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Exhibit 10.6
LEASE AGREEMENT
MCIP REALTY ASSOCIATES NO. 2, MCIP REALTY ASSOCIATES NO. 3, MCIP REALTY
ASSOCIATES NO. 4 and MCIP REALTY ASSOCIATES NO. 5
as "Landlord"
and
PORTABLES ON DEMAND STORAGE, LLC (d/b/a/ PODS)
as "Tenant"
PARK: 0000 00xx Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx
SPACE: Building #4
DATE:
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LEASE AGREEMENT
THIS LEASE (the "Lease") is made effective this day of December,
1998, by and between MCIP REALTY ASSOCIATES NO. 2, MCIP REALTY ASSOCIATES NO. 3,
MCIP REALTY ASSOCIATES NO. 4 and MCIP REALTY ASSOCIATES NO. 5 (all of the
foregoing being New Jersey general partnerships and all of the foregoing being
collectively referred to herein as "Landlord");
and
PORTABLES ON DEMAND STORAGE, LLC (a Florida limited liability company referred
to herein as "Tenant").
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the covenants, considerations and
agreements hereinafter set forth, Tenant and Landlord agree:
1. DEMISED PREMISES.
1.1 Subject to the terms and conditions set forth in this Lease,
Landlord hereby leases to Tenant and Tenant accepts from Landlord, the
space (hereinafter called the "Demised Premises" and more particularly
described by the single-hatched area on the site plan attached hereto
as Exhibit "A" and made a part hereof) consisting of approximately
40,000 rentable square feet and located in Building No. 4 (the
"Building") of a certain industrial park located at the junction of
62nd Avenue North and 45th Street North, Pinellas Park, Pinellas
County, Florida and more particularly described in Exhibit "A" attached
hereto and made a part hereof (the "Park").
1.2. Use of Demised Premises. Tenant shall use the Demised
Premises solely for manufacturing and warehousing of storage containers
and related office environment for staff and call center ("Tenant's
Proposed Use") and for no other use.
1.3. Use of Common Areas. Tenant shall have the exclusive right to
use a portion of the common parking area for employee parking/visitor
parking and for an outside storage area (shown in blue on Exhibit "A").
Tenant shall have the non-exclusive use of the driveways, parking
aisles (shown in pink on Exhibit "A"), the infrastructure facilities
and other areas of the Park shared with other tenants thereof.
1.4. Tenant's Representations. Tenant hereby warrants and
represents that Tenant is a duly authorized and existing limited
liability company in the state of organization; Tenant has and is
qualified to do business in Florida; the company has full right and
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authority to enter into this Lease Agreement; and each of the persons
signing on behalf of the company were authorized to do so thereby
making the Lease binding upon the corporation in accordance with its
terms. Upon Landlord's request, Tenant shall provide Landlord with
evidence reasonably satisfactory to Landlord confirming the foregoing
covenants and warranties.
2. TERM; COMMENCEMENT.
2.1. Term. The term of this Lease (the "Term") shall commence (the
"Commencement Date") on the date upon which this Lease becomes fully
executed by, and delivered to, Landlord and Tenant and shall expire
five (5) years and three (3) months after the Commencement Date unless
extended or sooner terminated as provided herein.
2.2. Condition of Demised Premises. Subject to the Landlord having
the existing roof leaks repaired in a good workmanlike manner,
insulation xxxxx reinstalled and the Demised Premises cleaned, Landlord
is leasing and Tenant is accepting the Demised Premises in its current
"AS IS" condition and Landlord makes no representation as to
merchantability or fitness for a particular use. Landlord represents
that as of the date that Landlord executes this Lease, Landlord has not
received any notices of code violations from either the state, county
or local enforcement authorities. Landlord further represents that the
overhead cranes located within the Demised Premises are in good working
order.
2.3. Upon the termination of this Lease in any manner whatsoever,
Tenant shall (i) remove Tenant's goods and effects and those of any
other person claiming under Tenant (ii), quit and deliver up the
Premises to Landlord peaceably and quietly in as good order and
condition as at the inception of the term of this Lease or as the same
hereafter may be improved by Landlord or Tenant, excepting only
deterioration caused by reasonable use and wear thereof, damage from
fire or other casualty of the kind insured in standard policies of fire
insurance with extended coverage type risks, and (iii) promptly deliver
to Landlord at his office or other location as designated by Landlord,
all keys for the Premises. Goods and effects not removed by Tenant at
the termination of this Lease, however terminated, shall be considered
abandoned and Landlord may dispose of and/or store the same as it deems
expedient, the cost thereof to be charged to Tenant and collectable as
Additional Rent, as set forth herein.
2.3.1. Termination. This Lease shall terminate at the end of
the term (the "Termination Date") or at the end of any
extension or renewal thereof, without the necessity of any
notice from either Landlord or Tenant to terminate same, and
Tenant hereby waives notice to vacate or quit the Premises and
agrees that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of
possession of the Premises from a tenant holding over to the
same extent as if statutory notice had been given. Tenant
hereby agrees that if it fails to surrender the Premises at
the end of the Term, or any renewal thereof, Tenant will be
liable to landlord for any and all damages which Landlord
shall suffer by reason thereof, and Tenant will indemnify
Landlord against all claims
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and demands made by any succeeding tenants against Landlord,
founded upon delay by landlord in delivering possession of the
Premises to such succeeding tenant.
2.3.2. For the period of nine (9) months prior to the
expiration of the Term, or any renewal or extension thereof,
Landlord shall have the right to display on the exterior of
the Premises the customary sign "For Rent".
2.4. Holding Over. If Tenant shall be in possession of the Premises
after the Termination Date, in the absence of any agreement extending
the Term hereof, the tenancy under this Lease shall become one from
month to month, terminable by either party on thirty (30) days' prior
written notice at a monthly rental equal to twice the sum of (i) the
monthly installment of Annual Minimum Rental payable during the last
month of the Term and (ii) all Additional Rental Payable hereunder for
each month Tenant remains in possession. Tenant shall also pay all
other charges payable under the terms of the Lease, prorated for each
month during which Tenant remains in possession. Such month-to-month
tenancy shall also be subject to all other conditions, provisions and
obligations of this Lease. Tenant shall not interpose any counterclaim
or counterclaims in a summary proceeding or other action based on
holdover.
3. LEASE SECURITY.
3.1. Guarantees. Simultaneously with Tenant's execution of this
Lease, Tenant shall deliver to Landlord the absolute and unconditional
guarantees of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxx, Xxx Xxxxxxxx and Xxxxxxx
Xxx. Tenant acknowledges that these Guarantees are a material
inducement to the Landlord to lease the Demised Premises to Tenant and
that Landlord would not lease the Demised Premises to Tenant but for
the delivery of these Guarantees.
3.2. Landlord's Lien. In addition to, and without waiver or
reduction of, any rights of Landlord established by law or enumerated
above, all of which rights are specifically reserved and recognized by
Landlord, as security for the rent and as security for the performance
of all other covenants and undertakings by the Tenant under the terms
hereof, Tenant grants, bargains, sells and conveys to Landlord all
property of every kind on or hereafter brought on the Demised Premises;
and whenever rent or anything reserved as rent is unpaid or whenever a
breach or default by Tenant has occurred as to the obligations of
Tenant hereunder, Landlord may seize or restrain said property on or
off the Demised Premises and may elect to sell the same on due legal
notice for all rent then due and for all damages or expenses resulting
from a breach or default by Tenant, or to treat the same as security
and as Landlord's property, or Landlord may remove said property and
store the same in any other place in the building, or in any other
place, for the account of, and at the expense and risk of, Tenant.
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4. RENT.
4.1. Base Rent. Tenant shall pay an annual base rent (the "Base
Rent") for the Demised Premises of ONE HUNDRED FIFTY THOUSAND DOLLARS
AND NO CENTS ($150,000.00) which shall be payable in advance, in
monthly equal installments of TWELVE THOUSAND FIVE HUNDRED DOLLARS AND
NO CENTS ($12,500.00). Installments shall be due and payable on the
first day of each month of the Term. Prior to Tenant's taking
possession of the Demised Premises, Tenant shall first deliver to
Landlord the first and last monthly installments of rent due (to be
applied to rent due for the third month and 62nd month of the Lease
Term, respectively), including sales tax.
4.2. Rent Abatement. No installments of Base Rent shall be due for
the first (1st, second (2nd) or sixty-third (63rd) month following the
Commencement Date provided, however, that nothing set forth herein
shall relieve Tenant from Tenant's obligations to pay utilities or
Tenant's proportionate share of common system expenses as provided
elsewhere herein for the months where Rent Abatement is granted.
4.3. Base Rent Adjustments. Thirty-Three (33) months after the
Commencement Date, the Base Rent shall be adjusted to ONE HUNDRED SIXTY
THOUSAND DOLLARS AND NO CENTS ($160,000.00) annually, which sum shall
be payable in equal monthly installments of THIRTEEN THOUSAND THREE
HUNDRED AND THIRTY-THREE DOLLARS AND THIRTY-THREE CENTS ($13,333.33).
4.4. Sales Tax. With each monthly installment of Base Rent, Tenant
shall pay to Landlord all sales tax assessed by the State of Florida,
and any other governmental authority, on the Gross Rent as rental
income.
4.5. Industrial Gross Lease. This Lease is intended, and is hereby
declared to be an "industrial gross" lease, it being the intention of
the parties that Tenant shall be obligated to reimburse Landlord for
Tenant's Proportionate Share (as defined at Section 6.1.3, herein) of
increases in real estate taxes and property insurance above the amounts
due for the calendar year 1999.
5. UTILITIES. Tenant shall obtain electricity, water and sewer directly
from the public or municipal utility company serving the Demised Premises
through meters installed for said purpose. Tenant covenants and agrees to pay
all bills for electricity, water and sewer consumed in the Demised Premises
during the lease term directly to the public or municipal utility companies
serving the Demised Premises. In addition, Tenant shall pay all rents or
deposits imposed by the public or municipal utility company serving the Demised
Premises in connection with obtaining any utility, but excluding hook-up,
tap-in, and impact fees payable as a result of Tenant's Proposed Use of the
Demised Premises. Any default by Tenant in the timely payment of any xxxx or
charge of a public or municipal utility company shall be deemed a default by
Tenant under this Lease and Tenant agrees to indemnify and hold Landlord
harmless from any liability, lien, or expense in connection therewith.
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6. FIRE SUPPRESSION AND ALARM SYSTEMS.
6.1. Fire Suppression System. The Demised Premises is serviced by a
fire suppression system which system includes all the piping, valves,
flow switches, sprinkler heads and related equipment contained in the
Demised Premises (the "Premises Fire Suppression System") as well as
the water supply xxxxx, pumps, valves, switches, supply basin,
pumphouse, control panels, water hydrants and related above and below
ground distribution piping located elsewhere in the Park and shared by
all the tenants in the Park (the "Shared Fire Suppression System").
Landlord represents and warrants that the Fire Suppression Systems and
the Fire Alarm System (as defined in Section 6.2, below) are in good
working order as of the date that Landlord executes this Lease;
however, Landlord makes no representation that the Fire Suppression
Systems configured as of December 1, 1998 is or will be acceptable to
the state, county and local code enforcement officials ("Code
Enforcement Officials") having jurisdiction over the Fire Suppression
Systems, for Tenant's Proposed Use. In the event that Code Enforcement
Officials require modifications to the Fire Suppression Systems or the
Demised Premises, or both, to be completed prior to Tenant's use and
occupancy of the Demised Premises, Tenant shall make the required such
modifications at Tenant's sole cost and expense, provided that Tenant
comply with the terms of this Lease, including but not limited to
Section 10.2, herein.
6.1.1. Premises Fire Suppression System. Tenant shall
maintain and repair the Premises Fire Suppression System at
Tenant's sole cost and expense. In the event that there is a
change in Tenant's Use of the Demised Premises or a change in
the local building code or applicable ordinance or state or
federal statute or regulation requiring modifications,
alterations, extensions or improvements in the Premises Fire
Suppression System, the Tenant shall make such modifications,
alterations, extensions and improvements at Tenant's sole cost
and expense.
6.1.2. Shared Fire Suppression System. Tenant shall pay to
Landlord, as Additional Rent and upon demand, Tenant's
proportionate share of the cost of maintaining, inspecting,
operating or repairing any portion of the Shared Fire
Suppression System. In the event that there is a change in
Tenant's Use of the Demised Premises requiring the
modification, alteration, extension or improvement of the
Shared Fire Suppression System, Tenant shall make such
modifications, alterations, extensions and improvements at
Tenant's sole cost and expense. In the event that there is a
change in the local building code or applicable ordinance or
state or federal statute or regulation requiring
modifications, alterations, extensions or improvements in the
Shared Fire Suppression System, the Tenant shall pay Landlord,
as Additional Rent and upon demand, Tenant's proportionate
share of the cost to make such modifications, alterations,
extensions and improvements at Tenant's sole cost and expense.
6.1.3. Proportionate share shall be calculated by dividing
the total current occupyable building square footage into the
Demised Premises square footage.
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For purposes of this Lease it is agreed that the "Tenant's
Proportionate Share" is Twenty Percent (20%).
6.2. Monitoring of Fire Suppression and Alarm Systems. The Demised
Premises is serviced by a fire alarm monitoring system which system
includes leased equipment including a control panel, wiring, flow
switches, pull stations and a phone dialer (the "Fire Alarm System").
The Premises Fire Suppression System and the Fire Alarm System
installed in Demised Premises shall at all times be monitored by an
outside alarm monitoring service (the "Monitoring Contractor") approved
by the Landlord. Tenant shall obtain and maintain a monitoring service
contract with the Monitoring Contractor, which contract shall provide
24 hour off premises monitoring of Premises Fire Suppression System
and the Fire Alarm System during the term of the Lease. The Tenant
shall deliver a copy of the monitoring service contract to the Landlord
upon request. The Tenant covenants and agrees to pay all invoices for
the monitoring of the Premises Fire Suppression System and the Fire
Alarm System installed in the Demised Premises during the lease term
directly to the Monitoring Contractor, unless otherwise directed by
the Landlord. Any default by Tenant in the timely payment of any
invoice or charge of the Monitoring Contractor, or other party as
directed by Landlord, shall be deemed a default by Tenant under this
Lease and Tenant agrees to indemnify and hold Landlord harmless from
any liability, lien, or expense in connection therewith.
6.3. Inspection of the Fire Suppression System and Alarm System.
6.3.1. Premises Fire Suppression System. The Premises "Fire
Suppression System and the Fire Alarm System installed in
Demised Premises shall be inspected semi-annually, or more
frequently if so required by law, by a fire suppression and
alarm system contractor licensed in the State of Florida to
perform the required inspections (the "Inspection Contractor)
and approved by the Landlord. The Tenant shall deliver a copy
of the inspection contract to the Landlord upon request. The
Tenant shall cause any reports required by law to be filed
with the appropriate governmental authority. The Tenant
covenants and agrees to pay all invoices for the inspection of
the Premises Fire Suppression System and the Fire Alarm System
installed in the Demised Premises during the lease term
directly to the Inspection Contractor, unless otherwise
directed by the Landlord. Any default by Tenant in the timely
payment of any invoice or charge of the Inspection Contractor,
or other party as directed by Landlord, shall be deemed a
default by Tenant under this Lease and Tenant agrees to
indemnify and hold Landlord harmless from any liability, lien,
or expense in connection therewith.
6.3.2. Shared Fire Suppression System. Since testing of any
individual tenant premises system requires testing of the
Shared Fire Suppression System, the Tenant agrees to cooperate
with the Landlord and other tenants at the Park in complying
with local, state and federal laws, ordinances and regulations
requiring the periodic inspection and certification of the
Shared Fire Suppression System
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and the Fire Alarm System. To that end, the Landlord, in
cooperation with the Tenants may elect to secure an inspection
contract for the entire Park with each Tenant paying its
proportionate share of the costs.
7. GENERAL TERMS OF RENTAL PAYMENTS.
7.1. Time and Place of Payment; No Demand. All rent and other sums
due to Landlord hereunder shall be paid by check or bank draft payable
to "MCIP Partnerships", and shall be delivered on or before 5:00 p.m.
of the day such sum or sums are due to the following address:
c/o Viking Associates
Xxx Xxxxxxxxx Xxxx
Xxxxx X
Xxxxxxxxxxx, XX 00000
(or to such other party or at such other address as Landlord may
designate, from time to time, by written notice to Tenant), without
demand and without deduction, set-off or counterclaim (except to the
extent demand or notice shall be expressly provided for herein).
7.2. Late Payments. Any rent or other sums due to Landlord
hereunder which are not received by Landlord within five (5) days of
the date and time due shall bear a one-time late fee of five (5%)
percent of the outstanding sum. All sums outstanding more than thirty
(30) days shall bear interest at the rate of eighteen (18%) percent
per annum in addition to the late fee. In addition, Tenant shall pay
Landlord a minimum charge of Fifty ($50.00) Dollars for any checks
returned to Landlord by Landlord's bank unpaid.
7.3. No Waiver. If Landlord, at any time or times, shall accept
rent or any other sum due to it hereunder after the same shall become
due and payable, such acceptance shall not excuse delay upon subsequent
occasions, or constitute, or be construed as, a waiver of any of
Landlord's rights hereunder. No payment by Tenant or receipt by
Landlord of a lesser amount than any installment or payment of Rent due
shall be deemed to be other than on account of the amount due, and no
endorsement or statement on any check or payment of rent shall be
deemed an accord and satisfaction. Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of
such installment or payment of rent, or pursue any other remedies
available to Landlord.
7.4. All Sums Collectable as Additional Rent. All sums payable by
Tenant under this Lease, whether or not stated to be rent or additional
rent, shall be collectible by Landlord as additional rent ("Additional
Rent") and in the event of a default in payment thereof Landlord shall
have the same rights and remedies as for failure to pay rent (without
prejudice to any other right or remedy available therefor).
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7.5. Survival of Obligation to Pay. Tenant's obligation to pay
Base Rent, Additional Rent, or any other sums payable by Tenant under
this Lease, for any period prior to the expiration of the term of this
Lease, shall survive the expiration or sooner termination of this
Lease.
8. FINANCIAL STATEMENTS. Within ninety (90) days of the close of Tenant's
fiscal year, Tenant shall deliver to Landlord Tenant's annual financial
statement (the "Financial Statement") prepared in accordance with Generally
Accepted Accounting Practices (GAAP) by an independent certified public
accountant. Each Financial Statement shall contain, among other things, Tenant's
Balance Sheet and Tenant's Operating Statement which shall include Total Current
Assets and Total Liabilities, as those things are defined by GAAP.
9. CARE OF DEMISED PREMISES.
9.1. Tenant agrees, on behalf of itself, its officers, partners,
employees and agents, that it shall:
9.1.1. Comply at all times with any and all Federal, state
and local statutes, regulations, ordinances, and other
requirements of any of the constituted public authorities
relating to its use and occupancy of the Demised Premises, and
the Board of Fire Underwriters or any insurance organizations,
associations or companies, with respect to the Demised
Premises or Tenants use or occupancy thereof, or any property
affected by the Premises (collectively the "Laws"), and not
knowingly do or commit, or suffer to be done or committed
anywhere in or on the Park or the Demised Premises, any act or
thing contrary to any of the Laws;
9.1.2. Without limiting the foregoing, comply at all times
with the federal Americans with Disabilities Act ("ADA") and
Tenant's responsibilities hereunder shall include the duty to
ensure that the Demised Premises, and all facilities and
improvements therein, comply with the requirements of the ADA
and that all facilities in the Buildings (such as but not
limited to restrooms and lobbies) comply with the ADA;
Landlord shall be responsible for compliance of the Park
(exclusive of the Demised Premises, but including common
areas) with applicable provisions of Title III of the ADA
(relating to Public Accommodations). Nothing in this Lease,
however, shall obligate Landlord to comply with any
requirements imposed upon Tenant pursuant to Title I
(Employment) of the ADA, and the Tenant, at Tenant's sole cost
and expense, shall comply with applicable requirements of such
Title 1. Tenant's obligations pursuant to this Paragraph 7.1
shall be to maintain the Demised Premises in compliance with
the Laws, the ADA and other requirements described in this
Paragraph 7.1. Notwithstanding that obligation to maintain,
Tenant shall not be obligated to incur any costs, fees or
expenses to bring the Demised Premises into compliance with
any requirements applicable as of the Commencement Date. It
shall be Landlord's obligation to pay all costs, fees and
expenses to bring the Demised Premises into compliance as of
the Commencement Date with all the requirements with which
Tenant must
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maintain compliance subsequent to the Commencement Date.
Landlord shall not be obligated to incur any cost, fee or
expense or bring the Demised Premises into compliance to the
extent such cost relates specifically to activities to be
conducted on the Demised Premises by the Tenant and which
improvement, repair or alteration, but for the specific use by
Tenant, would not be necessary;
9.1.3. Keep the Demised Premises including floor surfaces,
exterior walls and doors of the Demised Premises in good
order and condition and replace all glass broken by Tenant,
its agents, employees or invitees, with glass of the same
quality as that broken, except for glass broken by fire and
extended coverage type risks, and to use, maintain and occupy
the Demised Premises in a careful, safe, lawful and proper
manner, and not to commit waste thereon;
9.1.4. Not permit the Demised Premises to be used in any way
which will injure the same, or to permit the same to become a
nuisance;
9.1.5. Not overload, damage or deface the Demised Premises
or do any act which might make void or voidable any insurance
on the Demised Premises;
9.1.6. Obtain and maintain all permits, licenses or
approvals and shall make all notifications, reports and
registrations required by Environmental Statutes and shall
submit to Landlord, upon request, for inspecting and copying,
all documents permits, licenses, approvals, manifests, reports
and records required to be submitted and/or maintained by the
provisions of the Environmental Statutes and also provide
promptly to Landlord copies of any correspondence, notice of
violation, summons, order, complaint or other document
received by Tenant pertaining to compliance with Environmental
Statutes;
9.1.7. Not install any temporary or permanent tanks for the
storage of any liquid or gas above or below ground unless
Tenant has obtained written permission to do so from Landlord,
with the exception of propane, acetylene and oxygen tanks used
in connection with Tenant's Proposed Use, provided that Tenant
complies with all applicable statues, laws, regulations and
ordinances;
9.1.8. Comply with such reasonable rules and regulations as
Landlord may promulgate from time to time for the general
safety, comfort and convenience of Landlord and tenants of the
Park, so long as such rules and regulations do not modify,
alter or amend any material term of this Lease, or materially
and adversely impact Tenant's Proposed Use of the Demised
Premises.
9.2. Environmental Care. Tenant hereby warrants and represents that
during Tenant's occupancy of the Demised Premises under the terms herein, Tenant
will use, maintain and occupy the Demised Premises in a safe, lawful and proper
manner, and will not use or permit or suffer the use of the Demised Premises or
any part thereof, to either directly or indirectly prepare, produce, generate,
manufacture, refine, treat, transport, store, maintain, handle, dispose of,
transfer, or process any Hazardous Substances, except to the
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extent such Hazardous Substances are utilized in accordance with all federal,
state and municipal rules and regulations pertaining to such Hazardous
Substances. The term "Hazardous Substances" shall mean any pollutant,
contaminant, toxic or hazardous waste, dangerous substance, potentially
dangerous substance, noxious substance, toxic substance, flammable explosive,
radioactive material, urea formaldehyde foam insulation, asbestos, PCBs, or any
other substances, the removal for which Tenant is responsible hereunder, of
which is required, or the manufacture, preparation, production, generation, use,
maintenance, treatment, storage, transfer, handling or ownership of which is
restricted, prohibited, regulated or penalized by any and all federal, state,
county, or municipal statutes or laws now or at any time in effect, including
but not limited to the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) (42 U.S.C. Sec. 9601 et seq.), as amended by the
Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499, 100 Stat.
1613 (1986)) (XXXX), the Hazardous Materials Transportation Act (49 USC Sec
1801, et seq.), the Resource Conservation and Recovery Act (RCRA) (42 USC 6901
et seq.), the Federal Water Pollution Control Act (33 USC Sec 1251 et seq.), the
Clean Air Act (42 USC Sec. 7401 et seq.), the Toxic Substances Control Act, as
amended (15 USC Sec 2601 et seq.), and the Occupational Safety and Health Act
(OSHA) (29 USC Sec 651 et seq.) (collectively referred to herein as the
"Environmental Statutes");
9.2.1. The parties acknowledge that the Demised Premises
were inspected by HSA Engineers & Scientists (the
"Environmental Engineer") to establish the environmental
condition of the Demised Premises prior to the Commencement
Date of this Lease (the "Base Line Condition"). The
Environmental Inspection evaluated a prior report, Building
#'s 3 & 4, the surrounding areas and Buildings. The
Environmental Engineer set forth its evaluation of the
environmental conditions of the Demised Premises in a
written report entitled "Limited Environmental Site
Assessment" dated August 26, 1998. A complete copy of
said report will be provided to Tenant.
9.2.2. Tenant, at Tenant's sole cost and expense, hereby
agrees that within thirty (30) days prior to the termination
or expiration of this Lease, a similar environmental
inspection and report ("Termination Inspection Report") will
be performed to establish if Tenant has conformed to the
conditions of Section 8.2 above. In the event the inspection
indicates that the Demised Premises are not substantially in
the same condition as the Base Line Condition, Tenant, at
Tenant's sole cost and expense, shall pay for clean-up,
remediation and removal of such hazardous substances according
to the recommendations set forth in the Termination Inspection
Report, except that Tenant shall not be responsible for the
clean-up or removal of Hazardous Substances introduced onto
the Demised Premises during the Lease Term by parties other
than Tenant, its agents, servants, employees, contractors,
licensee's, customers, or invitees. In the event that cleanup,
remediation or removal for which Tenant is responsible
hereunder cannot be accomplished by the end of the term of the
Lease, then the term shall be automatically extended for such
period as it takes to remove or clean up the items
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found. During this extended term, all terms and conditions
of the lease shall remain in full force and effect, with the
exception that the Gross Rent shall be increased by the sum
of ten (10%) percent annually over the Gross Rent in effect
immediately prior to the end of the original term of the Lease
and shall increase ten (10%) percent annually until said
clean-up, remediation or removal is completed. After removal
or clean up pursuant to the recommendations in the Termination
Inspection Report, a final inspection report ("Final
Inspection Report") shall be prepared demonstrating that the
Demised Premises are in substantially the same condition as
the Base Line Condition and the cost of the Final Inspection
Report shall be borne solely by Tenant.
9.2.3. In the event that Tenant shall fail or refuse to have
performed the Termination Inspection Report within the time
period required herein, the Landlord may cause said report to
be completed and Tenant shall be responsible for the cost
thereof plus 15% for overhead. In the event that Tenant shall
fail or refuse to have performed any indicated clean-up,
remediation or removal, for which Tenant is responsible
hereunder, then Landlord may remove or clean-up the Hazardous
Substances found and upon completion thereof, Tenant shall pay
Landlord's cost of such removal or clean-up and the Final
Inspection Report plus 15% for overhead upon presentation of
the bills, as additional rent. Landlord shall promptly and
diligently pursue completion of clean-up.
9.3. Signage. Tenant may affix such reasonable sign or
advertisement as Tenant desires on the outside of the Demised Premises
or on the Building, or inside the Demised Premises and visible from the
outside, subject to the municipal ordinances governing such sign or
advertisement. Such sign shall be dignified and in good taste in
keeping with the standards of the Park. Tenant shall maintain such sign
or advertising in good maintenance and repair.
10. REPAIRS AND IMPROVEMENTS.
10.1. Repairs.
10.1.1. Landlord Responsibilities. Prior to and during the
term of this Lease, Landlord will maintain in proper repair
the roof and the Building structure, provided that in each
case Tenant shall have given Landlord prior written notice of
the necessity of such repairs and that any damages to the roof
or structure of the Building shall not have been caused by the
negligence or improper actions of Tenant. Landlord shall also
maintain all driveways, Common Parking Areas, drainage
structures, water and sewer transmission lines and all other
areas of the Park used in common with other tenants, excluding
the Shared Fire Suppression System and the maintenance of
portions of the Common Areas designated for the exclusive use
of the Tenant.
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10.1.2. Tenant Responsibilities. During the term of this
Lease, the Demised Premises, including but not limited to all
electrical, plumbing, heating, air conditioning and other
mechanical installations and systems therein (the "Interior
Installations"), and all doors, floor surfaces and walls, will
be maintained by Tenant in good condition and repair. The
Tenant shall be responsible for general grounds keeping and
maintenance of all lawn and planting areas within the boundary
of the Demised Premises as shown on Exhibit "A" or portions of
the Common Areas that have been reserved for the exclusive use
of the Tenant. It shall be Landlord's responsibility, however,
to maintain all external electrical transmission lines, all
external pipes conveying water and wastewater to and from the
Building. Tenant shall accomplish said repairs, alterations,
replacements and modifications at its own expense and using
materials and labor of kind and quality equal to the original
work. Unless caused by roof or structural problem, Landlord
shall not be obligated to repair, replace or maintain
components of the Demised Premises. If Tenant refuses or
neglects to repair the Demised Premises as required hereunder
and to the reasonable satisfaction of the Landlord as soon as
reasonably possible after written demand, Landlord may make
such repairs without liability to Tenant for any loss or
damage that may accrue to Tenants merchandise, fixtures, or
other property or to Tenant's business by reason thereof, not
caused by Landlord's negligence, and upon completion thereof,
Tenant shall pay Landlord's cost of making such repairs plus
fifteen (15%) percent for overhead, upon presentation of bills
therefore, as additional rent.
10.2. Tenant Improvements. Tenant may, at Tenant's sole expense,
construct certain improvements and renovations to the Demised Premises,
including the installation of Tenant's equipment to conduct Tenant's
business at the Demised Premises, subject to the following conditions:
10.2.1. Prior to commencing the construction or renovations,
Tenant shall submit to Landlord a detailed set of plans and
specifications, and obtain Landlord's written approval
thereof, which approval shall not be unreasonably withheld or
delayed. No later than ten (10) days after receipt of the
final plans and specifications, Landlord will notify Tenant of
any objections to the final plans and specifications, stating
specifically the reasons for the objection. No response from
Landlord shall be deemed acceptance of the plans and
specifications. At Tenant's option, Tenant may revise and
resubmit the final plans and specifications for Landlord's
review and approval, and Landlord shall review the final plans
and specifications as set forth above;
10.2.2. Tenant shall use only new, first-class material of a
quality suitable for the purpose intended, and of a quality as
specified or as necessary for first-class work;
10.2.3. Tenant shall cause all materials to be installed in a
good and workmanlike manner for such standard and tolerances
as are acceptable for typical commercial construction in the
Pinellas County area;
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10.2.4. Tenant shall secure all necessary permits, licenses
and other permissions, and if required by federal, state or
municipal statutes, rules, regulations or ordinance, Landlord
shall join in any such permits and licenses;
10.2.5. Tenant shall and hereby does exonerate and indemnify
and hold harmless Landlord against all claims, suits,
obligations, and liabilities of any kind arising from said
construction and renovations;
10.2.6. Upon reasonable prior notice to Tenant, Tenant shall
allow Landlord's workmen or supervisors to periodically
inspect said construction or renovations to assure that the
work is being performed according to Landlord's reasonable
expectations and requirements.
10.2.7. Any improvements or renovations to the Demised
Premises made by Tenant during the term of this Lease shall be
the property of the Tenant for the term of this Lease,
however, such improvement or renovations, including trade
fixtures, and any other equipment, machinery or other devise,
shall be removed from the Demised Premises and the Premises
returned to its pre-improvement condition unless Landlord has
agreed in writing that such improvement shall remain, and
shall at the termination or expiration of this Lease become
the property of the Landlord;
10.2.8. Tenant shall complete all such renovations and
improvements within six (6) months of approval of Tenant's
plans by Landlord; and
10.2.9. Tenant shall have the right, at any time and from
time to time, install and remove trade fixtures, electric
lights and equipment and shall be required to remove such
items upon termination of this Lease; provided, however, that
Tenant shall remedy any damage or injury to the Demised
Premises or Personal Property caused by the removal of any
such installations.
10.3. Tenant shall do all things reasonably necessary to prevent the
filing of any mechanics or other liens against the Demised Premises or any part
thereof by reason of work, labor, services or materials supplied or claimed to
have been supplied to Tenant, or anyone holding the Demised Premises, or any
part thereof, through or under Tenant. If such liens shall at any time be filed
against the Demised Premises or the building of which it is a part, or any part
thereof by reason of Tenants work, labor, services, or materials as aforesaid,
Tenant shall either cause the same to be discharged of record within thirty (30)
days after notice to Tenant of filing of same, and notice to Landlord of such
filing, or if Tenant, in Tenant's discretion and good faith, determines that
such lien should be contested, shall finish such bond or other reasonably
required security:
10.3.1. To prevent any foreclosure proceedings, arising from
such liens, against the Demised Premises or building during
the pendency of such contests; and
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10.3.2. To cause a title insurance company reasonably
satisfactory to Landlord to remove such lien as a matter
affecting title to the building of which the Demised Premises
is a part.
10.4. If Tenant shall fail to discharge such lien within such period
or shall fail to furnish reasonable security, then, in addition to
any other right or remedy of Landlord resulting from Tenant's said
default, Landlord may, but shall not be obligated to, discharge the
same either by paying the amount claimed to be due or by procuring the
discharge of such lien by giving security and such other matter as is,
or may be, prescribed or deposited by Landlord pursuant to the
foregoing provisions of this paragraph, including Landlord's cost,
expenses and reasonable attorney fees incurred by Landlord in
connection therewith, with interest thereon at the rate of eighteen
(18%) percent per annum. Nothing contained herein shall imply any
consent or agreement on the part of Landlord to subject Landlord's
estate to liability under any mechanics or other lien law.
11. LANDLORD RIGHT TO ENTER. Tenant, on behalf of itself, its officers,
partners and agents, shall give Landlord, its agents and employees, access to
the Demised Premises at all reasonable times, and after reasonable notice to
Tenant, and at any time in the case of an emergency, without charge or
diminution of rent, to enable Landlord, (i) to examine the same and to make such
repairs, additions and alterations as Landlord may be permitted to make
hereunder or as Landlord may deem advisable for the Demised Premises or any
part thereof; and (ii) upon reasonable notice, to show the Demised Premises to
insurance brokers, agents or representatives, to prospective mortgagees and
purchasers, and to prospective tenants. If representatives of Tenant shall not
be present on the Demised Premises to permit entry upon the Demised Premises by
Landlord or its agents or employees at any time when such entry by Landlord is
necessary or permitted hereunder, Landlord may enter the Demised Premises by
means of a master key (or, in the event of any emergency, forcibly) without any
liability to Tenant (except for any damage or injury to Tenant caused by the
negligence of Landlord or its agents or employees) and without such entry
constituting an eviction of Tenant or a termination of this Lease. Landlord
shall not be liable by reason of any injury to or interference with Tenant or
Tenant's business arising from the making of any repairs, alteration, additions
or improvements in or to the Demised Premises or to any appurtenance or any
equipment therein, unless caused by the negligence of Landlord or its agents or
employees.
12. QUIET ENJOYMENT. Subject to Tenant's payment of rent and other sums
payable hereunder and performing the covenants and conditions herein and to any
prior mortgage lien, Tenant shall and may peaceably and quietly have, hold and
enjoy the Demised Premises for the term of this Lease and any extensions or
renewals.
13. ASSIGNMENT AND/OR SUBLET.
13.1. Tenant shall not assign this Lease or sublet all or any
portion of the Demised Premises without first obtaining Landlord's
prior written consent thereto, which consent shall not be unreasonably
withheld and, if given, will not release Tenant from its obligations
hereunder and will not be deemed a consent to any further subletting or
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assignment. It shall nevertheless be a condition to the effectiveness
thereof that a fully executed copy of the sublease or assignment be
furnished to Landlord and that any assignee assume in writing all
obligations of Tenant hereunder. Tenant shall not mortgage or encumber
this Lease. For purposes hereof, this assignment shall include any
direct or indirect transfer or fifty percent (50%) or more of the
voting stock of Tenant (except by reason of the death of a
shareholder).
13.2. Notwithstanding anything herein to the contrary, Tenant shall
not be prevented from selling all of the membership interests of the
company or all of the assets of the company in conjunction with a sale
of the business. In the event that the sale of the business results in
the assets of the company being more highly leveraged than they are as
of the Commencement Date, Landlord shall have the right to require
Tenant to deliver from a party having sufficient financial net worth
(as Landlord may reasonably determine) a partial guarantee of the
obligation to pay rent as a condition of its consent to such transfer.
The Term "leverage" shall mean the ratio of debt to equity as shown on
the financial statement for the Tenant. In no event shall the amount
of the partial guarantee exceed the amount found by multiplying the
total rent due under the existing term of the Lease by the percentage
of increase of the "leverage" of the Tenant. Tenant agrees to provide
Landlord at least sixty (60) days prior notice of any such transfer and
all information reasonably required by Landlord to determine the extent
of the debt which will encumber the assets or the corporate stock in
conjunction with its sale, and in the event Landlord requires a
guarantee, all information reasonably required by Landlord to determine
the adequacy and sufficiency of the guarantee to be given.
13.2 In the event Landlord consents to an assignment or sublease of
all or any portion of the Demised Premises, Landlord may condition its
consent, among other things, on agreement by Tenant and its assignee
and/or sublessee, as the case may be, that 50% of the rental payable
under such assignment or sublease arrangement which exceeds the amount
of rental payable hereunder be payable to Landlord as consideration of
the granting of such consent. Nothing herein shall, however, be deemed
to be a consent by Landlord as consideration of the granting of such
consent or a consent by Landlord of any assignment or sublease or
waiver of Landlord's right not to consent to any assignment or
sublease.
14. SURRENDER OF DEMISED PREMISES.
14.1. Upon the termination of this Lease in any manner whatsoever,
Tenant shall (i) remove Tenant's goods and effects and those of any
other person claiming under Tenant, (ii) quit and deliver up the
Demised Premises and the Personal Property to Landlord peaceably and
quietly in as good order and condition as at the inception of the term
of this Lease or as the same hereafter may be improved by Landlord or
Tenant, excepting only deterioration caused by reasonable use and wear
thereof, damage from fire or other casualty of the kind insured in
standard policies of fire insurance with extended coverage type risks,
and (iii) promptly deliver to Landlord at its office or other location
as designated by Landlord, all keys for the Demised Premises. Goods and
effects not
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removed by Tenant at the termination of this Lease, however terminated,
shall be considered abandoned and Landlord may dispose of and/or store
the same as it deems expedient, the cost thereof to be charged to
Tenant. If the Tenant retains possession of the Demised Premises or any
part thereof after the termination of the term (but not for those
reasons as set forth in Section 8.2 herein), the Tenant shall pay the
Landlord Industrial Gross Rent at twice the rent payable for the last
month of the term of this Lease for the time the Tenant thus remains in
possession and, in addition thereto, shall pay the Landlord for all
damages, consequential as well as direct, sustained by reason of the
Tenant's retention of possession.
14.2. Upon the termination of this Lease in any manner whatsoever,
Tenant agrees to cooperate in the assignment or transfer of any and all
environmental and regulatory permits affecting the Demised Premises,
the Personal Property and operation therein.
15. INSURANCE.
15.1. Landlord's Insurance. At all times after the execution of this
Lease, Landlord shall procure, carry and maintain property and casualty
insurance and public liability insurance covering the Park and the
Demised Premises placed through a reputable insurance carrier with such
coverage and in such amounts as Landlord may reasonably determine, and
upon Tenant's request, Landlord shall provide Tenant a certificate of
insurance evidencing such coverage. The Tenant shall pay Tenant's
Proportionate Share of the annual cost of said insurance in excess of
the cost incurred for the Base Year of 1999, provided that such
increase is not the result of arbitrary and unreasonably changes to the
insurance policy by Landlord and which changes have not been required
by Landlord's lenders. 15.2. Tenants Insurance. At all times after the
execution of this Lease, Tenant shall, at its sole cost and expense,
procure, carry and maintain adequate Comprehensive General Liability
and Property Damage insurance with combined single limits of coverage
of One Million Dollars ($1,000,000.00) on account of bodily injury and
with respect to property damage, placed through a reputable insurance
carrier. Such insurance shall include Landlord and Viking Associates,
as a named additional insured under the policy, and, upon Landlord's
request, Tenant shall provide Landlord a certificate of insurance
evidencing such coverage.
15.2.1. Prior to commencement of this lease and taking
possession of the Demised Premises, Tenant shall provide
Landlord with a Certificate of Insurance with whom coverage is
in force and effect and such Certificate or Certificates shall
contain a provision that such policy may not be canceled
unless the Landlord is notified at least thirty (30) days
prior to cancellation, and at least thirty (30) days prior to
the expiration of said policy. Upon cancellation or expiration
of said policy, the Tenant shall furnish the Landlord with
evidence satisfactory to Landlord that the policy has been
renewed or replaced. Tenant's failure to observe the
provisions of this paragraph regarding insurance shall
constitute default under the terms of this Lease. Further,
Landlord hereby reserves the right, upon any
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renewals, expansion or extension of this Lease to reasonably
require Tenant to amend and increase the aforementioned
insurance coverage.
16. DAMAGE AND DESTRUCTION.
16.1. Landlords Obligation to Repair and Reconstruct. If the
Demised Premises shall be damaged by fire, the elements, accident or
other casualty (any of such causes being referred to herein as a
"Casualty"), but the Demised Premises shall not be thereby rendered
wholly or partially untenantable, Landlord shall promptly cause such
damage to be repaired and there shall be no abatement of Gross Rent.
If, as the result of Casualty, the Demised Premises shall be rendered
wholly untenantable for a period less than sixty (60) days or partially
untenantable, then, subject to Landlord's option to terminate the
Lease, as set forth in this Section below, Landlord shall cause such
damage to be repaired and, provided such damage is not caused by the
negligence of Tenant, its agents, concessionaires, officers, employees,
contractors, licensees or invitees, all Gross Rent (other than any
Additional Rent due Landlord by reason of Tenant's failure to perform
any of its obligations hereunder) shall be abated proportionately as to
the portion of the Demised Premises rendered untenantable during the
period of such untenantability. If, as a result of a casualty not
caused by Tenant's negligence as described above, the Demised Premises
are rendered wholly untenantable and Tenant is unable to use the
Demised Premises for Tenant's Proposed Use for a period more than sixty
(60) days, Tenant shall have the right to terminate the Lease Agreement
upon thirty (30) days prior written notice to Landlord. All such
repairs shall be made at the expense of Landlord, subject to Tenant's
responsibilities set forth herein. Landlord shall not be liable for
interruption to Tenant's business or for damage to or replacement or
repair of Tenant's personal property (including, without limitation,
inventory, trade fixtures, floor coverings, furniture and other
property removable by Tenant under the provisions of this Lease) or to
any leasehold improvements installed in the Demised Premises, all of
which damage, replacement or repair shall be undertaken and completed
by Tenant promptly.
16.2. Option to Terminate Lease. If the Demised Premises are (a)
rendered wholly untenantable, or (b) damaged as a result of any cause
which is not covered by Landlord's insurance or (c) damaged or
destroyed in whole or in part during the last three (3) years of the
Term, then, in any of such events, either Landlord or Tenant may elect
to terminate this Lease by giving to the other party notice of such
election within ninety (90) days after the occurrence of such event. If
such notice is given, the rights and obligations of the parties shall
cease as of the date of such notice, and Gross Rent (other than any
Additional Rent due Landlord by reason of Tenant's failure to perform
any of its obligations hereunder) shall be due through the date of such
termination.
16.3. Demolition of the Demised Premises. If the Demised Premises
shall be so substantially damaged that it is reasonably necessary, in
Landlord's judgment, to demolish the Demised Premises for the purpose
of reconstruction, Landlord may demolish the same, in which event the
Gross Rent shall be abated to the same extent as if the Demised
Premises were rendered untenantable by a Casualty. If the Demised
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Premises are rendered wholly or partially untenantable without
negligence of Tenant as described above, and Tenant is unable to use
the Demised Premises for Tenant's Proposed Use, Tenant shall have the
right to terminate the Lease Agreement by written notice to Landlord.
16.4. Insurance Proceeds. If Landlord does not elect to terminate this
Lease pursuant to this Section, Landlord shall, subject to the prior
rights of any Mortgagee, disburse and apply any insurance proceeds
received by Landlord to the restoration and rebuilding of the
Building. All insurance proceeds payable with respect to the Demised
Premises under policies held by Landlord shall belong to and shall be
payable to Landlord.
17. LIABILITY.
17.1. Landlord shall not be liable to Tenant for any damage to
Tenant's property or injuries to the person of the Tenant unless such
damage or injury shall be caused by or result from the failure of
Landlord to perform any of its obligations hereunder or from negligence
of the Landlord, its agents, servants. To the maximum extent permitted
pursuant the laws of the State of Florida, now or hereafter in effect,
Tenant hereby releases Landlord from all liability for damage caused to
Tenant's property or injuries to the person of the Tenant resulting
from fire, explosion, steam, gas, electricity, water, rain or snow or
leading into the Demised Premises, bursting of pipes or other conduits,
and damages and injuries caused by anyone other than the Landlord, its
agents, servants, or employees, unless caused by Landlord's gross
negligence.
17.2. Landlord and Tenant shall each indemnify and hold forever
harmless the other against and from any penalty or damage or charges
imposed for any violation of any laws or ordinances, whether occasioned
by the neglect of the indemnifying party or those holding under such
party, and Landlord and Tenant will at all times protect, each
indemnify, and hold forever harmless the other against and from any and
all claims, loss, cost, damage or expense, arising out of or from any
accident or other occurrences on or about the Demised Premises, or
involving the Personal Property, causing injury to any person or
property whomsoever or whatsoever and will protect, indemnify, and hold
forever harmless the other against and from any and all loss, cost,
damage, or expense arising out of any failure of the indemnifying party
in any respect to comply with and perform all the requirements and
provisions of this Lease.
17.3. The provisions of this Section shall survive termination of
this Lease.
18. FIRE AND LIFE SAFETY REQUIREMENTS, Tenant shall provide for
the Demised Premises and at its own expense all fire extinguisher and emergency
lighting and any other equipment required to meet current O.S.H.A., appropriate
local, county or Florida State Fire Code requirements. However, any such
emergency lighting, fire extinguisher or other removable equipment shall remain
the property of the Tenant and may be removed at the termination of this Lease.
Upon such removal, Tenant shall restore the Demised Premises to its original
good condition, wear and tear excepted, and damage by fire or other casualty
excepted.
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19. NO BROKER'S AGREEMENT. Tenant and Landlord each represent and warrant
to the other that it has had no dealings with any broker or agent in
connection with this Lease, except for Financial Realty Services,
Inc., representing the Landlord and Xxxxxxx & Xxxxxxxxx of Florida,
Inc., representing the Tenant, whose leasing commission shall be paid
by Landlord in accordance with their separate agreement. Landlord and
Tenant each covenants to pay, hold harmless and indemnify the other
from and against any and all cost expense, or liability for
compensation, commissions, and charges claimed by any other broker or
agent with respect to this Lease or the negotiation thereof.
20. DEFAULT.
20.1. Events of Default. Each of the following events shall be an
Event of Default by Tenant hereunder:
20.1.1. If Tenant shall fail to take possession of the
Demised Premises within thirty (30) days of Commencement
Date; or
20.1.2. If Tenant fails to pay in full when due any and all
installments of rent and/or any other charges or payment
herein reserved, included, or agreed to be treated or
collected as rent or as additional rent; or
20.1.3. If Tenant fails to observe or perform or otherwise
breaks any covenant, term, condition or agreement herein
contained; or
20.1.4. If Tenant, without prior notice to Landlord, vacates
the Premises or removes or attempts to remove or manifests an
intention to remove any goods or property therefrom otherwise
than in the ordinary and usual course of business without
having first paid and satisfied Landlord in full for all rent
and other charges, expenses and costs then due or that may
thereafter become due until the expiration of the term.
Notwithstanding anything else contained herein to the
contrary, Tenant's absence from the Demised Premises shall not
be an Event of Default hereunder so long as Tenant pays the
rent when due, maintains the Demised Premises pursuant to the
terms of the Lease Agreement, and pays any increased insurance
cost associated with the Demised Premises being vacant; or
20.1.5. To the extent permitted by law, if Tenant makes an
assignment for the benefit of creditors; or if Tenant files a
voluntary petition under any bankruptcy or insolvency law; or
if an involuntary petition alleging an act of bankruptcy or
insolvency is filed against Tenant (and not discharged within
sixty (60) days); or whenever the Tenant permits or otherwise
suffers this Lease to be taken under any writ of execution; or
if this Lease passes to or devolves upon, by law or otherwise
to one other than Tenant, except as permitted herein; or
20.1.6. If Tenant makes any assignment or sublet of this
Lease, or otherwise transfers, mortgages or encumbers this
Lease, which is not in accord with the terms and conditions of
the assignment provisions of this Lease; or
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20.1.7. If a levy under execution or attachment shall be made
against Tenant or its assets and such execution or attachment
shall not be vacated or removed by court order, bonding or
otherwise within a period of 30 days.
20.2. Time to Remedy Default. Landlord shall have no right to
exercise any remedy for default by Tenant unless and until Landlord
shall send to Tenant written notice of any default specifying the
default, and
20.2.1. If the default is in payment of money, Tenant
fails to remedy the default within ten (10) days after said
notice is received by Tenant, or
20.2.2. If the default is other than in payment of money, and
Tenant fails to cure the default within thirty (30) calendar
days following receipt of said notice by Tenant (unless such
default requires work to be performed, acts to be done, or
conditions to be removed which cannot by their nature
reasonably be performed, done or removed, as the case may be
within such 30-day period, in which case no default shall be
deemed to exist as long a Tenant shall have commenced curing
the same within such 30-day period and shall diligently and
continuously prosecute the same to completion).
20.3. Landlord shall not be required to give any notice of a
monetary default or the same material default more than once within any
twelve (12) month period.
20.4. Landlord's Remedies. The occurrence of any of the events
listed in this Section above shall be deemed a breach of this Lease,
and in addition to all other rights and remedies available to Landlord
by law or equity or by any other provisions hereof, Landlord may, after
Tenant's time to remedy the default, if any, expires, exercise the
following remedies:
20.4.1. Declare all rent, costs, expenses and other
charges herein reserved for the balance of the term of this
Lease (without regard to early termination of said term due to
default), which sum, reduced to present value using a discount
rate equal to the prime commercial lending rate of SunBank of
Tampa, or its successor, shall be hereinafter referred to as
the "Accelerated Rent" as further defined herein, to be due
and payable immediately; and/or
20.4.2. Declare this Lease terminated, and on the date
specified in said notice, this Lease, the term herein, and all
rights of Tenant hereunder shall expire and terminate and
Tenant shall thereupon quit and surrender possession of the
Demised Premises to Landlord in the condition as elsewhere
herein required and Tenant shall remain liable to Landlord as
herein provided.
20.5. Accelerated Rent. The term "Accelerated Rent" shall mean the
aggregate of:
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20.5.1. All rent and other charges, payments, costs and
expenses due from Tenant to Landlord and in arrears at the
time of the election of Landlord to recover the Accelerated
Rent; and
20.5.2. The Gross Rent reserved for the then entire unexpired
balance of the term of this Lease, reduced to present value
using a discount rate equal to the prime commercial lending
rate of SunBank of Tampa, or its successor, (without regard to
any early termination of the term by virtue of any default),
plus all other charges, payments, costs and expenses herein
agreed to be paid by Tenant up to the end of said term which
shall be capable of precise determination at the time of
Landlord's election to recover the Accelerated Rent.
20.6. Other Remedies. In the event that this Lease is terminated,
or Landlord has elected to recover the Accelerated Rent and any portion
of such sum shall remain unpaid, Landlord may, without further notice,
pursue all rights and remedies that it may have in law or in equity and
Tenant shall be liable to Landlord for all legal fees and costs
incurred by Landlord in the enforcement of the rights and remedies
hereunder.
20.7. Remedies Cumulative. All of the remedies hereinbefore given to
Landlord and all rights and remedies given to Landlord by law and
equity shall be cumulative and concurrent. No termination of this Lease
or the taking or recovering of the Demised Premises shall deprive
Landlord of any of its remedies or actions against Tenant for any and
all sums due at the time of termination or recovery of possession.
20.8. No Duty to Mitigate Damages. Landlord shall have no duty relet
the Demised Premises or any part thereof or to otherwise mitigate any
damages which Landlord may have incurred as a result of Tenant's
default.
21. SUBORDINATION. This Lease is subject to and subordinate to any and all
mortgages or deeds of trust encumbering the Demised Premises as of the
Effective Date, and such mortgages or deeds of trust which Landlord shall deem
necessary to replace any existing mortgages or deeds of trust. Although this
subordination shall be self-executing, Tenant agrees upon demand of Landlord to
promptly execute, acknowledge and deliver all such instruments as shall be
requested by and prepared by or on behalf of Landlord, any mortgagee or proposed
mortgagee to confirm such subordination, and Tenant agrees to execute an
estoppel agreement in favor of any mortgagee of Landlord, if requested to do so
by any mortgagee or Landlord as set forth in the Section captioned "Estoppel and
Attornment" below.
22. EMINENT DOMAIN. If the whole or a substantial part of the Demised
Premises shall be taken or condemned for a public or quasi-public use under any
statute or by right of eminent domain or private purchase in lieu thereof by any
competent authority, Tenant shall have no claim against Landlord and shall not
have any claim or right to any portion of the amount that may be awarded as
damages or paid as a result of any such condemnation or purchase; and all rights
of the Tenant to damages therefor are hereby assigned by Tenant to Landlord. The
foregoing shall not, however, deprive Tenant of any separate award for moving
expenses or for any other award. Upon the date the right to possession shall
vest in the condemning authority,
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this Lease shall cease and terminate with rent adjusted to such date and Tenant
shall have no claim against Landlord for the value of any unexpired term of this
Lease.
23. ESTOPPEL AND ATTORNMENT.
23.1. Estoppel Certificate. Tenant shall, within fourteen (14)
days of the request of Landlord, issue an estoppel certificate, in the
form supplied by Landlord, to any party designated by Landlord. Should
Tenant fail to sip an estoppel certificate within fourteen (14) days or
unreasonably withhold its signature, Landlord may commence legal
proceedings to enforce this provision and in the event that Landlord
prevails in any such proceeding, Tenant shall be responsible for all
legal fees incurred by Landlord and for all damages incurred by
Landlord resulting from Tenant's failure to sign an estoppel
certificate.
23.2. Attornment In the event of the sale or assignment of
Landlord's interest in the Park of which the Demised Premises are a
part or in the event of the exercise of the power of sale under any
mortgage made by Landlord, Tenant shall execute upon request a
non-disturbance and an attornment agreement with the purchaser to
recognize such purchaser as Landlord under this Lease in return for the
purchaser's agreement not to disturb Tenant's possession hereunder.
24. NOTICES. All notices and elections required or desired to be given
hereunder shall be in writing, and shall be sent by either (i) United States
registered or certified mails, return receipt requested, or (ii) overnight mail,
facsimile transmission or hand-delivery, and shall be effective upon receipt.
All notices shall be addressed as follows:
For Tenant:
Xxxxx X. Xxxxxxxx
PODS
0000 00xx Xxxxxx Xxxxx, Xxxxxxxx #0
Xx. Xxxxxxxxxx, XX
Telephone:
Facsimile:
With a copy to:
Xxxx Xxxxxxxxx
000 X. Xxxxxxxxx Xxx.
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
For Landlord:
Viking Associates
Xxx Xxxxxxxxx Xxxx
Xxxxx X
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
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Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Nothing herein contained shall be construed as prohibiting the parties
respectively from changing the place at which notice is henceforth to be given,
but no such change shall be effective until it shall have been accomplished by
written notice given in the manner set forth in this Section.
25. WAIVER OF SUBROGATION. Each party hereto hereby waives any and every
claim which arises or which may arise in its favor and against the other party
hereto during the term of this Lease or any extension or renewal thereof for any
and all loss of, or damage to, any of its property located within or upon
constituting a part of the Demised Premises, to the extent that such loss or
damage is recovered under an insurance policy or policies and is paid to the
waiving party and to the extent such policy or policies contain provisions
permitting such waiver of claims.
26. MISCELLANEOUS.
26.1. Waiver. The failure of Landlord to insist in any one or
more instances upon the strict performance of any one or more of the
agreements, terms, covenants, conditions or obligations of this Lease,
or to exercise any right, remedy or election herein contained, shall
not be construed as a waiver or relinquishment in the future of such
performance or exercise, but the same shall continue and remain in full
force and effect with respect to any subsequent breach, act or
omission. The failure of Tenant to insist in any one or more instances
upon the strict performance of any one or more of the agreements,
terms, covenants, conditions or obligations of this Lease, or to
exercise any right, remedy or election herein contained, shall not be
construed as a waiver or relinquishment in the future of such
performance or exercise, but the same shall continue and remain in full
force and effect with respect to any subsequent breach, act or
omission.
26.2. Headings. The headings of the Sections of this Lease have been
inserted for convenience or reference only, shall not constitute a part
hereof and shall not be construed as defining or limiting the scope of
any provision herein.
26.3. Counterparts. This Lease may be signed by Tenant and Landlord
in counterparts, all of which when taken together shall be deemed an
original Lease. Facsimile signatures of the parties will be acceptable
to the parties, provided that the faxing party provide an actual
executed Lease Agreement the next day by overnight delivery.
26.4. Plural, Singular, Gender. Where appropriate, the use of the
singular herein shall include and be deemed to be the plural, the use
of the plural herein shall include and be deemed to be the singular and
the use of gender shall include all gender.
26.5. Time of the Essence. Time shall be of the essence with respect
to the performance by Tenant and Landlord of their respective
obligations under this Lease.
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26.6. Weekend or Legal Holiday. If the date for performing any
covenant under this Lease shall fall on a Saturday, Sunday or legal
holiday, the date for performance of same shall be extended to the next
succeeding business day.
26.7. Time Period Calculations. For purposes of this Lease, where
the term "days" is used in connection with a time period consisting of
five (5) days or less, such time period shall be construed to mean
business days; if such time period exceeds five (5) days, such time
period shall be construed to mean calendar days.
26.8. Partial Invalidity. If any term or provision of this Lease or
the application thereof to any party or circumstances shall, to any
extent be held invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to parties or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest
extend of the law.
26.9. Lease Not Recordable. This Lease shall not be recorded in any
public records, and any such recording shall be void and of no effect.
26.10. Choice of Law. This Lease and the rights of the parties
hereunder shall be construed under and governed by the laws of the
State of Florida and venue with respect to any litigation shall be
Pinellas County, Florida. This Agreement shall not be construed more
strictly against one party than against the other because it may have
been prepared by counsel for one of the parties, it being recognized
that both Landlord and Tenant have contributed substantially and
materially in the negotiation and preparation of this Lease.
27. PERSONS BOUND. The submission of this Lease does not constitute a
reservation of, or option for, the Demised Premises and this Lease shall become
a binding offer and legally enforceable contract only upon execution and
delivery thereof by both Landlord and Tenant and the payment of any sums due
upon the execution of this Lease at set forth herein. All rights and liabilities
herein given to, or imposed upon the respective parties hereto, shall extend to
and bind the several and respective heirs, executors, administrators, successors
and assigns of said parties.
27.1. If the term "Tenant," as used in this Lease, refers to more
than one person, then as used in this Lease, said term shall be deemed
to include all of such persons or any of them; if any of the
obligations of Tenant pursuant to this Lease are guaranteed, the term
"Tenant" shall be deemed to include Tenant, the Guarantor, or either or
both of them; and if this Lease shall have been assigned, the term
"Tenant" shall be deemed to include the Tenant, the assignee, or either
or both of them, provided that this Lease shall not inure to the
benefit of any assignee or successor of Tenant except upon the express
written consent of Landlord as herein provided.
27.2. The term "Landlord", as used in this Lease, means the fee
owner of the Park and Landlord above-named represents that it is the
holder of such rights as of the date of execution of this Lease. Tenant
acknowledges that Vikco, Inc. t/a Viking Associates is
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the authorized agent and representative of Landlord and is empowered to
act on the Landlord's behalf. Tenant further acknowledges that all
protection and indemnifications which extend to Landlord herein shall
also extend to Viking Associates. In the event of the voluntary or
involuntary transfer of Landlord's ownership interest to a
successor-in-interest of Landlord, Landlord shall be freed and relieved
of all liability and obligation hereunder which shall thereafter accrue
and Tenant shall look solely to such successor-in-interest for the
performance of the covenants and obligations of the Landlord hereunder
which shall thereafter accrue. The liability of Landlord and its
successors-in-interest, under or with respect to this Lease, shall be
strictly limited to and enforceable only out of its or their interest
in the Park and shall not be enforceable out of any other assets. No
mortgagee or ground Landlord which shall succeed to the interest of
Landlord hereunder shall: (i) be liable for any previous act or
omission of a prior Landlord, (ii) be subject to any rental offsets or
defenses against parties and that there are no promises, leases,
conditions or understandings, either oral or written between them other
than are herein set forth. It is further understood and agreed that,
except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
28. ENTIRE AGREEMENT. It is expressly understood and agreed by and between
the parties hereto that this Lease, and any Rider or Addendum that may be
attached hereto, sets forth the entire lease between the parties and that
there are no promises, leases, conditions or understandings, either oral or
written between them other than are herein set forth. It is further understood
and agreed that except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and signed by them.
29. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TENANT OR LANDLORD MAY
HEREINAFTER INSTITUTE AGAINST THE OTHER, PROVIDED SUCH WAIVER IS NOT PROHIBITED
BY LAW.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby have caused this Lease to be executed the day and year as set forth
below.
WITNESS/ATTEST: TENANT:
PORTABLES ON DEMAND STORAGE, LLC
(d/b/a/ PODS)
By:
----------------------------- ------------------------------------------
Name:
Title:
Date: 199
---------------, ----
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LANDLORD:
MCIP REALTY ASSOCIATES NO.2
MCIP REALTY ASSOCIATES NO.3,
MCIP REALTY ASSOCIATES NO.4,
MCIP REALTY ASSOCIATES NO.5,
New Jersey general partnerships
By:
---------------------------- ------------------------------------------
Xxxxxx X. Xxxxxx, general partner
Date: 199
----------------- --
By:
---------------------------- ------------------------------------------
Xxxxxxx X. Xxxxxx, general partner
Date: 199
----------------- --
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