Exhibit 10.9
LEASE
THIS LEASE ("Lease") is entered into and effective as of February 4, 2000
("Effective Date") by and between ECHELON INTERNATIONAL CORPORATION, a Florida
corporation, its successors and assigns ("Landlord"), and REGENERATION
TECHNOLOGIES, INC. ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain "Progress Center
Lease" dated as of June 30, 1998, which lease was amended to permit Tenant to
occupy and lease portions of additional space in the building located at 00000
Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx ("Building"), and
WHEREAS, the parties desire to lease additional space in the Building and
to supercede and replace, in part, the existing Progress Center Lease as so
amended, to the extent the same governed by the terms of leasing space in the
Building, with a separate lease agreement;
NOW, THEREFORE, for and in consideration of the sum of Ten and no/100
Dollars ($10.00) paid by Landlord to Tenant, and the mutual covenants and
conditions set forth herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that commencing as of the "Effective
Date". Landlord agrees to lease to Tenant, and Tenant agrees to lease from
Landlord, the "Leased Premises" (as defined in Section 1.1g), subject to the
following terms and conditions:
ARTICLE 1. SUMMARY OF LEASE PROVISIONS
1.1. BASIC DATA. Certain fundamental provisions of this Lease are
presented in this summary format in this Article to facilitate convenient
reference by the parties hereto. All references in this Lease to the following
terms shall be accorded the meanings or definitions given in this Article, as
though such meaning or definition were fully set forth throughout the text
hereof, unless such meanings are expressly modified, limited or expanded
elsewhere in this Lease. This Article, together with the terms herein
referenced, shall constitute an integral part of this Lease.
(a) "Annual Gross Rent" shall be Fifteen Dollars ($15.00) per rentable
square foot, per Lease Year. as scheduled below:
ANNUAL ANNUAL MONTHLY
LEASE GROSS GROSS PAYMENT
YEAR RENT/RSF: RENT: RENT:
1 $15.00 $176,010.00 $14,667.50
2 $15.23 $178,708.80 $14,892.40
(note: The above schedule does not include any sales or use tax assessed
on rental)
(b) "Building" shall mean the building located on certain real property
located in the City of Alachua, Alachua County, Florida having a current
address of 13709 Progress Boulevard, Alachua, Florida.
(c) "Business Days" shall mean all days, except Saturdays, Sundays, New
Year's Day, President's Day, Memorial Day, Independence Day, Christmas
Day, Labor Day, Thanksgiving, and other recognized holidays.
(d) "Commencement Date" shall mean the Effective Date of this Lease.
(e) "Default Rate" means interest at the highest rate permitted by Chapter
689, Florida Statutes, or its successor legislation.
(f) "Lease Year" shall mean each twelve (12)-month period beginning on the
Commencement Date and each anniversary thereof, provided the Commencement
Date is on the first day of a month. If the Commencement Date falls on a
day other than the first day of a month, then the first Lease Year shall
begin on the first day of the calendar month next following the
Commencement Date. If the Commencement Date falls on a day other than the
first day of a month, then the Term shall be extended by the period of
time ("Partial Lease Year") from such Commencement Date through the end of
the calendar month in which the Commencement Date falls.
(g) "Leased Premises" shall be deemed to mean approximately 11,734 square
feet of rentable area, which area shall be located in Suites 130, 135,
1-7, 102 113 and 144 in the Building, which Building is located in
Progress Center and depicted on the site plan attached hereto and made a
part hereof as Exhibit "A".
(h) "Normal Business Hours" shall mean from 8:00 am, to 500 p.m. during
all Business Days.
(i) "Rentable Area" or "Rentable Square Footage" shall mean the total area
(as it exists from time to time). Rentable Area of the Leased Premises is
hereby deemed to mean 11,734 square feet.
(j) "Term" shall mean two (2) Lease Years (plus a Partial Lease Year, if
applicable) commencing on the Commencement Date and ending at 11:59 p.m.
on the last day of the twenty-fourth (24th) full calendar month following
the Commencement Date ("Expiration Date") or on such earlier date in which
the Term of this Lease shall expire or be canceled or terminated pursuant
to any of the conditions or covenants of this Lease or pursuant to law,
and furthermore, shall include any renewal term, if such renewal term come
into existence.
(k) "Use" shall mean general office use, activities relating to the
procurement, processing, packaging, storage, and shipment of human tissue,
and laboratory use, biomedical and medical device research, manufacturing
and distribution, and for no other purpose whatsoever.
ARTICLE 2. LEASED PREMISES AND TERM
2.1. Leased Premises. Subject to the rent, terms and conditions herein set
forth, Landlord hereby leases to Tenant and Tenant hereby rents from Landlord
the Leased Premises, subject to the terms and provisions of this Lease to have
and to hold for the Term, unless the Term shall be sooner terminated as
hereinafter provided. In addition, if and to the extent there are other third
party tenants occupying a portion of the Building, then Tenant shall have the
general and non-exclusive right to use the Common Area subject to the terms and
conditions of this Lease. For purposes of this Lease, Common Area shall include
all areas, improvements, facilities and equipment from time to time designated
by Landlord for the general and nonexclusive common use or benefit of Tenant,
other tenants of the Building, Landlord, and their respective officers,
partners, directors, employees, agents, licensees, contractors, customer and
invitees, to the extent customers and invitees are under the principals control
or direction, including the following: (1) any areas in the Building devoted to
lobbies, hallways, rest rooms, janitorial closets, mailrooms, and other similar
facilities provided for the common use or benefit of tenants generally and/or
for the public located in the Building (but shall not include any such areas
designated for the exclusive use or benefit of a particular tenant); (ii)
portions of the Building used for mechanical rooms, electrical facilities,
telephone closets, fire towers and building stairs (but shall not include any
such areas designated for the exclusive use or benefit of a particular tenant);
(iii) vents, stacks, pipe shafts and vertical ducts; and (iv) those portions of
the Building which are provided and maintained for the common use and benefit of
Landlord and tenants of the Building only and employees and invitees and
licensees of Landlord and such tenants; including, without limitation, all
atriums, walkways, parking areas, and all streets, sidewalks and landscaped
areas appurtenant to the Building.
2.2. Landlord's Reservation Landlord shall retain absolute dominion and
control over the Common Area and shall operate and maintain the Common Area in
such manner as Landlord in its sole discretion, shall determine; provided,
however, such exclusive right shall not operate to prohibit Tenant from its
material benefit and enjoyment of the Lease Premises for the permitted Use as
defined in Section 1(o). Tenant acknowledges
2
that without advance notice to Tenant and without any liability to Tenant in any
respect, Landlord shall have the right to:
(a) Close off any of the Common Area to whatever extent required in the
opinion of Landlord to prevent a dedication of any of the Common Area or
the accrual of any rights by any person or the public to the Common Area,
provided such closure does not materially deprive Tenant of the benefit
and enjoyment of the Leased Premises for its permitted use;
(b) Temporarily close any of the Common Area for maintenance, alteration
or improvement purposes;
(c) Select, appoint or contract with any person for the purpose of
operating and maintaining the Common Area, on such terms and conditions as
Landlord deems reasonable;
(d) Change the size, use, shape or nature of any such Common Area,
provided such change does not materially deprive Tenant of the benefit and
enjoyment of the Leased Premises. So long as Tenant is not thus deprived
of the use and benefit of the Leased Premises, Landlord will also have the
right at any time to change the arrangement or location of, or both, or to
regulate or eliminate the use of any concourse or any stairs, toilet or
other public conveniences in the Building, without incurring any liability
to Tenant or entitling Tenant to any abatement of rent;
(e) Expand the existing Building to cover a portion of the Common Area,
convert the Common Area to a potion of the Building or convert any potion
of the Building (excluding the Leased Premises). Upon erection of any
buildings or expansion of the Building, or change in Common Area, the
potion of the Building upon which such structures have been erected will
no longer be deemed to be a part of be Common Area. In the event of any
such changes in the size or use of a building or Common Area. Landlord may
make an appropriate adjustment in the rentable square feet of the
Building.
(f) In addition to the other rights of Landlord under this Lease, Landlord
reserves to itself and its respective successors and assigns the right to:
(i) change the street address and/or name of the Building; (ii) erect, use
and maintain pipes and conduits in and through the Leased Premises; (iii)
control the use of the roof and exterior walls of the Building; and (iv)
use Tenant's name in promotional materials (featuring Tenant only) and
relating to the Building or Progress Center, with written permission from
Tenant, which permission shall not be unreasonably withheld (it being
understood that Landlord shall have the right, without obtaining the
consent of Tenant, to use Tenant's name in promotional materials that
feature a list of all or major tenants of the Building and/or Progress
Center). Landlord may exercise any or all of the foregoing rights without
being deemed to be guilty of an eviction or disturbance or interruption of
the business of Tenant or Tenant's use or occupancy of the Leased
Premises.
2.3. Term. The Term of this Lease shall commence on the Commencement Date
as defined in Section 1, above, and shall extend to the last day of the second
(2nd) Lease Year at 11:59 p.m. or on such earlier date on which the term of this
Lease may expire or be terminated pursuant to the provisions of this Lease or
pursuant to law.
ARTICLE 3. RENT AND SECURITY DEPOSIT
3
3.1. Rent. Tenant agrees to pay to the order of Landlord, without demand,
set-off or deduction during the Term, the Annual Gross Rent, in an amount equal
to the sums specified in Section 1.1(a). The Annual Gross Rent shall be due and
payable in twelve (12) equal monthly installments, in advance, commencing on the
Commencement Date and continuing on the first day of each and every subsequent
calendar month during the Term, in the amount as scheduled in Section 1.1(a);
provided, however, that the installment of the Annual Gross Rent payable for the
first full calendar month following the Commencement Date (and if the
Commencement Date occurs on a date other than on the first day of a calendar
month, the installment of Annual Gross Rent prorated from such date until the
first day of the following month) shall be due and payable at the time of
execution and delivery of this Lease. Tenant shall pay the Annual Gross Rent by
good check or in lawful currency of the United States of America. All forms of
Rent due under this Lease shall be paid to Landlord at c/o Echelon Real Estate
Services, Inc., 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx or such other
location as Landlord may designate in writing from time to time.
3.2. Late Payment Charge. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Rent and other sums due hereunder after the expiration of
any applicable grace period will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of which will be extremely difficult to
ascertain. Accordingly, other remedies for nonpayment of Rent notwithstanding,
and except as expressly provided herein, in the event any installment payment of
Annual Gross Rent due Landlord hereunder shall not be paid within ten (10) days
after the due date, Tenant shall pay Landlord a late payment fee of five percent
(5%) of the unpaid past due amount, in addition to such other amounts owed under
this Lease. In addition, Tenant shall pay Landlord interest on any delinquent
payment due Landlord hereunder at the Default Rate: provided that interest shall
not be payable on late charges incurred by Tenant or on any amounts upon which
late charges are paid by Tenant to the extent such interest would cause the
total interest to be in excess of that legally permitted.
3.3. Increase in Insurance Premiums. If an increase in any insurance
premiums paid by Landlord for the Building is caused by Tenant's use of the
Leased Premises, or if Tenant vacates the Leased Premises and causes an increase
in such premiums, then Tenant shall pay as Additional Rent the amount of such
increase to Landlord.
3.4. Holding Over. In the event that Tenant does not vacate the Leased
Premises upon the expiration or termination of this Lease and continues to hold
over in possession of the Leased Premises without the written consent of
Landlord, Tenant shall be a tenant at will for the holdover period and all of
the terms and provisions of this Lease shall be applicable during that period,
including the obligation to pay Rent, except that Tenant shall pay Landlord as
an installment of the Annual Gross Rent for the period of such holdover an
amount equal to two times (200%) The Annual Gross Rent which would have been
payable by Tenant had the holdover period been a part of the original term of
this Lease. The rental payable during the holdover period shall be payable to
Landlord on demand.
3.5. Sales Tax. In addition to the Annual Gross Rent, and all other
Additional Rent to be paid by Tenant hereunder, Tenant shall be liable and pay
to Landlord all rental, sales and use taxes, if any, levied or imposed by any
city, state, county or other governmental body having authority, such payments
to be in addition to all other payments required to be paid to Landlord by
Tenant under the terms of this Lease. Any such payment shall be paid
concurrently with the payment of the Rent or other charge upon which the tax is
based as set forth above.
3.6. Rights to Additional Rent. Any and all sums of money or charges,
other than Annual Gross Rent, required to be paid by Tenant under this Lease,
whether or not the same be so designated, shall be considered "Additional Rent."
Landlord shall have the same rights and remedies with respect to Additional Rent
as with respect to Annual Gross Rent. The term "Rent" is hereby defined to mean
the Annual Gross Rent, and any additional charge, fee or rent payable by Tenant
to Landlord under this Lease.
3.7. Security Deposit. Tenant has deposited with the Landlord the sum of
$14,667.50 ("Security Deposit"). The Security Deposit constitutes security for
Tenant's satisfactory performance of the terms. covenants and conditions of this
Lease including the payment of Annual Gross Rent and Additional Rent.
4
(a) Landlord may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any Annual
Gross Rent, Additional Rent or any other sum as to which Tenant is in
default or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this Lease, including any damages or
deficiency in the re-letting of the Leased Premises or other reentry by
Landlord.
(b) If Landlord uses, applies or retains the whole or any part of the
Security Deposit, Tenant shall replenish it to the sum provided in Section
1.7 within five (5) Business Days after being notified by the Landlord of
the amount due. Tenant shall be in default of this Lease if the amount due
is not paid within the required time period.
(c) In the event of a sale or master leasing of the Building, or any part
thereof, of which the Leased Premises form a part, Landlord shall have the
right to transfer the security to the new landlord, and Landlord shall
ipso facto be released by Tenant from all liability for the return of the
Security Deposit. In such event, Tenant agrees to look solely to the new
landlord for the return of the Security Deposit and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord.
(d) Tenant covenants that it shall not assign or encumber the Security
Deposit given to Landlord pursuant to this Lease. Neither Landlord, its
successors or assigns shall be bound by any such assignment or encumbrance
or any attempted assignment or encumbrance. The Security Deposit shall not
be used as any part of the Annual Gross Rent or Additional Rent by Tenant.
Landlord will not be obligated to pay Tenant interest on the Security
Deposit, nor to segregate the Security Deposit from Landlords other funds.
(e) In the event that Tenant shall fully and faithfully comply with all
the terms, covenants and conditions of this Lease, any part of the
Security Deposit not used or retained by Landlord shall be returned to
Tenant after the expiration of the Lease and after delivery of exclusive
possession of the Leased Premises to Landlord.
ARTICLE 4. OCCUPANCY AND USE
4.1. Use. Tenant warrants and represents to Landlord that the Leased
Premises shall be used and occupied solely for the purposes set forth in Article
1 and for no other purposes whatsoever. Tenant shall occupy the Leased Premises,
conduct its business and control its agents, employees, invitees and visitors
(to the extent such invitees and visitors are within the Leased Premises) in
such a manner as is lawful, reputable and will not create a nuisance. Tenant
shall not permit any operation which emits any excessive or offensive odor or
matter which intrudes into other portions of the Building, use any apparatus or
machine which makes undue noise or causes undue vibration in any portion of the
Building or otherwise materially interfere with, annoy or disturb any other
lessee in its normal business operations or Landlord in its management of the
Building. Tenant shall neither permit any waste on the Leased Premises nor allow
the Leased Premises to be used in any way which would, in the reasonable opinion
of Landlord, be extra hazardous on account of fire or which would in any way
increase or render void the fire insurance on the Building. If any governmental
license or permit shall be required for the proper and lawful conduct of
Tenant's business in the Leased Premises, Tenant shall, at its expense, duly
procure and thereafter maintain such license or permit and shall at all times
comply with the terms and conditions of same. Tenant shall not at any time
knowingly suffer the Leased Premises to be used or occupied in violation of (i)
the Certificate of Occupancy for the Leased Premises or for the Building, (ii)
any of the provisions of this Lease, or (iii) zoning ordinances, and rules and
regulations of governmental and quasi governmental authorities having
jurisdiction over the Building.
4.2. Signs. Except as expressly permitted hereinafter, Tenant shall not
place any signs or other advertising matter or material on the exterior of the
Building, anywhere upon the Common Areas, or in any portion of the interior of
the Leased Premises which is visible beyond the Leased Premises, except those
signs submitted to Landlord in writing and approved by Landlord in writing,
which approval shall not be unreasonably withheld, If any prohibited sign,
advertisement or notice is exhibited by Tenant, Landlord shall have the right
5
to remove the same, and Tenant shall pay upon demand any and all expenses
incurred by Landlord in such removal, together with interest thereon at the
Default Rate.
4.3. Compliance with Laws, Rules and Regulations. Tenant, at Tenant's sole
cost and expense, shall comply with all present and future laws, ordinances,
orders, and rules and regulations of all state, federal, municipal, and local
governments, departments, commissions, and boards having jurisdiction over the
Leased Premises, Tenant's business, or any activity or condition on or about the
Leased Premises, including, without limitation, all environmental laws and any
other laws relating to the improvements on the Leased Premises or the air in and
around the Leased Premises (collectively, the "Laws"). Tenant warrants that its
business and all activities to be conducted or performed in, on, or about the
Leased Premises shall comply with all of the Laws. Tenant agrees to change,
reduce, or stop any such activity, or install necessary equipment, safety
devices, pollution control systems, or other installations at any time during
the Term hereof to so comply. Without limitation to the foregoing, Tenant
agrees:
(a) If, during the Term hereof, Landlord or Tenant is required to alter,
convert, or replace the HVAC system serving the Leased Premises in order
to comply with any of the Laws concerning indoor air pollution or quality,
or in order to meet any applicable limitation on, standard for, or
guideline relating to indoor air quality or the emission of any indoor air
pollutant, including, without limitation, those adopted by the
Occupational Safety and Health Administration, the American Society of
Heating, Refrigeration, and Air Conditioning Engineers, or the
Environmental Protection Agency, Tenant acknowledges and agrees that such
costs of any such conversion or replacement, including without limitation,
the purchase and installation of new equipment, and the alteration of
existing HVAC equipment in the Leased Premises to accommodate any new
equipment, shall either be paid by Tenant or shall be includable in the
Operating Costs.
(b) Tenant will comply with the reasonable rules and regulations of the
Building adopted from time to time by Landlord, a current copy of which
are set forth on Exhibit "B" attached to this Lease. Landlord shall have
the right at all times to change and amend the rules and regulations in
any reasonable manner as may be deemed advisable for the safety, care,
cleanliness, preservation of good order and operation or use of the
Building or the Leased Premises. The Rules and Regulations, as changed in
accordance with this section from time to time, are hereinafter called the
"Rules and Regulations."
4.4. Warranty of Possession. Landlord warrants that it has the right and
authority to execute this Lease. Landlord covenants and agrees that, upon
Tenant's paying on a monthly installment basis the Annual Gross Rent and any
Additional Rent required hereunder and performing all of the other covenants
herein on its part to be performed, Tenant shall and may peaceably and quietly
hold and enjoy the Leased Premises without hindrance by Landlord or persons
claiming through or under Landlord (including, without limitation, any mortgagee
of Landlord), subject to the terms, covenants and conditions of this Lease.
Landlord shall not be responsible for the acts or omissions of any other lessee
or third party not claiming through or under Landlord that may interfere with
Tenant's use and enjoyment of the Leased Premises.
4.5. Inspection. Landlord and Landlord's agents shall have the right
during Normal Business Hours to enter the Leased Premises, to examine the areas
of same designated by Tenant as "public," and to show such designated public
areas to prospective purchasers or lenders of the Building. Tenant shall allow
Landlord entry into the non-public portions of the Leased Premises upon 24 hours
notice by Landlord to Tenant and upon execution of Tenant's standard
Non-Disclosure Agreement by each person desiring such entry. Normal Business
Hours for the Building are 8:00 a.m. to 5:00 p.m. each Business Day. Upon
reasonable prior notice and upon execution of Tenant's standard Non-Disclosure
Agreement by each person desiring such entry (except in the case of an
emergency), Landlord and Landlord's agents shall have the right outside of
Normal Business Hours to enter the Leased Premises to make such repairs or
alterations as required under this Lease or as Landlord may reasonably deem
necessary or desirable, and Landlord shall be allowed to take all material into
and upon the Leased Premises that may be required therefore without the same
constituting an eviction of Tenant in whole or in part, and the Rent reserved
herein shall in no way xxxxx while said repairs or alterations are being made;
provided, however, if the necessity of such repairs do not arise due to the
fault of Tenant and Tenant is prevented from operating in the Leased Premises in
whole or in part, then in such event the Annual Gross Rent shall be
proportionately abated during said period. During the twelve (12) months prior
to the expiration of the Term hereof, Landlord may during Normal Business Hours
exhibit the Tenant-designated
6
public portions of the Leased Premises to prospective tenants. Nothing herein
contained, however, shall be deemed or construed to impose upon Landlord any
obligation, responsibility or liability whatsoever, for the care, maintenance or
repair of the Leased Premises or the Building or any part thereof, except as
otherwise herein specifically provided. Landlord shall at all times have and
retain a key with which to unlock all of the doors in, upon and about the
Tenant-designated public areas of the Leased Premises. Tenant shall not change
Landlord's lock system unless Tenant provides Landlord with a pass key, or in
any other manner prohibit Landlord from entering the Tenant-designated public
areas of the Leased Premises. Landlord shall have the right to use any and all
means which Landlord may deem proper to open any door in an emergency without
liability therefor.
ARTICLE 5. UTILITIES AND SERVICE
5.1. Building Services. Landlord shall provide routine maintenance and
painting to the exterior of the Building and to the heating, ventilating and air
conditioning equipment, lighting, electrical, plumbing and other mechanical
systems, in the manner and to the extent deemed by Landlord to be standard and
in accordance with the standards of first class office buildings in the
Gainesville/Ocala area. Landlord will not be liable to Tenant or any other
person, for direct or consequential damage, or otherwise, for any failure of
Tenant to obtain any heat, air conditioning, lighting, or other service Landlord
has agreed to supply during any period when Landlord uses reasonable diligence
to supply such services. Landlord reserves the right temporarily to discontinue
such services, or any of them, at such times as may be necessary by reason of
accident, repairs, alterations or improvements, strikes, lockouts, riots, acts
of God, governmental preemption in connection with a national or local
emergency, any rule, order or regulation, conditions of supply and demand which
make any product unavailable, Landlord's compliance with any mandatory or
voluntary governmental energy conservation or environmental protection program,
or any other happening beyond the control of Landlord. Except as expressly
provided hereinafter, Landlord will not be liable for damages to persons or
property or for injury to, or interruption of, business for any discontinuance
permitted under this Section, nor will such discontinuance in any way be
construed as an eviction of Tenant or cause an abatement of rent or operate to
release Tenant from any of Tenant's obligations under this Lease. Landlord
reserves the right from time to time to make changes in the services provided by
Landlord to the Building provided such changes do not detract from the level of
the existing services. Landlord shall not be liable for any damages to persons
or property or for injury to, or interruption of, business arising from the
interruption of any utility service to the Building. If there is a failure by
Landlord to furnish the services specified in this Section, and further provided
such interruption is not due to Tenant's negligence or willful misconduct, and
further provided, should the unavailability of such service render all or any
portion of the Leased Premises unusable by Tenant for Tenant's permitted use,
Tenant may, after and upon the giving of five (5) days written notice to
Landlord, deduct the rent for that portion of the Leased Premises which is so
unusable provided same is not due to Excusable Delays. Landlord reserves the
right from time to time to make changes in the services provided by Landlord to
the Building provided such changes do not detract from the level of the existing
services.
5.2. Security and Theft or Burglary. Landlord shall not be liable to
Tenant for losses to Tenant's property or personal injury caused by criminal
acts or entry by unauthorized persons (other than the gross negligence or
willful misconduct of Landlord, or Landlord's agents or contractors) into the
Leased Premises or the Building.
5.3. Janitorial Service. Tenant shall keep the interior of the Building
cleaned and well maintained. Landlord shall provide daily (Business Days)
janitorial services and office cleaning of a nature and of a quality equal to
that of other first class office buildings in the Gainesville/Ocala area, and
shall replace building standard light bulbs and ballasts.
5.4. Utilities. Tenant shall pay all electrical and gas, and telephone
utility charges for service to the Leased Premises. Tenant shall pay all
additional improvement costs occasioned by high electrical consumption
electrodata processing machines, advanced telecommunications equipment,
computers and other equipment of high electrical consumption, including without
limitation, the cost of installing, servicing and maintaining any special or
additional inside or outside riders, wiring or lines, meters or submeters,
transformers, poles, or air conditioning costs. Landlord shall furnish all water
and sewer services to the Leased Premises and all electrical and gas services to
the common areas, at Landlord's expense.
7
ARTICLE 6. REPAIRS AND MAINTENANCE
6.1. Landlord Repairs. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Leased
Premises or the Building during the term of this Lease except as are set forth
in this Lease. Landlord shall maintain only (a) the roof, structure, columns
exterior walls, foundation, in sound, watertight condition and good state of
repair; and (b) all Building electrical systems, including, but not limited to,
the base building electrical, mechanical and HVAC supplied to the Leased
Premises in good operating condition, maintenance and repair; and (c) the
sidewalks, curbs, driveways, parking areas (if any) and landscaping in good
condition and repair, open and free of debris or other obstruction. Landlord
shall not be liable to Tenant, except as expressly provided in this Lease, for
any damage or inconvenience, and Tenant shall not be entitled to any abatement
or reduction of rent by reason of any repairs, alterations or additions made by
Landlord under this Lease. Tenant understands and agrees that Landlord may, at
any time or from time to time during the term of this Lease, perform substantial
renovation work in and to the Building or the mechanical systems serving the
Building (which work may include, but need not be limited to, the repair or
replacement of the Building's exterior facade, electrical systems, air
conditioning and ventilating and other systems), any of which work may require
access to the same from within the Leased Premises Tenant agrees that:
(a) Landlord shall have access to the Leased Premises at all reasonable
times, subject to the restrictions set forth in Section 4.5, upon
reasonable notice, for the purpose of performing such work; and
(b) Landlord shall incur no liability to Tenant, nor shall Tenant be
entitled to any abatement of rent on account of any noise, vibration, or
other disturbance to Tenant's business at the Leased Premises (provided
that Tenant is not denied access to said Leased Premises) which shall
arise out of said access by Landlord or by the performance by Landlord of
the aforesaid renovations at the Building.
Landlord shall use reasonable efforts (which shall not include any obligation to
employ labor at overtime rates) to avoid disruption of Tenant's business during
any such entry upon the Leased Premises by Landlord. Landlord shall not be
liable to Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any abatement or reduction of
rent by reason of any repairs alterations or additions made by Landlord under
this Lease.
6.2. Tenant Repairs. Tenant, at Tenant's expense, shall provide for
storage disposal of all biomedical and hazardous materials and waste delivered,
generated from or stored within the Leased Premises, all in strict compliance
with all Federal, State and local rules, regulations, laws, ordinances and
guidelines. Tenant shall not suffer any damage, waste or deterioration to occur
to the Leased Premises and shall maintain the interior non-structural portions
of the Leased Premises and the fixtures and appurtenances therein in good repair
and clean and sightly condition, and shall make all repairs necessary to keep
them in good working order and condition (including structural repairs when
those are necessitated by the negligence or willful misconduct of Tenant or its
agents, employees, invitees, licensees or visitors) ordinary wear and tear and
Acts of God excepted, and subject to the provisions of Articles 8 and 11 hereof.
All repairs, replacements and restorations made by Tenant shall be equal in
quality and class to the originals thereof and shall be completed in compliance
with applicable law. Tenant covenants that any repairs or replacements (as the
case may be) required by the terms of this Lease to be made by Tenant shall be
commenced and completed expeditiously; provided, however, if Tenant fails to
make the repairs or replacements, in an emergency promptly after notice, or
otherwise fails to make the repairs or replacements within thirty (30) days
after notice or in the event that such repair or replacement is of such a nature
as cannot with diligent effort be cured within said thirty (30) day period,
Tenant shall have failed to commence to cure within said period or failed to
diligently prosecute remedial efforts to completion within a reasonable time
thereafter, then Landlord may, at its option, make the repairs or replacements,
and the cost of such repairs or replacements shall be charged to Tenant as
Additional Rent and shall become payable by Tenant with the payment of the rent
next due hereunder.
8
6.3. Request for Repairs. Tenant must notify Landlord of its request for
repairs or maintenance to the Leased Premises that are the responsibility of
Landlord pursuant to any provision of this Lease and such request must be made
to Landlord at the address provided for in the notice section.
6.4. Tenant Damages. At the termination of this Lease, by lapse of time or
otherwise, Tenant shall deliver the Leased Premises to Landlord in as good
condition as existed at the Commencement Date of this Lease, ordinary wear and
tear excepted. The reasonable cost and expense of any repairs necessary to
restore the condition of the Leased Premises, as documented by Landlord with
reasonable documentation of such costs, shall be borne by Tenant.
ARTICLE 7. ALTERATIONS AND IMPROVEMENTS
7.1. Leasehold Improvements. If construction to the Leased Premises is to
be performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Leased Premises in
accordance with plans and specifications agreed to by Landlord and Tenant.
Notwithstanding the foregoing, Tenant shall not undertake any alterations or
improvements to any portion of the Leased Premises or the Building which may
cause or create penetrations to the roof, ceiling or floors thereof. Within
seven days of receipt of plans and specifications, Tenant shall execute a copy
of the plans and specifications and, if applicable, change orders setting forth
the amount of any costs to be borne by Tenant. In the event Tenant fails to
execute the plans and specifications and change order within the seven day
period, Landlord may, at its sole option, declare this Lease canceled or notify
Tenant that the Annual Gross Rent shall commence on the completion date even
though the improvements to be constructed by Landlord may not be complete. Any
changes or modifications to the approved plans and specifications shall be made
and accepted by written change order or agreement signed by Landlord and Tenant
and shall constitute an amendment to this Lease.
7.2. Tenant Improvements. Tenant acknowledges that in the event Tenant
intends to undertake improvements or alterations to the Leased Premises
following the Effective Date, Tenant must obtain the prior written consent and
approval of Landlord to such improvements or alterations ("Alterations"), which
consent may in the sole and absolute discretion of Landlord be denied.
Landlord's approval of any such Alterations may also be conditioned upon
Landlord's approval of plans, contractors, contractor lien indemnification, and
terms of access for construction. Any Alterations to the Leased Premises made by
Tenant shall at once become the property of Landlord and shall be surrendered to
Landlord upon the termination of this Lease provided, however, Landlord, at its
option, may require Tenant to remove and/or repair any Alterations in order to
restore the Leased Premises to the condition existing at the time Tenant took
possession, all costs of removal and/or repair and restoration to be borne by
Tenant. This clause shall not apply to moveable equipment of furniture owned by
Tenant which may be removed by Tenant at the end of the term of this Lease if
Tenant is not then in default and if such equipment and furniture are not then
subject to any other rights, liens and interests of Landlord. Following the
completion of the initial leasehold improvements, all Alterations must be in
accordance with the requirements of this Lease. Tenant, at its expense, shall
obtain all necessary governmental permits and certificates for the commencement
and prosecution of the Alterations and for final approval thereof upon
completion and shall cause the Alterations to be performed in a good and
workmanlike manner in accordance with the requirements of all applicable
governmental authorities. All Alterations shall be diligently performed in a
good and workmanlike manner, using materials and equipment at least equal in
quality and class to the original installations of the Leased Premises.
7.3. Liens. Nothing contained in this Lease shall be construed as a
consent on the part of the Landlord to subject the estate of Landlord to
liability under the Construction Lien Law of the State of Florida, it being
expressly understood that the Landlord's estate shall not be subject to such
liability. Tenant shall strictly comply with the Construction Lien law of the
State of Florida, as set forth in Chapter 713, Florida Statutes. Notwithstanding
the foregoing, Tenant, at its expense, shall cause any lien filed against the
Tenant's interest under this Lease, the Leased Premises, the Building or the
Parking Area for work, services or materials claimed to have been furnished to
or for the benefit of Tenant (other than on account of the Leasehold Work) to be
satisfied or transferred to bond within twenty (20) days after Tenant's having
received notice thereof. In the event that Tenant fails to satisfy or transfer
to bond such claim of lien within said twenty (20) day period the Landlord may
do so and thereafter charge the Tenant as additional rent, all costs incurred by
the Landlord in
9
connection with the satisfaction or transfer of such claim, including attorneys'
fees plus interest thereon at the Default Rate. Further, the Tenant agrees to
indemnify, defend, and save the Landlord harmless from and against any damage or
loss incurred by the Landlord as a result of any such mechanic's Claim of Lien.
This Section shall survive the termination of this Lease.
ARTICLE 8. CASUALTY
8.1. Substantial Destruction. If the Leased Premises shall be
substantially damaged by fire, windstorm, or otherwise during the Lease Term,
Landlord shall have the right to either terminate this Lease, provided that
notice thereof is given to Tenant not later than one hundred twenty (120) days
after such damage or destruction, or to proceed to repair such damage and
restore the Leased Premises to substantially their condition at the time of such
damage (but only to the extent of Landlord's original obligation to construct
pursuant hereto and to the extent only of proceeds received by Landlord from its
insurers. Tenant, at its sole cost and expense, shall repair and restore
whatever trade fixtures, equipment and improvements it had installed prior to
the damage or destruction. The terms "substantially damaged" and "substantial
damage," as used in this Article, shall have reference to damage of such a
character as cannot reasonably be expected to be repaired or such that the
Leased Premises cannot be restored within ninety (90) days after the
commencement of construction.
8.2. Partial Destruction. If during the Term hereof the Leased Premises
shall be partially damaged (as distinguished from "substantially damaged") by
fire or other casualty, Landlord shall forthwith proceed to repair such damage
and restore the Leased Premises to substantially their condition at the time of
such damage (but only to the extent of Landlord's original obligation to
construct pursuant hereto and to the extent only of proceeds received by
Landlord from its insurerers), except Tenant, at its sole cost and expense,
shall repair and restore whatever trade fixtures, equipment and other
improvements it had installed prior to the damage or destruction.
8.3. Abatement of Rent. If the provisions of Subsection 8.1 or 8,2 of this
Article 8 shall become applicable, the Annual Gross Rent and all other charges
specified in this Lease shall be abated or equitably reduced proportionately
during any period in which, by reason of such damage or destruction, there is
substantial interference with the operation of the business of Tenant in the
Leased Premises, and such abatement or equitable reduction shall continue for
the period commencing with such destruction or damage and ending with the
completion by Landlord of such work of repair and/or restoration as Landlord is
obligated to do. In the event of the termination of this Lease pursuant to this
Section 8, this Lease, and the Term hereof, shall cease and come to an end as of
the date of such damage or destruction. Any Annual Gross Rent or other charges
paid in advance by Tenant shall be promptly refunded by Landlord.
8.4. Landlord's Limitation of Obligation. Despite anything contained in
this Lease to the contrary, and without limiting Landlord's right or remedies
hereunder:
(a) If damage or destruction occurs to the Leased Premises or any part
thereof by reason of any cause in respect of which there are no proceeds
of insurance available to Landlord, or
(b) If the proceeds of insurance are insufficient to pay Landlord for the
costs of rebuilding or making fit the Leased Premises), or
(c) If any mortgagee or other person entitled to the proceeds of insurance
does not consent to the payment to Landlord of such proceeds for such
purpose, or
(d) If in Landlord's reasonable opinion any such damage or destruction is
caused by any fault, neglect, default negligence, act, or omission of
Tenant or those for whom Tenant is in law responsible, or any other person
entering upon the Leased Premises under express or implied invitation of
Tenant,
then Landlord may, without obligation or liability to Tenant, terminate this
Lease on 30 days' written notice to Tenant and all Rent shall be adjusted as of,
and Tenant shall vacate and surrender the Leased Premises on, such termination
date.
10
8.5. Landlord's Right to Terminate. In the event that the Building has
been damaged or destroyed by fire or other casualty to the extent that the cost
of restoration of the Building will exceed a sum constituting sixty percent
(60%) of the total replacement cost thereof, Landlord shall have the right to
terminate this Lease provided that notice thereof is given to Tenant not later
than sixty (60) days after such damage or destruction and Landlord elects not to
restore the Building and terminates all other leases for space in the Building.
ARTICLE 9. INSURANCE
9.1. Tenant's Insurance. Tenant shall, at its sole expense, maintain in
effect at all times during the Term insurance coverage with limits not less than
those set forth below with insurers licensed to do business in the state of
Florida: a) Workers Compensation Insurance - statutory limits as required by
State law, and as same may be amended from time to time; b) Employer's Liability
Insurance - minimum limit $500,000.00; and c) Commercial General Liability
Insurance, with a combined single limit of $1,000,000 per occurrence and general
aggregate limits of $3,000,000.00. These policies shall be endorsed to include
Landlord and Landlord's mortgagee, if any, as an additional insured, state that
the insurance is primary over any insurance carried by Landlord, and the
commercial general liability policy shall be written on a standard Insurance
Services Office, Inc. (ISO) policy form with a 1988 or later edition date or its
equivalent. The policy must be written on an occurrence basis and include
Coverage A (Bodily Injury and Property Damage Liability), Coverage B (Personal
and Advertising Injury Liability) and Coverage C (Medical Payments). Upon
Tenant's default in obtaining or delivering the policy or certificate for any
such insurance or Tenant's failure to pay the charges therefor, Landlord may,
upon ten (10) days notice to Tenant, procure or pay the reasonable charges for
any such policy or policies (for not more than a 12 month period) and charge the
Tenant therefor plus interest thereon at the Default Rate as additional rent.
9.2. Tenant's Personal Property Insurance. Tenant shall at all times
during the term hereof and at its cost and expense, maintain in effect policies
of insurance covering all of Tenant's personal property, trade fixtures and
equipment located in the Leased Premises, in an amount equal to their full
replacement value, providing protection against any peril included within the
standard classification of "Fire and Extended Coverage", together with insurance
against sprinkler damage, vandalism, theft and malicious mischief. The proceeds
of such insurance, so long as this Lease remains in effect, shall be used to
repair or replace the personal property, trade fixtures and equipment so
insured.
9.3. Landlord's Insurance. Landlord shall maintain at all times during the
term of this Lease standard all-risk fire and casualty insurance, covering the
Building in amounts at least equal to the full replacement cost of the Building
at the time in question, but in no event less than such coverage as is required
to avoid coinsurance provisions; and b) comprehensive public liability insurance
and such other insurance coverage as is customarily carried in respect of
comparable buildings
9.4. General Requirements. All policies of insurance required under this
article shall provide that they will not be cancelled upon less than thirty (30)
days prior written notice to Landlord and Tenant. Tenant shall furnish to
Landlord a certificate or certificates of insurance certifying that the
insurance coverage required is in force, upon request. The coverage shall be
issued by companies licensed to do business in the State of Florida and rated
A:VIII or better in Best's Insurance Guide (or similar rating in an equivalent
publication if no longer published) and shall otherwise be reasonably
satisfactory to the parties. Not less than thirty (30) days prior to expiration
of the coverage, renewal policies or certificates of insurance evidencing
renewal shall be provided. Any insurance required by the terms of this Lease may
be under a blanket policy (or policies) covering other properties of Tenant
and/or its related or affiliated corporations. If such insurance is maintained
under a blanket policy, the respective party shall procure and deliver to the
other party a statement from the insurer or general agent of the insurer setting
forth the coverage maintained and the amount thereof allocated to the risk
intended to be insured hereunder.
ARTICLE 10. INDEMNIFICATION
10.1. Tenant's Indemnification. Tenant shall indemnify, defend and save
Landlord harmless from and against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury and/or
damage to or destruction of property arising from or out of any occurrence in,
upon or at the Leased
11
Premises, or the occupancy or use by Tenant of the Leased Premises or any part
thereof, or occasioned wholly or in part by any act or omission of Tenant, its
agents, contractors, employees, servants, subtenants or concessionaires. In case
Landlord shall be made a party to any such litigation commenced by or against
Tenant, then Tenant shall protect and hold Landlord harmless and pay all costs
and attorney's fees incurred by Landlord in connection with such litigation, and
any appeals thereof.
10.2. Landlord Not Liable. Except for the gross negligence or intentional
misconduct of Landlord or its agents, employees or contractors, Tenant agrees
Landlord shall not be liable to Tenant, Tenants employees, agents, invitees,
licensees or visitors, or to any other person, for an injury to person or damage
to property on or about the Leased Premises caused by any act or omission of
Tenant, its agents, servants or employees, or of any other person entering upon
the Leased Premises under express or implied invitation by Tenant, or caused by
the improvements located on the Leased Premises becoming out of repair, the
failure or cessation of any service provided by Landlord (including security
service and devices), or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Leased Premises.
ARTICLE 11. CONDEMNATION
11.1. Substantial Taking. If, after the Commencement Date and before the
termination of this Lease: (i) any portion of the Leased Premises is taken by
eminent domain or conveyed in lieu thereof; or (ii) as a result of a taking by
eminent domain or the action of any public or quasi-public authority or a
conveyance in lieu thereof, the means of ingress or egress to and from the
Building is so permanently altered as to materially and adversely affect the
flow of traffic in, to, from or about the Building; then, in any of the
foregoing events, the Lease Term shall, at the option of Tenant, cease and
terminate as of the day possession shall be taken by the acting governmental or
quasi-governmental authority (the "Date of Taking"). Such option to terminate
shall be exercisable by Tenant giving written notice to Landlord on or before
thirty (30) days after the Date of Taking, which notice shall provide for a
termination date (the "Termination Date") not later than ninety (90) days after
the Date of Taking and Tenant shall pay Rent up to the Termination Date, and
Landlord shall refund such Annual Gross Rent and other payments as shall have
been paid in advance and which cover a period subsequent to the Termination
Date. In the event Tenant does not terminate this Lease, Landlord shall promptly
and diligently restore the Building and the Leased Premises and the Building and
Common Areas to as near to their condition prior to such taking or conveyance as
is reasonably possible, and, during the course of such restoration, there shall
be a fair and equitable abatement of all Annual Gross Rent, taking into account
the extent to which Tenant shall be required to close down all or a portion of
its operations until restoration has been completed; and, after such
restoration, there shall be fair and equitable abatement of Annual Gross Rent on
a permanent basis, taking into account the reduction in the size of the Leased
Premises, reduction in Common Areas, and the like. If fifty percent (50%) or
more of the rentable area in the Building is taken by eminent domain or conveyed
in lieu thereof, then Landlord shall have the right to terminate this Lease by
giving written notice to Tenant on or before thirty (30) days after the Date of
Taking; provided that Landlord also terminates all leases for premises within
the Building.
11.2. Restoration. If any portion of the Leased Premises shall be so taken
or conveyed and this Lease is not terminated, then the Lease Term shall cease
only with respect to that portion of the Leased Premises so taken or conveyed,
as of the day possession shall be taken, and Tenant shall pay Annual Gross Rent
and all other payments up to that day, with an appropriate refund by Landlord of
such Rent as may have been paid in advance for a period subsequent to the date
of the taking of possession and, Thereafter, the Annual Gross Rent and all other
payments shall be equitably adjusted. Landlord shall, at its expense, make all
necessary repairs or alterations so as to constitute the remaining portion of
the Leased Premises a complete architectural unit. It is understood and agreed
that Tenant shall not have the right to claim damages for the value of its
leasehold estate, nor shall Tenant have the right to share in any award granted
to Tenant, nor shall Tenant have the right to claim damages that in any way may
be in derogation of Landlord's award.
12
ARTICLE 12. ASSIGNMENT OR SUBLEASE
12.1. Landlord Assignment. Landlord shall have the right to sell, transfer
or assign, in whole or in part, its rights and obligations under this Lease and
in the Building. Any such sale transfer or assignment shall operate to release
Landlord from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer, provided such transferee or assignee assumes
such liabilities in writing. The acceptance of rent by any such transferee or
assignee shall constitute assumption of such liabilities.
12.2. Tenant Assignment.
(a) Tenant shall not assign, in whole or in part, this Lease, or allow it
to be assigned, in whole or in part, by operation of law or otherwise or
mortgage or pledge the same, or sublet the Leased Premises, in whole or in
part, without the prior written consent of Landlord, which consent shall
not be unreasonably withheld. In no event shall any such assignment or
sublease ever release Tenant or any guarantor from any obligation or
liability hereunder.
(b) If Tenant desires to assign or sublet all or any part of the Leased
Premises to any party, it shall so notify Landlord at least thirty days in
advance of the date on which Tenant desires to make such assignment or
sublease. Tenant will simultaneously with such request give Landlord (i)
the name and address of the proposed assignee or subtenant (ii) the terms
of the proposed assignment or sublease, (iii) reasonably satisfactory and
complete information about the nature, financial condition, business and
business history of the proposed assignee or subtenant, and its proposed
initial use of the Leased Premises, and (iv) a fee in the amount of
$1,000.00 to reimburse Landlord for all its expenses including, without
limitation, reasonable attorneys fees associated with Tenant's request to
assign, sublet or otherwise encumber the Leased Premises under the terms
of the Lease. The consent by Landlord to any assignment or subletting
shall not constitute a waiver of the necessity for such consent to any
subsequent assignment or subletting. Within fifteen days after Landlord's
receipt of Tenants proposed assignment or sublease and all required
information concerning the proposed sublessee or assignee, Landlord shall
have the following options: (1) as to a requested sublease with a sublease
term that coincides with ninety-five percent or more of the remaining term
of this Lease, cancel this Lease as to the Leased Premises or portion
Thereof proposed to be sublet (provided, however, that Tenant shall have
ten (10) days to nullify Landlord's cancellation of this Lease by written
notice to Landlord that it is withdrawing the sublease request); (2)
consent to the proposed assignment or sublease, and, if the rent due and
payable by any assignee or sublessee under any such permitted assignment
or sublease (or a combination of the rent payable under such assignment or
sublease plus any bonus or any other consideration or any payment incident
thereto) exceeds the rent payable under this Lease for such space, Tenant
shall pay to Landlord all such excess rent and other excess consideration,
less Tenant's reasonable expenses incurred in connection with such
subletting, including without limitation, reasonable brokerage
commissions, improvements allowances, and alteration costs, within ten
days following receipt thereof by Tenant or (3) refuse, in Landlord's
reasonable judgment, to consent to the proposed assignment or sublease,
which refusal shall be deemed to have been exercised unless Landlord gives
Tenant written notice providing otherwise. Upon the occurrence of an event
of default, if all or any part of the Leased Premises are then assigned or
sublet, Landlord, in addition to any other remedies provided by this Lease
or provided by law may, at its option, collect directly from the assignee
or sublessee all rents becoming due to Tenant by reason of the assignment
or sublease. Any collection directly by Landlord from the assignee or
sublessee shall not be construed to constitute a novation or a release of
Tenant or any guarantor from the further performance of its obligations
under this Lease. Tenant shall deliver to Landlord within twenty (20) days
after any assignment or subletting a copy of the executed assignment or
sublease agreement. Any assignment or sublease shall provide that the
assignee or subtenant shall comply with all applicable terms and
conditions of this Lease to be performed by Tenant hereunder. The
permitted use of the Leased Premises shall not change in connection with
any assignment or sublease.
13
ARTICLE 13. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
13.1. Rights of Mortgagee. Tenant acknowledges and agrees that this Lease
shall be subject and subordinate to the lien of all existing and future
mortgages on the Leased Premises and shall, within 15 days of Landlord's
request, execute such subordination agreements as my be submitted by the holders
of such mortgages. Tenant will, upon request of the lienholder, will agree that,
if such lienholder succeeds to the interest of Landlord, Tenant will recognize
said lienholder (or successor in interest of the lienholder) as its landlord
under the terms of this Lease. Tenant hereby constitutes and appoints Landlord
as Tenant's attorney-in-fact to execute any such instrument on behalf of Tenant.
ARTICLE 14. LANDLORD'S LIEN
14.1. Uniform Commercial Code. This Lease is intended as and constitutes a
security agreement within the meaning of the Uniform Commercial Code of the
state in which the Leased Premises are situated. Landlord, in addition to the
rights prescribed in this Lease and by law, shall have all of the rights,
titles, liens and interests in and to Tenant's property (but expressly excluding
any of Tenant's interests in intellectual property and human tissue in any
form), now or hereafter located upon the Leased Premises, which may be granted a
secured party, as that term is defined, under the Uniform Commercial Code to
secure to Landlord payment of all sums due and the full performance of all
Tenant's covenants under this Lease. Tenant will on request execute and deliver
to Landlord a financing statement for the purpose of perfecting Landlords
security interest under this Lease or Landlord may file this Lease or a copy
thereof as a financing statement. Unless otherwise provided by law and for the
purpose of exercising any right pursuant to this section, Landlord and Tenant
agree that reasonable notice shall be met if such notice is given by ten days
written notice, certified mail, return receipt requested, to Landlord or Tenant
at the addresses specified herein.
ARTICLE 15. DEFAULT AND REMEDIES
15.1. Default by Tenant. The following shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any installment
of Annual Gross Rent or any other Additional Rent, or any other charge or
assessment against Tenant pursuant to the terms hereof and such failure to pay
shall continue for more than ten (10) days after the same is due; (ii) Tenant
shall fail to comply with any term, provision, covenant, agreement or warranty
made under this Lease by Tenant, other than the payment of any installment of
Annual Gross Rent or any other Additional Rent or other charge or assessment
payable by Tenant, and shall not cure such failure within thirty (30) days after
written notice thereof to Tenant; (iii) a petition in bankruptcy or insolvency
or for reorganization or for the appointment of a receiver or trustee of all or
substantially all of Tenant's assets is filed against Tenant in any court
pursuant to any statute either of the United States or of any state and Tenant
fails to secure or diligently proceed to secure a discharge thereof within sixty
(60) days, or if Tenant voluntarily files a petition in bankruptcy or makes an
assignment for the benefit of creditors or petitions for or enters into an
arrangement with creditors; or (iv) Tenant shall do or permit to be done
anything which creates a lien upon the Leased Premises for work performed by,
through or under Tenant which Tenant fails to remove or bond off within thirty
(30) days after written notice thereof.
15.2. Remedies for Tenant's Default.
14
(a) Upon the occurrence of any event of default set forth in this Lease,
Landlord, besides other rights or remedies that it may have and without
prior notice (except as specified in Subsection 15.1 above), shall have
the right to (i) terminate Tenant's right of continued possession of the
Leased Premises and declare the entire remaining unpaid Rent for the
balance of the then existing Term of this Lease to be immediately due and
payable forthwith and take action to recover and collect the same either
by distress or otherwise, but in the event Landlord is able to relet the
Leased Premises during such periods from time to time, Tenant shall
consent to such reletting and Tenant shall be entitled to a credit against
such damages in the amount of the rents and other sums received by
Landlord from any such reletting of the Leased Premises, less any
reasonable costs incurred by Landlord in connection with the repossessing
of the Leased Premises, including, without limitation, reasonable
attorneys' fees, brokerage commissions and any costs of allowance, repairs
or alterations, or (ii) terminate this Lease, in which event Tenant shall
immediately surrender the Leased Premises to Landlord, or (iii) terminate
Tenant's right of continued possession of the Leased Premises and from
time to time, without terminating this Lease, relet the Leased Premises or
any part thereof for the account and in the name of Tenant, for any such
lease term or terms and conditions as Landlord, in its reasonable
discretion, may deem advisable, and with the right to make alterations,
additions and repairs to the Leased Premises deemed by Landlord to be
necessary in conjunction with such reletting Notwithstanding any other
remedy set forth in this Lease, in the event Landlord has made rent
concessions of any type or character, or waived any base rent, and Tenant
fails to take possession of the Leased Premises on the commencement or
completion date or otherwise defaults at any time during the term of this
Lease, the rent concessions, including any waived base rent, shall be
cancelled and the amount of the base rent or other rent concessions shall
be due and payable immediately as if no rent concessions or waiver of any
base rent had ever been granted. A rent concession or waiver of the base
rent shall not relieve Tenant of any obligation to pay any other charge
due and payable under this Lease including without limitation any sum due
under Section 2. Notwithstanding anything contained in this Lease to the
contrary, this Lease may be terminated by Landlord only by mailing or
delivering written notice of such termination to Tenant, and no other act
or omission of Landlord shall be construed as a termination of this Lease.
(b) Should Landlord terminate Tenant's right of possession of the Leased
Premises pursuant to Subsection (a) (iii) above, then Tenant shall pay to
Landlord, within ten (10) days of Landlord's demand, all of the following:
(i) any unpaid Rent and other charges to be paid by Tenant hereunder up to
the date when Landlord shall have so terminated Tenants right of
possession, plus interest thereon at the Default Rate from the due date
together with the total cost of brokerage commissions and initial
leasehold or tenant improvements or allowances incurred by Landlord in
connection with the execution of this Lease (prorated for the unexpired
portion of the Term); (ii) the reasonable costs of recovering possession
of the Leased Premises and any reasonable legal fees and expenses directly
related to the breach, the recovery of possession, and the collection of
unpaid Rent and other charges; (iii) the reasonable costs incurred by
Landlord in repairing and restoring the Leased Premises to the condition
which same were to have been surrendered to Landlord at the expiration of
the Lease term or to a condition required to lease premises to a new
tenant; (iv) the reasonable costs of removing any of Tenant's property
from the Leased Premises and, if same be stored, the reasonable cost of
transporting and storing same (if Landlord shall store such property in a
Building then Landlord shall be entitled to a reasonable storage fee
hereunder); and (v) all reasonable brokerage fees and commissions and
allowances (prorated for the unexpired portion of the Term) incurred by
Landlord in reletting the Leased Premises.
(c) Rents received by Landlord from any reletting pursuant to Subsection
(a)(iii) above, shall be applied first to the payment of any of the items
enumerated in Subsection (b) above, in such order as Landlord shall deem
appropriate, and second to the payment of rent and other sums due and
unpaid by Tenant hereunder as of the date of Landlord's receipt of said
rents. The residue, if any, shall be held by Landlord and applied in
payment of future rent or damages in the event of termination as the same
may become due and payable hereunder.
(d) No such reletting of the Leased Premises by Landlord pursuant to
Subsection (a)(iii) above shall be construed as an election on its part to
terminate this Lease unless a notice of such intention be given by
Landlord to Tenant or unless the termination thereof be decreed by a court
of competent jurisdiction; and
15
notwithstanding any such reletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous breach
provided it has not been cured.
(e) Should Landlord at any time terminate this Lease for any breach
pursuant to Subsection (a)(ii) above, then in addition to any other remedy
Landlord may have by reason of such breach, Landlord shall have the right
to recover from Tenant all or any of the following: (i) any unpaid rent
and other charges to be paid by Tenant hereunder up to the date of
termination, plus interest thereon at the Default Rate from the due date;
(ii) the reasonable costs of recovering possession of the Leased Premises
and collecting said arrearages in rent and other charges, including any
reasonable legal fees and expenses directly related to the breach, the
recovery of possession, and the collection of unpaid Rent and other
charges to be paid by Tenant and the total cost of brokerage commissions
and initial leasehold or tenant improvements or allowances incurred by
Landlord in connection with the execution or renewal of this Lease
(prorated for the unexpired portion of the Term); (iii) costs, as
reasonably estimated by Landlord which would be incurred in repairing or
restoring the Leased Premises to the condition in which the same were to
have been surrendered to Landlord at the expiration of the Lease term:
(iv) the reasonable costs of removing any of Tenant's property from the
Leased Premises, and, if same be stored, the reasonable cost of
transporting and storing same (if Landlord shall store such property in a
Building then Landlord shall be entitled to a reasonable storage fee
hereunder); (v) all brokerage fees and commissions (prorated for the
unexpired portion of the Term)incurred by Landlord in reletting the Leased
Premises; and (vi) compensation for the loss of profits occasioned by the
breach and resultant termination of this Lease, which loss the parties
agree shall be determined by calculating the total amount of Rent to be
paid by Tenant, and any other charges to be paid by Tenant, as if this
Lease had not been terminated, from the date of termination to the
expiration date and deducting therefrom The fair market rent value of the
Leased Premises for a like period expected to be collected by Landlord
during such period.
(f) Landlord shall have the right to recover, in execution of judgment(s)
rendered in legal proceedings or otherwise, either jointly or from time to
time severally, the applicable sums specified in clauses (i)through (v) of
Subsection (b) and clauses (i) through (vi) of Subsection (e), and
Landlord's recovery of one or more of such sums shall not constitute a
waiver of Landlord's right to recover from Tenant the remaining sum(s).
(g) Tenant hereby waives all rights of redemption, now or hereafter
granted, to the extent such rights may be lawfully waived.
(h) Pursuit of any of the foregoing remedies shall not preclude pursuit of
any other remedy herein provided or any other remedy provided by law or at
equity, nor shall pursuit of any remedy herein provided constitute an
election of remedies thereby excluding the later election of an alternate
remedy, or a forfeiture or waiver of any Annual Gross Rent, or other
Additional Rent or other charges and assessments payable by Tenant and due
to Landlord hereunder or of any damages accruing to Landlord by reason of
violation of any of the terms, covenants, warranties and provisions herein
contained. All of Tenant's and Landlord's obligations under this Section
shall survive the termination of this Lease.
(i) Notwithstanding anything herein to the contrary, in the event that
Tenant abandons the Leased Premises for a continuous period of three weeks
or more for any reason other than casualty or condemnation or force
majeure not relating to Tenant's business operations, Landlord shall have
the sole and exclusive remedy to terminate this Lease without prior
notice. "Abandon" means the vacating of all or substantially all of the
Leased Premises by Tenant, whether or not Tenant is in default of the
rental payments due under this Lease or any other provision of this Lease.
15.3. Tenant's Bankruptcy. In addition to Landlord's remedies under this
Article 15, Landlord may, at its sole discretion and without notice, invoke the
following provisions:
(a) Upon a Tenant's bankruptcy, this Lease and all rights of Tenant
hereunder shall automatically terminate with the same force and effect as
if the date of any such event were the date stated herein for the
expiration of the Term, and Tenant shall vacate and surrender the Leased
Premises, but shall remain liable as herein provided. Landlord reserves
any and all remedies provided herein or at law or in equity
16
(b) If this Lease is not terminated in accordance with subsection (a)
above because such termination is not allowed under the Bankruptcy Code
(hereinafter defined), upon the filing of a petition by or against Tenant
under the Bankruptcy Code, Tenant, as debtor and as debtor in possession,
and any trustee who may be appointed, agree:
(1) to perform promptly each and every obligation of Tenant under
this Lease until such time as this Lease is either rejected or assumed by
order of a United States Bankruptcy Court or other United States Court of
competent jurisdiction; or deemed rejected by operation of law, pursuant
to 11 U.S.C. ss. 365(c)(4);
(2) to pay monthly in advance on the first day of each month as
reasonable compensation for use and occupancy of the Leased Premises an
amount equal to all Annual Gross Rent and all other Additional Rent;
(3) to reject or assume this Lease within sixty (60) days of the
filing of such petition under Chapter 7 of the Bankruptcy Code or within
thirty (30) days of the filing of a petition under any other Chapter;
(4) to give Landlord at least forty-five (45) days prior written
notice of any proceeding relating to any assumption of this Lease;
(5) to give Landlord at least thirty (30) days prior written notice
of any abandonment of the Leased Premises;
(6) to be deemed conclusively to have rejected this Lease in the
event of the failure to comply with any of the above;
(7) to have consented to the entry of an order by an appropriate
United States Bankruptcy Court providing all of the above, waiving notice
and hearing of the entry of same; and
(8) that this is a "lease of real property" as such term is used in
the Bankruptcy Code.
(c) Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord hereunder, whether or not
expressly denominated as Rent, shall constitute "rent" for the purposes of
Section 502(b)(7) of the Bankruptcy Code, including, without limitation,
reasonable attorneys' fees incurred by Landlord by reason of Tenant's
bankruptcy.
(d) Nothing contained in this Section 15.3 shall be deemed in any manner
to limit Landlord's rights and remedies under the Bankruptcy Code, as
presently existing or as may hereafter be amended. In the event that the
Bankruptcy Code is interpreted or amended during the term of this Lease to
so permit, or is superseded by an act so permitting, the following
additional acts shall be deemed an event of default under this Lease: (i)
if Tenant is adjudicated insolvent by the United States Bankruptcy Code or
(ii) if a petition is filed by or against Tenant under the Bankruptcy Code
and such petition is not vacated within one hundred twenty (120) days. In
either of such events, this Lease and all rights of Tenant hereunder shall
automatically terminate with the same force and effect as if the date of
either such event were the date stated herein for the expiration of the
Term, and Tenant shall vacate and surrender the Leased Premises, but shall
remain liable as herein provided. Landlord reserves any and all rights and
remedies provided herein or at law.
ARTICLE 16. TENANT'S REPRESENTATIONS
16.1. Tenant's Representations. Tenant, in order to induce Landlord to
enter into this Lease, hereby represents that: Tenant has full power and
authority to conduct its business as presently conducted and to enter into this
Lease; that this Lease has been duly authorized, executed and delivered by
Tenant and constitutes and legal and binding obligation of Tenant; and that no
litigation or proceedings (or threatened litigation or proceeding or basis
therefor) exists which could materially and adversely affect the ability of
Tenant to perform its obligations under this Lease or which would constitute a
default on the part of Tenant under this Lease, or which would constitute such a
default with the giving of notice or lapse of time, or both.
17
ARTICLE 17. DELETED
ARTICLE 18. DELETED
ARTICLE 19. MISCELLANEOUS
19.1. Waiver. Failure of Landlord or Tenant to declare an event of default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default, but
Landlord or Tenant shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit of any one
or more of the remedies set forth in Article 15 above shall not preclude pursuit
of any one or more of the other remedies provided elsewhere in this Lease or
provided by law, nor shall pursuit of any remedy constitute forfeiture or waiver
of any rent or damages accruing to Landlord or Tenant by reason of the violation
of any of the terms, provisions or covenants of this Lease. Failure by Landlord
or Tenant to enforce one or more of the remedies provided upon an event of
default shall not be deemed or construed to constitute a waiver of the default
or of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Without limiting the generality of the
foregoing, no action taken or not taken by Landlord or Tenant under the
provisions of this Section or any other provision of this Lease (including, by
way of example rather than of limitation, the Landlord's acceptance of the
payment of rent after the occurrence of any event of default) shall operate as a
waver of any right to be paid a late charge or of any other right or remedy
which the either party hereto would otherwise have against the other party on
account of such event of default under the provisions of this Lease or
applicable law (each party hereto hereby acknowledging that, in the interest of
maintenance of good relations between Landlord and Tenant, there may be
instances in which the other party chooses not immediately to exercise some or
all of its rights on the occurrence of an event of default).
19.2. Attorney's Fees. In The event that it shall become necessary for
either Landlord or Tenant to employ the services of attorneys to enforce any of
their respective rights under this Lease or to collect any sums due to them
under this Lease or to remedy the breach of any covenant of this Lease on the
part of the other to be kept or performed, the nonprevailing party (Tenant or
Landlord as the case may be) shall pay to the prevailng party such reasonable
fees as shall be charged by the prevailing party's attorneys for such services,
including services at all trial and appellate levels and post judgment
proceedings and such prevailing party shall also have and recover from the
nonprevailing party (Landlord or Tenant as the case may be) all other costs and
expenses of such suit and any appeal thereof or with respect to any postjudgment
proceedings.
19.3. Successors. Except as provided in Section 19.11, this Lease shall be
binding upon and inure to the benefit of Landlord and Tenant and their
respective heirs, personal representatives, successors and assigns.
19.4. Cautions. The captions appearing in this Lease are inserted only as
a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
19.5. Notice. Any notice, demand, consent, approval or other communication
to the given to or served upon any party hereto, in connection herewith, must be
in writing, and may be given by facsimile transmission, certified mail or
guaranteed overnight delivery service, return receipt requested. If a notice is
delivered by United States Mail, it shall be deemed to have been given and
received two (2) days following the deposit of a certified letter containing
such notice, properly addressed, with postage prepaid, with the United States
Mail. If delivered by facsimile transmission or by guaranteed overnight delivery
service, it shall be deemed to have been given and received the same day that
the notice is faxed or delivered into the custody of the overnight delivery
service. If the notice is given otherwise than by certified mail, facsimile
transmission or guaranteed overnight delivery service, it shall be deemed to
have been given when delivered to and received by the party to whom it is
addressed. Notices shall be given to the parties hereto at the following
addresses:
18
To Landlord: Echelon International Corporation
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Facsimile Number: (000) 000-0000
Copy To: Echelon Real Estate Services, Inc.
Xxx Xxxxxxxx Xxxxxxxxx, Xxx 00
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx
Facsimile Number: (000) 000-0000
To Tenant: Regeneration Technologies, Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Facsimile Number: (000) 000-0000
Either party hereto may, at any time by giving five (5) business days' written
notice to the other party hereto, designate any other address in substitution of
the foregoing address to which notice shall be given and other parties to whom
copies of all notices hereunder shall be sent.
19.6. Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application for such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
19.7. Landlord's Liability. Tenant shall look solely to the estate and
property of the Landlord in the Building for the collection of any judgment, or
in connection with any other judicial process, requiring the payment of money by
Landlord in the event of any default by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed and performed by
Landlord, and no other property or estates of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of Tenant's
remedies and rights under this Lease. The provisions of this Section are not
designed to relieve Landlord from the performance of any of its obligations
hereunder, but rather to limit Landlord's liability in the case of a recovery of
a money judgment against Landlord. The foregoing limitation shall not apply to
or limit any injunctive or other equitable declaratory or other forms of relief
which Tenant may be entitled to. The word "Landlord" as used in this Lease shall
mean only the owner from time to time of Landlord's interest in this Lease. In
the event of any assignment of Landlord's interest in this Lease, the assignor
shall no longer be liable for the performance or observation of any agreements
or conditions on the part of Landlord to be performed or observed subsequent to
the effective date of such assignment provided the assignee specifically assumes
all such obligations.
19.8. Estoppel Certificates. Tenant agrees at any time and from time to
time, upon not less than fifteen (15) days prior written request of Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified, and
stating the modifications), the date to which the rental and other charges have
been paid in advance, if any, and whether or not any violations are in existence
as of the date of said statement, that Tenant has accepted possession of the
Leased Premises, the date on which the term commenced; and, as to whether, to
the best knowledge, information and belief of the signer of such certificate,
the other party is then in default in performing any of its obligations
hereunder (and, if so, specifying the nature of each such default); and as to
any other fact or condition with respect to this Lease reasonably requested by
the other party hereto or such other addressee, it being intended that any such
statement delivered pursuant to this Section may be relied upon by any
prospective purchaser of the fee or mortgagee or assignee of any mortgage upon
the fee.
19
19.9. No Recording. Tenant shall not record this Lease or any memorandum
or short form hereof without the written consent and joinder of Landlord.
19.10. Waiver of Jury Trial. The parties hereto waive trial by jury in
connection with any proceedings or counterclaims brought by either of the
parties hereto against the other.
19.11. [Intentionally Deleted]
19.12. Corporate Authority. If Tenant executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Tenant does
hereby personally represent and warrant that Tenant is a duly authorized and
existing corporation, that Tenant is qualified to do business in the state in
which the Leased Premises are located, that the corporation has full right and
authority to enter into this Lease, and that each person signing on behalf of
the corporation is authorized to do so. In the event any representation or
warranty is false, all persons who execute this Lease shall be liable,
individually, as Tenant.
ARTICLE 20. OTHER PROVISIONS
20.1. Hazardous and Biomedical Substances.
(a) Hazardous Substances. The term "Hazardous Substances," as used in this
Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs),
chemicals known to cause cancer or reproductive toxicity, pollutants,
contaminants, hazardous wastes, toxic substances or related materials,
petroleum and petroleum products, and substances declared to be hazardous
or toxic under any law or regulation now or hereafter enacted or
promulgated by any governmental authority.
(b) Tenant Restrictions. Tenant shall not cause or permit to occur:
(i) Any violation of any federal, state, or local law, ordinance, or
regulation now or hereafter enacted, related to environmental
conditions on, under, or about the Leased Premises, or arising from
Tenant's use or occupancy of the Leased Premises, including, but not
limited to, soil and ground water conditions; or
(ii) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous
Substance or biomedical materials or waste on, under, or about the
Leased Premises, or the transportation to or from the Leased
Premises of any Hazardous Substance or biomedical materials or
waste. Notwithstanding the foregoing, Landlord acknowledges that
Tenant intends to use, store, process, and dispose of biomedical
materials, wastes and human tissue in conjunction with its use of
the Leased Premises and agrees that such activities shall not be
deemed a default under this Lease provided Tenant complies with all
applicable rules and regulations governing such activities. In
addition, Tenant and its agents and employees shall properly and
securely enclose and contain any such Hazardous Substances or
biomedical materials or waste when transporting the same on, across
or through any location in or about the Building.
(c) Environmental Clean-up.
(i) Tenant shall, at Tenant's own expense, comply with all Laws
regulating the use, generation storage, transportation, or disposal
of Hazardous Substances and biomedical wastes and materials.
(ii) Tenant shall, at Tenant's own expense, make all submissions to,
provide all information required by, and comply with all
requirements of all governmental authorities (the "Authorities")
under the Laws.
(iii) Should any Authority or any third party demand that a cleanup
plan be prepared and that a cleanup be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances
that occurs during the term of this Lease, at or from the Leased
Premises, or which arises at any time
20
from Tenant's use or occupancy of the Leased Premises, then Tenant
shall, at Tenant's own expense, prepare and submit the required
plans and all related bonds and other financial assurances and
Tenant shall carry out all such cleanup plans.
(iv) Tenant shall promptly provide all information regarding the
use, generation, storage transportation, or disposal of Hazardous
Substances that is requested by Landlord. If Tenant fails to fulfill
any duty imposed under this Section (c) within a reasonable time,
Landlord may do so: and in such case, Tenant shall cooperate with
Landlord in order to prepare all documents Landlord deems necessary
or appropriate to determine the applicability of the Laws to the
Leased Premises and Tenant's use thereof, and for compliance
therewith, and Tenant shall execute all documents promptly upon
Landlord's request. No such action by Landlord and no attempt made
by Landlord to mitigate damages under any Law shall constitute a
waiver of any of Tenant's obligations under this Section (c).
(v) Tenant's obligations and liabilities under this Section (c)
shall survive the expiration of this Lease.
(d) Tenant's Indemnity.
(i) Tenant shall indemnify, defend, and hold harmless Landlord, the
manager of The property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from
all liabilities, obligations, penalties, fines, claims, litigation,
demands, defenses, judgments, suits, proceedings, actions, costs,
disbursements or expenses of any kind or of any nature whatsoever
(including without limitation, attorneys' and experts' fees and
disbursements) arising out of or in any way connected with any
deposit, spill, discharge, or other release of Hazardous Substances
that occurs during the term of this Lease, at or from the Leased
Premises, or which arises at any time from Tenant's use or occupancy
of the Leased Premises, or from Tenant's failure to provide all
information, make all submissions, and take all steps required by
all Authorities under the Laws and all other environmental laws.
(ii) Tenant's obligations and liabilities under this Section (d)
shall survive the expiration of this Lease.
20.2. 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 overtime. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from the county
health public health unit.
20.3. Americans with Disabilities Act. Tenant covenants and agrees, at its
expense without reimbursement or contribution by Landlord, to keep, maintain,
alter and replace, if necessary, the interior non-structural portions of the
Leased Premises so as to maintain compliance of same with the Americans with
Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (the "Act"), as amended from
time to time, and all rules and regulations promulgated to further the purpose
of and to enforce the Act (the "ADA").
20.4. Time of Essence. Time is of the essence of each and every provision
and term of this Lease.
20.5. Exhibits and Riders. Exhibit A - Leased Premises Site Plan; Exhibit
B - Work Agreement; Exhibit C - Rules and Regulations.
20.6. Complete Understanding, This Lease represents the complete
understanding between the parties hereto as the subject matter hereof, and
supersedes all prior written or oral negotiations, representations, warranties,
statements or agreements between the parties hereto as the same. No inducements,
representations, understandings or agreements have been made or relied upon in
the making of this Lease, except those specifically set forth in the provisions
of this Lease. Neither party hereto has any right to rely on any other prior or
contemporaneous representation made by anyone concerning this Lease which is not
set forth herein. This Lease may not be altered, waived, amended or extended
except by an instrument in writing signed by Landlord and Tenant Landlord and
Tenant acknowledge that each of them and their counsel have had an opportunity
to review this lease and that this lease will not be construed against Landlord
merely
21
because Landlord has prepared it. If there are more than one persons or entities
named as "Tenant," each named person or entity shall be jointly and severally
liable for all obligations of Tenant under this Lease.
20.7. Governing Law. This Lease shall be governed in all respects by the
laws of the State of Florida
20.8. Counterparts, This Lease may be signed in any number of
counterparts. Each counterpart shall be an original, but all such counterparts
shall constitute one Lease.
ARTICLE 21. SIGNATURES
In Witness Whereof, this Lease was executed as of "Effective Date" as
specified hereinabove.
WITNESSES: REGENERATION TECHNOLOGIES, INC.
/s/ Xxxx Xxxxx Xxxxxx By: /s/ [ILLEGIBLE]
---------------------------------
Its: CFO/Sec/Treas.
(Corporate Seal)
"TENANT"
WITNESSES: ECHELON INTERNATIONAL CORPORATION, a Florida
corporation
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
/s/ [ILLEGIBLE] ---------------------------------
Vice President
"LANDLORD"
22
EXHIBIT "A"
[GRAPHIC OMITTED]
EXHIBIT "B"
RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant ten (10) keys without charge Additional
keys will be furnished at a nominal charge. Tenant shall not change locks
or install additional locks on doors without prior written consent of
Landlord. Tenant shall not make or cause to be made duplicates of keys
procured form Landlord without prior approval of Landlord. All keys to
Leased Premises shall be surrendered to Landlord upon termination of this
Lease.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the Leased
Premises for Tenant to Landlord for Landlord's approval before performance
of any contractual service. Tenant's contractors and installation
technicians shall comply with Landlord's rules and regulations pertaining
to construction and installation. This provision shall apply to all work
performed on or about the Leased Premises, including installation of
telephone, telegraph equipment or any other physical portion of the Leased
Premises or Building.
3. Tenant shall not at any time occupy any part of the Leased Premises or
Building as sleeping or lodging quarters.
4. Tenant shall not place, install or operate on the Leased Premises or in
any part of the Building any engine or stove or xxxx thereon or therein,
or place or use in or about the Leased Premises or Building any
explosives, gasoline, kerosene, oil, acids, caustics, or any flammable,
explosive or hazardous material without written consent of Landlord.
5. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Leased Premises or the Building
regardless of whether such loss occurs when the area is locked against
entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the Leased Premises or Building.
7. Employees of Landlord shall not receive or carry messages for or to any
Tenant or other person or contract with or render free or paid services to
any Tenant or to any of Tenant's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, hallways or stairways shall be blocked or obstructed or any
rubbish, litter, trash, or material of any nature placed, emptied or
thrown into these areas or such area used by Tenant's agents, employees or
invitees at any time for purposes inconsistent with their designation by
Landlord.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of
the Building shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the Building by the use of any
radios, record players, tape recorders, musical instruments, the making of
unseemly noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the Building or down the
stairways or other passages.
12. Movement in or out of the Building of furniture or office supplies and
equipment, or dispatch or receipt by Tenant of any merchandise or
materials which requires use of stairways, or movement through the
Building entrances or lobby, shall be restricted to hours designated by
Landlord. All such movement shall be under supervision of Landlord and
carried out in the manner agreed between Tenant and Landlord by
prearrangement before performance. Such prearrangement will include
determination by Landlord of
24
time, method, and routing of movement and limitations imposed by safety or
other concerns which may prohibit any article, equipment or any other item
from being brought into the Building. Tenant assumes and shall indemnify
Landlord against, all risks and claims of damage to persons and properties
arising in connection with any said movement.
13. Tenant shall not lay floor covering within the Leased Premises without
written approval of the Landlord. The use of cement or other similar
adhesive materials not easily removed with water is expressly prohibited.
14. There shall be no smoking in any area inside the Building.
15. Landlord reserves the right to exclude from the Buildings, between the
hours of 5:00 p.m. and 8.00 a.m. on weekdays and at all hours on Saturday
and on Sunday and legal holidays, all persons who are not known to the
Buildings security personnel and who do not present a pass to the
Buildings signed by the Tenant. Each Tenant shall be responsible for all
persons for whom it supplies a pass. To preserve the safety and security
of the persons and property of all tenants in the Building, Tenant shall
not unlock or "prop open" any of the Building exit and entrance doors or
doorways during non Business Hours.
25
Exhibit C
Work Agreement
The following Tenant Improvements will be furnished in suite 102:
Area 2 Remove 2 fume hoods
Area 5 Install seamless flooring
Install non particulate ceiling tiles
Install door opening
Block off existing exhaust and make up duct
Area 4 Remove designated cabinets
Relocate designated cabinets
Isolate electric circuits and provide GFI
Install compressed air lines from building system
Area 6 Remove designated cabinets
Build support for counter tops where cabinets are removed
Area 2 Remove fume hoods
All areas Tile floors will be cleaned or replaced as needed.
Cabinets will be repainted
Walls will be patched and repainted
Cost to tenant $7,680.
Payable within 10 days of completion
Estimated time of completion of all work- February 25, 2000
The six offices will be available for occupancy upon execution of
this document.
Area I (room 128) will be available for occupancy by Wednesday 2/9.
All other areas will be turned over to tenant as work is completed.
