EXHIBIT 10.4.1
LEASE AGREEMENT
BETWEEN
MDR FITNESS CORPORATION
AS LANDLORD
AND
XXXXXXXXXXXX.XXX, INC.
AS TENANT
DATED: DECEMBER 14, 1999
BASIC LEASE PROVISIONS
The following is a summary of some of the Basic Provisions of the
Lease. In the event of any conflict between the terms of these Basic Lease
Provisions and the referenced Sections of the Lease, the referenced Sections of
the Lease shall control.
1. Building (See Section 1): 00000 X.X. 0xx Xxxxxx, Xxxxxxx,
Xxxxxxx
2. Premises: See Section 1
3. Term (See Section 2): 5 years
4. Base Rent (See Sections 2 and 3): $266,500.00
5. Security Deposit: $44,416.00
6. Landlord's Broker (See Section 53) none
Tenant's Broker (See Section 53): none
7. Notice Address: See Section 40
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LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter called the "Lease") is made and
entered into this 14th day of December 1999, by and between MDR FITNESS
CORPORATION, a Florida corporation (hereinafter called "Landlord"); and
XXXXXXXXXXXX.XXX, INC, (hereinafter called "Tenant").
1. PREMISES. Landlord does hereby rent and lease to Tenant and Tenant does
hereby rent and lease from Landlord, for general office purposes the following
described space: all of that certain one (1) story building (the "Building")
consisting of 20,500 square feet and located on the real property described in
Exhibit "A" attached hereto (the "Property") (hereinafter the Property and the
Building are collectively called the "Premises"). The Building is more commonly
known as the Aurafin Building.
2. LEASE TERM. Tenant shall have and hold the Premises for a term ("Term")
commencing on January 1, 2000 (the "Commencement Date"), and shall terminate at
midnight on the last day (the "Expiration Date") of the sixtieth (60) full
calendar month thereafter, unless sooner terminated or extended as hereinafter
provided.
3. BASE RENT. Tenant shall pay to Landlord, at 00000 X.X. 0xx Xxxxxx, Xxxxxxx,
XX 00000, or at such other place as Landlord shell designate in writing to
Tenant, annual base rent ("Base Rent") in the amount set forth in the Basic
Lease Provisions. The term "Lease Year", as used in the Basic Lease Provisions
and throughout this Lease, shall mean each and every consecutive twelve (12)
month period during the Term of this Lease, with the first such twelve (12)
month period commencing on the Commencement Date and expiring on December 31,
2000 and the remaining Lease Years commencing on January 1, and expiring on
December 31, of each such Lease Year.
4. RENT PAYMENT.
(a) The Base Rent for each Lease Year shall be payable in annual
installments, due on the first day of each Lease Year, in advance, in legal
tender of the United States of America, without abatement, demand, deduction or
offset whatsoever, except as may be expressly provided in this Lease. An annual
Installment of Base Rent together with an amount due as "Security Deposit" as
described herein shall be due and payable on the date of execution of this
Lease.
(b) Effective as of January 2001 and each subsequent January, there
shall be made a cost of living adjustment of the Base Rent payable hereunder.
Each adjustment shall be based on the percentage difference between the Price
Index for the preceding month of December and the Price Index for the Base
Month. In the event the Price Index for December in any calendar year during the
term of this Lease reflects an increase over the Price Index for the Base Month,
then the Base Rent to be paid as of the January 1st next following such
adjustment date shall be multiplied by the percentage difference between the
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Price Index for December and the Price Index for the Base Month, and the
resulting sum shall be added to such Base Rent effective as of such January 1st.
In no event shall the Base Rent increase more than four (4%) percent per year.
(c) For the purpose of calculating the cost of living adjustments, the
following definitions shall apply: (i) for the Lease Year beginning January 1,
2001, the term "Base Month" shall mean January 2000, and for each subsequent
Lease Year, the term "Lease Month" shall mean the immediately preceding January;
(ii) the term "Price index" shall mean the "Consumer Price index for All Urban
Consumers" published by the Bureau of Labor Statistics of the United States
Department of Labor, for South Florida, All Items, (1967=100) or any renamed
local index covering the metropolitan Ft. Lauderdale area or any other successor
or substitute index appropriately adjusted; and (iii) the term "Price Index for
the Base Month" shall mean the Price Index for the Base Month.
5. LATE CHARGE. Other remedies for non-payment of Rent notwithstanding, if any
Installment of Base Rent is not received by Landlord on or before five (5) days
after the same is due interest shall accrue from the date five (5) days after
such amount is past due at the highest rate permitted by applicable law.
6. USE OF PREMISES. Tenant shall use and occupy the Premises for general office
purposes for a building of this type and nature (and for no other purpose). The
Premises shall not be used far any illegal purpose, nor in violation of any
valid regulation of any governmental body, nor in any manner to create any
nuisance or trespass.
7. DEFINITIONS. "Landlord," as used in this Lease, shall include the party named
in the first paragraph hereof, its representatives, assigns and successors in
title to the Premises. "Tenant" shall include the party named in the first
paragraph hereof, its heirs and representatives, and, if this Lease shall be
validly assigned or sublet, shall also include Tenant's assignees or subtenants,
as to the Premises, or portion thereof, covered by such assignment or sublease.
"Landlord" and "Tenant" include male and female, singular and plural,
corporation, partnership, limited liability company (and the officers, members,
partners, employees or agents of any such entities) or individual, as may fit
the particular parties.
8. REPAIRS BY LANDLORD. Tenant, by taking possession of the Premises, shall
accept and shall be held to have accepted the Premises as suitable for the use
intended by this Lease.
9. REPAIRS BY TENANT. Except as provided in Section 12, Tenant shall, at its own
cost and expense, maintain the Premises, in good repair and in a neat and clean,
condition, including making all necessary repairs and replacements, subject to
normal wear and tear, casualty and condemnation. Tenant shall further, at its
own cost and expense, repair or restore any damage or injury to all or any part
of the Building caused by Tenant or Tenant's agents, employees, invitees,
licensees, visitors or contractors, including but not limited to any repairs or
replacements necessitated by (i) the construction or installation of
improvements to the Premises by or on behalf of Tenant, or (ii) the moving of
any property into or out of the Premises.
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10. ALTERATIONS AND IMPROVEMENTS. Except for minor, decorative alterations which
do not affect the Building structure or systems, are not visible from outside
the Premises, Tenant shall not make or allow to be made any alterations,
physical additions or improvements in or to the Premises without first obtaining
in writing Landlord's written consent for such alterations or additions, which
consent shall not be unreasonably withheld. Landlord and Tenant anticipate that
Tenant shall make alterations to the Premises (the "Initial Tenant
Improvements"). Tenant will furnish Landlord plans and specifications for any
proposed alterations, additions or improvements, including the Initial Tenant
Improvements. All costs of any such alterations, additions or improvements shall
be borne by Tenant. All alterations, additions or improvements must be made in a
good, first-class, workmanlike manner, and Tenant must maintain appropriate
liability and builder's risk insurance throughout the construction. Tenant does
hereby indemnify and hold Landlord harmless from and against all claims for
damages or death of persons or damage or destruction of property arising out of
the performance of any such alterations, additions or improvements made by or on
behalf of Tenant. Any alterations, additions, improvements or repairs that are
subject to Landlord's approval as provided above, shall be performed by a bonded
licensed general contractor approved, in writing, by Landlord (such approval not
to be unreasonably withheld).
Landlord's interest in the real property encumbered hereby shall not be
subject to liens or improvements made by the Tenant. Tenant shall notify the
contractor making any improvements, of this provision, and the knowing or
willful failure of the Tenant to provide such notice to the contractor shall, as
provided by Fla. Stat. 713.10, render the contract between Tenant and the
contractor voidable at the option of the Contractor. The Landlord's interest
shall not be subject to liens for improvements made by Tenant and Tenant agrees
to execute a short form lease agreement in recordable form which shall be
recorded in the Public Records of Broward County, Florida, expressly prohibiting
such liability.
11. TAXES, INSURANCE, UTILITIES AND MAINTENANCE EXPENSES:
(a) Tenant agrees to pay throughout the Term, as additional rent,
directly to the obligee of such amounts any and all such amounts as may be due
and payable, when due, and otherwise defined herein below as Operating Expenses.
If the Commencement Date or the Expiration Date does not fall an the first or
last, as applicable, day of the calendar year, Tenant's payment of Operating
Expenses for the applicable calendar year shall be appropriately prorated for
the partial year, based on the number of days Tenant has occupied the Premises
during that year such prorated amounts shall be payable as directed by Landlord,
directly to Landlord or to the obligee.
(b) Operating Expenses shall be defined to mean all those expenses of
operating, servicing, managing, maintaining and repairing the Premises and the
Building. The Tenant acknowledges and agrees that it is intended that this is a
triple net lease that is completely carefree to the Landlord, except as
expressly set out in this Lease, and the Tenant shall pay all charges, expenses,
costs, and outlays of every nature and kind relating to the Premises except as
expressly set out in this Lease, including but not limited to, property taxes,
association fees, insurance and utilities applicable to the Premises.
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(c) For the calendar year in which this Lease terminates, and is not
extended or renewed, the provisions of this Section shall apply, but Tenant's
obligation for such calendar year shall be subject to a pro rata adjustment
based upon the number of days prior to the expiration of the Term of this Lease.
If there is any shortfall in the amounts paid by Tenant as Operating Expenses
for the last Lease Year pursuant to the terns of this Paragraph, Tenant shall
pay the shortfall to Landlord within thirty (30) days of the date Tenant
receives Landlord's statement.
12. SERVICE INTERRUPTION. Landlord shall not be liable to Tenant, its agents,
employees, guests or invitees (and, if Tenant is a corporate, its officers,
agents, employees, guests of invitees) for any damage caused to any of them due
to or arising from the leaking of gas, water, sewer or steam pipes, or from
electricity.
13. SIGNS. Tenant shall not place signs or other advertisement of any character
upon the windows or exterior walls of the Premises except with the consent of
Landlord which will not be unreasonably withheld or conditioned. Notwithstanding
the foregoing, Tenant shall be permitted to place signage identifying the
tenancy of Tenant on the Building; provided that the design, dimensions,
construction and location of such signage is not prohibited by any applicable
code, ordinance, statute, rule or regulation and all consents necessary from all
governmental authorities having jurisdiction are reasonably obtainable and are
first obtained.
14. ADVERTISING. Landlord may advertise the Premises as being "For Rent" at any
time following a default by Tenant which remains uncured after the applicable
grace period and at any time within ninety (90) days prior to the expiration,
cancellation or termination of this Lease for any reason and during any such
periods Landlord may, subject to the limitations set forth in Section 19 hereof,
exhibit the Premises to prospective tenants.
15. REMOVAL OF FIXTURES AND EQUIPMENT. If Tenant is not in default hereunder,
Tenant may, prior to the expiration of the Term of this Lease, or any extension
thereof, remove any fixtures and equipment which have been placed in the
Premises by Tenant, provided Tenant repairs all damages to the Premises caused
by such removal.
16. ENTERING PREMISES. Landlord may enter the Premises at reasonable hours
provided that Landlord's entry shall not unreasonably interrupt Tenant's
business operations: (a) to make repairs, perform maintenance and provide other
services described in Section 20 below which Landlord is obligated to make to
the Premises or the Building pursuant to the terms of this Lease or to the other
premises within the Building pursuant to the leases of other tenants; and (b) to
inspect the Premises to see that Tenant is complying with all of the terms and
conditions of this Lease and with the rules and regulations hereof.
Notwithstanding the above, to the extent that Tenant shall deem its operations
or other aspects regarding its occupancy of the Premises to be proprietary in
any respect, Tenant shall be entitled to impose such security procedures as
Tenant may deem advisable as to third parties entering the Premises, including,
third parties deemed by Tenant to be a competitor of Tenant.
17. INDEMNITIES. Tenant does hereby indemnify and save harmless Landlord against
all claims for damages to persons or property which are caused anywhere in the
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Building or on the Property caused by the negligence or willful misconduct of
Tenant, its agents, employees, invitees or subcontractors or which occur in the
Premises (or arise out of actions taking place in the Premises) unless such
damage is caused by the gross negligence or willful misconduct of Landlord, its
agents, employees, invitees (but not independent contractors). The indemnity set
forth hereinabove shall include the obligation to pay reasonable expenses
incurred by the indemnified party, including, without limitation, reasonable,
actually incurred attorney's fees.
18. INSURANCE; WAIVERS.
(a) Tenant further covenants and agrees that from and after the date of
delivery of the Premises from Landlord to Tenant, Tenant will carry and
maintain, at its sole cost and expense, the following types of insurance, in the
amounts specified and in the form hereinafter provided for:
(i) Liability insurance in the Commercial General Liability
form (or reasonable equivalent thereto) covering the Premises and Tenant's use
thereof against claims for personal injury or death, property damage and product
liability occurring upon, in or about the Premises, such insurance to be written
on an occurrence basis (not a claims made basis), to be in combined single
limits amounts not less than $3,000,000.
(ii) Comprehensive General Liability insurance, casualty
insurance and such other insurance covering the Building, including heating,
ventilating and air conditioning equipment, trade fixtures, merchandise and
personal property from time to time in, on or upon the Premises, and
alterations, additions or changes or Tenant Improvements, in an amount not less
than one hundred percent (100%) of their full replacement value from time to
time during the Term.
(b) All policies of the insurance required to be maintained by Tenant
shall be issued in form acceptable to Landlord by insurance companies with a
rating and financial size of not lees than A-V in the most current available
"Best's Insurance Reports", and licensed to do business in the state in which
Building is located. Each and every such policy:
(i) shall name Landlord as an additional insured or loss
payee, as applicable (as well as any mortgagee of Landlord and any other party
reasonably designated in writing by Landlord).
(ii) shall contain a provision that the insurer will give to
Landlord at least thirty (30) days notice in writing in advance of any material
change, cancellation, termination or lapse, or the effective date of any
reduction in the amounts of insurance; and
(iii) shall be written as a primary policy which does not
contribute to and is not in excess of coverage which Landlord may carry.
(c) Any insurance provided for in Section 18 may be maintained by means
of a policy or policies of blanket insurance, covering additional items or
locations or insureds, with a deductible not to exceed $10,000.
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(d) Notwithstanding anything to the contrary set forth hereinabove,
Tenant does hereby waive any and all claims for damage to or destruction of real
or personal property to the extent such damage or destruction can be covered, by
"all risks" property insurance of the type described above. Each party shall
also be responsible for the payment of any deductible amounts required to be
paid under the applicable "all risks" fire and casualty insurance carried by the
party whose property is damaged.
19. GOVERNMENT REQUIREMENTS. Tenant agrees to comply with all applicable laws,
ordinances, orders, rules and regulations (state, federal and local) relating to
the use or occupancy of the Premises specifically including, zoning and building
codes, fire codes and life-safety codes ("Governmental Requirements") by Tenant
as a tenant. Landlord warrants and represents to Tenant that, as of the date of
execution of this Lease, the Building and the Premises comply with and satisfy
Governmental Requirements in all material respects. To the extent the Building
and the Premises is not in compliance with such Governmental Requirements,
Landlord shall remedy and correct such noncompliance prior to the Commencement
Date. Notwithstanding the foregoing, to the extent that any such alterations are
required as a result of Tenant undertaking to construct the Tenant Improvements
or other alterations or improvements during the Term, Tenant agrees to perform
such alterations at its sole expense, and to otherwise comply with all
Governmental Requirements as may be applicable to, or required as a result of,
any such improvements undertaken by Tenant.
20. ASSIGNMENT AND SUBLETTING. Tenant may not, without the prior written consent
of Landlord assign this Lease or any interest hereunder, or sublet the Premises
or any part hereof, the use of this Lease by any party other than Tenant.
Landlord shall be entitled to assign its rights and duties hereunder, so long as
the assignee assumes all of its duties and obligations hereunder, including
those related to the security deposit described in Section 34 below.
21. DEFAULT. If Tenant shall default in the payment of Base Rent herein reserved
when due; or if Tenant shall be in default in performing any of the terms or
provisions of this Lease other than the provisions requiring the payment of
Rent, and fails to cure such default within thirty (30) days after written
notice of such default is given to Tenant by Landlord or, if such default cannot
be cured within thirty (30) days, Tenant shall not be in default if Tenant
promptly commences and diligently proceeds the cure to completion as soon as
possible and in all events within ninety (90) days; or if Tenant is adjudicated
a bankrupt; or if a permanent receiver is appointed for Tenant's Property and
such receiver is not removed; or if, whether voluntarily or involuntarily,
Tenant takes advantage of any debtor relief proceedings under any present or
future law, whereby the Rent or any part thereof, is, or is proposed to be,
reduced or payment thereof deferred; then, and in any of said events, Landlord,
at its option, may exercise any or all of the remedies set forth in Section 22
below.
22. REMEDIES. Upon the occurrence of any default sat forth in Section 21 above
which is not cured by Tenant within the applicable cure period provided therein,
if any, Landlord may exercise all or any of the following remedies, in its sole
and absolute discretion:
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(a) terminate this Lease by giving Tenant written notice of
termination, in which event this Lease shall terminate on the date specified in
such notice and all rights of Tenant under the Lease shall expire and terminate
as of such date, Tenant shall remain liable for all obligations under this Lease
up to the date of such termination and Tenant shall surrender the Premises to
Landlord on the date specified in such notice, and if Tenant fails to so
surrender, Landlord shall have the right, without notice, to enter upon and take
possession of the Premises and to expel and remove Xxxxxxx and its effects
without being liable for prosecution or any claim of damages therefor;
(b) terminate this Lease as provided in the immediately preceding
subsection and recover from Tenant as damages by reason of Tenant's default the
then present value of (i) the total Rent which would have been payable hereunder
by Tenant for the period beginning with the day following the date of such
termination and ending with the Expiration Date of the Term as originally
scheduled hereunder; or
(c) without terminating this Lease, and without notice to Tenant,
Landlord may in its own name, but as agent for Tenant enter into and take
possession of the Premises and re-let the Premises, or a portion thereof, as
agent of Tenant upon any terms and conditions as Landlord may deem reasonably
necessary or desirable. Upon any such re-letting, all rentals received by Land
from such re-letting shall be applied first to the reasonable costs and
reasonable attorneys' fees incurred by Landlord in accomplishing any such
re-letting, and thereafter shall be applied to the Rent owed by Tenant to
Landlord during the remainder of the term of this Lease and Tenant shall pay any
deficiency between the remaining Rent due hereunder and the amount received by
such re-letting as and when due hereunder.
23. DESTRUCTION OR DAMAGE.
(a) If the Building or the Premises are totally destroyed by storm,
fire, earthquake, or other casualty, or damaged to the extent that, in
Landlord's reasonable opinion the damage cannot be restored within one hundred
eighty (180) days at the date Landlord provides Tenant written nose of
Landlord's reasonable estimate of the time necessary to restore the damage, or
if the damage is not covered by standard "all risks" property insurance, or if
the Landlord's lender, if any, requires that the insurance proceeds be applied
to the loan secured by the Property, Landlord and Tenant shall each have the
right to terminate this Lease effective as the date of such destruction or
damage by written notice to the other on or before thirty (30) days following
Landlord's notice described in the next sentence and Rent shall be accounted for
as between Landlord and Tenant as of the date of such destruction or damage.
Landlord shall provide Tenant with notice within forty five (45) days following
the date of the damage of the estimated time needed to restore, and whether or
not Landlord's lender requires the insurance proceeds be applied to its loan
should either Landlord or Tenant elect to terminate this Lease pursuant to this
provision, all insurance proceeds shall be payable to Landlord, except such
amounts as may be due for losses exclusively insured for Tenant.
(b) If the Premises are damaged by any such casualty or casualties but
Landlord or Tenant is not entitled to or does not terminate this Lease as
provided in subparagraph (a) above, this Lease shall remain in full force and
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effect, Landlord shall notify Tenant in writing within forty-five (45) days of
the date of the damage that the damage will be restored (and will include
Landlord's good faith estimate of the date the restoration will be complete), in
which case Rent shall xxxxx as to any portion of the Premises which is not
usable, and Landlord shall restore the Premises to substantially the same
condition as before the damage occurred as soon as practicable, whereupon full
Rent shall recommence.
24. EMINENT DOMAIN. If the whole of the Building or Premises, or such portion
thereof as will make the Building or Premises unusable in the reasonable
judgment of Landlord for their intended purposes, is condemned or taken by any
legally constituted authority for any public use or purpose, then in either of
said events, each of Landlord and Tenant may terminate this Lease by written
notice to the ether and the Term hereby granted shall cease from that time when
possession thereof is taken by the condemning authorities, and Rent shall be
accounted for as between Landlord and Tenant as of that date. If a portion of
the Building or Premises is so taken, but not such amount as will make the
Premises unusable in the reasonable judgment of Tenant for the purposes herein
leased, this Lease shall continue in full force and effect, the Rent shall be
reduced pro rata in proportion to the amount of the Premises so taken, and the
Landlord shall promptly commence such repair and restoration work and thereafter
continue the same with reasonable diligence to restore all affected portions of
the Premises and Building to a quality, taking into account the extent and
nature of the condemnation, equal to that existing immediately prior to such a
taking.
25. ESTOPPELS.
(a) TENANT'S ESTOPPEL. Tenant shall, from time to time, upon not more
than ten (10) days prior written request by Landlord, execute, acknowledge and
deliver to Landlord a written statement certifying that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that the
same is in full force and effect as modified and stating the modifications), the
dates to which the Rent has been paid, that to Tenant's knowledge Tenant is not
in default hereunder and has no offsets or defenses against Landlord under this
Lease, and whether or not to Tenant's knowledge Landlord is in default hereunder
(and if so, specifying the nature of the default), it being intended that any
such statement delivered pursuant to this paragraph may be relied upon by a
prospective purchaser of Landlord's interest or by a mortgagee of Landlord's
interest or assignee of any security deed upon Landlord's interest in the
Premises. If Tenant fails to deliver such statement or objections thereto within
such ten (10) day period, the statement delivered by Landlord shall conclusively
be deemed to be correct and accurate.
(b) LANDLORD'S ESTOPPEL. Landlord shall, from time to time, upon not
less than ten (10) days prior written request by Tenant, execute, acknowledge
and deliver to Tenant a written statement certifying that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), the dates to which the Rent has been paid, whether or not
Landlord is in default hereunder and to Landlord's knowledge whether or not it
has any offsets or defenses against Tenant under this Lease, and whether or not
to Landlord's knowledge Tenant is in default hereunder (and if so, specifying
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the nature of the default). If Landlord fails to deliver such statement or
objections thereto within such ten (10) day period, the statement delivered by
Tenant shall conclusively be deemed to be correct and accurate.
26. ATTORNEY'S FEES. In connection with any proceeding hereunder, the prevailing
party shall be entitled to recover, on demand, all costs, expenses and fees,
including reasonable attorneys' and paralegal fees through all trial and
appellate levels and court costs, incurred in connection therewith.
27. WASTE DISPOSAL AND UTILITIES. All normal trash and waste shall be disposed
of through the janitorial service at Tenant's expense. Tenant shall pay all
utility charges, expenses and costs, relating to its tenancy at the Premises.
28. SURRENDER OF PREMISES. Whenever under the terms hereof Landlord is entitled
to possession of the Premises, Tenant at once shall surrender the Premises and
the keys thereto to Landlord in the same condition as on the Commencement Date
hereof, natural wear and tear, and casualty (if Landlord is entitled to
possession due to a casualty or condemnation) excepted. Tenant shall not be
required to remove any of its personalty or improvements therefrom. Landlord may
forthwith re-enter the Premises and repossess itself thereof and remove all
persons and effects therefrom, using such force as may be necessary without
being guilty of forcible entry, detainer, trespass or other tort,
29. CLEANING PREMISES. Upon vacating the Premises, Tenant agrees to return the
Premises to Landlord broom clean and in the same condition when Tenant's
possession commenced, natural wear and tear excepted.
30. CUMULATIVE RIGHTS. All rights, powers and privileges conferred hereunder
upon the parties hereto shall be cumulative but not restrictive to those given
by law or in equity.
31. PARAGRAPH TITLES; SEVERABILITY. The paragraph titles used herein are not to
be considered a substantive part of this Lease, but merely descriptive aids to
identify the paragraph to which they refer. Use of the masculine gender includes
the feminine and neuter, and vice versa, where necessary to impart contextual
continuity. If any paragraph or provision herein is held invalid by a court of
competent jurisdiction, all other paragraphs or severable provisions of this
Lease shall not be affected thereby, but shall remain in full force and effect.
32. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal property brought into the
Premises shall be at the risk of the Tenant only and Landlord shall not be
liable for the theft thereof or any damage thereto occasioned by any acts of
co-tenants, or other occupants of the Building, or any other person, except,
with respect to damage to the Premises, as may be occasioned by the grossly
negligent or willful act of the Landlord, its employees and agents (but not
independent contractors).
33. HOLDING OVER. In the event Tenant remains in possession of the Premises
after the expiration of the Term hereof, or of any renewal term, with Landlord's
prior written consent, Tenant shall be a tenant at will and such tenancy shall
be subject to all the provisions hereof, and the monthly rental shall be equal
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to one hundred twenty percent (120%) the monthly Base Rent payable hereunder
upon such expiration of the Term hereof. Nothing in this Section shall be
construed as a consent by Landlord for any holding over by Tenant after the
expiration of the Term hereof, or any renewal term.
34. SECURITY DEPOSIT. Tenant, concurrently with the execution of this Lease, has
deposited with Landlord FORTY FOUR THOUSAND FOUR HUNDRED SIXTEEN DOLLARS
($44,416.00) as a security deposit (the "Security Deposit"). The Security
Deposit shall be retained by Landlord as security for the payment by Tenant of
the Base Rent and for the faithful performance by Tenant of the terms and
covenants of this Lease. It is agreed that Landlord, at Landlord's option, may
at any time that Tenant is in default under this Lease and has not cured such
default in accordance with the terms hereof, apply all or any part of the
Security Deposit towards the payment of rent and all other sums payable by
Tenant hereunder, and towards the performance of each and every of Tenant's
covenants under this Lease, Tenant's covenants and liabilities under this Lease
shall be discharged by such application of the Security Deposit only to the
extent of the amount applied. If Landlord uses, applies or retains the whole or
any part of the Security Deposit, Tenant shall replenish such amounts of the
Security Deposit within twenty (20) days after being notified by the Landlord of
the amount due.
35. QUIET ENJOYMENT. Tenant, upon payment in full of the required Rent and full
performance of the terms, conditions, covenants and agreements contained in this
Lease, shall peaceably and quietly have, hold and enjoy the Premises during the
term hereof. Landlord shall not be responsible for the acts or omissions of any
other tenant, Tenant or third party that may interfere with Tenant's use and
enjoyment of the Premises.
36. INTENTIONALLY OMITTED.
37. ENTIRE AGREEMENT. Except as provided forth in the Exhibits attached hereto,
this Lease contains the entire agreement of the parties and no presentations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect.
38. SUBMISSION OF AGREEMENT. This Lease is net binding or effective until (the
"Effective Date") execution of this Lease and by and delivery to both Landlord
and Tenant.
39. BROKER DISCLOSURE. Landlord represents that it has dealt with no broker.
Landlord agrees that, if any other broker makes a claim for a commission based
upon the actions of Landlord, Landlord shall indemnify, defend and hold Tenant
harmless from any such claim. Tenant represents that it has dealt with no
broker. Tenant agrees that, if any other broker makes a claim for a commission
based upon the actions of Tenant, Tenant shall indemnify, defend and hold
Landlord harmless from any such claim.
40. NOTICES. Any notice which is required or permitted to be given by either
party under this Lease shall be in writing and must be given only by certified
mail, return receipt requested, by hand delivery or by nationally recognized
overnight courier service at the addresses sat forth below. Any such notice
shall be deemed given on the date sent or deposited for delivery in accordance
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with one of the permitted methods described above. The time period for
responding to any such notice shall begin on the date the notice is actually
received, but refusal to accept delivery or inability to accomplish delivery
because the party can no longer be found at the then current notice address,
shall be deemed receipt. Either party may change its notice address by notice to
the other party in accordance with the terms of this Section 40. The following
are the initial notice addresses for each party. If to Landlord, 00000 X.X. 0xx
Xxxxxx, Xxxxxxx, XX 00000, and if to Tenant, 00000 X.X. 0xx Xxxxxx. Xxxxxxx, XX
00000.
41. FORCE MAJEURE. In the event of a strike, lockout, labor trouble, civil
commotion, an act of God, or any other event beyond Landlord's or Tenant's
control (a "force majeure event") which results in the Landlord or Tenant being
unable to timely perform its obligations under this Lease, so long as Landlord
or Tenant, as applicable, diligently proceeds to perform such obligations after
the end of the force majeure event, Landlord or Tenant, as applicable, shall not
be in breach hereunder, this Lease shall not terminate, and Tenant's obligation
to pay any Base Rent, additional rent, or any other charges and sums due and
payable shall not be excused.
42. 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 MAYBE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH
UNIT.
43. WAIVER OF LANDLORD'S LIEN. Notwithstanding anything herein to the contrary,
Landlord waives all common law lien rights, if any, and all statutory lien
rights that Landlord may have pursuant to FLORIDA STATUTES Chapter 83, with
respect to all property now or hereafter placed in or upon the Premises by
Tenant. Tenant agrees that the personal property identified on Exhibit "B"
attached hereto belongs to Landlord and shall not be removed by Tenant.
44. ADDITIONAL CONSIDERATION. As additional consideration to Landlord for the
execution of this Lease, Tenant shall and hereby does offer to Landlord (or an
assignee of Landlord) effective the Effective Date Ten Thousand (10,000) shares
of "XxxxxxxXxxxx.Xxx" stock at an option price of Fifty ($.50) cents per share
which option may be exercised by Landlord at any one time after the initial
public offering of public securities of the Tenant.
45. TRIPLE NET LEASE. Tenant acknowledges and agrees that it is intended that
this is a net lease that is completely carefree to the Landlord, except as
expressly set out in this Lease; that the Landlord is not responsible during the
Term for any costs, charges, expenses, and outlays of any nature whatsoever
arising from or relating to the Premises, or the use and occupancy thereof by
Tenant, or the contents thereof, or the business carried on therein; and the
Tenant shall pay all charges, expenses, costs, and outlays of every nature and
kind relating to the Premises except as expressly set out in this Lease.
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46. POWER AND AUTHORITY. Each party represents and warrants to the other as
follows: (a) it has the right, power and authority to enter into this Lease and
that this Lease constitutes a legal, valid and binding obligation, enforceable
in accordance with its terms, and (b) the execution and delivery of this Lease
by it and the consummation by it of this Lease: (i) do not and will not violate
any conflict with any provision of law or regulation, or any order of any court,
governmental or regulatory authority or agency, and (ii) do not and will not
result in the breach of, or constitute a default or require any consent under,
or result in the creation of any lien, charge or encumbrance upon any of his
property or assets pursuant to any instrument or agreement to which it is a
party or by which its properties may be bound or affected.
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals,
the day and year first above written.
WITNESSES: LANDLORD: MDR FITNESS CORPORATION
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Print Name: By: /s/ Xxx Xxxxx
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Print Name:
-----------------------
Title:
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Print Name:
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TENANT: XXXXXXXXXXXX.XXX, INC.
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Print Name: By: /s/ Xxxxxx Xxxxx
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Print Name: Xxxxxx Xxxxx
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Title: President
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Print Name:
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