant; the
making by the Tenant of an assignment for the benefit of creditors. A
default in the payment of the rent reserved in the Lease or any part thereof,
for a period of five (5) days shall be an event of default.
26. LANDLORD'S RIGHTS AFTER DEFAULT
26.01 In the event of a default by Tenant, Landlord, in addition to
any other rights or remedies that it may have by virtue of law, shall have
the right to either terminate this Lease or from time to time, without
terminating this Lease relet the Premises or any part thereof for the account
and in the name of Tenant or otherwise, for any such terms and conditions as
Landlord in its sole discretion may deem advisable with the right to make
alterations and repairs to the Leased Premises. Tenant shall pay to
Landlord, as soon as ascertained, the costs and expenses incurred by Landlord
in such reletting and in making such alterations and repairs. Rentals
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received by Landlord from such reletting shall be applied: first, to the
payment of any indebtedness, other than rent, due hereunder from Tenant to
Landlord; second, to the payment of the cost of any alterations and repairs to
the Leased Premises necessary to return the Leased Premises to good
condition, normal wear and tear excepted, for uses permitted by this Lease
and the cost of storing any Tenant's property left on the Leased Premises at
the time of reletting; third, to the payment of rent due and unpaid hereunder
and the residence, if any, at the end of the term of this Lease shall be paid
to Tenant. Should such rentals received from time to time from such
reletting during any month be less than that agreed to be paid during that
month by Tenant hereunder, Tenant shall pay such deficiency to Landlord on a
monthly basis.
26.02 No such reletting of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a notice
of such intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach provided it has not been cured.
Should Landlord at any time terminate this Lease for any breach, in addition
to any other remedy it may have, it may recover from Tenant all damages it
may incur by reason of such breach, including the cost of recovering the
Leased Premises and including (1) all amounts that would have fallen due as
rent between the time of termination of this Lease and the time of the
judgment, or other award, less the avails of all relettings and attornments,
plus interest on the balance at the rate of eighteen percent (18%) per year;
(1) Landlord may, at its option, declare the entire amount of the rent which
would be due and payable during the remainder of the term of this Lease to be
due and payable immediately, in which event, Tenant agrees to pay the same
upon demand, together with all rents theretofore due to Landlord provided,
however, that such payments shall not constitute a penalty or forfeiture or
liquidated damages unless elected as same by Landlord. Upon making such
payment, Tenant shall receive rentals from other tenants on account of their
leasing said Premises during the remaining term of this Lease; provided,
however, that the monies to which the Tenant shall become so entitled shall
in no event exceed the entire amount payable by Tenant to Landlord as set
forth above.
27. SURRENDER OF LEASE NOT MERGER
27.01 The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not work a merger, and shall, at the
option of Landlord terminate all or any existing subleases, and/or sub
tenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all of such subleases or sub tenancies.
28. ATTORNEY'S FEES/COLLECTION CHARGES
28.01 In the event of any legal action or proceeding between the
parties hereto, reasonable attorney's fees and expenses of the prevailing
party in any such action or proceeding may be added to the judgment therein.
Should Landlord be named as a defendant in any suit brought against Tenant in
connection with or arising out of Tenant's occupancy, hereunder, Tenant shall
pay to Landlord its cost and expenses incurred in such suit, including a
reasonable attorney's fee.
29. CONDEMNATION
29.01 If any part of the Leased Premises shall be taken or condemned
for public or quasi-public use, and a part thereof remains which is
susceptible of occupation hereunder, this Lease shall, as to the part so
taken, terminate as of the date title shall vest in the condemner, and the
rent payable hereunder shall be adjusted so that the Tenant shall be required
to pay for the remainder of the term only such portion of such rent as the
number of square feet in the part remaining after condemnation bears to the
number of square feet in the entire Leased Premises at the date of
condemnation; but in such event Landlord shall have the option to terminate
this Lease as of the date when title to the part so condemned vests in the
condemner. If all the Leased Premises, or such part thereof be taken or
condemned so that there does not remain a portion susceptible for occupation
hereunder, this Lease shall thereupon terminate.
LEASE AGREEMENT - Xxxxxxx X. & Xxxx X. Xxxxxxx and Bright Technologies, Inc.
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30. NOTICE
30.01 All notices, statements, demands, requests, consents,
approvals, authorizations, offers, agreements, appointments, or designations
under this Lease by either party to the other shall be in writing and shall
be sufficiently given and served upon the other party, if sent by certified
mail, return receipt requested, postage prepaid, and addressed as follows:
Xxxxxxx X. Xxxxxxx Xxx Xxxxxx, C.E.O.
0000 Xxxxxx Xx., Xxxxx X Bright Technologies, Inc.
Xxxxx, XX 00000 0000 Xxxxxxxxx Xxxxx, Xxxxx #000
Xxxxxxxx, XX 00000
31. WAIVER
31.01 The waiver by Landlord of any breach of any term, covenant,
or condition herein contained shall not be deemed to be a waiver of such
term, covenant, or condition or any subsequent breach of the same or any
other term, covenant, or condition herein contained. The subsequent
acceptance of rent hereunder by Landlord shall not be deemed to be waiver of
any preceding breach by Tenant of any term, covenant, or condition of this
Lease, other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
32. EFFECT OF HOLDING OVER
32.01 If Tenant should remain in possession of the Leased Premises
after the expiration of the Lease term and without executing a new Lease, then
such holding over shall be construed as a tenancy from month-to-month,
subject to all the conditions provisions, and obligations of this Lease
insofar as the same are applicable to a month-to-month tenancy.
33. SUBORDINATION
33.01 This Lease shall be subordinate to any ground lease, mortgage,
or any other hypothecation for security now or hereafter placed upon the real
property of which the Premises are a part and to any and all advances made on
the security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Tenant's right to quiet possession of the Premises shall not be disturbed if
Tenant is not in default and so long as Tenant shall pay the rent and observe
and perform all of the provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. This subordination, attornment
and non-disturbance provision is to be effective and self-operative without
the execution of any further instrument on the part of the parties hereto,
immediately upon the mortgagee or other successor to Landlord's estate
succeeding to the interest of the Landlord in the Lease Premises.
34. ESTOPPEL CERTIFICATES
34.01 Within 10 days after a request by Landlord, Tenant shall
deliver a written estoppel certificate, in form supplied by or acceptable to
Landlord certifying any facts that are then true with respect to the Lease,
including without limitation that this Lease is in full force and effect,
that no default exists on the part of Landlord or Tenant, that Tenant is in
possession, that Tenant has commenced the payment of rent, and that there are
no defenses or offsets claimed by Tenant with respect to payment of rental
under this Lease. Likewise, within 10 days after a request by Tenant,
Landlord shall deliver to Tenant a similar estoppel certificate covering such
matters as are reasonable requested by Tenant.
35. MISCELLANEOUS PROVISIONS
35.01 Whenever the singular number is used in this Lease and when
required by the contest, the same shall include the plural, and the masculine
gender shall include the feminine and neuter genders, and word "person" shall
include corporation, firm or association. If there be
LEASE AGREEMENT - Xxxxxxx X. & Xxxx X. Xxxxxxx and Bright Technologies, Inc.
Page 10
more than one Tenant, the obligations imposed upon the Tenant under this
Lease shall be joint and several.
35.02 The headings or titles to paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part of this Lease.
35.03 This instrument contains all of the agreements and conditions
made between the parties of this Lease and may not be modified orally or in
any other manner than by agreement in writing signed by all parties to this
Lease.
35.04 Time is of the essence of each term and provision of this
Lease.
35.05 Except as otherwise expressly stated, each payment required
to be made by Tenant shall be in addition to and not in substitution for other
payments to be made by Tenant.
35.06 Subject to Paragraph 22, the terms and provisions of this
Lease shall be binding upon and inure to the benefits of the heirs,
executors, administrators, successors, and assigns of Landlord and Tenant.
35.07 This Agreement, its application, enforcement and jurisdiction
shall be construed under the laws applicable in the State of Florida,
including any Tenant whose principal place of business is outside of the U.S.A.
36. DEPOSIT AGREEMENT
36.01 Landlord and Tenant hereby agree that Landlord shall be
entitled to immediately endorse and cash Tenant's good faith rent and
security deposit check(s) accompanying this Lease.
It is further agreed and understood that such action shall not
guarantee acceptance this Lease by Landlord but in the event Landlord does
not accept this Lease the deposit shall be refunded in full to Tenant. This
Lease shall be effective only after Landlord has fully executed this Lease
Agreement.
37. MORTGAGE PROTECTION
37.01 In the event of any default on the part of the Landlord,
Tenant shall give notice by registered or certified mail to any Mortgagee
holding a mortgage upon the Premises whose address has been furnished to
Tenant, and Tenant shall offer such Mortgagee a reasonable opportunity to cure
the default, including sufficient time for the Mortgagee to obtain possession
of the Premises by judicial foreclosure, if such should prove necessary to
effect a cure.
37.02 Landlord and Tenant mutually agree that should any Mortgagee
of the Premises require any change in this Lease which change shall not
materially affect the rights or obligations of Landlord or Tenant under this
Lease, they will corporate with each other in good faith to make the language
of this Lease acceptable to such Mortgagee. Tenant shall execute any
subordination, non-disturbance and attornment agreements as may be reasonable
required by any such Mortgagee.
38. AUTHORIZED LEASE EXECUTION
38.01 Each individual executing this Lease as a director, officer
or agent of a corporation and warrants that he is duly authorized to execute
and deliver this Lease on behalf of such corporation in accordance with the
represents duly adopted resolution of the Board of Directors of said
corporation in accordance with its terms.
Each individual executing this Lease on behalf of a partnership
warrants that he is a General Partner therein and is duly authorized to
execute and deliver this Lease on behalf of said partnership.
38.02 Landlord reserves the right to make and enforce such other
reasonable rules and regulations as, in its judgment, may be deemed necessary
or advisable from time to time to
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LEASE AGREEMENT-Xxxxxxx X. & Xxxx X. Xxxxxxx and Bright Technologies, Inc.
promote safety, care and cleanliness of the premises and for the preservation
of good order thereon.
39. ADDITIONAL CONSTRUCTION
39.01 Landlord hereby reserves the right at any time from time to
time to make alterations or additions to, and to build additional stores on,
the building of which the Leased Premises are part, and to build adjoining
the same. Landlord also reserves the right to construct other buildings or to
add to other buildings or to change the configuration and location of
landscaping, parking or other improvements and to permit others to do so.
40. TOXIC OR HAZARDOUS SUBSTANCES
40.01 Tenant represents, warrants and covenants that Tenant will not
bring onto or use Hazardous Materials (as defined below) on, from or
affecting the Premises in any manner which violates federal, state or local
laws, ordinances, rules, regulations or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials.
40.02 Tenant shall keep the Premises, or cause the Premises to be
kept, free of Hazardous Materials.
40.03 Without limitation to the foregoing, Tenant shall neither
cause nor permit:
a. the Premises to be used to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce or process
Hazardous Materials, except in compliance with all applicable federal,
state and local laws or regulations; or
b. a release of Hazardous Materials onto the Premises or any
other property as a result of any intentional or unintentional act or
omission on the part of Tenant.
40.04 Tenant shall comply with all applicable federal, state and
local laws, ordinances, rules and regulations related to Hazardous Materials,
whenever and by whomever enacted or made effective. Tenant shall obtain and
comply with all approvals, registrations or permits required under such laws,
ordinances, rules and regulations.
40.05 Tenant shall conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions on, from or
affecting the Premises in accordance with a. all applicable federal, state
and local laws, ordinances, rules, regulations and policies; and b. the
orders and directives of all federal, state and local government authorities.
40.06 Tenant shall defend, indemnify and hold harmless Landlord, and
Landlord's employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses of any kind or nature, known or unknown, contingent or otherwise
(including without limitation, accountants' and attorneys' fees at both the
trial and appellate levels, consultant fees, investigation and laboratory
fees, court costs and litigation expenses), arising out of, or in any way
related to:
a. the presence, disposal, release or threatened release of
any Hazardous Materials which are on, from or affecting the soil,
surface waters, subsurface ground waters, water vegetation, buildings,
personal property, persons, animals or otherwise;
b. any personal injury, including wrongful death, or damage
to property, real or personal, arising out of or related to such
Hazardous Materials;
c. any lawsuit brought, threatened or settled or governmental
order related to such Hazardous Materials; and/or;
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LEASE AGREEMENT-Xxxxxxx X. & Xxxx X. Xxxxxxx and Bright Technologies, Inc.
d. any violation of laws, orders, regulations, requirements
or demands of governmental authorities or of any policies or
requirements of Lender which are based upon or in any way related
to such Hazardous Materials.
40.07 In the event that the Lease is terminated or otherwise expires
according to its terms, Tenant shall deliver the Premises to Landlord free of
any and all Hazardous Materials so that the condition of the Premises shall
conform with all applicable federal, state and local laws, ordinances, rules
and regulations affecting the Property.
40.08 The term "Hazardous Materials" includes, without limitation,
asbestos, urea, formaldehyde, the group of organic compounds known as
polychlorinated biphenyl, or any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances or
related materials defined: (e) in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601
et seq.); (f) the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801 et seq.); (g) the Resource Conversation and Recovery Act
of 1978, as amended (42 U.S.C. Section 6901 et seq.); (h) the regulations
adopted and publications promulgated pursuant to the foregoing; and (i) any
other federal, state or local environmental law, ordinance, rule or
regulation.
40.09 The provisions of this paragraph shall be in addition to any
and all other obligations and liabilities Tenant may have to Landlord at
common law and shall survive the termination of the Lease.
40.10 For purposes of this Section 43, "Tenant" shall include,
without limitation, any and all subtenants, assignees, licensees, invitees
and guests of Tenant.
40.11 Failure to comply with the provisions of this Section 40 shall
constitute a Default under the Lease.
41. SPECIAL PROVISIONS
41.01 An annual rental increase of two and one-half percent (2.5%)
will be assessed starting on the first day of the anniversary date of the
second full year term of this Lease and every year thereafter until the last
day of this lease term.
41.02 Before the beginning of each lease year during the Term,
beginning on the first anniversary of the Commencement Date and on each
succeeding annual anniversary of the Commencement Date thereafter during the
Term, Landlord shall furnish Tenant with Landlord's estimate of the Real
Estate Taxes for the following lease year. By the first day of each month
during such lease year, Tenant shall pay 1/12th of its Proportionate Share of
the estimated increases, if any, in Real Estate Taxes for such lease year.
41.03 Any other present or future taxes or governmental charges that
are imposed upon Landlord, or assessed against the Building or the land upon
which the Building is situated; including, but not limited to, any tax levied
on or measured by the rents payable by tenants of the Building which is in
the nature of, or in substitution for, real estate taxes. Any inheritance,
estate, gift, franchise, corporation, income, or net profits tax which may be
assessed against Landlord and/or the Building shall be excluded.
41.04 In the event any installment of Rent due hereunder is not paid
within five (5) calendar days after it is due, then Tenant shall also pay to
Landlord as Additional Rent a late payment fee equal to five percent (5%) of
such delinquent Rent for each and every month or part thereof that such Rent
remains unpaid.
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LEASE AGREEMENT-Xxxxxxx X. & Xxxx X. Xxxxxxx and Bright Technologies, Inc.
IN WITNESS WHEREOF, the parties hereto have affixed their hand and seals, or
when appropriate have caused this instrument to be executed by duly
authorized officers with the appropriate seal of the organization, the day
and year first above written.
As to Landlord, signed, sealed and delivered:
/s/ Xxxxxxx X. Xxxxxxx Aug. 30, 1996
--------------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx Date
The foregoing instrument was acknowledged before me this 30th day of
August, 1996, by Xxxxxxx X. Xxxxxxx who are personally known to me.
/s/ Xxx Xxxxxxx [SEAL] Xxx Xxxxxxx
---------------------------- My Commission #CC427000 Expires
Xxx Xxxxxxx, Notary Public December 18, 1998
State of Florida [Illegible]
My Commission Expires:
As to Tenant, Xxx Xxxxxx of Bright Technologies, Inc., signed, sealed and
delivered:
/s/ Xxx Xxxxxx Aug. 30, 1996
---------------------------- ------------------------------
Xxx Xxxxxx, C.E.O. Date
Bright Technologies, Inc.
The foregoing instrument was acknowledged before me this 30th day of
August 1996, by Xxx Xxxxxx who is personally known to me or who produced
_____________________________ as identification.
/s/ Xxx Xxxxxxx [SEAL] Xxx Xxxxxxx
---------------------------- My Commission [Illegible] Expires
Notary Public December [Illegible]
State of Florida [Illegible]
My Commission Expires:
