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EXHIBIT 10.36
AIRPORT COMMERCE CENTER
NET INDUSTRIAL LEASE
MULTI TENANT BUILDING
1. Parties.
THIS LEASE, dated, for reference purposes only, June 18, 1998, is made
between ▇▇▇▇▇▇▇▇ METALS DEVELOPMENT COMPANY, a Delaware Corporation
("Landlord") and ▇▇▇▇▇, a division of Sabratek Corporation, a Delaware
corporation ("Tenant").
2. Premises.
Landlord hereby leases to the Tenant and Tenant leases from Landlord for
the term, at the rental, and upon all of the conditions set forth herein, the
portion of that certain real property situated in the County of Orange, State of
Florida, commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, comprising
approximately 40,544 square feet as indicated on Exhibit "A" attached hereto and
by reference made a part hereof (the "Premises"), together with improvements as
indicated on Exhibit "B" attached hereto and by reference made a part hereof
(the "Improvements").
3. Term.
3.1 Term. The term of this Lease shall commence on the latter of when the
Premises and Improvements are completed in good and workmanlike manner and in
compliance with the plans, specifications and completion schedule as indicated
on Exhibit "C" (the "Plans and Specifications") or September 1,1998 (subject to
Section 3.2) (the "Commencement Date") and shall end at midnight, on May 31,
2007, unless sooner terminated pursuant to any provision hereof. Tenant shall
have the option to renew the Lease for two (2) consecutive five (5) year terms.
Tenant shall provide Landlord with written notice via certified mail no later
than 180 days prior to expiration of the then term of its intent to exercise its
option to renew. Annual Rent for the renewal period shall be calculated annually
based on the Annual Rent for the prior Lease Year plus a percent increase equal
to the percent increase in the Consumer Price Index for the prior Lease Year.
3.2 Delay in Completion of Improvements. Landlord will take all steps
reasonably necessary in order to ensure that the Improvements are completed no
later than September 1, 1998; however, if the completion of the Improvements
shall be delayed due to (a) any act or omission of the Tenant or any of its
employees, agents or contractors (including, but not limited to (i) any delays
due to changes in or additions
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to the Improvements, or (ii) any delays by Tenant in the submission of plans,
drawings, specification, or other information or in approving drawings or in
giving any authorizations or approvals); (b) any delays beyond control of
Landlord including, but not limited to, strikes, lockouts, civil commotion,
warlike conditions, invasion, rebellion, hostility, inclement weather, inability
to obtain material or services and acts of God; or (c) any delays caused by
governmental regulations or controls, Landlord shall not be subject to any
liability therefore, nor shall such failure affect the validity of the Lease or
the obligations of Tenant hereunder, but in such case, Tenant shall not be
obligated to pay rent until the Premises and Improvements are completed in good
and workmanlike manner in compliance with the Plans and Specifications. Landlord
shall keep Tenant informed of the status and progress of said construction.
3.3 Early Possession. If Tenant occupies the Premises prior to the
Commencement Date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Tenant shall pay rent
for such period at the initial monthly rates set forth below.
4. Rent/Security Deposit.
4.1 Rent.
(a) Tenant shall pay to Landlord annual rent for the Premises in the
amounts set forth below under the heading "Annual Rent." As long as Tenant is
not in default hereunder, rent may be paid in equal monthly installments in the
amounts set forth below under the heading "Monthly Rent," as adjusted by
Subsection 4.1(b), in advance, on the first day of each month of each Lease Year
during the term hereof, except the first installment of rent which shall be paid
upon execution of the Lease by Tenant. Rent shall be prorated if the term does
not commence on the first day of a calendar month or expire on the last day of a
calendar month. Rent shall be paid to ▇▇▇▇▇▇▇▇ Metals Development Company, ▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Lease Year Annual Rent Monthly Rent
---------- ----------- ------------
From the Commencement
Date to June 30, 1999 $257,454.40 $21,454.53
July 1, 1999 to June 30, 2000 $257,454.40 $21,454.53
July 1, 2000 to June 30, 2001 $257,454.40 $21,454.53
July 1, 2001 to June 30, 2002 $288,348.53 $24,029.08
July 1, 2002 to June 30, 2003 $296,999.40 $24,749.95
July 1, 2003 to June 30, 2004 $305,909.38 $25,492.45
July 1, 2004 to June 30, 2005 $315,086.66 $26,257.22
July 1, 2005 to June 30, 2006 $324,539.26 $27,044.94
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July 1, 2006 to May 31, 2007 $334,275.44 $27,856.29
(b) The term "Lease Year", as used herein, (i) shall mean the periods
set forth above in subsection (a) hereof, and (ii) in the event the Lease
expires or terminates on a date other than the date set forth herein, then the
term "Lease Year" shall also mean the period from the end of the preceding Lease
Year to the date of said expiration or termination of this Lease.
(c) Tenant agrees that any adjustments to the base Monthly Rent and
other sums due Landlord from Tenant under the terms of this Lease shall be
considered as additional rent from Tenant (the "Additional Rent"). As used
herein the term "Rent" shall include the Monthly Rent, Additional Rent and such
other payments as are set forth herein.
(d) It is understood and agreed that Tenant's obligation to pay the
Additional Rent shall, for the purposes of the default provision hereof, entitle
Landlord to all remedies provided herein and at law or equity on account of
Tenant's failure to pay rent. Any delay or failure of Landlord in computing or
billing for Additional Rent shall not constitute a waiver or in any way impair
the continuing obligation of the Tenant to pay such Additional Rents. Any
statement of Additional Rent sent by Landlord to Tenant shall be conclusively
binding upon Tenant unless, within thirty (30) days after such Statement is
sent, Tenant shall send a written notice to Landlord objecting to such Statement
and specifying the respects in which such Statement is claimed to be incorrect.
If such notice is sent and the parties are unable to resolve the issues, either
party hereto may refer the matter to a reputable independent firm of a certified
arbitrator selected by mutual agreement between Landlord and Tenant, and the
decision of said arbitrator shall be conclusively binding upon said parties. The
fees and expenses of the arbitrator shall be borne by the unsuccessful party
unless both parties are unsuccessful, then said expenses shall be apportioned
between the parties by the accountants based upon the degree of success of each
party.
4.2 Security Deposit. Tenant shall deposit with Landlord upon execution
hereof $44,805.60 as security for Tenant's faithful performance of Tenant's
obligations hereunder (the "Security Deposit"). If Tenant fails to pay rent or
other charges due hereunder, or otherwise defaults with respect to any provision
of this Lease, Landlord may use, apply or retain all or any portion of the
Security Deposit for the payment of any rent or other charge in default or for
the payment of any other sum to which Landlord may become obligated by reason of
Tenant's default, or to compensate Landlord for any loss or damage which
Landlord may suffer thereby. If Landlord so uses or applies all or any portion
of the Security Deposit, Tenant shall within ten (10) days after written demand
therefore, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to the full amount hereinabove stated and Tenant's failure to
do so shall be a material breach of this Lease. Landlord shall keep
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said deposit separate from its general accounts, in an interest bearing account.
Interest accumulated on such account during each Lease Year shall be paid to
Tenant by Landlord following the end of such Lease Year. If Tenant performs all
of Tenant's obligations hereunder, the Security Deposit, or so much thereof as
has not theretofore been applied by Landlord, shall be returned without payment
of other increment for its use to Tenant (or Tenant's assignee if so directed in
writing by Tenant) at the expiration of the term hereof, and after Tenant has
vacated the Premises No trust relationship is created herein between Landlord
and Tenant with respect to the Security Deposit.
5. Use.
5.1 Use. Tenant shall use the Premises for preparation of pharmaceuticals
so-called "Clean-Room(s)", offices, laboratory, warehouse and shipping and uses
incidental thereto and for no other purposes, and Tenant further agrees to use
the entire Premises as herein provided. Tenant agrees not to store any material,
waste or other products outside the Premises in any adjoining area. Landlord
shall provide a dumpster for Tenant's use for waste paper products only. Under
no circumstances shall such dumpster be used by Tenant for disposal of
pharmaceuticals, medical products, controlled substances or other related
products. Tenant further agrees that it will not store or dispose of hazardous
materials in or about the Premises. For purposes of this Lease, "hazardous
materials" includes any hazardous, toxic or dangerous waste, substance or
material defined as such in (or for purposes of) the Comprehensive Environmental
Response, Compensation and Liability Act, any so-called "superfund" of
"superlien" law, or any other federal, state or local statute, law ordinance,
code, rule, regulation, consent agreement or other requirement of any
governmental authority regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous or toxic or dangerous waste. This
restriction shall not prohibit the use, preparation, disposal or other handling
of pharmaceuticals, medical products, controlled substances or other related
products. Tenant shall dispose, handle, store and otherwise deal with said
products in compliance with any and all regulations, law, ordinances and other
governmental requirements related thereto. Tenant shall defend, indemnify and
save Landlord harmless from all costs and expenses (including consequential
damages) asserted or proven against Landlord by any party as a result of
Tenant's use, storage or disposal of hazardous materials (as defined above),
pharmaceuticals, medical products or controlled substances on the premises. The
foregoing indemnity shall be a recourse obligation of Tenant, which shall
survive termination, or expiration of the lease. In the event that any activity
of the Tenant causes an increase in the insurance as a whole, then Tenant shall
pay this additional cost of insurance as assessed by Landlord's insurer, which
determination shall be conclusive and binding upon tenant.
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5.2 Compliance with Law. Tenant shall, at Tenant's expense, comply promptly
with all applicable statutes, ordinances, rules, regulations, orders, permits,
covenants and restrictions of record, and requirements in effect during the term
or any part of the term hereof, regulating the use or condition of the Premises,
parking, or Common Areas, including but not limited to, environmental matters
and employee health and safety. Tenant shall not use nor permit the use of the
Premises in any manner that will tend to create waste or a nuisance or, if there
shall be more than one tenant in the building containing the Premises, shall
tend to disturb such tenants.
5.3 Condition of Premises. Landlord shall deliver the Premises and
Improvements completed in good and workmanlike manner, in compliance with the
Plans and Specifications and all applicable zoning, municipal, county and state
laws, ordinances and regulations governing and regulating the use and condition
of the Premises and any covenants or restrictions of record. Tenant accepts this
Lease subject thereto and to all matters disclosed thereby. Tenant acknowledges
that neither Landlord nor Landlord's agent has made any representation or
warranty as to the present or future suitability of the Premises for the conduct
of Tenant's business.
5.4 Common Areas. All areas and facilities that Landlord shall from time to
time designate as being for the mutual use of Tenant, its customers, employees
and other tenants, including but not limited to all parking areas, sidewalks,
driveways, roads and landscaped areas located on the real property on which the
Premises are located and in the park of which the Premises are a part, shall be
known as the "Common Areas". Tenant and its employees, customers and invitees
shall have the non-exclusive right to use Common Areas together with Landlord
and the other tenants of the building containing the Premises, their customers,
employees and guests and, subject to such reasonable rules and regulations
governing the use of the Common Areas as Landlord may from time to time
prescribe, such rules specifically to include but are not limited to parking
rules. Tenant shall not use the Common Areas for storage without the prior
written consent of Landlord or take any action, which would interfere with the
rights of other persons to use the Common Areas. Landlord may temporarily close
any part of the Common Areas for such period of time as is reasonably necessary
to make repairs or alterations to the Common Areas or the building located on
the real property of which the Premises are a part.
6. Maintenance, Repairs and Alterations.
6.1 Tenant's Obligations.
(a) Tenant, at Tenant's expense, shall keep in good order, condition
and repair the nonstructural portions of the Premises and every part thereof,
including by way of illustration, all plumbing, heating, air conditioning,
ventilation, electrical and lighting facilities and equipment located within the
Premises, interior surfaces of
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exterior walls (including but not limited to damage to such surfaces caused by
etching or staining from spilled or leaked materials), ceilings, windows, doors
and plate glass and Tenant's signs located on or about the Premises. Tenant
shall be obligated to make the repairs required hereunder whether or not such
portion of the Premises requiring repair, or the means of repairing the same are
reasonably or readily accessible to Tenant, and whether or not the need for such
repairs occurs as a result of Tenant's use, any prior use, the elements, or the
age of such portion of the Premises All glass, both interior and exterior, is
the sole risk of Tenant and Tenant agrees to replace at Tenant's own expense any
glass broken during the term of this Lease and Tenant agrees to insure and to
keep insured all plate glass in the Premises and to furnish the Landlord with
certification of said insurance. In the event replacement is necessary, Tenant
agrees to use such insurance for the replacement of any broken glass. The term
"repair" shall be deemed to include replacements. In addition to Tenant's
obligations set forth herein, Tenant shall, at its expense, repair and replace
any and all portions of the Premises, structural and nonstructural, or any
landscaping, damaged by Tenant's acts or omissions or the acts or omissions of
Tenant's employees, agents, contractors or any others for whom Tenant may be
responsible.
(b) If Tenant fails to perform Tenant's obligations under this
section 6.1 within a reasonable time after receipt of written notice of the need
for such repairs, Landlord may at Landlord's option enter upon the Premises
(except in the case of emergency, in which case no notice shall be required),
perform such obligations on Tenant's behalf and put the Premises in good order,
condition and repair, and the reasonable cost thereof shall be due and payable
as additional rent to Landlord, together with Tenant's next rental installment.
(c) On the last day of the term thereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in the same
condition as received, ordinary wear and tear excepted, and the Premises shall
be delivered to Landlord clean, uncontaminated and free of debris. Tenant shall
remove its trade fixtures, furnishings and equipment from the Premises and shall
repair any damage to the Premises occasioned by the installation or removal of
its trade fixtures, furnishings and equipment. Tenant shall have the right to
remove its Clean Room(s) and all equipment related thereto, provided that Tenant
repairs any damage to the Premises occasioned by the installation or removal
thereof and surrenders and delivers the Premises as provided above in this
subsection (c).
6.2 Landlord's Obligations. Landlord, at Landlord's expense, shall keep in
good order, condition and repair, all of the structural portions of the
Premises, including, without limiting the generality of the foregoing, the roof,
the exterior walls and the foundation of the Premises. Landlord shall repair and
replace if necessary any latent or other defects in the Premises which arose
during, or which are attributable to, construction of the Premises; and Landlord
shall maintain the Common Areas as
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described in section 5.4. Landlord shall have no obligation to make repairs
under this subsection 6.2 until a reasonable time after receipt of written
notice of the need for such repairs.
6.3 Common Area Maintenance.
(a) Each month, Tenant shall pay to Landlord, in addition to the rent
due on the Premises, Tenant's Share (defined below) of the cost of Common Area
maintenance for the Premises. Common Area maintenance costs shall include all
expenses reasonably incurred and paid by Landlord in operating, managing and
maintaining the Common Areas of the Premises including, without limiting the
generality of the foregoing, painting and cleaning of paved and unpaved
surfaces, lighting, exterior window cleaning, landscaping, management, signage,
trash collection and other similar items, whether incurred by Landlord directly,
through the Airport Commerce Center Property Owner's Association, Inc. by virtue
of the Declaration of Covenants, Conditions and Restriction therefore or any
owner's association created for the business park of which the Premises are a
part.
(b) "Tenant's Share" shall be a fraction, the numerator of which
shall be Tenant's leased spaced (40,544 square feet) and the denominator of
which shall be the total leasable space in the building of which the Premises
are a part (81,008 square feet) or 50 percent (50%); provided, however, that if
any charges relate to Airport Commerce Center as a whole, Tenant's share shall
be adjusted to reflect its pro-rata share of such costs.
(c) During the calendar year 1998, the Tenant's Share of Common Area
maintenance and insurance real property tax, in the case of such insurance and
real property tax as provided in Sections 7 and 10 of this Lease, shall be $.60
per square foot of leased space prorated based upon the portion of the calendar
year 1998 that this Lease is in effect. Tenant's Share of Common Area
maintenance, insurance and real property tax shall be adjusted annually
thereafter pursuant to Subsection 6.3(b) above, provided, however, that such
Tenant's Share in calendar year 1999 shall be $1.05 per square foot; and,
provided further that beginning with calendar year 2000 Tenant's Share of Common
Area maintenance (expressly excluding insurance and real property tax) shall
not increase more than the lesser of (a) Tenants pro-rata share of actual
operating charges, or (b) an average of five percent (5%) annually determined on
a cumulative basis. Landlord shall prepare and submit to Tenant a statement
reflecting the Common Area expenses incurred during the prior year and the
projected Common Area expenses expected to be incurred during the current year,
at which time the monthly amount to be paid by Tenant hereunder shall be
adjusted accordingly in order to pay any deficiency for the previous year
together with any increase or decrease in the projected Common Area expenses
expected to be incurred during the current year
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(d) Landlord, at Landlord's option or upon Tenant's request, may
provide Tenant with a monthly written statement of Tenant's Share of the Common
Area Maintenance costs.
6.4 Alterations and Additions.
(a) Tenant shall not make any alterations, improvements or additions
in, on or about the Premises without Landlord's prior written consent which
consent shall not be unreasonably withheld, delayed or conditioned.
(b) Any alterations, improvements or additions in the Premises that
Tenant shall desire to make shall be presented to Landlord in written form with
proposed detailed plans prepared by a professional architect or engineer. If
Landlord shall give its consent, the consent shall be deemed conditioned upon
Tenant acquiring a permit to do so from appropriate governmental agencies, if
required, furnishing a copy thereof to Landlord prior to the commencement of the
work and complying with all conditions of said permit in a prompt and
expeditious manner.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished to or for Tenant at or for use in the Premises, which claims are or
may be secured by any mechanics' or materialmen's lien against the Premises or
any interest therein. Tenant shall give Landlord not less than ten (10) days'
notice prior to the commencement of any such work in the Premise and Landlord
shall have the right to post notices of nonresponsibility in or on the Premises
as provided by law. If Tenant shall, in good faith, contest the validity of any
such lien, claim or demand, then Tenant shall, at its sole expense, defend
itself and Landlord against the same and shall pay and satisfy any such adverse
judgment that may be rendered thereon before the enforcement thereof against the
Landlord or the Premises. Landlord may, at its option, require Tenant to furnish
to Landlord a surety bond reasonably satisfactory to Landlord in an amount equal
to 100% of the amount of such contested lien, claim or demand indemnifying
Landlord against liability for the same and holding the Premises free from the
effect of such lien or claim.
(d) Unless Landlord requires their removal, all alterations,
improvements and additions which may be made on the Premises, shall become the
property of Landlord and remain upon and be surrendered with the Premises at the
expiration of the term. Notwithstanding the provisions of this section 6.4,
Tenant's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises,
shall remain the property of Tenant and may be removed by Tenant subject to the
provisions of subsection 6.1(c).
7. Insurance; Indemnity.
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7.1 Liability Insurance. Tenant shall, at Tenant's expense, obtain and keep
in force during the term of this Lease, comprehensive general liability
insurance with a combined single limit of not less than $1,000,000.00 per
occurrence for bodily injury and property damage insuring both Landlord and
Tenant against liability arising out of Tenant's use, occupancy and maintenance
of the Premises and all other areas appurtenant thereto. Tenant shall deliver to
Landlord a certificate of insurance required under this subsection, which policy
shall expressly name Landlord as an insured. No such policy shall be cancelable
or subject to reduction in coverage except after thirty (30) days' prior written
notice to Landlord.
7.2 Property Insurance. Landlord agrees that it will keep in force during
the term of this Lease insurance covering loss or damage to the Premises (but
not to Tenant's trade fixtures, furnishings, personal property or improvements)
providing protection against all perils included within the classification of
fire, lightning and extended coverage. Tenant shall pay "Tenant's Share" of the
cost of such insurance as determined under section 6.3.
7.3 Waiver of Subrogation. Insofar as the following provision may be
effective without invalidating insurance coverage, Tenant and Landlord each
hereby release and relieve the other, and waive their entire right of recovery
against the other for loss or damage arising out of or incident to the perils
insured against under this section 7, which perils occur in, on or about the
Premises, whether due to the negligence of Landlord or Tenant or their agents,
employees, contractors and/or invitees, but only to the extent that such loss or
damage is actually covered by insurance, and only to the extent that the insured
party has received proceeds of insurance therefore.
7.4 Indemnity. Tenant agrees to pay, and to defend, indemnify and save
harmless Landlord from and against any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees) in connection with any
injury to, or the death of, any person in or on the Premises or any damage to or
loss of property on the Premises, except any such liabilities, losses, damages,
costs, or expenses arising out of the negligence or willful act of Landlord or
any third parties not doing business with, or otherwise invitees of, or under
the control of, Tenant, their servants, agents or employees. If any action or
proceeding is brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord shall defend the same at Tenant's expense by counsel
mutually satisfactory to Landlord and Tenant. The counsel assigned by insurance
carrier is preapproved as acceptable to both parties.
7.5 Exemption of Landlord From Liability. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of
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Tenant, Tenant's employees, invitees, customers, or any other person in or about
the Premises, nor shall Landlord be liable for injury to the person of Tenant,
Tenant's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, stream, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Tenant except when such damage or injury is caused by Landlord's negligence or
that of its servants, agents or employees. Landlord shall not be liable for any
damages arising from any act or neglect of any other tenant, if any, of the
building in which the Premises are located, unless Landlord has actual notice or
knowledge of same and fails to use efforts determined by Landlord in its sole
and absolute discretion to be reasonable to prevent or restrain the wrongful act
or omission of said other tenant.
8. Damage or Destruction.
8.1 Definitions.
(a) "Partial Damage" means damage or destruction to the building of
which the Premises are a part to the extent that the cost of repair is less than
fifty percent (50%) of the fair market value of the building immediately prior
to such damage or destruction.
(b) "Total Destruction" means damage or destruction to the building
of which the Premises are a part to the extent that the cost of repair is fifty
percent (50%) or more of the fair market value of the building immediately prior
to such damage or destruction or destruction of the "Clean Room(s)" such that
they cannot reasonably be repaired or replaced within thirty (30) days of such
destruction.
8.2 Partial Damage. If at any time during the term of this Lease
there is damage which falls within the classification of Partial Damage,
Landlord may, at Landlord's option, either (i) repair such damage, in which
event this Lease shall continue in full force and effect, or (ii) give written
notice to Tenant within thirty (30) days after the date of the occurrence of
such damage of landlord's intention TO terminate this Lease, which termination
shall be effective as of the date of the occurrence of such damage. In the event
that Landlord elects to rebuild or repair, Landlord shall commence same as soon
as it determines in its sole and absolute discretion it is reasonably
practicable to do so and shall diligently pursue same to completion.
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8.3 Total Destruction. If at any time during the term of this Lease there
is damage which falls into the classification of Total Destruction, this Lease
shall automatically terminate as of the date of such total destruction.
8.4 Abatement of Rent. If Landlord repairs or restores the Premises
pursuant to the provisions of this section 8, the rent payable hereunder
(including "Additional Rent") for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
Tenant's use of the Premises is impaired. Except for abatement of rent, if any,
Tenant shall have no claim against Landlord as a result of any such damage.
Furthermore, notwithstanding anything above to the contrary, Tenant shall not be
entitled to any rent abatement if the Partial Damage is in any way caused by
Tenant.
9. Condemnation.
If the Premises or any portion thereof of the building or other areas
appurtenant to the Premises are taken under the power of eminent domain, or sold
under the threat of the exercise of said power (all of which are herein called
"condemnation"), this Lease shall terminate as to part so taken as of the date
the condemning authority takes title or possession, whichever first occurs. If
in the reasonable opinion of Tenant, the portion of the Premises taken by
condemnation materially adversely affects Tenant's operations on the Premises,
Tenant may, at Tenant's option, to be exercised in writing only within ten (10)
days after Landlord shall have given Tenant written notice of such taking (or in
the absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. Landlord shall also have an option to terminate
this Lease by notice to Tenant given within the time limits set forth above if
in Landlord's reasonable opinion, it would not be economically feasible to
continue leasing the Premises to Tenant as a result of such condemnation. If
this Lease is not terminated in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the rent shall be reduced in the proportion that the square feet of
the Premises which is taken bears to the total square feet of the Premises. Any
award for the taking of all or any part of the Premises under the power of
eminent domain or any payment made under threat of the exercise of such power
shall be the property of Landlord, whether such award shall be made as
compensation for diminution in value of the leasehold, for the taking of the
fee, or as severance damages; provided, however, that Tenant shall be entitled
to any award made specifically for loss of or damage to Tenant's trade fixtures
and removable personal property. In the event that this Lease is not terminated
by reason of such condemnation, Landlord shall, at Landlord's expense, promptly
repair any damage to the Premises caused by such condemnation.
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10. Taxes.
10.1 Payment of Real Property Taxes. Each month, Tenant shall pay Tenant's
Share of the real property taxes applicable to the Premises during the term of
this Lease. "Tenant's Share" shall be calculated as set forth in Section 6.3(b).
10.2 Definition of "Real Property Tax". As used herein, the term "real
property tax" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Premises by any authority have the direct or
indirect power to tax, including any city, state or federal government, or any
school, agricultural, sanitary, fire, street, drainage or other improvement
district thereof, as against any legal or equitable interest of Landlord in the
Premises or in the real property of which the Premises are a part, as against
Landlord's right to rent or other income therefrom, and as against Landlord's
business of leasing the Premises. The term "real property tax" shall also
include any tax, fee, levy, assessment or charge (i) in substitution of,
partially or totally, any tax, fee levy, assessment or charge hereinabove
included within the definition of "real property tax", or (ii) the nature of
which was hereinbefore included within the definition of "real property tax", or
(iii) which is imposed by reason of this transaction or any modifications or
changes hereto.
10.3 Joint Assessment. If the Premises are not separately assessed,
Tenant's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Landlord from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available, and Landlord's reasonable determination thereof, in good
faith shall be conclusive.
10.4 Personal Property Taxes.
(a) Tenant shall pay, prior to delinquency, all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Premises. When possible, Tenant
shall cause said fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Landlord.
(b) If any of the Tenant's personal property shall be assessed with
the Landlord's real property, Tenant shall pay Landlord the taxes attributable
to Tenant within ten (10) days after receipt of a written statement setting
forth the taxes applicable to Tenant's property.
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10.5 Sales and Use Tax. In addition to the annual rent required hereunder,
Tenant shall also be solely responsible for all sales tax applicable thereon, or
applicable to any other charges or payments due hereunder.
11. Utilities and Services.
Tenant shall pay for all gas, heat, light, power, telephone and other
utilities and services supplied to the Premises, together with any taxes
thereon. If any such utilities are not separately metered, Tenant shall pay a
reasonable portion of the charges for utilities jointly metered with other
premises. Tenant shall provide, at its expense, all janitorial and security
services to the Premises.
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the Premises,
without Landlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, provided (i) such assignment is
to an entity/individual(s) whose financial integrity is at least equal to that
of Tenant; (ii) where said assignee has demonstrated prior experience in the
management and operation of its business in a similar setting and of the same
magnitude; and (iii) proof thereof satisfactory to Landlord has been delivered
to Landlord at least ten (10) days prior to the effective date of any such
transfer. Any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease. Any sale, assignment or other transfer of controlling stock interest
in Tenant shall constitute an "assignment" for purposes hereof.
12.2 No Release of Tenant. Regardless of Landlord's consent, no subletting
or assignment shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rent by Landlord from any
person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by any assignee of
Tenant or any successor of Tenant, in the performance of any of the terms
hereof, Landlord may proceed directly against Tenant without the necessity of
exhausting remedies against such successor. Landlord may consent to subsequent
assignments or subletting of this Lease or amendments or modifications to this
Lease with assignees of Tenant, without notifying Tenant, or any successor of
Tenant and without obtaining its or their consent thereto and such action shall
not relieve Tenant of liability under this Lease.
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12.3 Attorney's Fees. In the event Tenant shall assign or sublet the
Premises or request the consent of Landlord to any assignment or subletting or
if Tenant shall request the consent of Landlord for any act Tenant proposes to
do, then Tenant shall pay Landlord's reasonable attorney's fees incurred in
connection therewith.
12.4 Landlord's Option to Terminate. Notwithstanding anything contained
herein to the contrary, in the event that at any time during the term of this
Lease Tenant desires to assign this Lease or to sublet all or part of the
Premises, Tenant shall notify Landlord in writing of the terms of the proposed
assignment or subletting and the area so proposed to be sublet and Landlord
shall have the option to terminate this Lease wholly in the event of a proposed
assignment or sublet of the whole Premises, or partially as to the portion of
the Premises proposed to be sublet, upon written notice to Tenant within 45 days
after receipt of notice of Tenant's intention to assign or sublet; provided,
however, that such option to terminate shall not be available to Landlord in the
event Tenant proposes to so sublet for a term not to exceed one (1) year not
more than two (2) times within a Lease term (or any renewal term) and there is a
minimum of six (6) months between any such subtenancies. If Landlord's election
to terminate involves only a portion of the Premises, the rent specified in this
Lease shall be adjusted proportionately on the basis of the number of square
feet retained by Tenant and this Lease shall continue in full force and effect
in all other respects.
13. Defaults; Remedies.
13.1 Defaults. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after Tenant's receipt of
written notice thereof. In the event that Landlord serves Tenant with a notice
to pay rent or quit pursuant to applicable unlawful detainer statutes, such
notice to pay rent or quit shall also constitute the notice required by this
section.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant,
other than described in section 13.1(b) above, where such failure shall continue
for a period of thirty (30) days after written notice thereof from Landlord to
Tenant; provided, however, that if the nature of Tenant's default is such that
more than thirty (30) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commenced such cure within the
30-day period and thereafter diligently prosecutes such cure to completion.
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(d) (i) The making by Tenant of any general arrangement or assignment
for the benefit of creditors; (ii) Tenant becomes a "debtor" as defined in 11
U.S.C. Section 101 or any successor statute thereto (unless, in the case of a
petition filed against Tenant, the same is dismissed within 60 days); (iii) the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days.
13.2 Remedies. In the event of any such material default or breach by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may otherwise have under Florida law by reason of such default or
breach:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all reasonable damages
incurred by Landlord by reason of Tenant's default including, but not limited
to, the reasonable cost of recovering possession of the Premises; the reasonable
expense of reletting, including necessary reasonable renovation and alteration
of the Premises, reasonable attorney's fees (including costs), and any
reasonable real estate commission actually paid; the worth at the time of award
by the court having jurisdiction thereof of the amount by which the unpaid rent
for the balance of the term after the time of such award exceeds the amount of
such rental loss for the same period that Tenant proves could be reasonably
avoided; and that portion of the leasing commission paid by Landlord pursuant to
section 14 applicable to the unexpired term of this Lease.
(b) Maintain Tenant's right to possession in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Terminate Tenant's right to possession of the Premises without
terminating this Lease and re-enter and take possession of the Premises, in
which case Landlord shall use reasonable efforts to relet the Premises to
another party on commercially reasonable terms for Tenant's account and Tenant
shall remain liable for all rent and other amounts due under this Lease and not
paid by such other party.
(d) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations of
Tenant under
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the terms of this Lease shall bear interest from the date due at the maximum
rate then allowable by law.
13.3 Default by Landlord. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event later than thirty (30) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Tenant
in writing, specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that more
than thirty (30) days are required for performance, then Landlord shall not be
in default if Landlord commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion.
13.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
such amount shall be due then, without any requirement for notice to Tenant,
Tenant shall pay to Landlord a late charge equal to six percent (6%) of such
overdue amount. The parties hereby agree that such late charge represents a fair
and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder, whether or not
collected, for three (3) consecutive installments of rent, then rent shall
automatically become due and payable quarterly in advance, rather than monthly,
notwithstanding section 4 or any other provision of this Lease to the contrary.
13.5 Impounds. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) installment terms of this Lease, Tenant
shall pay to Landlord, if Landlord shall so request, in addition to any other
payments required under this Lease, a monthly advance installment, payable at
the same time as the monthly rent, as reasonably estimated by Landlord, for real
property tax and insurance expenses on the Premises which are payable by Tenant
under the terms of this Lease. Such fund shall be established to insure payment
when due, before delinquency, of any or all such real property taxes and
insurance premiums. If the amounts paid to Landlord by Tenant under the
provisions of this section are insufficient to discharge the obligations of
Tenant to pay such real property taxes and
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insurance premiums as the same become due, Tenant shall pay to Landlord, upon
Landlord's demand, such additional sums necessary to pay such obligations. All
moneys paid to Landlord under this section may be intermingled with other moneys
of Landlord and shall not bear interest. In the event of a default in the
obligations of Tenant to perform under this Lease, then any balance remaining
from funds paid to Landlord under the provisions of this section may, at the
option of Landlord, be applied to the payment of any monetary default of Tenant
in lieu of being applied to the payment of real property tax and insurance
premiums.
14. Broker's Fee.
Each party represents and warrants to the other that it has not dealt with
any broker, finder or similar agent in connection with any transaction
contemplated hereunder. Each party hereto hereby covenants and agrees to defend,
indemnify, hold harmless and reimburse the other party for, from and against all
claims of any kind of any broker, finder or similar agent purporting to
represent the indemnifying party in connection with any transaction contemplated
hereunder.
15. Estoppel Certificate
(a) Tenant shall at any time upon not less than ten (10) days' prior notice
from Landlord execute, acknowledge and deliver to Landlord a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modifications and certifying
that this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed.
Any prospective purchaser or encumbrancer of the Premises may conclusively rely
upon any such statement.
(b) At Landlord's option, Tenant's failure to deliver such statement within
such time shall be a material default under this Lease or shall be conclusive
upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one
month's rent has been paid in advance or such failure may be considered by
Landlord as a default by Tenant under this Lease.
(c) If Landlord desires to finance, refinance, or sell the Premises or any
part thereof, Tenant hereby agrees to deliver to any lender or purchaser
designated by Landlord copies of such financial information or reports as are
publicly available to public stockholders of Tenant as a publicly traded
corporation; provided, however, that if Tenant is not a publicly traded
corporation it shall deliver such financial statements of Tenant as may be
reasonably required by such lender or purchaser,
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including the past three years' financial statements of Tenant. All such
financial statements shall be received by Landlord and such lender or purchaser
in confidence and shall be used only for the purpose herein set forth.
16. Landlord's Liability.
The term "Landlord" as used herein shall mean only the owner or owners at
the time in question of the fee title or a tenant's interest in a ground lease
of the Premises. In the event of any transfer of such title or interest,
Landlord herein named (and in case of any subsequent transfers, then the
grantor) shall be relieved from and after the date of such transfer of all
liability in respect of Landlord's obligations thereafter to be performed,
provided that any funds in the hands of Landlord or the then grantor at the time
of such transfer, in which Tenant has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Landlord
shall, subject as aforesaid, be binding on Landlord's successors and assigns,
only during their respective periods of ownership.
17. Severability.
The invalidity of any provision of this Lease as determined by a court of
competent jurisdiction shall in no way affect the validity of any other
provision hereof.
18. Interest on Past-Due Obligations.
Except as expressly herein provided, any amount due to Landlord not paid
when due shall bear interest at the rate of ten (10%) percent per annum from the
date due. Payment of such interest shall not excuse or cure any default by
Tenant under this Lease; provided, however, that interest shall not be payable
on late charges incurred by Tenant nor on any amounts upon which late charges
are paid by Tenant.
19. Additional Rent.
Any monetary obligations of Tenant to Landlord under the terms of this
Lease shall be deemed to be Additional Rent.
20. Incorporation of Prior Agreements; Amendments.
This Lease contains all agreements of the parties with respect to any
matter mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified in writing only and
signed by the parties in interest at the time of the modification. Except as
otherwise stated in this Lease, Tenant hereby acknowledges that neither the real
estate broker listed in section 14 hereof nor any cooperating broker on this
transaction nor the Landlord or any
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employees or agents of any of said persons has made any oral or written
warranties or representations to Tenant relative to the condition or use by
Tenant of said Premises.
21. Notices.
Notices shall be in writing and shall be delivered to the following address
(es) of the party to be notified:
If to Landlord: ▇▇▇▇▇▇▇▇ Metals Development Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
with copies to: ▇▇▇▇▇▇▇▇ Metals Development Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
Roberts, Carroll, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Providence, Rhode Island 02903
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to Tenant: After the Commencement Date:
▇▇▇▇▇, a Division of Sabratek Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Prior to the Commencement Date:
ROCAP, a Division of Sabratek Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Cossingham Law Office, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Suite ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
A notice shall be delivered by: (a) prepaid U.S. express, registered, or
certified mail or prepaid express delivery service; (b) hand delivery during
regular business hours; or (c) telex or telecopy with an original, signed copy
of the notice delivered in the manner described in (a) or (b). The notifying
party, with the other party's cooperation, shall obtain a receipt evidencing
delivery. A notice shall be effective upon receipt or refusal to accept receipt,
except that a telex or telecopy notice shall be effective upon confirmation of
receipt by the receiving party. Any notice provided in a manner not specified in
this Lease shall not be effective unless the parties otherwise agree. A party
may change its address for purposes of this section by giving the other party
notice to that effect. Unless otherwise specified in this Lease, "notice"
includes any communication required or permitted by this Lease.
22. Waivers.
No waiver by Landlord of any provision hereof shall be deemed a waiver of
any other provision hereof or of any subsequent breach by Tenant of the same or
any other provision. Landlord's consent to, or approval of, any act shall not be
deemed to render unnecessary the obtaining of Landlord's consent to or approval
of any subsequent act by Tenant. The acceptance of rent hereunder by Landlord
shall not be a waiver of any preceding breach by Tenant of any provision hereof,
other than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
23. Holding Over.
If Tenant, with Landlord's consent, remains in possession of the Premises
or any part thereof after the expiration of the term hereof, such occupancy
shall be a tenancy from month to month. All provisions of this Lease shall apply
to the holdover period. All options and rights of first refusal, if any, granted
under the terms of this Lease shall be deemed terminated and be of no further
effect during said month-to-month tenancy.
24. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
25. Covenants and Conditions.
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Each provision of this Lease performable by Tenant shall be deemed both a
covenant and condition.
26. Binding Effect; Choice of Law.
Subject to any provision hereof restricting assignment or subletting by
Tenant, this Lease shall bind the parties, their personal representatives,
successors and assigns. The laws of the State wherein the Premises are located
shall govern this Lease.
27. Subordination.
(a) This Lease, at Landlord's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the Premises are a part and to
any advances made on the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof. If any mortgagee, trustee
or ground landlord shall elect to have this Lease prior to the lien of its
mortgage, deed of trust or ground lease, and shall give written notice thereof
to Tenant, this Lease shall be deemed prior to such mortgage, deed of trust, or
ground lease, whether this Lease is dated prior or subsequent to the date of
said mortgage, deed of trust or ground lease or the date of recording thereof.
(b) Tenant agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease subordinate to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Such documents
shall provide that such security interest holder or mortgagee shall honor the
obligations of this Lease in the event that said security interest holder or
mortgagee takes possession of the land and/or the building of which the Premises
is a part. Tenant's failure to execute such documents within ten days after
written demand shall constitute a material default by Tenant hereunder. Tenant
is also granted the right at Tenant's expense to record notice of this Lease in
the public record.
28. Attorney's Fees.
If either party named herein brings an action to enforce the terms hereof
or declare rights hereunder, the prevailing party in any such action, on trial
or appeal, shall be entitled to his costs and reasonable attorney's fees,
including all appeals, to be paid by the losing party as fixed by the court.
29. Landlord's Access.
Landlord and Landlord's agents shall have the right to enter the Premises
at reasonable times for the purpose of inspecting the same, showing the same to
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prospective purchasers, tenants (within one hundred eighty (180) days of
expiration of a term provided the same has not been validly extended) and
lenders and making such alterations, repairs, improvements or additions to the
Premises or building of which they are a part as Landlord may reasonably deem
necessary or desirable. All entry except for emergency purposes, shall be at
reasonable times with reasonable notice and in a manner which does not interfere
with Tenant's business operations. Landlord's right to inspect the Premises
includes, but is not limited to, the right to take samples and make such
environmental tests as Landlord may reasonably deem appropriate from time to
time. Landlord shall give reasonable advance notice before entering the
Premises. Landlord shall have the right to unlimited access to the fire
monitoring system, security panel, roof hatch and ladder on the Premises,
subject only to providing reasonable notice to Tenant. Notwithstanding the
foregoing, no notice shall be required hereunder to enter the Premises in the
case of an emergency. Landlord may at any time, place on or about the Premises
any ordinary "For Sale" signs and Landlord may at any time during the last 180
days of the term hereof place on or about the Premises any ordinary "For Lease"
signs, all without rebate of rent or liability to Tenant. Notwithstanding the
foregoing, the parties acknowledge that Tenant may have on the Premises certain
areas containing certain drugs and medical supplies and that Tenant is required
by law to restrict access to said areas. The parties further acknowledge that
Tenant is required to restrict access to so-called Clean Room(s) in order to
maintain the integrity and standards thereof. Landlord's right of access is
subject to and Landlord shall honor said restrictions.
30. Auctions.
Tenant shall not conduct, nor permit to be conducted, whether voluntarily
or involuntarily, any auction upon the Premises without first having obtained
Landlord's prior written consent. Notwithstanding anything to the contrary in
this Lease, Landlord shall not be obligated to exercise any standard of
reasonableness in determining whether to grant such consent.
31. Signs.
Any and all signs placed on the exterior of the Premises, including loading
and unloading signs, name signs and number signs, shall be approved by the
Landlord (which approval shall not be unreasonably withheld, delayed or
conditioned) prior to Tenant's expense and cost and shall be in such form, style
and color as to conform to the standard used throughout the Airport Commerce
Center. Tenant is expressly prohibited from displaying any signage not
authorized by Landlord.
32. Merger.
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The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, or a termination by Landlord, shall not work a merger, and
shall, at the option of Landlord, terminate all or any existing subtenancies or
may, at the option of Landlord, operate as an assignment to Landlord of any or
all such subtenancies.
33. Intentionally deleted.
34. Quiet Possession.
Upon Tenant paying the rent for the Premises and observing and performing
all of the covenants, conditions and provisions on Tenant's part to be observed
and performed hereunder, Tenant shall have quiet possession of the Premises
subject to all of the provisions of this Lease. Landlord represents and warrants
to Tenant that the individuals executing this Lease on behalf of Landlord are
fully authorized and legally capable of executing this Lease on behalf of
Landlord and that such execution is binding upon all parties holding an
ownership interest in the Premises.
35. Multiple Tenant Building.
Tenant agrees that it will abide by, keep and observe all reasonable rules
and regulations which Landlord may make from time to time for the management,
safety, care, and cleanliness of the building in which the Premises are located
and grounds, the parking of vehicles and the preservation of good order therein
as well as for the convenience of other occupants and tenants of the building in
which the Premises are located. The violations of such rules and regulations
shall be deemed a material breach of this Lease by Tenant, provided that
Landlord provides notice of such violation to Tenant and provided that, given a
reasonable period of time to cure said violation or to come into compliance,
Tenant has failed, refused or neglected to do so.
36. Security Measures.
Tenant hereby acknowledges that the rental payable to Landlord hereunder
does not include the cost of guard service or other security measures, and that
Landlord shall have no obligation whatsoever to provide same. Tenant assumes all
responsibility for the protection of Tenant, its agents and invitees, from acts
of third parties.
37. Easements.
Landlord reserves to itself the right, from time to time, to grant such
reasonable easements, rights, and dedications that Landlord reasonably deems
necessary or desirable, and to cause the recordation of site plans, parcel maps,
restrictions and
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similar instruments so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Tenant. Tenant shall sign any of the aforementioned documents upon request of
Landlord and failure to do so shall constitute a material breach of this Lease.
38. Performance Under Protest.
If at any time a dispute shall arise as to any amount or sum of money to be
paid by one party to the other under the provisions hereof, the party against
whom the obligation to pay the money is asserted shall have the right to make
payment "under protest" and such payment shall not be regarded as voluntary
payment, and there shall survive the right on the part of said party to
institute a suit for recovery of such sum. If it shall be adjudged that there
was no legal obligation on the part of said party to such sum or any part
thereof, said party shall be entitled to recover such sum or so much thereof as
it was not legally required to pay under the provisions of this Lease.
39. Authority.
If Tenant is a corporation, trust or general or limited partnership, each
individual executing this Lease on behalf of such entity represents and warrants
that he or she is duly authorized to execute and deliver this Lease on behalf of
said entity. If Tenant is a corporation, trust or partnership, tenant shall,
within thirty (30) days after execution of this Lease, deliver to Landlord
evidence of such authority satisfactory to Landlord.
40. Survival.
Each term, agreement, obligation or provision of this Lease to be performed
by Tenant shall be construed to be both a covenant and a condition, all of which
shall survive the expiration or termination of this Lease and any renewals or
extensions of this Lease.
41. Conflict.
Any conflict between the typewritten provisions of this Lease and the
handwritten provisions shall be controlled by the handwritten provisions.
42. Abandonment.
If Tenant shall abandon or vacate the Premises before the end of the term
of this Lease, Landlord may, at its option, cancel this Lease, or Landlord may
enter said premises as the agent of Tenant, by force or otherwise, with or
without notice, without being liable in any way therefore, and relet the
Premises with or without any furniture
-24-
25
or equipment that may be therein, as the agent of Tenant, at such price and upon
such terms and for such duration of time as Landlord may in its reasonable
discretion determine, and receive the rent therefore, applying the same to the
payment of the rent due by these presents, and if the full rental herein
provided shall not be realized by Landlord over and above the expenses to
Landlord in such reletting, Tenant shall pay any deficiency.
43. Abandonment of Fixtures.
It is understood and agreed that any merchandise, fixtures, furniture or
equipment left in the Premises when Tenant vacates shall be deemed to have been
abandoned by Tenant and by such abandonment Tenant automatically relinquishes
any right or interest therein. Landlord is authorized to sell, dispose of or
destroy same. Tenant hereby irrevocably appoints Landlord its agent for this
purpose.
44. Landlord's Improvements.
Landlord agrees to make the Improvements in good and workmanlike manner,
and in compliance with codes, law and the Plans and Specifications. Landlord
will not be liable for, and Tenant expressly assumes responsibility for, any
additional costs of finishing the Improvements resulting from changes by the
Tenant to the Improvements. By signing hereunder, Tenant expressly acknowledges
that no provision herein requires Landlord or Tenant to further improve the
Premises leased hereby and that no other agreement between Landlord and Tenant
requiring such further improvements exists.
45. Radon Gas.
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
46. Generator and Compressor.
Subject to Landlord's prior written consent, which consent shall not be
unreasonably withheld, Tenant may install an emergency generator and air
compressor. Tenant shall have the maintenance and repair responsibility
therefor. Unless otherwise determined by Landlord, upon termination of this
Lease, Tenant shall remove said generator and compressor and return the area
where they were installed to its condition prior to installation.
47. Right of First Refusal.
-25-
26
Landlord grants Tenant a Right of First Refusal on the bays 111-120
adjacent to the Premises, subject, however, to the lease of Suite (bay) 119,
comprising approximately 4,122 square feet, and the lease of Suite (bay) 118,
comprising approximately 4,047 square feet which are currently being negotiated.
Following notice by Landlord to Tenant of any proposed tenancy therefor, Tenant
shall have five (5) business days to deliver written notice to Landlord of the
exercise of such right, otherwise such exercise and right shall be deemed to
have been waived.
WITNESS, the parties hereto have executed this Lease on the dates specified
immediately below their respective signatures.
Landlord:
▇▇▇▇▇▇▇▇ METALS DEVELOPMENT
COMPANY, a Delaware corporation
[SIGNATURE] By: /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- ----------------------------------
Witness L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,Vice president
[SIGNATURE] Date: 6/17/98
----------------------- -------------------------------------
Witness
Tenant:
▇▇▇▇▇, a Division of Sabratek Corporation,
a Delaware corporation
[SIGNATURE] By: [SIGNATURE]
----------------------- ----------------------------------
Witness
[SIGNATURE] Title:
----------------------- -------------------------------
Witness
Date: 6/16/98
----------------------------------
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27
EXHIBIT "A"
▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, as recorded in Plat Book 20, at Pages 91
and 92, of the Public Records of Orange County, Florida.
28
EXHIBIT "B"
IMPROVEMENTS:
- Total Area 40,544 - Bays 101 - 110 Office Area 5,862 square feet Warehouse
Area 34,682 square feet.
- Building to comply with ADA requirements.
- Provide 2 coats of Ashford formula floor hardener/sealer over approximately
34,682 square feet.
- Provide a plastic laminate base cabinet in the break room.
- Provide 10 insulated sectional overhead doors.
- Seventy-Four (74) foot of Horizontal blinds at $300 Value for office
windows.
- Landlord approval only (no expense to landlord) for emergency generator,
compactor and air compressor.
- Provide 22-3070 hollow metal doorframes (knockdown type), 22-3070 paint
grade birch doors, 22 - passage sets and hinges.
- Provide a 6" 1 hour rated tenant-demising wall to separate ROCAPs' space
from the adjacent tenant. Provide metal framing and drywall necessary to
construct the interior 5,862 s.f. Office walls. All interior walls will be
constructed to the underside of the acoustical ceiling. Perimeter tilt wall
panels will be furred out and insulated with 4' by 8' insulation board.
Painted plywood will cover the insulation from the floor to eight feet high
in the warehouse.
- Interior finishes in the office area to consist of 2 x 4 acoustical
ceilings, painting, carpeting at $12 p/s/y., and vinyl base per attached
plan. Note that the toilet will have VCT flooring and vinyl base. No
finishes will be provided in the warehouse area.
- 20 fire extinguishers will be provided.
- Provide 5 edge of dock levelers (▇▇▇▇▇▇▇ or Similar) and 5 dock seals.
29
▇▇▇▇▇
Exhibit "B"
Page 2
- Provide air conditioning equipment as designed and sealed by a mechanical
engineer's specifications, with value engineering as to a specific
manufacturer, to maintain the space at 40% -60% humidity for a temperature
range of 59 degrees - 86 degrees F.
- Provide 8 toilet fixtures for 4 toilet rooms.
- The current fire sprinkler system is designed for Class III general storage
for heights of 20' (no rack sprinklers are included). The current system
will be modified to accommodate the tenant build out in the office area
only.
- Provide a 800 AMP at 480 volt 3-phase electrical service to a central point
on the exterior of the building. The service provided will allow for 5 bays
to have 200 amps of power and 1 bay to have 400 amps of power. The new
distribution panel will have provisions for breakers to serve the tenant's
sub panels, exclusive of specialty equipment, i.e. clean room, generator
etc. Receptacles and 2x4 lay in light fixtures are included for the office
area. The warehouse area will be provided with convenience receptacles and
lighting (75' candles at floor).
- A basic fire alarm system will be provided to meet necessary life safety
codes.
- Note that no provisions are included for a clean room.
- Outlets for telephones.
- Provide power in breakroom to handle refrigerator, microwave, toaster oven,
and two vending machines.
- No lockers.
30
▇▇▇▇▇▇▇▇ Metals Development
Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
June 18, 1998
ROCAP, a Division of Sabratek Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Gentlemen:
This letter is intended to supplement the lease between us dated June 18,
1998 (the "Lease"). Pursuant to Sections 2 and 44 of the Lease the Landlord is
to complete certain Improvements which are set forth in Exhibit "B" of the Lease
in compliance with Plans and Specifications which are set forth in Exhibit "C"
of the Lease.
You have indicated that you would prefer that the Landlord use A.K. ▇▇▇▇▇▇▇
Construction, Inc. as the contractor to complete the Improvements. Based upon
your request, the Landlord is willing to so proceed, with the understanding that
the Landlord's obligation to pay for the Improvements shall be capped at twelve
dollars ($12.00) per square foot of the Premises or $486,528 with the Tenant
expressly assuming the obligation to pay for all expenses incurred in completing
the Improvements in excess of this amount, including but not limited to,
construction costs and fees for design or otherwise. This letter agreement shall
apply only to the Premises and Improvements as defined in the Lease and not to
any other space which Tenant may lease from Landlord pursuant to Tenant's right
of first refusal or otherwise.
31
▇▇▇▇▇
▇▇▇▇ 18, 1998
Page 2
Please evidence your agreement by signing in the space provided below and
having two people witness your signature.
Witnesses ▇▇▇▇▇▇▇▇ Metals Development
Company
[SIGNATURE] By: /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- ----------------------------------
L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,Vice president
[SIGNATURE] Date: 6/17/98
----------------------- --------------------------------
ACCEPTED AND AGREED TO BY:
Witnesses ▇▇▇▇▇, a Division of Sabratek Corporation
[SIGNATURE] By: [SIGNATURE]
----------------------- ----------------------------------
Its duly authorized representative
[SIGNATURE]
-----------------------
32
▇▇▇▇▇▇▇▇ Metals Development
Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
June 17, 1998
ROCAP, a Division of Sabratek Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Gentlemen:
This letter is intended to supplement the lease between us dated June 17th,
1998 (the "Lease"). Pursuant to Sections 2 and 44 of the Lease the Landlord is
to complete certain Improvements which are set forth in Exhibit "B" of the Lease
in compliance with Plans and Specifications which are set forth in Exhibit "C"
of the Lease. It is hereby agreed that the Landlord is only required at its
expense to complete the Improvements as defined in Exhibit "B" of the Lease. To
the extent that the Plans and Specifications contained in Exhibit "C" require
any work in excess of what is required in Exhibit "B", you expressly assume
responsibility for the expense of performing any such additional work.
Witnesses ▇▇▇▇▇▇▇▇ Metals Development
Company
/s/ By: /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ --------------------------------
/s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ Its Vice President
33
▇▇▇▇▇
▇▇▇▇ 15, 1998
Page 2
ACCEPTED AND AGREED TO BY:
Witnesses ▇▇▇▇▇, a Division of Sabratek
Corporation
[SIGNATURE] By: /s/
------------------------ -----------------------------
Its duly authorized representative
[SIGNATURE]
------------------------
CC: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Cossingham Law Office, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Roberts, Carroll, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Ten Weybosset Street
Providence, Rhode Island 02903
34
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE dated as of July 8, 1998, is made between ▇▇▇▇▇▇▇▇
METALS DEVELOPMENT COMPANY, a Delaware Corporation ("Landlord") and ▇▇▇▇▇, a
division of Sabratek Corporation, a Delaware corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Airport Commerce
Center Net Industrial Lease dated June 18, 1998 as amended by two letter
agreements (the "Lease"); and
WHEREAS, the parties wish to modify and/or add to the terms of the Lease;
NOW, THEREFORE, for mutual and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Section 2 of the Lease shall be modified to reflect that the Premises
comprise approximately 73,135 square feet.
2. Section 4.1(a) shall be deleted in its entirety and the following
shall be inserted in its place:
(a) Tenant shall pay to Landlord the total of the annual rent for
Suites 101 to 110 and for Suites 111 to 118 for the Premises in the amounts set
forth below under the heading "Annual Rent" for Suites 101 to 110 and for Suites
111 to 118. As long as Tenant is not in default hereunder, rent may be paid in
equal monthly installments in the total of the amounts set forth below under the
heading "Monthly Rent," for Suites 101 to 110 and for Suites 111 to 118, as
adjusted by Subsection 4.1(b), in advance, on the first day of each month of
each Lease Year during the term hereof, except the first installment of rent
which shall be paid upon execution of the lease by Tenant. Rent shall be
prorated if the term does not commence on the first day of a calendar month or
expire on the last day of a calendar month. Rent shall be paid to ▇▇▇▇▇▇▇▇
Metals Development Company, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
35
RENT FOR SUITES 101 to 110
----------------------------
Lease Year Annual Rent Monthly Rent
---------- ------------- ------------
From the Commencement
Date to June 30, 1999 $257,454.40 $21,454.53
July 1, 1999 to June 30, 2000 $257,454.40 $21,454.53
July 1, 2000 to June 30, 2001 $257,454.40 $21,454.53
July 1, 2001 to June 30, 2002 $288,348.53 $24,029.08
July 1, 2002 to June 30, 2003 $296,999.40 $24,749.95
July 1, 2003 to June 30, 2004 $305,909.38 $25,492.45
July 1, 2004 to June 30, 2005 $315,086.66 $26,257.22
July 1, 2005 to June 30, 2006 $324,539.26 $27,044.94
July 1, 2006 to May 31, 2007 $334,275.44 $27,856.29
RENT FOR SUITES 111 to 118
--------------------------------
Lease Year Annual Rent Monthly Rent
---------- ------------- ------------
From the Commencement
Date to June 30, 1999 $223,574.26 $18,631.19
July 1, 1999 to June 30, 2000 $223,574.26 $18,631.19
July 1, 2000 to June 30, 2001 $223,574.26 $18,631.19
July 1, 2001 to June 30, 2002 $250,403.17 $20,866.93
July 1, 2002 to June 30, 2003 $257,915.27 $21,492.94
July 1, 2003 to June 30, 2004 $265,652.72 $22,137.73
July 1, 2004 to June 30, 2005 $273,622.31 $22,801.86
July 1, 2005 to June 30, 2006 $281,830.98 $23,485.91
July 1, 2006 to May 31, 2007 $290,285.90 $24,190.49
3. Section 4.2 shall be modified to delete the first sentence thereof and
insert the following in its place:
"Tenant shall deposit with Landlord upon execution hereof a total of
$44,805.60 with respect to Suites 101 to 110 and $37,262.38 with respect to
Suites 111 to 118 as security for Tenant's faithful performance of Tenant's
obligations hereunder (the "Security Deposit")."
4. Section 6.3(b) shall be deleted in its entirety and the following shall
be inserted in its place:
"(b) "Tenant's Share" shall be a fraction, the numerator of which shall be
Tenant's total leased spaced (73,135 square feet) and the denominator of
which shall be the total leasable space in the building of which the
Premises are a part (81,008 square feet) or 90.28 percent (90.28%);
provided, however, that if any
-2-
36
charges relate to Airport Commerce Center as a whole, Tenant's share shall
be adjusted to reflect its equitable share of such costs."
5. Section 44 shall be amended to add the following at the end of that
section:
"Notwithstanding anything in this Lease to the contrary, the Landlord's
obligation to pay for the Improvements shall be capped at twelve dollars
($12.00) per square foot of the Premises, with the Tenant expressly
assuming the obligation to pay for all expenses incurred in completing the
Improvements in excess of this amount, including but not limited to,
construction costs and fees for design or otherwise."
6. Section 47 shall be deleted in its entirety.
7. The text of Exhibit A shall be deleted in its entirety and the following
shall be inserted in its place:
"Suites 101 to 118, comprising approximately 73,135 square feet, of the
Airport Commerce Center, Lot 3, Airport Commerce Center Replat, as recorded
in Plat book 20, at pages 91 and 92 of the Public Records of Orange County,
Florida."
8. Exhibit C shall be amended to add the attached Plans and Specifications
for Suites 111 to 118.
9. This Amendment to Lease, together with the Lease constitute the entire
agreement between the parties hereto and supersedes any prior agreements,
written or oral. This Amendment may be amended, supplemented, modified or
discharged only upon agreement in writing executed by both parties. All the
terms of the Lease not specifically amended by the terms of this Amendment to
Lease shall remain in full force and effect. In the event of any conflict
between the terms of the Lease and the terms of this Amendment to Lease, the
terms of this Amendment shall control.
-3-
37
WITNESS, the parties hereto have executed this Amendment to Lease on the
dates specified immediately below their respective signatures.
Landlord:
▇▇▇▇▇▇▇▇ METALS DEVELOPMENT
COMPANY, a Delaware corporation
/s/ By: /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- ----------------------------------
Witness L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
/s/ Date: June 22, 1998
---------------------------- ----------------------------------
Witness
Tenant:
▇▇▇▇▇, a division of Sabratek Corporation,
a Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. Yakina By: /s/
---------------------------- ----------------------------------
Witness
Title: President
--------------------------------
/s/ Date: July 6, 1998
---------------------------- ---------------------------------
Witness
-4-
38
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE, dated as of July 27, 1998, is made between
▇▇▇▇▇▇▇▇ METALS DEVELOPMENT COMPANY, a Delaware Corporation ("Landlord") and
▇▇▇▇▇, a division of Sabratek Corporation, a Delaware corporation ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Airport Commerce
Center Net Industrial Lease dated June 18, 1998 as amended by a letter agreement
dated June 17, 1998, a letter agreement dated June 18, 1998 and an Amendment to
Lease dated as of July 8, 1998 (the "Lease"); and
WHEREAS, the parties wish to modify and/or add to the terms of the Lease;
NOW, THEREFORE, for mutual and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Section 2 of the Lease shall be modified to provide that the Premises
comprise approximately 81,088 square feet.
2. Section 3.2 shall be deleted in its entirety and the following shall be
substituted in its place:
3.2 Delay in Completion of Improvements. Landlord will take all steps
reasonably necessary in order to ensure that the Improvements are completed
no later than September 1, 1998; however, if the completion of the
Improvements shall be delayed due to (a) any act or omission of the Tenant
or any of its employees, agents or contractors (including, but not limited
to (i) any delays due to changes in or additions to the Improvements, or
(ii) any delays by Tenant in
39
the submission of plans, drawings, specification, or other information or
in approving drawings or in giving any authorizations or approvals); (b)
any delays beyond control of Landlord including, but not limited to,
strikes, lockouts, civil commotion, warlike conditions, invasion,
rebellion, hostility, inclement weather, inability to obtain material or
services and acts of God; or (c) any delays caused by governmental
regulations or controls, Landlord shall not be subject to any liability
therefore, nor shall such failure affect the validity of the Lease or the
obligations of Tenant hereunder, but in such case, Tenant shall not be
obligated to pay rent until the earlier of Landlord's completion of the
Premises and Improvements, as defined in Exhibit B, or September 15, 1998.
Landlord shall keep Tenant informed of the status and progress of said
construction. Notwithstanding anything in this Lease to the contrary and
regardless of whether the Improvements have been completed on Suites 111 to
120, in the event that (i) the Landlord completes and delivers the
Improvements on Suites 101 to 110 or (ii) the Tenant takes possession of
all or any part of Suites 101 to 110 prior to September 15, 1998 and prior
to such completion or delivery, then Tenant shall pay to Landlord the rent
designated in section 4.1 for said Suites beginning on the date that
Landlord surrenders possession.
3. Section 4.1(a) shall be deleted in its entirety and the following shall
be inserted in its place:
(a) Tenant shall pay to Landlord the total of the annual rent for
Suites 101 to 110 and for Suites 111 to 120 for the Premises in the amounts set
forth below under the heading "Annual Rent" for Suites 101 to 110 and for Suites
111 to 120. As long as Tenant is not in default hereunder, rent may be paid in
equal monthly installments in the total of the amounts set forth below under the
heading "Monthly Rent," for Suites 101 to 110 and for Suites 111 to 120, as
adjusted by Subsection 4.1(b), in advance, on the first day of each month of
each Lease Year during the term hereof, except the first installment of rent
which shall be paid upon execution of the Lease by Tenant. Rent shall be
prorated if the term does not commence on the first day of a calendar month or
expire on the last day of a calendar month. Rent shall be paid to ▇▇▇▇▇▇▇▇
Metals Development Company, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
RENT FOR SUITES 101 to 110
Lease Year Annual Rent Monthly Rent
---------- ----------- ------------
From the Commencement
Date to June 30, 1999 $257,454.40 $21,454.53
July 1, 1999 to June 30, 2000 $257,454.40 $21,454.53
-2-
40
July 1, 2000 to June 30, 2001 $257,454.40 $21,454.53
July 1, 2001 to June 30, 2002 $288,348.53 $24,029.08
July 1, 2002 to June 30, 2003 $296,999.40 $24,749.95
July 1, 2003 to June 30, 2004 $305,909.38 $25,492.45
July 1, 2004 to June 30, 2005 $315,086.66 $26,257.22
July 1, 2005 to June 30, 2006 $324,539.26 $27,044.94
July 1, 2006 to May 31, 2007 $334,275.44 $27,856.29
RENT FOR SUITES 111 to 120
Lease Year Annual Rent Monthly Rent
---------- ----------- -------------
From the Commencement
Date to June 30, 1999 $278,131.84 $23,177.65
July 1, 1999 to June 30, 2000 $278,131.84 $23,177.65
July 1, 2000 to June 30, 2001 $278,131.84 $23,177.65
July 1, 2001 to June 30, 2002 $311,507.66 $25,958.97
July 1, 2002 to June 30, 2003 $320,852.89 $26,737.74
July 1, 2003 to June 30, 2004 $330,478.48 $27,539.87
July 1, 2004 to June 30, 2005 $340,392.83 $28,366.07
July 1, 2005 to June 30, 2006 $350,604.62 $29,217.05
July 1, 2006 to May 31, 2007 $361,122.76 $30,093.56
4. Section 4.2 shall be modified to delete the first sentence thereof and
insert the following in its place:
"Tenant shall deposit with Landlord upon execution hereof a total of
$44,805.60 with respect to Suites 101 to 110, plus $37,262.38 with respect
to Suites 111 to 120, as security for Tenant's faithful performance of
Tenant's obligations hereunder (collectively, the "Security Deposit")."
5. Section 6.3(b) shall be deleted in its entirety and the following shall
be inserted in its place:
"(b) "Tenant's Share" shall be a fraction, the numerator of which shall
be Tenant's total leased spaced (81,088 square feet) and the denominator of
which shall be the total leasable space in the building of which the
Premises are a part (81,088 square feet) or 100 percent (100%)."
-3-
41
6. The text of Exhibit A shall be deleted in its entirety and the following
shall be inserted in its place:
"Suites 101 to 120, comprising approximately 81,088 square feet, of the
Airport Commerce Center, Lot 3, Airport Commerce Center Replat, as recorded
in Plat Book 20, at pages 91 and 92 of the Public Records of Orange County,
Florida."
7. Exhibit C shall be amended to add the attached Plans and Specifications
for Suites 119 and 120.
8. Section 31 is modified to add the following at the end of said Section:
"Landlord authorizes Tenant to place upon the exterior of the Premises a
sign designating the name of the Building comprising the Premises, provided
that such name is approved by Landlord, and provided further that said sign
shall conform to the form, style and color used throughout the Airport
Commerce Center and shall have the prior approval of the Landlord and any
governing bodies of the Airport Commerce Center."
9. This Second Amendment to Lease, together with the Lease constitute the
entire agreement between the parties hereto and supersedes any prior agreements,
written or oral. This Second Amendment may be amended, supplemented, modified or
discharged only upon agreement in writing executed by both parties. All the
terms of the Lease not specifically amended by the terms of this Second
Amendment to Lease shall remain in full force and effect. In the event of any
conflict between the terms of the Lease and the terms of this Second Amendment
to Lease, the terms of this Second Amendment shall control.
-4-
42
WITNESS, the parties hereto have executed this Second Amendment to Lease on
the dates specified immediately below their respective signatures.
Landlord:
▇▇▇▇▇▇▇▇ METALS DEVELOPMENT
COMPANY, a Delaware corporation
/s/ By: /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- ----------------------------------
Witness L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
/s/ Date: July 27, 1998
---------------------------- ----------------------------------
Witness
Tenant:
▇▇▇▇▇, a division of Sabratek Corporation,
a Delaware corporation
/s/ By: /s/
---------------------------- ----------------------------------
Witness
Title: President
--------------------------------
/s/ Date: 8/7/98
---------------------------- ---------------------------------
Witness
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