Exhibit 10.22
LEASE AGREEMENT
1. Parties. This Lease dated this 1st day of January, 2004, is made by and
between Miley Development, a Florida Corporation, the owner of the Premises
(herein called "Lessor") and Cirilium, Inc. (herein called "Lessee").
2. Premises. In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of the Lessee to be observed and performed,
Lessor hereby leases to Lessee and Lessee hereby rents from Lessor, those
certain premised (hereinafter referred to as the "Premises") shall be known as
Suites, 100, 100A, 100B, 101 having approximately 3,770 sq. ft., located at ▇▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, for the term and upon the
conditions and agreements hereinafter set forth, and Lessor and Lessee hereby
agree as follows:
3. Term
3.1 Term. The term of this Lease shall be for 60 months, commencing on January
1st, 2004 and ending on December 31st, 2008, unless sooner terminated
pursuant to any provision hereof.
3.1 Delay in Commencement. Notwithstanding said commencement date, if for any
reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefor, nor shall
failure affect the validity of the Lease or the obligations of Lessee
hereunder or extend the term hereof, but in such case Lessee shall not be
obligated to pay rent until possession of the Premises is tendered to
Lessee; provided, however, that if Lessor shall not have delivered
possession of the Premises within sixty (60) days from said commencement
date, Lessee may, at Lessee's option, by notice in writing to Lessor within
ten (10) days thereafter, cancel this Lease, in which event the parties
shall be discharged from all obligations hereunder. If Lessee occupies the
Premises prior to said commencement date, such occupancy shall be subject
to all provisions hereof; such occupancy shall not advance the termination
date, and Lessee shall pay rent for such period at the initial monthly
rates set forth below. If Lessor, by reason outside the reasonable control
of Lessor, cannot deliver said premises within ninety (90) days from said
commencement date, Lessor may at Lessor's option, by notice in writing
within ten (10) days thereafter, cancel this Lease.
3.2 Lessee has an option to extend the term for an additional 5 years under the
same terms and conditions.
4. Rent. Lessee shall pay Lessor, without any prior demand therefor and without
any right of deduction or set-off whatsoever, a monthly rental of $4,286.52,
plus applicable Florida State Sales Tax (currently 6%) for a total monthly
payment of $4,543.71 payable in advance, upon the first day of each calendar
month for each and every month of the Lease. The Lessee further agrees to pay,
in addition to the rent as provided herein, all privilege, sales, excise, and
other taxes (except income taxes) imposed by the State, Federal, or municipal
authorities upon the rentals herein provided. Said payment shall be in addition
to and accompanying each rental payment made by Lessee to Lessor. The
rent shall be adjusted annually, on the anniversary of the lease, based upon the
Consumer Price Index for this area.
4.1 Addendum. Rental rate for the optional period shall be at the rate stated
in par. 4 plus CPI based on last year of the initial lease period ending
December 31, 2008.
CPI ADJUSTMENT: The annual rent, and any additional rent due under the
Lease, shall be increased each year by the percent increase, if any, in the
Consumer Price Index for all Urban Consumers, all items and major group figures
(1982 - 84 = 100) published by the Bureau of Labor Statistics, U.S. Department
of Labor ("BLS Index"). As of each , the adjustment will be determined by the
change in the BLS index for the annual period beginning January 1, 2004 to
December 31, 2004. Thereafter, on each and every succeeding year during the
Lease term, (each of which dates is hereinafter referred to as the "Rent
Adjustment Date"), the rent, and any additional rent, shall be further increased
by the percent increase, if any, in the BLS Index as of each Rent Adjustment
Date over the BLS Index as of the immediately preceding Rent Adjustment Date
calculated from January 1st to December 31st of each succeeding year.
Rent shall be payable to Lessor at the address stated herein or to such
other persons or at such other places as Lessor may designate in writing.
5. Security Deposit. Lessee shall deposit with Lessor, upon execution hereof, $
5,660 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder or
otherwise defaults with respect to any provision of this Lease, Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default, or for the payment of any sum to which Lessor may
become obligated by reason of Lessee's default, or to compensate Lessor for any
loss or damage which Lessor may suffer thereby. If Lessor so uses or applies all
of or any portion of said deposit, Lessee shall, within ten (10) days after
written demand therefor, deposit cash with Lessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated, and Lessee's failure
to do so shall be a material breach of this Lease. Lessor shall not be required
to keep said deposit separate from its general accounts. If Lessee performs all
of Lessee's obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use, to Lessee (or, at Lessor's option, to
the last assignee, if any, of Lessee's interest hereunder) at the expiration of
the term hereof, as it may be altered or amended and after Lessee has vacated
the Premises.
6. Use
6.1 Use. The Premises shall be used and occupied only for company activities
and Lessee shall not use or occupy the Premises or permit the same to be
used for any other purpose.
6.2 Compliance with Law. Lessee shall, at Lessee's expense, comply promptly
with all applicable statues, ordinances, rules, regulations, orders and
requirements in effect during the term or any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or
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 of the building
containing the Premises, which shall tend to disturb such other tenants.
6.3 Condition of Premises. Lessee hereby agrees to inspect Premises ten (10)
days prior to occupancy date and to confirm that the Premises is designed,
constructed,
and finished in the manner that conforms with exhibit "A", and is in
compliance with all ordinances and regulations governing the Premises.
7. Maintenance, Repairs and Alterations
7.1 Lessor's Obligations. Subject to the provision of Paragraph 9 and except
for damage caused by any negligent or intentional act or omission of
Lessee, Lessee's agents, employees or invitees, Lessor, at Lessor's
expense, shall keep in good order, condition and repair the foundations,
exterior walls, the plumbing, heating and cooling and electrical systems
servicing the Premises and the exterior roof of the Premises. The Lessee
shall give the Lessor prompt notice of any defects or breakage in the
structure, equipment, fixture or of any unsafe conditions upon or within
the Premises, and Lessor shall, at Lessor's expense, make necessary repairs
within a reasonable period of time. Lessee expressly waives the benefits of
any statute now or hereafter in effect which would otherwise afford Lessee
the right to make repairs at Lessor's expense or to terminate this Lease
because of Lessor's failure to keep the Premises in good order, condition
and repair.
7.2 Lessee's Obligations. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as received. Lessee shall repair any damage to the Premises
occasioned by the removal of its trade fixtures, furnishings and equipment
pursuant to Paragraph 7.3, which repair shall include the patching and
filling of holes and repair of structural damage.
7.3 Alterations and Additions. Alterations may not be made to the Premises
without the prior written consent of the Lessor. The Lessee shall keep the
Premises free from any liens arising out of any work performed for,
material furnished to or obligations incurred by the Lessee. It is further
understood and agreed that under no circumstances is the Lessee to be
deemed the agent of the Lessor for any alteration, repair or operation of
the building upon the Premises, the same being done at the sole expense of
the Lessee, and all contractors, material men, mechanics and laborers are
hereby charged with notice that they must look to the Lessee only for the
payment of any charge for work done and materials furnished upon the
Premises during the term of this Lease.
8. Insurance: Indemnity.
8.1 Liability Insurance. Lessee shall, at Lessee's expense, obtain and keep in
force during the term of this Lease a policy of comprehensive public
liability insurance insuring Lessor and Lessee against any liability
arising out of the use, occupancy or maintenance of the Premises. Such
insurance shall be in an amount of not less than $300,000 for injury to or
death of one person in any one accident or occurrence and in an amount of
not less than $100,000 for injury to or death of more than one person in
any one accident or occurrence. Such insurance shall further insure Lessor
and Lessee against liability for property damage of at least $100,000. The
limits of said insurance shall not, however, limit the liability of Lessee
hereunder. Lessee shall furnish Lessor with a copy of such policy of
insurance.
8.2 Property Insurance. Lessor shall obtain and keep in force during the term
of this Lease a policy or policies of insurance covering loss or damage to
the Premises in the amount of the full replacement value thereof, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief and special extended
perils (all risk).
8.3 Waiver of Subrogation. Lessee and Lessor each hereby waives any and all
rights of recovery against the other or against the officers, employees,
agents and representatives of the other for loss of or damage to such
waiving party or its property of others under its control, where such loss
or damage is insured under any insurance policy in force at the time of
such loss or damage. Lessee and Lessor shall, upon obtaining the policies
of insurance required hereunder, give notice to the insurance carrier or
carriers that the foregoing mutual waiver of subrogation is contained in
the Lease.
8.4 Indemnity. Lessee shall indemnify and hold harmless Lessor from and against
any and all claims arising from Lessee's use of the Premises or from the
conduct of Lessee's business or from any activity, work, or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere, and
shall further indemnify and hold harmless Lessor from and against any and
all claims arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of the Lease or
arising from any negligence of the Lessee or any of the Lessee's agents,
contractors or employees, and from and against any costs, attorney's fees,
expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon and in case any action or proceeding
be brought against Lessor by reason of any such claim.
8.5 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor shall
not be liable for injury to Lessee's business or for any loss of income
therefrom or for damage to the goods, wares, merchandise or other property
of Lessee, Lessee's employees, invitees, customers or any other person in
or about the Premises, nor shall Lessor be liable for injury to the person
of Lessee, Lessee's employees, agents or contractors, whether such damage
or injury is caused by or results from fire, steam, electricity, gas, water
or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or light
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 apart or from other sources of places,
and regardless of whether the cause of such damage or injury or the means
of repairing the same is inaccessible to Lessee. Lessor shall not be liable
for any damages arising from any act or neglect of any other tenant,
occupant, if any, of the building in which the Premises are located. It
shall be the sole obligation of Lessee to insure its property, trade
fixtures and equipment located on the Premises from any and all loss or
damage.
9. Damage or Destruction.
9.1 Damage or Destruction. If, during the term of this Lease or extension
thereof, all or part of the building or structures now or hereafter located
upon the Premises should be destroyed partially or totally by fire or other
casualty, this Lease shall continue thereafter in full force and effect
except as hereinafter provided and the Lessor may cause the reconstruction
of said building within 180 days following such destruction to
substantially the same condition in which it did exist at the time
immediately preceding such destruction. The Lessee's obligation to pay
rental to the Lessor hereunder shall ▇▇▇▇▇ proportion to the area of the
Premises that has been rendered unfit for occupancy as a result of such
destruction, from the date of such destruction until completion of such
reconstruction, and the terms hereof shall be automatically extended for a
period of time equivalent to, that during which rent is abated as
aforesaid. In the event the Lessor does not commence reconstruction,
repair or replacement of the improvements within 60 days after loss or
damage, this Lease shall be deemed terminated and of no further force or
effect. 9.2 Abatement of Rent: Lessee's Remedies. Except for abatement of
rent, if any, Lessee shall have no claim against Lessor for any damage
suffered by reason of any such damage, destruction, repair or restoration.
10. Personal Property Taxes
10.1 Lessee shall pay prior to delinquency all taxes assesses against and levied
upon trade fixtures, furnishings, equipment and all other personal property
of Lessee contained in the Premises or elsewhere. When possible, Lessee
shall cause said trade fixtures, furnishings, equipment an all other
personal property to be assessed and billed separately from the real
property of Lessor.
11. Utilities
11.1 Lessee shall pay telephone services supplied to the Premises, together with
any taxes thereon, and their pro rata share of the electricity expense for
the Premises.
12. Assignment and Subletting.
12.1 Lessor's Consent Required. Lessee shall not voluntarily, or by operation of
law, assign, transfer, mortgage, sublet or otherwise transfer or encumber
all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent.
13. Defaults, Remedies.
13.1 Defaults. The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as and when due.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of the Lease.
13.2 Remedies. In the event of such default or breach by Lessee, Lessor may, at
any time thereafter, with or without notice or demand and without limiting
Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default o breach:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor.
(b) Maintain Lessee's right to possession, in which case this Lease shall
continue in effect whether or not Lessee shall have abandoned the Premises.
In such event, Lessor shall be entitled to enforce all of Lessor's rights
and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the state in which the property is located.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor fails to
perform obligations required of Lessor within a reasonable time but in no
event later than thirty (30) days after written notice by Lessee to Lessor;
provided, however, that if the nature of Lessor's obligation is such that
more than thirty (30) days are required for performance, then Lessor shall
not be in default if Lessor commences
performance within such 30 day period and thereafter diligently prosecutes
the same to completion.
13.4 Late Charges. If any installment of rent or an other sum due from Lessee
shall not be received by Lessor or Lessor's designee within five (5) days
after such amount shall be due, Lessee shall pay to Lessor a late charge
equal to ten percent (10%) of such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the
costs Lessor will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of
Lessee's default with respect to such overdue amount nor prevent Lessor
from exercising any of the other rights and remedies granted hereunder.
14. Condemnation. If the Premises, or any portion thereof, 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 the part so taken as of the date the condemning authority takes title or
possession. Lessee shall have no claim for any portion or interest in any
condemnation award nor shall Lessee be entitled to compensation of any nature as
a result of such condemnation.
15. General Provision.
15.1 Estoppel Certificate.
(a) Lessee shall, at any time upon not less than te (10) days prior written
notice from Lessor, execute, acknowledge and deliver to Lessor a statement
in writing certifying that this Lease is unmodified and in full force and
effect, or, if modified, stating the nature of such modification.
(b) Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee that this Lease is in full force and effect.
(c) If Lessor desires to finance or refinance the Premises or any party
thereof, Lessee hereby agrees to deliver to any lender designated by Lessor
such financial statement of Lessee as may be reasonably required by such
lender.
15.2 Severability. The invalidity of any provision of the Lease, as determined
by a court of competent jurisdiction, shall in no way effect the validity
of any other provision hereof.
15.3 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, signed by the
parties in interest at the time of the modification.
15.4 Notices. Any notice required or permitted to b given hereunder shall be in
writing and may be served personally or by regular mail, addressed to
Lessor and Lessee respectively, at the addresses set forth after their
signatures at the end of this Lease.
15.5 Waivers. No waiver by Lessor of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee
of the same or any other provision. Lessor's consent to or approval of any
act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of
rent hereunder by Lessor shall not be a waiver of any preceding breach by
Lessee of any provision hereof other than the failure to Lessee to pay the
particular rent so accepted regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
15.6 Holding Over. If Lessee remains in possession of the Premises or any part
thereof after the expiration of the term hereof without the express written
consent of Lessor, such occupancy shall be a tenancy from month to month at
a rental in the amount of double the last monthly rental plus all other
charges payable hereunder and upon all the terms hereof applicable to a
month-to-month tenancy.
15.7 Binding Effect. Subject to any provisions hereof-restricting assignment or
subletting by Lessee, this Lease shall bind the parties, their personal
representatives, successors and assigns.
15.8 Subordination.
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust or any other hypothecation for security now
or hereafter placed upon the property of which the Premises are a part and
to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of
the Premises shall not be disturbed if Lessee is not in default and so long
as Lessee shall pay the rent and observe and perform all of the provisions
of this Lease, unless this Lease is otherwise terminated pursuant to its
terms. If any mortgagee, trustee or ground Lessor 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 Lessee, 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 as of the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed
of trust or ground lease, as the case may be, and failing to do so within
ten (10) days after written demand does hereby make, constitute and
irrevocable appoint Lessor as Lessee's attorney in fact and in Lessee's
name, place and stead, to do so.
15.9 Attorney's Fees. If either party 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 reasonable attorney's fees
to be paid by the losing party as fixed by the court.
15.10Lessor's Access. Recognizing Lessee's legitimate expectation of quiet
occupancy, Lessor shall have the right to request access to the premises at
reasonable times between 8:00 a.m. and 5:00 p.m. weekdays for whomever and
for whatever purposes Lessor may deem necessary or desirable. Lessee shall
not unreasonably withhold access.
15.11Parking and Common Areas. The Lessee, its agents, employees and invitees
shall be entitled to park in common with other tenants of Lessor providing
that it agrees not to overburden the parking facilities and agrees to
cooperate with the Lessor and other occupants of the property in the use of
the parking facilities. The Lessor specifically reserves the right in its
absolute discretion to determine whether parking facilities are becoming
overburdened and in such even to allocate the parking spaces among the
Lessee and other occupants, their agent, employees and business invitees
using the parking facilities.
The parties hereto have executed this Lease on the date set forth hereinabove.
Lessor: MILEY DEVELOPMENT
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Witness Title: President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Witness: ▇▇▇▇▇ ▇▇▇▇▇▇
LESSEE: CIRILIUM, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
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Witness: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: CFO Cirilium Inc.
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
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Witness
