EXHIBIT 10.4
LEASE
1. BASIC LEASE PROVISIONS.
1.1 PARTIES. This Lease (the "Lease"), dated as of this 24th day of
April, 2000 is made by and between TAMPA TRI-COUNTY FLEXXSPACE,LTD.
(hereinafter referred to as "Landlord"), and XXXXXXXXX & XXXX, INC.,
(hereinafter referred to as "Tenant").
1.2 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord a portion of real property commonly known as (2I 7 AND 8) 14470
AND 00000 XXXXXXX XXXXXX, XXXXX, XXXXXXX 00000 located at TRI-COUNTY BUSINESS
PARK, (hereinafter referred to as the "Center"), consisting of approximately
12,500 square feet (the "Leased Premises"). The location of the Leased Premises
is generally delineated on Exhibit "A" which is attached hereto and made a part
hereof. All of the real property underlying the Center and adjacent thereto,
with all improvements thereon, including the Center and the Common Areas (as
defined below), and used in connection with the operation of the Center, shall
hereinafter be referred to as the "Project".
1.2.1 The Leased Premises consists of approximately 660 square feet of
office space and approximately 11,840 square feet of AIR CONDITIONED warehouse
space. Reference to square footage of the Leased Premises is approximated.
Terms and conditions of this lease shall not be modified or affected if actual
square footage differs from the approximated square footage.
1.3 USE OF ADDITIONAL AREAS. The use and occupation by the Tenant of the
Leased Premises shall include the non-exclusive use, in common with others
entitled thereto, of the common areas, employees' parking areas, service roads,
malls, loading facilities, sidewalks and customer car parking areas as such
common areas now exist or as such common areas may hereafter be constructed, and
other facilities as may be designated from time to time by the Landlord, subject
to the terms and conditions of this Lease and to reasonable rules and
regulations for the use thereof as prescribed from time to time by the Landlord.
1.4 USE OF LEASED PREMISES. Tenant will use and occupy the Leased Premises
only for the purposes of OFFICE/WAREHOUSE and for no other use and purpose. In
the event that Tenant uses the Leased Premises for purposes not expressly
permitted herein, Landlord may seek damages without terminating Lease, in
addition to all other remedies available to it, terminate this Lease or restrain
said improper use by injunction. Tenant shall not perform any acts or carry on
any practices which may damage the Project, building or improvements or be a
nuisance or menace to other tenants in the Project or their customers, employees
or invitees or which will result in the increase of casualty insurance premiums.
Tenant agrees to conduct its business in the Leased Premises under the name or
trade name as set forth in the Lease Agreement and under no other name or trade
name except such as may be first approved by Landlord in writing. Tenant shall
be solely responsible to determine if the intended use complies with all
governmental regulations. Landlord, by execution of this Lease or otherwise,
makes no representations that the intended use complies with governmental
regulations.
1.5 TERM. The Lease term shall commence on JUNE 1, 2000 (hereinafter
referred to as the "Commencement Date") and shall terminate on MAY 31, 2005,
unless earlier terminated pursuant to the terms hereof (hereinafter referred to
as the "Term"). The "Lease Year" hereunder shall be defined as a period of
twelve (12) consecutive months, with the first Lease Year commencing on the
Commencement Date and each subsequent Lease Year commencing on the expiration of
the immediately preceding Lease Year. The expiration of every Lease Year shall
be referred to as the "Anniversary".
1.6 FAILURE OF TENANT TO TAKE POSSESSION. In the event that Tenant fails to
take possession or, if applicable, to occupy the Leased Premises and to commence
to do business on the Commencement Date, then Tenant shall be in default
hereunder and Landlord shall have the right, at its option, to cancel this Lease
by giving Tenant written notice of intent to cancel thereof and this Lease will
terminate ten (10) days after the giving of such notice and Landlord will retain
all prepaid rentals and security deposits as liquidated and agreed damages.
1.7 OBLIGATIONS OF TENANT BEFORE RENT COMMENCEMENT DATE. In the event the
Commencement Date precedes the time for payment of rent, Tenant shall observe
and perform all of its obligations under this Lease (except its obligations to
pay Base Rent) beginning on the Commencement Date.
1.8 OBLIGATIONS OF LANDLORD BEFORE LEASED PREMISES BECOMES VACANT. If this
Lease is executed before the Leased Premises becomes vacant, or if any present
Tenant or occupant of the Leased Premises holds over, and Landlord cannot
acquire possession of the Leased Premises prior to the Commencement Date of this
Lease, Landlord shall not be deemed to be in default hereunder, and Tenant
agrees to accept possession of the Leased Premises and rent shall commence at
such time as Landlord is able to deliver the same; provided, however, Tenant
shall not be obligated hereunder unless Landlord is able to deliver the Leased
Premises within ninety (90) days of the Commencement Date.
1.9 CONTROL OF COMMON AREAS BY LANDLORD. All areas within the exterior
boundaries of the Project which are not now or hereafter held for lease or
occupation by the Landlord, or used by other persons entitled to occupy floor
space in the Project, including, without limitation, all automobile parking
areas, driveways, entrance and exits thereto, and other facilities furnished by
Landlord in or near the Project, including employee parking areas, the through
way or ways, loading docks, pedestrian sidewalks and ramps, landscaped areas,
exterior stairways and other areas and improvements provided by Landlord for the
general use, in common, of tenants, their officers, agents, employees and
customers ("Common Areas") shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right, but not
the obligation, to construct, maintain and operate lighting facilities on all
said areas and improvements, to patrol the same, from time to time to change the
area, level, location and arrangement of parking areas and other facilities
herein above referred to; to restrict parking by tenants, their officers, agents
and employees to employee parking areas.
Landlord shall have the right to close all or any portion of said areas or
facilities to such extent as may, in the opinion of Landlord's counsel, be
legally sufficient to prevent a dedication thereof or the accrual of any rights
to any person or the public therein to close temporarily all or any portion of
the parking areas or facilities, to discourage non-customer parking; and to do
and perform such other acts in and to said areas and improvements as, in the use
of good business judgment, the Landlord shall determine to be advisable with a
view to the improvement of the convenience and use thereof by tenants, their
officers, agents, employees and customers. Landlord shall keep said Common Areas
clean and in good repair and available for the purposes for which they are
intended. Landlord shall have the full right and authority to employ all
personnel and to make all rules and regulations pertaining to and necessary for
the proper operation and maintenance of the Common Areas and facilities.
1.10 LICENSE. All Common Areas and facilities not within the Leased
Premises, which Tenant may be permitted to use and occupy, are hereby authorized
to be used and occupied under a revocable license, and if any such license be
revoked, or if the amount of such areas be diminished, Landlord shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation or diminution of such
areas be deemed constructive or actual eviction.
2. PAYMENT OF RENT AND OTHER CHARGES.
2.1 BASE RENT. Tenant agrees to pay to Landlord throughout the Term of this
Lease, monthly payments of base rent ("Base Rent") as set forth below, which
amounts shall be paid to Landlord in advance in United States money on or before
the first day of each month, without any offset or deduction whatsoever, not
including applicable Florida sales and use tax for each of said monthly
payments:
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Period Total Annual Monthly
Base Rent Base Rent
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June 1, 2000 through May 31, 2001 $79,125.00 $6,593.75
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June 1, 2001 through May 31, 2002 $83,000.04 $6,916.67
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June 1, 2002 through May 31, 2003 $87,125.04 $7,260.42
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June 1, 2003 through May 31, 2004 $91,374.96 $7,614.58
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June 1, 2004 through May 31, 2005 $95,874.96 $7,989.58
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2.1.1 Services Provided. The following services at minimum are
provided:
2.1.1.1 gardening, landscaping and irrigation, exterior
repairs and painting:
2.1.1.2 sanitary control, removal of trash, rubbish, garbage
and other refuse from the Common Areas but not from any Leased Premises;
2.1.1.3 utilities for Common Areas;
2.1.1.4 maintenance and repair of air conditioning;
2.1.1.5 a dumpster(s) will be provided for refuse collection.
Dumpsters are for office and incidental waste only. Those tenants determined by
Landlord to produce excessive and/or refuse that we do not allow to be disposed
in our dumpster(s) will be required to provide their own dumpster at their
expense.
2.2 SALES OR USE TAX OR EXCISE TAX. Tenant shall also pay, as Additional
Rent, all sales or use or excise tax imposed, levied or assessed against the
rent or any other charge or payment required herein by any governmental
authority having jurisdiction there over, even though the taxing statute or
ordinance may purport to impose such sales tax against the Landlord. The payment
of sales tax shall be made by Tenant on a monthly basis, concurrently with
payment of the Base Rent.
2.3 PRO RATA SHARE OF PROJECT AREA EXPENSES. For each Lease Year or partial
Lease Year if Project Area Expenses are calculated by calendar year, Tenant will
pay to Landlord, in addition to the Base Rent specified above, as further
additional rent, "Tenant's proportionate share" of "Project Area Operating
Expenses", less the "Base Amount".
2.3.1 "Tenant's proportionate share" shall mean a proportion of the
Project Area Operating Expenses, calculated by multiplying the total Project
Area Operating Expenses by a fraction, the numerator of which shall be the
number of square feet contained in the Leased Premises and the denominator of
which shall be the aggregate number of square feet of leasable building space in
the Project, which Tenant's proportionate share is hereby agreed to be .0185.
2.3.2 "Base Amount" shall mean a sum equal to the aggregate Project
Area Operating Expenses determined by Landlord for the Base Year, excluding any
administrative fee.
2.3.3 "Project Area Operating Expenses" as used herein means the total
cost and expense incurred in operating and repairing the Project buildings and
improvements and common facilities, hereinafter defined, excluding only items of
expense commonly known and designated as debt service, plus an administrative
fee of fifteen percent (15%) of that sum. Project Area Operating Expenses shall
specifically include, without limitation:
2.3.3.1 Gardening, landscaping and irrigation, repairs,
painting;
2.3.3.2 Management fees;
2.3.3.3 Sanitary control, removal of trash, rubbish, garbage
and other refuse from the Common Areas but not from any Leased Premises;
2.3.3.4 Depreciation on machinery and equipment,
2.3.3.5 The cost of maintenance and support personnel,
including but not limited to payroll and applicable payroll taxes, worker's
compensation insurance and fringe benefits;
2.3.3.6 Utility charges for the common areas;
2.3.3.7 Water and sanitary sewer charges not billed directly
to tenants;
2.3.3.8 Association fees or dues; and
2.3.3.9 Any and all other charges, costs or expenses which
may be associated with Landlord's operation of the Project (excluding Real
Estate Taxes and Insurance).
2.3.4 "COMMON FACILITIES" means all areas, space, equipment and
special services provided by Landlord for the common or joint use and benefit of
the occupants or operations of the Project, their employees, agents, servants,
customers and other invitees, including without limitation, parking areas,
access roads, driveways, retaining walls, landscaped areas, pedestrian malls,
courts, stairs, ramps and sidewalks, public rest rooms, washrooms, community
hall or auditorium (if any) and signs, wherever located, identifying the
Project, or providing instructions thereto.
2.3.5 Landlord may estimate the Project Area Operating Expenses and
Tenant shall pay one-twelfth (1/12) of Tenant's proportionate share of said
estimated amount monthly in advance, together with the next due payment of Base
Rent. After the end of each Lease Year, Landlord shall furnish Tenant a
statement of the actual Project Area Operating Expenses. Within thirty (30) days
after receipt by Tenant of said statement, Tenant shall have the right in person
to inspect Landlord's books and records as pertain to said Project Area
Operating Expenses, at Landlord's office, during normal business hours, upon
four (4) days prior written notice. The statement shall become final and
conclusive between the parties unless Landlord receives written detailed
objections with respect thereto within said thirty (30) day period. Any balance
shown to be due pursuant to said statement shall be paid by Tenant to Landlord
within thirty (30) days following Tenant's receipt thereof and any overpayment
shall be immediately credited against Tenant's obligation to pay Additional Rent
in connection with anticipated Project Area Operating Expenses for the next
year, or, if by reason of any termination of this Lease no such future
obligation exists, refunded to Tenant. Anything herein to the contrary
notwithstanding, Tenant shall not delay or withhold payment of any balance shown
to be due pursuant to a statement rendered by Landlord to Tenant because of any
objection which Tenant may raise with respect thereto and Landlord shall
immediately credit or refund any overpayment found to be owing to Tenant as
aforesaid upon the resolution of said objection.
Additional Rent due by reason of this section for the final months of this Lease
is due and payable even though it may not be calculated until subsequent to the
termination date of the Lease and shall be prorated according to that portion of
said calendar year that this Lease was actually in effect. Tenant expressly
agrees that Landlord, at Landlord's sole discretion, may apply the Security
Deposit, in full or partial satisfaction of any Additional Rent due for the
final months of this Lease, but nothing herein contained shall be construed to
relieve Tenant of the obligation to pay any Additional Rent due for the final
months of this Lease, nor shall Landlord be required to first apply said
Security Deposit to such Additional Rent if there are any other sums or amounts
owed Landlord by Tenant by reason of any other terms or provisions of this
Lease.
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2.4 ADDITIONAL RENT. In order to give Landlord a lien of equal priority
with Landlord's lien for rent, and for no other purpose, including tax
determination, any and all sums of money or charges required to be paid by
Tenant under this Lease, whether or not the same be so designated, shall be
considered "Additional Rent." If such amounts or charges are not paid at the
time provided in this Lease, they shall nevertheless, if not paid when due, be
collectible as Additional Rent with the next installment of rent thereafter
falling due hereunder, but nothing herein contained shall be deemed to suspend
or delay the payment of any amount of money or charges as the same becomes due
and payable hereunder, or limit any other remedy of Landlord.
2.5 SPECIAL ASSESSMENTS For each Lease Year, Tenant will pay to Landlord,
in addition to Base Rent as further Additional Rent, Tenant's proportionate
share of any special assessments assessed against the Project, with applicable
tax, if any. The payment of any such special assessments shall be made by Tenant
on a monthly basis, concurrently with Base Rent. Tenant's proportionate share of
any such special assessment shall be the proportionate share stated in Section
2.3.1.
2.6 REAL ESTATE TAXES. For each Lease Year or partial Lease Year, if real
estate taxes are computed for a calendar year, Tenant will pay to Landlord, in
addition to Base Rent as further Additional Rent, a percentage share of all ad
valorem and real estate taxes levied by any lawful authority against the Project
less ad valorem and real estate taxes of the Project for the base year.
Percentage share shall be calculated by multiplying the total taxes charged in
the tax xxxx(s) in which the building of the Leased Premises is included, by a
fraction, the numerator of which shall be the number of square feet contained in
the Leased Premises and the denominator of which shall be the aggregate number
of square feet of leasable building space in property subject to the tax bills
referenced above, which percentage share shall be .1316 OF THE REAL ESTATE TAX
FOLIO NUMBER 3521.5015. Landlord may estimate the amount in the manner set out
in Section 2.3.5.
2.7 INSURANCE. For each Lease Year or partial Lease Year, if insurance is
paid per calendar year, Tenant will pay to Landlord, in addition to Base Rent as
further Additional Rent, Tenant's proportionate share of Landlord's insurance
premiums on or in respect of the Project, including but not limited to public
liability, property damage, all risk perils, rent and flood insurance, if
carried by Landlord less said insurance premiums for the base year. Tenant's
proportionate share shall be .0185. Landlord may estimate the amount in the
manner set out in Section 2.3.5.
2.8 COUNTY STORM WATER CHARGES. N/A
2.9 For the first Lease Year, the estimated monthly payment under 2.3.5,
2.6 and 2.7 is N/A. The base year for computation of proportionate share and
percentage share is 2000.
2.10 GUARD/PATROL SERVICES. Landlord, in its sole discretion, determination
and option may, but is not required to enter into a contract or contracts or
otherwise provide or make arrangement for the providing of guard, patrol and/or
security which may include security guards and/or electronic devices and/or a
guard gate and/or gate house. Tenant shall pay its proportionate share for the
expense of the services. Landlord shall in no way be responsible for the
performance or non-performance of the obligations of guard/patrol/security
personnel or service, including but not limited to negligent or intentional
acts, and Tenant hereby releases Landlord from any claims of any nature
whatsoever in connection therewith.
2.11 RENTAL PAYMENTS.
2.11.1 Tenant will promptly pay all rentals and other charges and
render all statements herein prescribed. Any rental payment not received by
Landlord on its due date shall incur a "late charge" equal to five percent (5%)
of such payment to compensate Landlord for its administrative expenses in
connection with such late payment. When rental payments are delivered by Tenant
through the mails, Tenant shall mail such payments sufficiently in advance so
that the Landlord will receive the payments on or before the first day of the
calendar month or on or before the due date in the event the due date is other
than the first day of a calendar month. If Landlord shall pay any moneys, or
incur any expenses in correction of any violation of any covenant or of any
other obligation of Tenant herein set forth or implied herein, the amounts so
paid or incurred shall, at Landlord's option and on notice to Tenant, be
considered additional rentals payable by Tenant, with the first installment of
rental thereafter to become due and payable, and may be collected or enforced as
by law provided in respect to rentals.
2.11.2 In the event any payment of Rent, whether Base rent or
Additional Rent, is made by check and the check is returned to Landlord due to
insufficient funds, Landlord shall have the right, upon written notice to
Tenant, to require all future rent payments to be made by cashier's check. If
this right is exercised by Landlord, attempted payment by means other than
cashier's check shall not be deemed a payment pursuant to this Lease, unless the
Landlord, in writing, revokes the requirement of a cashiers check.
3. DELIVERY OF LEASED PREMISES.
3.1 CONSTRUCTION OF PREMISES BY LANDLORD.
3.1.1 Landlord has constructed the Leased Premises prior to the
execution of this Lease. Tenant certifies that it has inspected the Leased
Premises and accepts the Leased Premises existing "as is" condition.
3.2 TENANT'S WORK. Tenant agrees, at its own cost and expense, to perform
all work and comply with all conditions, more particularly described in Exhibit
"D" annexed hereto, which is necessary to make the Leased Premises conform with
Tenant's plans to be approved by Landlord. No later than thirty (30) days after
the execution of this Lease, Tenant shall furnish Landlord, in advance of
Tenant's commencement of work, for Landlord's written approval, plans and
specifications showing a layout, interior finish, and any work or equipment to
be done or installed by Tenant affecting any structural, mechanical or
electrical part of the Leased Premises or the building containing same. Landlord
agrees it will not unreasonably withhold such approval, it being the only
purpose of this requirement that Tenant's work shall not be detrimental to the
other tenants in the Project or to Landlord's building. To the extent not
inconsistent with this section, Section 6 of this Lease shall apply to this
Section 3.2. Tenant shall be responsible for all costs and expenses for
architectural fees, plans and Tenant improvements.
3.3 CHANGES AND ADDITIONS TO BUILDING. Landlord hereby reserves the right
at any time to perform maintenance operations and to make repairs, alterations,
or additions, and to build additional stories on the building in which the
Leased Premises are contained and to build adjoining the same. Landlord also
reserves the right to construct other buildings or improvements, including, but
not limited to, structures for motor vehicle parking and the enclosing and air
conditioning of sidewalks in the Project from time to time and to make
alterations thereof or additions thereto. Tenant agrees to cooperate with
Landlord permitting Landlord to accomplish any such maintenance, repairs,
alterations, additions or construction. Temporary, partial obstruction of access
to Tenant's premises caused by such construction shall not be a default of
Landlord.
3.4 RIGHT TO RELOCATE. Landlord reserves the right to relocate the Tenant
from Leased Premises to another premises within the Project upon reasonable
notice. Landlord shall only be responsible for payment of reasonable costs and
expenses incurred by Tenant for the moving of personalty from the Leased
Premises to the new premises. Under no circumstances shall Landlord be liable
for loss of revenue, business or income in the event the right to relocate is
exercised.
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4. CONDUCT OF BUSINESS BY TENANT.
4.1 TAKING POSSESSION OF PREMISES. Tenant shall occupy the Leased Premises
without delay upon the Commencement Date, and shall conduct its business
continuously in the Leased Premises.
4.2 OBJECTIONABLE USE OF PREMISES. Without limiting application of any
other provision in this Lease, the following actions and activities shall not be
allowed in on or upon the Leased Premises, the Common Areas or the Project
without the prior written consent of Landlord.
4.2.1 Employment of any mechanical apparatus causing noises or
vibration which may be transmitted beyond the Leased Premises.
4.2.2 Objectionable odors emanating or dispelled from the leased
premises.
4.2.3 Conducting any auction, fire, bankruptcy selling out or similar
sales of any kind on or about the Leased Premises; display merchandise on the
exterior of the Leased Premises either for sale or for promotion purposes.
4.2.4 Use or operate any machinery, which in Landlord's reasonable
opinion, may harm the building of which the Leased Premises is a part.
4.2.5 Store, keep or permit the storage of any merchandise, equipment,
machinery or any other item on the walkways, loading docks, parking areas, roof
or grounds surrounding the Leased Premises or Common Areas not specifically
referenced herein.
4.2.6 Store or dump on or about the Demised Premises trash, rubbish,
pallets, chemicals, hazardous, toxic or other such substances or dispose or
attempt to dispose of such items in the sewers or storm drains of the Demised
Premises.
4.2.7 Wash and/or wax and/or repair vehicles. Store or keep any boats,
recreational vehicles, trailers or inoperable or unregistered vehicles outside
Demised Premises or in parking areas, leave vehicles in any parking areas on the
property for an extended period of time.
4.2.8 Residing in the Leased Premises, the Common Area or the Project.
4.2.9 Abandon or dispose of personal property by leaving same in the
Leased Premises, Common Areas or Project.
4.2.10 Allowing animals or pets on the Leased Premises, Common Areas
or Project.
4.2.11 Parking on the grassed or landscaped area, parking in areas
blocking access to the Common Area or the Project, parking in areas blocking
access to any areas other than the Demised Premises.
4.3 REMEDIES IN CASE OF VIOLATION. In the event Tenant violates any
provision of Section 4.2, Landlord shall provide Tenant written notice of the
violation. Tenant shall have three (3) days from date of delivery of notice to
cease and/or cure the objectionable use, providing, however, in the event Tenant
violates the terms of this Section more than twice during the Term, Landlord
shall not be required to provide written notice or a cure period to invoke the
remedies authorized herein.
4.4 In the event Tenant fails to cure and/or cease objectionable activities
Landlord may (1) declare the lease materially breached; (2) cure the violation
as the Landlord in its sole discretion deems appropriate with costs and fees for
doing so charged to the Tenant as Additional Rent; (3) take such legal or
equitable action as is appropriate, including but not limited to seeking
injunctive relief; (4) take such other action as is authorized by law. These
remedies shall be deemed cumulative. Nothing herein shall prohibit Landlord from
taking emergency action in the event any violation threatens the life, health
and/or safety of any person or threatens property on or of the project.
5. SECURITY DEPOSIT.
5.1 AMOUNT OF DEPOSIT. Prior to Landlord's execution of this Lease, Tenant
shall deposit with the Landlord the sum of $ 5,000.00 (CURRENTLY ON DEPOSIT),
and if by check, is subject to collection. Said deposit shall be held by
Landlord, without liability for interest, and may be commingled with other funds
of Landlord as security for the faithful performance by Tenant of all the terms,
covenants, and conditions of this Lease by Tenant to be kept and performed
during the term hereof.
5.2 USE AND RETURN OF DEPOSIT. If at any time during the term of this
Lease any of the rent herein reserved shall be overdue and unpaid, or any other
sum payable by Tenant to Landlord hereunder shall be overdue and unpaid or in
the event of the failure of Tenant to keep and perform any of the terms,
covenants and conditions of this Lease to be kept and performed by Tenant, then
Landlord may, at its option (but Landlord shall not be required to) appropriate
and apply all or any portion of said deposit to the payment of any such overdue
rent or other sum or so much thereof as shall be necessary to compensate the
Landlord for all loss or damage sustained or suffered by Landlord due to the
breach of Tenant. Should the entire deposit, or any portion thereof, be
appropriated and applied by Landlord for the payment of overdue rent or other
sums due and payable by Tenant hereunder, then Tenant shall, upon the written
demand of Landlord forthwith remit to Landlord a sufficient amount in cash to
restore said security to the original sum deposited, and Tenant's failure to do
so within five (5) days after receipt of such demand shall constitute a breach
of this Lease. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant at the expiration of the term of this Lease. The
security deposit shall not be deemed last month's rent.
5.3 TRANSFER OF DEPOSIT. Landlord may deliver the funds deposited hereunder
by Tenant to the purchaser or transferee of Landlord's interest in the Leased
Premises, in the event that such interest be sold or transferred, and thereupon
Landlord shall be discharged from any further liability with respect to such
deposit.
6. FIXTURES AND ALTERATIONS.
6.1 INSTALLATION BY TENANT.
6.1.1 All improvements installed by Tenant shall be new or in good
working order. Tenant shall not make or cause to be made any alterations,
additions or improvements or install or cause to be installed any exterior
signs, exterior lighting, plumbing fixtures, fences, gates, shades or awnings or
make any changes to the common areas or the exterior of the building in which
the Leased Premises are located without first obtaining Landlord's written
approval and consent. Tenant shall present to the Landlord plans and
specifications for such work at the time approval is sought, and simultaneously
demonstrate to Landlord that the proposed alterations comply with local zoning
and building codes. Upon Tenant's breach of this provision, Landlord may take
such action as is necessary to remove the unauthorized installation with all
cost and expense to be charged to Tenant as additional rent. In addition,
Landlord may take such legal action at law or equity as a result of the breach,
including but not limited to injunctive relief.
6.1.2 All construction work done by Tenant within the Leased Premises
and otherwise shall be performed in a good and workmanlike manner, in compliance
with all governmental requirements, and in such manner as to cause a minimum of
interference with other construction in progress (if any) and with the
transaction of business in the Project. Without limitation on the generality of
the foregoing, Landlord shall have the right to require that such work be
performed outside of general business hours, and in accordance with other rules
and regulations which Landlord may, from time to time prescribe. Tenant agrees
to indemnify Landlord and hold it harmless against any loss, liability or
damage, resulting from such work, and Tenant shall, if requested by Landlord,
furnish bond or other security satisfactory to Landlord against any such loss,
liability or damage. Tenant shall be liable to Landlord for any damages
resulting from labor disputes, strikes or demonstrations resulting from Tenant's
construction or alteration work with the employment of non-union workers.
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6.2 RESPONSIBILITY OF TENANT. All alterations, decorations, additions and
improvements made by the Tenant, or made by the Landlord on the Tenant's behalf
by agreement under this Lease, shall remain the property of the Tenant for the
term of this Lease, or any extension of renewal thereof. Such alterations,
decorations, additions and improvements shall not be removed from the premises
without prior consent in writing from the Landlord. Upon expiration of this
Lease, or any renewal term thereof, the Landlord shall have the option of
requiring the Tenant to remove all such alterations, decorations, additions and
improvements, and restore the Leased Premises as provided in Section 7.2 hereof.
If the Tenant fails to remove such alterations, decorations, additions and
improvements and restore the Leased Premises, then such alterations,
decorations, additions and improvements shall become the property of the
Landlord and in such event, should Landlord so elect, Landlord may restore the
premises to its original condition for which cost, with allowance for ordinary
wear and tear, Tenant shall be responsible and shall pay promptly upon demand.
6.3 TENANT SHALL DISCHARGE ALL LIENS . Nothing contained in this Lease
shall be construed as a consent on the part of the Landlord to subject the
estate of the Landlord to liability under the Construction Lien Law of the State
of Florida, it being expressly understood that Landlord's estate shall not be
subject to liens for improvements made by the Tenant. Tenant shall strictly
comply with the Construction Lien Law of the State of Florida as set forth in
Florida Statutes Section 713. In the event that a claim of lien is filed against
the property in connection with any work performed by or on behalf of the
Tenant, the Tenant shall satisfy such claim or shall transfer same to security,
within ten (10) days from the date of filing. In the event that the Tenant fails
to satisfy or transfer such claim within said ten (10) day period, the Landlord
may do so and thereafter charge the Tenant, as additional rent, all costs
incurred by the Landlord in connection with satisfaction or transfer of such
claim, including attorneys' fees. Further, the Tenant agrees to indemnify,
defend and save the Landlord harmless from and against any damage or loss
incurred by the Landlord as a result of such claim of lien. If so requested by
the Landlord, the Tenant shall execute a short form or memorandum of this Lease,
which may, in the Landlord's discretion be recorded in the Public Records for
the purpose of protecting the Landlord's estate from claims of lien, as provided
in Florida Statutes Section 713.10. In the event such short form or memorandum
of lease is executed, the Tenant shall simultaneously execute and deliver to the
Landlord an instrument terminating the Tenant's interest in the real property
upon which the Leased Premises are located, which instrument may be recorded by
the Landlord only at the expiration of the term of this Lease, or such earlier
termination hereof. Landlord only has the right to record the memorandum without
execution by Tenant in the event Tenant fails to execute the memorandum with
seven (7) days of request. The security deposit paid by the Tenant may be used
by the Landlord for the satisfaction or transfer of any claim of lien, as
provided in this Section. This Section shall survive the termination of the
Lease.
6.4 SIGNS. Tenant shall not exhibit, inscribe, paint or affix any sign,
advertisement, notice or other lettering on any part of the outside of the
Demised Premises or of the building of which the Demised Premises are a part, or
inside the Demised Premises if visible from the outside, without the written
consent of Landlord. If consent is given, Tenant further agrees to maintain such
sign, lettering, etc. as may be approved in accordance with all city, county,
and state laws, ordinance or requirements and in good condition and repair at
all times.
7. REPAIRS AND MAINTENANCE OF LEASED PREMISES.
7.1 RESPONSIBILITY OF LANDLORD. Provided Tenant is not in default according
to the terms of this Lease and subject to interruption caused by repairs,
renewals, improvements, changes of service and alterations to the Leased
Premises, and further, subject to interruption caused by strikes, lockouts,
labor controversies, inability to obtain fuel or power, accidents, breakdowns,
catastrophes, national or local emergencies, "Acts of God," and conditions and
causes beyond the control of Landlord, Landlord will furnish the following
services to Tenant:
7.1.1 Landlord agrees to repair and maintain in good order and
condition the roof, roof drains, outside walls, foundations and structural
portions, both interior and exterior, of the Leased Premises. Landlord shall
initiate repairs of applicable problems within a reasonable period of time after
receipt of written notice of needed repairs or maintenance with completion as
soon as reasonably possible. There is excepted from this provision, however:
7.1.1.1 Repair or replacement of broken plate or window glass
(except in case of damage by fire or other casualty covered by Landlord's fire
and extended coverage policy);
7.1.1.2 Interior and exterior doors, door closure devices,
window and door frames, moldings, locks and hardware;
7.1.1.3 Repair of damage caused directly or indirectly by the
negligence or intentional acts of Tenant, its employees, agents, contractors,
customers, invitees; and
7.1.1.4 Interior repainting and redecoration.
7.1.2 Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain, or leaks from any part of the Leased Premises or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatever nature.
Landlord shall not be liable for any such damage caused by other tenants or
persons in the Leased Premises, occupants of adjacent property, of the Project,
or the public, or caused by operations in construction of any private, public or
quasi-public work. Landlord shall not be liable in damages or otherwise for any
latent defect in the Leased Premises or in the building of which they form a
part.
7.1.3 In no event, however, shall Landlord be liable for incidental
and/or consequential damages arising from (i) the failure to make said repairs,
or (ii) making repairs in a untimely manner, nor shall Landlord be liable for
incidental or consequential damages arising from defective workmanship or
materials in making any such repairs.
7.1.4 Except as hereinabove provided Landlord shall not be obligated
or required to make any other repairs, and all other portions of the Leased
Premises shall be kept in good repair and condition by Tenant.
7.2 RESPONSIBILITIES OF TENANT
7.2.1 Tenant agrees to maintain the Leased Premises in good order and
condition.
7.2.2 Tenant will not install any equipment which exceeds the capacity
of the utility lines leading into the Leased Premises or the building of which
the Leased Premises constitute a portion.
7.2.3 Tenant covenants and agrees to keep and maintain in good order,
condition and repair (which repair shall mean replace if necessary) the Leased
Premises and every part thereof, except as hereinbefore provided, including but
without limitation, the exterior and interior portions of all doors, equipment,
security gates, windows, glass, utility facilities, plumbing and sewage
facilities within the Leased Premises or under the floor slab including free
flow up to the main sewage line fixtures, heating equipment, air conditioning
(HVAC) including exterior mechanical equipment, exterior utility facilities and
exterior electrical equipment serving the Leased Premises and interior walls,
floors and ceilings, including compliance with all applicable building codes
including but not limited to those relative to fire extinguishers. Tenant will
use at Tenants cost a pest exterminating contractor at such intervals as may be
necessary to keep the Leased Premises free of rodents and vermin. If Tenant
refuses or neglects to commence or complete repairs promptly and adequately
Landlord may, but shall not be required to do so, make or complete said repairs
and Tenant shall pay the cost thereof to Landlord upon demand.
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7.2.4 Tenant, its employees, or agents, shall not deface any walls,
ceilings, partitions, floors, wood, stone or ironwork without Landlord's written
consent.
7.2.5 Tenant shall comply with the requirements of all laws, orders,
ordinances and regulations of all governmental authorities and will not permit
any waste of property or same to be done and will take good care of the Lease
Premises.
7.2.6 If Tenant refuses or neglects to maintain the Leased Premises
properly as required and does not correct an identified problem(s) to the
reasonable satisfaction of Landlord as soon as reasonably possible after written
demand, Landlord may take such remedial action as Landlord may reasonably
determine, without liability to Tenant, for any loss or damage that may accrue
to Tenant's equipment, fixtures, or other property, or to Tenant's business by
reason thereof and upon completion thereof Tenant shall pay Landlord's cost for
the taking of such action, plus twenty (20%) percent for overhead, upon
presentation of xxxx therefor, as additional rent. Said xxxx shall include
interest at fifteen (15%) percent of said cost from the date of completion by
Landlord. In the event the Landlord shall undertake any maintenance or repair in
the course of which it shall be determined that such maintenance or repair work
was made necessary by the negligence or willful act of Tenant or any of its
employees or agents or that the maintenance or repair is, under the terms of
this Lease, the responsibility of Tenant, Tenant shall pay Landlord's costs
therefore plus overhead and interest as above provided in this Section.
7.2.7 Unless requested in writing by the Landlord to the contrary, at
the expiration of the tenancy hereby created, Tenant shall surrender the Leased
Premises in the same condition as the Leased Premises were in upon the
Commencement Date or following completion of Tenant's Work, whichever is later,
reasonable wear and tear excepted, and damage by unavoidable casualty excepted,
and shall surrender all keys for the Leased Premises to Landlord. Tenant shall
remove all its trade fixtures, leased equipment and such part of the said
Tenant's Work and any subsequent alterations, decorations, additions and/or
improvements which Landlord requests to be removed before surrender of the
Leased Premises as aforesaid and shall repair any damage to the Leased Premises
caused thereby. All alterations, decorations, additions and/or improvements
left on the Leased Premises shall be in compliance with applicable governmental
codes, laws, ordinances and building standards. Any violation to paragraph 7.2
and it's subparts shall constitute an unsatisfactory condition. Tenant's
obligation and liability under this covenant shall survive the expiration or
other termination of this Lease. In the event that Tenant shall vacate the
Leased Premises in unsatisfactory condition, in addition to the cost of repairs,
Tenant shall:
7.2.7.1 pay to Landlord a sum equal to 110% of the Base Rent
and Additional Rent for the time period required to effect such repairs;
7.2.7.2 pay all damages that Landlord may suffer on account of
Tenant's vacating the Leased Premises in unsatisfactory condition; and
7.2.7.3 indemnify and save Landlord harmless from and against
any and all claims made by succeeding tenant of the Leased Premises against
Landlord on account of delay of Landlord in delivering possession of the Leased
Premises to said succeeding tenant to the extent that such delay is occasioned
by Tenant's vacating the Leased Premises in unsatisfactory condition.
7.2.8 Tenant shall at its own expense perform all janitorial and
cleaning services within the Leased Premises in order to keep same in a neat,
clean and orderly condition.
7.2.9 Tenant shall give Landlord prompt written notice (and telephonic
notice in the case of an emergency) of any fire or damage occurring on or to the
Leased Premises, any defects in the Leased Premises, and any defects in any
fixtures or equipment for which Landlord is responsible under the Lease.
8. UTILITIES. Tenant shall be solely responsible for and shall promptly
pay all charges for gas, electricity, telephone or any other separately metered
utility used or consumed in the Leased Premises. Landlord shall not be liable
for an interruption or failure in the supply of any such utilities to the Leased
Premises unless caused by the gross negligence or intentional act of the
Landlord.
9. INSURANCE AND INDEMNITY.
9.1 Tenant shall carry and maintain, at its sole cost and expense, the
following types of insurance, in the amounts specified and in the form
hereinafter provided for:
9.1.1 Public liability and property damage. Tenant shall, during the
Term, maintain insurance against public liability, including that from personal
injury or property damage in or about the Premises resulting from the
occupation, use, or operation of the Premises, insuring both Landlord,
Landlord's managing agent and Tenant and naming the Landlord and Landlord's
managing agent as an additional insured therein, in amounts of not less than ONE
MILLION DOLLARS ($1,000,000.00) against liability for bodily injury including
death and personal injury for any one (1) occurrence and not less than THREE
HUNDRED THOUSAND DOLLARS ($300,000.00) against liability for bodily injury
including death and personal injury for more than one (1) occurrence, and not
less than TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) for property damage.
9.1.2 Plate glass insurance providing full coverage for replacement of
damaged or destroyed glass in or upon the Premises;
9.1.3 Xxxxxxx'x compensation insurance for the benefit of all employees
entering upon the Premises as a result of or in connection with their employment
by Tenant;
9.1.4 All other insurance required of Tenant, as an employer, pursuant
to any law, rule, or ordinance of any governmental authority having
jurisdiction;
9.1.5 Fire, casualty, and extended coverage insurance on Lessee's
fixtures, improvements and finishings, which policies of insurance shall be in
amounts, in such forms and issued by such companies are as approved by Landlord
and shall name Landlord and Tenant as their interests may appear; and
9.1.6 Such other forms of insurance which are not available as of the
date hereof, but which may become available in the future and are typically
required by landlords of properties similar in character to the Center, if in
the Landlord's sole discretion, the same is necessary to adequately insure the
Premises and underlying property and such other forms of insurance which may
become necessary as the result of any changes in applicable laws.
9.2 The original of each policy of insurance, certified duplicates thereof,
and certificates of insurance issued by the insurance or insuring organization
shall be delivered to Landlord on or before the Commencement Date and proof of
renewal shall be provided to Landlord not less than thirty (30) calendar days
prior to the expiration of any policy. In addition to and together with Tenant's
pro rata share of operating costs, Tenant shall pay to Landlord within ten (10)
calendar days of its receipt of Landlord's written request, the entire amount of
any extraordinary or additional premium for insurance upon or for the Premises
and/or Center occasioned by or resulting from Tenant's use of the Premises.
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9.3 The aforementioned insurance shall be in companies authorized to engage
in the business of insurance in the State of Florida with a minimum rating of
"A" by A. M. Best and shall be in form, substance, and amount (where not stated
above) satisfactory to Landlord. The insurance shall not be subject to
cancellation except after at least thirty (30) calendar days prior written
notice to Landlord. If any of the aforementioned insurance shall not be procured
or maintained by Tenant, Landlord may, at its option, procure such insurance or
any portion thereof, and Tenant shall pay to Landlord any sums expended by
Landlord therefore upon demand; or, Landlord may, at its option terminate this
Lease.
9.4 Increase in Fire Insurance Premium. Tenant agrees that it will not
keep, use, sell or offer for sale in or upon the Leased Premises any article
which may be prohibited by the standard form of fire and extended risk insurance
policy. Tenant agrees to pay any increase in premiums for fire and extended
coverage insurance that may be charged during the term of this Lease on the
amount of such insurance which may be carried by Landlord on said premises or
the building of which they are a part, resulting from the type of merchandise
used or sold by Tenant in the Leased Premises, whether or not Landlord has
consented to the same.
9.5 INDEMNIFICATION OF LANDLORD. Tenant shall indemnify Landlord and save
it harmless from and against any and all claims, actions, damages, liability and
expense in connection with loss of life, personal injury and/or damage to
property (a) arising from or out of any occurrence in, upon or at the Leased
Premises (b) arising from or out of the occupancy or use by Tenant or
concessionaires of the Leased Premises, whether occurring in or about the Leased
Premises. In the event Landlord shall be made a party to any litigation
commenced by or against Tenant, then the Tenant shall protect and hold the
Landlord harmless and shall pay all reasonable costs, expenses and reasonable
attorney's fees incurred or paid by the Landlord in connection with such
litigation.
9.6 WAIVER OF SUBROGATION. Tenant waives (unless said waiver should
invalidate any such insurance) its right to recover damages against Landlord for
any reason whatsoever to the extent Tenant recovers indemnity from its insurance
carrier. Any insurance policy procured by Tenant which does not name Landlord as
a named insured shall, if obtainable, contain an express waiver of any right of
subrogation by the insurance company against the Landlord. All public liability
and property damage policies shall contain an endorsement that Landlord,
although named as an insured, shall nevertheless be entitled to recover damages
caused by the negligence of Tenant.
10. ATTORNMENT AND SUBORDINATION.
10.1 ATTORNMENT. In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under any
mortgage made by the Landlord covering the Leased Premises or in the event a
deed is given in lieu of foreclosure of any such mortgage, if requested to do
so, Tenant shall attorn to the purchaser or grantee in lieu of foreclosure upon
any such foreclosure or sale and recognize such purchaser or grantee in lieu of
foreclosure as the Landlord under this Lease.
10.2 SUBORDINATION. Tenant agrees that this Lease and the interest of Tenant
therein shall be, and the same hereby is made subject and subordinate at all
times to all covenants, restrictions, easements and other encumbrances now or
hereafter affecting the fee title of the Project and to all ground and
underlying leases and to any mortgage of any amounts and all advances made and
to be made thereon, which may now or hereafter be placed against or affect any
or all of the land and/or any or all of the buildings and improvements,
including the Leased Premises, now or at any time hereafter constituting a part
of the Project, and/or any ground or underlying leases covering the same, and to
all renewals, modifications, consolidations, participation's, replacements and
extensions thereof. The term "Mortgages" as used herein shall be deemed to
include trust indentures and deeds of trust. The aforesaid provisions shall be
self-operative and no further instrument of subordination shall be necessary
unless required by any such ground or underlying lessors or mortgages. Should
the Landlord, any ground or underlying lessors or mortgagees desire confirmation
of such subordination, Tenant, within ten (10) days following written request
therefor, shall execute and deliver, without charge, any and all documents (in
form acceptable to Landlord and such ground or underlying lessors or mortgagees)
subordinating the Lease and the Tenant's rights hereunder. However, should any
such ground or underlying lessors or any mortgagees request that Lease be made
superior, rather than subordinate, to any such ground or underlying lease and/or
mortgage, then Tenant, within ten (10) days following Landlord's written request
therefor, agrees to execute and deliver, without charge, any and all documents
(in form acceptable to Landlord and such ground or underlying lessors or
mortgagees) effectuating such priority.
11. ASSIGNMENT AND SUBLETTING.
11.1 CONSENT REQUIRED.
11.1.1 Tenant may not assign or in any manner transfer, or grant or
suffer any encumbrance of Tenant's interest in this Lease in whole or in part,
nor sublet all or any portion of the Leased Premises, or grant a license,
concession or other right of occupancy of any portion of the Leased Premises,
without the prior written consent of Landlord in each instance. The consent by
Landlord to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. Consent
shall not be unreasonably withheld. If this Lease be assigned, or if the Leased
Premises or any part thereof be underlet or occupied by any party other than
Tenant, Landlord may collect rent from the assignee, subtenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, subtenant or occupant as
Tenant, or a release of Tenant from the further performance by Tenant of the
covenants on the part of Tenant herein contained. This prohibition against
assignment or subletting shall be construed to include prohibition against any
assignment or subleasing by operation of law, legal process, receivership,
bankruptcy or otherwise, whether voluntary or involuntary. Notwithstanding any
assignment or sublease, Tenant shall remain fully liable on this Lease and shall
not be released from performing any of the terms, covenants and conditions of
this Lease.
An attempt by Tenant to sublease the Leased Premises, in whole or in part, at a
rental rate greater than that charged under this Lease shall be deemed a valid
reason for withholding consent for the sublease.
11.1.2 The Tenant shall pay an administrative fee of $350 in
connection with any assignment or sublease.
11.2 SIGNIFICANT CHANGE OF OWNERSHIP. If the Tenant is a corporation (other
than one whose shares are regularly and publicly traded either on a recognized
stock exchange or the over-the-counter market), Tenant represents that the
Ownership and power to vote its entire outstanding capital stock belongs to and
is vested in the officer or officers executing this Lease or members of his or
their immediate family. If there shall occur any change in the ownership of
and/or power to vote the majority of the outstanding capital stock of Tenant,
whether such change of ownership is by sale, assignment, bequest, inheritance,
operation of law or otherwise, without the prior written consent of Landlord,
then Landlord shall have the option to terminate this Lease upon thirty (30)
days notice to Tenant. If Tenant is a partnership, Tenant represents that the
general partner executing this Lease is duly authorized to execute the same on
behalf of said partnership. If there shall occur any change in the ownership of
the interest of the general partners of the partnership, whether such change
results from a sale, assignment, bequest, inheritance, operation of law or
otherwise, or if the partnership is dissolved, without the prior written consent
of Landlord, then Landlord shall have the option to terminate this Lease upon
thirty (30) days notice to Tenant.
11.3 ASSIGNMENT BY LANDLORD. In the event of the transfer and assignment by
Landlord of its interest in this Lease and/or in the building containing the
Leased Premises to a person expressly assuming Landlord's obligations under this
Lease, Landlord shall thereby be released from any further obligations
thereunder, and Tenant agrees to look solely to such successor in interest of
the Landlord for performance of such obligations. Any security given by Tenant
to secure performance of Tenant's obligations hereunder may be assigned and
transferred by Landlord to such successor in interest, and Landlord shall
thereby be discharged of any further obligation relating thereto.
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12. WASTE, GOVERNMENTAL REGULATIONS.
12.1 WASTE OR NUISANCE. Tenant shall not commit or suffer to be committed
any waste upon the Leased Premises or any nuisance or other act or thing which
may disturb the quiet enjoyment of any other tenant in the Project, or which may
adversely affect Landlord's interest in the Leased Premises or the Project.
12.2 GOVERNMENT REGULATIONS. Tenant shall, at Tenant's sole cost and
expense, comply with all county, municipal, state, federal laws, orders,
ordinances and other applicable requirements of all governmental authorities,
now in force, or which may hereafter be in force, pertaining to, or affecting
the condition, use or occupancy of the Leased Premises, and shall faithfully
observe in the use and occupancy of the Leased Premises all municipal and county
ordinances and state and federal statutes now in force or which may hereafter be
in force. Tenant shall indemnify, defend and save Landlord harmless from all
costs, losses, expenses or damages resulting from Tenant's failure to perform
its obligations under this Section.
13. RULES AND REGULATIONS. Tenant agrees to comply with all rules and
regulations Landlord may adopt from time to time for operation of the Project,
and protection and welfare of Project, its tenants, visitors, and occupants. The
present rules and regulations, which Tenant hereby agrees to comply with,
entitled "Rules and Regulations" are attached hereto as Exhibit "B". Landlord
may amend the rules from time to time and any future rules and regulations shall
become a part of this Lease, and Tenant hereby agrees to comply with the same
upon delivery of a copy thereof to Tenant, providing the same do not materially
deprive Tenant of its rights established under this Lease.
14. ADVERTISING, ETC.
14.1 SOLICITATION OF BUSINESS. Tenant and Tenant's employees and agents
shall not solicit business in the parking or other common areas, nor shall
Tenant distribute any handbills or other advertising matter on automobiles
parked in the parking area or in other common areas.
14.2 ADVERTISED NAME AND ADDRESS. Tenant may use as its advertised business
address the name of the Project. Tenant shall not use the name of the Project
for any purpose other than as the address of the business to be conducted by
Tenant in the Leased Premises, and Tenant shall not acquire any property right
in or to any name which contains the name of the Project as a part thereof. Any
permitted use by Tenant of the name of the Project during the term of the Lease
shall not permit Tenant to use, and Tenant shall not use, such name of the
Project either after the termination of this Lease or at any other location.
Tenant shall not use the name of the Landlord in any advertisement, or
otherwise.
15. DESTRUCTION OF LEASED PREMISES
15.1 TOTAL OR PARTIAL DESTRUCTION. If the Leased Premises shall be damaged
by fire, the elements, unavoidable accident or other casualty, without the fault
of Tenant, but are not thereby rendered untenable in whole or in part, Landlord
shall at its own expense cause such damage, except to Tenant's equipment and
trade fixtures, to be repaired, and the rent and other charges shall not be
abated. Repairs shall commence within a reasonable period of time. If by reason
of such occurrence, the Leased Premises shall be rendered untenable only in
part, Landlord shall at its own expense cause the damage, except to Tenant's
equipment and trade fixtures, to be repaired within a reasonable period of time,
but only to the condition in which the Leased Premises were originally delivered
to Tenant, and the Base Rent meanwhile shall be abated proportionately as to the
portion of the Leased Premises rendered untenable. If such damage shall occur
during the last two (2) years of the term of this Lease (or of any renewal
term), Landlord shall have the right, to be exercised by notice to Tenant within
sixty (60) days after said occurrence, to elect not to repair such damage and to
cancel and terminate this Lease effective as of a date stipulated in Landlord's
notice, which shall not be earlier than thirty (30) days nor later than sixty
(60) days after the giving of such notice. If the Leased Premises shall be
rendered wholly untenable by reason of such occurrence, the Landlord shall at
its own expense cause such damage, except to Tenant's equipment and trade
fixtures, to be repaired, but only to the condition in which the Leased Premises
were originally delivered to Tenant, and the Base Rent meanwhile shall be abated
in whole except that Landlord shall have the right, to be exercised by notice to
Tenant within sixty (60) days after said occurrence, to elect not to reconstruct
the destroyed Leased Premises, and in such event this Lease and the tenancy
hereby created shall cease as of the date of the said occurrence. There shall be
no abatement of the Base Rent if such damage is caused by the fault of Tenant.
Whenever the Base Rent shall be abated pursuant to this Section 15.1, such
abatement shall continue until the date which shall be the sooner to occur of:
(i) fifteen (15) days after notice by Landlord to Tenant that the Leased
Premises have been substantially repaired and restored; or (ii) the date
Tenant's business operations are restored in the entire Leased Premises.
15.2 PARTIAL DESTRUCTION OF BUILDING. In the event that fifty (50%) percent
or more of the rentable area of the building in which the Leased Premises are
located shall be damaged or destroyed by fire or other cause, notwithstanding
any other provisions contained herein and that the Leased Premises may be
unaffected by such fire or other cause, Landlord shall have the right, to be
exercised by notice in writing delivered to Tenant within sixty (60) days after
said occurrence, to elect to cancel and terminate this Lease. Upon the giving of
such notice to Tenant, the term of this Lease shall expire by lapse of time upon
the thirtieth day after such notice is given, and Tenant shall vacate the Leased
Premises and surrender the same to Landlord; provided, however, in the event the
building is deemed to be a hazard or danger by any governmental agency, the
Lease shall expire upon the third day after notice is given.
15.3 RECONSTRUCTION OF IMPROVEMENT. In the event of any reconstruction of
the Leased Premises under this Section, said reconstruction shall be in
substantial conformity of the Leased Premises on the Commencement Date. Tenant,
at its sole cost and expense, shall be responsible for the repair and
restoration of all items that was Tenant's Work, and the replacement of its
stock in trade fixtures, furniture, furnishings and equipment. Tenant shall
commence the installation of fixtures, equipment, and merchandise hereof
promptly upon delivery to it of possession of the Leased Premises and shall
diligently prosecute such installation to completion.
15.4 Under no circumstances shall Landlord be responsible or liable to
Tenant for lost income, revenue or profits.
16. EMINENT DOMAIN
16.1 TOTAL CONDEMNATION. If the whole of the Leased Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, then the term of this Lease shall cease and terminate as of the date of
title vesting in such proceeding and all rentals and other charges shall be paid
up to that date and Tenant shall have no claim against Landlord for the value of
any unexpired term of this Lease.
16.2 PARTIAL CONDEMNATION.
16.2.1 If any part of the Leased Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, and
in the event that such partial taking or condemnation shall, in the opinion of
Landlord and Tenant, render the Leased Premises unsuitable for the business of
the Tenant, then Landlord and Tenant shall each have the right to terminate this
Lease by notice given to the other within sixty (60) days after the date of
title vesting in such proceeding and Tenant shall have no claim against Landlord
for the value of any unexpired term of this Lease. A taking or condemnation in
excess of 50% of the square footage of the Leased Premises shall be presumed to
render the Leased Premises unsuitable for the business of the tenant.
16.2.2 If more than twenty (20%) percent of the floor area of the
buildings in the Project shall be taken as aforesaid (whether or not the Leased
Premises shall be affected by the taking), Landlord shall have the right to
terminate this Lease by notice to Tenant given within sixty (60) days after the
date of title vesting in such proceeding and Tenant shall have no claim against
Landlord for the value of the unexpired term of this Lease.
16.3 LANDLORD'S DAMAGES. In the event of any condemnation or taking as
hereinabove provided, whether whole or partial, the Tenant shall not be entitled
to any part of the award, as damages or otherwise, for such condemnation and
Landlord is to receive the full amount of such award, the Tenant hereby
expressly waiving any right or claim to any part thereof.
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16.4 TENANT'S DAMAGES. Although all damages in the event of any
condemnation are to belong to the Landlord, whether such damages are awarded as
compensation for diminution in value of the Leasehold or the fee of the Leased
Premises, Tenant shall have the right to claim and recover from the condemning
authority, but not from Landlord, such compensation as may be separately awarded
or recoverable by Tenant in Tenant's own right on account of any damage to
Tenant's business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures, leasehold improvements and equipment, provided no such
claim shall diminish or otherwise adversely affect Landlord's award. Each party
agrees to execute and deliver to the other all instruments that may be required
to effectuate the provisions of Section 16.3 and this Section 16.4.
16.5 SALE UNDER THREAT OF CONDEMNATION. A sale by Landlord to any authority
having the power of eminent domain, either under threat of condemnation or while
condemnation proceedings are pending, shall be deemed a taking under the power
of eminent domain for all purposes under this Section.
17. DEFAULT OF TENANT.
17.1 EVENTS OF DEFAULT. Upon the happening of one or more of the events as
expressed below, (individually and collectively, "Events of Default"), the
Landlord shall have any and all rights and remedies hereinafter set forth:
17.1.1 In the event Tenant should fail to pay any monthly installment
of rent or any other sums required to be paid hereunder, as and when the same
become due.
17.1.2 To the extent not contrary to Bankruptcy Law, in the event a
petition in bankruptcy (including Chapter 11 bankruptcy proceeding or any other
reorganization proceedings under Bankruptcy Law) is filed by the Tenant, or is
filed against Tenant, and such petition is not dismissed within thirty (30) days
from the filing thereof, or in the event Tenant is adjudicated a bankrupt.
17.1.3 In the event an assignment for the benefit of creditors is made
by Tenant.
17.1.4 In the event of an appointment by any court of a receiver or
other court officer of Tenant's property and such receivership is not dismissed
within thirty (30) days from such appointment.
17.1.5 In the event Tenant removes, attempts to remove, or permits to
be removed from the Leased Premises, except in the usual course of trade, the
equipment, furniture, effects or other property of the Tenant brought thereon.
17.1.6 In the event Tenant, before the expiration of the term hereof
and without the written consent of the Landlord, vacates the Leased Premises or
abandons the possession thereof, or uses the Leased Premises or property of the
Project for a purpose other than identified in the Lease.
17.1.7 In the event an execution or other legal process is levied upon
the equipment, furniture, effects or other property of Tenant brought on the
Leased Premises, or upon the interest of Tenant in this Lease, and the same is
not satisfied or dismissed within ten (10) days from the levy.
17.1.8 In the event Tenant fails to keep, observe or perform any of
the other terms, conditions or covenants on the part of Tenant herein to be
kept, observed and performed for more than ten (10) days after written notice
thereof is given by Landlord to Tenant specifying the nature of such default, or
if the default so specified shall be of such a nature that the same cannot
reasonably be cured or remedied within said ten (10) day period, if Tenant shall
not in good faith have commenced the curing or remedying of such default within
such ten (10) day period and shall not thereafter continuously and diligently
proceed therewith to completion; provided, however, nothing herein shall
prohibit Landlord from taking immediate legal action, with or without notice, to
protect the health, safety or welfare of the Landlord, the Project, tenants of
the Project, other persons or entities in or about the Project or the general
public.
17.1.9 Notwithstanding anything contained herein to the contrary, in
the event of a monetary default on the part of Tenant, Landlord shall give and
shall only be required to give Tenant three (3) days written notice within which
Tenant must cure the monetary default.
17.2 REMEDIES OF LANDLORD
17.2.1 In the event of any such default or breach, Landlord shall have
the immediate right to re-enter the Leased Premises, either by summary
proceedings, by force or otherwise, and to dispossess Tenant and all other
occupants therefrom and remove and dispose of all property therein in the manner
provided in subdivision (c) of this Section, all without service of any notice
of intention to re-enter and with or without resort to legal process (which
Tenant hereby expressly waives) and without Landlord being deemed guilty of
trespass or becoming liable for any loss or damage which may be occasioned
thereby. In the event of any such default or breach, Landlord shall have the
right, at its option, from time to time, without terminating this Lease, to re-
enter and re-let the premises, or any part thereof, as the agent and for the
account of Tenant upon such terms and conditions as Landlord may deem advisable
or satisfactory, in which event the rents received on such re-letting shall be
applied first to the expenses of such re-letting and collection including but
not limited to, necessary renovation and alterations of the Leased Premises,
reasonable attorney's fees, any real estate commissions paid, and thereafter
toward payment of all sums due or which become due Landlord hereunder, and if a
sufficient sum shall not be thus realized or secured to pay such sums and other
charges, (i) at Landlord's option, Tenant shall pay Landlord any deficiency
monthly, notwithstanding Landlord may have received rental in excess of the
rental stipulated in this Lease in previous or subsequent months, and Landlord
may bring an action therefor as such monthly deficiency shall arise, or (ii) at
Landlord's option, the entire deficiency, which is subject to ascertainment for
the remaining term of this Lease, shall be immediately due and payable by
Tenant. Nothing herein, however, shall be construed to require Landlord to re-
enter in any event. The Landlord shall not, in any event, be required to pay
Tenant any surplus of any sums received by Landlord on a re-letting of said
premises in excess of the rent provided in this Lease.
17.2.2 In the event of any such default or breach, the Landlord shall
have the right, at its option, to declare the rents for the entire remaining
term and other indebtedness, if any, immediately due and payable without regard
to whether or not possession shall have been surrendered to or taken by
Landlord, and may commence action immediately thereupon and recover judgment
therefor.
17.2.3 The Landlord in addition to other rights and remedies it may
have, shall have the right to remove all or any part of the Tenant's property
from said premises and any property removed may be stored in any public
warehouse or elsewhere at the cost of, and for the account of Tenant and the
Landlord shall not be responsible for the care or safekeeping thereof, and the
Tenant hereby waives any and all loss, destruction and/or damage or injury which
may be occasioned by any of the aforesaid acts.
17.2.4 No such re-entry or taking possession of said Leased Premises
by Landlord shall be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such intention is given to Tenant.
Notwithstanding any such re-letting without termination, Landlord may at all
times hereafter, elect to terminate this Lease for such previous default or
breach. Any such re-entry shall be allowed by Tenant without hindrance, and
Landlord shall not be liable in damages for any such re-entry, or guilty of
trespass or forcible entry.
17.2.5 Any and all rights, remedies and options given in this Lease to
Landlord shall be cumulative and in addition to and without waiver of or in
derogation of any right or remedy given to it under any law now or hereafter in
effect.
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17.3 WAIVER. The waiver by Landlord of any breach of any term, condition or
covenant herein contained shall not be waiver of such term, condition or
covenant, or any subsequent breach of the same or any other term, condition or
covenant herein contained. The consent or approval by Landlord to or of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to waive
or render unnecessary Landlord's consent to or approval of any subsequent
similar act by Tenant. No re-entry hereunder shall bar the recovery of rents or
damages for the breach of any of the terms, conditions or covenants on the part
of Tenant herein contained. The receipt of rent after breach or condition
broken, or delay on the part of Landlord to enforce any right hereunder, shall
not be deemed a waiver or forfeiture, or a waiver of the right of Landlord to
terminate this Lease or to re-enter said Leased Premises or to re-let same.
17.4 EXPENSES OF ENFORCEMENT. In the event any payment due Landlord under
this Lease shall not be paid on the due date, Tenant agrees to pay interest on
the amount which is delinquent at the highest rate permitted under the laws of
the state in which the Project is located, for such delinquent payment until
made. In the event any check, bank draft, order for payment or negotiable
instrument given to Landlord for any payment under this Lease shall be
dishonored for any reason whatsoever not attributable to Landlord, Landlord
shall be entitled to make an administrative charge to Tenant of One Hundred
($100.00) Dollars. Tenant recognizes and agrees that the charges which Landlord
is entitled to make upon the conditions stated in this Section 17.4 represent,
at the time this Lease is made, a fair and reasonable estimate and liquidation
of the costs of Landlord in the administration of the Project resulting to
Landlord from the events described which costs are not contemplated or included
in any other rental or charges provided to be paid by Tenant to Landlord in this
Lease. Any charges becoming due under this Section of this Lease shall be added
and become due with the next ensuing monthly payment of Base Rent and shall be
collectible as a part thereof.
17.5 LEGAL EXPENSES. In the event that it shall become necessary for
Landlord to employ the services of an attorney to enforce any of its rights or
to protect its interest under this Lease or to collect any sums due to it under
this Lease or to remedy the breach of any covenant of this Lease on the part of
the Tenant to be kept or performed, regardless of whether suit be brought,
Tenant shall pay to Landlord such fee as shall be charged by Landlord's attorney
for such services. Should suit be brought for the recovery of possession of the
Leased Premises, or for rent or any other sum due Landlord under this Lease, or
because of the breach of any of Tenant's covenants under this Lease, or to
protect any interest or right under the Lease, Tenant shall pay to Landlord all
expenses of such suit and any appeal thereof, including a reasonable attorney's
fee.
18. ACCESS BY LANDLORD.
18.1 RIGHT OF ENTRY. Landlord and Landlord's agents shall have the right to
enter the Leased Premises at all reasonable times to examine the same, and to
show them to prospective purchasers or lessees of the building, and to make such
repairs, or alterations, improvements or additions as Landlord may deem
necessary or desirable, and Landlord shall be allowed to take all material into
and upon said premises that may be required therefor without the same
constituting an eviction of Tenant in whole or in part and the rent reserved
shall in no way xxxxx while said repairs, alterations, improvements or additions
are being made unless Tenant is prevented from operating in the Leased Premises
in whole or in part, in which event rent shall be proportionately abated during
said period. During the six (6) months prior to the expiration of the term of
this Lease or any renewal term, Landlord may exhibit the premises to prospective
tenants or purchasers. If Tenant shall not be personally present to open and
permit an entry into said premises, at any time, when for any reason an entry
therein shall be necessary or permissible, Landlord or Landlord's agents may
enter the same without in any manner affecting the obligations and covenants of
this Lease. Nothing herein contained, however, shall be deemed or construed to
impose upon Landlord any obligation, responsibility or liability whatsoever, for
the care, maintenance or repair of the building or any part thereof, except as
otherwise herein specifically provided.
18.2 ROOF. Use of the roof and air space above the Leased Premises is
reserved exclusively to the Landlord.
19. TENANT'S PROPERTY.
19.1 TAXES ON LEASEHOLD OR PERSONALTY. Tenant shall be responsible for and
shall pay before delinquent all municipal, county or state taxes assessed during
the term of this Lease against any leasehold interest or personal property or
any kind, owned by or placed in, upon or about the Leased Premises by the
Tenant.
19.2 LOSS AND DAMAGE. Landlord shall not be responsible for any damage to
property of Tenant or of others located on the Leased Premises nor for the loss
of or damage to any property of Tenant or of others by theft or otherwise. All
property of Tenant kept or stored on the Leased Premises shall be so kept or
stored at the risk of Tenant only and Tenant shall hold Landlord harmless from
any and all claims arising out of damage to same, including subrogation claims
by Tenant's insurance carriers.
19.3 PLEDGE OF ASSETS. Tenant hereby pledges and assigns to Landlord all
furniture, fixtures, goods and chattels of Tenant which shall or may be brought
or placed on the Demised Premises as security for the payment of rent and Tenant
agrees that said lien may be enforced by distress foreclosure or otherwise at
the election of Landlord.
20. HOLDING OVER, SUCCESSORS.
20.1 HOLDING OVER. On the last day of the term of this Lease, or upon any
earlier termination of this Lease, or upon re-entry by Landlord upon the Leased
Premises, Tenant shall peaceably and without notice of any sort, quit and
surrender the Leased Premises to Landlord in accordance with the requirements of
this Lease. Tenant specifically agrees that in the event Tenant retains
possession and does not so quit and surrender the Leased Premises to Landlord,
then Tenant shall pay to Landlord:
20.1.1 all damages that Landlord may suffer on account of Tenant's
failure to so surrender and quit the Leased Premises, and Tenant will indemnify
and save Landlord harmless from and against any and all claims made by
succeeding tenant of the Leased Premises against Landlord on account of delay of
Landlord in delivering possession of the Leased Premises to said succeeding
tenant to the extent that such delay is occasioned by the failure of tenant to
so quit and surrender said Leased Premises.
20.1.2 rent for each month or any applicable portion of a month of such
holding over at twice the amount payable for the month immediately preceding the
termination of this Lease, during the time Tenant thus remains in possession.
The provisions of this paragraph do not waive any of Landlord's rights of re-
entry or any other right under the terms of this Lease. If Tenant shall fail to
surrender the Leased Premises as herein provided, no new tenancy shall be
created and Tenant shall be guilty of unlawful detainer.
20.2 SUCCESSORS. All rights and liabilities herein given to, or imposed
upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and permitted assigns
of the said parties; and if there shall be more than one Tenant, they shall be
bound jointly and severally by the terms, covenants and agreements herein. No
rights, however, shall inure to the benefits of any assignee of Tenant unless
the assignment to such assignee has been approved by Landlord in writing.
Nothing contained in this Lease shall in any manner restrict Landlord's right to
assign or encumber this Lease and, in the event Landlord sells or transfers its
interest in the Project and the purchaser or transferee assumes Landlord's
obligation and covenants, Landlord shall thereupon be relieved of all further
obligations hereunder.
21. ENVIRONMENTAL ACTIONS AND INDEMNIFICATION
21.1 Tenant agrees not to store in, on or outside of the Leased Premises any
hazardous materials of any type, as defined by any local, state or federal
agency or any other toxic, corrosive, reactive or ignitable material without
first obtaining in each case all governmental approvals and permits required for
such storage.
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21.2 Tenant shall indemnify and hold Landlord harmless for any and all
damages, potential damages, losses, liabilities, costs and expenses of
corrective work, obligations, penalties, fines, impositions, fees, levies, lien
removal or bonding costs, claims, litigation, demands, defenses, judgments,
disbursements, or expenses (including without limitation attorneys fees and
expert's fees) related to, concerning or arising out of Tenant causing or
permitting, knowingly or unknowingly, directly or indirectly, hazardous material
to pollute or contaminate the Leased Premises, the Project or any part thereof,
or any person or property in, on, under, above or outside of the Project. The
terms of this paragraph shall survive the expiration or earlier termination of
the term of this Lease.
21.3 Term on Indemnification: The Tenant agrees that this Indemnity shall
continue throughout the term of the Lease and for a period of not less than ten
years following termination of the Lease for any reason. Further, said ten year
period shall be extended during the pendency of litigation or administrative
claims involving Indemnified Losses pertaining to Hazardous Materials covered by
this Indemnity pending at the expiration of the ten year period. The indemnity
shall include reasonable costs and expenses (including experts' and attorneys'
fees and disbursements) incurred or expended by Landlord in enforcing of this
Indemnity. Landlord agrees to utilize counsel designated by the undersigned (if
the undersigned are also parties defendant in such matters) subject to
Landlord's right of approval, not to be unreasonably withheld or delayed.
22. QUIET ENJOYMENT. Upon payment by the Tenant of the rents herein provided,
and upon the observance and performance of all the covenants, terms and
conditions on Tenant's part to be observed and performed, Tenant shall peaceably
and quietly hold and enjoy the Leased Premises for the term hereby demised
without hindrance or interruption by Landlord or any other person or persons
lawfully or equitably claiming by, through or under the Landlord, subject,
nevertheless, to the terms and conditions of this Lease.
23. MISCELLANEOUS.
23.1 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or any letter accompanying the check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy provided in the Lease or by law.
23.2 NO PARTNERSHIP. Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of its business, or otherwise, or
joint venturer or a member of a joint enterprise with Tenant.
23.3 FORCE MAJEURE. In the event that either party hereto shall be delayed
or hindered in or prevented from the performance of any act required hereunder
by reason of strikes, lock-outs, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease,
then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period of
such delay. The provisions of this Section 23.3 shall not operate to excuse
Tenant from the prompt payment of rent, additional rent or any other payments
required by the terms of this Lease.
23.4 NOTICES. Except as otherwise required by statute, any notice, demand,
request or other communication required or permitted be given under this Lease
shall be in writing, signed by the party giving it and conclusively deemed to
have been properly given to and received and to be effective (a) if sent by
tested telex or cable, or hand-delivered against receipt therefor, or by
telecopy or other facsimile transmission, or by express mail service, on the day
on which delivered, as the case may be, at the respective addresses hereafter
set forth, or if such day of delivery is not a business day, on the first
business day thereafter, or (b) if sent by registered or certified mail, return
receipt requested, postage prepaid, on the third business day after the day on
which deposited in any post office station or letter box, addressed at the
respective addresses hereafter set forth:
If to Landlord: XXXXX MANAGEMENT SERVICES, INC.
0000 XXXXX XXXX 000XX XXXXXX
XXXXX, XXXXXXX 00000
000-000-0000
With a copy to: TAMPA TRI-COUNTY FLEXXSPACE, LTD.
00000 XX XXXXXXX XXXXX
XXXXX, XXXXXXX 00000
000-000-0000
If to Tenant: XXXXXXXXX & XXXX, INC.
XXXXX XXXXXX
00000 XXXXXXX XXXXXX
XXXXX, XXXXXXX 00000
With a copy to: XXXXXXXXX & XXXX, INC.
XXXXX XXXXXX
000 XXXXXXXX XXXXXX
XXXXXX, XX 00000
Any party hereto may, by giving five (5) days written notice to the other party
hereto, designate any other address in substitution of the foregoing address to
which notice shall be given.
23.5 CAPTIONS AND SECTION NUMBERS. The captions, section numbers, article
numbers and index appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or described the scope or
intent of such sections or articles of this Lease nor in any way affect this
Lease.
23.6 TENANT DEFINED, USE OF PRONOUN. The word "Tenant" shall be deemed and
taken to mean each and every person mentioned as a Tenant herein be the same,
one or more and if there shall be more than one Tenant. Any notice required or
permitted by the terms of this Lease may be given by or to any one thereof, and
shall have the same force and effect as if given or to all thereof. The use of
the neuter singular pronoun to refer to Landlord or Tenant shall be deemed a
proper reference even though Landlord or Tenant may be an individual, a
partnership, a corporation, or a group of two or more individuals or
corporations. The necessary grammatical changes required to make the provisions
of this Lease apply in the plural sense where there is more than one Landlord or
Tenant and to either corporations, associations, partnerships, or individuals,
males or females, shall in all instances be assumed as though in each case fully
expressed.
23.7 BROKER'S COMMISSION. Each of the parties represents and warrants that
it has dealt with no broker or brokers in connection with the execution of this
Lease, except Xxxxx Management Services, Inc. and each of the parties agrees to
indemnify the other against, and hold it harmless from, all liabilities arising
from any claim for brokerage commissions or finder's fee resulting from the
indemnitor's acts (including, without limitation, the cost of counsel fees in
connection therewith) except for the persons or entities set forth above.
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23.8 PARTIAL INVALIDITY. In any term, covenant or condition of this Lease
or the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
23.9 EFFECTIVENESS OF LEASE. The submission of this Lease for examination
does not constitute a reservation of or option for the Leased Premises and this
Lease becomes effective as a lease only upon execution and delivery thereof by
Landlord to Tenant, and the receipt of the full security deposit, and if paid by
check, subject to clearance.
23.10 RECORDING. Tenant shall not record this Lease or any memorandum
thereof without the written consent and joinder of Landlord.
23.11 LIABILITY OF LANDLORD. Anything contained in this Lease, at law or
in equity to the contrary notwithstanding, Tenant expressly acknowledges and
agrees that there shall at no time be or be construed as being any personal
liability by or on the part of Landlord under or in respect of this Lease or in
any way related hereto or the Leased Premises; it being further acknowledged and
agreed that Tenant is accepting this Lease and the estate created hereby upon
and subject to the understanding that it shall not enforce or seek to enforce
any claim or judgment or any other matter, for money or otherwise, personally or
directly against any officer, director, stockholder, partner, principal
(disclosed or undisclosed), representative or agent of Landlord, but will look
solely to the Landlord's interest in the Project for the satisfaction of any and
all claims, remedies or judgments (or other judicial process) in favor of Tenant
requiring the payment of money by Landlord in the event of any breach by
Landlord of any of the terms, covenants or agreements to be performed by
Landlord under this Lease or otherwise, subject, however, to the prior rights of
any ground or underlying lessors or the holders of the mortgages covering the
Project, and no other assets of Landlord or owners of Landlord shall be subject
to levy, execution or other judicial process for the satisfaction of Tenant's
claims; such exculpation of personal liability as herein set forth to be
absolute, unconditional and without exception of any kind.
23.12 TIME OF THE ESSENCE. Time is of the essence of this Lease and each and
all of its provisions in which performance is a factor.
23.13 ESTOPPEL INFORMATION. Tenant agrees, upon request of Landlord, to
execute and deliver to Landlord, without charge and within ten (10) days
following request therefor, a written declaration in form satisfactory to
Landlord: (i) ratifying this Lease; (ii) confirming the commencement and
expiration dates of the term of this Lease; (iii) certifying that Tenant is in
occupancy of the Leased Premises, the date Tenant commenced operating Tenant's
business therein and that this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended, except by such writings as
shall be stated; (iv) that all conditions under this Lease to be performed by
Landlord have been satisfied, except such as shall be stated; (v) that there are
no defenses or offsets against the enforcement of this Lease by Landlord, or
stating those claimed by Tenant; (vi) reciting the amount of advance rental, if
any, paid by Tenant and the date to which rental has been paid; (vii) reciting
the amount of security deposited with Landlord, if any; and (viii) certifying
the status of any other matter requested by Landlord or its lender. Tenant
agrees to execute and deliver similar declarations at any time and from time to
time and within ten (10) days following request therefor by Landlord or by any
mortgage holder or ground or underlying lessor and or purchaser of the Project,
and each of such parties shall be entitled to rely upon such written declaration
made by Tenant. Tenant's failure or refusal to execute the declaration required
hereunder within ten (10) days following the request therefor will constitute a
default hereunder and Landlord shall have such rights and remedies against
Tenant as is available to Landlord for Tenant's default.
23.14 CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
23.15 CHOICE OF LAW. This Lease shall be governed by the laws of the State
of Florida. The venue for any action filed in connection herewith by either
party shall be the county in which the Leased Premises are located.
23.16 WAIVER OF TRIAL BY JURY. THE PARTIES HERETO SHALL AND THEY HEREBY DO
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE LEASED PREMISES, AND/OR ANY CLAIM OF
INJURY OR DAMAGE.
23.17 COUNTERPARTS. This Lease may be executed in multiple copies, each of
which shall be deemed an original, and all of such copies shall together
constitute one and the same instrument.
23.18 ACCEPTANCE OF FUNDS BY LANDLORD. No receipt of money by the Landlord
from the Tenant after the termination of this Lease or after the service of any
notice or after the commencement of any suit, or after final judgment for
possession of the Leased Premises shall reinstate, continue or extend the term
of this Lease or affect any such notice, demand or suit.
23.19 RADON GAS. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present a health
risk to persons who are exposed to it over time. Levels of Radon that exceed
Federal and State guidelines have been found in buildings in Florida. Additional
information regarding Radon and Radon testing may be obtained from your county
public health unit.
23.20 ATTACHMENTS. Any Exhibits as well as any Amendments which are attached
to this Lease are a part of this Lease and are incorporated herein as if fully
set forth herein.
23.21 INSERTIONS. No insertion, whether handwritten or otherwise, which
attempts or purports to change or modify the standard type written provisions of
this Lease and/or attachments or amendments thereto shall be effective or
binding unless and until each party to this Lease initials the change(s) or
modification(s) in the margin immediately adjacent thereto. A general initialing
by the parties of a page, at the top or bottom thereof, shall not be deemed
compliance with the above-referenced requirement and shall not bind either party
to the terms or conditions of the insertion.
23.22 RENEWAL OPTIONS. The terms of options to renew, if any, are subject to
the following conditions:
23.22.1 Any right to renew is conditioned upon Tenant not being in
default under any terms of the Lease at the time of election to exercise the
option and at the time the extended period is to begin.
23.22.2 If Tenant shall elect to exercise any option, it shall do so
by giving Landlord written notice at least ninety (90) days prior to the
expiration of the primary term of the Lease, or the then current extension
thereof. Failure to provide proper notice within the time required shall
terminate the pending or remaining option rights of the Tenant.
23.23.3 Option Terms: Tenant shall have N/A option for additional N/A
year term. For each year of any option period exercised, the base rent shall
increase N/A over the prior year.
23.23 ENTIRE AGREEMENT. This Lease and the Exhibits, and Amendments, if any,
attached hereto and forming a part hereof, set forth all covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Leased Premises and there are no covenants, promises, conditions or
understandings, either oral or written, between them other than are herein set
forth. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease on
the day and year first above written.
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WITNESSES: LANDLORD:
Tampa Tri-County FlexxSpace, Ltd.
By: Tampa Tri-County FlexxSpace LLC, its general partner
---------------------- By: AP-Xxxxx SPV, Ltd., its managing agent
By: AP-Xxxxx XX LLC, its general partner
---------------------- By: AP-Xxxxx Investment Fund, L.P. its managing member
By: Xxxxx Newco GP, Inc., its managing general partner
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx, Authorized Signatory
TENANT:
Xxxxxxxxx & Xxxx, Inc.
----------------------
/s/ Xxxxx Xxxxxx, Chief Financial Officer
---------------------- ------------------------------------------
Xxxxx Xxxxxx, Chief Financial Officer
Federal Tax ID #00-0000000
ADDENDUM TO LEASE
ARTICLE 2.2.1.5 - DUMPSTERS - is hereby deleted in its entirety
ARTICLE 9.6 WAIVER OF SUBROGATION - Tenant waives (unless said waiver should
invalidate any such insurance) its right to recover damages against Landlord for
any reason whatsoever to the extent Tenant recovers indemnity from its insurance
carrier. Any insurance policy procured by Tenant which does not name Landlord as
a named insured shall, if obtainable, contain an express waiver of any right of
subrogation by the insurance company against the Landlord. All public liability
and property damage policies shall contain an endorsement that Landlord,
although named as an insured, shall nevertheless be entitled to recover damages
caused by the negligence of Tenant. LANDLORD WAIVES (UNLESS SAID WAIVER SHOULD
INVALIDATE ANY SUCH INSURANCE) ITS RIGHT TO RECOVER DAMAGES AGAINST TENANT FOR
ANY REASON WHATSOEVER TO THE EXTENT LANDLORD RECOVERS INDEMNITY FROM ITS
INSURANCE CARRIER.
ARTICLE 17.1.1 - In the event Tenant should fail to pay any monthly installment
of rent or any other sums required to be paid hereunder, as and when the same
become due WITHIN 5 DAYS AFTER WRITTEN NOTICE.
ARTICLE 17.2.1 - In the event of any such default or breach, Landlord shall
have the immediate right to re-enter the Leased Premises, either by summary
proceedings, by force or otherwise, and to dispossess Tenant and all other
occupants therefrom and remove and dispose of all property therein in the manner
provided in subdivision (c) of this Section, all without service of any notice
of intention to re-enter and with or without resort to legal process (which
Tenant hereby expressly waives) and without Landlord being deemed guilty of
trespass or becoming liable for any loss or damage which may be occasioned
thereby. In the event of any such default or breach, Landlord shall have the
right, at its option, from time to time, without terminating this Lease, to re-
enter and re-let the premises, or any part thereof, as the agent and for the
account of Tenant upon such terms and conditions as Landlord may deem advisable
or satisfactory, in which event the rents received on such re-letting shall be
applied first to the expenses of such re-letting and collection including but
not limited to, necessary renovation and alterations of the Leased Premises,
reasonable attorney's fees, any real estate commissions paid, and thereafter
toward payment of all sums due or which become due Landlord hereunder, and if a
sufficient sum shall not be thus realized or secured to pay such sums and other
charges, (i) at Landlord's option, Tenant shall pay Landlord any deficiency
monthly, notwithstanding Landlord may have received rental in excess of the
rental stipulated in this Lease in previous or subsequent months, and Landlord
may bring an action therefor as such monthly deficiency shall arise, or (ii) at
Landlord's option, the entire deficiency, which is subject to ascertainment for
the remaining term of this Lease, shall be immediately due and payable by
Tenant. Nothing herein, however, shall be construed to require Landlord to re-
enter in any event. The Landlord shall not, in any event, be required to pay
Tenant any surplus of any sums received by Landlord on a re-letting of said
premises in excess of the rent provided in this Lease. NOTWITHSTANDING THE
FOREGOING, LANDLORD SHALL HAVE THE OBLIGATION TO USE ALL REASONABLE EFFORTS TO
MITIGATE ITS DAMAGES.
ARTICLE 19.3 - PLEDGE OF ASSETS - is hereby deleted in its entirety
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WITNESSES: LANDLORD:
Tampa Tri-County FlexxSpace, Ltd.
By: Tampa Tri-County FlexxSpace LLC, its general partner
---------------------- By: AP-Xxxxx SPV, Ltd., its managing agent
By: AP-Xxxxx XX LLC, its general partner
---------------------- By: AP-Xxxxx Investment Fund, L.P. its managing member
By: Xxxxx Newco GP, Inc., its managing general partner
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx, Authorized Signatory
TENANT:
Xxxxxxxxx & Xxxx, Inc.
----------------------
---------------------- /s/ Xxxxx Xxxxxx, Chief Financial Officer
------------------------------------------
Xxxxx Xxxxxx, Chief Financial Officer
Federal Tax ID #00-0000000
ADDENDUM B TO LEASE
ARTICLE 1.5 - Tenant shall have until June 1, 2000 to obtain any and all
necessary licenses and permits from the appropriate authorities (the
"Licenses"). If Tenant is unable to obtain said Licenses by this date, Tenant
may request and, upon a showing that all required License have been applied for
and diligently pursued, shall be granted a thirty (30) day extension. If for any
reason Tenant is unable to obtain the Licenses within the above period(s), the
Tenant may terminate this Lease, in which event neither party shall have any
further obligation to the other, except as provided below, and Tenant shall
forfeit its Deposit ($5,000) as a termination fee. In the event Landlord is
directed, in writing, to commence construction of Tenant improvements per
Exhibit "C" of this Lease, and terminates it pursuant to the above, Tenant shall
reimburse Landlord 70% of any and all work which has been paid for or started at
the time Tenant notifies Landlord of said termination. Notwithstanding any
provisions hereof, Tenant's obligation to pay rent hereunder shall commence on
the Rent Commencement Date (June 1, 2000).
WITNESSES: LANDLORD:
Tampa Tri-County FlexxSpace, Ltd.
By: Tampa Tri-County FlexxSpace LLC, its general partner
---------------------- By: AP-Xxxxx SPV, Ltd., its managing agent
By: AP-Xxxxx XX LLC, its general partner
---------------------- By: AP-Xxxxx Investment Fund, L.P. its managing member
By: Xxxxx Newco GP, Inc., its managing general partner
/s/ SIGNATURE ILLEGIBLE
------------------------------------------
Xxxxx X. Xxxxxx, Authorized Signatory
TENANT:
Xxxxxxxxx & Xxxx, Inc.
/s/ SIGNATURE ILLEGIBLE
----------------------
SIGNATURE ILLEGIBLE
---------------------- /s/ Xxxxx Xxxxxx, Chief Financial Officer
------------------------------------------
Xxxxx Xxxxxx, Chief Financial Officer
Federal Tax ID #00-0000000
This Document Prepared By: Xxxxx X. Xxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000-0000
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EXHIBIT "A"
SITE PLAN
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EXHIBIT "B"
PARK RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and similar areas shall
not be obstructed by tenants of used for any purpose other than access to and
from the leased premises and for going from one to another part of the building.
2. Plumbing fixtures and appliances shall be used only for purposes
constructed, and no sweeping, rubbish, rags or other unsuitable material shall
be thrown or placed within the premises. Any damage resulting from such misuse
of the premises shall be paid by Tenant, and Landlord shall not in any case be
responsible for such.
3. No signs, advertisements or notices shall be painted or affixed on or to any
windows or doors or other part of the building, except of such color, size and
style and in such places as shall be first approved in writing by Landlord. No
nails, hooks or screws shall be driven or inserted in any part of the building,
after Tenant's improvements are completed, except by the building maintenance
personnel; nor shall any part of the building be defaced by tenants.
4. A directory will be placed by Landlord, at its expense, in a conspicuous
place in the building. No other directories will be permitted, unless
previously authorized by Landlord in writing.
5. Tenants shall not do, or permit anything to be done, in or about the
building, or bring or keep anything there, that will in any way increase the
rate of fire or other insurance on the building, or on property kept there, or
obstruct or interfere with the rights of, or otherwise injure or annoy other
tenants, or do anything in conflict with the valid pertinent laws, rules or
regulations of Landlord or any governmental authority.
6. Tenant shall notify the building manager when safes or other heavy equipment
are to be taken in or out of the building and the moving shall be done under the
supervision of the building manager, after written permission from the Landlord.
Persons employed to move such property must be acceptable to Landlord.
7. Tenants shall not make or permit any improper noises in the building, or
otherwise interfere in any way with other tenants, or persons having business
with them.
8. Nothing shall be swept or thrown into the corridors, halls, elevator shafts
or stairways. No birds or animals shall be brought into or kept in or about the
building.
9. No machinery of any kind (other than normal office equipment) shall be
operated on leased premises without the prior written consent of Landlord, who
may condition such consent upon the payment by Tenant of additional rent as
compensation for excess consumption of water or electricity, or both, occasioned
by the operation of the machinery; not shall Tenant use or keep in the building
any flammable or explosive fluid or substance, or any illuminating material,
except candles.
10. Movement in or out of the building of furniture or office equipment, or
dispatch or receipt by tenant of any merchandise or materials which requires the
use of elevators or stairways, or movement through building entrances, such as
the lobby, shall be restricted to hours designated by Landlord. All such
movement shall be under supervision of the building manager, by prearrangement.
Such prearrangement must be initiated by Tenant and will be by determination of
Landlord and subject to his decision and control, of the time, method and
routing of movement, and limitations imposed by safety or other concerns which
may prohibit any article, equipment or any other item from being brought into
the building. Tenant is to assume all risks of damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord, if damaged or injured as a result
of acts in connection with providing this service to Tenant, from time of the
beginning through the completion of the moving or delivery; and Landlord shall
not be liable for acts of any persons engaged in, or any damage or loss to any
of said property or persons resulting from, any act in connections with such.
11. No draperies, shutters, or other window coverings shall be installed on
exterior windows, walls or doors facing public corridors without Landlord's
prior written approval. Landlord shall have the right to require installation
and use of uniform draperies.
12. No portion of Tenant's area or any other part of the building shall at any
time be used or occupied as sleeping or lodging quarters.
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13. Landlord will not be responsible for lost or stolen property, equipment,
money, or jewelry from Tenant's area or public rooms, regardless of whether such
loss occurs when the area is locked against entry.
14. Landlord reserves the right to rescind and of these Rules and make such
other further reasonable rules and regulations that Landlord shall from time to
time believe conducive to the safety, protection, care and cleanliness of the
building, its operation, the preservation of good order, and the protection and
comfort of its tenants, their agents, employees and invitees, which Rules, when
made and notice of them given to Tenant, shall be binding upon Tenant as if
originally prescribed.
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EXHIBIT "C"
CONSTRUCTION OF PREMISES BY LANDLORD
Landlord shall deliver space in "as is" condition, except for performing the
work outlined below.
1. IN THE OFFICE AREA;
REPLACE CEILING TILES
PAINT WALLS
VARNISH DOORS
NEW CARPET
NEW VCT IN BATHROOMS
2. IN THE WAREHOUSE;
PAINT WALLS
PRESSURE WASH FLOORS
INSTALL 18 LO-BAY LIGHTS
INSTALL ADDITIONAL 10 TON AIR CONDITIONING UNIT
INSTALL ONE DOCK LEVELER
3. ALL MECHANICAL SYSTEMS TO BE IN GOOD OPERATING CONDITION
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EXHIBIT "D"
TENANT'S WORK
NONE
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