Exhibit 10.7
[LINCOLN PROPERTY COMPANY LOGO]
March 31, 2006
Xx. Xxxx Xxxxxx
VP, CFO
Optium Corporation
000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
Re: AMENDMENT NO. 1 TO LEASE ("Amendment") between DISCOVERY LAKES, LLC
("Landlord") and OPTIUM Corporation ("Tenant")
Dear Xxxx:
In confirmation of our conversation, the signed original of the Amendment
delivered by Xxxxxx has been accepted and signed by Landlord. Accordingly, it is
binding legally upon both parties. Xxxxxxxx is prepared to perform in accordance
with the terms thereof, and likewise expects Tenant to perform its obligations
thereunder. Nonetheless, upon confirmation by Tenant that it will perform its
obligations set forth in the Amendment, Landlord agrees to enter into a further
modification, which shall provide that:
1. The Effective Date shall be changed to April 1, 2006 (Article 9).
2. Landlord will waive the first three installments of the Buyout
described (Article 5) which will reduce the Buyout amount to
$48,000.01, as reflected on the attached Rent Table.
3. Landlord will reduce the amount of the Letter of Credit from $540,000
to $248,000 effective at the time the Letter of Credit is renewed on
May 1, 2006 (Article 7).
The new amendment shall otherwise be in such form and content as Landlord may
reasonably require. If the forgoing is acceptable to Tenant, please confirm the
same in writing at your earliest convenience. If the new amendment is not duly
entered into by the parties, the Lease dated December 28, 2000, as heretofore
amended the above referenced Amendment, shall remain in full force and effect.
Please contact me if you have any questions.
Agreed and Accepted by:
Most Sincerely, Optium Corporation
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxx Xxxxxx
------------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxx Xxxxxx
Vice President VP, CFO
Lincoln Property Company
cc: Xxxxxxxx Xxxxxxx
Xxxxxx X. Xxxx
Xxxxx Xxxxxxxx
LINCOLN PROPERTY COMPANY OF FLORIDA, INC. LICENSED REAL ESTATE BROKER
000 X. XXXXXX XXXXXX XXXXX 0000 XXXXXXX, XX 00000
TELEPHONE (000) 000-0000 FACSIMILE (000) 000-0000
Rent Table (Article 5):
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BASE RENT
LEASE YEAR $/RSF/Yr. MONTHLY ANNUAL
----------------------------------------------------------------
April 1, 2006 $14.91 $29,592.62 $29,592.62
through April 30, (1 month)
2006
----------------------------------------------------------------
May 1, 2006 $15.36 $30,485.76 $60,971.52
through June 30, (2 months)
2006
----------------------------------------------------------------
July 1, 2006 $15.36 $30,485.76 $322,371.81
through March 31, plus $5,333.33 (9 months)
2007 equals $35,819.09
----------------------------------------------------------------
April 1, 2007 $15.36 $30,485.76 $30,485.76
through April 30, (1 month)
2007
----------------------------------------------------------------
May 1, 2007 $15.82 $31,398.75 $376,784.94
through April 30,
2008
----------------------------------------------------------------
Note: the above Rates do not include CAM, HVAC maintenance and applicable Sales
Tax.
DISCOVERY LAKE
OFFICE LEASE AGREEMENT
THIS LEASE is made as of the 28th day of December, 2000 between SV
CENTRAL FLORIDA PHASE II LIMITED PARTNERSHIP, a Texas limited partnership
(hereinafter called "Landlord") and OPTIUM, INC., a Florida corporation
(hereinafter called "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
those premises (hereinafter called "Premises") shown on EXHIBIT "A" attached
hereto and made a part thereof, being located in a single story office building
(the "Building") constructed on a parcel of land (the "Property") located in
Orange County, Florida and more particularly described on EXHIBIT "B" attached
hereto and made a part hereof. The Building and Property, together with any
adjacent or nearby property and improvements thereon from time to time owned by
Landlord and operated in conjunction with the Building and Property, are
sometimes referred to in this Lease as the "Discovery Lake Complex".
PREMISES: 0000 XXXXXXXXX XXXXX
XXXXX 000
XXXXXXX, XXXXXXX 00000
RENTABLE SQUARE FEET: 30,042
1. TERM AND POSSESSION.
(a) The term of the Lease shall be for eighty-four (84) months (or until
sooner terminated as herein provided) (the "Lease Term"), beginning on the
"Commencement Date" (as hereinafter defined), except that if the date the Lease
Term begins is other than the first day of a calendar month, the term hereof
shall be extended for the remainder of that calendar month. The first lease year
("Lease Year") shall begin on the date the Lease Term commences and shall end on
the last day of the twelfth (12th) full month following the date the Lease Term
commences. Succeeding Lease Years shall each consist of a twelve (12)-month
period beginning with the first day of the first month following the end of the
prior Lease Year.
(b) The Commencement Date shall be May 1, 2001.
(c) The Premises shall be deemed substantially completed and possession
delivered when Landlord has substantially completed the work to be constructed
or installed pursuant to the plans and specifications described in the
Improvement Agreement between Landlord and Tenant of even date herewith relating
to the Premises (the "Improvement Agreement"), subject only to the completion of
items on Landlord's punch list (and exclusive of the installation of all
telephone and other communications facilities and equipment and other finish
work to be performed by or for Tenant). Tenant shall have the right prior to the
Commencement Date to enter upon the Premises to prepare same for occupancy by
Tenant, including, but not limited to, installation of telephone, data and other
telecommunication equipment, office furniture and furniture systems,
installation of security devices and locks, and other finish work to be
performed by or for Tenant.
(d) If substantial completion of the Premises or possession thereof by
Tenant is delayed because any tenant or other occupant thereof holds over, and
Landlord is delayed, using good faith efforts in Landlord's discretion, in
acquiring possession of the Premises, Landlord shall not be deemed in default,
nor in any way liable to Tenant because of such delay, and Xxxxxx agrees to
accept possession of the Premises at such time as Landlord is able to tender the
same, which date shall thenceforth be deemed the Commencement Date
notwithstanding any other provision hereof to the contrary.
(e) The taking of possession by Tenant shall be deemed conclusively to
establish that the Building, other improvements, and the Premises have been
completed in accordance with the plans and specifications and are in good and
satisfactory condition as of when possession was so taken, subject only to
latent defects of which Tenant notifies Landlord within two (2) years after the
Commencement Date.
2. MONTHLY RENTAL.
(a) Tenant shall pay to Landlord throughout the term of this Lease annual
rental as set forth below, together with any and all sales, rent and other taxes
which might be imposed thereon or on any other amounts paid or payable by Tenant
or contributed by Tenant under or in connection with this Lease or the
Improvement Agreement, payable in equal monthly rental installments payable in
advance on the first day of each month during every year of the term hereby
demised in lawful money of the United States, without deduction or offset
whatsoever, to Landlord or to such other firm as Landlord may from time to time
designate in writing. Notwithstanding the above, the first monthly installment
of rent shall be paid on or before execution of this Lease. Said rental is
subject to adjustments as provided hereinbelow. If this Lease commences on a day
other than the first day of a calendar month, the monthly rental for the
fractional month shall be appropriately prorated. The annual and monthly rental,
subject to adjustment as hereinafter provided, is as follows:
LEASE BASE RENT
YEAR $/RSF/Yr. MONTHLY ANNUAL
---------------------------------------------
One $13.25 $33,171.38 $398,056.50
---------------------------------------------
Two $13.65 $34,172.78 $410,073.30
---------------------------------------------
Three $14.06 $35,199.21 $422,390.52
---------------------------------------------
Four $14.48 $36,250.68 $435,008.16
---------------------------------------------
Five $14.91 $37,327.19 $447,926.22
---------------------------------------------
Six $15.36 $38,453.76 $461,445.12
---------------------------------------------
Seven $15.82 $39,605.37 $475,264.44
---------------------------------------------
(b) Tenant recognizes that late payment of any rent or other sum due
hereunder from Tenant to Landlord will result in administrative expense to
Landlord, the extent of which additional expense is extremely difficult and
economically impractical to ascertain. Tenant therefore agrees that if rent or
any other payment due hereunder from Tenant to Landlord remains unpaid ten (10)
days after said amount is due, the amount of such unpaid rent or other payment
shall be increased by a late charge to be paid to Landlord by Tenant in an
amount equal to five percent (5%) of the amount of the delinquent rent or other
payment. The amount of the late charge to be paid to Landlord by Tenant for any
month shall be computed on the aggregate amount of delinquent rents and other
payments, including all accrued late charges then outstanding, and shall be
deemed to be rental for all purposes hereunder. Tenant agrees that such amount
is a reasonable estimate of the loss and expense to be suffered by Landlord as a
result of such late payment by Xxxxxx and may be charged by Landlord to defray
such loss and expense. The provisions of this paragraph in no way relieve Tenant
of the obligation to pay rent or other payments on or before the date on which
they are due, nor do the terms of this paragraph in any way affect Xxxxxxxx's
remedies pursuant to Paragraph 18 of this Lease in the event said rent or other
payment is unpaid after the date due.
(c) The monthly rental payable hereunder shall be subject to adjustment
each calendar year during the term of this Lease in the following manner:
(i) Throughout the term of this Lease, Tenant shall pay to Landlord as
additional rent Tenant's proportionate share of the Direct Operating Expenses
(as hereinafter defined) incurred by Landlord in the operation of the Building
and allocated to the Premises as hereinafter set forth during each calendar year
of the Lease Term. Tenant's Proportionate Share of Direct Operating Expenses (as
hereinafter defined) shall be prorated on a daily basis using a 365-day calendar
year, as necessary for any year during which this Lease is in effect for less
than the full twelve month calendar year. Direct Operating Expenses shall be
calculated on an accrual basis. For the purpose of estimating the Direct
Operating Expenses during each year, Landlord shall reasonably estimate such
expenses (assuming full occupancy of the Building if the Building is not fully
occupied) based on the actual Direct Operating Expenses for the preceding year,
if available, any then-known cost changes or additional expenses which can be
reasonably anticipated to occur within the year for which such expenses are
estimated, Landlord's experience with similar office buildings, the costs of
contracts already entered, commercially reasonable quotes obtained, commercially
reasonable representations of providers of the services and equipment,
consultation with specialists such as insurers, and other factors a prudent
lessor would use to make a fair and accurate estimate of operating costs.
Notwithstanding anything contained in this Lease to the contrary, for purposes
of determining Direct Operating Expenses for any calendar year, in the event the
Building is not fully occupied during such calendar year, the actual Direct
Operating Expenses for such calendar year shall be increased to the amount which
Landlord reasonably estimates would have been incurred for such calendar year
had the Building been fully occupied throughout such calendar year, and the
amount so estimated shall be deemed to be the Direct Operating Expenses for such
calendar year. The estimated Direct Operating Expenses for calendar year 2001
are reflected on EXHIBIT "G" attached hereto and made a part hereof. The parties
agree that (i) the estimated Direct Operating Expenses for each calendar year
during the Lease Term shall be subject to adjustments as provided for in this
paragraph 2(c); and (ii) that, notwithstanding anything in this Lease to the
contrary, such estimate of Direct Operating Expenses is an estimate to cover
Landlord's costs of all Direct Operating Expenses allocable to the Premises as
hereinafter provided, including, but not limited to, Xxxxxx's proportionate
share of the cost of (a) real estate taxes and Building insurance; (b) water and
sewer service, systems maintenance, trash removal, property management fees; and
(c) Landlord's maintenance and repair expenses of the common areas of the
Project, including landscaping. Tenant acknowledges that electricity usage and
consumption for the Premises for lights, convenience power and operation of the
Premises' dedicated HVAC system shall be separately metered, and Tenant shall
contract for and pay directly the costs of all such electricity usage at the
Premises. Tenant shall also contract for and pay directly the cost of all
janitorial services for the Premises.
(ii) "Tenant's Proportionate Share of Direct Operating Expenses" shall
mean, for each calendar year (or portion thereof), the amount of Direct
Operating Expenses allocable to the Premises for such calendar year (or portion
thereof). Direct Operating Expenses that relate to the Building or the Property
as a whole shall be allocated to the Premises in the same proportion that the
number of rentable square feet contained in the Premises (30,042) bears to the
total number of rentable square feet contained in the Building (55,078), and
Direct Operating Expenses attributable solely to the Premises (such as
maintenance costs for
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the HVAC system serving the Premises, separately metered utility costs, and
services contracted specifically for the Premises) shall be allocated directly
to the Premises.
(iii) For purposes of this Lease, the term "Direct Operating Expenses"
shall consist of all "operating costs" (as hereinafter defined) for the
Building, and the Building's share of all operating costs for any parking,
landscaping and common areas serving the Building, and the Property (the
Building, such parking, landscaping and common areas and the Property being
hereinafter referred to collectively as the "Project"). For purposes of this
Lease, the term "operating costs" shall mean all reasonable expenses, costs and
disbursements computed, on the accrual basis, relating to or incurred or paid in
connection with the operation, maintenance and repair of the Project, including,
but not limited to the following:
a. Building personnel costs, including, but not limited to,
salaries, wages, fringe benefits, social security taxes and other direct and
indirect costs of Senior Property Manager, Engineering Manager, Building
Managers, and any other personnel engaged in the operation and maintenance of
the Project and associated overhead.
b. The cost of all supplies, tools, equipment and materials used
in the operation and maintenance of the Project (but subject to the exclusions
set forth below).
c. The cost of water, sewer, gas, heating, lighting, ventilation,
electricity, air conditioning, and any other utilities supplied or paid for by
Landlord for the Project and the costs of maintaining the systems supplying the
same, including, but not limited to, any utility and service costs incurred by
Landlord.
d. The cost of all agreements for maintenance and service of the
Project and the equipment therein supplied or paid for by Landlord, including,
but not limited to, agreements relating to security service, window cleaning,
heating, ventilating and air conditioning maintenance, Building management and
landscaping maintenance.
e. The cost of maintaining sprinkler systems, fire extinguishers
and fire hoses, systems and equipment that may be now or hereafter required by
the Americans With Disabilities Act, and the cost of all security services and
protective services or devices rendered to or in connection with the Project or
any part thereof, to the extent supplied or paid for by Landlord.
f. Insurance premiums for insurance for the Project required to
be maintained by Landlord hereunder or which a prudent owner would carry,
including, but not limited to, premiums for casualty insurance maintained by
Landlord, business interruption or rental abatement insurance, garage keeper's
insurance, and liability insurance.
g. The cost of repairs and general maintenance of the Project
(excluding repairs, alterations and general maintenance paid by proceeds of
insurance or attributable solely to tenants of the Project other than Tenant,
but including deductibles paid by Landlord), including, but not limited to: any
management fees charged by Landlord or third party managers, maintenance and
cleaning of common areas and facilities; lawn mowing, gardening, landscaping,
and irrigation of landscaped areas; line painting, pavement repair and
maintenance, sweeping, and sanitary control; removal of snow, trash, rubbish,
garbage, and other refuse; the cost of personnel to implement such services, to
direct parking, and to police the common areas; the cost of exterior and
interior painting of common areas; all maintenance and repair costs; and the
cost of maintenance of sewers and utility lines; and the cost of maintenance and
repair of the heating, ventilating and air conditioning systems serving the
Project.
h. The amortization (together with reasonable financing charges)
of the cost (including labor and materials) of capital investment items, subject
to the provisions of Paragraph 2(c)(iii)(d) on page 4 of this Lease.
i. All taxes, assessments, and governmental or other charges,
general or special, ordinary or extraordinary, foreseen or unforeseen, which are
levied, assessed, or otherwise imposed against the Project, street lights,
personal property or rents, or on the right or privilege of leasing the Project,
collecting rents therefrom or parking vehicles thereon, by any federal, state,
county, or municipal government or by any special sanitation district or by any
other governmental or quasi-governmental entity that has taxing or assessment
authority, and any other taxes and assessments, together with any interest and
penalties thereon, attributable to the Project or its operation (herein
collectively called the "Impositions"), but exclusive of federal, state and
local income taxes of Landlord, inheritance taxes, estate taxes, gift taxes,
transfer taxes, excess profit taxes and any taxes imposed in lieu of such taxes.
If at any time during the Lease Term, the present method of taxation or
assessment shall be so changed that the whole or any part of the Impositions now
levied, assessed or imposed on real estate and the improvements thereon shall be
discontinued and as a substitute therefor, or in lieu of and in addition
thereof, taxes, assessments, levies, impositions or charges shall be levied,
assessed and/or imposed wholly or partially as a capital levy or otherwise on
the rents received from the Project or the rents reserved herein or any part
thereof, then such substitute or additional taxes, assessments, levies,
impositions or charges, to the extent so levied, assessed or imposed, shall be
deemed to be included within the Impositions and the operating costs. Tenant
will be responsible for ad valorem taxes on its personal property and on the
value of the leasehold improvements in the Premises to the extent the same
exceed building standard allowances (and if the taxing authorities do not
3
separately assess Tenant's leasehold improvements, Landlord may make a
reasonable allocation of the ad valorem taxes allocated to the Project to give
effect to this sentence).
j. All assessments (if any) assessed against the Project during
the Lease Term pursuant to any protective covenants, easement agreements or
common area maintenance agreements now or hereafter of record against the
Project.
k. Fees of accountants, attorneys and other consultants,
professionals or advisors incurred by Landlord with respect to the Project, but
excluding any of such fees relating to the preparation, negotiation or
enforcement of leases or relating to any sale or financing of the Project or any
portion thereof.
l. Seasonal expenses.
Anything in this Lease to the contrary notwithstanding, Direct
Operating Expenses under this Lease shall not include:
(a) Any and all costs of improvements or alterations (i) to any
of the premises of any other tenants in the Building (other than general
maintenance and repair to any such tenant's premises which is Landlord's
responsibility under tenant leases for the Building generally), or (ii) to
any areas of the Building not presently leased or designated as leaseable
area in order to convert it into leaseable area (other than general
maintenance repair to any such areas);
(b) Expenses incurred in leasing or procuring new tenants or
renewing leases or expanding leaseholds of existing tenants (including
lease commissions, legal fees, advertising expenses, expenses of renovating
space for new or existing tenants, and construction or other allowances to
new or existing tenants);
(c) Except as provided in subparagraph (d) below, principal or
interest payments on loans secured by mortgages, or trust deeds or
assignments of rent, on the Property or Building;
(d) Costs of capital improvements, except that Direct Operating
Expenses shall include the cost of any capital improvement which (i) can be
reasonably expected to reduce any component cost included within Direct
Operating Expenses, (ii) is appropriate to replace or repair existing items
which have worn out or are in need of repair, or (iii) which are necessary
to keep the Project, Premises or Building in compliance with all present
and future governmental laws, rules and regulations applicable from time to
time thereto. Costs of capital improvements permitted to be charged as
Direct Operating Expenses hereunder shall be amortized over a reasonable
period consistent with generally accepted principles of accounting, with
interest on the unamortized amount, at the rate of the greater of eight
percent (8%) per annum or two percent (2%) per annum above the base rate of
interest charged on corporate loans at large U.S. money center commercial
banks as published in the Wall Street Journal (but in no event at a rate
which is more than the highest lawful rate allowable in the State of
Florida);
(e) Expenses for repairs or other work occasioned by fire,
windstorm or other insured casualty or resulting from the exercise of a
power of eminent domain; provided, that the amount of Landlord's insurance
deductible may be included in Direct Operating Expenses up to, but not
exceeding in any event, the amount of $50,000 per calendar year;
(f) Legal and other expenses incurred in negotiating or enforcing
the terms of any tenant lease;
(g) Ground rent or land lease obligations with respect to the
Property or Building;
(h) Wages, salaries and other compensation paid to any employee
above the grade of the highest ranking Senior Property Manager, as prorated
based upon the amount of time any such employee spends with respect to the
Project and the amount of time any such employee spends with respect to
other projects;
(i) Expenses for utility or other services for which Xxxxxxxx
receives direct reimbursement from any tenant or other party (other than
through the Direct Operating Expenses reimbursement provisions of leases);
(j) Depreciation expense, except in the form of amortized costs
of capital improvements to the extent expressly permitted in subparagraph
2(c)(iii)(d) set forth above;
(k) Any interest, fines or penalties and all related expenses
(including attorneys fees) incurred as a result of Landlord's violation of
any governmental rule, statute or authority, or any mortgage or other
instrument affecting the Property or Building, or other wrongful conduct of
Landlord; and
4
(l) Losses of rent, bad debts and any damages or settlements paid
to any tenant, prospective tenant or occupant of the Building.
(m) Promotional expenses.
(iv) Tenant acknowledges that various services and other costs
relating to the Building may be incurred in connection with the Building and one
or more other buildings within the Discovery Lake Complex. In such event, such
costs shall be appropriately allocated among the Building and such other
buildings for purposes of determining the portion of such costs to be included
in Direct Operating Expenses.
(v) Nothing contained in this Section shall imply any duty on the part
of Landlord to pay any expense or provide any service not otherwise imposed by
the express terms of this Lease.
(vi) On or about December 31 of each calendar year during the Lease
Term, Landlord shall estimate the amount of Direct Operating Expenses and
Tenant's Proportionate Share of Direct Operating Expenses for the ensuing
calendar year or (if applicable) fractional part thereof and notify Tenant in
writing of such estimate. Such estimate shall be made by Landlord in the
exercise of its discretion, and shall not be subject to dispute by Xxxxxx. The
amount of additional rent specified in such notification shall be paid by Tenant
to Landlord in equal monthly installments in advance on the first day of each
month of such ensuing calendar year, at the same time and in the same manner as
base rent.
(vii) Within One Hundred Eighty (180) days after December 31 of any
calendar year during the Lease Term for which additional rent is due under this
Section, Landlord shall advise Tenant in writing, of the amount of actual Direct
Operating Expenses for such calendar year. If the Direct Operating Expenses for
such calendar year prove to be greater than the amount previously estimated,
Landlord shall invoice Tenant for the deficiency as soon as practicable after
the amount of underpayment has been determined, and Tenant shall pay such
deficiency to Landlord within fifteen (15) days following its receipt of such
invoice. If, however, Direct Operating Expenses for such calendar year are lower
than the amount previously estimated, Tenant shall receive a credit (or in the
event the term of this Lease has then expired, Tenant shall receive a cash
refund) toward the next ensuing monthly payment or payments of the estimated
amount of Tenant's Proportionate Share of Direct Operating Expenses in the
amount of such overpayment until depleted, but in no event shall Tenant's
Proportionate Share of Direct Operating Expenses be deemed to be less than zero.
3. SECURITY DEPOSIT.
[Intentionally Omitted]
4. OCCUPANCY AND USE.
(a) Tenant shall use and occupy the Premises for general office purposes
and for no other use or purpose without the prior written consent of Landlord;
provided, however, that the Premises may be used for research and development on
semiconductor optioelectronic devices. Landlord shall have no additional
improvement or other obligations with respect to any such incidental use. Tenant
shall be responsible for and shall pay any and all costs relating to the
Premises that exceed the costs that would have been incurred if the Premises
were used entirely for general office purposes.
(b) Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or injure or annoy them, nor use or allow
the Premises to be used for any improper, immoral, unlawful, or objectionable
purposes or for any business, use or purpose deemed to be disreputable or
inconsistent with the operation of a first class office building, nor shall
Tenant cause or maintain or permit any nuisance in, on, or about the Premises.
Tenant shall not commit or suffer the commission of any waste in, on, or about
the Premises.
5. COMPLIANCE WITH LAWS.
(a) Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance, or governmental rule, regulation or requirement now in force or which
may hereafter be enacted or promulgated. Tenant shall not do or permit anything
to be done on or about the Premises or bring or keep anything therein which will
cause a cancellation of or reduction in coverage under any insurance upon the
Building in which the Premises are situated or any of its contents, and Tenant
shall at its sole cost and expense promptly comply with all laws, statutes,
ordinances, and governmental rules, regulations, or requirements now in force or
which may hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use, or occupancy of the Premises. In the event that
the rate of insurance upon the Building in which the Premises are situated is
increased as a result of Tenant's business or operations in the Premises, Tenant
shall immediately pay all increased insurance premiums resulting therefrom.
(b) Tenant shall not use, handle, store, deal in, discharge, or fabricate
any Hazardous Materials (as herein defined) on or about the Premises, except for
Hazardous Materials (i) which are of the type and do
5
not exceed the quantities listed on Exhibit "H" attached hereto and made a part
hereof, or which are similar in type and quantity to those listed on Exhibit "H"
and are used in connection with Tenant's research and development on
semiconductor optioelectronic devices, (ii) are handled, stored, and used in
accordance with the procedures set forth in Exhibit "H", and (iii) which are
stored, used and disposed of by Tenant in compliance with all applicable laws,
rules and regulations. Tenant shall indemnify Landlord (and anybody claiming by,
through, or under Landlord) from and against any and all claims, damages,
losses, costs, and expenses (including reasonable attorneys' fees and court
costs) incurred by Landlord or anybody claiming by, through, or under Landlord
as a result of the existence of any Hazardous Materials on or about the Premises
or any environmental problems relating to the Premises which are caused by or
related to the delivery, deposit or creation of Hazardous Materials on or about
the Premises during the term of this Lease. As used herein, "Hazardous
Materials" means any petroleum or chemical liquids or solids, liquid or gaseous
products, contaminants, oils, radioactive materials, asbestos, PCB's,
urea-formaldehyde, or any toxic or hazardous waste or hazardous substances, as
those terms are used in (A) the Resources Conservation Recovery Act, as amended
by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. Sections 6901 et
seq.; (B) the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. Sections 9601 et seq.; (C) the Clean Water Act, 33 U.S.C.
Sections 1251 et seq.; (D) the Toxic Substances and Control Act, 15 U.S.C.
Sections 2601 et seq.; (E) the Clean Air Act, 42 U.S.C. Sections 7401 et seq.;
(F) any and all applicable environmental laws and regulations of the State of
Florida; and (G) any and all other applicable federal, state or local law or
regulation governing hazardous substances or workplace health or safety, as such
laws may be amended from time to time.
6. ALTERATIONS; SIGNS.
(a) Tenant shall not make or suffer to be made any alterations, additions,
or improvements in, on, or to the Premises or any part thereof without the prior
written consent of Landlord, and no such alterations, additions or improvements
shall be made without the supervision of Xxxxxxxx's designated agent or
representative. All such alterations, additions, or improvements in, on, or to
said Premises, except for Tenant's movable furniture and equipment, shall
immediately become Landlord's property and, at the end of the term hereof, shall
remain on the Premises without compensation to Tenant. In the event Landlord
consents to the making of any such alterations, additions, or improvements by
Tenant, the same shall be made by Tenant, at Tenant's sole cost and expense, in
accordance with all applicable laws, ordinances, and regulations and all
requirements of Landlord's and Tenant's insurance policies, and in accordance
with plans and specifications approved by Landlord, and any contractor or person
selected by Tenant to make the same, and all subcontractors, must first be
approved in writing by Landlord, or, at Landlord's option, the alteration,
addition or improvement shall be made by Landlord for Tenant's account and
Tenant shall reimburse Landlord for the cost thereof upon demand. Upon the
expiration or sooner termination of the term herein provided, Tenant shall, upon
demand by Landlord, at Tenant's sole cost and expense, forthwith and with all
due diligence remove any or all alterations, additions, or improvements made by
or for the account of Tenant, designated by Landlord to be removed, and Tenant
shall forthwith and with all due diligence, at its sole cost and expense, repair
and restore the Premises to their original condition. Tenant agrees that
Landlord shall have the right to charge a fee for any and all construction
supervision provided by Xxxxxxxx's designated agents or representatives in
connection with any alterations, additions, or improvements to the Premises by
Tenant. Such fee, at Landlord's option, shall be either a fixed fee or a fee
calculated on an hourly basis, considering the time expended by Landlord's
agents or representatives in supervising Tenant's construction.
(b) No sign, advertisement or notice referring to Tenant shall be
inscribed, painted, affixed, or otherwise displayed on any part of the exterior
or the interior of the Building, except on the doors of offices and such other
areas as are designated by Landlord, and then only in such place, number, size,
color and style as are approved by Landlord. All of Tenant's signs that are
approved by Landlord shall be installed by Landlord at Tenant's cost and
expense. If any sign, advertisement or notice that has not been approved by
Landlord is exhibited or installed by Tenant, Landlord shall have the right to
remove the same at Tenant's expense. Landlord shall have the right to prohibit
any advertisement of or by Tenant which in its opinion tends to impair the
reputation of the Building or its desirability as a first class office building,
and upon written notice from Landlord, Tenant shall immediately refrain from and
discontinue any such advertisement. Landlord reserves the right to affix,
install and display signs, advertisements and notices on any part of the
exterior or interior of the Building. Upon the termination of this Lease,
Landlord, at Tenant's expense, shall remove all of Tenant's signs and shall
repair any injury or damage caused by such removal. At Tenant's expense,
Landlord shall install Tenant's name on a monument sign near the walkway to the
Premises, in accordance with Landlord's signage standards. At Tenant's expense,
Landlord shall install Tenant's name on a monument sign to be located along
Discovery Drive, subject to Landlord obtaining all necessary governmental and
Central Florida Research Park approvals for the construction of such sign.
Tenant may, at Tenant's expense, install its corporate name and logo (conforming
to Tenant's corporate standard graphics) adjacent to the exterior door to the
Premises, subject to compliance with Landlord's building standards for all such
signage.
7. REPAIR.
By taking possession of the Premises, Xxxxxx accepts the Premises as being
in the condition in which Landlord is obligated to deliver them and otherwise in
good order, condition and repair. Tenant shall, at all times during the term
hereof at Tenant's sole cost and expense, keep the Premises and every part
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thereof in good order, condition and repair, excepting ordinary wear and tear,
damage thereto by fire, earthquake, act of God or the elements. Tenant shall
upon the expiration or sooner termination of the term hereof, unless Landlord
demands otherwise as in Paragraph 6 hereof provided, surrender to Landlord the
Premises and all repairs, changes, alterations, additions and improvements
thereto in the same condition as when received, or when first installed,
ordinary wear and tear, damage by fire, earthquake, act of God, or the elements
excepted. It is hereby understood and agreed that Landlord has no obligation to
alter, remodel, improve, repair, decorate, or paint the Premises or any part
thereof except as described in the Improvement Agreement, and that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as specifically herein set forth.
8. LIENS.
Tenant shall keep the Premises free from any liens arising out of any work
performed, material furnished, or obligations incurred by Xxxxxx. In the event
that Tenant shall not, within ten (10) days following the recordation of any
such lien, cause the same to be released of record by payment or by causing the
lien to be transferred to a cash deposit or surety bond under the applicable
provisions of the Florida Construction Lien Act, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but not
the obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All such sums
paid by Landlord and all expenses incurred by it in connection therewith shall
be considered additional rent and shall be payable to Landlord by Tenant on
demand and with interest at the rate of four percentage points higher than the
prime commercial lending rate from time to time of SunTrust Bank in Orlando,
Florida, provided, however, that if such rate exceeds the maximum rate permitted
by law, the maximum lawful rate shall apply; the interest rate so determined is
hereinafter called the "Agreed Interest Rate". Nothing contained herein shall be
deemed to imply any agreement of Landlord to subject Xxxxxxxx's reversionary
interest in the Premises to any construction lien or other lien. Notice is
hereby given to all persons dealing with Tenant that Tenant has no power, right,
or authority to contract for the account of Landlord or subject Landlord's
reversionary interest in the Premises to any construction lien or other lien;
that Landlord shall not be liable for any labor or materials furnished or to be
furnished to Tenant on credit; and that no construction lien or other lien for
labor or materials shall attach to or affect in any fashion the reversionary
interest of Landlord in the Premises.
9. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not sell, assign, encumber or otherwise transfer by
operation of law or otherwise this Lease or any interest herein, sublet the
Premises or any portion thereof, or suffer any other person to occupy or use the
Premises or any portion thereof, without the prior written consent of Landlord
as provided herein, which consent shall not be unreasonably withheld,
conditioned or delayed, nor shall Tenant permit any lien to be placed on the
Tenant's interest by operation of law. Tenant shall, by written notice, advise
Landlord of its desire from and after a stated date (which shall not be less
than thirty (30) days nor more than ninety (90) days after the date of Tenant's
notice) to sublet the Premises or any portion thereof for any part of the term
hereof; and supply Landlord with a copy of the proposed sublease or assignment
document and such other information, financial statements, verifications and
related materials as Landlord may request or desire to evaluate the written
request to sublet. Upon receiving said notice by Xxxxxx with respect to any of
the Premises, Landlord may withhold or grant its consent to Xxxxxx's subletting
the Premises specified in said notice, which consent shall not be unreasonably
withheld, conditioned or delayed. Tenant shall, at Xxxxxx's own cost and
expense, discharge in full any commissions which may be due and owing as a
result of any proposed assignment or subletting. Xxxxxx agrees to pay to
Landlord, promptly after request therefor, the amount of all attorneys' fees
(not to exceed $1,000.00 per sublease or assignment) and expenses incurred by
Landlord in connection with any assignment or subletting issues or review of
documentation relating thereto.
(b) Any subletting or assignment hereunder by Xxxxxx shall not result in
Tenant being released or discharged from any liability under this Lease. As a
condition to Xxxxxxxx's prior written consent as provided for in this paragraph,
the assignee or subtenant shall agree in writing to comply with and be bound by
all of the terms, covenants, conditions, provisions and agreements of this
Lease, and Tenant shall deliver to Landlord promptly after execution, an
executed copy of each sublease or assignment and an agreement of said compliance
by each sublessee or assignee.
(c) Xxxxxxxx's consent to any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any subsequent occurrence.
Any sale, assignment, encumbrance, subletting, occupation, lien or other
transfer of this Lease which does not comply with the provisions of this
Paragraph 9 shall be void.
(d) For purposes of this Section, an assignment of stock, transfer of
partnership interest or transfer of other direct or indirect ownership interest
in Tenant which constitutes a controlling interest in Tenant, and a sale or
transfer of more than fifty percent (50%), in value, of the operating assets of
Tenant, shall each be deemed an assignment within the meaning of and be governed
by this Section.
(e) Notwithstanding any provision contained herein, Xxxxxx agrees that it
shall not sell, assign, encumber or otherwise transfer by operation of law or
otherwise this Lease or any interest herein, or sublet the Premises or any
portion thereof, to any tenant who currently leases space in the Building or
other
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buildings in the Discovery Lake Complex, unless space to meet such Xxxxxx's
needs is not otherwise available in the Discovery Lake Complex.
(f) If this Lease is assigned, or if the Premises or any part thereof are
sublet or occupied by anyone other than Tenant during the Lease Term (with or
without Landlord's consent), Landlord and Tenant shall split evenly all rents,
fees and other considerations paid by such subtenant, assignee or occupant with
respect to the Premises, including, but not limited to, all amounts paid in
excess of the rental specified in this Lease, net of any costs associated with
the sublease or assignment.
(g) Xxxxxxxx's consent to a proposed assignment or subletting pursuant to
this Paragraph 9 shall not be unreasonably withheld, delayed or conditioned,
but, in addition to any other grounds for denial, Xxxxxxxx's consent shall be
deemed reasonably withheld if, in Xxxxxxxx's reasonable judgment, any of the
following conditions exist:
(i) the proposed assignee or subtenant intends to use any part of the
Premises for the operation of a retail business or for a purpose not
permitted under this Lease; or
(ii) the use of the Premises or the Building by the proposed assignee or
subtenant would, in Landlord's reasonable judgment, significantly increase
the pedestrian traffic in and out of the Building, or would require
material or substantial alterations to the Building, Premises or Project in
order to comply with applicable laws; or
(iii) the proposed use by such subtenant or assignee would result in a
violation of an exclusive right granted to another tenant in the Building,
or require rezoning or a zoning variance; or
(iv) the proposed subtenant or assignee is a governmental agency which in
Landlord's sole discretion will detract from the quality or operation of
the Project; or
(v) the business and operations of the proposed assignee or subtenant are
inconsistent with the maintenance of a Class A Building, and/or would be
incompatible with the businesses and operations being conducted by other
tenants in the Building or Project; or
(vi) the proposed use by such subtenant or assignee could create a
condition that is dangerous to persons or property (e.g. a foreign
consulate) or could create an atmosphere or condition that could be
disruptive to the operation of the Building or Project (e.g. an abortion or
methadone clinic), or could create substantially heavier volumes of traffic
in the Project than the Project was designed for; or
(vii) as a result of the number of people to be officed in the space
proposed for sublease or assignment, the efficiency of the Premises' HVAC
system would be materially diminished; or
(viii) with respect to a sublease, Xxxxxx proposes to demise the sublease
space in a commercially unreasonable manner (e.g. in a configuration that
would not be readily leaseable at the end of the Lease Term) and does not
provide Landlord with additional security in an amount equal to all
reasonably anticipated restoration costs.
10. INSURANCE AND INDEMNIFICATION.
(a) Landlord shall not be liable to Tenant and Tenant hereby waives all
claims against Landlord for any injury or damages to any person or property in
or about the Premises or the Project by or from any cause whatsoever, without
limiting the generality of the foregoing, whether caused by water leakage of any
character from the roof, walls, basement, or other portion of the Premises or
the Building, caused by gas, fire, or explosion of the Building or the complex
of which it is a part or any part thereof, or caused by theft or other act or
omission of any person.
(b) Tenant shall hold Landlord harmless from and defend and indemnify
Landlord against any and all claims or liability for any injury or damage to any
person or property whatsoever: (i) occurring in, on or about the Premises or any
part thereof, (ii) occurring in, on, or about any facilities (including, without
limitation, stairways, parking areas, passageways, walkways or hallways), the
use of which Tenant may have in conjunction with other tenants of the Building,
when such injury or damage shall be caused in part or in whole by the act,
neglect, fault of, or omission of any duty with respect to the same by Tenant,
its agents, servants, employees, or invitees. Tenant further agrees to
indemnify, defend and save harmless Landlord against and from any and all claims
in any manner relating to any work or thing whatsoever done by Tenant in or
about, or any transactions of Tenant concerning, the Premises, and will further
indemnify, defend and save Landlord harmless against and from any and all claims
arising from any breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease, or arising from any act or negligence of Tenant, or any of
its agents, contractors, servants, employees and licensees, and from and against
all costs, counsel fees, expenses and liabilities incurred in connection with
any such claim or action or proceeding brought thereon. Furthermore, in case any
action or proceeding be brought against Landlord by reason of any claims or
liability, Xxxxxx agrees to defend such action or proceeding at Xxxxxx's sole
expense by counsel reasonably satisfactory to Landlord.
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The provisions of this Lease with respect to any claims or liability occurring
prior to the termination or expiration of this Lease shall expressly survive
such termination or expiration of this Lease.
(c) Xxxxxx agrees to purchase at its own expense and to keep in force
during the term of this lease a policy or policies of worker's compensation and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of Two
Million Dollars ($2,000,000.00) for property damage and Three Million Dollars
($3,000,000.00) per occurrence for personal injuries or deaths of persons
occurring in or about the Premises. Said policies shall: (i) name Landlord and
Landlord's lender as an additional insured (except for the worker's compensation
policy, which shall instead include a waiver of subrogation endorsement in favor
of Landlord), (ii) be issued by an insurance company which is acceptable to
Landlord and licensed to do business in the State of Florida, and (iii) provide
that said insurance shall not be canceled unless thirty (30) days prior written
notice shall have been given to Landlord. Said policy or policies or
certificates thereof shall be delivered to Landlord by Tenant upon commencement
of the term of the Lease and upon each renewal of said insurance.
(d) Xxxxxx represents that Xxxxxx has not engaged or worked with any real
estate brokers or agents other than CB Xxxxxxx Xxxxx ("Broker") in connection
with this Lease or the Premises. Tenant shall indemnify and hold harmless
Landlord and Landlord's agents from and against any and all claims for
commissions or other compensation, and any liabilities, damages and costs
relating thereto, including, without limitation, attorneys' fees, that may be
asserted by any person or entity other than Broker to the extent that Tenant has
engaged such person or such claim results from any action of Tenant.
11. WAIVER OF SUBROGATION.
Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
Building in which the Premises are located; provided, however, that this release
shall be applicable and in force and effect only to the extent that such release
shall be lawful at that time and in any event only with respect to loss or
damage occurring during such time as the releasor's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor to
coverage thereunder and then only to the extent of the insurance proceeds
payable under such policies. Each of Landlord and Xxxxxx agrees that it will
request its insurance carriers to include in its policies such a clause or
endorsement. If extra cost shall be charged therefor, each party shall advise
the other thereof and of the amount of the extra cost, and the other party, at
its election, may pay the same, but shall not be obligated to do so, except for
latent defects of which Tenant notifies Landlord within two (2) years after the
Commencement Date, which latent defects shall be Landlord's responsibility. If
such other party fails to pay such extra cost, the release provisions of this
Paragraph shall be inoperative against such other party to the extent necessary
to avoid invalidation of such releasor's insurance.
12. SERVICE, UTILITIES, AND PARKING.
(a) Landlord shall maintain the public and common areas of the Property,
and the roof, exterior walls (excluding plate glass and doors) and foundation of
the Building, in reasonably good order and condition except for damage
occasioned by the act of Tenant, which damage shall be repaired by Landlord at
Tenant's expense. Landlord shall be responsible for maintaining the heating,
ventilating and air conditioning equipment and system serving the Premises, but
Tenant shall be responsible for all capital replacements for the heating,
ventilating and air conditioning equipment and system serving the Premises.
Tenant shall be responsible for all other maintenance, repair and replacement
with respect to the Premises, including, without limitation, maintenance, repair
and replacement of the mechanical, plumbing, and electrical equipment and
systems within or upon the Premises, and Landlord shall have no responsibility
therefor. Xxxxxxxx agrees to use reasonable efforts to maintain and enforce any
and all applicable warranties with respect to the Building or any systems within
the Building.
(b) Landlord agrees to provide water, electricity and gas (when available)
service connections into the Building in accordance with the plans and
specifications, if any, described in the Improvement Agreement. Tenant shall pay
for the cost of bringing the utility services to the Premises from their point
of entry into the Building. Tenant shall also be responsible for the cost of any
upgrades in utility systems serving the Building or the Premises necessary for
Tenant's use of the Premises or necessary for the Building as a result of Tenant
using electricity or any other resource in excess of the amount that would be
usually furnished or supplied for use of the Premises for general office use.
Tenant shall also pay for all gas, heat, light, power, water, sewer, telephone,
sprinkler charges and other utilities and services used on or from the Premises,
together with any taxes, penalties, surcharges or the like pertaining thereto,
and any maintenance charges for utilities, and shall furnish all electric light
bulbs and tubes. Xxxxxxxx agrees to furnish to the Premises water for lavatory
and drinking purposes, subject to the provisions of subparagraph 12(c) below.
Landlord shall in no event be liable for any interruption or failure of utility
services on the Premises. At all times during the Lease Term, Tenant shall
operate the heating, ventilating and air-conditioning systems serving the
Premises so as to maintain temperatures consistent with full occupancy of the
Premises and shall in no event permit temperatures within the Premises that will
create humidity or other damage to or deterioration of the Premises or the
Building.
9
(c) Tenant will not without the written consent of Landlord use any
apparatus or device in the Premises, which will in any way increase the amount
of electricity, water or other resource usually furnished or supplied for use of
the Premises as general office space. Landlord may condition such consent upon
Tenant, at Xxxxxx's expense, upgrading the system or systems used to supply such
resource. If Tenant in Landlord's judgment shall require water or any other
resource in excess of that usually furnished or supplied by Landlord for use of
the Premises as general office space (it being understood that such an excess
may result from the number of fixtures, apparatus and devices in use, the nature
of such fixtures, apparatus and devices, the hours of use, or any combination of
such factors), Tenant shall first procure the consent of Landlord, which
Landlord may refuse, to the use thereof, and Landlord may cause a special meter
to be installed in the Premises so as to measure the amount of excess water or
other resource consumed for any such other use. The cost of any such meters and
of installation, maintenance, and repair thereof shall be paid for by Tenant,
and Xxxxxx agrees to pay Landlord promptly upon demand by Landlord for all such
excess water or other resource consumed, as shown by said meters, at the rates
charged by the local public utility furnishing the same, plus any additional
expense incurred in keeping account of the water or other resource so consumed.
Landlord shall not be in default hereunder or be liable for any damages directly
or indirectly resulting from, nor shall the rental herein reserved be abated by
reason of (i) the installation, use or interruption of use of any equipment in
connection with the furnishing of any of the foregoing utilities and services,
(ii) failure to furnish or delay in furnishing any such utilities or services
when such failure or delay is caused by acts of God or the elements, labor
disturbances of any character, any other accidents or other conditions beyond
the reasonable control of Landlord, or by the making of repairs or improvements
to the Premises or to the Building, (iii) the limitation, curtailment, rationing
or restriction on use of water or electricity, gas or any other form of energy
or any other service utility whatsoever serving the Premises or the Building.
Furthermore, Landlord shall be entitled to cooperate voluntarily in a reasonable
manner with the efforts of national, state or local governmental agencies or
utilities suppliers in reducing energy or other resources consumption. Landlord
hereby consents to the use by Tenant in the Premises of equipment or devices
relating to the permitted use of Tenant set forth in paragraph 4(a) of this
Lease, provided that Tenant otherwise complies with this Lease, including this
paragraph 12(c), and pays all excess costs relating to such use and equipment.
(d) Any sums payable under this Paragraph 12 shall be considered additional
rent and may be added to any installment of rent thereafter becoming due, and
Landlord shall have the same remedies for a default in payment of such sums as
for a default in the payment of rent.
(e) All janitorial services provided by Tenant must be by a janitorial
contractor at all times satisfactory to Landlord. Any such services provided by
Tenant shall be at Tenant's sole risk and responsibility.
(f) Landlord shall provide to Tenant and Tenant's employees, agents and
business invitees the non-exclusive license and right to use at least five (5)
parking spaces per one thousand (1,000) square feet of rentable area occupied by
Tenant, such spaces to be within the surface parking areas now or hereafter
located on the Property. Landlord reserves the right to designate certain of the
parking spaces located upon the Property as "Reserved" and to otherwise limit
parking in or restrict access to portions of said parking areas in Landlord's
discretion; provided, however, that Tenant shall continue to have access to at
least five (5) parking spaces per 1,000 square feet of rentable area occupied by
Tenant, all of such rights of Tenant to be subject to any rules and regulations
pertaining thereto as may be adopted by Landlord from time to time.
13. ESTOPPEL CERTIFICATE.
Within seven (7) days following the Commencement Date or any written
request which Landlord may make from time to time, Tenant shall execute and
deliver to Landlord a certificate substantially in the form attached hereto as
EXHIBIT "C" and made a part hereof, indicating thereon any exceptions thereto
which may exist at that time. Failure of Tenant to execute and deliver such
certificate shall at Landlord's option constitute a default hereunder or
constitute an acceptance of the Premises and acknowledgment by Tenant that the
statements included in EXHIBIT "C" are true and correct without exception.
Landlord and Xxxxxx intend and agree that any statement delivered pursuant to
this paragraph may be relied upon by Landlord or by any mortgagee, beneficiary,
purchaser or prospective purchaser of the Building or any interest therein or
anyone to whom Landlord may provide said certificate.
14. HOLDING OVER.
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Premises or any part thereof after such termination, then
Landlord may, at its option, serve written notice upon Tenant that such holding
over constitutes any one of (i) creation of a month to month tenancy, upon the
terms and conditions set forth in this Lease, or (ii) creation of a tenancy of
sufferance, in any case upon the terms and conditions set forth in this Lease;
provided, however, that the monthly rental (or daily rental under (ii)) shall,
in addition to all other sums which are to be paid by Tenant hereunder, whether
or not as additional rent, be equal to one hundred fifty percent (150%) of the
rental being paid monthly to Landlord under this Lease immediately prior to such
termination (prorated in the case of (ii) on the basis of a 365 day year for
each day Tenant remains in possession). If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord all damages sustained by Landlord
resulting
10
from retention of possession by Xxxxxx, including the loss of any proposed
subsequent tenant for any portion of the Premises. The provisions of this
paragraph shall not constitute a consent by Landlord for Tenant to hold over or
a waiver by Landlord of any right of reentry as herein set forth; nor shall
receipt of any rent or any other act in apparent affirmance of the tenancy
operate as a waiver of the right to terminate this Lease for a breach of any of
the terms, covenants, or obligations herein on Tenant's part to be performed.
15. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to: (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building, the land upon
which the Building or any common areas are situated, and (b) the lien or
interest of any mortgage which may now exist or hereafter be executed in any
amount for which said Building, land, ground leases or underlying leases, or
Landlord's interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens or interests of mortgages to this Lease. In the event that any ground
lease or underlying lease terminates for any reason or any mortgage is
foreclosed or a conveyance in lieu of foreclosure is made for any reason, Tenant
shall, notwithstanding any subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such successor in interest.
Xxxxxx agrees to execute such subordination and attornment agreements as the
holder of any mortgage on the Building may reasonably require. Attached hereto
as EXHIBIT "F" and incorporated herein is a form of subordination and
non-disturbance agreement, which form Xxxxxx agrees is reasonable and agrees to
enter into. Tenant covenants and agrees to execute and deliver, upon demand by
Xxxxxxxx and in the form requested by Xxxxxxxx, any additional documents
evidencing the priority or subordination of this Lease with respect to any such
ground leases or underlying leases or the lien of any such mortgage.
16. RE-ENTRY BY LANDLORD.
Landlord reserves and shall at all times have the right to re-enter the
Premises to inspect the same, to supply any service to be provided by Landlord
to Tenant hereunder, to show said Premises to prospective purchasers, mortgagees
or tenants, to post notices of nonresponsibility, and to alter, improve, or
repair the Premises and any portion of the Building of which the Premises are a
part or to which access is conveniently made through the Premises, without
abatement of rent, and may for that purpose erect, use, and maintain
scaffolding, pipes, conduits, and other necessary structures in and through the
Premises where reasonably required by the character of the work to be performed,
provided that entrance to the Premises shall not be blocked thereby, and further
provided that the business of Tenant shall not be interfered with unreasonably.
Tenant hereby waives any claim for damages for any injury or inconvenience to or
interference with Xxxxxx's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby. For each of the aforesaid
purposes, Landlord shall at all times have and retain a key with which to unlock
all of the doors, in, upon, and about the Premises, and Landlord shall have the
right to use any and all means which Landlord may deem necessary or proper to
open said doors in an emergency, in order to obtain entry to any portion of the
Premises, and any entry to the Premises, or portions thereof obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction, actual or constructive, of Tenant from the
Premises or any portions thereof. Landlord shall also have the right at any
time, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant therefor, to change the arrangement
and/or location of entrances or passage ways, doors and doorways, and corridors,
elevators, stairs, toilets, or other public parts of the Building and to change
the name, number or designation by which the Building is commonly known.
17. INSOLVENCY OR BANKRUPTCY.
The appointment of a receiver to take possession of all or substantially
all of the assets of Tenant, or an assignment of Tenant for the benefit of
creditors, or any action taken or suffered by Tenant under any insolvency,
bankruptcy, or reorganization act, shall at Landlord's option constitute a
breach of this Lease by Xxxxxx. Upon the happening of any such event or at any
time thereafter, this Lease shall terminate five (5) days after written notice
of termination from Landlord to Tenant. In no event shall this Lease be assigned
or assignable by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
18. DEFAULT AND REMEDIES.
The following events shall be deemed to be events of default by Tenant
under this Lease:
(a) Tenant shall fail to pay when or before due any sum of money becoming
due to be paid to Landlord hereunder, whether such sum be any installment of the
rent herein reserved, any other amount treated as additional rent hereunder, or
any other payment or reimbursement to Landlord required herein, whether or not
treated as additional rent hereunder, and such failure shall continue for a
period often (10) days after receipt of written notice of non-payment from
Landlord; provided, however, notwithstanding the foregoing, Landlord shall not
be required to give such notice to Tenant more than two (2) times in any
calendar year with respect to Tenant's obligation to make any monetary payment
under this Lease, and after
11
Landlord shall have given two (2) such notices in any given calendar year,
Tenant shall not be entitled to any notice or cure period for any subsequent
default within with such calendar year; or
(b) Tenant shall fail to comply with any term, provision or covenant of
this Lease other than by failing to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, and such failure shall continue
for a period of thirty (30) days after written notice thereof is given to Tenant
(provided, if the default is of a nature that cannot be cured within thirty (30)
days, no default shall occur if Tenant commences the cure within such thirty
(30) day period and thereafter diligently and continuously pursues the same to
conclusion within not more than ninety (90) days); or
(c) Tenant shall abandon or vacate any substantial portion of the Premises
during the initial eighteen (18) months of the Lease Term; or
(d) Tenant shall create or allow to be created in or about the demised
Premises any condition or circumstance constituting a hazard to people or
property, a nuisance, a trespass, or other condition offensive to Landlord or
others, whether or not such condition or circumstance rises to the level of a
civil or criminal law violation or action; or
(e) Tenant shall fail to vacate the Premises immediately upon termination
of this Lease, by lapse of time or otherwise, or upon termination of Tenant's
right to possession only;
(f) If, in spite of the provisions hereof, the interest of Tenant shall be
levied upon under execution or be attached by process of law or Tenant shall
fail to contest diligently the validity of any lien or claimed lien and give
sufficient security to Landlord to insure payment thereof or shall fail to
satisfy any judgment rendered thereon and have the same released, and such
default shall continue for ten (10) days after written notice thereof to Tenant;
or
(g) Tenant shall assign, sublet or transfer its interest hereunder in
violation of this Agreement.
Upon the occurrence of any such events of default described in this
paragraph or elsewhere in this Lease, Landlord shall have the option to pursue
any one or more of the following remedies without any notice or demand
whatsoever:
(i) Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease.
(ii) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event with or without process of law and to repossess the
Premises and to expel or remove Tenant and any others who may be occupying or
within the Premises and to remove any and all property therefrom, without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom; Tenant
hereby waiving any right to claim damage for such reentry and expulsion, and
without relinquishing Landlord's right to rent or any other right given to
Landlord hereunder or by operation of law.
(iii) Upon termination of this Lease, whether by lapse of time, by or
in connection with a dispossessory proceeding or otherwise, Landlord shall be
entitled to recover as Landlord's actual accrued damages, all rent, including
any amount treated as additional rent hereunder, and other sums due and payable
by Tenant on the date of termination, plus, as Landlord's liquidated damages for
the balance of the stated term hereof and not as a forfeiture or penalty, the
sum of: (a) an amount equal to the then present value of the rent, including any
amounts treated as additional rent hereunder, and other sums provided herein to
be paid by Tenant for the residue of the stated term hereof, less the fair
rental value of the Premises for such residue (taking into account the time and
expenses necessary to obtain a replacement tenant or tenants, including expenses
hereinafter described in subparagraph (iv)(B) relating to recovery of the
Premises, preparation for reletting and for reletting itself), and (b) the cost
of performing any other covenants which would have otherwise been performed by
Xxxxxx.
(iv) (A) Upon termination of Xxxxxx's right to possession of the
demised Premises, regardless of whether such termination occurs as a result of a
dispossessory proceeding, distraint proceeding, exercise of right of
termination, re-entry, lease expiration or otherwise, Tenant shall remain liable
for payment of all rent thereafter accruing and for performance of all
obligations thereafter performable under this Lease. Landlord may, at Xxxxxxxx's
option, enter the Premises, remove Xxxxxx's signs and other evidences of
tenancy, and take and hold possession thereof as provided in subparagraph
(g)(ii) above, without such entry and possession releasing Tenant from any
obligation, including Xxxxxx's obligation to pay rent, including any amounts
treated as additional rent, hereunder for the full term of the Lease.
(B) Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord in its sole discretion
shall determine (including the right to relet the Premises for a greater or
lesser term than that remaining under this Lease, the right to relet the
Premises as a part of a larger area, and the right to change the character and
use made of the Premises) and Landlord
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shall not be required to accept any tenant offered by Tenant or to observe any
instructions given by Xxxxxx about such reletting. In any such case, Landlord
may make repairs, alterations and additions in or to the Premises, and
redecorate the same to the extent Landlord deems necessary or desirable, and
Tenant shall, upon demand, pay the cost thereof, together with Landlord's
expenses for reletting, including, without limitation, any broker's commission
incurred by Landlord. If the consideration collected by Landlord upon any such
reletting plus any sums previously collected from Tenant are not sufficient to
pay the full amount of all rent, including any amounts treated as additional
rent hereunder and other sums reserved in this Lease for the remaining term
hereof, together with the costs of repairs, alterations, additions,
redecorating, and Xxxxxx's expenses of reletting and the collection of the rent
accruing therefrom (including attorneys' fees and broker's commissions), Tenant
shall pay to Landlord, as Landlord's liquidated damages and not as a forfeiture
or penalty, the amount of such deficiency upon demand and Tenant agrees that
Landlord may file suit to recover any sums falling due under this section from
time to time.
(C) Without any showing of need, or the presence of any statutory
or common law grounds, all of which are expressly waived, Landlord may have a
receiver appointed to take possession of the Premises and relet same in
accordance with this Section 18(g)(iv).
(v) Landlord may, at Xxxxxxxx's option, enter into and upon the
Premises, with or without process of law, if Landlord determines in its sole
discretion that Tenant is not acting within a commercially reasonable time to
maintain, repair or replace anything for which Xxxxxx is responsible hereunder,
and correct the same, without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without incurring any liability for
any damage resulting therefrom, and Xxxxxx agrees to reimburse Landlord, on
demand, as additional rent, for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease.
(vi) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled, may be handled, removed and stored, as the case may be, by or
at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Xxxxxxxx's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a bill of sale
without further payment or credit by Landlord to Tenant.
Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law or available in equity (all such remedies being cumulative), nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants herein
contained. No act or thing done by Landlord or its agents during the term hereby
granted shall be deemed a termination of this Lease or an acceptance of the
surrender of the Premises, and no agreement to terminate this Lease or accept a
surrender of said Premises shall be valid unless in writing signed by Xxxxxxxx.
No waiver by Landlord of any violation or breach of any of the terms, provisions
and covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants herein contained. Xxxxxxxx's acceptance of the payment of rental or
other payments hereunder after the occurrence of an event of default shall not
be construed as a waiver of such default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default or of Landlord's right to enforce any such remedies
with respect to such default or any subsequent default. If Landlord commences
any proceedings for non-payment of rent or other amounts due hereunder, Xxxxxx
will not interpose any counterclaim of any nature or description in such
proceedings. Such agreement by Tenant shall not, however, be construed as a
waiver of Xxxxxx's right to assert such claims in a separate action brought by
Xxxxxx. The covenants to pay rent and other amounts hereunder are separate and
independent covenants, and Tenant shall have no right to hold back, offset, or
fail to pay any such amounts for default by Landlord or for any other reason
whatsoever.
Without limiting the foregoing, to the extent permitted by law,
Tenant hereby: (x) appoints and designates the Premises as a proper place for
service of process upon Tenant, and agrees that service of process upon any
person apparently employed by Tenant upon the Premises or leaving process in a
conspicuous place within the Premises shall constitute personal service of such
process upon Tenant (provided, however, Landlord does not hereby waive the right
to serve Tenant with process by any other lawful means); and (y) expressly
waives the service of any notice under any existing or future law of the State
of Florida applicable to landlords and tenants. LANDLORD AND TENANT HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT WHICH EITHER MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER LANDLORD OR TENANT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LANDLORD TO ENTER INTO THIS LEASE.
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19. DAMAGE BY FIRE, ETC.
(a) If the Building, improvements, or Premises are rendered partially or
wholly untenantable by fire or other casualty, and if such damage cannot, in
Landlord's reasonable estimation, be materially restored within ninety (90) days
of such damage, then Landlord may, at its sole option, terminate this Lease as
of the date of such fire or casualty. Landlord shall exercise its option
provided herein by written notice to Tenant within sixty (60) days of such fire
or other casualty. For purposes hereof, the Building, improvements, or Premises
shall be deemed "materially restored" if they are in such condition as would not
prevent or materially interfere with Tenant's use of the Premises for the
purpose for which it was then being used.
(b) If this Lease is not terminated pursuant to Paragraph 19(a), then to
the extent of available insurance proceeds, Landlord shall proceed with all due
diligence to repair and restore the Building, improvements or Premises, as the
case may be (except that Landlord may elect not to rebuild if such damage occurs
during the last year of the term of this Lease exclusive of any option which is
unexercised at the date of such damage).
(c) If this Lease shall be terminated pursuant to this Paragraph 19, the
term of this Lease shall end on the date of such damage as if that date had been
originally fixed in this Lease for the expiration of the term hereof. If this
Lease shall not be terminated by Landlord pursuant to this Paragraph 19 and if
the Premises is untenantable in whole or in part following such damage, the rent
payable during the period in which the Premises is untenantable shall be reduced
to such extent, if any, as may be fair and reasonable under all of the
circumstances.
In no event shall Landlord be required to rebuild, repair or replace
any part of the partitions, fixtures, additions, or other improvements which may
have been placed in or about the Premises by Tenant. Any insurance which may be
carried by Landlord or Tenant against loss or damage to the Building or Premises
shall be for the sole benefit of the party carrying such insurance and under its
sole control.
(d) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage covering the Premises, Building
or Property, or the ground lessor of the Property, requires that any insurance
proceeds be paid to it, then Landlord shall have the right to terminate this
Lease by delivering written notice of termination to Tenant within fifteen (15)
days after such requirement is made by any such person, whereupon the Lease
shall end on the date of such damage as if the date of such damage were the date
originally fixed in this Lease for the expiration of the term.
(e) In the event of any damage or destruction to the Building or the
Premises by any peril covered by the provisions of this Paragraph 19, Tenant
shall, upon notice from Landlord, remove forthwith, at its sole cost and
expense, such portion or all of the property belonging to Tenant or its
licensees from such portion or all of the Building or the Premises as Landlord
shall request and Tenant hereby indemnifies, defends and holds Landlord harmless
from any loss, liability, costs, and expenses, including attorneys' fees,
arising out of any claim of damage or injury as a result of such removal and any
alleged failure to properly secure the Premises prior to such removal.
20. CONDEMNATION.
(a) If any substantial part of the Premises should be taken for any public
or quasi-public use under governmental law, ordinance or regulation, or by right
of eminent domain, or by private purchase in lieu thereof, and the taking would
prevent or materially interfere with the use of the Premises for the purpose for
which it is then being used, this Lease shall terminate effective when the
physical taking shall occur in the same manner as if the date of such taking
were the date originally fixed in this Lease for the expiration of the term
hereof. As used herein, "substantial part" shall mean more than twenty percent
(20%).
(b) If part of the Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this Lease is not terminated
as provided in the subparagraph above, this Lease shall not terminate but the
rent payable hereunder during the unexpired portion of this Lease shall be
reduced to such extent, if any, as may be fair and reasonable under all of the
circumstances and Landlord, to the extent of available condemnation awards,
shall undertake to restore the Premises to a condition suitable for Xxxxxx's
use, as near to the condition thereof immediately prior to such taking as is
reasonably feasible under all circumstances.
(c) Tenant shall not share in any condemnation award or payment in lieu
thereof or in any award for damages resulting from any grade change of adjacent
streets, the same being hereby assigned to Landlord by Tenant; provided,
however, that Tenant may separately claim and receive from the condemning
authority, if legally payable, compensation for Xxxxxx's removal and relocation
costs and for Tenant's loss of business and/or business interruption.
(d) Notwithstanding anything to the contrary contained in this paragraph,
if the temporary use or occupancy of any part of the Premises shall be taken or
appropriated under power of eminent domain during the term of this Lease, this
Lease shall be and remain unaffected by such taking or appropriation and
14
Tenant shall continue to pay in full all rent payable hereunder by Xxxxxx during
the term of this Lease; in the event of any such temporary appropriation or
taking, Tenant shall be entitled to receive that portion of any award which
represents compensation for the use of or occupancy of the Premises during the
term of this Lease, and Landlord shall be entitled to receive that portion of
any award which represents the cost of restoration of the Premises and the use
and occupancy of the Premises after the end of the term of this Lease.
21. SALE BY LANDLORD.
In the event of a sale or conveyance by Landlord of the Building, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, express or implied, herein contained in favor of
Xxxxxx, and in such event Tenant agrees to look solely to the responsibility of
the successor in interest of Xxxxxxxx in and to this Lease. Xxxxxx agrees to
attorn to the purchaser or assignee in any such sale.
22. RIGHT OF LANDLORD TO PERFORM.
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to perform any
acts, covenants or agreements to be performed by Tenant under any of the terms
of this Lease or to pay any sum of money, other than rent, required to be paid
by it hereunder, and such failure shall continue for ten (10) days after notice
thereof by Landlord, Landlord may, but shall not be obligated so to do, and
without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such act, covenant or agreement on Tenant's part to
be made or performed as in this Lease provided. All sums so paid by Landlord or
costs related to Landlord's performance of such acts, covenants or agreements
and all necessary incidental costs, together with interest thereon at the Agreed
Interest Rate as defined in Paragraph 8 hereof from the date of such payment by
Landlord, shall be payable as additional rent to Landlord on demand, and Tenant
covenants to pay any such sums, and Landlord shall have, in addition to any
other right or remedy of the Landlord, the same rights and remedies in the event
of nonpayment thereof by Xxxxxx as in the case of default by Xxxxxx in the
payment of the rent.
23. SURRENDER OF PREMISES.
(a) At the end of the term or any renewal thereof or other sooner
termination of this Lease, the Tenant will peaceably deliver up to the Landlord
possession of the Premises, together with all improvements, alterations or
additions upon or belonging to the same, by whomsoever made, in the same
condition as received, or first installed, ordinary wear and tear, damage by
fire, earthquake, act of God, or the elements alone excepted. Tenant shall, upon
the termination of this Lease, remove all movable furniture and equipment
belonging to Tenant, at Tenant's sole cost, title to which shall be in name of
Tenant until such termination, repairing any damage caused by such removal.
Property not so removed shall be deemed abandoned by the Tenant, and title to
the same shall thereupon pass to Landlord. Unless otherwise agreed to in writing
by Landlord, Tenant shall remove, at Tenant's sole cost, any or all permanent
improvements or additions to the Premises installed by or at the expense of
Tenant and all movable furniture and equipment belonging to Tenant which may be
left by Tenant and repair any damage resulting from such removal.
(b) The voluntary or other surrender of this lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of the
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
24. WAIVER.
If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein. Furthermore, the acceptance of rent by Landlord
shall not constitute a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, regardless of Landlord's knowledge of such
preceding breach at the time Landlord accepted such rent. Failure by Landlord to
enforce any of the terms, covenants or conditions of this Lease for any length
of time shall not be deemed to waive or to decrease the right of Landlord to
insist thereafter upon strict performance by Xxxxxx. Waiver by Landlord of any
term, covenant or condition contained in this Lease may only be made by a
written document signed by Landlord.
25. NOTICES.
Whenever any notice, demand or request is required or permitted hereunder,
such notice, demand or request shall be hand-delivered in person, by reputable
courier service or sent by United States Mail, registered, postage prepaid, to
the addresses set forth below:
15
IF TO LANDLORD: SV Central Florida Phase II Limited Partnership
c/o Simmons, Xxxxxx & Co.
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000-1251
Attention: Xx. Xxxxx X. Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
WITH A COPY TO: Lincoln Property Company of Florida, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Deal
Telephone: 000-000-0000
Fax: 000-000-0000
IF TO TENANT: Optium, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx XxXxx Wa
Fax: ________________________
Any notice, demand or request which shall be served upon either of the
parties in the manner aforesaid shall be deemed sufficiently given for all
purposes hereunder (i) at the time such notices, demands or requests are
hand-delivered in person or (ii) on the third day after the mailing of such
notices, demands or requests in accordance with the preceding portion of this
paragraph.
Either Landlord or Tenant shall have the right from time to time to
designate by written notice to the other party such other places in the United
States as Landlord or Tenant may desire written notice to be delivered or sent
in accordance herewith; provided, however, at no time shall either party be
required to send more than an original and two copies of any such notice, demand
or request required or permitted hereunder.
26. CERTAIN RIGHTS RESERVED TO THE LANDLORD.
Landlord reserves and may exercise the following rights without affecting
Tenant's obligations hereunder:
(a) To change the name of the Building;
(b) To designate all sources furnishing sign painting and lettering, lamps
and bulbs used in the Premises;
(c) To retain at all times pass keys to the Premises;
(d) To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building;
(e) To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the Premises or the
Building, and identification and admittance procedures for access to the
Building as may be necessary or desirable for the safety, protection,
preservation or security of the Premises or the Building or Landlord's interest,
or as may be necessary or desirable in the operation of the Building.
Landlord may enter upon the Premises and may exercise any or all of the
foregoing rights hereby reserved without being deemed guilty of an eviction or
disturbance of Tenant's use or possession and without being liable in any manner
to Tenant and without abatement of rent or affecting any of Tenant's obligations
hereunder.
27. ABANDONMENT.
Tenant shall not vacate or abandon the Premises at any time during the
initial eighteen (18) months of the Lease Term, and if Tenant shall so abandon,
vacate, or surrender said Premises or be dispossessed by process of law, or
otherwise, any personal property belonging to Xxxxxx and left on the Premises
shall, at the option of Landlord, be deemed to be abandoned and title thereto
shall thereupon pass to Landlord.
28. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Paragraph 9 hereof, the terms, covenants, and
conditions contained herein shall be binding upon and inure to the benefit of
the heirs, successors, executors, administrators and assigns of the parties
hereto.
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29. ATTORNEY'S FEES.
In the event that any action or proceeding is brought to enforce or
construe any term, covenant or condition of this Lease on the part of Landlord
or Tenant, including, without limitation, any participation in any bankruptcy,
arbitration or mediation process, the prevailing party in such litigation shall
be entitled to reasonable attorneys' fees to be fixed by the Court in such
action or proceeding, including, without limitation, attorneys' fees at both the
trial and appellate levels.
30. AUTHORITY.
If Tenant signs as a corporation, partnership or limited liability company,
each of the persons executing this Lease on behalf of Tenant does hereby
covenant and warrant that Tenant is a duly authorized and existing entity, that
Tenant has and is qualified to do business in Florida, that Xxxxxx has full
right and authority to enter into this Lease, and that each of the persons
signing on behalf of Tenant were authorized to do so. Upon Landlord's request,
Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord
confirming the foregoing covenants and warranties.
31. MORTGAGE APPROVALS.
Any provisions of this Lease requiring the approval or consent of Landlord
shall not be deemed to have been unreasonably withheld if any mortgagee of the
Premises, Building or Property or any portion thereof shall refuse or withhold
its approval or consent thereto. Any requirement of Landlord pursuant to this
Lease which is imposed pursuant to the direction of any such mortgagee shall be
deemed to have been reasonably imposed by Landlord if made in good faith.
32. MISCELLANEOUS.
(a) The paragraph headings herein are for convenience of reference and
shall in no way define, increase, limit, or describe the scope or intent of any
provision of this Lease. The term "Landlord" as used in this Lease shall include
the Landlord, its successors and assigns. In any case where this Lease is signed
by more than one person, the obligations hereunder shall be joint and several.
The term "Tenant" or any pronoun used in place thereof shall indicate and
include the masculine or feminine, the singular or plural number, individuals,
firms or corporations, and their and each of their respective successors,
executors, administrators, and permitted assigns, according to the context
hereof.
(b) Time is of the essence of this Lease and all of its provisions. This
Lease shall in all respects be governed by the laws of the State of Florida.
This Lease, together with its exhibits, contains all the agreements of the
parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument by the parties hereto.
(c) If for any reason whatsoever any of the provisions hereof shall be
unenforceable or ineffective, all of the other provisions shall be and remain in
full force and effect.
(d) All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term at this Lease shall survive the
expiration or earlier termination of the term hereof.
(e) If any clause, phrase, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this Lease or any other clause,
phrase, provision or portion hereof, nor shall it affect the application of any
clause, phrase, provision or portion hereof to other persons or circumstances,
and it is also the intention of the parties to this Lease that in lieu of each
such clause, phrase, provision or portion of this Lease that is invalid or
unenforceable, there be added as a part of this Lease a clause, phrase,
provision or portion as similar in terms to such invalid or unenforceable
clause, phrase, provision or portion as may be possible and be valid and
enforceable.
(f) Whenever a period of time is herein prescribed for action to be taken
by Landlord, the Landlord shall not be liable or responsible for, and there
shall be excluded from the computation for any such period of time, any delays
due to causes of any kind whatsoever which are beyond the control of Landlord.
(g) Notwithstanding any other provisions of this Lease to the contrary, if
the Commencement Date hereof shall not have occurred before the twentieth (20th)
anniversary of the date hereof, this Lease shall be null and void and neither
party shall have any liability or obligation to the other hereunder. The purpose
and intent of this provision is to avoid the application of the rule against
perpetuities to this Lease.
(h) There shall be no merger of the leasehold estate created by this Lease
with the fee estate in the Premises by reason of the fact that the same person
may own or hold: (i) the leasehold estate created by this Lease or any interest
in such leasehold estate and (ii) the fee estate in the Premises or any interest
in such fee estate; and no such merger shall occur unless and until all persons,
including any mortgagee, having any
17
interest in: (A) the leasehold estate created by this Lease and (B) the fee
estate in the Premises, shall join in a written instrument effecting such
merger.
(i) It is specifically understood and agreed that no person shall be a
third party beneficiary hereunder, and that none of the provisions of this Lease
shall be for the benefit of or be enforceable by anyone other than the parties
hereto, and that only the parties hereto and their permitted successors and
assigns shall have any rights hereunder.
(j) This Lease is intentionally prepared in unrecordable form and shall not
be recorded; although Landlord, at its sole option, shall have the right to
recording a Memorandum of this Lease.
33. SECURITY INTEREST.
In addition to any statutory lien for rent in Landlord's favor, Landlord
shall have and Tenant hereby grants to Landlord a continuing security interest
for all rentals and other sums of money becoming due hereunder from Tenant, upon
all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract
rights, chattel paper and other personal property of Tenant situated on the
Premises, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in rent as well as any and all other sums of
money then due to Landlord hereunder shall first have been paid and discharged.
At Tenant's request, Landlord shall subordinate Landlord's security interest
granted herein to the lien or security interest in any such property of any
lender of Tenant. In the event of a default under this Lease, Landlord shall
have, in addition to any other remedies provided herein or by law, all rights
and remedies under the Uniform Commercial Code, including without limitation the
right to sell the property described in this Paragraph 33 at public or private
sale upon providing the notice called for by the Uniform Commercial Code or if
none is so supplied five (5) days notice to Tenant. Tenant hereby agrees that
this Lease shall constitute a security agreement and further agrees to execute
such financing statements and other instruments necessary or desirable in
Landlord's discretion to perfect the security interest hereby created. Any
statutory lien for rent is not hereby waived, the express security interest
herein granted being in addition and supplementary thereto.
34. QUIET ENJOYMENT.
Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the term hereof without hindrance or
molestation from Landlord or any other person or persons lawfully or equitably
claiming by, through or under Landlord, subject to the terms and provisions of
this Lease. Landlord shall not be liable for any interference, nuisance or
disturbance by other tenants or third persons, nor shall Tenant be released from
any of the obligations of this Lease because of such interference, nuisance or
disturbance.
35. LANDLORD'S LIABILITY.
Any liability of Landlord under this Lease shall be enforceable only out of
the interest of Landlord in the Building and in no event out of the separate
assets of Landlord or any shareholder, partner or member of Landlord.
36. RIGHT TO RELOCATE.
[Intentionally Omitted]
37. NO ESTATE.
This contract shall create the relationship of Landlord and Tenant, and no
estate shall pass out of Landlord. Xxxxxx has only a usufruct, not subject to
levy and sale and not assignable by Xxxxxx, except as provided for herein and in
compliance herewith.
38. LEASE EFFECTIVE DATE.
Submission of this instrument for examination or signature by Xxxxxx does
not constitute a reservation of or option for lease, and it is not effective as
a lease or otherwise until execution and delivery by both Landlord and Tenant.
18
39. RULES AND REGULATIONS.
(a) Tenant shall faithfully observe and comply with the rules and
regulations set forth on EXHIBIT "D" attached hereto and made a part hereof, and
all reasonable modifications thereof and additions thereto, from time to time
put into effect by Xxxxxxxx. Landlord shall supply Tenant with any such changes
or amendments to said rules. Landlord shall not be responsible for the
nonperformance by any other tenant or occupant of the Building of any of said
rules and regulations. Tenant will be responsible for causing its employees,
customers, subtenants, licensees, invitees, agents, concessionaires and
contractors to comply with all such rules and regulations.
(b) Tenant acknowledges and agrees that Landlord may insist upon compliance
with and enforce the rules and regulations as well as any laws, statutes,
ordinances or governmental rules or regulations as mentioned in Paragraph 5
above, and may, pursuant to applicable criminal trespass law, prohibit any
person including any of Tenant's employees, agents, customers, licensees,
guests, invitees, concessionaires, or contractors from entering or remaining
upon all or any portion of the Building, including the Premises, or any other
building or property within the Discovery Lake Complex, if Landlord determines
in its sole discretion that said person has not complied with any law,
ordinance, rule or regulation or poses a threat to the safety, welfare or health
of any person or to the maintenance or orderliness of the administration of the
Building. Tenant further agrees that it shall not interfere with or object to
Landlord's enforcement of any such laws, ordinances, rules and regulations.
40. RADON NOTIFICATION.
The following notification is provided pursuant to the requirements of FS
404.056:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
41. GUARANTY.
[Intentionally Omitted]
42. FINANCIAL STATEMENTS.
Within ten (10) days following Xxxxxxxx's request therefor, Tenant shall
provide to Landlord and Landlord's lender copies of (a) the most recent fiscal
year financial statements for Tenant and any guarantors of this Lease, as
audited by a certified public accountant, and (b) the most recent fiscal quarter
financial statements for Tenant and any guarantors of this Lease, as certified,
respectively, by Tenant and each such guarantor. The financial statements shall
include, but not necessarily be limited to, a balance sheet, annual report,
statements of income and retained earnings, and a statement of source and uses
of funds. All such statements shall be prepared in accordance with the generally
accepted accounting principles.
19
43. SPECIAL STIPULATIONS.
Special Stipulations to this Lease are set forth on EXHIBIT "E" attached
hereto and made a part hereof. In the event of any conflict between any
provision set forth in EXHIBIT "E" and any provision contained elsewhere in this
Lease, the former in all events shall supersede, prevail and control.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written.
LANDLORD:
SV CENTRAL FLORIDA PHASE II LIMITED
PARTNERSHIP, a Texas limited partnership
By: Xxxxxxx, Xxxxxx & Co., a Texas
corporation, general partner
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
TENANT:
OPTIUM, INC., a Florida corporation
By: /s/ Xxxxxxx XxXxxXx
------------------------------------
Name: XXXXXXX XXXXXXX
Title: PRESIDENT
Attest:
--------------------------------
Name:
--------------------------
Title:
-------------------------
(CORPORATE SEAL)
20
EXHIBIT "A"
[MAP]
EXHIBIT "B"
LEGAL DESCRIPTION OF PROPERTY
That certain parcel or tract of land lying, being and situate in Orange County,
Florida, and being more particularly described as follows:
Lot 1, Block 21, CENTRAL FLORIDA RESEARCH PARK SECTION - III, according to the
plat thereof as recorded in Plat Book 19, pages 24,25,26,27 and 28, Public
Records of Orange County, Florida.
EXHIBIT "C"
TENANT ESTOPPEL
The undersigned ("Tenant") hereby certifies that:
1. Tenant is the lessee of certain space (the "Premises") in the office
building (the "Building") located at _____ Discovery Drive, Suite _____,
Orlando, Orange County, Florida, under a lease agreement dated ______, 20 ____
(the "Lease") entered into between Tenant and _______________________________,
a ______________________, as lessor ("Lessor").
2. The Lease is presently in full force and effect and Tenant is not in
default thereunder. To the knowledge of Tenant, and except as otherwise set
forth on attached EXHIBIT "B", there exist no facts that would constitute a
basis for such default upon the lapse of time or the giving of notice or both.
3. The Lease, in the form of EXHIBIT "A" hereto, constitutes the entire
agreement between the Lessor and Tenant and there have been no amendments,
written or oral, to the lease except as included in EXHIBIT "A".
4. To the knowledge of Tenant, and except as otherwise set forth on
attached EXHIBIT "B", all improvements or repairs required under the terms of
the Lease to be made by Lessor through the date hereof have been satisfactorily
completed.
5. Tenant has/has not (delete one) accepted the Premises and is/is not
(delete one) paying rent under the Lease.
6. If the Term of Lease has commenced, the commencement date was
__________, 20____, and will end on ____, 20____, subject to Tenant's options to
renew for _____successive periods of ____ years each. The monthly rental for
Lease Years ____ - ____ is ___________________________ Dollars ($_________).
7. To the best of Xxxxxx's knowledge, as of the date of this certificate,
there exists no breach or default under the Lease, nor state of facts which,
with notice, the passage of time, or both, would result in a breach or default
under the Lease on the part of Lessor.
8. As of the date of this certificate, to the knowledge of Tenant, there
exist no offsets, except as expressly described in EXHIBIT "A", counterclaims or
defenses of Tenant under the Lease against Lessor, and there exist no events
that would constitute a basis for such offset, counterclaim or defense against
Lessor upon the lapse of time or the giving of notice or both.
9. The amount of security deposit paid under the terms of the Lease is
$__________.
10. There are no concessions, bonuses, free rental periods, rebates or
other matters affecting the rental for Tenant under the Lease except as
described in EXHIBIT "A" hereto.
11. Tenant acknowledges that Lessor may assign its interest in the Lease to
Guaranty Federal Bank, F.S.B., or its successors and assigns ("Lender") and
agrees, upon receipt of notice of such assignment from Lessor to attorn to
Lender and to perform all of Tenant's obligations as Lessee under the Lease,
including, without limitation, the payment of rent, directly to Lender or its
agent as the lessor under the Lease, from and after the date of such notice.
12. Tenant hereby acknowledges and agrees that each of the conditions set
forth in Sections [insert appropriate sections with conditions precedent] of the
Lease have been either approved or waived by Tenant and that Tenant's
termination right set forth in Section [insert appropriate sections with
termination rights] of the Lease has expired and is no longer of any force or
effect.
13. Attached hereto as EXHIBIT "B" is a specific listing of any
qualifications to the matters represented in paragraphs (1) through (11) above.
14. Tenant has no option, right or first offer or right of first refusal to
lease or occupy any other space within the property of which the Premises are a
part except as expressly set forth in the Lease.
15. Tenant has no option or preferential right to purchase all or part of
the Premises (or the real property of which the Premises are a part) nor any
right or interest with respect to the Premises other than as Tenant under the
Lease.
16. Tenant has no preferential right to parking spaces or any storage area.
17. In no event shall Tenant pay rent more than thirty (30) days in
advance.
18. There has not been filed by or against Tenant a petition in bankruptcy,
voluntary or otherwise, any assignment for benefit of creditors, any petition
seeking reorganization or arrangement under the bankruptcy laws of the United
States, or any state thereof, or any other action brought under said bankruptcy
laws with respect to Tenant.
19. This certificate may be relied on by any party who now owns or
hereafter acquires an interest in the Building and by any person or entity which
may finance or re-finance the same.
20. All exhibits attached hereto are by this reference incorporated fully
herein. The terms "this certificate" shall be considered to include all such
exhibits.
EXECUTED ________________, 20___.
TENANT:
________________________________________
By:
-------------------------------------
Its:
-----------------------------------
(Exhibit "C" - Page 2)
EXHIBIT "D"
RULES AND REGULATIONS
1. Sidewalks, walkways, passages, exits, and entrances shall not be obstructed
by Tenants or used by them for any purpose other than for ingress and
egress from their respective Premises. No Tenant, and no employees or
invitees of any Tenant, shall go upon the roof of the Building, except as
authorized by Landlord.
2. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on any Premises
without the prior written consent of Landlord. No articles shall be placed
or kept on the window xxxxx so as to be visible from the exterior of the
Building. No articles shall be placed against glass partitions or doors
which might appear unsightly from outside Tenant's Premises.
3. Each Tenant shall see that all doors of its Premises are closed and
securely locked and must observe strict care and caution that all water
faucets, water apparatus, coffee makers and any other electrical appliances
or equipment are entirely shut off before the Tenant or its employees leave
such Premises, and that all utilities shall likewise be carefully shut off
so as to prevent waste or damage, and for any default or carelessness the
Tenant shall make good all injuries sustained by other Tenants or occupants
of the Building or Landlord.
4. No Tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt on any door of its Premises
without the prior written consent of Landlord. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock.
5. No Tenant shall make or have made additional copies of any keys or access
devices provided by Landlord. Each Tenant, upon the termination of the
Tenancy, shall deliver to Landlord all the keys or access devices for the
Building, offices, rooms and toilet rooms which shall have been furnished
Tenant or which Tenant shall have had made. In the event of the loss of any
keys or access devices so furnished by Landlord, Tenant shall pay Landlord
therefor.
6. No Tenant shall use or keep in its Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material other than limited
quantities necessary for the operation or maintenance of office equipment.
In the event flammable or combustible fluids or materials are permitted by
Landlord in the Premises, these materials must be maintained and secured so
as to comply with all laws, rules and regulations governing such materials,
including but not limited to, all fire codes.
7. No Tenant shall use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance or permit or suffer such Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations
or interfere in any way with other Tenants or those having business
therein, nor shall any animals or birds be brought or kept in or about any
Premises or the Building.
8. No cooking shall be done or permitted by any Tenant on its Premises without
the consent of Landlord (except that use by the Tenant of Underwriters'
Laboratory approved microwave ovens and approved equipment for the
preparation of coffee, tea, hot chocolate and similar beverages for Tenant
and its employees shall be permitted, provided that such equipment and use
is in accordance with applicable federal, state and city laws, codes,
ordinances, rules and regulations), nor shall Premises be used for lodging.
9. Except with the prior written consent of Landlord, no Tenant shall sell or
permit the sale, at retail, of newspapers, magazines, periodicals, theater
tickets or any other goods or merchandise in or on any Premises, nor shall
Tenant carry on, or permit or allow any employee or other person to carry
on, the business of stenography, typewriting or any similar business in or
from any Premises for the service or accommodation of occupants of any
other portion of the Building, nor shall the Premises of any Tenant be used
for the storage of merchandise or for manufacturing of any kind, nor shall
the Premises of any Tenant be used for any improper, immoral or
objectionable purpose, or any business activity other than that
specifically provided for in such Tenant's lease.
10. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation. The location of burglar alarms, telephones, call
boxes or other office equipment affixed to all Premises shall be subject to
the written approval of Landlord.
11. No Tenant shall install any radio or television antenna, loudspeaker or any
other device on the exterior walls or the roof of the Building. Tenant
shall not interfere with radio or television broadcasting or reception from
or in the Building or elsewhere.
12. Landlord shall have the right to prescribe the weight, size and position of
all safes, furniture, files, bookcases or other heavy equipment brought
into the Building. Safes or other heavy objects shall, if considered
necessary by Landlord, stand on wood strips of such thickness as determined
by Landlord to be necessary to properly distribute the weight thereof.
Landlord will not be responsible for loss of or damage to any such safe,
equipment or property from any cause, and all damage done to the Building
by moving or maintaining any such safe, equipment or other property shall
be repaired at the expense of Tenant.
13. Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building
or to any space therein to such a degree as to be objectionable to Landlord
or to any tenants in the Building shall be placed and maintained by Tenant,
at Xxxxxx's expense, on vibration eliminators or other devices sufficient
to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord.
14. No Tenant shall place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. No Tenant shall mark, or drive nails, screws or drill
into, the partitions, woodwork or plaster or in any way deface such
Premises or any part thereof.
15. Each Tenant shall store all its trash and garbage within the interior of
its Premises. No materials shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in this area without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be
made only through entryways designated for such purposes and at such times
as Landlord may designate.
16. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and each Tenant shall
cooperate to prevent the same. No Tenant shall make room-to-room
solicitation of business from other tenants in the Building.
17. Landlord reserves the right to exclude or expel from the Building and the
Property any person who, in Landlord's judgment, is intoxicated or under
the influence of alcohol or drugs or who is in violation of any of the
rules and regulations of the Building.
18. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except as Xxxxxx's address.
19. Tenant shall comply with all energy conservation, recycling and waste
reduction, safety, fire protection and evacuation procedures and
regulations established by Landlord or any governmental agency.
20. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
21. All wallpaper or vinyl fabric materials which Tenant may install on painted
walls shall be applied with a strippable adhesive. The use of nonstrippable
adhesives will cause damage to the walls when materials are removed, and
repairs made necessary thereby shall be made by Landlord at Tenant's
expense.
22. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other Tenant or Tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all Tenants of the Building.
23. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Xxxxxx agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
24. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
25. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any Lease of Premises in the
Building.
2
EXHIBIT "E"
SPECIAL STIPULATIONS
1. OPTION TO RENEW. Tenant shall have the right and option to renew this
Lease for an additional term of sixty (60) months by delivering written notice
thereof to Landlord at least nine (9) months prior to the expiration of the
primary term, provided that at the time of such notice, and at the end of the
Lease Term, Tenant is not in default of any of the terms, covenants or
conditions of this Lease. Upon the delivery of said notice and subject to any
conditions set forth in the preceding sentence, and upon the execution by
Landlord and Tenant of an extension agreement containing such terms and
provisions which are consistent with the provisions of this Paragraph, this
Lease shall be extended upon the same terms, covenants and conditions as
provided in this Lease, except that the monthly rental payable under Paragraph
2(a) of the Lease during the initial year of said renewal term shall be at the
prevailing market rate for the Premises at the commencement of such extended
term; provided, however, in no event shall the monthly rental calculated by this
Paragraph be less than the monthly rental payable closest to and prior to the
commencement of the renewal term. The rental payable for each subsequent year of
said renewal term shall be calculated by multiplying the rental payable for the
immediately prior year by one hundred three percent (103%), and the product so
achieved shall be the rental for such subsequent year. The "prevailing market
rate" shall be defined as the then fair market net rental value of the Premises
as of the date of commencement of the applicable renewal term, as reasonably
determined by Landlord. The fair market net rental value of the Premises shall
mean the net rental that would be agreed to by a landlord and a tenant, each of
whom is willing, but neither of whom is compelled, to enter into the lease
transaction. The fair market net rental value shall take into account the
following factors: rental for comparable premises in comparable existing
buildings (taking into consideration, but not limited to, use, location and/or
floor level within the applicable building, definition of net rentable area, age
and location of the applicable buildings); the rentable area of the Premises
being leased; the length of the pertinent rental term; the extent to which the
tenant improvement allowance, rent credit, moving allowance, space planning
allowance, or similar inducements given to Tenant are more or less that that
which would have been given to a comparable tenant in a comparable building.
Notwithstanding the foregoing, any termination of this Lease, or any assignment
of this Lease or subletting of more than fifteen percent (15%) of the Premises
in effect at the time of notice to Landlord of the exercise of such renewal
option, shall terminate the option of Tenant contained in this Paragraph.
2. LETTER OF CREDIT. Within three (3) days after the execution and delivery
of this Lease, Tenant shall deliver to Landlord an irrevocable and unconditional
Letter of Credit (herein, together with all replacements thereof, being called
the "Letter of Credit") issued by Silicon Valley National Bank, or another bank
or financial institution acceptable to Landlord. The Letter of Credit shall be
initially in an amount equal to $540,000.00; provided, however, that the Letter
of Credit may provide that on each of the fifth (5th) and sixth (6th)
anniversaries of the Commencement Date of this Lease, the amount of the Letter
of Credit shall decrease by $180,000.00. The term of the Letter of Credit shall
extend from the date of the Lease through at least ninety (90) days after the
expiration of the Lease Term (including any renewal periods). At Tenant's
option, the initial Letter of Credit may be for a term of not less than one (1)
year, and, in such event, such Letter of Credit shall be extended by Tenant for
periods of not less than one (1) year each so that the Letter of Credit, as
extended and replaced, remains continually in existence during the entire period
required in this paragraph. Notwithstanding any provision to the contrary
herein, if such Letter of Credit is for a term shorter than the entire Lease
Term, Landlord may draw upon the entire amount of the Letter of Credit in the
event Landlord shall not receive, at least fifteen (15) days prior to the
expiration date of such Letter of Credit, a replacement Letter of Credit in form
and substance identical to said Letter of Credit so expiring and otherwise
satisfying the obligations herein. The failure of Tenant to provide a
replacement Letter of Credit in accordance with the provisions hereof for any
expiring Letter of Credit shall be an event of default by Tenant under this
Lease and shall entitle Landlord to exercise any and all remedies provided in
this Lease or otherwise available to Landlord.
The Letter of Credit shall be in form acceptable to Landlord and shall
provide that the only condition to a draw under the Letter of Credit shall be
the presentation by Landlord of a sight draft. Landlord shall not draw upon the
Letter of Credit except as permitted in this paragraph 2. The Letter of Credit
shall be transferable and assignable by Landlord, in whole or in part, without
cost to Landlord. Tenant shall pay all costs and shall take all steps necessary
for any such proposed transfer or assignment of the Letter of Credit. If Tenant
fails to pay such costs of take such steps in connection with a proposed
transfer or assignment of the Letter of Credit, then Landlord may draw upon the
Letter of Credit in whole or in part (at Landlord's option) and may transfer the
proceeds of such draw. The Letter of Credit may be drawn in whole or in part by
Landlord (at Landlord's option) from time to time (and more than one time for
partial draws) upon the occurrence of any event of default by Tenant under this
Lease, which default is not cured within any applicable cure period, and without
any further notice to Tenant. The Letter of Credit may also be drawn by Xxxxxxxx
as provided in paragraph 3 of this Exhibit "E" below. Landlord may draw upon the
Letter of Credit without proceeding against any person or exhausting any other
remedies which Landlord may have and without resorting to any other security
held by Landlord. Landlord may apply the proceeds of the Letter of Credit in any
order or manner to any amounts owed by Tenant under or pursuant to this Lease or
to reimburse Landlord for amounts previously paid by Landlord pursuant to this
Lease, including, but not limited to, amounts paid by Landlord for tenant
improvements. All amounts drawn by Landlord shall immediately become the
property of Landlord and shall be retained by Landlord. In no event shall any
such application cure any event of default by Tenant under this Lease.
Furthermore, in no event shall the Letter of
Credit, or Landlord's right to draw upon the Letter of Credit, be affected or
impaired by (i) the waiver, compromise, settlement, termination or other release
of the performance or observance by any person liable or to become liable for
the obligations under this Lease; (ii) the modification or amendment (whether
material or otherwise) of any obligation, covenant or agreement set forth in
this Lease; (iii) the voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the assets, marshalling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or any similar proceeding affecting Tenant, or any allegation or contest of
the validity of this Lease; or (iv) the taking or the omission of any of the
actions referred to in this Lease.
3. FUNDING OF TENANT. Tenant acknowledges that Xxxxxx's ability to perform
Tenant's obligations under this Lease is dependent upon Tenant obtaining
additional funds for Tenant's operations. Tenant represents that, in addition to
other funds already received by Tenant, Tenant shall obtain from a venture
capital firm an amount not less than $7,200,000.00 to be used for Tenant's
operations (the "Venture Funding"). The Venture Funding has not been received as
of the date of this Lease. Landlord and Tenant agree that, notwithstanding any
provisions to the contrary in this Lease or in the Improvement Agreement,
Landlord's obligations under this Lease and under the Improvement Agreement,
including, but not limited to, Landlord's obligation to construct the Tenant
Improvements in accordance with the Improvement Agreement, are expressly
conditioned upon the Venture Funding occurring on or before February 28, 2001.
Without limiting the foregoing, Landlord shall have no obligation to commence
construction of the Tenant Improvements prior to the occurrence of the Venture
Funding. If the Venture Funding does not occur on or before February 28, 2001,
then Landlord shall have the right to terminate this Lease upon notice to
Tenant, and to draw the entire amount of the Letter of Credit and to retain such
amount as liquidated damages for Tenant's failure to obtain the Venture Funding
on or before February 28, 2001. Landlord and Xxxxxx acknowledge that the actual
damages to Landlord in such event will be difficult, if not impossible, to
determine, and that such liquidated damages are a reasonable estimate of the
actual damages that Landlord would incur.
For purposes hereof, the Venture Funding shall be deemed to have occurred
if, and only if, all of the following items shall have occurred:
a. An amount not less than $7,200,000.00 shall have been actually paid
by the Venture Funding to Tenant, and such funds are held by Tenant on an
unrestricted, unencumbered basis.
b. The Venture Funding shall have provided written confirmation to
Landlord that such funds of not less than $7,200,000.00 have been paid to Tenant
on an unrestricted, unencumbered basis.
c. Landlord shall be provided written confirmation from Xxxxxx's
depository bank confirming the receipt of not less than $7,200,000.00.
d. Tenant shall have provided to Landlord a financial statement
certified by Tenant reflecting the receipt by Tenant of not less than
$7,200,000.00 as a result of the Venture Funding.
4. Without Landlord's prior written consent, Tenant shall not convey,
transfer or distribute assets of Tenant in such manner as will result in a
reduction in Tenant's net worth by more than twenty percent (20).
EXHIBIT "F"
FORM OF SUBORDINATION AND NON-DISTURBANCE AGREEMENT
THIS AGREEMENT made this ____ day of ______________, 20 ____, between
GUARANTY FEDERAL BANK, F.S.B., a federal savings bank (hereinafter called
"Lender") and _________________ , a ______________ (hereinafter called "Tenant")
and _____________________ (hereinafter called "Landlord").
WITNESSETH THAT:
WHEREAS, Lender is now or will be the owner and holder of a Deed of Trust,
Mortgage and Security Agreement (hereinafter called the "Security Instrument"),
dated ___________, recorded in Volume __________, Page _____ of the Real
Property Records of _____________ County, __________, covering the real property
described in EXHIBIT A and the buildings and improvements thereon (hereinafter
collectively called the "Mortgaged Premises") securing the payment of a
promissory note in the stated principal amount of $ __________, payable to the
order of Lender;
WHEREAS, Tenant is the tenant under Lease Agreement (hereinafter called the
"Lease") dated __________, by and between Landlord and Tenant, covering certain
property (hereinafter called the "Demised Premises") consisting of a part of the
Mortgaged Premises; and
WHEREAS, Xxxxxx, Landlord and Xxxxxx desire to confirm their understanding
with respect to the Lease and the Security Instrument;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Lender, Landlord and Tenant hereby agree and covenant as
follows:
1. SUBORDINATION. The Lease now is, and shall at all times and for all purposes
continue to be, subject and subordinate, in each and every respect, to the
Security Instrument, with the provisions of the Security Instrument controlling
in all respects over the provisions of the Lease, it being understood and agreed
that the foregoing subordination shall apply to any and all increases, renewals,
modifications, extensions, substitutions, replacements and/or consolidations of
the Security Instrument, provided that any and all such increases, renewals,
modifications, extensions, substitutions, replacements and/or consolidations
shall nevertheless be subject to the terms of this Agreement.
2. NON-DISTURBANCE. So long as (i) Tenant is not in default (beyond any period
given Tenant to cure such default) in the payment of rent or additional rent or
in the performance of any of the other terms, covenants or conditions of the
Lease on Tenant's part to be performed, (ii) the Lease is in full force and
effect, and (iii) Tenant attorns to Lender or a purchaser of the Mortgaged
Premises as provided in Paragraph 3, then (a) Tenant's possession, occupancy,
use and quiet enjoyment of the Demised Premises under the Lease, or any
extensions or renewals thereof or acquisition of additional space which may be
effected in accordance with any option therefor in the Lease, shall not be
terminated, disturbed, diminished or interfered with by Lender in the exercise
of any of its rights under the Security Instrument, and (b) Lender will not join
Tenant as a party defendant in any action or proceeding for the purpose of
terminating Tenant's interest and estate under the Lease because of any default
under the Security Instrument.
3. ATTORNMENT. If Lender shall become the owner of the Mortgaged Premises or the
Mortgaged Premises shall be sold by reason of non-judicial or judicial
foreclosure or other proceedings brought to enforce the Security Instrument or
the Mortgaged Premises shall be conveyed by deed in lieu of foreclosure, the
Lease shall continue in full force and effect as a direct Lease between Lender
or other purchaser of the Mortgaged Premises, who shall succeed to the rights
and duties of Landlord, and Tenant. In such event, Tenant shall attorn to Lender
or such purchaser, as the case may be, upon any such occurrence and shall
recognize Lender or such purchaser, as the case may be, as the Landlord under
the Lease. Such attornment shall be effective and self-operative without the
execution of any further instrument on the part of any of the parties hereto.
Tenant agrees, however, to execute and deliver at any time and from time to
time, upon the request of Landlord or of any holder(s) of any of the
indebtedness or other obligations secured by the Security Instrument or any such
purchaser, any instrument or certificate which, in the sole reasonable judgment
of the requesting party, is necessary or appropriate, in connection with any
such foreclosure or deed in lieu of foreclosure or otherwise, to evidence such
attornment, which instrument or certificate shall be in form and content
reasonably acceptable to Tenant. Tenant hereby waives the provisions of any
statute or rule of law, now or hereafter in effect, which may give or purport to
give Tenant any right or election to terminate or otherwise adversely affect the
Lease and the obligations of Tenant thereunder as a result of any such
foreclosure or deed in lieu of foreclosure.
4. OBLIGATIONS AND REMEDIES. If Lender shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of non-judicial or
judicial foreclosure or other proceedings brought to enforce the Security
Instrument or the Mortgaged Premises shall be conveyed by deed in lieu of
foreclosure, Lender or other purchaser of the Mortgaged Premises, as the case
may be, shall have the same remedies by entry, action or otherwise in the event
of any default by Tenant (beyond any period given Tenant to cure such default)
in the
payment of rent or additional rent or in the performance of any of the other
terms, covenants and conditions of the Lease on Xxxxxx's part to be performed
that Landlord had or would have had if Lender or such purchaser had not
succeeded to the interest of Landlord. Upon attornment by Tenant as provided
herein, Lender or such purchaser shall be bound to Tenant under all the terms,
covenants and conditions of the Lease and Tenant shall have the same remedies
against Lender or such purchaser for the breach of an agreement contained in the
Lease that Tenant might have had under the Lease against Landlord if Lender or
such purchaser had not succeeded to the interest of Landlord; provided, however,
that Lender or such purchaser shall not be liable or bound to Tenant:
(a) for any act or omission of any prior landlord (including Landlord)
which constitutes a default or breach of the Lease; provided, however,
nothing herein shall be deemed to be a waiver of Tenant's rights or
remedies in the event such act or omission is of a continuing nature, such
as, for example, Landlord's failure to fulfill a repair obligation, and
such default is not cured by Lender or such purchaser after Lender or such
purchaser acquires the Mortgaged Premises (however, Lender or such
purchaser shall in no event be liable for any tort claims which Tenant may
have against Landlord or any claims for liquidated damages which may be
owing by Landlord under the Lease); or
(b) for any offsets or defenses which the Tenant might be entitled to
assert against Landlord arising prior to the date Xxxxxx takes possession
of Landlord's interest in the Lease or becomes a mortgagee in possession,
subject to Xxxxxx's continued right of offset for any default by Landlord
which remains uncured provided notice of such default has been provided to
Lender in accordance with the provisions of this Agreement; or
(c) for or by any rent or additional rent which Tenant might have paid for
more than the current month to any prior landlord (including Landlord); or
(d) by any amendment or modification of the Lease made without Lender's
consent that (i) results in a reduction or rent or other sums due and
payable pursuant to the Lease (ii) modifies any operating covenant of
Tenant in the Lease, (iii) reduces the term of the Lease, (iv) terminates
the Lease, (v) provides for payment of rent more than one month in advance,
or (vi) materially increases Landlord's obligations under the Lease; or
(e) for any security deposit, rental deposit or similar deposit given by
Tenant to a prior landlord (including Landlord) unless such deposit is
actually paid over to Lender or such purchaser by the prior landlord; or
(f) for any portion of the Tenant Allowance (as such term is defined in the
Lease) previously disbursed to Landlord by Lender pursuant to the
Construction Loan Agreement executed by and between Landlord and Xxxxxx; or
(g) for the construction of any improvements required of Landlord under the
Lease in the event Lender or such purchaser acquires title to the Mortgaged
Premises prior to full completion and acceptance by Tenant of improvements
required under the Lease; provided, however, such lack of liability on the
part of Lender or such purchaser pursuant to this subparagraph shall not
affect Tenant's rights of self-help and offset or termination described in
the Lease in the event of such failure to complete such improvements as
long as Tenant has provided all applicable notices and cure periods as
required under the Lease and this Agreement; or
(h) by any provision of the Lease restricting use of other properties owned
by Xxxxxx, as landlord; or
(i) by any notice given by Xxxxxx to a prior landlord (including Landlord)
unless a copy thereof was also then given to Lender.
The person or entity to whom Tenant attorns shall be liable to Tenant under
the Lease only for matters arising during such person's or entity's period of
ownership.
5. NO ABRIDGMENT. Nothing herein contained is intended, nor shall it be
construed, to abridge or adversely affect any right or remedy of Landlord under
the Lease in the event of any default by Tenant (beyond any period given Tenant
to cure such default) in the payment of rent or additional rent or in the
performance of any of the other terms, covenants or conditions of the Lease on
Tenant's part to be performed.
6. NOTICES OF DEFAULT TO LENDER. Xxxxxx agrees to give Xxxxxx a copy of any
default notice sent by Tenant under the Lease to Landlord.
7. REPRESENTATIONS BY TENANT. Tenant represents and warrants to Lender that
Tenant has validly executed the Lease; the Lease is valid, binding and
enforceable and is in full force and effect in accordance with its terms; the
Lease has not been amended except as stated herein; no rent under the Lease has
been paid more than thirty (30) days in advance of its due date; there are no
defaults existing under the Lease; and Tenant, as of this date, has no charge,
lien, counterclaim or claim of offset under the Lease, or otherwise, against the
rents or other charges due or to become due under the Lease.
8. RENT PAYMENT. If Lender shall become the owner of the Mortgaged Premises or
the Mortgaged Premises shall be sold by reason of non-judicial or judicial
foreclosure or other proceedings brought to enforce the Security Instrument or
the Mortgaged Premises shall be conveyed by deed in lieu of foreclosure, Tenant
agrees to pay all rents directly to Lender or other purchaser of the Mortgaged
Premises, as the case may be, in accordance with the Lease immediately upon
notice of Lender or such purchaser, as the case may be, succeeding to Landlord's
interest under the Lease. Xxxxxx further agrees to pay all rents directly to
Lender immediately upon notice that Xxxxxx is exercising its rights to such
rents under the Security Instrument or any other loan documents (including but
not limited to any Assignment of Leases and Rents) following a default by
Landlord or other applicable party. Tenant shall be under no obligation to
ascertain whether a default by Landlord has occurred under the Security
Instrument or any other loan documents. Landlord waives any right, claim or
demand it may now or hereafter have against Tenant by reason of such direct
payment to Lender and agrees that such direct payment to Lender shall discharge
all obligations of Tenant to make such payment to Landlord.
9. NOTICE OF SECURITY INSTRUMENT. To the extent that the Lease shall entitle
Tenant to notice of any deed of trust or security agreement, this Agreement
shall constitute such notice to the Tenant with respect to the Security
Instrument and to any and all other deeds of trust and security agreements which
may hereafter be subject to the terms of this Agreement.
10. LANDLORD DEFAULTS. Tenant agrees with Lender that effective as of the date
of this Agreement: (i) Tenant shall not take any steps to terminate the Lease
for any default by Landlord or any succeeding owner of the Mortgaged Premises
until after giving Xxxxxx written notice of such default, stating the nature of
the default and giving Lender thirty (30) days from receipt of such notice to
effect cure of the same, or if cure cannot be effected within said thirty (30)
days due to the nature of the default, Lender shall have a reasonable tune to
cure provided that it commences cure within said thirty (30) day period of time
and diligently carries such cure to completion; and (ii) notice to Landlord
under the Lease (oral or written) shall not constitute notice to Lender.
11. LIABILITY OF LENDER. If Lender shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of foreclosure or
other proceedings brought to enforce the Security Instrument or the Mortgaged
Premises shall be conveyed by deed in lieu of foreclosure, Tenant agrees that,
notwithstanding anything to the contrary contained in the Lease, after such
foreclosure sale or conveyance by deed in lieu of foreclosure, Lender shall have
no personal liability to Tenant under the Lease and Tenant shall look solely to
the estate and property of Landlord in the Mortgaged Premises, to the net
proceeds of sale thereof or the rentals received therefrom, for the satisfaction
of Tenant's remedies for the collection of a judgment or other judicial process
requiring the payment of money by Landlord in the event of any default or breach
by Landlord with respect to any of the terms, covenants, and conditions of the
Lease to be observed or performed by Landlord and any other obligation of
Landlord created by or under the Lease, and no other property or assets of
Lender shall be subject to levy, execution or other enforcement procedures for
the satisfaction of Tenant's remedies. Further, in the event of any transfer by
Xxxxxx of Landlord's interest in the Lease, Lender (and in the case of any
subsequent transfers or conveyances, the then assignor), including each of its
partners, officers, beneficiaries, co-tenants, shareholders or principals (as
the case may be) shall be automatically freed and released, from and after the
date of such transfer or conveyance, of all liability for the performance of any
covenants and agreements which accrue subsequent to the date of such transfer of
Landlord's interest.
12. NOTICE. Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery, or (b) expedited delivery
service with proof of delivery, or (c) United States mail, postage prepaid,
registered or certified mail, or (d) telegram or telex, addressed as follows:
To Lender: Guaranty Federal Bank, F.S.B.
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Commercial Real Estate
With a copy to: Guaranty Federal Bank, F.S.B.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention:____________
Guaranty Federal Bank, F.S.B.
Three Xxxxx Center
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention:__________
To Tenant: Optium, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx XxXxx Xx
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith. Any such notice or communication shall be deemed to have been
given and received either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or in the case of telegram or telex,
upon receipt.
13. LETTER OF CREDIT. Tenant and Landlord agree that the Letter of Credit (as
defined in the Lease) shall name Xxxxxx as the beneficiary thereof, and that
Lender (without the joinder of Landlord) shall have the right to present the
Letter of Credit for payment at such time as Landlord is entitled to present the
Letter of Credit for payment under the Lease. Tenant acknowledges and agrees
that Xxxxxx may rely on a written notice from Landlord that Tenant is in default
under the Lease and that Lender may present the Letter of Credit for payment as
provided in the Lease, and that Xxxxxx's sole recourse shall be against Landlord
and not Lender in the event Xxxxxx relies on such written notice from Landlord.
In the event Lender makes a partial draw on the Letter of Credit to pay past due
installment(s) of rent under the Lease, Lender shall be entitled to apply the
proceeds received from such presentation of the Letter of Credit to any
installments of principal and/or interest then due and owing under the Loan, and
provided that the Landlord is not then in default under the Loan, the excess, if
any, shall be returned to Landlord, otherwise, Lender shall keep such excess. In
the event the entire outstanding amount of the Letter of Credit is presented for
payment, Lender shall be entitled to apply the entire proceeds of the Letter of
Credit received from such presentation to the indebtedness then outstanding
under the Loan. At such time as Landlord repays to Lender all amounts
outstanding under the Loan, Lender shall assign the Letter of Credit to Landlord
by delivering a notice to the issuing bank.
14. MODIFICATION. This Agreement may not be modified orally or in any manner
other than by an agreement in writing signed by the parties hereto or their
respective successors in interest.
15. SUCCESSOR XXXXXX. The term "Lender" as used throughout this Agreement
includes any successor or assign of Lender, any affiliate of Lender acquiring
the Mortgaged Property at foreclosure or by deed-in-lieu of foreclosure, and any
holder(s) of any interest in the indebtedness secured by the Security
Instrument.
16. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns, and any purchaser
or purchasers at foreclosure of the Mortgaged Premises, and their respective
successors and assigns.
17. PARAGRAPH HEADINGS. The paragraph headings contained in this Agreement are
for convenience only and shall in no way enlarge or limit the scope or meaning
of the various and several paragraphs hereof.
18. GENDER AND NUMBER. Within this Agreement, words of any gender shall be held
and construed to include any other gender, and words in the singular number
shall be held and construed to include the plural and words in the plural number
shall be held and construed to include the singular, unless the context
otherwise requires.
19. APPLICABLE LAW. This Agreement and the rights and duties of the parties
hereunder shall be governed by all purposes by the law of the state where the
Mortgaged Premises is located and the law of the United States applicable to
transactions within such state.
IMPROVEMENT AGREEMENT - DISCOVERY LAKE
THIS IMPROVEMENT AGREEMENT (the "Agreement") is made as of the 28th day of
December, 2000 between SV CENTRAL FLORIDA PHASE II LIMITED PARTNERSHIP, a Texas
limited partnership (hereinafter called "Landlord"), and OPTIUM, INC., a Florida
corporation (hereinafter called "Tenant").
WITNESSETH:
Landlord and Tenant have as of even date herewith entered into that certain
Discovery Lake Office Lease Agreement (the "Lease") with respect to certain
space (the "Premises") located in the Building located or to be located at 0000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx; and
WHEREAS, Xxxxxxxx and Tenant desire to enter into this Agreement to set
forth their agreements regarding the completion of the Premises.
NOW, THEREFORE, for and in consideration of the execution of the Lease, the
mutual agreements set forth herein, and other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant do hereby covenant and agree as follows:
1. IMPROVEMENTS
(a) At Landlord's expense, Landlord shall cause the base building portion
of the Building to be completed substantially in accordance with those certain
base building plans and specifications referenced in SCHEDULE 1 attached hereto
and incorporated herein.
(b) At Tenant's expense, Landlord shall furnish and install, substantially
in accordance with the construction drawings and specifications approved by
Tenant and Landlord as hereinafter provided, partitions, doors, lighting
fixtures, acoustical ceiling, floor coverings, electrical outlets, telephone
outlets, air conditioning, fire sprinklers, signage, wall finishes, and
construction clean-up and other improvements reflected on Tenant's Plans (as
hereinafter defined) (the "Tenant Improvements"). Landlord shall cause to be
prepared at Tenant's expense all architectural plans and specifications and all
structural, mechanical and electrical engineering plans and specifications
("Tenant's Plans") required for the Tenant Improvements, provided, that, in
addition to Landlord's Allowance (as hereinafter defined), Landlord shall pay
for the initial preparation of Tenant's space plan and one revision thereof at a
cost not to exceed $0.12 per rentable square foot in the Premises. Xxxxxxxx has
selected, and Tenant hereby approves, Farmer Xxxxx & Xxxxxxx ("Tenant's
Architect") to prepare Tenant's Plans. Tenant Improvements shall include the
installation of roof-top HVAC units, separately zoned for the Premises in
accordance with the Tenant's Plans. Tenant Improvements to be constructed by
Landlord pursuant to this Agreement are sometimes herein referred to as
"Landlord's Work". Landlord shall bid Landlord's Work to three (3) contractors
selected by Tenant who meet Xxxxxxxx's insurance requirements. Landlord shall
notify Tenant of the results of such bidders, and Tenant shall select one of
such three (3) contractors as the contractor to perform Landlord's Work pursuant
to this Agreement.
2. LANDLORD'S ALLOWANCE
As Xxxxxxxx's contribution to the Tenant Improvements and Tenant's Plans
provided in Paragraph 1(b) of this Agreement, Landlord shall provide Tenant with
an allowance determined by multiplying (x) the number of rentable square feet
contained in the Premises by (y) Twenty-Four and No/100 Dollars ($24.00) per
square foot (hereinafter referred to as "Landlord's Allowance"). That portion of
Landlord's Allowance not spent within twelve (12) months after the date the
Lease Term begins shall be credited toward rent next coming due under the Lease
until the remainder of Xxxxxxxx's Allowance has been exhausted. For Landlord's
administrative supervision of the completion of the Tenant Improvements,
Landlord shall be entitled to deduct and retain from Landlord's Allowance a
construction supervision fee equal to the product of Zero and 50/100 Dollars
($0.50) times the number of rentable square feet contained in the Premises;
provided, however, that if Tenant retains an independent third-party
construction supervisor for the Tenant Improvements, Landlord's construction
supervision fee shall be reduced to Zero and 25/100 Dollars ($0.25) times the
number of rentable square feet contained in the Premises.
3. TENANT'S COST
(a) Tenant shall bear the cost, if any, of the Tenant Improvements and
Xxxxxx's Plans described in Paragraph 1(b) of this Agreement over and above
Landlord's Allowance applied thereto as provided under Paragraph 2 of this
Agreement. Any modifications of any part of the work described in Paragraph 1
already completed that are requested by Tenant shall be at Tenant's expense.
(b) Tenant shall pay all costs associated with any Tenant-requested changes
or modifications of the improvements as defined by the Tenant's Plans. Tenant
will be liable for any increase in construction costs as a result of Tenant
Delay. For purposes hereof, a "Tenant Delay" shall mean any of the following:
(1) Tenant's failure to agree to plans, specifications, or cost estimates within
a reasonable period of time; (2) Tenant's request for materials, finishes or
installations other than Landlord's standard; (3) Tenant's changes in plans; or
(4) the performance or completion by a party employed by Tenant; or (5) Tenant's
failure for any reason to perform any obligation under the Lease or under this
Improvement Agreement within the specified period.
(c) All costs to be borne by Tenant for Landlord's Work pursuant to this
Agreement shall be paid to Landlord by Tenant prior to the commencement of
Xxxxxxxx's Work. Any additional costs for which Xxxxxx subsequently becomes
responsible shall be paid to Landlord by Tenant within thirty (30) days
following receipt by Tenant of Landlord's invoice therefor, but in any event not
later than the date the Lease Term begins.
(d) Tenant shall pay all sales, rent and other taxes, if any, and any
interest and/or penalties thereon, which may be imposed on any amounts paid or
contributed by Tenant towards the costs of designing and/or completing the
Tenant
Improvements or in connection with any work performed by Xxxxxx, and Xxxxxx
shall indemnify and hold harmless Landlord from and against any costs, expenses,
claims, liabilities and losses with respect thereto.
4. SCHEDULE FOR TENANT'S PLANS
(a) Within three (3) days after the date of this Lease, Tenant shall
provide to Landlord all details, information and requirements of Tenant
necessary for the preparation of Tenant's Plans.
(b) Landlord shall diligently pursue the preparation of Tenant's Plans, and
shall submit such plans to Tenant for Tenant's approval. Within two (2) business
days after receipt of such plans by Xxxxxx, Tenant shall review such plans and
notify Landlord in writing either that (i) Tenant approves such plans or (ii)
Tenant requests changes to such plans, which changes will be specifically
detailed in such notice. Any changes reasonably requested by Tenant shall be
promptly made by Landlord and a copy of the final Tenant Plans shall be sent to
Tenant. In no event shall the plans require any modifications of or additions to
the storefront or exterior doors of the Premises, or provide for more than
thirty percent (30%) of the Premises being other than an "open concept"
floorplan, without Xxxxxxxx's approval, which approval Landlord may grant or
deny in Landlord's sole discretion. Any further modifications or changes to such
final Tenant's Plans thereafter requested by Xxxxxx may result in Tenant Delay.
5. FORCE MAJEURE
Landlord and Tenant agree that Landlord may be delayed in the completion of
construction of Landlord's Work due to acts of God, civil strife, riots,
strikes, governmental action (not caused by Tenant or Landlord) shortages of
equipment or supplies, or other matters beyond the reasonable control of
Landlord (a "Force Majeure Matter"), and Landlord shall not be in default
hereunder or liable to Tenant in the event of a delay in the completion of
Landlord's Work due to a Force Majeure Matter.
6. TENANT'S WORK
All work beyond Landlord's Work to prepare the Premises for Tenant's
occupancy, including, but not limited to, installation of telephone, data and
other telecommunications equipment, office furniture and furniture systems,
installation of security devices and locks, and other finish work to be
performed by or for Tenant, shall be furnished and installed by Tenant at
Tenant's expense. Tenant shall adopt a schedule in conformance with the schedule
of Landlord's contractors and conduct its work in such a manner as to maintain
harmonious labor relations and as not to interfere unreasonably with or delay
the work of Xxxxxxxx's contractors. Tenant's contractors, subcontractors, and
labor shall be acceptable to and approved by Landlord and shall be subject to
the administrative supervision of Landlord. Contractors and subcontractors
engaged by Tenant shall employ persons and means to insure as far as may be
possible the progress of the work without interruption on account of strikes,
work stoppages or similar causes for delay.
7. MISCELLANEOUS
Time is of the essence of this Agreement. This Agreement shall in all
respects be governed by the laws of the State of Florida. This Agreement may not
be modified except by a written instrument executed by the parties hereto. This
Agreement may not be assigned or transferred by Tenant, except that this
Agreement shall be deemed assigned by Tenant in connection with any permitted
assignment of the Lease pursuant to the terms of the Lease. Subject to the
foregoing restrictions on assignment hereof, the terms, covenants and conditions
contained herein shall be binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns to the parties hereto. Any
capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings therefor set forth in the Lease. Any notice, demand or request
required or permitted under this Agreement shall be sent in accordance with the
notice provisions of the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LANDLORD:
SV CENTRAL FLORIDA PHASE II LIMITED
PARTNERSHIP, a Texas limited partnership
By: Xxxxxxx, Xxxxxx & Co., a Texas
corporation, general partner
By:
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
TENANT:
OPTIUM, INC., a Florida corporation
By: /s/ X. XxXxxXx
------------------------------------
Name: XXXXXXX XXXXXXX
Title: PRESIDENT
Attest:
--------------------------------
Name:
----------------------------------
Title:
---------------------------------
(CORPORATE SEAL)
SCHEDULE 1
BASE BUILDING PLANS AND SPECIFICATIONS
INDEX OF DRAWINGS FOR
DISCOVERY LAKE - PHASE II
CENTRAL FLORIDA RESEARCH PARK
ORANGE COUNTY, FLORIDA
ISSUED FOR PERMIT MARCH 6, 2000
GENERAL XXXXXX - XXXXXX XXXXX XXXXXXX ARCHITECTS, INC.:
G001 COVER AND INDEX SHEET 03-06-00
G002 INFORMATION AND ABBREVIATIONS SHEET 02-28-00
CIVIL - S K CONSORTIUM, INC.
C-l EXISTING SITE AND DEMOLITION PLAN 03-12-00
C-2 SITE DEVELOPMENT PLAN 03-12-00
C-3 GRADING AND DRAINAGE PLAN 03-12-00
C-4 SITE UTILITY PLAN 03-12-00
C-5 STANDARD UTILITIES DETAILS 03-12-00
C-6 STANDARD UTILITIES DETAILS 03-12-00
C-7 STANDARD UTILITIES DETAILS 03-12-00
LANDSCAPE - XXXXX XXXXXX ASSOCIATES
Ll.l PLANTING PLAN 03-13-00
L1.2 PLANTING DETAILS 03-13-00
L2.1 IRRIGATION PLAN 03-13-00
L2.2 IRRIGATION DETAILS 03-13-00
STRUCTURAL - XXXXXX XXXXXXXX XXXXXXXXXXXX ASSOCIATES, INC.
S001 STRUCTURAL NOTES AND ABBREVIATIONS 03-06-00
S101 FOUNDATION PLAN 03-06-00
S102 ROOF FRAMING PLAN 03-06-00
S201 FOUNDATION SECTIONS & DETAILS 03-06-00
S202 ROOF FRAMING SECTIONS AND DETAILS 03-06-00
S301 TILT-UP PANEL REINFORCING & DETAILS 03-06-00
ARCHITECTURAL - FARMER XXXXX XXXXXXX ARCHITECTS, INC.
A021 DOOR SCHEDULE AND DETAILS 02-28-00
A031 LIFE SAFETY PLAN AND PROJECT DATA 02-28-00
A101 COMPOSITE FLOOR PLAN AND DETAILS 02-28-00
A102 FLOOR PLAN - AREA (A) 02-28-00
A103 FLOOR PLAN - AREA (B) 02-28-00
A104 FLOOR PLAN - AREA (C) 02-28-00
A105 PANEL LAYOUT PLAN 02-28-00
A151 ROOF PLAN & DETAILS 02-28-00
A201 EXTERIOR ELEVATIONS 02-28-00
A202 EXTERIOR ELEVATIONS 02-28-00
A221 PANEL TYPES 02-28-00
A222 PANEL TYPES 01-31-00
A223 WINDOW TYPES 02-28-00
A301 BUILDING SECTIONS 03-06-00
A401 WALL SECTIONS & DETAILS 02-28-00
A402 WALL SECTIONS 02-28-00
A601 REFLECTED CEILING PLAN 02-28-00
MECHANICAL - XXXX ENGINEERING, INC.
M101 MECHANICAL FLOOR PLAN 03-09-00
ELECTRICAL - XXXX ENGINEERING, INC.
E101 ELECTRICAL FLOOR PLAN 03-09-00
E102 ELECTRICAL RISER AND SCHEDULES 03-09-00
EXHIBIT "H"
Chemicals: Safe Handling Practice
All flammable substances will be stored inside flame-proof cabinets. Acid
neutralizing creme will be kept in first aid boxes next to acid dispensers. Any
dangerous gas will be stored inside vented and exhausted gas cabinets with
alarms and automatic shut-down mechanisms. All waste chemicals will be collected
by state certified environmental control personnel. All acid waste will be
neutralized before being disposed.
Chemicals that will be used and stored on the premises include the following:
ORGANICS/SOLVENTS
Acetone 2 gallons
Methanol 2 gallons
Polyimide 100cc
Photoresist 1 pint
ACIDS
Hydrochloric acid 0.25 gallon
Sulphuric acid 0.25gallon
Hydrofluoric acid 0.25 gallon
Bromine 200cc
Hrydrobromic acid 0.25 gallon
Nitric acid 0.25 gallon
Acetic acid 0.25gallon
Lactic acid 0.25gallon
Potassium iodide 100gm
Potassium permanganate 100gm
Iodine 100gm
Neutralizing cremes
Ammonium Triphosphate 200gm
HF neutralizing creme 200gm
BASES
Potassium hydroxide 200gm
Ammonium hydroxide 500cc
Sodium hydroxide 200gm
Photoresist remover 1 gallon
GASES
Nitrogen 1000cf or 2-3 cylinders
Forming gas (15%H(2)/85% N(2)) 1000cf
Ammonia 1000cf
Silane 1000sf
Oxygen 1000sf
FREON-14 500sf
EXHIBIT "G"
DISCOVERY LAKE PHASE II
AT CENTRAL FLORIDA RESEARCH PARK
EXPENSES ESTIMATES
The following is our estimate of anticipated Direct Operating Expenses at
Discovery Lake Phase II Office Park for 2001:
1. Real Estate Taxes $1.06/SF
2. Insurance $ .11/SF
3. CAM/Management $1.49/SF
4. HVAC Maintenance $ .14/SF
$2.80/SF TOTAL*
*Plus applicable State Sales Tax
