EXHIBIT 10.13
LEASE
1. Fundamental Lease Provisions and Exhibits.
1.1. Fundamental Lease Provisions.
Date of Lease: November 23, 1999
Commencement Date
of Term of Lease: December 1, 1999
Landlord: 1560 N. Orange Ltd., a Florida limited partnership
Address: 000 Xxxxx Xxxxxxx Xxx.
Orlando, FL 32806
Tenant: Post, Xxxxxxx, Schuh & Xxxx0xx Attn: X.X. Xxxxxx
Tenant Address: 0000 XX 000" Xxxxxx
Xxxxx, Xxxxxxx 00000
Building: 0000 Xxxxx Xxxxxx Building also known as Winter Park
Plaza
Property Address: 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxx, XX - Xxxxxx
Xxxxxx
Property Description: See Exhibit "A" attached hereto and incorporated
herein.
Premises: Suite No. 700, 600, 500, 400, 300, and 250 of the
Building
Leased Area: Approximately Seventy Three Thousand Seven Hundred
and Fifty Eight (73,758) square feet of Rentable area
("Rentable Square Feet").
Lease Term: Sixteen (16) months beginning December 1, 1999 and
ending March 31, 2001.
Annual Minimum Rent:
--------------------- --------------------------------- ----------------------
Period Monthly Minimum Rent Annual Minimum Rent
--------------------- --------------------------------- ----------------------
12/1/99 - 6/30/00 $159,220.67 $1,916,648.04
--------------------- --------------------------------- ----------------------
7/01/00 - 3/31/01 $232,831.00 $2,793,972.00
--------------------- --------------------------------- ----------------------
Base Year Amount: For the period December 1, 1999 through June 30, 2000
the Base Year expenses shall be included in the
rental rate and no reimbursements for Operating
Expenses shall be due. From July 1, 2000 through the
termination of the Lease Term the Base Year shall be
revised to be set at $667,509.90 and the terms of
Paragraph 4.3 herein shall apply.
Security Deposit: $360,140.00
Tenant's
Proportionate Share: For the period December 1, 1999 through June 30, 2000
the Rentable area in the Premises shall be calculated
(54,028 square feet) divided by the Rentable area in
the building (81,282 square feet) which equals Sixty
Six and Five Tenths percent (66.5%). From the period
July 1, 2000 through the termination of the Lease
Tenn the Rentable area in the Premises shall be
calculated (73,758 square feet) divided by the
Rentable area in the building (91,813 square feet)
which equals Eighty and Three Tenths percent (80.3%).
Permitted Uses: Corporate and administrative office.
Prohibited Uses: All uses other than the Permitted Uses. Medical
practice, medical office and medical procedure use is
specifically, without limitation, prohibited.
1.2. Effect of Reference to a Fundamental Lease Provision. Each reference in
this Lease to any of the Fundamental Lease Provisions contained in Section 1.1.
shall be construed to incorporate all of the terms provided under each such
Fundamental Lease Provision.
2. Premises and Term.
2.1. Premises. The Landlord hereby leases to the Tenant and the Tenant hires
and takes from the Landlord the Premises located in the improved buildings) on
the Property (the "Building"), subject to and with the benefits of the terms,
covenants, conditions and provisions of this Lease, together with appurtenances
specifically granted in this Lease, but reserving to the Landlord (I) the use of
(a) the exterior faces of all exterior walls and (b) the roof, and (ii) the
right (but not the obligation) to install, maintain, use, repair and replace
pipes, ducts, conduits and wire through the Premises and serving the other parts
of the Building. For the purposes of this Lease, the Premises shall be
conclusively deemed to consist of the number of square feet of Leased Area as
set forth in Section 1.1. hereof.
2.2. Term. The Term shall commence on the Commencement Date, and shall end
at Noon on the last day of the Lease Term, unless sooner terminated as
hereinafter provided.
2.3. Early Termination Right. Provided Tenant is not in then in default
under this Lease, Tenant shall have the right to terminate this Lease (as to
all, but not less than all of the Premises) prior to the expiration date of the
Term, upon not less than ninety (90) days written notice of termination (the
"Termination Notice") from Tenant to Landlord specifying the termination date
(the "Termination Date") of the Lease (which shall be not earlier than ninety
(90) days after the date of the Termination Notice) accompanied by a payment
(the "Termination Payment) of all Annual Minimum Rent, sales tax thereon and
other sums due under this Lease through the Termination Date. Upon issuance of
the Termination Notice and payment of the Termination Payment, the expiration
date of the Term shall be the Termination Date, Tenant shall vacate the Premises
not later than midnight, Orlando, Florida time on the Termination Date, and
thereupon neither Landlord nor Tenant shall have any further rights, interests
or obligations under this Lease except for adjustment and collection of
Additional Rent pursuant to Section 4.3 of this Lease and other matters which
expressly survive the termination or expiration of this Lease.
3. Improvements.
3.1. (Intentionally Omited.]
3.2. Ownership of Improvements. All improvements to the Premises shall
remain the property of the Landlord. In no event shall Tenant make any
improvements or alterations to the Premises, including the installation and
removal of trade fixtures, without the prior written consent of Landlord, which
shall not be unreasonably withheld nor delayed.
4. Rent and Other Payments.
4.1. Payment. All Rent and other charges payable to the Landlord under any
provision of this Lease shall be paid to the Landlord, or as the Landlord may
otherwise designate, in lawful money of the United States at the address of the
Landlord or at such other place as the Landlord in writing may designate,
without any set-off or deduction whatsoever, and without any prior demand
therefor. In addition to the payment of the Rent and other charges, the Tenant
shall also pay to the Landlord, at the time of payment of such Rent and other
charges, all sales, use and/or occupancy-taxes payable by virtue of any such
payments. Rent for any period beginning during the term hereof which is for less
than one (1) month shall be a prorated portion of the monthly installment.
4.2. Annual Minimum Rent. The Tenant shall pay the Annual Minimum Rent, in
equal monthly installments in advance on the first day of each calendar month
included in the Lease Term. The first monthly installment shall be paid on the
signing of this Lease if not previously delivered. Tenant acknowledges that late
payment by Tenant to Landlord of Rent or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which would be extremely difficult and impractical to ascertain. Such costs
include, but are not limited to, processing and account charges, and late
charges which may be imposed on Landlord by the terms of any Mortgage
encumbering the Premises. Therefore, in the event any installment of Rent or any
sum due hereunder is not paid within five (5) days after such amount is due,
Tenant shall pay to Landlord as Additional Rent, a late charge equal to five
percent (5%) of each such installment or other sum or Twenty Five ($25.00)
Dollars per month, whichever is greater. A sum of Fifteen ($15.00) Dollars shall
also be due from and paid by Tenant to Landlord for each check which is returned
due to insufficient funds, and Tenant shall pay a charge of One Hundred Fifty
Dollars ($150.00) for preparation of a demand for delinquent rent in addition to
all other sums due by Tenant under this Lease.
4.3. Additional Rent. Tenant shall pay to Landlord, in addition to
Annual Minimum Rent, in the form of Additional Rent (plus any applicable tax),
its Proportionate Share of increased Operating Expenses over the Base Year
Amount as defined in Section 1.1 of this Lease. Should Tenant exercise any
expansion option under the Lease, the foregoing Proportionate Share shall be
adjusted accordingly. In no event shall those Operating Expenses of which
Landlord has control (i.e. those which may be competitively bid) increase by
more than five (5%) percent annually. Specifically excluded as controllable
expenses are real estate taxes, insurance and utilities.
Within thirty (30) days after the first twelve (12) months of the
Term and each anniversary thereafter, Landlord shall deliver to Tenant a
statement setting forth the amount of increases in Operating Expenses over the
Base Year Amount for the preceding twelve (12) month period, together with an
invoice showing the amount due Landlord from Tenant under such increases. Tenant
shall pay any increases over the Base Year Amount within thirty (30) days from
receipt of the statement and invoice, whether or not Tenant disputes the
accuracy of such statement, Tenant reserving the right at its expense to audit
Xxxxxxxx's records in support of such statement.
The term "Real Estate Taxes" shall mean the annual taxes and any
special assessments or other charges levied against the real property of which
the Prenu'ses are a part by any authority having the direct power so to tax,
including any city, county, state or Federal government, or any school,
agricultural, transportation or environmental control agency, lighting drainage,
or other improvement district hereof, and shall include the expense of
contesting the amount of validity of any such taxes, charges or assessments. The
term "Operating Expenses" shall include the annual expenses of Landlord for the
operation and maintenance of the Premises and Building which are reasonable or
customary for the operation of this type of Premises and Building, and shall
include, but not be limited to, management salaries, maintenance and janitorial
expense, administrative salaries, costs and fees, insurance, security,
landscaping and any capital expenditures required under any governmental law,
rule or regulation that was not applicable to the building at the time it was
originally constructed but excluding all other capital expenditures (except as
noted below). The term "Utility Costs" shall include Landlord's annual expenses
for the operation and maintenance of the Building and the Premises with respect
to utility charges for furnishing heat, air-conditioning, electricity, water,
sewage, gas, garbage removal, etc. If the final Lease year (to include renewals)
during which escalation may occur shall contain less than twelve (12) months,
the increase hereunder shall be prorated, the Tenanf s obligation to pay such
increases to survive the expiration of the Lease (and renewal) term.
If the Landlord in its sole discretion in operating the Building
chooses to install any energy or labor saving devices, equipment, fixtures or
appliances to or in the Building that otherwise might be considered a capital
expenditure, then the Landlord may depreciate the cost of the equipment or
fixture into Operating Expenses of the Building, including interest at a
reasonable rate, all according to generally accepted accounting principles
applied on a consistent basis.
5. Utility Services and Maintenance by Landlord. The Landlord shall cause
the necessary mains, conduits and other facilities to be provided to supply
water, sanitary sewer facilities and electricity into the Premises, and the
Tenant hereby acknowledges that the Landlord has complied with the provisions of
this paragraph. The Tenant shall pay directly all charges for electric,
telephone and any other utilities used or consumed in the Premises which are
separately metered to the Premises. In the event the Premises are not separately
metered for electricity, in the event Tenant ufilizes the Premises during the
Term outside of the normal business hours of 7:00 a.m. to 6:00 p.m. Monday
through Friday and 8 a.m. to 1 p.m. on Saturdays exclusive of holidays on which
commercial banks in Orange County, Florida are closed, Tenant shall pay to
Landlord, as Additional Rent and in addition to all other obligations of Tenant
hereunder, $15 (plus applicable sales or rental tax) per hour for each hour, or
portion thereof, during which Tenant utilizes the Premises during non-business
hours, as compensation to Landlord for the additional cost of electricity
arising from such usage. In addition, if Tenant uses water or produces refuse in
excess of normal use, Landlord, in its discretion may allocate Tenant the
increased cost for such services as reasonably measured or estimated by
Landlord, and Tenant shall pay Landlord, on demand, any increased cost so
reasonably measured or estimated. Xxxxxxxx agrees to furnish the following
services to Tenant for the Premises upon the terms and conditions set forth
herein with the costs for such services being part of the Operating Expenses:
(i) Landlord agrees to furnish sufficient heating and air conditioning to the
Premises to provide a temperature condition required in Landlord's reasonable
judgment for comfortable
occupancy of the Premises under normal business operations between 7:00 a.m. to
6:00 p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays
exclusive of holidays on which commercial banks in Orange County, Florida are
closed; provided that upon request of Tenant not later than 2:00 p.m. on the
prior business day, Landlord shall provide heating and air conditioning to the
Premises outside of normal business hours at the charge to Tenant specified
above in this paragraph; (ii) Landlord will provide reasonable sewer service and
water for drinking, lavatory and toilet purposes in the conunon areas of the
Building; (iii) Landlord agrees to provide standard commercial available
electricity to the Premises in the capacity existing in the Premises immediately
prior to the Conunencement Date of this Lease; (iv) Landlord will provide
passenger elevator service from the lobby of the Building to the floor on which
the Premises are located, provided that elevator service may be interrupted from
time to time due to malfunction or for repairs; (v) Landlord will provide
janitorial service to the Premises five (5) days per week exclusive of holidays;
(vi) Landlord will maintain the Building in reasonably good condition and
repair; and Landlord will provide one (1) directory strip in each of the two (2)
building directories.
6. Insurance.
6.1. Insurance to be Maintained by Tenant. Tenant shall maintain, at
Tenant's expense, during the term of this Lease (i) liability insurance in the
form of a Combined Single Limit Bodily Injury and Property Damage Insurance
Policy insuring Landlord and Tenant against any liability arising out of use,
occupancy or maintenance of the Premises and all other areas appurtenant thereto
in an amount not less than One Million (S 1,000,000) Dollars per occurrence; and
(ii) a policy of all perils property insurance covering loss or damage to all of
Tenant's inventory, fixtures, furniture and equipment located on the Premises to
the extent of at least eighty (80%) percent of their insurable value without
deduction for depreciation. During the term of this Lease, the proceeds from any
such policy or policies of insurance shall be used for the repair or replacement
of the property and equipment insured. Landlord will not carry insurance on
Tenant's property. Tenant shall fumish Landlord with a certificate that such
insurance is in force and effect during the Term of this Lease, which
certificate of insurance shall name Landlord as an additional insured under said
policy or policies. All insurance shall be placed with an insurance company in
good standing and licensed to do business in the State of Florida and said
insurance shall not be cancelable or altered without thirty (30) days prior
notice to Landlord. In the event Landlord objects by written notice to Tenant to
alterations to the insurance policy during such thirty (30) day period, Tenant
shall cause the altered insurance policy to be further modified or endorsed in a
manner reasonably acceptable to Landlord. In the event of a notice of
cancellation of an insurance policy, Tenant shall replace such insurance policy
with another insurance policy meeting the requirements of this paragraph and
shall provide Landlord with a Certificate of such new insurance policy naming
Landlord as an additional insured not later than ten (10) days prior to the
expiration of the prior insurance policy.
6.2. Insurance to be Maintained by Landlord. Landlord shall obtain and keep
in force, during the Lease Term, the following policies of insurance with loss
payable to Landlord: (i) a policy of Combined Single Lin-tit Bodily Injury and
Property Damage Insurance, insuring Landlord against any liability arising out
of ownership, use, occupancy or maintenance of the Building and Property; (ii) a
policy or policies of insurance covering loss or damage to the Building and
Property, but not Tenant's inventory, fixtures, furniture and equipment, in an
amount not to exceed the full replacement value thereof, as the same exists from
time to time, providing all risk protection against all perils included within
the classifications of fire, extended coverage, vandalism, malicious mischief,
special extended perils ("all risk", as such term in the insurance industry) and
plate glass insurance; (iii) a policy of rental value insurance in an amount not
less than one (1) year's gross rentals for all tenants occupying any portion of
the Building: and (iv) any other insurance the Landlord deenis necessary or
appropriate. If Landlord 's insurance premiums exceed the standard premium rates
because the nature of Tenant's operation and use of the Premises results in
extra hazardous exposure, then Tenant shall, upon receipt of appropriate
invoices from Landlord, reimburse Landlord for such increase in premiums. It is
understood and agreed between the parties hereto that any such increase in
premiums because of the nature of Tenant's operation shall be considered as
Annual Minimum Rent due and shall be included in any lien for rent.
6.3. Waiver of Subrogation. As long as their respective insurers so pen-nit,
Landlord and Tenant hereby mutually waive their respective rights of recovery
against each other for any loss insured and only to the limit actually covered
by fire, extended coverage and other property insurance policies existing for
the benefit of the respective parties. Each party shall obtain any special
endorsements, if required by their insurer, to evidence compliance with the
aforementioned waiver.
7. Additional Covenants of Tenant.
7.1. Affirmative Covenants. The Tenant covenants, at its expense, at all
times during the Lease Term:
7.1.1. To perform promptly all of the obligations of the Tenant set forth in
this Lease and in the Exhibits and Addenda attached hereto, and to pay when due
the Rent, Additional Rent and all other charges and sums which are to be paid by
Tenant pursuant to this Lease.
7.1.2. To use the Premises only for the Permitted Use and to abide by and
conform to all use restrictions set forth in the certificate of occupancy issued
for the Premises, and in the Rules and Regulations attached hereto as Exhibit
"C" (as the same may be reasonably amended from time to time in Landlord's
discretion), and all other laws, orders, pen-nits, rules and regulations of any
governmental authority claiming jurisdiction over the Premises.
7.1.3. To keep the Premises, including equipment, doors, floors, walls and
windows, facilities and fixtures therein, clean, neat and in good order, repair
and condition, and Tenant will not suffer or permit any waste of the Premises.
If Tenant's acts or operations other than ordinary use result in obstruction of
sanitary sewer lines, Tenant shall pay to Landlord the expense of Landlord's
clearing or repair of the sewer lines.
7.1.4. To keep the Premises equipped with all safety appliances required in
order to comply with any law, ordinance, order or regulation of any governmental
authority or board of fire underwriters having jurisdiction.
7.1.5. To defend and hold the Landlord harmless and indemnified from all
injury, loss, claims and damage (including attorneys' fees, paralegals' fees and
disbursements and including at appellate levels and post-judgment proceedings)
to any person or property arising from or related to, or connected with the use
or occupancy of the Premises, the conduct or operation of the Tenant's business,
or the Tenant's work at the Premises unless caused by or resulting from the
wflnl misconduct or negligence of Landlord, its agents, servants or employees in
the operation or maintenance of the Premises or the Building. Should Landlord be
named as a defendant in any suit brought against Tenant in connection with or
arising out of Xxxxxxx occupancy of the Premises, Tenant shall pay to Landlord
its costs and expenses incurred in such suit, including reasonable attorneys'
fees, paralegals' fee and costs, including at appellate levels and post-judgment
proceedings.
7.1.6. To permit Landlord or the Landlord's agents, upon reasonable notice
except in the event of an emergency, to enter upon the Premises during normal
business hours to examine and to make repairs, alterations, improvements or
additions to the Premises or the Building without the same constituting an
eviction of the Tenant, in whole or in part, and all rents shall in no way xxxxx
while such repairs, alterations, improvements or additions are being made by
reason of loss or interruption of business of the Tenant because of the
prosecution of any such work. The Landlord or the Landlord's agents shall also
have the right to enter upon the Premises upon reasonable notice during normal
business hours to show them to prospective mor-tgagees or purchasers of the
Building.
7.1.7. To pay all of Landlord's expenses (including, without hniitation, the
attorneys' fees, paralegals' fees and costs incurred by Landlord, whether or not
in litigation, including fees and costs incurred at appellate levels and post-
judgment proceedings in litigation) incurred by or on behalf of Landlord in
enforcing the obligations of the Tenant under this Lease, pursuing any remedy of
Landlord under this Lease, or in curing any default by the Tenant under this
Lease.
7.1.8 To forthwith cause to be discharged of record (by payment, bond, order
of a court of competent jurisdiction or otherwise) any mechanic's lien at any
time filed against the Premises, the Building or the Property for any work,
labor, services or materials claimed to have been performed at or fin-nished to
the Premises for or on behalf of the Tenant or anyone holding the Premises
through or under the Tenant. If the Tenant shall fail to cause such lien to be
discharged upon demand, then, in addition to any other right or remedy of the
Landlord, the Landlord may, but shall not be obligated to, discharge the same by
paying the amount claimed to be due, by bonding or by any other proceeding
deemed appropriate by the Landlord, and the amount paid by the Landlord, and all
costs and all expenses, including reasonable attorneys' fees and paralegals'
fees and costs (including at appellate levels and post-judgment proceedings),
incurred by the Landlord in procuring the discharge of such lien shall be deemed
to be an additional assessment. The Landlord's estate in the Premises shall not
be subject to any lien or liability under the Lien Laws of the State of Florida.
7.19. To quit and surrender to the Landlord the Premises upon the expiration
of the Lease Term or other termination of the Lease, broom clean, in good order
and condition, ordinary wear and tear excepted, and at Tenant's expense, to
remove all property of the Tenant, to repair all damages to the Premises caused
by such removal, and to restore the Premises to the condition in which they were
prior to the installation of the articles so removed. All property not so
removed shall be deemed to have been abandoned by the Tenant and may be retained
or disposed of by the Landlord, as the Landlord shall desire.
7.1.10. To remain fully obligated under this Lease, notwithstanding assignment
or sublease or any indulgence by the Landlord to the Tenant or to any assignee
or sublessee.
7.1.11. To fully understand and agree that the Landlord shall have no liability
for any loss or damage to Tenant's business or personal property arising out of,
but not limited to, any of the following causes: hurricanes, excessive rain,
roofing defects, bursting of pipes, fire, windstorm, malfunction of sewer or
water system, interruption of utility services.
7.1.12. To keep the Premises free from all rubbish, dirt, and debris and to
deposit all trash in trash receptacles to be furnished by Landlord at designated
locations within the common areas of the Property. The Tenant understands that
boxes and trash shall not be stacked outside of the Premises and/or on any
abutting roadway, driveway or parking area.
7.1.13. To provide Landlord with a financial statement of Tenant in form
satisfactory to Landlord upon execution of this Lease by Xxxxxx, and to provide
additional financial statements of Tenant and/or individual financial statements
of shareholders or partners of Tenant, if Tenant is a corporation or
partnership, if so requested by Landlord. Additional financial statements in
form satisfactory to Landlord shall be furnished to Landlord within ten (10)
days of notification.
7.1.14. To furnish to the Landlord any documentation requested by Landlord to
show the status of this Lease or other financial condition of Tenant. Any
reasonable changes to this Lease required by any Mortgagee of the Landlord to
satisfy the requirements for the financing or refinancing of the Property unless
they materially alter the terms and conditions of this Lease, shall be agreed to
and complied with by the Tenant.
7.1.15. To maintain throughout the term of this Lease a sign with Xxxxxx's name
thereon at or near the front entrance to the Premises at a place designated by
Landlord. Such sign shall be of a size, design, material and specification as
shall meet the standards and criteria of Landlord. The written consent and
approval of Landlord shall be obtained prior to the installation of any sign. A
sign for which the written approval of Landlord has not been obtained may be
removed by Landlord at Landlord's discretion. Any other signage not addressed
elsewhere in the Lease will be at the Tenant's expense.
7.2. Negative Covenants. Tenant covenants at all times during the Lease Term
and such ftu-ther time as the Tenant occupies the Premises, or any part thereof.
7.2.1. Not to injure, overload, deface or otherwise harm the Premises or any
part thereof or any equipment or installation therein; nor comniit any waste or
nuisance; nor pen-nit the emission of any objectionable noise or odor; nor bum
any trash or refuse in or about the Premises; nor make any use of the Premises,
or any part thereof or equipment therein, which is improper, offensive or
contrary to any law or ordinance or to reasonable rules or regulations of the
Landlord as such may be promulgated from time to time; nor park any vehicles so
as to interfere with the use of driveways, walks, roadways, highways, streets or
parking areas.
7.2.2. Not to make any alterations or additions to the Premises or to the
Building, nor permit the making of any holes in the walls (other than small
holes for the hanging of pictures of ten pounds or less), ceilings or floors
thereof, without the prior consent of Landlord, which shall not be unreasonably
withheld nor delayed. All alterations or improvements to the Premises shall be
made by Landlord at Tenant's expense, unless Landlord and Tenant shall otherwise
agree in writing.
8. Prohibition Against Mechanic's Liens. Any liability of the Landlord or
of the Property for any work or improvements made upon the Premises by the
Tenant is hereby expressly prohibited. The interest of the Landlord in and to
the Premises, the Building and the Property shall not be subject to liens for
improvements made in or to the Premises by Tenant or by Tenant's employees,
contractors, subcontractors or agents. Tenant represents and warrants unto
Landlord that any construction contract which Xxxxxx enters into for
construction of improvements in the Premises
(which shall occur only following Xxxxxxxx's express written consent) shall
expressly prohibit the filing of liens against the Landlord' s interest in the
Premises, Building and Property.
9. Assignment, Subletting and Encumbrances.
9.1. Xxxxxxxx's Consent Required. Tenant shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease or any interest therein,
nor sublet the Premises or any part thereof without the prior written consent of
Landlord, which consent may be withheld by Landlord in its sole discretion, and
any attempt by Tenant to do so without such consent being first obtained shall
be voidable and, at Landlord's election, shall constitute a default of Tenant
under this Lease.
9.2. Tenant's Application for Consent. In the event that Tenant desires at
any time to assign this Lease or to sublet the Premises or any portion thereof,
Tenant shall submit to Landlord, in writing, at least sixty (60) days prior to
the proposed effective date of the assignment or sublease: (i) a Notice of
Intention to Assign or Sublease, setting forth the proposed effective date,
which shall be no less than sixty (60) nor more than ninety (90) days after the
sending of such notice; (ii) the name of the proposed subtenant or assignee;
(iii) the nature of the proposed subtenant's or assignee's business to be
carried on in the Premises; (iv) the terms and provisions of the proposed
sublease or assignment; (v) a current audited fniancial statement of the
proposed subtenant or assignee; and (vi) such additional information concerning
the proposed assignment or sublease and proposed assignee or sublessee as the
Landlord may reasonably request.
9.3. Landlord's Option to Terminate. Upon receipt from Tenant of a Notice of
Intention to Assign or Sublease, Landlord shall have the right to terminate this
Lease and relet the Premises, or, in the event of a proposed assignment or
subletting of less than the entire Premises, to recapture that portion of the
Premises, such right to be exercised by giving notice to the Tenant within
thirty (30) days after receipt of Tenant's Notice of Intention to Assign or
Sublease. If such notice of termination or recapture, as the case may be, is
given by Landlord, it shall become effective thirty (30) days after the giving
thereof, whereupon Tenant shall vacate and surrender possession of the Premises
or portion thereof, as the case may be, to Landlord.
9.4. Assignment or Sublease Profit. In the event of any assignment or
sublease of all or any portion of the Premises, having first been approved by
Landlord, where the rental reserved in the assignment or sublease exceeds the
rental or prorata portion of the rental, as the case may be, for such space
reserved in the Lease, Tenant shall pay Landlord monthly, as Additional Rent, at
the same time as the monthly installments of Rent required hereunder, the excess
of the rental reserved in the assignment or sublease over the rental reserved in
this Lease applicable to the assigned or subleased space.
9.5. Permission for Tenant to Assign or Sublease. The granting of permission
for Tenant to assign or sublease the Premises on any one or more occasions shall
not constitute ipso facto waiver of the requirement imposed hereby that the
written consent of the Landlord be obtained for any subsequent or other
assignment or subletting, and the acceptance of rent checks and the negotiation
of same, or the acceptance of rent payments in any other fashion, from any
assignee or sublessee, whether or not Landlord had knowledge of the assignment
or sublease under which such assignee or sublessee claims, shall not constitute
ipso facto consent by Landlord to such assignment or sublease or constitute a
waiver of the restrictions upon assignment and subletting imposed in this
section.
10. Assumption of Risk, Indemnification and Hold Harmless. Tenant shall and
hereby does indemnify an(f hold harmless Landlord, its management company,
agents, servants and employees against and from any and all claims arising from
Tenant's use of the Premises or from any activity, work or thing done, permitted
or suffered by the Tenant in or about the Premises, and shall further indemnify
and hold harmless Landlord against and from any and all claims arising from any
breach or default in the performance of any obligations on Tenant's part to be
performed under the terms of this Lease, or arising from any act, neglect, fault
or omission of the Tenant, or of its agents or employees, and from and against
all costs, attorneys' fees, paralegals' fees, expenses and liabilities incurred
in or about such claim or any action or proceeding brought thereon. Tenant upon
notice from Landlord shall defend the same at Tenant's expense by counsel
reasonably satisfactory to Landlord. Tenant hereby assumes all risk of damage to
property or injury to persons in, upon or about the Premises from any cause
whatsoever, except that which is caused by the failure of Landlord to observe
any of the terms and conditions of this Lease and such failure has persisted for
an unreasonable period of time after written notice from Tenant to Landlord of
such failure.
11. Landlord's Liability. The liability under this Lease of Landlord shall
be limited to its interest in the Building of which the Premises are a part; and
Tenant, its successors and assigns, hereby waive all rights to proceed
individually against Landlord, Xxxxxxxx's management company or agent, or any of
Landlord's partners, officers, directors or shareholders. The term "Landlord",
as used in this Section, shall mean only the owner or owners at the time in
question of the fee simple title to the Property, and in the event of any
transfer of such title or interest Landlord (and in case of any subsequent
transfers, the then grantor) shall be relieved from and after the date of such
transfer of all liability with respect to Landlord's obligations under this
Lease, provided that any funds in the hands of Landlord (or then grantor at the
time of such transfer) in which Tenant has an interest, shall be delivered to
the grantee. The obligations to be performed by Landlord shall, subject to the
foregoing, be binding on Landlord's successors and assigns only during their
respective periods of ownership, and no successor Landlord shall have liability
to Tenant with respect to defaults hereunder occasioned by the acts or omissions
of any predecessor Landlord.
12. Environmental Provisions.
12.1 Asbestos and Lead Paint Disclosure. Asbestos-containing materials
and/or lead paint may be present in portions of the Premises, generally in the
form of sprayed-on or troweled-on coatings on structural members and ceilings,
painted surfaces surrounding window frames, behind walls or inside finished
support columns. Asbestos previously was a common component of floor tiles. It
is important that asbestos-containing materials and lead paint not be disturbed.
Disturbed asbestos particles when airborne pose a serious health risk. Prior to
undertaking any alterations, repairs or renovations to the Premises, Tenant
shall inform Landlord of its intent to do so in order that Landlord may confirm
that such alterations, repairs or renovations shall not disturb
asbestos-containing materials. In the course of such alterations, repairs or
renovations, if asbestos-containing materials are present in the Premises,
Tenant shall adopt all reasonable measures to remove or encapsulate
asbestos-containing materials. Nothing in this paragraph shall supersede any
other conflicting provisions of this Lease.
12.2 Hazardous Materials Provisions.
12.2.1 Hazardous Materials Covenants. Tenant shall at all times during the
Lease Term comply with the following requirements: (a) Tenant shall not cause,
permit or suffer any Hazardous Material (as hereafter defined) to be brought
upon, treated, kept, stored, disposed of, discharged, released, produced,
manufactured, generated, refined or used upon, about or beneath the Premises or
the Property by Tenant, its agents, employees, contractors, invitees or
licensees (collectively, "Tenant Parties"), except to the extent commonly used
in the day to day operation of the Premises by Tenant in compliance with all
Environmental Requirements (as hereafter defined). (b) Tenant agrees that all
operations or activities upon, or any use or occupancy of the Premises, or any
portion thereof, by Tenant or any Tenant Parties shall be in all respects in
compliance with all Environmental Requirements then governing or in any way
relating to the generation, handling, manufacturing, treatment, storage, use,
transportation, release, spillage, leakage, dumping, discharge or disposal of
any Hazardous Materials. (c) Tenant shall, at its sole costs and expense,
promptly take all actions required by any federal, state or local governmental
agency or political subdivision to mitigate Environmental Damages (as hereafter
defined) which arise directly or indirectly from or in connection with the
presence, suspected presence, release or suspected release of any Hazardous
Material in or into the air, soil, surface water or groundwater at, on, about,
under or within the Premises or Property, or any portion thereof, by Tenant or
Tenant Parties. Such actions shall include, if required by any such governmental
agency or political subdivision, but not be limited to, the investigation of the
environmental condition of the Premises, the Building or any portion of the
Property adversely affected by Tenant's breach of any of the provisions of this
paragraph (the "Affected Property"), and the preparation of and performance of
any cleanup, remediation, containment, operation, maintenance, monitoring or
restoration work, whether on or off of the Affected Property. Tenant shall take
all actions required by any federal, state or local governmental agency or
political subdivision to restore the Affected Property to the condition existing
prior to the introduction of Hazardous Material upon, about or beneath the
Affected Property in accordance with the standard of remediation imposed by
Applicable Law. Tenant shall proceed continuously and diligently with such
investigatory and remedial actions, provided that in all cases such actions
shall be in accordance with all applicable requirements of governmental
entities. Any such actions shall be performed in a good, safe and workmanlike
manner by one or more contractors selected by Xxxxxx, and approved in advance in
writing by Xxxxxxxx, and under the supervision of a consulting engineer,
selected by Xxxxxx and approved in advance in writing by Landlord, and shall
minimize any impact on the business conducted at the Property. Tenant shall pay
all costs in connection with such investigatory and remedial activities,
including but not limited to the charges of such contractor(s) and consulting
engineer, all power and utility costs, any and all taxes or fees that may be
applicable to such activities, and Landlord's reasonable attorneys' fees,
paralegals' fees and costs incurred in connection with monitoring or review of
such investigatory and remedial activities. Tenant shall promptly provide to
Landlord copies of testing results and reports that are generated in connection
with the above-mentioned activities. Promptly upon completion of such
investigation and remediation, Tenant shall permanently seal or cap all
monitoring xxxxx and test holes to industrial standards in compliance with
Applicable Laws, remove all associated equipment, and restore the Affected
Property to the maximum extent possible, which shall include, without
limitation, the repair of any surface damage, including paving, caused by such
investigation or remediation hereunder. (d) If Tenant shall become aware of or
receive notice or other communication concerning any actual, alleged, suspected
or threatened violation of Environmental Requirements, or liability of Tenant
for Environmental Damages in connection with the Premises or activities of any
person thereon, then Tenant shall deliver to Landlord, within ten (10) days of
the receipt of such notice or conununication by Xxxxxx, a written description of
said violation, liability, correcting information or actual or threatened event
or condition, together with copies of any documents evidencing same. Receipt of
such notice shall not be deemed to create any obligation on the part of Landlord
to defend or otherwise respond to any such notification. (e) Tenant shall
promptly provide to Landlord the results of any tests and copies of all
registration permits regarding any underground storage tanks located on the
Premises and Tenant shall comply with same. (f) In the event of any default
under this Lease, Landlord shall have the right in its sole and absolute
discretion, but not the duty, to enter upon the Premises at any reasonable time,
at the expense of Tenant, to conduct an inspection thereof, including invasive
tests, and the activities conducted thereon to determine compliance with all
Environmental Requirements and the existence of any Environmental Damages as a
result of the condition of the Premises or any surrounding properties and
activities thereon. Tenant hereby grants to Landlord, and the agents, employees,
consultants and contractors of Landlord, the right to enter upon the Premises
and to perform such tests thereon or therein as are necessary to conduct such
reviews and investigations in accordance with the preceding sentence. Landlord
shall use its best efforts to minimize interference with the business of Tenant
and to restore the Premises to its previous condition, but Landlord shall not be
liable for any interference caused thereby.
12.2.2 Hazardous Materials Definitions. The following terms shall have the
meanings ascribed to them: (a) "Environmental Damages" means all claims,
judgments, damages (including, without limitation, punitive damages), losses,
penalties, fmes, liabilities (including strict liability), encumbrances, liens,
costs, and expenses of investigation and defense of any claim, whether or not
such is ultimately defeated, and of any settlement or judgment, of whatever kind
or nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including without limitation, reasonable attorneys' fees and
paralegals' fees and disbursements and consultants' fees, any of which are
incurred at any time during or after the Lease Term directly or indirectly from
or in connection with the presence, suspected presence, release or suspected
release of any Hazardous Material in or into the air, soil, surface water or
groundwater at, on, about, under or within the Premises, Building or Property,
or any portion thereof, or any surrounding properties, by Tenant or Tenant
Parties and including, without limitation: (i) Damages for personal injury, or
injury to the Premises, Building or Property or natural resources occurring upon
the Property, foreseeable or unforeseeable, including, without limitation, lost
profits, consequential damages, the cost of demolition and rebuilding of any
improvements on the Property, interest and penalties including but not limited
to claims brought by or on behalf of employees of Tenant, with respect to which
Tenant waives, for the benefit of Landlord only, any immunity to which Tenant
may be entitled under any industrial or worker's compensation laws; and (ii)
fees incurred for the services of attorneys, consultants, contractors, experts,
laboratories and all other costs incurred in connection with the investigation,
cleanup or remediation of such Hazardous materials or violation of Environmental
Requirements including, but not limited to, the performance of any cleanup,
remedial, removal, abatement, containment, closure, restoration or monitoring
work required by any federal, state or local governmental agency or political
subdivision, or reasonably necessary to restore the Affected Property in
accordance with the standard of remediation imposed by Applicable Law or
otherwise expended in connection with such conditions, and including, without
limitation, any attorneys' fees, paralegals' fees and costs (including at
appellate levels and post-judgment proceedings) incurred in enforcing this Lease
or collecting any sums due hereunder. (b) "Environmental Requirements" means all
applicable present and future statutes, regulations, rules, ordinances, codes,
licenses, permits, orders, approvals, plans, authorizations, concessions,
franchises and similar items, of all governmental agencies, departments,
conunissions, boards, bureaus or instrumentalities of the United States, states
and political subdivisions thereof and all applicable judicial and
administrative and regulatory decrees, judgments and orders relating to the
protection of human health or the environment including, without limitation: (i)
all requirements, including but not limited to, those pertaining to reporting,
licensing, permitting, investigation and remediation of emissions, discharges,
releases or threatened releases of Hazardous Materials, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials; and (ii) all requirements
pertaining to the protection of the health and safety of employees or the
public. (c) "Hazardous Materials" means any substance: (i) the presence of which
requires
investigation or remediation under any federal, state or local statute,
regulation, rule, ordinance, order, action or policy; or (ii) which is or
becomes defined as a "hazardous waste" or "hazardous substance" or "pollutant"
or "contaminant" under any federal, state or local statute, regulation, rule, or
ordinance or amendments thereto including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act (42 U.S.C. Section 9601 et
seq.) or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.); or (iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of the United States, any State of the United States,
or any political subdivision thereof-, or (iv) the presence of which on the
Property causes or threatens to cause a nuisance upon the Property or to
adjacent properties or poses or threatens to pose a hazard to the Property or
the health or safety of persons on or about the Property; or (v) which contains,
without limitation, gasoline, diesel fuel or other petroleum hydrocarbons or
volatile organic compounds; or (vi) which contains, without limitation,
polychlorinated biphenyls (PCB's) or asbestos or asbestos-containing materials
or urea formaldehyde foam insulation; or (vii) which contains or consists of,
without limitation, radon gas.
12.2.3 Tenant's Representations and Warranties in Regard to Hazardous
Materials. Tenant represents and warrants as follows: (a) Tenant shall obtain
any and all permits, licenses and other authorizations which may be required
under all Environmental Requirements, including laws relating to emissions,
discharges, release or threatened releases of Hazardous Materials into the
environment (including ambient air, surface water, ground water or land) or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials; and (b) Tenant
shall not construct, place, deposit, store, dispose of nor locate on the
Premises or the Property, any PCB'S, transformers, capacitors, ballasts, or
other equipment which contains dielectric fluid containing PCB'S, or any
asbestos or asbestos-containing materials or any insulation material containing
urea formaldehyde or any radon gas.
12.2.4 Indemnification. Tenant agrees to indemnify, reimburse, defend,
exonerate, pay and hold harmless: (a) Landlord, its affiliates, management
company, and any other person or entity which holds or which may hereafter have
an interest in this Lease; and (b) the directors, officers, shareholders,
partners, employees, management company and agents of Landlord and any other
person or entity which has or which may hereafter hold an interest in this
Lease, from and against any and all Environmental Damages arising in any manner
whatsoever out of the violation of or non-compliance with any Environmental
Requirements, or the breach of any warranty or covenant or the inaccuracy of any
representation of Tenant contained in this Lease.
12.2.5 Survival. Each of the covenants, representations and warranties of
Tenant and Landlord contained in this Section 12 of this Lease shall survive the
termination or earlier expiration of this Lease.
12.3 Radon Disclosure. 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 the Tenant's County Public Health Unit.
13. Americans with Disabilities Act. Landlord and Xxxxxx acknowledge that
the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12 1 01 et seq.)
and regulations and guidelines promulgated thereunder, as all of the same may be
amended from time to time (collectively referred to herein as the "ADA")
establish requirements under Title III of the ADA ("Title 111") pertaining to
business operations, accessibility and barrier removal, and that such
requirements may be unclear and may or may not apply to the Premises, Building
or the Property depending upon, among other things: (i) whether Tenant's
business operations are deemed a "place of public accommodations-' or a
"commercial facility", (ii) whether compliance with such requirements is
"readily achievable" or "technically infeasible", and (iii) whether a given
alternative affects a "primary function area" or triggers so-called "path of
travel" requirements. Landlord and Tenant acknowledge and agree that Tenant has
been provided an opportunity to inspect the Premises, the Building and Property
sufficient to determine whether or not the Premises, Building and Property in
their condition current as of the Lease Date deviate in any manner from the ADA
Accessibility Guidelines ("ADAAG") or any other requirements under the ADA
pertaining to the accessibility of the Pren-tises, Building or Property. Xxxxxx
further acknowledges and agrees that except as may otherwise be specifically
provided herein, Xxxxxx accepts the Premises, Building and Property in "as is"
condition and agrees that Landlord makes no representation or warranty as to
whether the Premises, Building or Property conform to the requirements of the
ADAAG or any other requirements under the ADA pertaining to the accessibility of
the Premises, Building or Property. Tenant shall be solely responsible for all
other requirements under the ADA relating to the Tenant or any affiliates or
persons or entities related to the
Tenant or the Premises, including, without limitation, requirements under Title
I of the ADA pertaining to Tenant's employees and the interior of the Premises.
14. Destruction and Condemnation.
14.1. Fire or Other Casualty. In the event of (i) a partial destruction of
the Premises or the Building during the Lease Term which requires repairs to
either the Premises or the Building, or (ii) the Premises or the Building being
declared unsafe or unfit for occupancy by any authorized public authority for
any reason other than Tenant's act, use or occupation, which declaration
requires repairs to either the Premises or Building, Landlord may elect to
commence repairs within sixty (60) days thereof, but such partial destruction
shall in no way serve to annul or void this Lease, except that Tenant shall be
entitled to a proportionate reduction of Rent while such repairs are being made
if the Premises are rendered untenantable thereby. The proportionate reduction
is to be based upon the extent to which the making of repairs shall interfere
with the business carried on by Tenant in the Premises. In the event that
Landlord does not elect to commence repairs within sixty (60) days, or repairs
cannot be made under current laws and regulations, either party may temiinate
this Lease upon ten (10) days' written notice. A total destruction, including
any destruction required by any authorized governmental authority, of either the
Premises or the Building shall terminate this Lease. Landlord shall not be
required to repair any property installed in the Premises by Tenant. Tenant
waives any right under applicable laws inconsistent with this paragraph and, in
the event of a destruction, agrees to accept any offer by Landlord to provide
Tenant with comparable space within the parcel in which the Premises are located
on the same temis as this Lease. Nothing herein shall authorize abatement or
reduction of rent because of total or partial destruction arising out of the
negligent or willful acts of omission or commission by Xxxxxx.
14.2. Condemnation. If any part of the Premises shall be taken or condemned
for a public or quasi-public use, and a part thereof remains which is suitable
for occupation hereunder, this Lease shall, as to the part so taken, terminate
as of the date title shall vest in a condemnor, and the Rent payable hereunder
shall be adjusted so that the Tenant shall be required to pay for the remainder
of the Term only such portion of such Rent as the number of square feet in the
part remafiiffig after the condemnation bears to the number of square feet in
the entire Premises at the date of condemnation; but, in such event, Landlord
shall have the option to terminate this Lease as of the date when title to the
part so condemned xxxxx in a condemnor. If all or any part of the Premises shall
be taken or condemned so that there does not remain a portion suitable for
occupation, this Lease shall thereupon terminate. If all or a part of the
Premises be taken or condemned, all compensation awarded upon such condemnation
or taking shall go to the Landlord and the Tenant shall have no claim thereto,
and the Tenant hereby irrevocably assigns and transfers to the Landlord any
right to compensation or damages to which the Tenant may be entitled during the
Term hereof by reason of the condemnation of all, or a part, of the Premises.
15. Defaults and Remedies.
15.1. Events of Default. The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any Rent or any
other sums of money due hereunder and such failure shall continue for a period
of seven (7) days after the date such sum is due; (ii) Tenant shall fail to
comply with any provisions of this Lease or any other agreement between Landlord
and Tenant, all of which terms, provisions and covenants shall be deemed
material; (iii) the leasehold hereunder demised shall be taken on execution or
other process of law in any action against Tenant; (iv) Tenant shall fail to
promptly move into, take possession of, and operate its business on the Premises
when the Premises are ready for occupancy; (v) Tenant shall become insolvent or
unable to pay its debts as they become due, or Tenant notifies Landlord that it
anticipates either condition; (vi) Tenant takes any action to, or notifies
Landlora that Tenant intends to file a petition under any section or chapter of
the United States Bankruptcy Code and rules and regulations promulgated
thereunder, as amended, or under any similar law or statute of the United States
or any state thereof, or a petition shall be filed against Tenant under any such
statute or Tenant or any creditor of Tenant notifies Landlord that it knows such
a petition will be filed or Tenant notifies Landlord that it expects such a
petition to be filed; (vii) a receiver or trustee shall be appointed for
Tenant's leasehold interest in the Premises or for all or a substantial part of
the assets of Tenant.
15.2. Remedies. In the event of any default or breach by Tenant, and if such
breach shall have continued for a period of three (3) days after the Landlord
shall have given written notice by certified or registered mail to the Tenant at
its office address set forth in Section 1.1. hereof, then, in such event,
Landlord shall have the option to pursue any one or more of the following
remedies:
15.2.1. Landlord shall have the right to cancel and terminate this Lease and
dispossess Tenant.
15.2.2. Landlord shall have the right without terminating or canceling this
Lease to declare all amounts and rents due under this Lease for the remainder of
the existing Lease Tenn (or any applicable extension or renewal thereof) to be
inunediately due and payable, and thereupon all rents and other charges due
hereunder to the end of the initial term or any renewal term, if applicable,
shall be accelerated.
15.2.3. Landlord may elect to enter and repossess the Premises and relet the
Premises for Tenant's account, holding Tenant liable in damages for all expenses
incurred in any such reletting and for any difference between the amount of rent
received from such relenting and that is due and payable under the terms of this
Lease.
15.2.4. Landlord may enter upon the Premises and do whatever Tenant is
obligated to do under the temis of this Lease. Xxxxxx agrees to reimburse
Landlord on demand for any expenses which Landlord may incur in effecting
compliance with Tenant's obligations under this Lease and Xxxxxx further agrees
that Landlord shall not be liable for any damages resulting to the Tenant from
such action.
15.2.5. All such remedies of Landlord shall be cumulative, and, in addition,
Landlord may pursue any other remedies that may be permitted by law or in
equity. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to be a
waiver of such default.
15.2.6. In addition to the specific remedy or remedies elected by Landlord in
the event of Tenant's default, Landlord shall be entitled to recover from Tenant
all damages incurred by Landlord by reason of Tenant's default, including but
not limited to, the cost of recovering possession of the Premises; expenses of
reletting, including necessary renovations and alterations of the Premises;
reasonable attorneys' fees, and paralegals' fees, costs and expenses, whether or
not in litigation and including at appellate levels and post-judgment
proceedings in litigation; and that portion of the leasing commission paid by
Landlord applicable to the unexpired term of this Lease. Unpaid installments of
rent or other sums shall bear interest from the due date thereof at the maximum
lawful rate.
15.2.7 The remedies provided to Landlord shall be enforceable to the maximum
extent not prohibited by applicable law, and the unenforceability of any portion
hereof shall not thereby render unenforceable any other portion.
15.3. Abandonment of Premises. Landlord and Tenant agree that, for the purposes
of this Lease, abandonment of the Premises shall have occurred if (i) the
Landlord reasonably believes that the Tenant has been absent from the Premises
for a period of thirty (30) consecutive days, and (ii) the Rent is not current
and (iii) ten (IO) days have elapsed since service of a three (3) day notice in
writing by Landlord upon Tenant requiring payment of Rent or the possession of
the Premises.
15.4. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTER-CLAM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE.
15.5. Holdover by Tenant. If Xxxxxx should remain in possession of the
Premises after the expiration of the Lease Tenn, then such holding over shall be
construed as a tenancy at sufferance at an Annual Minimum Rent double that set
forth in Section 1.1. hereof, and subject to all other conditions, provisions
and obligations of this Lease insofar as the same are applicable to a tenancy at
sufferance.
15.6. Xxxxxxxx's Right to Cure Defaults. The Landlord may, but shall not be
obligated to, cure at any time, without notice, any default by the Tenant under
this Lease; and, whenever the Landlord so elects, all costs and expenses
incurred by the Landlord in curing such default, including, without limitation,
reasonable attorney's fees, together with interest on the amount of costs and
expenses so incurred at the maximum lawful rate, shall be paid by the Tenant to
the Landlord on demand and shall be recoverable as Additional Rent.
15.7. Waiver. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any other or
any subsequent or continuing breach of the same. The subsequent acceptance of
Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent.
15.8. Intentionally Omitted.
16. Miscellaneous Provisions.
16.1. Notice. Any notice or demand from the Landlord to the Tenant or from
the Tenant to the Landlord shall be in writing and shall be deemed duty
delivered if mailed by certified mail, return receipt requested, addressed, if
to the Tenant, at the address of the Tenant or such other address as the Tenant
shall have last designated by written notice to the Landlord; if to the
Landlord, at the address of the Landlord or such other address as the Landlord
shall have last designated by written notice to the Tenant. Notices shall be
deemed delivered when mailed in the manner prescribed above.
16.2. Estoppel Certificate. The Tenant agrees that it will within ten (10)
days following written notice by the Landlord, execute, acknowledge and deliver
to the Landlord a statement in writing certifying that this Lease is unmodified
and in full force and effect, or setting forth any such modifications, and the
dates to which the Rent and all other payments due hereunder from the Tenant
have been paid, the amount of the Security Deposit then remaining and the amount
of any payments paid by Xxxxxx in advance, and stating whether or not, to the
best knowledge of Tenant, the Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default. The failure of the Tenant to execute, acknowledge and deliver
to the Landlord a statement in accordance with the provisions of this Section
will constitute a breach of this Lease by the Tenant.
16.3. Applicable Law and Construction. The laws of the State of Florida shall
govern the validity, performance and enforcement of this Lease. The covenants
and undertakings contained herein are independent, not dependent covenants, and
the invalidity or unenforceability of any provision of this Lease shall not
affect or impair any other provision. All negotiations, considerations,
representations and understandings between the parties are incorporated into
this Lease. The headings of the several articles and sections contained herein
are for convenience and do not define, limit or construe the contents of such
articles or sections.
16.4. Guaranty. Xxxxxxxx has advised Xxxxxx, and Xxxxxx acknowledges that
Landlord would not have entered into this Lease or leased the Premises to Tenant
unless one or more principals or affiliates of Tenant execute an Unconditional
Guaranty of Lease in the form attached hereto as Exhibit "D" (the "Guaranty").
Tenant represents and warrants unto Landlord that the party (or parties, as
applicable) executing the Guaranty as Guarantor has a material financial
interest in Tenant and is therefore a principal of Tenant. Tenant further
acknowledges that the obligations of Landlord under this Lease are conditioned
upon the contemporaneous delivery to Landlord of the Guaranty properly executed
by the Guarantor thereunder with this Lease executed on behalf of Xxxxxx.
16.5 Subordination.
16.5.1. This Lease is subject and subordinate to any ground lease, mortgage,
deed of trust, or any other hypothecation for security now or hereafter placed
upon the Property, and to any and all advances on the security thereof, and to
all renewals, modifications, consolidations, replacements and extensions
thereof. In confirmation of such subordination, the Tenant shall promptly
execute any certificate or Subordination of Lease Agreement that the Landlord
may request to confirm such subordination. The Tenant hereby constitutes and
appoints the Landlord as the Tenant's attomey-in-fact to execute any such
certificate or subordination of lease agreement for and on behalf of the Tenant.
16.5.2. At the option of the Landlord, or any successor Landlord or the holder
of any mortgage affecting the Preridses, the Tenant agrees that neither the
foreclosure of a mortgage affecting the Premises nor the institution of any
suit, action, summary or other proceeding against the Landlord herein, or any
successor Landlord, or any foreclosure proceeding brought by the holder of any
such mortgage to recover possession of the Property shall, by operation of law
or otherwise, result in the cancellation or termination of this Lease, and upon
the request of Xxxxxxxx, any successor Landlord or the holder of such mortgage,
Tenant covenants and agrees to execute an instrument in writing satisfactory to
Landlord, successor Landlord, or to the holder of such mortgage, or to the
purchaser of the mortgaged premises in foreclosure, whereby Tenant attoms to
such successor in interest.
16.6. No Oral Changes. This Lease shall not be changed or terminated orally,
but only upon an agreement in writing signed by the parties hereto.
16.7. No Representation by Landlord. The Landlord and the Landlord's agents
have made no representations, warranties or promises with respect to the
Premises, Building or Property, except as herein expressly set forth. This Lease
specifically supersedes any prior written or oral communications between
Landlord and Tenant or any of their agents.
16.8. Parking. The Tenant shall be entitled to park in common with other
tenants of the Property. Xxxxxx agrees not to overburden the parking facilities
and agrees to cooperate with Landlord and other tenants in the use of the
parking facilities. Landlord reserves the right, in its absolute discretion, to
allocate parking spaces among Tenant and other tenants of the Property, or to
assign parking.
16.9. Recording of Lease. Neither this Lease nor any memorandum or notice
hereof shall be recorded by Xxxxxx. However, it may be recorded by Landlord at
Landlord's option. If this Lease, or any memorandum or notice hereof is recorded
by the Tenant, such recordation may be declared by Landlord as a material event
of default by Tenant hereunder.
16.10. Notice to Mortgagee and Opportunity to Cure. Xxxxxx agrees to give any
mortgagee(s) of the Property, by certified mail, a copy of any Notice of Default
served upon the Landlord, provided that prior to such Notice, Xxxxxx has been
notified in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise), of the addresses of such mortgagee(s). Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the mortgagee(s) shall have an additional thirty (30) days
within which to cure such default or if such default cannot be cured within that
time, then the mortgagee(s) shall have such additional time as may be reasonably
necessary if within such thirty (30) days the mortgagee(s) has commenced and is
diligently pursuing the remedies necessary to cure such default (including, but
not limited to, commencement of foreclosure proceedings, if necessary to effect
such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
16.11. Joint Obligation. If there is more than one party or person executing
this Lease as Tenant, the obligations hereunder imposed upon Tenant shall be
joint and several among all parties or persons executing this Lease as Tenant.
16.12. Time. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
16.13 Brokerage Commission. Tenant represents and warrants unto Landlord that
Tenant has had no dealings with any broker or agent in connection with this
Lease other than Highwoods Properties, a Florida corporation and Tenant
covenants to pay, hold harrnless and indemnify Landlord from and against any and
all cost (including attorneys' fees, paralegals' fees and costs including at
appellate levels and post- judgment proceedings), expense and liability for any
compensation, comniissions and charges claimed by any other agent or broker with
respect to this Lease or the negotiation thereof.
16.14 Landlord's Lien. Landlord shall have all Landlord's Lien rights
provided by Florida Statutes.
16.15 Quiet Possession. Subject to Tenant paying the Rent reserved hereunder
and observing and performing all of the covenants, conditions and provisions on
Xxxxxx's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire Lease Term.
16.15.1. Acknowledgment and Release. Landlord and Tenant acknowledge and agree
that: i) Tenant occupied the Premises prior to and until the execution of this
Lease under that certain Lease dated December 22, 1989, as amended (the "Prior
Lease") between Landlord and Tenant; (ii) the Prior Lease is terminated and
shall have no further force or effect; and (iii) neither Landlord nor Tenant
shall have any further rights enforceable against the other or obligations to
the other under the Prior Lease.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have hereunto executed this Lease as of
the day and year first above written. Individuals signing on behalf of an entity
warrant that they have the authority to bind that entity. This Lease shall be
binding upon the undersigned, and the successors, heirs, executors and
administrators of the undersigned, and shall inure to the benefit of the
Landlord and Tenant, and their respective successors and assigns.
------------------------------------- ------------------------------------------
Signed, sealed and delivered LANDLORD:
in the presence of:
1560 N. Orange, Ltd., a Florida limited
partnership
BY: Xxxxx X. Xxxxxx Management
Corporation, a Florida Corporation, its
general partner
/S/ X. XXXXXXX XXXXX By: /S/ XXXXX X. XXXXXX
-------------------------------- -----------------------------------------
Print Name X. XXXXXXX XXXXX Printed Name: Xxxxx X. Xxxxxx
Title: President
/S/ XXXXX X. XXX
--------------------------------
Print Name XXXXX X. XXX Date: 12/8/99
---------------------- ------------------------------------
------------------------------------- ------------------------------------------
Signed, sealed and delivered TENANT:
in the presence of: Post, Xxxxxxx, Xxxxx & Xxxxxxxx,
a Florida corporation
/S/ XXXXXXXXX XXXXXX By: /S/ XXXXXXX X. XXXXXX
-------------------------------- -----------------------------------------
Print Name XXXXXXXXX XXXXXX Printed Name: XXXXXXX X. XXXXXX
Title: Sr. Vice President
/S/ XXXX XXXXX
--------------------------------
Print Name XXXX XXXXX Date: 12/3/99
---------------------- ------------------------------------
------------------------------------- ------------------------------------------
EXHIBIT "A"
Legal Description of Property
Lots 1, 2, 3 and 4, Block 7, Xxxxx Xxxxx, Westminster Section, according to the
Plat thereof, as recorded in Plat Book J, Page 118, Public Records of Orange
County, Florida.
AND
Lots I through 26, Block 8, Xxxxx Xxxxx, Westminster Section, less and except
the East 15 feet of Lots 25 and 26, Block 8, for Road Right-of-Way, according to
the Plat thereof, as recorded in Plat Book J, Page II 8, Public Records of
Orange County, Florida.
EXHIBIT "B"
TENANT IMPROVEMENTS
Intentionally Omitted
EXHIBIT "C"
Rules and Regulations
ACCIDENTS AND DAMAGES - In the event of accidental damage to the Premises,
Xxxxxx should immediately notify the Landlord.
ADMITTANCE TO LEASED PREMISES - Property Management, maintenance, security,
janitorial and other service providers and agents authorized by the Landlord,
shall be allowed admittance to the Premises to accomplish their intended
assignments.
ADVERTISING MEDIUM - Tenant should not use any advertising medium, including
without limitation, flashing lights or search lights, which may be heard or
experienced outside of the Premises without the prior written consent of the
Landlord. Tenant is encouraged to use the name of the Property in all
advertising done within the geographical area in which the Property is located.
BICYCLES AND OTHER VEHICLES - Bicycles and other vehicles should not be
permitted inside the Building or on the sidewalk, and may only be permitted
outside in areas designated by Landlord.
CHAIR PADS - During the entire term of this Lease, Tenant should, at his
expense, install and maintain under all caster chairs a chair pad or carpet
casters to protect carpeting.
COMMON AREA - The sidewalks, entries, passages, corridors, halls, lobbies,
stairways, elevators, and other conunon facilities of the Property shall be
controlled by Landlord, and should not be obstructed by Tenant or used for any
purposes other than ingress or egress to and from the Premises. Tenant should
not place any item in any of such locations, whether or not any such item
constitutes an obstruction, without the prior written consent of Landlord.
Landlord will have the right to remove any obstruction or any such item without
notice to Tenant and at the expense of Tenant.
DELIVERIES - All deliveries shall be made to the rear of the Premises unless
otherwise directed or approved in writing by the Landlord. The Tenant should
never permit or suffer any truck to park in the parking areas of the Property
designated for customers' use. The Tenant should never permit any overnight
parking of any vehicle to occur on the Property.
EMERGENCY CONTACT PROCEDURES - Tenant should provide in a timely manner to
Landlord upon request name(s) of employees and/or agents to be contacted by
Landlord for emergency purposes whether during or after operating hours. Such
information should be kept current and accurate at all times by Xxxxxx.
Emergency policies and procedures may be developed, issued and revised from time
to time by Landlord at Landlord's discretion, which shall become an integral
part of these Rules and Regulations and the Lease to which they refer.
EMPLOYEES AND VISITORS - Tenant will be responsible for all behavior and
adherence to all building Rules and Regulations by any of Tenant's employees,
visitors and agents. Xxxxxx agrees to conduct Xxxxxx's business consistent with
reputable business standards and practices.
EXCESSIVE NOISE AND ANIMALS - No animals, except seeing eye dogs, shall be
allowed in stores, offices, halls, corridors and elevators of the Property. No
person shall disturb the occupants of the Building or neighboring buildings by
the use of any radio or musical instrument or by making loud or improper noises.
Tenant will keep all mechanical apparatus free of vibration and noise which may
be transmitted beyond the confines of the Premises.
HAZARDOUS OPERATING AND ITEMS - Tenant shall not install or operate any steam or
gas engine or boiler, or carry on any mechanical business in the Premises
without Landlord's prior written consent. The use of oil, gas or flammable
liquids for heating, lighting or any other purpose is prohibited. Explosives or
other articles deemed hazardous shall not be brought into the Building.
HOUSEKEEPING - Unless otherwise stated, the interior of the Premises is the
responsibility of each Tenant to maintain in a safe and clean manner. All
carpeting and tiled areas are to be cleaned periodically. The perimeter area of
the
Premises space, which includes front and rear entrances and adjacent areas
should be kept neat and clean.
KEYS - If the need arises for the Tenant to change the lock for the Premises,
the re-keying should be coordinated and handled by the Property Manager.
MOVE IN/MOVE OUT - At the termination of the Lease, Xxxxxxxx will inspect the
Premises to see that everything is in satisfactory condition. Any deficiencies,
excepting normal wear and tear, will be addressed as provided in the Lease.
ODORS - Tenant should not cause or permit objectionable odors to emanate or be
dispelled from the Premises.
OVERHEAD DOORS - All repairs, service and preventative maintenance are Tenant's
responsibility.
PARKING - If the Tenant has customers or visitors who create an overload problem
with parking, the Tenant's cooperation is expected in asking visitors to park in
specified areas.
RADIO AND TELEVISION - No aerials or satellite dishes shall be erected on the
roof of the Building or exterior walls of the Premises or Building, or on the
grounds of the Property without the prior written consent of the Landlord in
Landlord's sole and absolute discretion. Any aerials or satellite dishes so
installed without such written consent shall be subject to removal without
notice at any time at the expense of Tenant and may, in Landlord's discretion,
be deemed a material default of Tenant under the Lease.
REFUSE - Dumpsters are provided for normal amounts of trash and waste as
experience has shown the Building to require. If Tenant's business operation
generates excess trash, or a considerable amount of cardboard boxes, it will be
necessary for Tenant to arrange for an additional service or to pay the excess
cost if the arrangements are made by Landlord.
SECURITY - Security and maintenance personnel, as well as janitorial contractors
are not permitted to unlock premises for Tenant's employees. All individual
security/burglar alarm systems should have the written consent of the Landlord.
SOLICITATION - Lessor reserves the right to restrict, control or prohibit
canvassing, soliciting and peddling within the Property.
USE OF WATER FIXTURES - Water closets and other water fixtures should not be
used for any purpose other than that for which they are intended, and any damage
resulting to them from misuse on the part of Tenant shall be paid for by Tenant.
WINDOWS - Window treatments visible from the exterior of the Premises shall
require the prior written approval of the Landlord.
Xxxxxx agrees that Landlord may amend, modify, delete or add new and additional
reasonable rules and regulations for the use and care of the Premises, the
Building, the common areas and the Property, and Tenant agrees to comply with
all such Rules and Regulations. Landlord shall promptly provide Tenant a copy of
any amendments or modifications to the Rules and Regulations.
EXHIBIT "D"
UNCONDITIONAL, GUARANTY OF LEASE
NONE.
