THIS LEASE AGREEMENT dated August ____, 1995, by and between XXXX X. XXXXXX
and XXXXXX X. XXXXXX d/b/a XXXXXX PROPERTIES, a Florida general partnership,
with its principal office at P. O. Xxx 000000, Xxxx Xxx, Xxxxxxx 00000,
hereinafter called the Lessor, and OMI ACQUISITION CORP., a Delaware
corporation, with its principal office at 000 Xxxxx Xxxxxxx, P. O. Xxx 00000,
Xxxxxxxxx, Xxx Xxxx 00000, hereinafter called the Lessee.
W I T N E S S E T H:
The Lessor hereby leases to the Lessee and Lessee hereby leases from the
Lessor, the following described property, sometimes hereinafter referred to as
the leased premises, to wit:
Space designated as a portion of the Woodlake Commerce Park Building
2330, Suite 2 comprising approximately 35,510 square feet, as shown
on Exhibit "A" attached hereto and made a part hereof, being located
at the following address: 0000 Xxxxxxxx Xxxx Xxxxx, X.X., Xxxx xx
Xxxx Xxx, Xxxxxx of Brevard, State of Florida, in "as is" condition,
subject only to the Lessor's demolition obligation in Paragraph 2 below.
1. TERM: Lessee to have and to hold above described premises for a term of
ten (10) year(s) commencing on the 15th day of August, 1995, on the terms and
conditions as set forth herein.
2. USE AND POSSESSION: It is understood that the leased premises are to be
used for the design, development and production of high technology products, and
for such other uses which comply with all applicable regulations regarding the
use and operation of the business located in the leased premises, and for no
other purpose without prior written consent of Lessor. Lessor represents that as
of the date of this lease, the premises can lawfully be used for such purpose.
Lessee shall not use the leased premises for any unlawful purpose or so as to
constitute a nuisance. Lessee shall be responsible for all improvements,
permitting, design work and any other items necessary to complete the leased
premises for its occupancy, except that Lessor agrees to perform any demolition
work within the 8,820 square feet designated and currently being used as office
space, as requested by Lessee pursuant to plans to be submitted to local
permitting agencies by Lessee for making improvements to the leased premises
prior to occupancy. Lessee shall accept possession of the leased premises upon
completion of such demolition work by Lessor. Lessor shall complete the
demolition work by August 15, 1995. The Lessee, at the expiration of the term,
shall deliver up the leased premises in good repair and condition, damages
beyond the control of the Lessee, reasonable use, ordinary decay, fire and
casualty damages, Lessor's repair obligations, wear and tear excepted.
3. RENT: Lessee covenants and agrees to pay, together with any and all
sales and use taxes levied upon the use and occupancy of the leased premises, as
set forth in Paragraph 6, on August 15, 1995 and September 15, 1995, to Lessor
in advance, a base rent of $3,675.00, plus 6% sales tax in the amount of
S220.50, for a total monthly rent of $3,895.50. This represents the phased move
in rent contemplated by the parties. Thereafter Lessee hereby covenants and
agrees to pay, together with any and all sales and use taxes levied upon the use
and occupancy of the leased premises, as set forth in Paragraph Six, during the
term hereof, to the Lessor, in advance and beginning on October 15, 1995 and on
the fifteenth day of each and every month thereafter for the next twelve month
period, a base rent of $14,795.83, plus 6% tax in the amount or S887.75, for a
total monthly rent of S15,683.58.
4. RENT PAYMENT: Rent will be paid to Lessor at P. O. Xxx 000000, Xxxx Xxx,
Xxxxxxx 00000-0000. The obligation to pay rent under Paragraph Three shall be in
addition to "additional rent" as provided for in this Lease.
5. RENT ADJUSTMENT: On January 1st of each year, beginning January 1, 1997,
the monthly rental provided in Paragraph Three, or as previously adjusted, shall
be increased by the "rent adjustment," which shall be a cumulative 4%.
6. SALES AND USE TAX: The Lessee hereby covenants and agrees to pay
monthly, as additional rent, any sales, use or other tax, excluding State and/or
Federal Income Tax, now or hereafter imposed upon rents by the United States of
America, the State, or any political subdivisions thereof, to the Lessor,
notwithstanding the fact that such statute, ordinance or enactment imposing the
same may endeavor to impose the tax on the Lessor.
7. NOTICES: For purpose of notice or demand, the respective parties shall
be served by certified or registered mail, return receipt reguested, addressed
to the Lessee or to the Lessor at their respective principal office addresses as
set forth herein. Additional notice to Lessee shall be to Xxxxxx Xxxxx,
Vice-President and General Manager, Photronics, Inc., 000 Xxxxx Xxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000, until otherwise advised by Lessee.
8. ORDINANCES AND REGULATIONS: The Lessee hereby covenants and agrees to
comply with all the rules and regulations of the Board of Fire Underwriters,
Officers or Boards of the City, County or State having jurisdiction over the
leased premises, and with all ordinances and regulations or governmental
authorities wherein the leased premises are located, at Lessee's sole cost and
expense, but only insofar as any of such rules, ordinances and regulations
pertain to the specific manner in which the Lessee shall use the leased
premises; the obligation to comply in every other case, and also all cases where
such rules, regulations and ordinances require repairs, alterations, changes or
additions to
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the building (including the leased premises) or building equipment, or any part
of either, being hereby expressly assumed by Lessor, and Lessor convenants and
agrees promptly and duly to comply with all such rules, regulations and
ordinances with which Lessee has not herein expressly agreed to comply.
9. SIGNS: The Lessee will not place any signs or other advertising matter
or material on the exterior, or on the interior where possible to be seen from
the exterior, of the leased premises or of the building in which the leased
premises are located, without the prior written consent of the Lessor. Any
lettering or signs placed on the interior of said building shall be for
directional purposes only, and such signs and lettering shall be of a type,
kind, character and description to be approved by Lessor. All signs shall be
consistent with the common character of signs within the commerce park where the
leased premises are located. If Lessor fails to provide Lessee with notice that
any proposed signs are approved within thirty (30) days of receipt by Lessor of
a request for signs, such inaction shall constitute consent by Lessor. However,
notwithstanding any consent by Lessor, any signs, and the installation thereof,
must comply with any applicable regulations regarding signs.
10. SERVICES: Lessor shall provide a reasonable amount of free parking for
Lessee's employees on Lessor's parking area adjacent to the building in which
the leased premise are situated. Lessor shall provide Lessee with the following
designated parking spaces:
(a) Six (6) reserved visitor spaces;
(b) Two (2) reserved handicap spaces; and
(c) Eight (8) reserved executive spaces.
11. ALTERATIONS: (a) The parties acknowledge that Lessee will be making
alterations and improvements prior to occupancy under the terms of this Lease,
and Lessor approves of the architectural plans attached hereto. If Lessee, after
due diligence, is unable to obtain a building permit to perform said alterations
and improvements pursuant to said plan, or with reasonable modifications
thereto, or after completion of the work, is unable to obtain a certificate of
occupancy for reasons unrelated to the work performed pursuant to said plans,
then Lessee may terminate this Lease. This right to terminate applies only to
the initial alterations and improvements to the leased premises pursuant to the
plans attached hereto.
(b) Lessee, by occupancy and possession hereunder, accepts the leased
premises as being in good repair and condition. Lessee shall maintain the leased
premises and every part thereof in good condition, damages by causes beyond the
control of the Lessee, reasonable use, ordinary decay and wear and tear, fire
and casualty and Lessor repair obligations excepted. Lessee shall not make or
suffer to be made any alterations, additions or improvements to or of the leased
premises or any part thereof
3
without prior written consent of Lessor, which consent the Lessor covenants
and agrees shall not be unreasonably withheld. If Lessor fails to provide Lessee
with notice of whether such alterations, additions or improvements are approved
within thirty (30) days of receipt by Lessor of a request for same, such
inaction shall constitute approval by Lessor. In the event Lessor consents to
the proposed alterations, additions, or improvements, the same shall be at
Lessee's sole cost and expense, and Lessee shall hold the Lessor harmless on
account of the cost thereof. Any such alterations shall be made at such times in
such manner as not to unreasonably interfere with the occupation, use and
enjoyment of the remainder of the building by the other tenants thereof.
(c) If required by Lessor, any alterations shall be removed by Lessee upon
the termination or sooner expiration of the term of this Lease and Lessee shall
repair damage to the premises caused by such removal, all at Lessee's cost and
expense. All alterations, additions and improvements shall comply with any and
all regulations of all regulatory agencies having jurisdiction thereof.
12. QUIET ENJOYMENT: The Lessor covenants and agrees that Lessee, on paying
said monthly rent and performing the covenants herein, shall and may peaceably
and quietly hold and enjoy the said leased premises and common areas, including
but not limited to parking areas, sidewalks, entrances, exits, lobbies,
restrooms, and lounges for the term aforesaid.
13. LESSOR'S RIGHT TO INSPECT AND DISPLAY: The Lessor shall have the right,
during normal business hours of Lessee on twenty-four (24) hours notice, to
enter the leased premises for the purpose of examining or inspecting same and of
making such repairs or alterations therein as the Lessor shall deem necessary.
Any such repair will be made so as to minimize interference with Lessee's
business. The notice and hour requirements shall be excused in the event of an
emergency. The Lessor shall also have the right to enter the leased premises at
all reasonable hours for the purpose of displaying said premises to prospective
tenants within ninety days prior to termination of this Lease. The parties
acknowledge that Lessee may be performing work for the United States of America
that require security clearances for entry to certain areas of the leased
premises. Lessor agrees to comply with any reasonable requirements necessary for
Lessor to obtain access to these areas, it being agreed that Lessor shall not be
deprived access because of such fact.
14. DESTRUCTION OF PREMISES:
(a) If the leased premises are totally destroyed by fire or other
casualties, or partially damaged so as to materially affect the ability of
Lessee to carry on its business, both the Lessor and Lessee shall have the
option of terminating this Lease or any renewal thereof, upon giving
written notice at any time
4
within thirty days from the date of such destruction, and if the Lease be
so terminated, all rent shall cease as of the date of such destruction and
any prepaid rent shall be refunded.
(b) If such leased premises are partially damaged by fire or other
casualty, or totally destroyed thereby and neither party elects to
terminate this Lease within the provisions of Paragraph (a) above or (c)
below, then the Lessor agrees, at Lessor's sole cost and expense, to
restore the leased premises to a kind and quality substantially similar to
that immediately prior to such destruction or damage. Said restoration
shall be commenced within a reasonable time and completed without delay on
the part of the Lessor, and in any event shall be accomplished within one
hundred eighty (180) days from the date of the fire or other casualty. In
such case, all rents paid in advance shall be proportioned as of the date
of damage or destruction and all rent thereafter accruing shall be
equitable and proportionately suspended and adjusted pending completion of
rebuilding, restoration or repair, except that in the event the destruction
or damage is so extensive as to make it unfeasible for the Lessee to
conduct Lessee's business on the leased premises, the rent shall be
completely abated until the leased premises are restored by the Lessor or
until the Lessee resumes use and occupancy of the leased premises for the
conduct of business, whichever shall first occur. The Lessor shall not be
liable for any inconvenience or interruption of business of the Lessee
occasioned by fire or other casualty.
(c) If the Lessor undertakes to restore, rebuild or repair the
premises, and such restoration, rebuilding or repair is not accomplished
within one hundred eighty (180) days, the Lessee shall have the right to
terminate this Lease by written notice to the Lessor within thirty (30)
days after expiration of said one hundred eighty (180) day period.
(d) Lessor shall not be liable to carry fire, casualty or extended
damage insurance on the person or property of the Lessee or any person or
property which may now or hereafter be placed in the leased premises.
15. CONDEMNATION: If during the term of this Lease or any renewal thereof,
the whole of the leased premises, or such portion thereof as will materially
affect the use of the leased premises for the purpose leased, be condemned by
public authority for public use, then, in either event, the term hereby granted
shall cease and come to an end as of the date the Lessee is required to vacate
the leased premises by either Lessor or the condemnor. Upon such occurrence, the
rent shall be proportioned as of such date and any prepaid rent shall be
returned to the Lessee. The Lessor shall be entitled to the entire award for
such taking except for any statutory claim on the Lessee for injury, damage or
destruction of Lessee's business accomplished by such taking. If a portion of
the leased premises is taken or condemned by public authority for public use so
as not to materially affect the
5
ability of the Lessee to use its remaining portion of the leased premises
for the purposes leased, this Lease will not be terminated but shall continue.
In such case, the rent shall be equitably and fairly reduced or abated for the
remainder of the term in proportion to the amount of the leased premises taken.
In no event shall the Lessor be liable to the Lessee for any business
interruption, diminution in use or for the value of any unexpired term of this
Lease.
16. ASSIGNMENT AND SUBLEASE: The Lessee covenants and agrees not to
encumber or assign this Lease or sublet all or any part of the leased premises
without the written consent of the Lessor, which consent the Lessor covenants
and agrees shall not be unreasonably withheld. Lessee shall provide Lessor with
written notice of any proposed assignment or sublease at least thirty (30) days
prior to any proposed effective date of assignment or sublease. If Lessor fails
to provide Lessee with notice of whether such assignment or sublease is approved
within thirty (30) days of receipt by Lessor of such request, such inaction by
Lessor shall constitute consent. Notwithstanding the foregoing, Lessee has the
right to assign or sublet this Lease as long as the guarantee executed by
Diagnostic Retrieval Systems, Inc. remains in full force and effect and said
company has a financial worth at least comparable to that on the date this Lease
and Guarantee are executed. Any such assignment shall in no way relieve the
Lessee from any obligations hereunder for the payment of rents or the
performance of the conditions, covenants and provisions of this Lease.
In no event shall Lessee assign or sublet the leased premises for any
terms, conditions and covenants other than those contained herein, except that
Lessee may assign or sublet to another person for different rent or a different
use as long as such use complies with all applicable regulations regarding the
use and operation of businesses located in the leased premises. In no event
shall this Lease be assigned or be assignable by operation of law or by
voluntary or involuntary bankruptcy proceedings or otherwise, and in no event
shall this Lease or any rights or privileges hereunder be an asset of Lessee
under any bankruptcy, insolvency or reorganization proceedings. Lessor shall not
be liable nor shall the leased premises be subject to any mechanics,
materialmans, or other type liens and Lessee shall keep the premises and
property in which the leased premises are situated free from any such liens
caused by acts of Lessee and shall indemnify Lessor against and satisfy any such
liens which may obtain because of acts of Lessee notwithstanding the foregoing
provision.
17. HOLDOVER: It is further covenanted and agreed that if the Lessee, any
assignee or sublessee shall continue to occupy the leased premises after the
termination of this Lease without prior written consent of the Lessor, such
tenancy shall be Tenancy at Sufferance. Acceptance by the Lessor of rent after
such termination shall not constitute a renewal of this Lease or consent to such
occupancy nor shall it waive Lessor's right of reentry or any other right
contained herein.
6
18. SUBORDINATION: Subject to the last sentence of this paragraph, this
Lease shall be subject and subordinated at all times to the liens of any
mortgages or deeds of trust in any amount or amounts whatsoever now existing or
hereafter encumbering the leased premises, without the necessity of having
further instruments executed by the Lessee to effect such subordination.
Notwithstanding the foregoing, Lessee covenants and agrees to execute and
deliver upon demand, such further instruments evidencing such subordination of
this Lease to such liens of any such mortgages or deeds of trust as may be
requested by Lessor. Lessor shall provide a non-disturbance agreement from the
mortgagee holding the mortgage on the leased premises on or before November 15,
1995. So long as the Lessee hereunder shall pay the rent reserved and comply
with, abide by and discharge the terms, conditions, covenants, and obligations
on its part, to be kept and performed herein and shall attorn to any successor
in title, notwithstanding the foregoing, the peaceable possession of the Lessee
in and to the leased premises for the term of this Lease shall not be disturbed,
in the event of the foreclosure of any such mortgage or deed of trust, by the
purchaser at such foreclosure sale or such purchaser's successor in title.
19. INDEMNIFICATION: The Lessor shall not be liable for any damage or
injury to any person or property whether it be the person or property of the
Lessee, the Lessee's employees, agents, guests, invitees or otherwise by reason
of Lessee's occupancy of the leased premises or because of fire, flood,
windstorm, Acts of God or for any other reason unless caused by the intentional
acts or gross negligence of Lessor. The Lessee agrees to indemnify and save
harmless the Lessor, its agents, employees and contractors from and against any
and all loss, damage, claim, demand, liability or expense by reason of damage to
person or property which may arise or be claimed to have arisen as a result of
the occupancy or use of said leased premises by the Lessee or by reason thereof
or in connection therewith, or in any way arising on account of any injury or
damage caused to any person or property on or in the leased premises providing,
however, that Lessee shall not indemnify as to the loss or damage due to fault
of Lessor.
20. CONSTRUCTION OF LANGUAGE: The terms lease, lease agreement or agreement
shall be inclusive of each other, also to include renewals, extensions or
modifications of this Lease. Words of any gender used in this Lease shall be
held to include any other gender, and in the singular shall be held to include
the plural and the plural to include the singular, when the sense requires. The
paragraph headings and titles are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
7
21. DEFAULT: In the event the Lessee shall default in the payment of rent,
those sums designated as additional rent or any other sums payable by the Lessee
herein, and such default shall continue for a period of ten days from the date
of written notice by Lessor to Lessee, or if the Lessee shall default in the
performance of any other covenants or agreements of this Lease and such default
shall continue for thirty days after written notice thereof (or if the default
cannot be cured within thirty (30) days, that Lessee failed to diligently
proceed to cure), or if the Lessee should become bankrupt or insolvent or any
debtor proceedings be taken by or against the Lessee, then and in addition to
any and all other legal remedies and rights, the Lessor may terminate this Lease
and retake possession of the leased premises, or enter the leased premises and
re-let the same without termination, in which later event the Lessee covenants
and agrees to pay any deficiency after Lessee is credited with the rent thereby
obtained less all repairs and expenses (including the expenses of obtaining
possession), or the Lessor may resort to any two or more of such remedies or
rights, and any other remedies provided by law except acceleration, and adoption
of one or more such remedies or rights shall not necessarily prevent the
enforcement of others concurrently or thereafter. Lessor shall be entitled to
its landlord's lien provided by law. Lessor agrees to mitigate damages, if
possible.
The Lessee also covenants and agrees to pay reasonable attorney's fees and
costs and expenses of the Lessor, including court costs, if the Lessor employs
an attorney to collect rent or enforce other rights of the Lessor herein in
event of any breach as aforesaid and the same shall be payable regardless of
whether collection or enforcement is effected by suit or otherwise. In the event
any litigation arises under this Agreement, the prevailing party shall be
entitled to attorney's fees and costs, including attorney's fees for any appeal.
22. SUCCESSORS AND ASSIGNS: This Lease shall bind and inure to the benefit
of the successors, assigns, heirs, executors, administrators and legal
representatives of the parties hereto.
23. NON-WAIVER: No waiver of any covenant or condition of this Lease by
either party shall be deemed to imply or constitute a further waiver of the same
covenant or condition or any other covenant or condition of this Lease.
24. OPTION TO RENEW: Lessee is hereby granted an option to renew this lease
for one additional term of five (5) years. Lessee shall, not less than ninety
days prior to the end of the term hereof, by written notice to the Lessor,
notify Lessor of its intention to exercise this option to renew. Failure of
Lessee to serve such written notice of exercise of option on the Lessor shall
terminate this option. Upon exercise of said option to renew, the lease term
shall be extended for an additional five (5) years upon all of the terms and
conditions of this lease, subject to any rent adjustments of Paragraph 5.
However, there shall be no additional options to renew.
8
25. SECURITY DEPOSIT: The Lessee, concurrently with -the execution of this
Lease, has deposited with the Lessor the sum of $20,000.00, the receipt being
hereby acknowledged, which sum shall be retained by Lessor as security for the
payment by the Lessee of the rent herein agreed to be paid and for the faithful
performance of the covenants of this Lease. If at any time the Lessee shall be
in default following notice and the expiration of any applicable grace period in
any of the provisions of this Lease, the Lessor shall have the right to use said
deposit, or so much thereof as may be necessary in payment of any rent in
default aforesaid and/or in payment of any expense incurred by the Lessor in and
about the curing of any default by said Lessee, and/or in payment of any damages
incurred by the Lessor by reason of such default of the Lessee, or at the
Lessor's option, the same may be retained by the Lessor in liquidation of part
of the damages suffered by the Lessor by reason of the default of the Lessee. In
the event that said deposit shall not be utilized for any such purpose, then
such deposit shall be applied to the rent last due for the term of this Lease or
any renewal term thereof. Said deposit shall not bear interest.
26. ADDITIONAL CHARGES: The Lessee shall pay to Lessor as additional rent
on a monthly basis its pro rata share of all costs and expenses related to
operating, managing, equipping, insuring, lighting, repairing, cleaning,
decorating, preserving, altering, replacing, maintaining and enhancing building
1 and building 2 of the commerce park in which the leased property is located
along with parking areas and other areas within the commerce park in which the
buildings are located. Such costs and expenses shall include but not be 1imited
to: pest extermination; inspection of equipment; inspection and repair of fire
sprinkler and alarm service; removal of dirt and debris; planting, replanting
and replacing flowers; landscaping; irrigation and supplies; all costs and
expenses associated with maintaining lighting facilities and storm drainage and
retention systems, whether on or off premises; electric service, sewage
treatment plant and domestic water well, pump and similar costs; audit costs;
all premiums for liability, loss of rents, property damage, fire and worker's
compensation insurance; wages; unemployment taxes; social security taxes;
personal property taxes; management fees; legal fees; solid waste charges;
windows; maintenance, lining, bumpering, top coating and repairing all
impervious surfaces; rental of machinery necessary to implement any of the
foregoing services; and bank charges, along with real property taxes and
assessments. Notwithstanding, Lessee shall not be obligated to pay any portion
of capital items with the exception of parking lot expansion if hereafter
required in writing by Lessee. Nothing contained herein shall be deemed or
construed to modify or negate Lessor's obligations under that memorandum dated
_______________. The only repair obligation of the Lessor is the exterior of the
roof of the building and the structural portions of the building and leased
premises, as long as such repair is not necessitated by the action of the
Lessee, its employees, agents or contractors.
9
Current estimated monthly charges are as follows:
(a) Woodlake Commerce Park CAM $ 103.57 (inc. 6% sales tax)
(b) Building CAM $1811.01 (inc. 6% sales tax
(c) Real Property taxes $1707.44
Copies of the proposed budget for the upcoming year are appended hereto.
Lessee's pro rata percentage for the leased premises for determining
Building CAM and Real Property taxes is 21.6%. This represents the Lessee's pro
rata share determined by lease space of 35,510 square feet and tota1 building
square feet of 164,500 square feet. Lessee's pro rata percentage for the
Woodlake Commerce Park CAM is 4.52736%. This percentage is determined as
follows: (i) the percentage of land comprising buildings 1 and 2 of Woodlake
Commerce Park owned by Lessor in the entire Woodlake Commerce Park (20.96%)
multiplied by (ii) the pro rata portion of CAM expenses (21.6%) (20.96%) x
(21.6%) - 4.52736%.
28. IMPACT FEE: It is understood that there is currently on record with the
City of Palm Bay projected water and sewer uses with regard to the demised
premises. Xxxxxx has previously paid to the City of Palm Bay an impact fee based
upon such projected usage. Lessor has been advised by the City of Palm Bay that
Lessee's proposed use wi11 not require the additional payment of impact fees.
However, should the actual usage of water and sewer by Lessee hereunder increase
over and above the projected usage, and should the City of Palm Bay assess an
additional impact fee against the Lessor as a result of such increased usage,
Lessee shall be and become responsible for any increased impact fee. Such
increase shall be due and payable as additiona1 rent hereunder and shall be paid
by Lessee to Lessor within twenty (20) days after submission of invoice for said
amount.
29. PAST DUE RENT: If Lessee shall fail to pay any rents, additional rents
or other charges characterized herein as additiona1 rent when the same become
due and payable, such unpaid amounts shal1 bear interest from the due date
thereof to the date of payment at the rata of five percent (5%} until paid. The
provisions herein for late payment service charges shall not be construed to
extend the dates for payment of any sums required to be paid by Lessee hereunder
or to relieve Lessee of its obligation to pay all such sums at the time or times
herein stipulated. Notwithstanding the imposition of any charges pursuant to
this section, Lessee shall be in default under this Lease if any or all payments
required to be made by Lessee are not made at the time therein stipulated and
neither the demand nor collection by Lessor
10
of such late payment service charges shall be construed as a cure for such
default on the part of the Lessee.
Lessor permits a ten (10) day grace period.
30. This information is being provided as required by Florida Statute
404.056:
RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over 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.
31. VENUE. In the event any litigation arises out of this Agreement, venue
shall be in a court of competent jurisdiction in Brevard County, Florida.
32. SEVERABILITY. In the event that any term or provision of this Agreement
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those to which
it is held invalid or unenforceable shall not be affected thereby and each term
and provision of this Agreement shall be valid and be enforced by the fullest
extent permitted by law.
33. REPAIRS AND MAINTENANCE: Lessor shall not be liable to Lessee for any
repairs necessitated by some act or neglect of Lessee or any Permittee, or any
contractor, agent, employee, invitee of any of the aforesaid or, for any damage
to merchandise, trade fixtures, or personal property of Lessee in the leased
premises caused by water leakage from the roof, water lines, sprinklers or
heating and air conditioning equipment. Lessee shall be liable for all repairs
and replacements, ordinary and extraordinary, other than those for which Lessor
is responsible, and shall maintain in the leased premises in good order and
repair, clean, sanitary and safe, including the replacement and maintenance of
equipment, fixtures, improvements, floor covering, the exterior and interior
portions of all doors, door locks, security gates and windows, plumbing and
sewage facilities, heating and air conditioning equipment, walls, ceilings, and
all plate glass. Lessee shall, as part of its maintenance and repair obligations
hereunder, enter into a service contract with a local, approved contractor for
service, maintenance and repair of all heating, ventilation and air conditioning
equipment within and servicing the leased premises, which shall provide for
servicing by such contractor no less often than quarterly. A copy of such
contract shall be delivered to the Lessor annually. If Lessee refuses or
neglects to make repairs and/or maintain the leased promises, or any part
thereof, in a manner reasonably satisfactory to Lessor, Lessor shall have the
right, upon giving Lessee
11
reasonable written notice of its election to do so, to make repair or perform
such maintenance on behalf of and for the account of Lessee. In such event, such
work shall be paid for by Lessee as additional rental promptly upon receipt of a
xxxx therefor. Lessee further agrees to paint the interior of the leased
premises when necessary in order to maintain at all times a clean and sightly
appearance. Nothing herein shall imply any duty on Lessor to do any work which
Lessor is not specifically and expressly required to perform under this Lease or
which, under any provisions of this Lease, Lessee may be required to perform;
and, the performing thereof by Lessor shall not constitute a waiver of Lessee's
default in failing to perform the same. Lessee acknowledges that the foregoing
provisions of this paragraph shall apply and become effective from and after the
date Lessee or its agents or contractors enter the leased premises or undertake
activities permitted hereunder. Lessee shall indemnify Lessor against, and hold
it harmless from, any claims, demands, or actions against Lessor or its agents,
employees or contractors for losses or damages incurred by Lessor or its agents,
employees or contractors arising out of or in any way connected with Lessee's
failure to perform its obligations or observe any covenants under this
paragraph.
34. HAZARDOUS SUBSTANCES: The term "Hazardous Substances" as used in this
Lease shall include, without limitation: flammables, explosives, radioactive
materials, asbestos, polychlorinated biphenyls (PCBs), chemicals known to cause
cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes,
toxic substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority.
Lessee shall not cause or permit to occur any violation of any federal,
state, or local law, ordinance, or regulation now or hereafter enacted, related
to environmental conditions on, under or about the premises arising from
Lessee's use or occupancy therein, nor shall Lessee cause or permit the use,
generation, release, manufacture, refinement, production, processing, storage or
disposal of any Hazardous Substance which violates any federal, state or local
law, ordinance or regulation now or hereafter enacted related to environmental
conditions without Lessor's prior written consent, which consent may be
withdrawn, conditioned, or modified by Lessor in its sole and absolute
discretion.
Lessee shall indemnify, defend and hold Lessor, its respective officers,
directors, beneficiaries, shareholders, partners, agents, and employees harmless
from all fines, suits, procedures, claims, clean-up and actions of every kind,
and all costs associated therewith, including attorney's and consultant's fees,
arising out of, or in any way connected with, any deposit, spill, discharge or
other release of Hazardous Substances by Lessee, at or from the premises, or
which arises at any time from Lessee's use or occupancy of the premises, or from
Lessee's
12
failure to comply with or satisfy government required action on the matter.
Lessee's obligations and liabilities under this paragraph shall survive the
termination of this Lease.
35. CONFIDENTIALITY: Lessee shall not disclose the terms of this agreement
to any person except on a need to know basis.
IN WITNESS WHEREOF, Lessee and Lessor have caused this instrument to be
executed as of the date first above written, by their respective officers or
parties thereunto duly authorized.
Signed, sealed and delivered Lessee: OMI ACQUISITION CORP.
in the presence of:
(Sig) (Sig)
----------------------------- By --------------------------
Secretary
(Sig)
----------------------------- Title -----------------------
Attest ----------------------
Secretary
(Corporate Seal)
Signed, sealed and delivered
in the presence of:
Lessor: XXXXXX PROPERTIES
(Sig)
----------------------------
(Sig) (Sig)
---------------------------- -----------------------------
Authorized Agent for
Xxxxxx Properties
13
GUARANTEE
In order to induce Lessor to execute the foregoing Lease (the "Lease")
covering 35,510 square feet of space set forth in the foregoing Lease, and dated
August , 1995, by and between XXXX X. XXXXXX and XXXXXX X. XXXXXX d/b/a XXXXXX
PROPERTIES and OMI ACQUISITION CORP., to which this Guarantee is an integral
part thereof, the undersigned hereby guarantees the payment and performance of
and agrees to pay and perform as a primary obligor all liabilities, obligations
and duties (including, but not limited to, payment of rent) imposed upon Lessee
under the terms of the Lease, as if the undersigned had executed the Lease as
Lessee thereunder as it relates only to the payment of rent, any sums identified
as additional rent, any obligations, duties and liabilities under Paragraph 34
of the Lease and any fines, attorney's fees and any other expenses or costs
incurred by Lessor for code violations and code violation proceedings initiated
by any regulatory agency for code violations alleged to exist in operation and
maintenance of Lessee's business and maintenance of the leased premises by
Lessee.
The undersigned hereby waives notice of acceptance of this guarantee and
all other notices in connection herewith or in connection with the liabilities,
obligations and duties guaranteed hereby, including notices of default by Lessee
under the Lease, and waives diligence, presentment and suit on the part of
Lessor in the enforcement of any liability, obligation or duty guaranteed
hereby.
The undersigned further agrees that Lessor shall not be first required to
enforce against Lessee or any other person any liability, obligation or duty
guaranteed hereby before seeking enforcement thereof against the undersigned.
Suit may be brought and maintained against the undersigned by Lessor to enforce
any liability, obligation or duty guaranteed hereby without joinder of Lessee or
any other person. The liability of the undersigned shall not be affected by any
indulgence, compromise, settlement or termination of the Lease to the extent
that Lessee thereafter continues to be liable thereunder. Lessor and Lessee,
without notice to or consent by the undersigned, may at any time and from time
to time enter into such modifications, extensions, amendments or other covenants
respecting the Lease as they may deem appropriate and the undersigned shall not
be released thereby, but shall continue to be fully liable to the extent
provided for herein for the payment and performance of all liabilities,
obligations and duties of Lessee under the Lease as so modified, extended or
amended.
It is understood that other agreements similar to this agreement may be
executed by other persons with respect to the Lease. This agreement shall be
cumulative of any such other agreements and the liabilities and obligations of
the undersigned hereunder shall in no event be affected or diminished by reason
of such other agreements. In the event that Lessor secures other
agreements similar to this agreement, or secures the signature of more than
one guarantor to this agreement, or both, the undersigned agrees that Lessor, in
Lessor's sole discretion, may bring suit against all guarantors of the Lease
jointly and severally against any one or more of them, may compound or settle
with any one or more of such guarantors for such consideration as Lessor shall
deem proper, and may release one or more of such guarantors from any liability,
obligation or duty guaranteed hereby. The undersigned further agrees that no
such action shall impair the rights of Lessor to enforce the Lease against any
remaining guarantor(s).
The undersigned agrees that if Lessor shall employ counsel to present,
enforce or defend any or all of the Lessor's rights or remedies hereunder, or
defend any action brought by the undersigned, undersigned shall pay any
reasonable attorney's fees and expenses incurred by Lessor in such connection.
EXECUTED this ____ day of _____________, 199__, to be effective as of the
date of the Lease.
GUARANTOR: DIAGNOSTIC/RETRIEVAL
SYSTEMS, INC.
__________________________________ By: ______________________________
Its:
__________________________________ __________________________________
Attest: Secretary
(Corporate Seal)
