COLONIAL BANK PLAZA AT SUMMERLIN CENTER PROFESSIONAL PARK OFFICE BUILDING LEASE
EXHIBIT 10.6
COLONIAL BANK PLAZA
AT XXXXXXXXX CENTER PROFESSIONAL PARK
THIS LEASE is made as of the 31st day of January, 2002, by and between Xxxxxx, Ltd., a Florida limited partnership ("Landlord"), and XxxxXxxx.xxx, a Nevada corporation authorized to transact business in the State of Florida ("Tenant").
1.1
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FUNDAMENTAL LEASE PROVISIONS. Certain fundamental provisions are presented in this Section in summary form to facilitate convenient reference by the parties.
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(a)
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Tenant's Trade Name: XxxxXxxx.xxx
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(b)
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Anticipated Commencement Date: November 30, 2002
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(c)
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Term: Ten (10) years
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(d)
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Suite Number: 3rd, 4th and 5th Floors
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(e)
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Permitted Use: Corporate offices and headquarters
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(f)
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Size of Premises: 32,820 rentable sq. ft. (10,940 rentable sq. ft. per floor)
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(g)
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Annual Base Rent: $443,070.00. Annual Base Rent is based on an average rate of $13.50 per rentable sq. ft. for the initial Lease Year, as set forth in Section 4.1.
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(h)
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Annual Rental Increase: Three (3%) percent. See Section 4.2.
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(j)
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Tenant Estimated Pro Rata Share: 32,823 sq.ft./51,653 sq.ft. (i.e. 63.545%), subject to the limitations set forth in Section 4.3.
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(k)
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Security Deposit: $100,000.00
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(l)
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Initial Tenant Improvements. See Section 7.1 below.
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1.2
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AGREEMENT. In consideration of the rent and other sums payable to Landlord hereunder and the covenants and agreements to be observed and performed by Tenant, Landlord hereby Leases to Tenant, and Tenant hereby rents from Landlord, the Premisesfor the Term, at the rental and upon the conditions and agreements hereinafter set forth.
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2.
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3.
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4.4
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PAYMENT OF ESTIMATED ADDITIONAL RENT. Within sixty (60) days after the end of each calendar year, Landlord shall deliver to Tenant a statement setting forth the actual Common Area Maintenance Expenses expended by Landlord during the previous calendar year. In the event that the amounts paid by Tenant during the course of the calendar year are less than Tenant's Pro Rata Share of the actual expenses, then Tenant shall, within thirty (30) days after receipt of the annual statement, pay the entire amount of the deficiency, and thereafter the monthly installment of Additional Rent shall be adjusted accordingly for the current calendar year to more closely approximate the expected actual Additional Rent. In the event that the amounts paid by Tenant during the course of the calendar year are more than Tenant's Pro Rata Share of the actual Common Area Maintenance Expenses, then Tenant shall be entitled to a credit against the amount of Base Rent and Additional Rent next due under the Lease. Landlord reserves the right to revise the estimate of Common Area Maintenance Expenses, at any time during the course of the year, and from time to time, to more closely approximate the actual Common Area Maintenance Expenses incurred by Landlord during the course of the year. Tenant shall pay to Landlord, without notice or demand, on the first day of each month during the Term of this Lease, the monthly installment of estimated Common Area Maintenance Expenses, as set forth in the most recent statement received by Tenant from time to time continuing throughout the Term of this Lease.
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4.7
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SECURITY DEPOSIT.
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4.7.1
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Tenant has deposited the Security Deposit with Landlord, as set forth in Section 1.1. The Security Deposit shall be held by Landlord as security for the faithful performance by Tenant of all the terms of this Lease to be observed and performed by Tenant. Tenant shall be entitled to interest on any unapplied portion of the Security Deposit at the rate of three (3%) percent per annum. The Security Deposit shall not be mortgaged, assigned, transferred or encumbered by Tenant, and any such act on the part of Tenant shall be without force and effect and shall not be binding upon Landlord. The Security Deposit shall not constitute prepaid Rent or liquidated damages, but may be applied by Landlord to other amounts due under this Lease.
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4.7.2
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If any of the Rent herein reserved or any other sum payable by Tenant to Landlord shall be overdue and unpaid or should Landlord make payments on behalf of the Tenant, or Tenant shall fail to perform any of the terms of this Lease, or Tenant or any of its agents, employees, or customers, shall physically damage the Premises and such damages shall not have been corrected, then Landlord may, at its option and without prejudice to any other remedy which Landlord may have on account thereof, appropriate and apply the entire Security Deposit or so much thereof as may be necessary to compensate Landlord toward the payment of Rent or Additional Rent or loss or damage sustained by Landlord due to such breach on the part of Tenant; and Tenant shall, within five (5) days of written demand, deposit cash with Landlord to restore the Security Deposit to the original amount. Should Tenant comply with all of the terms and provisions of this Lease, including without limitation, the obligation to promptly pay all of the Rent as and when due hereunder, and provided that Tenant vacates the Premises in the condition required hereunder at the end of the Term, then Landlord shall return the Security Deposit to Tenant within fifteen (15) days after the end of the term of this Lease or any extension hereof.
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5.
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COMMON AREAS.
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5.1
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USE OF COMMON AREAS. Tenant, its guests, visitors, employees and business invitees shall have the non-exclusive right to use the common areas, including sidewalks, driveways, parking areas, service roads, and loading facilities within the Office Building, together with such other facilities as may be designated from time to time by Landlord (collectively referred to as the "Common Areas"), in common with other persons entitled to the use thereof, and provided, however, that use of the Common Areas shall be subject to the Rules and Regulations for the use thereof as may be reasonably prescribed by Landlord from time to time. Landlord reserves the right to designate visitor parking areas, to grant exclusive use of the Common Area during certain time periods when deemed by Landlord to be in the best interest of the Office Building as a whole, provided, however, such exclusive use of the Common Areas shall be on a temporary basis and shall not interfere with Tenant's business operations or use of the Premises.
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5.2
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COST OF MAINTENANCE. Tenant shall reimburse Landlord for Tenant's Pro Rata Share of all Common Area Maintenance Expenses. The term "Common Area Maintenance Expenses" shall mean the total cost and expenses incurred by or on behalf of Landlord in connection with the administration, operation, maintenance, and repair of the Office Building, including without limitation, the cost of cleaning, maintaining and repairing all portions of the Common Area; all real and personal property taxes and assessments (including without limitation waste collection, extraordinary or special assessments, and all costs and fees, including reasonable attorneys' fees, incurred by Landlord in contesting or negotiating the same with public authorities subject to Tenant's reasonable approval) levied, imposed, or assessed upon the Office Building during each Lease Year (collectively, "Taxes"), except that Taxes shall not include any sales or use taxes, income taxes or other taxes on the income received by Landlord from the operation of the Office Building; premiums for public liability insurance, casualty insurance, worker's compensation insurance and such other insurance coverage as Landlord may from time to time determine to be necessary or appropriate; painting, facade maintenance, lighting, exterior maintenance and roof repairs; repair and resurfacing of all parking areas and sidewalks; maintenance, repair and replacement of all heating, ventilation and air conditioning systems; gardening and landscaping; sign maintenance; electricity; water, sewer, removal of trash, rubbish, garbage and other refuse; security; depreciation or rental on machinery or equipment used in such maintenance; the cost of personnel to implement such services; legal fees, accounting fees and property management fees; and such other expenses which, according to generally accepted accounting principles would be considered to be common area maintenance expenses. Common Area Maintenance Expenses shall not include any leasing commissions paid by Landlord, any tenant improvements or other amounts expended by Landlord on behalf of any individual tenant or for which Landlord would be entitled to reimbursement from any individual tenant or any portion of principal or interest paid by Landlord in connection with any mortgage loan Office Building. Notwithstanding anything to the contrary set forth above, the following items are specifically excluded from Common Area Maintenance Expenses: (i) repairs or other work occasioned by fire, windstorm, or other casualty of an insurance nature or by exercise of eminent domain, to the extent covered by insurance or condemnation proceeds, (ii) depreciation and amortization except for items specifically included above; (iii) items of a capital nature, including, but not limited to, capital improvements, alterations or replacements, except to the extent that such capital improvements, alterations or replacements are required by law or reduce the operating expenses of the Office Building, in which event the total capital expenditure shall be amortized over the expected useful life of the improvement; (iv) expenses in connection with services or benefits of a type which are not provided to Tenant but which are provided to another tenant or occupant whether or not reimbursable by such other tenant; (v) costs incurred due to violation by Landlord or any other tenant of the terms and conditions of any other lease or agreement; (vi) any costs, fines, or penalties incurred due to violation by Landlord of any governmental rule, law or regulation or the noncompliance of the Office Building with any rule, code, law or regulation; (vii) costs of sculpture, paintings or works of art; (viii) costs of correcting structural or other defects in any part of the Office Building; (ix) costs relating to the testing, monitoring, control or renewal of any hazardous substances; (x) attorneys fees and other costs in connection with negotiating and drafting other leases within the Office Building, or in connection with any disputes arising in connection with any lease or other tenant or occupant of the Office Building; (xi) Landlord's general overhead and administrative expenses not relating directly to management and operation of the Office Building; (xii) advertising and promotional expenses incurred with respect to leasing any part of the Office Building; (xiii) bad debt and uncollected rent; and (xiv) premiums for business interruption or rent interruption insurance. Any administrative and/or management fees shall not exceed the fee that would be charged by an independent third party management company for comparable services for office buildings of comparable size and quality in Xxx County, Florida.
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5.3
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ALTERATIONS. Landlord reserves the right to make alterations, additions, changes, reconfigurations or improvements to the Common Areas including, without limitation, the main lobby, parkingareas, driveways, sidewalks and entrances to the Office Building; provided that Landlord makes reasonable accommodations to provide Tenant with unimpeded access to the Premises. No alteration, addition, change, reconfiguration or improvement shall in any event be deemed to be a Common Area Maintenance Expense. Tenant's consent shall not be required with respect to any such alterations, additions, changes, reconfigurations or improvements.
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6.2
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6.2.1
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Landlord shall install a "XxxxXxxx.xxx" sign on the exterior facade of the Office Building and on any pylon or monument sign for the Office Building, at Tenant's expense, as shown on the Signage Plan attached as Exhibit "F" hereto. Tenant's signage shall be the maximum size allowable by the City of Ft. Xxxxx. subject to Landlord's approval, which will not be unreasonably withheld, delayed or conditioned. Landlord agrees that no other signs, except for Tenant's and one other tenant of the Office Building shall be placed on the exterior facade of the Office Building during the term of the Lease. If Tenant vacates the 3rd and 4th floor pursuant to the Relocation Option, as described in the Addendum to Lease, which is attached hereto, then Landlord shall have the right to remove Tenant's signage.
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6.2.2
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Tenant shall be permitted to maintain signage on the Office Building directories and on the entrance to its Premises, provided all such signs shall be uniform in appearance, as approved by Landlord. Landlord shall also list Tenant on any building directory sign installed by Landlord in the lobby of the Office Building and on the floor of the Office Building on which Tenant's Premises are located.
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7.
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TENANT IMPROVEMENTS; ALTERATIONS, REPAIRS, AND MAINTENANCE.
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7.1
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INITIAL TENANT IMPROVEMENTS. Landlord shall, at Landlord's expense, construct the initial tenant improvements (the "Initial Tenant Improvements") for the Premises, on behalf of Tenant, in accordance with the plans and specifications prepared by Design 2000, Inc., which have been separately initialed by the parties (the "Plans"). No further changes shall be made to the planned construction, except with the written consent of Landlord and Tenant, and any such change shall be performed at Tenant's expense. Landlord shall be responsible for obtaining all permits that may be required to construct the Initial Tenant Improvements. Landlord shall endeavor to keep Tenant reasonably apprised of the status of the construction and the Anticipated Completion Date. Upon completion of the Initial Tenant Improvements, and prior to delivery of possession of the Premises to Tenant, Landlord shall give notice to Tenant to examine the Premises, with Landlord's representative, at the time specified in such notice. Upon completion of the inspection, Tenant shall sign and give to Landlord a statement setting forth any items that the parties agree are incomplete or otherwise deviate from the Final Plans. Landlord shall complete or correct any items that Landlord agrees are incomplete or insufficient within a reasonable period of time after the date that Tenant takes possession of the Premises.
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7.2
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SUBSEQUENT ALTERATIONS. Upon completion of the Initial Tenant Improvements, Tenant shall have the right, from time to time, to paint and redecorate the interior of the Premises without Landlord's consent. Any additions, alterations, partitions, changes, or improvements in or to the Premises, or any part thereof, shall require the prior written consent of Landlord, such consent not to be unreasonably withheld, and shall be performed only by licensed contractors approved, in advance, by Landlord, such approval not to be unreasonably withheld. Tenant shall not have the right to make any additions, alterations, partitions, changes, or improvements that affect the structure, structural strength, or outward appearance of the Premises or the building. Tenant shall submit to Landlord plans and specifications for such work at the time approval is sought. Any additions, alterations, changes, or improvements made in or to the Premises by Tenant shall be in compliance with all insurance requirements and regulations and ordinances of governmental authorities and shall, upon the expiration or sooner termination of the Term, become the property of Landlord unless removed by Tenant in Tenant's discretion. In the event Tenant elects to remove any such addition or improvement, Tenant shall promptly repair any damage to the Premises resulting from such removal.
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7.3
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REPAIRS BY LANDLORD. Landlord agrees to keep and maintain in good order and repair in a first class condition the roof, structural components, and exterior walls of the Premises, all heating, ventilation, and air conditioning systems (HVAC), landscaping, parking areas, and Common Areas. Landlord gives to Tenant exclusive control of the Premises and shall be under no obligation to inspect the Premises. Tenant shall at once report in writing to Landlord any defective condition known to Tenant that Landlord is required to repair pursuant to this Section 7.3. Landlord's obligation to repair is expressly limited to those items set forth in this Section 7.3.
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7.4
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REPAIRS BY TENANT. Tenant shall, at its own cost and expense, keep and maintain the Premises and appurtenances thereto and every part thereof, in good order and repair, with the exception of those portions of the Premises to be repaired by Landlord pursuant to Section 7.3 hereof. Without limiting the foregoing, Tenant agrees to keep in good order and repair and to replace as needed all fixtures pertaining to water, sewer, electrical and sprinkler systems (if any) and Tenant shall be liable for any damage to such systems. All damage or injury to the Premises, the building, or the Common Areas caused by the act or negligence of Tenant, employees, agents, contractors, invitees or licensees, shall be promptly repaired by Tenant at its sole cost and expense and to the satisfaction of Landlord to the extent the same is not covered by proceeds of insurance carried by Landlord. Landlord may make such repairs that are not promptly made by Tenant and charge Tenant for the cost thereof, and Tenant hereby agrees to pay such amounts on demand as additional rent hereunder.
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7.5
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RUBBISH REMOVAL. Tenant shall keep the Premises clean and will remove all garbage and rubbish from the Premises. Tenant shall not burn any materials of any kind upon the Premises or Common Areas. Tenant agrees to keep all accumulated garbage and rubbish in covered containers and to have same removed regularly and in no event less frequently than as required by the Rules and Regulations. Should Tenant fail to abide by its obligations on this Section, then Landlord may, in addition to any other rights and remedies, cause the same to be done for and on account of Tenant, and Tenant hereby agrees to pay the expense thereof on demand as Additional Rent.
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7.6
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COMMON HALLWAYS. Tenant shall neither encumber nor obstruct the common hallways of the Office Building nor allow the same to be obstructed or encumbered in any manner.
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8.
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TENANT'S PROPERTY.
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8.1
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TAXES ON LEASEHOLD. Tenant shall pay prior to delinquency all taxes, both real and personal, assessed against or levied upon the leasehold and upon its fixture, furnishings, equipment, leasehold improvements, and all other personal property of any kind owned by or used in connection with the Premises by Tenant.
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8.2
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INDEMNITY.
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8.2.1
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Tenant shall indemnify and hold harmless Landlord from any liability, loss, claim or damage and expense, including attorney's fees and costs in settlement, at trial and on appeal, in connection with loss of life, personal injury or property damage arising from any occurrence in, upon, at or from the Premises or the common areas, occasioned wholly or in part by any act or omission of Tenant, its employees, agents, contractors, invitees or licensees to the extent such liability, loss, claim, damage or expense is not covered by proceeds of insurance.
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8.2.2
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Tenant shall store its property in and shall occupy the Premises and all other portions of the Office Building at its own risk, and hereby releases Landlord, to the full extent permitted by law, from all claims of every kind resulting from loss of life, personal injury or property damage occurring on the Premises, excluding only the gross negligence or willful misconduct of Landlord, its employees, agents or contractors. |
8.2.3
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Landlord shall not be responsible or liable to Tenant for any loss or damage to either the person or property of Tenant that may be occasioned by or through the acts or omissions of tenants occupying any other portions of the Office Building or the acts or omissions of any other person or entity, excluding only Landlord's employees, agents and contractors.
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8.2.4
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Landlord shall not be responsible or liable for any injury, loss or damage to any person or to any property caused by or resulting from bursting, breakage, leakage, steam, running, backing up, seepage, or the overflow of water or sewage in any part of said premises or for any injury or damage caused by or resulting from acts of God or the elements, or for any injury or damage caused by or resulting from any defect or negligence in the occupancy, construction, operation or use of any of said Premises, building, machinery, apparatus or equipment by any occupant of the Premises other than Landlord, its employees, agents and contractors.
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8.2.5
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Tenant shall give prompt written notice to Landlord in case of any fire or other casualty or accident in or about the Premises or the Office Building, or of any defective or dangerous conditions of which Tenant may become aware.
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9.1.3
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WORKER'S COMPENSATION AND EMPLOYER LIABILITY COVERAGE. Worker's compensation and employer liability coverage, as required by law.
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9.2
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EVIDENCE OF INSURANCE. All insurance coverage required to be maintained by Tenant hereunder shall be maintained with insurance companies authorized to do business in the State of Florida and reasonably acceptable to Landlord. All policies shall name Landlord as an additional insured and shall require that Landlord be provided with at least thirty (30) days prior written notice of any modification or cancellation. Tenant shall deliver duplicate original policies or certificates thereof to Landlord upon execution of this Lease, and thereafter Tenant shall deliver renewal policies or certificates to Landlord not less than fifteen (15) days prior to the expiration of the policies of insurance. The failure of Tenant either to effect said insurance in the names herein called for or to pay the premiums therefor or to deliver said policies or certificates to Landlord shall, at Landlord's option, permit Landlord to procure the insurance and pay the requisite premiums therefor on behalf of Tenant, which premiums shall be paid to Landlord with the next installment of Rent. Landlord's procurement or maintenance of such insurance on behalf of Tenant shall not be a waiver of such default.
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10.
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11.
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12.
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ASSIGNMENT AND SUBLETTING. Tenant shall not assign, mortgage or encumber this Lease, in whole or in part, without the prior written consent of Landlord, which consent shall not be unreasonably or in bad faith withheld, delayed or conditioned. Tenant shall have the right to sublease all or a portion of the Premises, with the prior written consent of Landlord, which consent shall not be unreasonably or in bad faith withheld, delayed or conditioned, provided that the proposed sublessee meets the then current reasonable credit criteria of Landlord (which credit criteria shall not be more stringent than that which is customarily utilized by similarly situated lessors of similar commercial properties in Xxx County, Florida), including, without limitation, a minimum net worth of not less than the minimum net worth of Tenant as of the Commencement Date of this Lease, with comparable business experience and reputation. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. If this Lease is assigned or if the Premises or any part thereof are occupied by any party other than Tenant in violation of this Section, Landlord may collect Rent from the assignee, or occupant and apply the net amount collected to the Rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this provision or an acceptance of the assignee, undertenant or occupant as lessee, or as a release of Tenant from the further performance by Tenant of the provisions on its part to be observed or performed herein. Notwithstanding any assignment or sublease, or Landlord's consent thereto, Tenant shall remain fully liable and shall not be released from performing any of the terms of this Lease. Tenant shall not permit any business to be operated in or from the Premises by any concessionaire or licensee without the prior written consent of Landlord, such consent not to be unreasonably withheld.
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16.
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16.1.1
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Tenant's failure to pay the Rent, including Base Rent and any Additional Rent, which default shall continue for more than ten (10) days after written notice; provided, however, that Landlord shall not be required to provide Tenant with notice of default more than two (2) times within any twelve (12) month period. Thereafter, Tenant shall be in default under this Lease if it fails to pay the Rent, including Base Rent and any Additional Rent, within ten (10) days after the date when due hereunder, without notice.
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16.1.2
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Tenant vacates or abandons the Premises or ceases doing business therein for a period of thirty (30) consecutive days;
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16.1.3
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The appointment of a receiver for all or substantially all of Tenant's property,
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16.1.4
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The voluntary filing by Tenant or any guarantor of any petition in bankruptcy or other similar petition under State law, the filing of any answer by Tenant or any guarantor admitting to insolvency or to an inability to pay its debts as they become due, or the filing of any involuntary petition against Tenant or any guarantor that is not dismissed within one hundred twenty (120) days;
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16.1.5
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The dissolution or liquidation of Tenant;
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16.1.6
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Any assignment or sublease of Tenant's interest hereunder in violation of this Lease without the prior written consent of Landlord;
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16.1.7
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The breach by Tenant of any representations and warranties set forth in this Lease;
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16.1.8
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Tenant's failure to keep and perform any other obligations set forth in this Lease within thirty (30) days after written notice from Landlord of its failure to do so;
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16.2.1
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Terminate this Lease, and all rights of Tenant hereunder, by giving not less than three (3) days written notice of termination, whereupon Landlord may re-enter upon and take possession of the Premises;
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16.2.2
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Take possession of the Premises without terminating this Lease and rent the same for the account of Tenant (which may be for a term extending beyond the Term of this Lease) in which event Tenant covenants and agrees to pay any deficiency after crediting it with the rent thereby obtained less all repairs and expenses, including the costs of remodeling and brokerage fees, and Tenant waives any claim it may have to any rent obtained on such releting which may be in excess of the Rent required to be paid herein by Tenant;
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16.2.3
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Accelerate the Tenant's obligation to pay Rent for the remaining term of the Lease;
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16.2.4
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Perform such obligation (other than payment of Rent) on Tenant's behalf and charge the cost thereof, to Tenant as Additional Rent; or
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16.2.5
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Exercise any and all other rights granted to Landlord under this Lease or by applicable law or in equity.
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29.
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REPRESENTATIONS AND WARRANTIES OF TENANT. Tenant, and the individual executing this Lease on behalf of Tenant, hereby represents and warrants and to Landlord that: (a) Tenant is a corporation, duly organized and validly existing under the laws of the State of Nevada, and qualified with the Secretary of State of the State of Florida to transact business in the State of Florida; (b) Tenant has all necessary power and authority to enter into this Lease and has all necessary licenses to conduct its business for the uses contemplated hereunder; (c) Tenant has obtained any necessary approvals of Tenant's Board of Directors and shareholders to the execution and performance by Tenant of its obligations under this Lease; and (d) this Lease constitutes a binding and enforceable obligation of Tenant and does not conflict with any provision of Tenant's organizational documents or of any other lease or other agreement to which Tenant is a party or by which Tenant may be bound.
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30.
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BROKERS. Landlord and Tenant each represent and warrant to the other that it has not dealt with, consulted or contacted any real estate broker, agent, or finder in connection with or in bringing about the leasing of the property, other than Florida Fidelity Realty Advisors, Inc. and Xxxxx & Xxxxx/VIP-D'Alessandro. Landlord agrees to pay the brokers named herein per separate agreement. Each party hereby agrees to defend, indemnify and hold the other harmless of and from any and all expense, cost, damage, loss and liability arising out of a breach of the foregoing representations, warranties and covenants by the defaulting party.
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If to Landlord:
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Xxxxxx, Ltd.
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00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
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Xx. Xxxxx, Xxxxxxx 00000
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Attention: X.X. Xxxxxx
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With a copy to:
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Xxxxxxx Xxxxxxx, P.A.
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00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
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Xx. Xxxxx, Xxxxxxx 00000
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Attention: Xxxxx X. Xxxxxxx
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If to Tenant:
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XxxxXxxx.xxx
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00000 Xxxxxxxxx Xxxxx, Xxxxx 0,
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Xx. Xxxxx, Xxxxxxx 00000
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Attention: Xxxxx X. Xxxxxxx-Xxxxxxxxx, President
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With a copy to:
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Xxxxxx Xxxxxx Xxxxxx & Xxxxxx
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0000 Xxxxxxx Xxx Xxxx., Xxxxx 000
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Xxxxxx, Xxxxxxx 00000-0000
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Attention: Xxxxx Xxxxxx
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Either party may designate such other address as shall be given by written notice.
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32.
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32.8
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GOVERNING LAW, JURISDICTION AND VENUE. This Lease shall be governed by, and construed and interpreted in accordance with, the laws of the State of Florida without regard to principles of conflicts or choice of laws. Each of the parties irrevocably and unconditionally: (i) agrees that any suit, action or legal proceeding arising out of or relating to this Lease shall be brought in the courts of record of the State of Florida in Xxx County; (ii) consents to the jurisdiction of each such court in any suit, action or proceeding; and (iii) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts.
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32.11
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"Radon is a naturally occurring radioactive gas that, when it is accumulated in buildings 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 country public health unit."
Landlord has not tested for Radon gas at the Property and therefore, makes no representation regarding the presence or absence of such gas. Tenant hereby waives any and all actions against Landlord related to the presence of such gas.
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LANDLORD
XXXXXX, LTD.,
a Florida limited partnership
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By: | Xxxxxx Corp., a Florida corporation | |
As general partner |
Xxxxx Xxxxxx
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By: |
/s/ X.X. Xxxxxx, President
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Xxxxxxx Xxxxx
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X.X. Xxxxxx, President
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Witnesses
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TENANT:
XxxxXxxx.xxx,
A Nevada Corporation
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Xxxx Xxx | By: | /s/ Xxxxx X. Xxxxxxx-Xxxxxxxxx | ||
Xxxx Xxxxxxx |
Xxxxx X. Xxxxxxx-Xxxxxxxxx
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Witnesses
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President
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XXXXXXXX XXXX XXXXX
XX XXXXXXXXX CENTER PROFESSIONAL PARK
ADDENDUM TO LEASE
This Addendum to Lease is made as of the 31st day of January, 2002, by and between XXXXXX, LTD., a Florida limited partnership ("Landlord"), and Xxxxxxxx.xxx, a Nevada corporation authorized to transact business in the State of Florida ("Tenant").
Landlord and Tenant have, on this date, entered into an Office Building Lease (referred to herein as the "Lease"), pursuant to the terms of which Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from Landlord certain Premises consisting of approximately 32,820 rentable sq. ft. of space located on the 3rd, 4th and 5th floors of the Office Building known as Colonial Bank Plaza at Xxxxxxxxx Center Professional Park, to be constructed by Landlord in Ft. Xxxxx, Florida.
The parties have further agreed, as follows:
(a)
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If, at any time after the Commencement Date of the Lease, any additional space (the "Additional Space") within the Office Building shall become vacant and available for leasing to the general public, Landlord shall first offer the Additional Space to Tenant by delivering written notice to Tenant of the availability of the Additional Space. Tenant shall have ten (10) days after receipt of Landlord's notice within which to elect to lease the Additional Space at the same rental rate in effect for the Premises, based upon the then current average rental rate in effect, and on the same terms and conditions as set forth in the Lease, except that the term of the lease for the Additional Space shall expire contemporaneously with the expiration of the term of the Lease for the Premises. Further, Landlord shall have no obligation to construct any leasehold improvements on behalf of Tenant, and Tenant shall accept the Additional Space in its then current condition. Upon delivery of the Additional Space, the Lease shall be automatically amended to include the Additional Space, and each party shall, at the request of the other party, execute and deliver an amendment to the Lease to confirm the inclusion of the Additional Space.
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1
(b)
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In the event that Tenant does not timely elect to lease the Additional Space, then Landlord shall be free to offer the Additional Space for lease to any third party at a rental rate (after taking into account any rent or other lease concessions) no less than that offered to Tenant, without regard to the right of first offer granted to Tenant hereunder; provided, however, that Tenant shall retain the right of first offer for any other space within the Office Building that may subsequently become available during the term of the Lease. Nothing herein shall require Landlord to deny to any tenant the right to renew or extend its lease at the expiration of the term thereof. Further, the right of first offer set forth herein shall not apply during the last twenty-four (24) months of the Lease Term or if Tenant has, at any time, exercised either the early termination option set forth in Section 5 of this Addendum to Lease or the relocation option set forth in Section 6 of this Addendum to Lease.
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(a)
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Within sixty (60) days after the occurrence of a Triggering Event, as defined below, Tenant shall have the right to terminate the Lease as to all or any portion of the Premises, upon delivery of not less than sixty (60) days notice (the "Early Termination Date"), and thereby be released from any further obligation thereunder, upon payment to Landlord of an Early Termination Payment in an amount equal to the lesser of:
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(1)
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One-half (1/2) of the remaining Rent (including Base Rent and CAM) for the remaining term of the Lease for the portion of the Premises to be surrendered to Landlord; or
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(2)
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The sum of: (i) Rent (including Base Rent and CAM) for the twenty-four (24) months following the Early Termination Date for the portion of the Premises to be surrendered to Landlord, and (ii) Landlord's actual cost of the Initial Tenant Improvements (but not to exceed $490,000), or if Tenant has returned less than all of the Premises to Landlord, then such prorated portion of the cost of the Initial Tenant Improvements (up to a maximum total cost of the Initial Tenant Improvements of $490,000) attributable to the portion of the Premises to be surrendered to Landlord.
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(b)
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The Early Termination Payment shall be due and payable as a single lump sum payment on or before the Early Termination Date. Provided that Tenant leaves all or that portion of the Premises for which Tenant has elected to terminate the Lease in good condition, normal wear and tear excepted, and except in the event of a partial termination, the security deposit shall be returned to Tenant in accordance with the terms of the Lease.
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(c)
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For purposes of this section, the term "Triggering Event" shall mean any one or more of the following events: (i) a bona fide sale of a majority of the voting common stock of the Tenant in a single transaction; (ii) a bona fide sale of substantially all of the assets of the Tenant in a single transaction; (iii) the merger or consolidation of Tenant with another business entity resulting in a change of majority ownership; or (iv) the relocation by Tenant of all or a portion of its business operations to a geographic location other than Lee, Collier, Sarasota or Charlotte Counties, Florida.
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2
(d)
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In the event that Tenant terminates the Lease as to less than all of the Premises, the Base Rent shall be adjusted by an amount equal to the portion of the Base Rent attributable to the portion of the Premises returned to Landlord, with a corresponding adjustment in Tenant's Pro Rata Share of the Common Area Maintenance Expenses. In the event that Tenant terminates the Lease as to less than an entire floor, the portion of the Premises returned to Landlord shall consist of at least 5,000 sq. ft of contiguous space with adequate access to the common areas. Further, Tenant may terminate the Lease as to less than all of the Premises, no more than three (3) times during the term of the Lease.
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6.
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RELOCATION OPTION.
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(a)
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Tenant shall have the option, exercisable by delivery of written notice to Landlord of relocating from all or any portion of the 3rd and 4th floors of the Office Building to alternative space (the "Alternative Space"), at a lower rental rate, as follows:
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(1)
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at any time during the first three (3) Lease Years, within a building(s) to be constructed by Landlord within the Xxxxxxxxx Center Professional Park; or
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(2)
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at any time during the term of the Lease, within a building to be constructed by Landlord within a five (5) mile radius of the Premises.
The Alternative Space shall be of comparable or greater square footage as the vacated space, and each party's obligation hereunder shall be subject to the ability of the parties to reach final agreement on the plans and specifications for the Alternative Space. Tenant's notice shall identify the portion of the Premises to be surrendered to Landlord and shall identify any special needs that Tenant may have for the Alternative Space.
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(b)
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The Base Rent for the Alternative Space shall be calculated based upon the market rental rate for comparable space within the general vicinity of the Office Building (the "Market Rate"). In the event that the parties are unable to reach agreement on the Base Rent for the Alternative Space, then, at the request of either party, Landlord and Tenant shall mutually select an independent MAI appraiser to determine the Market Rate. If the parties are unable to agree upon a single appraiser, then they shall each select one appraiser, and the two (2) appraisers shall select a third appraiser to determine the Market Rate. Any appraisal costs shall be borne equally by the parties.
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3
(c)
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Upon delivery of the Alternative Space, Tenant shall have a period of thirty (30) days to vacate the portion of the Premises to be surrendered to Landlord, at which time the Base Rent shall be reduced by an amount equal to the portion of the Base Rent attributable to the portion of the Premises returned to Landlord and increased by the Base Rent attributable to the Alternative Space, with a corresponding adjustment in Tenant's Pro Rata Share of the Common Area Maintenance Expenses. Upon delivery of the
Alternative Space to Tenant, each party shall, at the request of the other party, execute and deliver an amendment to the Lease to confirm the exclusion of the portion of the Premises vacated by Tenant and the inclusion of the Alternative Space.
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(d)
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In the event that Tenant relocates less than an entire floor, the portion of the Premises returned to Landlord shall consist of at least 5,000 sq. ft. of contiguous space with adequate access to the common areas. If Landlord is not able to provide Tenant with Alternative Space within twelve (12) months after the receipt of notice from Tenant, then Tenant shall have the right to terminate this Lease as to that portion of the Premises for which Tenant has requested Alternative Space.
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(a)
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In the event that Tenant shall, at any time during the first three (3) Lease years, determine that Tenant will require any additional space, but in no event less than 5,000 sq. ft. and in no event more than 30,000 sq. ft. (the "Expansion Space"), then Tenant shall so notify Landlord. Tenant's notice shall identify the amount of Expansion Space required by Tenant and shall identify any special needs that Tenant may have for the Expansion Space. Upon receipt of Tenant's notice, Landlord shall endeavor to provide Tenant with suitable Expansion Space, reasonably acceptable to Tenant, within the Office Building or, within a building(s) to be constructed by Landlord within the Xxxxxxxxx Center Professional Park.
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(b)
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The Base Rent for the Expansion Space shall be calculated based upon the market rental rate for comparable space within the general vicinity of the Expansion Space (the "Market Rate"). In the event that the parties are unable to reach agreement on the Base Rent for the Expansion Space, then, at the request of either party, Landlord and Tenant shall mutually select an independent MAI appraiser to determine the Market Rate. If the parties are unable to agree upon a single appraiser, then they shall each select one appraiser, and the two (2) appraisers shall select a third appraiser to determine the Market Rate. Any appraisal costs shall be borne equally by the parties.
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4
(c)
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Upon delivery of the Expansion Space to Tenant, the Lease shall be automatically amended to include the Expansion Space, and each party shall, at the request of the other party, execute and deliver an amendment to the Lease to confirm the inclusion of the Expansion Space. Alternatively, Tenant shall, at the request of Landlord execute a separate lease for the Expansion Space containing terms and conditions substantially the same as the Lease.
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(d)
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If Landlord is not able to provide Tenant with the Expansion Space, within the Office Building or within Xxxxxxxxx Center Professional Park, within twelve (12) months after the receipt of notice from Tenant, then Tenant shall have the right, exercisable within sixty (60) days thereafter, to notify Landlord of its election to seek alternative space to satisfy its requirements for the Expansion Space and/or to terminate this Lease. In the event that Tenant elects to terminate the Lease, then Tenant shall return the Premises to Landlord in the condition required by the Lease, within ninety (90) days after delivery of Tenant's notice. Provided that Tenant returns the Premises to Landlord in the condition required by the Lease, Tenant shall be entitled to the return of its security deposit and shall be discharged from any further obligation under the Lease from and after the termination date.
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(e)
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To the extent that Landlord has provided Tenant with Expansion Space under this Section 7, Landlord shall be relieved of its obligation to provide Tenant with Alternative Space pursuant to Section 6. Conversely, to the extent that Tenant has exercised its right to relocate to Alternative Space pursuant to Section 6, Landlord shall be relieved of its obligation to provide Tenant with Expansion Space pursuant to this Section 7.
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5
XXXXXX, LTD.,
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a Florida limited partnership
By: Xxxxxx Corp., a Florida
corporation,as general partner
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Xxxxx Xxxxxx
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By: |
/s/ XX Xxxxxx
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XX Xxxxxx, President
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Xxxxxxx Xxxxx |
XxxxXxxx.xxx,
A Nevada Corporation
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Xxxxx Xxxxxx
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By: | /s/ Xxxxx X. Xxxxxxx-Xxxxxxxxx | ||
Xxxxx X. Xxxxxxx-Xxxxxxxxx
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Xxxx Xxxxxxx
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President
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