Exhibit 10.18
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE is entered into this day of February, 1989,
between XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation,
and its respective assigns, (hereinafter referred to as "Landlord"), and DATAMAX
CORPORATION, a Delaware corporation, (hereinafter referred to as "Tenant").
RECITALS:
1. On January 27, 1989, Landlord and Tenant entered into a Lease Agreement
for "demised premises" consisting of approximately 49,200 square feet, being a
portion of Building Number 606, Units A and B, on Parkway Xxxxxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxx 00000, situated upon real property described as follows:
Xxxx 0 xxx 0, XXXXXXX XXXXXX, Xxxxx I, according to the plat thereof
as recorded in Plat Book 8, Page 2, Public Records of Orange County,
Florida.
2. Landlord and Tenant desire to amend and modify the Lease as described
in this First Amendment to Lease, but otherwise ratifying and confirming the
terms of the Lease.
AGREEMENT
IN CONSIDERATION of the mutual covenants contained in this agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by both parties, it is agreed as follows:
1. Section 2.01, 2.2, and 2,3 (of Article II) are hereby deleted in their
entirety and the following sections are substituted in their place:
1.1 Tenant hereby covenants and agrees, subject to the terms and
conditions hereinafter set forth, to have the walls painted, replace damaged
ceiling tiles, and replace worn or dis colored carpeting in the Demised
Premises, and Landlord shall be responsible for the costs of such refurbishment
up to the sum of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000.00), In the
event that the total costs of such refurbishment do not amount to THIRTY-FIVE
THOUSAND AND NO/100 DOLLARS ($35,000.00), then the unspent balance shall serve
as a credit to Tenant for leasehold improvements installed by Tenant. Such
leasehold improvements shall be and consist of partitioning of office spaces in
the Demised Premises. Such THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000.00)
shall be paid as follows by Landlord to Tenant in order to accomplish the
refurbishment and any Tenant improvements: Upon execution of this First
Amendment to Lease, Landlord shall pay to Tenant the sum of SEVENTEEN THOUSAND
FIVE HUNDRED AND NO/100 DOLLARS ($17, 500.00), which Tenant shall use solely
for such
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refurbishment. Upon the completion of all refurbishment in the Demised Premises
satisfactory to Landlord, Landlord shall pay to Tenant the additional sum of
SEVENTEEN THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($17,500.00). Notwithstanding
anything in this Lease or otherwise to the contrary, Landlord's total liability
for refurbishment and any improvements shall not exceed THIRTY-FIVE THOUSAND AND
N0/100 DOLLARS ($35,000.00).
1.2 After execution of this First Amendment to Lease by both parties
hereto, Tenant shall deliver notice to Landlord of those contractors that Tenant
has engaged to make the refurbishment and any improvements, with copies of the
contract or agreement between Tenant and the contractor. Such contracts or
agreements shall specifically provide that the contractor shall have no lien
rights as against Landlord's interest in the Demised Premises.
1.3 Upon obtaining any necessary permits, Tenant shall cause the
commencement, and thereafter the completion, of the refurbishment as
expeditiously as conditions shall reasonably permit.
2. As amended in this First Amendment to Lease, Landlord and Tenant
ratify and confirm the Lease as a valid, binding, legally enforceable, and
subsisting agreement between Landlord and Tenant.
IN WITNESS WHEREOF, the parties have executed this First Amendment to Lease
on the date first above written.
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Executed in the presence of the following LANDLORD:
witnesses:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
BY:
XXXXX X. XXXXXXXX, as its Senior
Real Estate Management Officer
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TENANT:
DATAMAX CORPORATION
By:
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SECOND AMENDMENT TO LEASE
-------------------------
THIS SECOND AMENDMENT TO LEASE is entered into this ______ day of
_____________, 1990 between Park Center Properties, Assignee of XXXX XXXXXXX
MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation, and its respective
assigns, (hereinafter referred to as "Landlord"), and DATAMAX CORPORATION, a
Delaware corporation, (hereinafter referred to as "Tenant").
RECITALS
1. On January 27, 1989, Landlord and Tenant entered into a approximately
49,200 square feet, being a portion of Building Number 606, Units A and B, on
Parkway Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, situated upon real property
described as follows:
Xxxx 0 xxx 0, XXXXXXX XXXXXX, Xxxxx I, according to the plat thereof
as recorded in Plat Book 8, Page 2, Public Records of Orange County,
Florida.
and amended said Lease Agreement by entering into First Amendment to Lease dated
February 1, 1989.
2. Landlord and Tenant desire to further amend and modify the Lease as
described in this second Amendment to Lease.
AGREEMENT
IN CONSIDERATION of the mutual covenants contained in this agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by both parties, it is agreed as follows:
1. Effective July 1, 1990, the Lease is modified to provide for the
addition to the "Demised Premises" of the 2,400 square feet contained in Unit F
of Building Number 606 located as described in Article I, Section 1.l of the
Lease.
2. Monthly rental payments on the additional premises, Unit F shall
commence on July 1, 1990 in the amount of $840.00 together with additional
rental pursuant to the terms of the Lease and payment of all applicable Florida
State Sales Tax on said amounts and shall continue until the termination of the
Lease on January 31, 1994.
3. Effective July 1, 1990, Tenant's share of costs and expenses as
outlined in Article IV, Section 4.2, is amended to 58% of all such costs and
expenses.
4. Landlord and Tenant agree that Xxxx X, Xxxxxxxx 000, is leased by
Tenant in an "as is" condition and Landlord shall make no improvements
whatsoever to the space.
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5. As further amended in this Second Amendment to Lease, Landlord and
Tenant ratify and confirm and Lease as a valid, binding, legally enforceable,
and subsisting agreement between Landlord and Tenant.
6. Landlord shall not place or maintain or permit others to place or
maintain any signs on the building or the land or any part of the land upon
which the building is located other than tenant identification signs permitted
by Landlord affixed to the front door of each tenant's space or the wall of the
building adjoining the front door of such space. Notwithstanding the preceding
sentence, Tenant shall continue to have the right to maintain its existing sign
which abuts the right of way of Xxxx Xxxxx Parkway as well as its existing
directional signs on the property. In the event that space becomes available in
the multi-tenancy portion of the building and Tenant does not exercise option to
take the available space, as outlined in Article XXVII of the Lease then
Landlord may place a sign on the property advertising available space.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Lease on the date first above written.
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LANDLORD:
PARK CENTER PROPERTIES
By:
Xxxxxxx X. Xxxxxx
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TENANT:
DATAMAX CORPORATION
By:
Xxxxxxx Xxxxx, President
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THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE is entered into this 10 day of November, 1994
between Park Center Properties, Assignee of XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation, and its respective assigns, (hereinafter
referred to as "Landlord"), and DATAMAX CORPORATION, a Delaware corporation,
(hereinafter referred to as "Tenant").
RECITALS
1. On January 27, 1989, Landlord and Tenant entered into a Lease
Agreement for "demised premises" consisting of approximately 49,200 square feet,
being a portion of Building Number 606, Units A and B, on Parkway Xxxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, situated upon real property described as
follows:
Xxxx 0 xxx 0 XXXXXXX XXXXXX, Xxxxx 0, according to the plat thereof as
recorded in Plat Book 8, Page 2, Public Records of Orange County, Florida.
and amended said Lease Agreement by entering into First Amendment to Lease dated
February 1, 1989, and further amended said Lease Agreement by entering into
Second Amendment to Lease on July 1, 1990.
AGREEMENT
IN CONSIDERATION of mutual covenants contained in this agreement, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by both parties, it is agreed as follows:
1. Effective February 1, 1994, the Lease is modified to provide for the
addition to the "Demised Premises" of 26,400 square feet contained in Units C
through J of Building Number 606 located as described in Article 1, Section 1.1
of the Lease.
2. Monthly rental payments on the 75,600 square feet (all of Building
606) shall be at a rate of $4.305 per square foot. The extension shall be for a
period of five (5) years and shall be triple net commencing February 1, 1994 and
terminating January 31, 1999.
3. Landlord agrees to upgrade the fire sprinkler systems as required by
applicable fire codes for any new construction required by the Tenant provided
that the new construction does not materially change the use of the space
involved. This upgrade is to be at no charge to Tenant. Landlord further agrees
to bear the cost of any water main expansion required to handle the upgraded
fire sprinkler systems which may be installed pursuant to this provision. Tenant
agrees that the existing fire separations shall be kept in place and any and all
openings in such fire separations shall be properly fire rated.
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40. Effective February 1, 1994, the Tenant shall pay the costs and
expenses of operating the building directly and discontinue monthly estimated
payments to Landlord.
50. Landlord will transmit property and intangible tax bills to Tenant
immediately upon receipt and Tenant will make payment directly and return
evidence of payment to Landlord.
60. As further amended in this Third Amendment to Lease, Landlord and
Tenant ratify and confirm the Lease is valid, binding legally enforceable, and
subsisting agreement between Landlord and Tenant. All clauses of the original
Leases not changed by this Amendment shall remain in force.
IN WITNESS WHEREOF, the parties have executed this to Lease on the date
first above written.
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LANDLORD:
PARK CENTER PROPERTIES
By:
Xxxxxxx X. Xxxxxx
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TENANT:
DATAMAX CORPORATION
By:
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MEMORANDUM OF LEASE
NAME OF LANDLORD: PARK CENTER PROPERTIES, Assignee of XXXX XXXXXXX MUTUAL
LIFE INSURANCE COMPANY, a Massachusetts corporation
NAME OF TENANT: DATAMAX CORPORATION, a Delaware corporation
DATE LEASE EXECUTED: February 1, 1994
DESCRIPTION OF LEASED PREMISES IN THE FORM CONTAINED IN THE LEASE: The Landlord
leased to Tenant that certain space containing approximately 75,600 square feet
(all of Building Number 606) situated on Parkway Commerce Boulevard, Orlando,
Florida, a more particularly described in Exhibit "A" attached hereto and by
this reference made a part hereof.
COMMENCEMENT DATE AND TERM OF LEASE: The term of this Lease shall commence on
February 1, 1989, modified and continued on February 1, 1994, to terminate on
January 31, 1999.
LIENS: Landlord's/fee owner's interest in the property described in Exhibit "A"
shall not be subject to any liens for improvement by the Tenant.
TERMINATION: Landlord and Tenant agree to execute a termination and
cancellation of this Memorandum upon the termination of the Lease.
IN WITNESS WHEREOF, the parties has respectively executed this Memorandum
of Lease this 10th day of November, 1994.
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Signed, Sealed and delivered in the LANDLORD:
presence of:
PARK CENTER PROPERTIES
By:
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TENANT:
DATAMAX CORPORATION
By:
Xxxxxxx Xxxxx, President
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STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ______ day of
_______, 1994, by _______________________ as Landlord/Agent for Park Center
Properties, a New York partnership.
_____________________________________________
Notary Public
(Print, type or stamp commissioned name of Notary Public)
Personally known ________ or produced identification _______
Type of identification produced
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 10th day of
November, 1994, by _________________ as Tenant/Agent for Datamax Corporation, a
Delaware corporation.
_____________________________________________
Notary Public
(Print, type or stamp commissioned name of Notary Public)
Personally known ________ or produced identification _______
Type of identification produced ____________
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LEASE
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LANDLORD: XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
TENANT: DATAMAX CORPORATION
GUARANTOR: GTECH CORPORATION
PREMISES: REAL PROPERTY AT PARKWAY CENTER, ORLANDO, FLORIDA
ARTICLE PAGE
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ARTICLE I Demised Premises 2
ARTICLE II Landlord's Refurbishment of Demised Premises 2
ARTICLE III Term of Lease 3
ARTICLE IV Rent 3
ARTICLE V Taxes and Assessments 4
ARTICLE VI Utility Charges 5
ARTICLE VII Hold Harmless 5
ARTICLE VIII Insurance 5
ARTICLE IX Repairs, Maintenance, Alterations and Removal of Equipment 7
ARTICLE X Inspection of Premises by Landlord 8
ARTICLE XI Mechanic's Liens 8
ARTICLE XII Damage or Destruction of Demised Premises 9
ARTICLE XIII Condemnation 10
ARTICLE XIV Use of Premises - Assignments 11
ARTICLE XV Event of Default 11
ARTICLE XVI Surrender of Premises 14
ARTICLE XVII Strikes - War - Acts of God 15
ARTICLE XVIII Cost of Litigation 15
ARTICLE XIX Statement of Lease 15
ARTICLE XX Rights Reserved by Landlord 16
ARTICLE XXI Covenants of Quiet Enjoyment 16
ARTICLE XXII Short Form Lease 16
ARTICLE XXIII Subordination 16
ARTICLE XXIV Prepaid Rent and Security Deposit 17
ARTICLE XXV Holding over 17
ARTICLE XXVI General 17
ARTICLE XXVII Option to Lease Additional Space 18
ARTICLE XXVIII Radon Gas Notice 19
ARTICLE XXIX Hazardous Substances Prohibited 19
L E A S E
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THIS LEASE made and entered into on January 27, 1989, by and between XXXX
XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation (and its
respective assigns, hereinafter collectively referred to as Landlord), and
DATAMAX CORPORATION, a Delaware corporation (hereinafter referred to as Tenant),
and GTECH CORPORATION, a Delaware corporation (hereinafter referred to as
"Guarantor").
W I T N E S S E T H :
---------------------
The parties hereto mutually covenant and agree that Landlord in
consideration of the rentals payable by Tenant, and the covenants and agreements
to be kept, observed and performed by Tenant, has rented, demised and leased
unto Tenant, and Tenant does hereby take and hire from Landlord, the demised
premises (the Demised Premises), upon and subject to the covenants and
conditions, restrictions, reservations, easements, rights and rights-of-way of
record.
ARTICLE I
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Demised Premises
----------------
I.1 The "Demised Premises", consist of approximately 49,200 square feet as
shown on the legal description attached hereto and incorporated herein as
Exhibit "A", which Demised Premises are a portion of Building No. 606, Units A &
B, on Parkway Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, located at PARKWAY
CENTER, which building is situated on real property platted as Xxxx 0 xxx 0,
Xxxxxxx Xxxxxx, Xxxxx I, being a portion of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx
29 East, Orange County, Florida, together with the appurtenances thereto and
improvements thereon. TO HAVE AND TO HOLD the Demised Premises unto Tenant for
the term of this Lease pursuant to the terms hereof.
ARTICLE II
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Landlord's Refurbishment of Demised Premises
--------------------------------------------
II.1 Landlord hereby covenants and agrees, subject to the terms and
conditions hereinafter set forth, to have the walls painted, replace damaged
ceiling tiles, and replace worn or discolored carpeting in the demised premises,
at Landlord's expense and cost, but not to exceed in all events a total cost of
THIRTY FIVE THOUSAND AND NO/100 DOLLARS ($35,000.00). Such refurbish ment shall
be at the reasonable direction of Tenant. In the event the total costs of such
refurbishment do not amount to THIRTY FIVE THOUSAND AND NO/100 DOLLARS
($35,000.00), then the unspent balance shall serve as a credit to Tenant for
leasehold improvements installed by Tenant. such leasehold improvements shall be
and consist of partitioning of office spaces in the Demised Premises.
Notwithstanding anything in this Lease or otherwise to the contrary, Landlord's
total liability for refurbishment and any improvements shall not exceed THIRTY
FIVE THOUSAND AND NO/100 DOLLARS ($35,000.00).
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II.2 Upon execution of this Lease by both parties hereto, Tenant shall
describe in writing those refurbishment requested and deliver such notice to
Landlord. Landlord shall then deliver to Tenant price quotes on all
refurbishment requested. Tenant shall then have twenty (20) days within which
to object to such price quotes, and upon failure to do so such quotes shall be
conclusive as to the total cost of refurbishment paid for by Landlord. In the
event Tenant objects to any price quotes (within such twenty (20) days) , then
if the parties cannot agree upon a price, bids shall be obtained from third
party independent contractors acceptable to Tenant, which contractors shall
perform the refurbishment.
II.3 Upon obtaining any necessary permits, Landlord shall cause the
commencement, and thereafter the completion, of said refurbishment as
expeditiously as conditions shall reasonably permit.
II.4 Subject to those items in need of refurbishment as described above,
Landlord warrants that the Demised Premises, including all roofs, interior and
exterior walls (except painting), floors, windows, glass, doors, plumbing,
pipes, electrical systems, heating and air conditioning, equipment, machinery,
and lighting systems are in good condition, proper state of repair and operating
order and radon gas levels do not exceed federal -and state guidelines at the
commencement of the term of this Lease. Tenant shall have a period of thirty
(30) days following the commencement of the term of this Lease to make written
objections to any claimed defects in the Demised Premises other than those items
in need of refurbishment, or as not being in the condition, repair or operating
order as warranted by Landlord. In the event no objections are made by Tenant
within said time period, then Tenant conclusively shall be deemed to have
approved and accepted the Demised Premises as the same existed at the
commencement of the term of this Lease, and any maintenance, upkeep, repairs,
and any compliance with federal, state, and local regulations, guidelines, or
laws shall be solely Tenant's responsibility as hereafter provided in this
Lease. Landlord shall use due diligence to correct any reasonable and valid
objections made by Tenant.
II.5 Landlord further agrees that for the first year following
commencement of the term hereof, it will enforce for the benefit of Landlord and
Tenant any and all guaranties which may be made by any contractor or
subcontractor with respect to the roof and exterior painting of the Demised
Premises; thereafter, providing Landlord does not choose to enforce such
guaranties, Landlord shall assign such guaranties to Tenant and permit Tenant to
enforce the same as Tenant may determine. The foregoing sentence shall not be
construed to require Landlord to obtain any such guaranties, but Landlord shall
not voluntarily waive any guaranties customarily obtained.
ARTICLE III
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Term of Lease
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The term of this Lease shall be for five (5) years. Said term, and
Tenant's obligations hereunder, shall commence on February 1, 1989, and shall
continue for five (5) years thereafter, subject, however, to the terms and
conditions hereafter set forth.
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ARTICLE IV
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Rent
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IV.1 Tenant agrees to pay to the Landlord at the office of Landlord, or at
such other place as may be designated by Landlord from time to time, without any
prior demand therefor and without any deduction or setoff whatsoever, the rent
for Demised Premises as follows: Commencing the first (1st) day of February, the
annual rent hereunder shall be TWO HUNDRED SIX THOUSAND SIX HUNDRED FORTY AND
NO/100 U.S. DOLLARS ($206,640.00) which shall be payable in equal monthly
installments of SEVENTEEN THOUSAND TWO HUNDRED TWENTY AND N0/100 U.S. DOLLARS
($17,220.00) each. In addition to the foregoing rent, the Tenant shall pay to
the Landlord with each monthly installment of rent the applicable Florida State
Sales Tax due on said rent or any other sums payable hereunder. The Landlord
shall assume sale responsibility for filing any sales tax returns with respect
to this Lease.
IV.2 The fixed monthly rental hereinbefore set forth is to be a "net
net net rental", as those terms are used and understood in the real property
leasing business. Accordingly, and as additional rental hereunder, Tenant shall
pay (as hereinafter provided) during the term of this Lease, and prorated to the
date of the commencement and termination of the term hereof, all taxes and
assessments levied against the Demised Premises, or any portion thereof, public
utility and related costs and expenses, insurance premiums, expenses of
occupying, operating, altering, maintaining and repairing the entire Demised
Premises (subject however, to Landlord's obligations under Article 11, Sections
12.1 and 13.3 hereof) and any other expenses or charges which, during the term
of this Lease, shall be levied, assessed or imposed by any governmental
authority upon or with respect to, or incurred in connection with, the
possession, occupation, operation, alteration, maintenance, repair and use of
the Demised Premises, it being intended that this Lease shall result in a rental
to be paid to Landlord, without additional cost of Landlord or diminution or
offset hereto, in the fixed monthly amounts hereinbefore specified. For the
first year, such additional rent is estimated to be TWO THOUSAND FOUR HUNDRED
THIRTY-SIX AND N0/100 U.S. DOLLARS ($2,436.00) per month, which shall be paid
monthly to Landlord on the first of each month without any prior demand therefor
and without any deduction or set off whatsoever. At the beginning of each
subsequent year of this Lease (after the first year) Landlord shall deliver to
Tenant Landlord's new estimation of additional rent for the following year and
Tenant shall pay monthly such new estimated additional rent in the manner
provided for in the first year. At the end of the first year (or such fiscal or
calendar year as designated by Landlord), and each year thereafter throughout
the term of this Lease, the actual additional rent for the prior months shall be
computed: any estimated additional rent paid to Landlord in excess of the actual
additional rent shall be repaid to Tenant within twenty (20) days; and Tenant
shall pay within twenty (20) days of notice any amounts by which the actual
additional rent exceeds the estimated additional rent. Such additional rent is
based upon Tenant's proportionate share of taxes, insurance, and all other costs
and expenses as provided in this Lease, which share is initially based upon the
49,200 square feet of demised premises out of a total of the 75,600 square feet
of Building 606, Parkway Center, i.e., Tenant's share of such costs and expenses
shall (subject to Article XXVII) be initially 65% of all such costs and
expenses. Subject to the provisions of Article V nothing in this paragraph
shall be construed to require Tenant to pay any franchise or
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transfer taxes of Landlord growing out of or connected with this Lease or
Landlord's right in and to the Demised Premises, or any income, excess profits,,
or revenue tax of Landlord.
ARTICLE V
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Taxes and Assessments
---------------------
V.1 Tenant shall pay as additional rent to Landlord, in addition to
the rent otherwise payable to the Landlord hereunder, Tenant's proportionate
share of the real estate taxes paid or payable by Landlord with respect to the
land and building of which the Demised Premises is a part, Tenant's
proportionate share of said taxes shall be determined by multiplying the taxes
payable by the Landlord by a fraction of which the numerator shall be the number
of square feet in the Demised Premises and the denominator which shall be the
total amount of the square feet of the building of which the Demised Premises is
a part. As soon as Landlord has paid the real property taxes as provided
herein, the Landlord shall submit a copy of the receipted tax xxxx to Tenant
together with a statement for Tenant's share of such taxes as provided in
Article 4.2. The term real property taxes shall mean and include all taxes and
assessments, special or otherwise levied upon the Demised Premises if any
portion of the term of this Lease shall consist of a portion of a calendar year,
Tenant's prorated share of the taxes for such portion of such year shall be
equitably prorated based upon the number of months consisting of such portion of
such year to the entire calendar year.
ARTICLE VI
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Utility Charges; Common Area Maintenance; Etc.
---------------------------------------------
VI.1 Tenant shall pay or cause to be paid all charges for water, gas,
sewer, electricity, light, heat, air conditioning, power, telephone, fire
protection waste pickup, or other services used, rendered or supplied solely to
Tenant in connection with the Demised Premises and shall contract for the same
in Tenant's own name. Any charges that cannot be actually calculated separately
will be prorated in relation to footage occupied by Tenant of the entire
building.
VI.2 Tenant shall pay as additional rent its proportionate cost of all
expenses, reasonably relating to the repair and maintenance in good condition of
the Demised Premises and complex grounds, which complex grounds are described in
Exhibit "B", which is attached to and incorporated by reference into this Lease.
Tenant's proportionate share of said expenses shall be determined by multiplying
the expenses payable by the Landlord by a fraction of which the numerator shall
be the number of square feet in the Demised Premises and the denominator which
shall be the total amount of the square feet of the building of which the
Demised Premises is a part. Such costs shall be paid monthly based upon the
prior year's actual expenses, Tenant, however, shall provide at its own cost the
landscaping, mowing, hedging, and parking lot sweeping of the entire common
area; provided however, that such maintenance shall be satisfactory to Landlord.
If Landlord in its reasonable discretion, determines that Tenant's maintenance
is unsatisfactory, then upon written notice, Landlord shall cause such common
area maintenance to be performed and Tenant shall pay its prorata portion.
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ARTICLE VII
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Hold Harmless
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VII.1 Tenant covenants and agrees that, with the exception of liability
deriving from fault or neglect by Landlord, its agents and assigns, and
liability for which Landlord is a named insured, Landlord shall not at any time
or to any extent whatsoever be liable, responsible, or in any way accountable
for any loss, injury, death or damage to persons or property which at any time
may be suffered or sustained by Tenant or by any person whomsoever may at any
time be using, occupying or visiting the Demised Premises, or be in, on or about
the same, whether such loss, injury, death or damage shall be caused by or in
any way result from or arise out of any act, omission or negligence of Tenant or
of any occupant, subtenant, visitor or user of any portion of the Premises, and
Tenant shall forever indemnify, defend, hold and save Landlord free and harmless
of , from and against any and all claims, liability, loss or damage whatsoever,
including attorneys' fees, on account of any such loss, injury, death or damage.
ARTICLE VIII
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Insurance
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VIII.1 Landlord shall, throughout the term of this Lease, keep
constantly insured against loss or damage by earthquake and fire, and those
perils included from time to time in the so-called Florida form of extended
coverage insurance endorsement including vandalism and malicious mischief, all
buildings and improvements which may from time to time be upon or a part of the
Demised Premises, in an amount equal to the full replacement cost as determined
by Landlord. Tenant shall pay as additional rent to the Landlord, Tenant's
proportionate share of the cost of the insurance to be carried pursuant to this
Article 8.1, Tenant's proportionate share of the cost thereof to be determined
by multiplying the annual premium cost for said policy or policies by a
fraction, of which the numerator shall be the number of square feet in the
Demised Premises and the denominator which shall be the total amount of the
square feet in the building of which the Demised Premises is a part, and the
resulting figure therefore being the amount that Tenant shall pay to the
Landlord monthly pursuant to Article 4.2 or at such time as a statement is
rendered by Landlord to Tenant of the amount due Landlord as Tenant's
proportionate share of said insurance costs. Such insurance shall have attached
thereto such form of lender's loss payable endorsement as any institutional
lender to Landlord may require.
VIII.2 Landlord and Tenant agree that if the building and improvements
at any time forming a part of the Demised Premises shall be damaged or destroyed
by fire, vandalism, or malicious mischief, or extended coverage endorsement
perils, or if any of Tenant's fixtures, furniture, merchandise or other
property, real or personal, be damaged or destroyed from any cause covered by a
fire insurance policy obtained by Tenant, then and to the extent allowable
without invalidating such insurance, and whether or not such damage or
destruction was caused by the negligence of the other party, neither party shall
have any liability to the other nor to any insurer of the other for or in
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respect of such damage or destruction; and, if obtainable, each party shall
require all policies of fire or other insurance carried by such party during the
term of this Lease upon the Demised Premises or contents thereof or therein to
be endorsed with a provision in and by which the insurer designated therein
shall waive its right of subrogation against the other party.
VIII.3 During the entire term of this Lease, Tenant, at Tenant's sole cost
and expense, shall procure and maintain in full force and effect general
property and personal injury liability insurance in the minimum amount of Two
Million and no/100 Dollars ($2,000,000.00) insuring against all liability of
Tenant with respect to the Demised Premises or arising out of the maintenance,
use or occupancy thereof. All such insurance shall insure the performance by
Tenant of the indemnity agreement as to liability for injury to or death of
persons and injury to or damage to property in Article VII contained herein; the
limits of said policies shall not limit the liability of Tenant under this
Lease. In the event that either party hereto shall at any time deem the limits
of any such liability insurance then carried to be insufficient, the parties
shall endeavor to agree upon the proper and reasonable limits for such insurance
then to be carried. If the parties shall be unable to agree thereon, the
reasonable limits for such insurance shall be determined by an impartial third
person knowledgeable of insurance risk matters, selected by the parties, or
should they be unable to agree upon a selection of an impartial third persons
the impartial third person shall be chosen by the Presiding Judge of the Circuit
Court of orange County, Florida, upon application by either party (with notice
to the other party) of the time and place of application and the decision of
such impartial third person as to such limits then to be carried shall be
binding upon the parties. Such insurance shall be carried with the limits as
thus agreed upon or determined until such limits shall again be changed pursuant
to the provisions of this paragraph. The expenses of such determination shall be
borne equally between Landlord and Tenant.
VIII.4 All of the insurance provided for under this Article VIII and all
renewals thereof shall be issued by such good, responsible and standard
companies authorized as to do business in Florida and in such form and substance
as are reasonably approved by Landlord. The policy or policies of insurance
provided for in Article 8.1 hereof shall be payable to Landlord, or to the owner
and holder of any encumbrance of record on the Demised Premises, and Tenant
agrees to endorse any check which might be made payable jointly to Landlord and
Tenant by the insurance company in connection with such policy. Tenant agrees to
comply with any reasonable request of the insurance carrier providing insurance
described in Article 8.1, if the failure to comply therewith will cause
cancellation of such insurance. All insurance obtained in accordance with
Article 8.3 shall be carried in the name of the Tenant and the Landlord shall be
designated in the policy as an additional insured party. All policies provided
for in this Article VIII shall expressly provide that the policy shall not be
canceled or altered without thirty (30) days prior written notice to the other
party, Neither Landlord nor Tenant shall do or permit to be done anything which
will invalidate the insurance policies provided for in this Article. Upon the
issuance thereof each such policy or a duplicate thereof required hereunder
shall be delivered to the other party hereto. Tenant shall have the right to
review the premium rates from time to time respecting all insurance provided for
herein and to substitute carriers charging more competitive rates for the
coverage upon Landlord's approval, shall not be unreasonably withheld. Tenant
shall obtain such fire insurance and other insurance on Tenant's fixtures,
furniture and other property, real or personal, as Tenant deems appropriate, and
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with which Landlord shall not otherwise be concerned.
ARTICLE IX
----------
Repairs, Maintenance, Alterations
---------------------------------
and Removal of Equipment
------------------------
IX.1 Tenant shall have the right, subject to prior written approval of
Landlord, to make such additions alterations, changes and improvements to the
Demised Premises as Tenant shall deem necessary or desirable; however, no
addition alteration, change or improvement shall be made which will weaken the
structural strength, lessen the value of, interfere with, or make inoperable any
portion of the building or the building service equipment, or change the
architectural appearance of any building. All additions, alterations, changes
and improvements shall be made in workmanlike manner, in full compliance with
all building laws and ordinances applicable thereto, they shall become a part of
the Demised Premises, and all such improvements including all building service
equipments, shall remain in and be surrendered as a part of the Demised Premises
upon the termination of this Lease.
IX.2 Landlord shall not be obligated to maintain nor to make any repairs,
replacements, or renewals of any kind, nature or description whatsoever to the
Demised Premises or any buildings or improvements thereon, except as provided in
Articles II, XII and XIII hereof, and Tenant hereby expressly waives all rights
to make repairs at Landlord's expense under any law now or thereafter enacted,
except that if damage to or failure of any element covered by Landlord's
warranties contained in Article 2.5 hereof (relating to exterior painting and
the roof) shall require immediate attention to prevent damage to Tenant's
fixtures or equipment, Tenant, after giving reasonable written notice to
landlord and upon Landlord's failure to demand from any contractors or
subcontractors who warranted work that they repair such damage, may proceed to
make such repair at Tenant's sole cost.
IX.3 Tenant shall take good care of the Demised Premises and shall, at the
Tenant's own cost and expense, keep, maintain, and make all repairs to the same,
including but not limited to maintenance and repair of all roofs, interior and
exterior walls, floors, carpeting, windows, glass, doors, plumbing, pipes,
electrical systems, heating and air conditioning, equipment, machinery, and
lighting systems, except for usual and ordinary wear and tear by reasonable use
and occupancy. Tenant shall comply with and abide by all federal, state, county,
municipal, and other governmental statutes, ordinances, laws, and regulations
affecting the Demised Premises, the improvements thereon, the business to be
conducted therein and thereon by Tenant, or any activity or condition on or in
the Demised Premises, and if any improvements to the Demised Premises shall be
required by applicable law, Tenant shall make such improvements. Tenant further
agrees that Tenant shall not commit or permit waste upon the Demised Premises.
ARTICLE X
---------
Inspection of Premises by Landlord
----------------------------------
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X.1 Tenant agrees to permit Landlord and the authorized representatives of
Landlord to enter the Demised Premises at all reasonable times during usual
business hours for the purpose of (a) inspecting same, and (b) making such
repairs or reconstruction to the Demised Premises required by or permitted to
Landlord, and (c) performing any work therein that may be necessary by reason of
Tenant's default under the terms of this Lease. Nothing herein shall imply any
duty upon the part of Landlord to do any such work which, under the provisions
of this Lease Tenant is required to perform, and the performance thereof by
Landlord shall not constitute a waiver of Tenant's default in failing to perform
the same. Landlord may, during the progress of any work an the Demised premises,
keep and store upon the parking area of or within the Demised Premises all
necessary materials, tools and equipment. Landlord shall not in any event be
liable for any inconvenience, annoyance, disturbance, loss of business, or other
damage sustained by Tenant while making such repairs or the performance of any
such work on the Demised Premises, or on account of bringing materials, supplies
and equipment into or through the Demised Premises during the course thereof,
except that Tenant's rental and other payment obligations hereunder shall xxxxx
to the extent Tenant is prevented from using all of the Demised Premises until
such work shall be completed. Provided Tenant is in default, as defined in
Section 15.1 hereof, with respect to specified repairs or maintenance, in the
event Landlord makes any such repairs or maintenance which Tenant has failed to
do or perform, the cost thereof shall constitute additional rent and shall be
paid to Landlord with the next installment of fixed monthly rental hereunder.
X.2 Upon at least twenty-four (24) hours notice, Landlord is hereby given
the right during usual business hours to enter the Demised Premises and to
exhibit the same for purpose of sale or mortgage, and during the last twelve
(12) months of the term of "his Lease to exhibit the same to any prospective
tenant. Landlord shall not unnecessarily disrupt Tenant's business when entering
the Demised Premises.
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ARTICLE XI
----------
Mechanic's Liens
----------------
XI.1 Tenant covenants and agrees to keep all of the Demised Premises and
every part thereof and all buildings and other improvements thereon free and
clear of and from any and all mechanics materialmen's and other lions for work
or labor done, services performed, materials, appliances, transportation or
power contributed, used or furnished to be used in or about the Demised Premises
for or in connection with any operations of Tenant, any alterations,
improvements, repairs or additions, which Tenant may make or permit or cause to
be made, or any work or construction by, for or permitted by Tenant on or about
the Demised Premises, and at all times Tenant shall promptly and fully pay and
discharge any and all claims upon which any such lien may or could be based; and
Tenant shall save and hold Landlord and at all of the premises and all buildings
and improvements thereon free and harmless of and from any and all such liens
and claims of liens and suits or other proceedings pertaining thereto. Tenant,
or any subtenant, assignee of Tenant, or other occupant of the Demised Premises,
covenants and agrees to give landlord written notice not less than ten (10) days
in advance of the commencement of any construction, alteration, addition,
improvements or repair to the Demised Premises in order that Landlord may post
appropriate notices of Landlord's non-responsibility. A sworn affidavit will be
provided to the Landlord by the Tenant to show all bills are paid in full.
XI.2 No mechanics' or materialmen's liens or mortgages, deeds of trust, or
other liens of any character whatsoever created or suffered by Tenant shall in
any way or to any extent affect the interest or rights of Landlord in any
buildings or other improvements on the Demised Premises, or attach to or affect
Landlord's title to or rights in the Demised Premises.
XI.3 Tenant shall have the right to contest any mechanic's lien or other
lien claim filed against the Demised Premises, provided that the Tenant shall
bond said lien so that the same no longer constitutes a lien against the real
property of Landlord and shall diligently prosecute any such contest, at all
times effectually stay or prevent any official or judicial sale of the Demised
Premises under execution or otherwise, and pay or otherwise satisfy any final
judgment adjudging or enforcing such contested lien and thereafter procure and
record satisfaction or release thereof.
-10-
ARTICLE XII
-----------
Damage or Destruction of Demised Premises
-----------------------------------------
XII.1 In the event the building or other structures on the Demised
Premises are damaged or destroyed, then Landlord shall repair and restore such
improvements then owned by Landlord to their condition prior to said damage or
destruction and this Lease shall continue in full force and effect. Landlord
shall commence such repair or rebuilding with reasonable diligence and complete
the same within one hundred eight (180) days after commencement. There shall be
an abatement of rental payable under the provisions of Article IV only by reason
of such damage or destruction or the time required to repair or rebuild in the
proportion that the part of the Demised Premises rendered usable to Tenant bears
to the whole thereof. The net proceeds, if any, of any insurance maintained, in
force by Landlord at the expense of the Tenant in accordance with the terms of
Article 8.1 hereof, with the proceeds thereof payable to Landlord or any
encumbrancer shall be applied by Landlord to the cost and expense of repair or
rebuilding such damage or destruction, subject to reasonable con ditions and
payable on the usual architect's certificates; but Landlord or any encumbrancer
holding said insurance proceeds may withhold until completion and the expiration
of the period within the time that mechanics or materialmen's liens may be filed
and until receipt of satisfactory evidence that no liens exist, an amount
reasonably necessary to insure completion of such repairs or rebuilding. If
prior to Landlord's rebuilding it is determined that such rebuilding will
reasonably take more than six (6) months, Landlord or Tenant may terminate this
Lease by thirty (30) days written notice to the other party. if Landlord shall
fail to complete its rebuilding hereunder within eight (8) months of such
damage, notwithstanding the provisions of Article 17.1 hereof, Tenant may
terminate this Lease upon notice to Landlord.
ARTICLE XIII
------------
Condemnation
------------
XIII.1 If title to all or any portion of the Demised Premises be taken by
any public or quasi-public use or authority under any statute or by right of
eminent domain, or by private purchase in lieu thereof, then the rights of the
parties to share in the condemnation award or purchase price thereby resulting
shall be governed by the provisions of this Article XIII.
XIII.2 Total Taking: Should more than 50% of the Demised Premises be
taken in such a manner as to materially interfere with Tenant's use and
occupancy thereof, then this Lease shall terminate as of the date that
possession of said Demised Premises or part thereof be taken, and Landlord shall
be entitled to (a) any amount paid for the taking of Landlord's fee interest in
the Demised Premises, and (b) any severance damages included in the award, and
(c) any amount paid for the taking of the Demised Premises except that paid for
any improvements made to the Demised Premises by Tenant which remain the
property of Tenant, and (d) any amount which represents the present worth of
rental payments to be made in the future under the provisions of this Lease
which was not included in (a) above, and none of Landlord's interests in the
above shall be subject to any diminution or apportionment whatsoever, except
that notwithstanding anything contained herein to
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the contrary, Tenant shall be entitled to compensation for the unamortized value
of any improvements made to the Demised Premises by Tenant of the area taken.
XIII.3 Partial Taking: In the event of a partial taking of more than
thirty percent (30%) of the Demised Premises which in Tenant's judgment
materially interferes with Tenant's continued use and occupancy of the Demised
Premises' Tenant shall have the right to terminate this Lease upon sixty (60)
days prior written notice to Landlord. If notwithstanding such taking, Tenant
does not elect to terminate within sixty (60) days of such taking, or in the
event of the taking of less than thirty percent (30%) of the building area of
the Demised Premises, then this Lease as to the part so taken only shall
terminate as of' the date that possession of such part of the Demised Premises
be so taken, and the fixed monthly rental and additional rental herein Provided
for shall be reduced in proportion as the square footage of the Demised Premises
so taken bears to the total Demised Premises area existing before such taking if
this Lease is not terminated as provided herein, Landlord shall replace or
repair the building facility constituting a portion of the Demised Premises by
re-installing plumbing, electrical wiring, walls and paving, if necessary, so
that said building facility shall be completely operable and an integral whole,
but at a cost to Landlord not to exceed the condemnation award received by
Landlord. If Landlord shall fail to complete such rebuilding so as to result in
an integral whole within six months of such taking, notwithstanding the
provisions of Section 17.1 hereof, Tenant may terminate this Lease upon notice
to Landlord. In the event of such partial taking Landlord shall be entitled to
(a) any amounts paid for the taking of Landlord's fee interest in the demised
premises, and (b) any severance damages included in the award and (c) any amount
paid for the taking of the Demised Premises except that paid for any
improvements made to the Demised Premises by Tenant which remain the property of
Tenant, and (d) any amount which represents the present worth of rental
payments to be made in the future under the provisions of this Lease as to the
part taken which was not included in (a) above, and none of Landlord's interests
in the above shall be subject to any diminution or apportionment whatsoever
except that notwithstanding anything to the contrary contained herein, Tenant
shall be entitled to compensation for the unamortized value of any improvements
made to the demised premises by Tenant which were taken.
XIII.4 Landlord and Tenant agree to execute all documents and assignments
necessary to carry out this Article in the event of condemnation or purchase in
lieu thereof.
ARTICLE XIV
-----------
Use of Premises - Assignments
-----------------------------
XIV.1 Tenant shall have the right to use the Demised Premises for any
lawful purpose within applicable zoning laws and regulations existing from time
to time, except as otherwise prohibited or limited in this Lease.
XIV.2 Tenant may not hypothecate this Lease without the written consent of
Landlord.
XIV.3 Tenant may assign this Lease or its rights and leasehold estate
hereunder with the written consent of Landlord first had and obtained, which
consent will not be unreasonably withheld or delayed. Tenant may without
Landlord's consent assign this Lease or sublet all or a portion of the
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Demised Premises to any corporation, partnership, trust, association or other
business entity directly or indirectly controlling, controlled by or in common
control with Tenant or to any successor by merger, consolidation or acquisition
of all or substantially all of Tenant's assets. Tenant may sublet the Demised
Premises to another party with the written consent of Landlord first had and
obtained, which consent will not be unreasonably withheld or delayed. In the
event of any assignment, subletting, or other transfer permitted under this
Lease, or otherwise occurring (voluntary or involuntary, by agreement or by
operation of law), any rent, additional rent, or other consideration, payments,
compensation, or remuneration of whatever kind or nature received by Tenant in
excess of the rent as provided in this Lease shall be and become the sole
property of Landlord. No such assignment or subletting by Tenant, unless
otherwise expressly agreed to by Landlord in writing, shall relieve or release
Tenant from the obligations to pay rent and items in the nature of rent, as
herein provided, and to do and perform all covenants and agreements herein made
by Tenant, all of which Tenant shall continue to guaranty, notwithstanding any
such assignment or subletting. Landlord reserves the right to approve any
exterior signs which an assignee or sublessee intends to place in or upon the
Demised Premises. Each assignee or sublessee acquiring this Lease by acceptance
of an assignment or transfer by operation of law shall ipso facto assume, to be
bound by, be obligated to perform, be entitled to enforce and acquire all rights
and obligations of its assignor or sub-lessor under this Lease in the event of
default of Tenant, and a subtenant is in possession Landlord at Landlord's
option may succeed to the position of Tenant as to any subtenant or subtenants
of Tenant.
ARTICLE XV
----------
Event of Default
----------------
XV.1 This Lease is made on the conditions precedent and subsequent that if
any one or more of the following events (herein sometimes referred to as a
"default" or "event of default") shall happen:
A. Tenant shall default in the due and punctual payment of fixed rent
or additional rent payable hereunder, and such default shall continue for ten
(10) days after mailing of written notice to Tenant; or
B. Tenant shall neglect or fail to perform or observe any of the
covenants herein contained on Tenant's part to be Performed or observed, and
Tenant shall fail to remedy the same within thirty (30) days after Landlord
shall have given to Tenant written notice specifying such neglect or failure (or
within such additional period, if any, as may be reasonably required to cure
such default, if it is of such nature that it cannot be cured within said
thirty-day (30) period); or
C. This Lease or the Demised Premises or any part thereof shall be
taken upon execution or by other process of law directed against Tenant, or
shall be taken upon or subject to any attachment at the instance of any creditor
of or claimant against Tenant, and said attachment shall not be discharge or
disposed of within thirty (30) days after levy thereof; or
D. Tenant shall be involved in financial difficulties as evidenced by
(a) Tenant
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admitting in writing Tenant's inability to pay Tenant's debts generally as they
become due, or (b) Tenant filing a petition in bankruptcy or for reorganization
or for the adoption of an arrangement under the Bankruptcy Act (as now or in the
future amended) or an answer or other pleading be filed by or on behalf of
Tenant admitting the material allegations of such petition, or seeking,
consenting to, or acquiescing in the relief provided for under such Act, or (c)
Tenant making an assignment of all or a substantial part of Tenant's property
for the benefit of its creditors, or (d) Tenant seeking or consenting to or
acquiescing in the appointment of a receiver or trustee for all or a substantial
part of Tenant's property or of the Demised Premises or of Tenant's interest in
this Lease, or (e) Tenant being adjudicated a bankrupt or insolvent, or (f) the
entry of a court order without Tenant's consent affecting Tenant's right to use
or occupancy of the Demised Premises, which order shall not be vacated, set
aside or stayed within 120 days from the date of entry, (provided rent is paid
during such period); or (g) the appointment of a receiver or trustee for all or
a substantial part of Tenant's property, or (h) Tenant's approving a petition
filed against it for the effecting of an arrangement in bankruptcy or for a
reorganization Pursuant to said Bankruptcy act, or for an judicial modification
or alteration of the rights of creditors; then, in any such event, Landlord
shall have the right at Landlord's election then or at any time thereafter, and
while such event of default shall continue to either:
(a) Give Tenant written notice of Landlord's intention to
terminate this Lease on the date of such notice or on any later date specified
therein, and on the date specified in such notice Tenant's right to the use,
occupancy and possession of the Demised Premises shall cease and this Lease
shall there"mon be terminated; or
(b) To the extent permitted by applicable law, with three (3)
days' notice, to re-enter and take possession of the Demised Premises or any
part thereof and repossess the same as of Landlord's former estate and expel
Tenant and those claiming through or under Tenant and remove the effects of both
or either therefrom (forcibly if necessary) without being deemed guilty of any
manner of trespass and without prejudice to any remedies for arrears of rent or
preceding breach of this Lease. Should Landlord elect to re-enter as provided in
this subparagraph (b), or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may (i)
terminate this Lease; or (ii) from time to time, without terminating this Lease,
relet the premises or any part thereof for such term or terms and at such rental
or rentals and upon such other terms and conditions as Landlord may deem
advisable, with the right to make alterations and repairs to the premises, but
reserving to Landlord the right at any time to thereafter elect to terminate
this Lease as in subparagraph (a) provided. No such re-entry or taking
possession of the premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction.
XV.2 In the event that Landlord does not elect to terminate this Lease as
permitted in subparagraph (a) of Article 15.1, but on the contrary elects to
take possession as provided in subparagraph (b) of Article 15.1, then such
repossession shall not relieve Tenant of Tenant's liabilities and obligations
under this Lease, all of which shall survive such repossession. in the event of
such repossession, Tenant shall pay the fixed rent and all additional rent and
other sums as herein
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provided up to the time of termination of this Lease (which Landlord can declare
at any time while Tenant remains in default), and thereafter Tenant, until the
end of what would have been the term of this Lease, in the absence of such
repossession (excluding any unexercised options to extend) and whether or not
the Demised Premises shall have been relet, shall be liable to Landlord for and
shall pay to Landlord as liquidated current damages:
A. The fixed rent and additional rent as herein provided which would
be payable hereunder if such possession had not occurred;
LESS
B. The net proceeds, if any, of any reletting of the Demised
Premises, after deducting all of Landlord's reasonable expenses in connection
with such reletting, including, but without limitation, all repossession costs,
brokerage commissions, reasonable legal expenses and attorneys' fees, and
reasonable expenses of preparation for remodeling for such reletting.
Tenant shall pay such current damages to Landlord on the days on which the
fixed rent would have been payable hereunder if Landlord had not repossessed,
and Landlord shall be entitled to receive the same from Tenant on each such day.
If this Lease is terminated by Landlord by reason of any default by Tenant,
whether at the time of such default or at a later date, Landlord shall be
entitled to recover from Tenant the worth at the time of such termination of the
excess, if any, of the amount of rent reserved in this Lease for the balance of
the term hereof (excluding any unexercised options to extend) over the then
reasonable rental value of the premises for the same period. It is agreed that
the "reasonable rental value" as used herein shall not exceed the amount of
rental which Landlord can then obtain as rent for the remaining balance of the
term under a written lease in the same form as this Lease.
XV.3 In the event of any such re-entry by Landlord, Landlord may, at
Landlord's option, require Tenant to remove from the premises any of Tenant's
property located thereon. If Tenant fails to do so Landlord shall not be
responsible for the care or safekeeping thereof and to the extent permitted by
applicable law may remove any of the same from the demised premises and place
the same in storage in a public warehouse at the cost, expense and risk of
Tenant with authority to the warehouseman to sell the same in the event that
Tenant shall fail to pay the costs of transportation and storage, all in
accordance with the rules and regulations applicable to the operation of a
public warehouseman's business. Any refusal by a public warehouseman to accept
personal property located in the Demised Premises upon such conditions shall be
conclusive evidence that the same is of not substantial value, and shall be an
unconditional warrant to Landlord for disposing of the same in any manner
Landlord may see fit, and without accountability for any alleged value thereof
in any and all such cases of re-entry Landlord may make any repairs in, to or
upon the Demised Premises which may be necessary, desirable or convenient, and
excluding Landlord's fault or neglect Tenant hereby waives any and all claims
for damages which may be caused or occasioned by such re-entry of any of the
aforesaid acts of Landlord or by reason of any loss or destruction or damage to
any property in or about the demised Premises or any part thereof.
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XV.4 It is expressly agreed that neither the taking of possession of the
Demised Premises nor the institution of any proceedings by way of lawful
detainer, ejectment, quiet title, or otherwise, to secure possession of said
Demised Premises, nor the re-entry by Landlord with or without the institution
of such proceedings, nor the rerenting or subletting of the Demised Premises,
shall operate to terminate this Lease in whole or in part, nor of itself
constitute an exercise of Landlord's option so to do, but only by the giving of
the written notice clearly specifying termination shall such termination be
effected.
XV.5 Tenant further covenants and agrees that if Landlord fails or
neglects for any reason to take advantage of any of the terms hereof providing
for the termination of this Lease or for the termination or forfeiture of the
estate hereby demised, or if Landlord, having the right to declare this Lease
terminated or the estate hereby demised terminated or forfeited, shall fail so
to do, any such failure or neglect of Landlord shall not be or be deemed or be
construed to be a waiver of any provision for the termination of this Lease
continuing to exist or for the termination or forfeiture of the estate hereby
demised subsequently arising, or as a waiver of any of the covenants, terms or
conditions of this Lease or of the prompt performance thereof by Tenant. None of
the covenants, terms or conditions of this Lease can be waived except by the
written consent of the party entitled to the benefits thereof.
ARTICLE XVI
-----------
Surrender of Premises
---------------------
XVI.1 Upon any termination of this Lease, whether by lapse of time,
cancellation pursuant to an election provided for herein, forfeiture, or
otherwise, Tenant shall surrender immediately possession of the Demised Premises
and all buildings and improvements on the same to Landlord in good and
tenantable repair, reasonable wear and tear, reconstruction required by reason
of condemnation, and damage from fire or other casualty excepted. If possession
be not immediately surrendered Landlord, to the extent permitted by applicable
law, may forthwith enter the Demised Premises and repossess the same for any
part thereof and expel and remove therefrom using such force as may be
necessary, all persons and property, without being deemed guilty of any unlawful
act and without prejudice to any other legal remedy available to Landlord.
Landlord shall hold Demised Premises after any such re-entry free of any right,
privilege or estate of Tenant and without any duty or obligation to Tenant in
respect of any subsequent law, reletting or disposition of the Demised Premises.
XVI.2 Upon the termination of this Lease, Tenant, if not in default
hereunder at the time, shall have the right to remove, and if directed so to do
by Landlord shall remove from the demised Premises, all furniture, furnishings,
signs, and equipment (excluding building service equipment) then installed or in
place in, on or about the Demised Premises; provided, however, Tenant shall make
all repairs to the Demised Premises required because of such removal. If this
Lease shall terminate at any time other than the time herein fixed as the
expiration of the term, and occurring not due to a default by Tenant, then
Tenant shall have a reasonable time thereafter to effect the removal
-16-
of the foregoing items, not to exceed thirty (30) days. If any of such property
shall remain on the Demised Premises after the end of the term hereof or time
allowed to remove the same, such property shall be deemed abandoned by Tenant
and it shall become the property of Landlord without any claim therein of Lessee
should Landlord so elect.
XVI.3 Upon termination of this Lease, Tenant shall surrender the Demised
Premises in a "Broom-clean" condition, and Tenant shall fill or repair any holes
or openings made by Tenant in the walls, roof or floor of the building remove
any protuberance, and perform any maintenance or repairs required of Tenant by
this Lease if directed so to do by Landlord, Tenant shall leave all improvements
affixed to the Demised Premises and all right, title and interest therein of the
Tenant shall immediately cease unless otherwise agreed to in writing.
ARTICLE XVII
------------
Strikes - War - Acts of God
---------------------------
XVII.1 The time within which Landlord or Tenant is obligated herein to
construct, repair or rebuild any buildings, improvement or other structure shall
be extended and the performance excused when the delay is occasioned by the
other party, strikes, threats of strikes, blackouts, war, threats of war,
bombing, insurrection, invasion, acts of God, calamities, civil commotion,
violent action of the elements, fire, action or regulations of any governmental
authority, state, law or ordinances, impossibility of obtaining materials,
weather conditions which impair or delay construction, or other matters or
things whether similar or dissimilar to the foregoing, beyond the reasonable
control of the obligated party.
ARTICLE XVIII
-------------
Cost of Litigation
------------------
XVIII.1 In the event that either party hereto brings any action or
proceeding against the other party for possession of the Demised Premises or for
the recovery of any sum due hereunder, or because of the breach of any covenant,
condition, or provision hereof, or for any other relief against the other party,
declaratory or otherwise, including appeals therefrom, and whether being an
action based upon a tort or contract, then the successful party in any such
proceeding shall recover from the other party, reasonable attorneys' fees and
all costs of such action or proceeding which shall be enforceable whether or not
such action or proceeding is prosecuted to final judgment, and including an
allowance for attorneys fees on appeals and rehearings. Should Landlord be made
a party to any suit or proceeding brought by any third party, arising by reason
of Tenant's use or occupancy of the Demised Premises and not being a dispute
essentially between Landlord and Tenant, then Tenant shall defend the same and
landlord therein, at Tenant's sole cost and expense, and shall hold Landlord
free and harmless from any liability, duty, obligation therein, including any
attorneys' fees of Landlord.
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ARTICLE XIX
-----------
Statement of Lease
------------------
XIX.1 Tenant agrees at any reasonable time and upon not less than 10 days
prior written request by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if modified in full force and effect as modified and
stating modifications), and the dates to which rental or other sums have been
paid in advance, it being intended that any such statement delivered pursuant to
this paragraph may be relied upon by any prospective purchase, mortgagee or
assignee. Tenant shall also deliver to Landlord, upon Landlord's reasonable
request therefor from time to time, Tenant*s latest financial statements which
are not of a confidential nature or for intercompany use only.
ARTICLE XX
----------
Rights Reserved by Landlord
---------------------------
XX.1 Landlord expressly reserves all rights in and with respect to the
land hereby leased not inconsistent with Tenant's use Of the Demised Premises as
in this Lease provided, including (without in anywise limiting the generality of
the foregoing) the rights of landlord to enter upon the Demised Premises for
itself or to give easements to others for the purpose of installing, using,
maintaining, renewing and replacing such overhead or underground water, oil,
gas, sewer, drainage, and other pipe lines, and telephone, electric, power,
television and other lines, cables and conduits as Landlord may deem desirable
in the neighborhood of the land hereby leased, whether owned by Landlord or not,
all of which pipe lines, lines and conduits shall be buried to a sufficient
depth or raised to a sufficient height so as not to interfere with the use or
stability of the building or any other improvement comprising the Demised
Premises.
ARTICLE XXI
-----------
Covenants of Quiet Employment
-----------------------------
XXI.1 Landlord does hereby covenant, promise and agree to and with Tenant
that Tenant, for so long as it is not in default hereof, shall and may at all
times peaceably and quietly have, hold, use, occupy and possess the Demised
Premises throughout the term of this lease without any litigation, suit,
trouble, molestation or eviction by Landlord or any persons claiming by or
through Landlord or claiming the Demised Premises.
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ARTICLE XXII
------------
Short Form of Lease
-------------------
XXII.1 Simultaneously with the execution hereof, the parties shall execute
a short from of memorandum of this lease agreement in such form as shall be
furnished by Landlord which shall evidence the interest of the parties hereto.
Said memorandum of lease shall be recorded only in the Public Records of orange
County, Florida, with the permission of Landlord.
ARTICLE XXIII
-------------
Subordination
-------------
XXIII.1 Tenant agrees that upon the request of Landlord, it will
subordinate this Lease to the lien of any present or future mortgage or
mortgages upon the Demised Premises, irrespective of the date of any such
mortgage or mortgages, provided that the holder of any such future mortgage
shall enter into an agreement with the Tenant that, in the event of foreclosure
by the holder of any future mortgage or assignee thereof, this Lease and the
rights of the Tenant hereunder shall continue in full force and effect and shall
not be terminated or disturbed except in accordance with the provisions of this
Lease. Tenant agrees that it will upon the request of Landlord execute,
acknowledge and deliver any and all instruments deemed by the Landlord Necessary
or desirable to give effect to or notice of such subordination. Tenant further
agrees that if it shall fail at any time to executer acknowledge, or deliver any
such instrument requested by Landlord, Landlord may, in addition to any other
remedies available to Landlord, execute, acknowledge and deliver such instrument
as the attorneys-in-fact of Tenant and in tenant's names; and Tenant hereby
makes, constitutes and irrevocably appoints Landlord as its attorney-in-fact for
such purpose. No such instrument shall alter any of the terms of this Lease. The
word "mortgage", as used herein includes mortgages, deeds of trust or other
similar instruments and modifications, consolidations, extensions, renewals,
replacements and substitutes thereof.
ARTICLE XXIV
------------
Prepaid Rent and Security Deposit
---------------------------------
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XXIV.1 As security for the faithful performance of the terms, covenants,
conditions and provisions of this lease, as well as to indemnify Landlord from
any damages, costs, expenses, real estate brokerage commissions or attorneys'
fees to which Landlord may be put by reason of any default by Tenant, Tenant
hereby agrees to deposit with Landlord, upon execution of this Lease, the sum of
SEVENTEEN THOUSAND TWO HUNDRED TWENTY-TWO AND NO/100 DOLLARS ($17,222.00) as
security deposit. If Tenant is not in default and has complied with all its
obligations under the Lease, the security deposit together with interest thereon
as hereinafter provided and any prepaid rent that has been subsequently paid to
Landlord will be returned at the termination of the Lease, less the reasonable
expense, if any, to restore the Demised Premises to the same condition as
existed at the time of the signing hereof, less normal wear and tear. Landlord
shall pay to Tenant quarterly interest upon the balance, if any, of the
foregoing amounts, at the bank savings passbook rate of interest prevailing
locally from time to time in orange County, Florida.
ARTICLE XXV
-----------
Holding over
------------
XXV.1 If Tenant remains in possession of the Demised Premises after the
expiration of the term of this Lease or any extension or renewal hereof, such
holding over shall not operate to extend or renew this Lease but shall be
construed as a tenancy from month to month which may be terminated by Landlord
upon thirty (30) days prior written notice if Tenant is then in default of this
Lease, or by either party upon at least sixty (60) days prior written notice
directed to the end of a calendar month. Such month to month tenancy by Tenant
shall be subject to all the terms and provisions of this Lease, except that the
monthly rental payable during the period of holding over shall be the rental set
forth in Article IV, plus two percent (2%) of the amount of said rent per year
increase from date of lease commencement.
ARTICLE XXVI
------------
General
-------
XXVI.1 The specific remedies to which Landlord or Tenant may resort under
the terms of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which they may be lawfully entitled in
case of any breach or threatened breach by either of them or of any provision of
this Lease.
XXVI.2 The covenants and agreement herein contained shall bind and inure
to the benefit of Landlord, its successors and assigns, and Tenant, its
successors and assigns, subject to the provisions of this Lease.
The term "Landlord", as used in this Lease, means only the owner for the
time being of the land and building containing the Demised Premises, so that in
the event of any sale of said land and building, or in the event of a lease of
said entire building, the Landlord shall be and hereby is entirely released of
all covenants and obligations of the Landlord hereunder, and it shall be deemed
and
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construed without further agreement between the parties or between the parties
and the purchaser at any such sale of the land and the building or the lessee of
the building, that said purchaser or said lessee has assumed and agreed to carry
out any and all covenants and obligations of the Landlord hereunder.
XXVI.3 Each covenant, agreement or stipulation by a party hereto shall be
performed at such party's own cost and expense, without cost or expense to the
other party. Any monetary obligations due from Tenant to Landlord which are not
paid when due shall bear interest from the due date until paid to Landlord at
the rate of ten percent (10%) per annum, and such interest shall be paid at the
time of payment of the principal obligation as a condition of remedy of such
principal obligation.
XXVI.4 Any notice or demand required or permitted by law or by an of the
provisions of this Lease shall be in writing. All notices or demands by Landlord
to Tenant shall be deemed to have been properly given when served personally on
tenant or when sent by registered or certified mail, postage prepaid, addressed
to Tenant at the address of the Demised Promises, with a copy thereof sent
simultaneously to attention: President, DATAMAX CORPORATION, Building 606, 0000
Xxxxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, with a copy to Office of
General Counsel, GTECH Corporation, 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000. All
notices or demands by Tenant to Landlord shall be deemed to have been properly
given if served personally on Landlord or when sent by registered or certified
mail, postage prepaid, addressed to Landlord at Xxxx Xxxxxxx Properties, Inc.,
Post Xxxxxx Xxx 000, 0 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000. Either party
hereto may change the place to which notices are to be given by advising the
other party in writing.
XXVI.5 The headings or captions of Articles in this Lease are for
convenience and reference only, and they in no way define, limit, or describe
the scope or intent of this Lease or the provisions of such Articles.
XXVI.6 Time is hereby expressly declared to be of the essence of this
Lease and of each and every covenant, term, condition or provisions hereof.
XXVI.7 The agreement may be executed in several counterparts, each of which
shall constitute an original.
ARTICLE XXVII
-------------
Option to Lease Additional Space
--------------------------------
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XXVII.1 Provided Tenant is not in default hereunder either on the
date it exercises the within option or on the date of commencement of leasing of
the additional premises which may be leased pursuant to this Article, Tenant
shall have the first right to lease additional space in the building of which
the Demised Premises are a part, for a term which is not less than the term
remaining on the original term of this Lease, said additional premises being in
that portion of the building known as a multi-tenancy area. The multitenancy
area consists of approximately 26,400 square feet, divided into bays of from
2400 square feet to 3600 square feet. The Tenant's right to lease said
additional premises is subject to said additional premises not being occupied
and leased by other Tenants. of Landlord. Tenant's option to lease said
additional space shall exist during the original term of this lease or the
extension thereof, if any. In the event said additional premises are available
for lease by Tenant, the rental rates shall be at the prevailing market rate
charged by Landlord and other terms for said additional space shall be as agreed
upon between Landlord and Tenant. Tenant shall be notified in writing as to the
availability of such additional space as aforesaid. Upon receipt of such
notification, Tenant shall have a period of ten (10) days in which to notify
Landlord whether Tenant will lease said additional premises pursuant to the
provisions of this paragraph and this Lease. if Tenant leases the additional
premises as provided herein, the rental shall be payable in equal monthly
installments over the period the additional premises shall be leased, together
with additional rental pursuant to the terms of this Lease and payment of all
applicable Florida State Sales Tax on said amounts.
ARTICLE XXVIII
--------------
Radon Gas Notice
----------------
XXVIII.1 RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT
EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM
YOUR COUNTY PUBLIC HEALTH UNIT. SEE SECTION 404.056, FLORIDA STATUTES.
ARTICLE XXIX
------------
Hazardous Substances Prohibit"
------------------------------
Tenant shall not utilize the Demised Premises any part thereof, to
treat, deposit, store, dispose of, or place any hazardous substance, as defined
by 41 U.S.C.A. Section 9601 (A); nor shall Tenant authorize any other person or
entity to treat, deposit, store, dispose of, or place any hazardous substance,
as defined above, on the Demised Premises or any part thereof.
In the event a release or threatened release of a hazardous substance
occurs on the Demised Premises, which subjects Landlord to liability or claims
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C.A. Section 9607, under the Florida
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Resource Recovery and Management Act, Florida Statute Section 504.727 (1983), or
under any other statutory or common law, Tenant agrees to indemnify, hold
harmless and defend Landlord from and against any such liability or claims
regardless of whether Landlord is responsible for such release or threatened
release.
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Tenant is expressly prohibited from engaging in any business in which
hazardous substances or hazardous waste are produced (either as a primary or
incidental product of Tenant's business), stored, held, brought upon,
warehoused, manufactured, or disposed of upon the Demised Premises.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first above set forth.
------------------------------------- --------------------------------------
Witnesses: LANDLORD:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
Wetness as to Landlord
By: XXXX XXXXXXX PROPERTIES,
INC.
By:
Xxxxx X. Xxxxxxxx, as its Senior
Witness as to Landlord Real Estate Management Officer
(Corporate Seal)
------------------------------------- --------------------------------------
TENANT:
DATAMAX CORPORATION
By:
Xxxxxx Xxxxx, as its President
(Corporate Seal)
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EXHIBIT "A"
-----------
(New)
XXXX 0 xxx 0, XXXXXXX XXXXXX XXXXX 1, according
to the Plat thereof, as recorded in Plat Book 8.
Page 2 p of the Public Records of Orange County,
Florida.
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