EXHIBIT 10.13
INDUSTRIAL REAL ESTATE LEASE
ARTICLE I.
BASIC TERMS
This Article I contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article I explain and define the Basic Terms and are
to be read in conjunction with the Basic Terms.
Section 1.1. DATE OF LEASE: JUNE 12, 1997
Section 1.2. LANDLORD (INCLUDE LEGAL ENTITY):JETEX GROUP, INC., A
FLORIDA CORPORATION Address of Landlord: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 1.3. TENANT (INCLUDE LEGAL ENTITY):GENETIC VECTORS, INC., A
FLORIDA CORPORATION
Address of Tenant: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 1.4. PROPERTY: The Property is part of ▇▇▇▇▇▇▇▇'s multi-tenant
real property development known as PALMETTO BUSINESS CENTER as described or
depicted in Exhibit "A" (the "Project"). The Project includes the land, the
buildings and all other improvements located on the land, and the common areas
described in Paragraph 4.5(a). The Property is A FLEX SPACE PROJECT CONTAINING
13,926 RENTABLE SQUARE FEET AND LOCATED AT ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇ ▇▇▇▇▇. THE PROPERTY IS DEPICTED ON EXHIBIT "E."
Section 1.5. LEASE TERM: 10 years 0 months BEGINNING ON JUNE 13, 1997
or such other date as is specified in this Lease, and ENDING ON JUNE 12, 2007.
Section 1.6. PERMITTED USES: (See Article V) THE PERMITTED USES SHALL
BE OFFICE, WAREHOUSE, MANUFACTURING AND LABORATORY USES, ALL OF WHICH SHALL BE
PERMITTED IN THE BROADEST SENSE WITHOUT LIMITATION OR RESTRICTION, SO LONG AS
TENANT ENGAGES IN SUCH USES IN THE OPERATION OF A BIOTECHNICAL COMPANY INVOLVED
IN RESEARCH AND DEVELOPMENT AND SO LONG AS TENANT COMPLIES WITH ALL RELEVANT
GOVERNMENTAL REGULATIONS AND DOES NOT DISTURB ANY OTHER TENANTS OF THE PROJECT.
Section 1.7. TENANT'S GUARANTOR: (If none, so state) NONE
Section 1.8. BROKERS: (See Article XIV) (If none, so state)
Landlord's Broker: CB COMMERCIAL
Tenant's Broker: NONE
Section 1.9. COMMISSION PAYABLE TO LANDLORD'S BROKER: (See Article XIV)
$ 105,163.74
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Section 1.10. INITIAL SECURITY DEPOSIT: (See Section 3.3): $46,130.00
IN THE FORM OF A LETTER OF CREDIT.
Section 1.11. VEHICLE PARKING SPACES ALLOCATED TO TENANT: (See Section
4.5) 40
Section 1.12. RENT AND OTHER CHARGES PAYABLE BY TENANT:
(a) BASE RENT: Fifteen thousand three hundred seventy-six and 63/100
Dollars ($15,376.63) per month for the first twelve months, as provided in
Section 3.1, and shall be increased each and every year on the anniversary date
of the Commencement Date of this Lease by three percent (3%) per year,
cumulative, over the prior year's Base Rent.
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes above the "Base
Real Property Taxes" (See Section 4.2); (ii) Utilities (See Section 4.3); (iii)
Increased Insurance Premiums above "Base Premiums" (See Section 4.4); (iv)
Tenant's Proportionate Share of Common Area Maintenance Expenses 49.5% (See
Section 4.5); (v) Maintenance, Repairs and Alterations (See Article VI).
Section 1.13. COSTS AND CHARGES PAYABLE BY LANDLORD: (a) Base Real
Property Taxes (See Section 4.2); (b) Base Insurance Premiums (See Section
4.4(c)); (c) Base Amount of Common Area Maintenance Expenses (see Section 4.5);
(d) Maintenance and Repair (See Article VI).
Section 1.14. ▇▇▇▇▇▇▇▇'S SHARE OF PROFIT ON ASSIGNMENT OR SUBLEASE:
(See Section 9.5) fifty percent (50%) of the Profit (the "Landlord's Share").
Section 1.15. RIDERS: The following Riders are attached and made a
part of this Lease: (If none, so state) OPTION TO EXTEND TERM LEASE RIDER
ARTICLE II.
LEASE TERM
Section 2.1. LEASE OF PROPERTY FOR LEASE TERM. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.5 above and shall
begin and end on the dates specified in Section 1.5 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease. The
"Commencement Date" shall be the date specified in Section 1.5 above for the
beginning of the Lease Term.
Section 2.2. This section is intentionally deleted.
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Section 2.3. This section is intentionally deleted.
Section 2.4. HOLDING OVER. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify Landlord against all damages which Landlord incurs from
▇▇▇▇▇▇'s delay in vacating the Property. If Tenant does not vacate the Property
upon the expiration or earlier termination of the Lease and Landlord thereafter
accepts rent from Tenant, ▇▇▇▇▇▇'s occupancy of the Property shall be a
"month-to-month" tenancy, subject to all of the terms of this Lease applicable
to a month-to-month tenancy, except that the Base Rent then in effect shall be
increased by twenty-five percent (25%).
ARTICLE III.
BASE RENT
Section 3.1. TIME AND MANNER OF PAYMENT. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.12(a) above for the first month of the Lease Term. On the first day of the
second month of the Lease Term and each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior demand,
except as otherwise set forth in this Lease. Each payment of Base Rent shall be
accompanied by the sales tax due thereon. The Base Rent shall be payable at
Landlord's address or at such other place as Landlord may designate in writing.
Base Rent for any period during the Lease Term which is for less than one month
shall be a prorated portion of the monthly installment herein, based on the
number of days of that month.
Section 3.2. This section is intentionally deleted.
Section 3.3. SECURITY DEPOSIT; INCREASES. Upon execution of the Lease,
Tenant shall deliver to Landlord a security deposit (the "Security Deposit") in
the form of an unconditional, irrevocable documentary letter of credit (the
"Letter of Credit") issued by First Union National Bank in the amount of
$46,130.00, which Letter of Credit shall name Landlord as the beneficiary
thereof, and which Letter of Credit shall be in form satisfactory to Landlord in
the exercise of its reasonable discretion. The Letter of Credit shall provide
for an expiration date of no sooner than one (1) year from the effective date
thereof. Tenant covenants to cause the Letter of Credit to be renewed for
successive periods of one (1) year until the Lease terminates and to deliver
each original extension to Landlord no less than thirty (30) days prior to
expiration. The Letter of Credit shall provide that Landlord, as beneficiary,
shall have the right to draw all or part of the proceeds upon delivery of its
sight draft accompanied by written certification of an authorized officer of the
Landlord to the effect that the Landlord is entitled to draw the funds requested
as a result of ▇▇▇▇▇▇'s default under the Lease beyond the expiration of all
applicable grace and cure periods. If Landlord draws all of part of the proceeds
to cure any default of Tenant under the Lease, Tenant shall restore the Letter
of Credit to its original amount within twenty (20) days' of Landlord's written
request, which shall be accompanied by evidence of how the funds drawn by
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Landlord were spent. Landlord shall give Tenant no less than ten (10) days'
written notice prior to making any draw on the Letter of Credit.
Section 3.4. TERMINATION; ADVANCE PAYMENTS. Upon termination of this
Lease under Article VII (Damage or Destruction), Article VIII (Condemnation) or
any other termination not resulting from Tenant's default, and after Tenant has
vacated the Property in the manner required by this Lease, Landlord shall return
the Letter of Credit (in its original amount minus any funds drawn by Landlord
pursuant to Section 3.3 above, to the extent not restored by Tenant), together
with any extensions, to Tenant (or its successor) within thirty (30) days after
▇▇▇▇▇▇ (or its successor) vacates the Property. Landlord shall also refund,
within such thirty (30) days, any advance rent or other advance payments made by
Tenant to Landlord, and any amounts paid for real property taxes and other
reserves which apply to any time periods after termination of the Lease.
ARTICLE IV.
OTHER CHARGES PAYABLE BY TENANT
Section 4.1. ADDITIONAL RENT. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Base Rent. The term "Rent" shall mean Base Rent and Additional Rent.
Section 4.2. PROPERTY TAXES.
(a) REAL PROPERTY TAXES. Landlord shall pay the "Base Real Property
Taxes" on the Property during the Lease Term. "Base Real Property Taxes" are the
greater of (1) real property taxes applicable to the Property as shown on the
tax bill for the base year 1998; or (2) if the structures on the Property are
not completed by the tax lien date for the base year 1998, the taxes shown on
the first tax bill showing the full assessed value of the Property after
completion of the structures. Tenant shall pay Landlord the amount, if any, by
which the real property taxes during the Lease Term exceed the Base Real
Property Taxes. Subject to Paragraph 4.2(c), Tenant shall make such payments on
the later of (i) within twenty (20) days after receipt of Landlord's statement
showing the amount and computation of such increase or (ii) no later than twenty
(20) days prior to the date such payment is payable by Landlord in order that
Landlord may take advantage of the maximum discount possible. Landlord shall
reimburse Tenant for any real property taxes paid by Tenant covering any period
of time prior to or after the Lease Term.
(b) DEFINITION OF "REAL PROPERTY TAX." "Real property tax" means:
(i) any fee, license fee, license tax, business license fee, commercial rental
tax, levy, charge, assessment, penalty or tax imposed by any taxing authority
against the Property; (ii) any tax on the Landlord's right to receive, or the
receipt of, rent or income from the Property or against Landlord's business of
leasing the Property; (iii) any tax or charge for fire protection, streets,
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sidewalks, road maintenance, refuse or other services provided to the Property
by any governmental agency; and (iv) any charge or fee replacing any tax
previously included within the definition of Real Properly Tax. "Real Property
Tax" does not, however, include Landlord's federal or state income, franchise,
inheritance or estate taxes; or the cost of any capital improvements, including
but not limited to special assessments for sidewalks, curb cuts, or other
installations so long as such capital improvements do not directly benefit
Tenant as determined by Landlord in the exercise of its reasonable discretion.
(c) JOINT ASSESSMENT. If the Property is not separately assessed,
Landlord shall reasonably determine Tenant's share of the real property tax
payable by Tenant under Paragraph 4.2(a) from the assessor's worksheets or other
reasonably available information. Tenant shall pay such share to Landlord on the
later of (i) within twenty (20) days after receipt of Landlord's written
statement with evidence of assessment from the taxing authority or (ii) no later
than twenty (20) days prior to the date such payment is payable by Landlord in
order that Landlord may take advantage of the maximum discount possible.
(d) PERSONAL PROPERTY TAXES.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to ▇▇▇▇▇▇.
Tenant shall try to have personal property taxed separately from the Property.
(ii) If any of ▇▇▇▇▇▇'s personal property is taxed with the
Property, Tenant shall pay Landlord the taxes for the personal property within
twenty (20) days after ▇▇▇▇▇▇ receives a written statement from Landlord for
such personal property taxes with evidence of assessment from the taxing
authority.
Section 4.3. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal, power for the air conditioning system and
other utilities and services supplied to the Property. However, if any services
or utilities are jointly metered with other property, Landlord shall make a
reasonable determination of Tenant's proportionate share of the cost of such
utilities and services and Tenant shall pay such share to Landlord within twenty
(20) days after receipt of Landlord's written statement with evidence of how
Landlord calculated this figure.
Section 4.4. INSURANCE POLICIES.
(a) LIABILITY INSURANCE. During the Lease Term, Tenant shall
maintain a policy of commercial general liability insurance (sometimes known as
broad form comprehensive general liability insurance) insuring Tenant against
liability for bodily injury, property damage (including loss of use of property)
and personal injury arising out of the operation, use or occupancy of the
Property. Tenant shall name Landlord as an additional insured under such policy.
The initial amount of such insurance shall be One Million Dollars ($1,000,000)
per person and Three Million Dollars ($3,000,000) per occurrence/accident and
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shall be subject to periodic increase based upon inflation, increased liability
awards, recommendation of ▇▇▇▇▇▇▇▇'s professional insurance advisers and other
relevant factors except that any such increase shall be reasonable and
consistent with standards in the industry and the local market with respect to
coverage of this nature. The liability insurance obtained by Tenant under this
Paragraph 4.4(a) shall (i) be primary and non-contributing; (ii) contain
cross-liability endorsements; and (iii) insure Landlord against Tenant's
performance under Section 5.5, if the matters giving rise to the indemnity under
Section 5.5 result from the negligence of Tenant. The amount and coverage of
such insurance shall not limit Tenant's liability nor relieve Tenant of any
other obligation under this Lease.
(b) PROPERTY AND RENTAL INCOME INSURANCE. During the Lease Term,
Landlord shall maintain policies of insurance covering loss of or damage to the
Property and the Project in the full amount of its replacement value. Such
policy shall contain an Inflation Guard Endorsement and shall provide protection
against all perils included within the classification of fire, extended
coverage, vandalism, malicious mischief, special extended perils (all risk),
sprinkler leakage and any other perils which Landlord deems reasonably
necessary. Landlord shall also carry liability insurance in amounts equal to
insurance carried by Tenant, covering the Property and the Project. Landlord
shall have the right to obtain flood insurance if required by any lender holding
a security interest in the Property. Landlord shall not obtain insurance for
Tenant's fixtures or equipment or building improvements installed by Tenant on
the Property. During the Lease Term, Landlord shall also maintain a rental
income insurance policy, with loss payable to Landlord, in an amount equal to
one year's Base Rent, plus estimated real property taxes and insurance premiums.
Tenant shall be liable for the payment of any deductible amount under Tenant's
insurance policies maintained pursuant to this Section 4.4, in an amount not to
exceed Ten Thousand Dollars ($10,000). Tenant shall not do or permit anything to
be done which invalidates any such insurance policies.
(c) PAYMENT OF PREMIUMS.
(i) Landlord shall pay the "Base Premiums" for the insurance
policies maintained by Landlord under Paragraph 4.4(b). Base Premiums shall be
the greater of (i) insurance premiums paid by Landlord for insurance of the
Property during the base year 1998; or (ii) insurance premiums Landlord would
pay for a fully occupied Property with all structures completed.
(ii) Tenant shall pay Landlord the amount, if any, by which the
insurance premiums for all policies maintained by Landlord under Paragraph
4.4(b) with respect to the Property have increased over the Base Premiums,
whether such increases result from the nature of Tenant's occupancy, any act or
omission of Tenant, the requirement of any lender referred to in Article XI
(Protection of Lenders), the increased value of the Property or general rate
increases. However, if Landlord substantially increases the amount of insurance
carried or the percentage of insured value after the period during which the
Base Premiums were calculated, Tenant shall only pay Landlord the amount of
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increased premiums which would have been charged by the insurance carrier if the
amount of insurance or percentage of insured value had not been substantially
increased by Landlord. This adjustment in the amount due from Tenant shall be
made only once during the Lease Term. Thereafter, Tenant shall be obligated to
pay the full amount of any additional increases in the insurance premiums,
including increases resulting from any further increases in the amount of
insurance or percentage of insured value. Subject to Section 4.5, Tenant shall
pay Landlord the increases over the Base Premiums within twenty (20) days after
receipt by Tenant of a copy of the premium statement or other evidence of the
amount due. If the insurance policies maintained by Landlord cover improvements
or real property other than the Property, Landlord shall also deliver to Tenant
a statement of the amount of the premiums applicable to the Property showing, in
reasonable detail, how such amount was computed. If the Lease Term expires
before the expiration of the insurance period, Tenant's liability shall be pro
rated on an annual basis. Increases under this Section shall be limited to one
per calendar year.
(d) GENERAL INSURANCE PROVISIONS.
(i) Any insurance which Tenant is required to maintain under
this Lease shall include a provision which requires the insurance carrier to
give Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or
renewal to Landlord required under this Lease within the prescribed time period
or if any such policy is canceled or modified during the Lease Term without
Landlord's consent, Landlord may obtain such insurance, but only after giving
Tenant no less than twenty (20) days written notice of its intention to do so,
in which case Tenant shall reimburse Landlord for the cost of such insurance
within twenty (20) days after receipt of a statement that indicates the cost of
such insurance actually expended by Landlord.
(iii) Tenant shall maintain all insurance required under this
Lease with companies holding a "General Policy Rating" of A-12 or better, as set
forth in the most current issue of "Best Key Rating Guide." Landlord and Tenant
acknowledge the insurance markets are rapidly changing and that insurance in the
form and amounts described in this Section 4.4 may not be available in the
future. If at any time during the Lease Term, Tenant is unable to maintain the
insurance required under the Lease, Tenant shall nevertheless maintain insurance
coverage which is customary and commercially reasonable in the insurance
industry for Tenant's type of business, as that coverage may change from time to
time. ▇▇▇▇▇▇▇▇ makes no representation as to the adequacy of such insurance to
protect ▇▇▇▇▇▇▇▇'s or ▇▇▇▇▇▇'s interests. Therefore, Tenant shall obtain any
such additional property or liability insurance which Tenant deems necessary to
protect Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights of recovery
against the other, or against the officers, employees, agents or representatives
of the other, for loss of or damage to its property or the property of others
under its control, if such loss or damage is covered by any insurance policy in
force (whether or not described in this Lease) at the time of such loss or
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damage. Upon obtaining the required policies of insurance, Landlord and Tenant
shall give notice to the insurance carriers of this mutual waiver of
subrogation.
Section 4.5. COMMON AREAS; USE, MAINTENANCE AND COSTS.
(a) COMMON AREAS. As used in this Lease, "Common Areas" shall mean
all areas within the Project which are available for the common use of tenants
of the Project and which are not leased or held for the exclusive use of Tenant
or other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and planted
areas. Landlord, from time to time, may change the size, location, nature and
use of any of the Common Areas, construct additional parking facilities
(including parking structures) in the Common Areas, and increase or decrease
Common Area land and/or facilities; and convert Common Areas into leasable
areas, provided such conversion does not have a materially adverse effect on
Tenant's operation of the Property. Tenant acknowledges that such activities may
result in inconvenience to Tenant. Such activities and changes are permitted if
they do not materially affect ▇▇▇▇▇▇'s use of the Property.
(b) USE OF COMMON AREAS. Tenant shall have the nonexclusive right
(in common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations as Landlord may establish from time to
time. Tenant shall abide by such rules and regulations and shall use its best
effort to cause others who use the Common Areas with ▇▇▇▇▇▇'s express or implied
permission to abide by Landlord's rules and regulations. At any time, Landlord
may close any Common Areas to perform any acts in the Common Areas as, in
Landlord's judgment, are desirable to improve the Project. Tenant shall not
interfere with the rights of Landlord, other tenants or any other person
entitled to use the Common Areas.
(c) SPECIFIC PROVISION RE: VEHICLE PARKING. Tenant shall be entitled
to use the number of vehicle parking spaces in the Project allocated to Tenant
in Section 1.11 of the Lease without paying any additional rent, eight of which
shall be reserved for Tenant's exclusive use as shown on Exhibit "B." Vehicles
shall be parked only in striped parking spaces and not in driveways or other
locations not specifically designated for parking. Handicapped spaces shall only
be used by those legally permitted to use them. ▇▇▇▇▇▇ agrees not to use more
than the allocated spaces noted in Section 1.11 in the parking areas of the
Project (excluding loading areas, where additional parking is permitted).
(d) MAINTENANCE OF COMMON AREAS. Landlord shall maintain the Common
Areas in good order, condition and repair and shall operate the Project, in
Landlord's reasonable discretion, as a first-class industrial/commercial real
property development.
(e) PRO RATA SHARE OF COMMON AREA MAINTENANCE EXPENSES. In each year
of the Lease Term, Tenant will pay to Landlord, in addition to the Base Rent, as
further Additional Rent, "Tenant's Proportionate Share" of "Common Area
Maintenance Expenses" less the "Base Amount."
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(i) "Tenant's Proportionate Share" shall mean a proportion of
the Common Area Maintenance Expenses, calculated by multiplying the total Common
Area Maintenance Expenses by a fraction, the numerator of which shall be the
number of square feet contained in the Property and the denominator of which
shall be the aggregate number of square feet of leasable building space in the
Project, which percentage share is hereby agreed to be 49.5 percent.
(ii) "Base Amount" shall mean a sum equal to the Aggregate
Common Area Maintenance Expenses estimated by Landlord in the exercise of its
reasonable discretion for the base year of 1998, subject to the following: If
the Project is not fully occupied during the base year of 1998, the Base Amount
for purposes of this Section 4.5 shall be determined as if the Project had been
fully occupied during such calendar year (meaning occupancy of 100% of the
rentable area of the Project).
(iii) "Common Area Maintenance Expenses" as used herein means
the total cost and expense incurred in operating, and repairing the Project, the
building on the Project (the "Building") and Common Areas, as defined in Section
4.5(a) of the Lease. Common Area Maintenance Expenses shall specifically
include, without limitation:
(a) gardening, landscaping and irrigation, repairs,
painting;
(b) management fees;
(c) sanitary control, removal of trash, rubbish, garbage and
other refuse from the Common Areas but not from the Property or any other
rentable areas of the Project;
(d) depreciation of machinery and equipment;
(e) the cost of maintenance and support personnel, including
but not limited to payroll and applicable payroll taxes, worker's compensation
insurance and fringe benefits;
(f) utility charges for the Common Areas;
(g) water and sanitary sewer charges not billed directly to
Tenant;
(h) insurance for the Common Areas; and
(i) any and all other charges, costs or expenses which may
be associated with Landlord's operation of the Project (excluding Real Property
Taxes and Insurance).
"Common Area Maintenance Expenses" shall not include:
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(1) Cost of decorating, redecorating, or special
cleaning or other services not provided on a regular or periodic basis to
tenants of the Project;
(2) Wages, salaries, fees and fringe benefits paid to
executive personnel or officers or partners of Landlord;
(3) Any charge for depreciation of the Project and any
interest or other financing charge;
(4) Any charge for Landlord's income, taxes, excess
profit taxes, franchise taxes, or similar taxes on Landlord's business;
(5) All costs relating to activities for the
solicitation and execution of leases of space in the Project;
(6) All costs for which Tenant or any other tenant in
the Project is being charged other than pursuant to the Common Area
Expenses clauses;
(7) The cost of any electric current furnished to the
Property or any rentable area of the Project for purposes other than the
operation of the Project equipment and machinery and the lighting of
building machinery or fan rooms or other Common Areas;
(8) The cost of correcting defects in the construction
of the Project or in the building equipment except that conditions (not
occasioned by construction defects) resulting from ordinary wear and tear
will not be deemed defects for the purpose of this category;
(9) The cost of any repair made by Landlord because of
the total or partial destruction of the Project or the condemnation or a
portion of the Project;
(10) Any increase in insurance premium to the extent
that such increase is caused or attributable to the use, occupancy or act
of another tenant;
(11) The cost of any item for which Landlord is
reimbursed by insurance or otherwise compensated by parties other than
tenants of the Project pursuant to clauses similar to this paragraph;
(12) The cost of any addition or capital improvements
to the Project subsequent to the date of original construction subject to
item (19) below;
(13) The cost of any repairs, alterations, additions,
changes, replacements and other items which under generally accepted
accounting principles were properly classified as capital expenditures to
the extent they upgrade or improve the Project as opposed to replace
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existing items which have worn out and which would not be considered to
constitute reasonable expenses for the operation or maintenance of the
Project;
(14) Any operating expenses representing an amount paid
to a related corporation, entity or person which is in excess of the amount
which would be paid in the absence of such relationship;
(15) The cost of tools and equipment used initially in
the construction, operation, repair and maintenance of the Project;
(16) The cost of any work or service performed for or
facilities furnished to any tenant of the Project to a greater extent or in
a manner more favorable to such tenant than that performed for or furnished
to Tenant;
(17) The cost of alterations of space in the Project
leased to other tenants;
(18) The cost of overtime or other expense to Landlord
in curing defaults or performing work expressly provided in this Lease to
be borne at Landlord's expense except that if general maintenance of the
Common Areas requires overtime, such may be included subject to all other
terms of this Lease;
(19) Capital improvements or expenditures incurred to
reduce operating expenses shall be included in Common Area Expenses to the
lesser of the annual amortized amount of said improvements or expenditures
(over the useful life of the improvement or item) or the actual savings;
(20) Ground rent or similar payment to a ground lessor;
(21) The cost of removal, abatement or treatment of
asbestos or any other hazardous substance or gas.
(f) Landlord may reasonably estimate Tenant's Proportionate
Share of the Common Area Maintenance Expenses referred to in this Section and
Tenant shall pay one-twelfth of said estimated amount monthly in advance,
together with the next due payment of Base Rent. In no event shall Tenant's
Proportionate Share of Common Area Expenses (excluding those expenses related to
utility charges for the Common Areas and water and sanitary sewer charges not
billed directly to Tenant) for any calendar year of the Lease Term exceed the
greater of (i) Tenant's Proportionate Share of Common Area Expenses (excluding
those expenses related to utility charges for the Common Areas and water and
sanitary sewer charges not billed directly to Tenant) for the prior calendar
year multiplied by one hundred and five percent (105%) or (ii) Tenant's
Proportionate Share of Common Area Expenses (excluding those expenses related to
utility charges for the Common Areas and water and sanitary sewer charges not
billed directly to Tenant) for the prior calendar year of the Lease Term
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multiplied by a fraction, the numerator of which shall be the CPI-U, as that
term is hereinafter defined, for the 11th calendar month of the immediately
prior lease year, and the denominator of which shall be the CPI-U for the 11th
calendar month of the second most prior lease year. The CPI-U shall mean the
"Consumer Price Index--Seasonally Adjusted U.S. City Average for all Items for
All Urban Consumers, (1982-84=100)," published monthly in the "Monthly Labor
Review" of the Bureau of Labor Statistics of the United States Department of
Labor. If the CPI-U is discontinued, comparable statistics on the purchasing
power of the consumer dollar published by a responsible financial periodical or
recognized authority shall be used for making the computation set forth above.
Tenant's obligation to make payments of ▇▇▇▇▇▇'s Proportionate Share of Common
Area Expenses shall not commence until January 1, 1999. After the end of each
calendar year in the Lease Term, Landlord shall furnish Tenant a statement of
the actual Common Area Maintenance Expenses. This statement shall become final
and conclusive between the parties unless Landlord receives written detailed
objections with respect thereto within twenty days of receipt thereof. Any
balance shown to be due pursuant to said statement shall be paid by Tenant to
Landlord within twenty days following ▇▇▇▇▇▇'s receipt thereof and any
overpayment shall be immediately credited against ▇▇▇▇▇▇'s obligation to pay
Additional Rent in connection with estimated Common Area Maintenance Expenses
for the next year, or, if by reason of any termination of this Lease, no such
future obligations exist, refunded to Tenant. Anything herein to the contrary
notwithstanding, Tenant shall not delay or withhold payment of any balance shown
to be due pursuant to a statement rendered by Landlord to Tenant because of any
objection which Tenant may raise with respect thereto and Landlord shall
immediately credit or refund any overpayment found to be owing to Tenant as
aforesaid upon their resolution of said objection.
In no event will the total amount collected from all tenants
of the Project with regard to Common Area Maintenance Expenses exceed 100% of
the Common Area Maintenance Expenses actually incurred by the Project. Common
Area Maintenance Expenses shall be reasonable, and directly related to the
operation of the Project. Landlord will utilize its best efforts to minimize
Common Area Maintenance Expenses.
Upon termination of the Lease, Landlord shall furnish Tenant a
statement of the actual Common Area Expenses and Tenant's Proportionate Share
thereof for the last year of the Lease. Any balance shown to be due pursuant to
such statement shall be paid to the party to whom the balance is due by the
other within twenty (20) days of receipt of the statement.
Section 4.6. LATE CHARGES. ▇▇▇▇▇▇'s failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within ten
(10) days after it becomes past due, Tenant shall pay Landlord a late charge
equal to ten percent (10%) of the overdue amount. The parties agree that such
late charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of such late payment.
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Section 4.7. INTEREST ON PAST DUE OBLIGATIONS. Provided Landlord has
given Tenant no less than ten (10) days' written notice and an opportunity to
cure, any amount owed by Tenant to Landlord which is not paid when due shall
bear interest at the rate of twelve percent (12%) per annum from the due date of
such amount. However, interest shall not be payable on late charges to be paid
by Tenant under this Lease. The payment of interest on such amounts shall not
excuse or cure any default by Tenant under this Lease. If the interest rate
specified in this Lease is higher than the rate permitted by law, the interest
rate is hereby decreased to the maximum legal interest rate permitted by law.
Section 4.8. This section is intentionally deleted.
Section 4.9. BOOKS AND RECORDS. Tenant shall have the right to examine
▇▇▇▇▇▇▇▇'s books and records to ensure Landlord's compliance with those
provisions of this Article IV dealing with Common Area Maintenance Expenses.
Prior to examining Landlord's books and records, Tenant shall give Landlord no
less than ten (10) days' written notice, and Tenant shall conduct such
inspection during Landlord's normal business hours.
ARTICLE V.
USE OF PROPERTY
Section 5.1. PERMITTED USES. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.6 above.
Section 5.2. MANNER OF USE. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of tenants of the Project, or which constitutes a nuisance or waste.
Tenant shall obtain and pay for all permits, including an occupational license,
required for Tenant's occupancy of the Property and shall promptly take all
actions necessary to comply with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating the use by Tenant of the
Property, including the Occupational Safety and Health Act.
Section 5.3. HAZARDOUS MATERIALS.
(a) DEFINITIONS. As used in this Lease, the term "Hazardous
Material" means any flammable items, explosives, radioactive materials,
hazardous or toxic substances, material or waste or related materials, including
any substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials" or "toxic substances" now
or subsequently regulated under any applicable federal, state or local laws or
regulations, including without limitation petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons.
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(b) HANDLING OF HAZARDOUS MATERIALS. Tenant's business is such that
Tenant will handle Hazardous Materials on a regular basis. Landlord acknowledges
and consents to the handling of such Hazardous Materials on the Property,
provided that: (i) Tenant will handle and dispose of such Hazardous Materials in
accordance with all applicable laws, and shall obtain all necessary permits
associated with its handling of Hazardous Materials; (ii) in its handling of
Hazardous Materials, Tenant will in no way contaminate the Property or the
Project.
(c) DOCUMENTATION. Tenant agrees to document all disposal of
Hazardous Materials, if any, by one of the following types of documentation: a
Hazardous Materials/Waste Manifest; a Bill of Lading from a bonded hazardous
substance transporter showing shipment to a licensed hazardous waste facility;
or a confirmation of receipt of materials from a recycler, a waste exchange
operation, or other permitted hazardous waste management facility and to keep
the same on file for no less than five years following the expiration of this
Lease or any extensions thereof.
(d) ACCESS. Tenant agrees to allow reasonable access to the Property
for monitoring of the above by Landlord, Dade County, DERM and the Florida DEP
to assure compliance with the above as well as any other conditions relating to
the use of the Property, subject always to Section 5.6 of the Lease.
(e) AUDITS. Upon reasonable notice (but no more than once per
calendar year), Landlord shall have the right to perform Class I or Class II
environmental audits at any time during the Lease Term and any extensions
thereof and for a period of one year following the expiration of this Lease and
any extensions thereof, and, if the results of any such audit reveal the
existence of any condition which would entitle Landlord to indemnification under
the Environmental Indemnification provisions hereinbelow, the cost of such audit
shall be paid by ▇▇▇▇▇▇ as Additional Rent hereunder. If no such condition is
revealed, Landlord shall pay the cost of such audits.
(f) ENVIRONMENTAL INDEMNIFICATION. All defined terms used in this
Lease shall be applicable to this Environmental Indemnification. In addition,
the following defined terms shall be used herein:
(i) Corrective Work: the removal, relocation, elimination,
remediation or encapsulation, of Hazardous Materials from all or any portion of
the Property and (to the extent provided in subparagraph 5.03(g) hereof)
surrounding areas and, to the extent thereby required, the reconstruction and
rehabilitation of the Property:
(1) pursuant to and in compliance with Governmental
Requirements; or
(2) if the present or future use, operation, leasing,
development, construction, alteration or refinancing of the Property or any
part of the Project is limited or restricted in any way by reason of the
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use of such Hazardous Materials by Tenant or an agent of Tenant in
violation of Governmental Requirements;
(ii) Governmental Requirements: Any present and future:
(1) federal, state or local laws, rules or regulations; and
(2) judicial or administrative interpretation thereof,
including any judicial or administrative orders or judgments;
(iii) Hazardous Materials: As defined in Section 5.3(a) above.
(iv) Indemnified Losses: damages, losses, liabilities, cost and
expenses of Corrective Work, obligations, penalties, fines, impositions, fees,
levies, lien removal or bonding costs, claims, litigation, demands, defenses,
judgments, suits, proceedings, costs, disbursement or expenses (including
without limitation, attorneys' and experts' reasonable fees and disbursement) of
any kind and nature whatsoever, including interest thereon related to,
concerning or arising out of Tenant's causing or permitting Hazardous Materials
to pollute or contaminate the Property, the Project or any part thereof or any
property outside of the Project if related to acts or occurrences by Tenant
within the Project. The Indemnified Losses shall not extend to the costs of
Corrective Work pertaining to any matter not caused by an act or omission of
Tenant or one of its agents or one of Tenant's guests or invitees.
Except as limited in Section 5.3(f)(iv) and in Section 5.3(m),
Tenant covenants and agrees, at its sole cost and expense, to indemnify, and
protect and save Landlord harmless against and from any and all Indemnified
Losses which may at any time be imposed upon, incurred by or asserted or awarded
against Landlord whether the Indemnified Losses arise before, during or after,
enforcement of the remedies and rights available to Landlord under the Lease.
(g) TENANT IN POSSESSION.
(i) So long as Tenant is in possession, custody and control
of the Property, ▇▇▇▇▇▇▇▇ agrees that prior to the undertaking of Corrective
Work, Tenant may at its sole cost and expense contest the Governmental
Requirements and or perform any Corrective Work, provided that at all times all
of the following conditions are continuously satisfied in full:
(1) no material, uncured event of default (other than
as related to the Hazardous Materials involved in such contest or
Corrective Work) exists under the Lease;
(2) Landlord and its agents, officers, directors,
servants, employees, contractors and shareholders shall not be subject to
any criminal or other penalties, fines, costs or expenses, by reason of
such contest or Corrective Work or any delays in connection therewith;
15
(3) unless Tenant has instituted a contest as permitted
hereunder with respect to any Corrective Work, Tenant shall commence the
Corrective Work promptly after obtaining actual knowledge of the Hazardous
Materials on, in, under or affecting the Property or any surrounding areas
(but only if such Hazardous Materials were placed on, in, under or about
the Property by Tenant or one of Tenant's agents), but at least twenty (20)
days prior to commencement of such Corrective Work (unless the governmental
agency involved requires such Corrective Work to be done too quickly to
allow twenty (20) days in which case, as soon as possible prior to such
commencement), Tenant will submit to Landlord in conformity with Landlord's
reasonable requirements (which requirements may not create conditions which
violate Governmental Requirements), reasonably detailed plans for such
Corrective Work complying with Governmental Requirements. If, within said
twenty (20) day period, Landlord, in its reasonable judgment, rejects such
plans, Tenant shall promptly submit revised plans conforming to Landlord's
reasonable requirements for Landlord's approval. If within twenty (20) days
from ▇▇▇▇▇▇▇▇'s receipt of the original plans, or revised plans, ▇▇▇▇▇▇▇▇
fails to approve or reject such original plans, or revised plans, as the
case may be, the same shall be deemed accepted by Landlord. All Corrective
Work shall be performed in compliance with such approved original or
revised plans;
(4) a contest, if instituted, shall be instituted
promptly after Tenant or Landlord obtains actual knowledge of an action,
suit, proceeding, or governmental order or directive which asserts any
obligation or liability affecting all or any portion of the Property, or
Tenant or Landlord and diligently prosecuted until a final judgment is
obtained;
(5) Corrective Work shall be instituted promptly
following an unsuccessful non-appealable completion of the contest and
shall be diligently prosecuted until the Hazardous Materials involved in
the contest are removed, relocated, encapsulated and/or disposed of as
required by the Governmental Requirements;
(6) Tenant shall notify Landlord within 10 days after
commencement of such contest or Corrective Work and shall render to
Landlord a written monthly report detailing the progress thereof including
such information as Landlord shall reasonably request; and
(7) if Landlord is named in any action or proceeding as
a necessary party or as a party defendant relating to matters covered by
this Indemnity, ▇▇▇▇▇▇▇▇ agrees to utilize counsel designated by ▇▇▇▇▇▇,
subject to Landlord's right of approval, not to be unreasonably withheld or
delayed. If Landlord is not named in any such action or proceeding,
Landlord, at its expense, shall have the right (but not the obligation) to
16
join in any action or proceeding in which Tenant contests any Governmental
Requirements.
So long as all such conditions are continuously
satisfied, ▇▇▇▇▇▇▇▇ agrees that Landlord will not enter into any settlement
agreement binding upon Tenant, without its prior consent which consent will
not be unreasonably withheld or delayed.
(ii) Promptly after the receipt by Landlord of written
notice of any demand or claim or the commencement of any action, suit or
proceeding in respect of any of the Indemnified Losses, Landlord shall notify
Tenant thereof in writing.
(h) UNIMPAIRED INDEMNIFICATION. The liability of Tenant under
this Indemnity shall in no way be limited or impaired by:
(i) any amendment or modification of the Lease;
(ii) any extension of time for performance required by any
provision of the Lease;
(iii) any sale or transfer of all or any part of the
Project;
(iv) the accuracy or inaccuracy of the representations and
warranties made by Tenant under the Lease;
(v) the cessation of business within the Property by ▇▇▇▇▇▇
and/or any successor to ▇▇▇▇▇▇'s interest as tenant in the Property.
(i) COURSE OF ACTION. The Tenant:
(i) waives any right or claim of right to cause Landlord to
proceed under any provision of the Lease before proceeding under this Indemnity
against Tenant in any particular order; and
(ii) agrees that any payments required to be made hereunder
shall become due on demand;
(j) LANDLORD'S DELAY. No delay on Landlord's part in exercising
any right, power or privilege under the Lease shall operate as a waiver of any
such right, power or privilege.
(k) BINDING ON SUCCESSORS. This Indemnity shall be binding upon
Tenant and its respective heirs, personal representatives, successors and
assigns and shall inure to the benefit of and, where applicable, shall be
binding upon, Landlord and its successors, affiliates and participants which
17
acquire all or any part of the Project or the Lease by any sale, assignment or
foreclosure under financing encumbering the Project, by deed or other assignment
in lieu of foreclosure, or otherwise, including if Landlord or such successor,
affiliate or participant, is the successful bidder at a foreclosure of the
remedial sale.
(l) TERM OF INDEMNIFICATION. ▇▇▇▇▇▇ agrees that this Indemnity
shall continue throughout the Lease Term, and any extensions thereof, and for a
period of not less than one (1) year following termination of the Lease for any
reason. Further, said one (1) year period shall be extended during the pendency
of litigation or administrative claims involving Indemnified Losses pertaining
to Hazardous Materials covered by this Indemnity pending at the expiration of
the one year period. The Indemnity shall include reasonable costs and expenses
(including experts' and attorneys' fees disbursements) incurred or expended by
Landlord in enforcing this Indemnity. ▇▇▇▇▇▇▇▇ agrees to utilize counsel
designated by ▇▇▇▇▇▇ (if ▇▇▇▇▇▇ is also a party defendant in such matters)
subject to Landlord's right or approval, not to be unreasonably withheld or
delayed.
(m) INDEPENDENT VERIFICATION. Landlord shall, at all times, at
Landlord's discretion and expense, be free to independently establish to its
satisfaction the existence or non-existence of any fact or facts, the existence
or non-existence of which is a condition of this Indemnity or any of its
provisions.
(n) LANDLORD'S REPRESENTATION. Landlord represents and warrants
to Tenant that as of the date of the Lease, no condition exists which would
entitle Landlord to indemnification under the Environmental Indemnification
provisions of this Lease; that the Project is currently free from environmental
contamination of any sort; and that Landlord has recently conducted and received
a phase 1 environmental audit covering the Project, which audit has revealed no
contamination or other condition which would require further analysis or
Corrective Work.
Section 5.4. SIGNS AND AUCTIONS. Tenant, at its expense, shall be
permitted to install one exterior sign on the west elevation (front) of the
Project and one on the south elevation (side) of the Project, both of which
shall be subject to Landlord's approval in the exercise of its reasonable
discretion and subject to the approval of all relevant governmental agencies.
Subject to Landlord's approval in the exercise of its reasonable discretion,
both of these signs may be large enough to be easily readable from the Palmetto
Expressway. In addition, subject to Landlord's approval in the exercise of its
reasonable discretion, Tenant may place smaller, directional and identification
signs at the rear and south side of the Project. Tenant shall not conduct or
permit any auctions or sheriff's sales at the Property.
Section 5.5. INDEMNITY. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising from:
(a) Tenant's use of the Property; (b) the conduct of Tenant's business or
anything else done or permitted by Tenant to be done in or about the Property,
including any contamination of the Property or any other property resulting from
the presence or use of Hazardous Material caused or permitted by Tenant; (c) any
breach or default in the performance of Tenants obligations under this Lease;
(d) any misrepresentation or breach of warranty by Tenant under this Lease; or
18
(e) other acts or omissions of Tenant. Tenant shall defend Landlord against any
such cost, claim or liability at ▇▇▇▇▇▇'s expense with counsel reasonably
acceptable to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any legal fees or costs incurred by Landlord in connection with any
such claim. Landlord shall indemnify Tenant against and hold Tenant harmless
from any and all costs, claims or liability arising from: (a) Landlord's use of
the Project; (b) the conduct of Landlord's business or anything else done or
permitted by Landlord to be done in or about the Project resulting from the
presence or use of Hazardous Materials caused or permitted by Landlord (other
than Tenant's tenancy or Tenant's use or handling of Hazardous Materials); (c)
any breach or default in the performance of Landlord's obligations under the
Lease; (d) any misrepresentation or breach of warranty by Landlord under this
Lease; or (e) other acts or omissions of Landlord. Landlord shall defend Tenant
against any such cost, claim or liability at Landlord's expense with counsel
reasonably acceptable to Tenant or, at Tenant's election, Landlord shall
reimburse Tenant for any legal fees or costs incurred by Tenant in connection
with any such claim. As a material part of the consideration to Landlord, ▇▇▇▇▇▇
assumes all risk of damage to property or injury to persons in or about the
Property arising from any act or omission of Tenant or its agents, and Tenant
hereby waives all claims in respect thereof against Landlord, except for any
claim arising out of Landlord's acts or omissions, the risk for which Landlord
assumes. As used in this Section, the term "Tenant" and "Landlord" shall include
Tenant's and Landlord's employees, agents, contractors and invitees, if
applicable.
Section 5.6. LANDLORD'S ACCESS. Landlord recognizes and understands
that ▇▇▇▇▇▇'s business is such that it regularly handles patented, proprietary
technology under development, which includes, without limitation, products that
are highly sensitive to contamination and changes in temperature. In this
regard, ▇▇▇▇▇▇▇▇'s entry into the Property shall be governed strictly by the
provisions of this paragraph to protect against contamination of ▇▇▇▇▇▇'s work
product. In this regard, Landlord shall: (1) enter the Property only after no
less than twenty-four hours' written notice is delivered to Tenant, and only
during Tenant's normal business hours; (2) enter and inspect the Property
accompanied at all times by a representative of Tenant; and (3) keep in
strictest confidence any and all information it learns regarding ▇▇▇▇▇▇'s
business. In the case of a bona-fide emergency that poses an immediate and
material threat to safety or property values (such as a fire or burst water
pipe), Landlord may enter the Property without the twenty-four hour notice
provided for herein, outside of Tenant's normal business hours, and without a
representative of Tenant, so long as Landlord first attempts to notify Tenant of
its intent to enter by first telephoning Tenant at its emergency contact number
and then paging Tenant through its emergency pager system (Tenant shall notify
Landlord of its emergency contact number and of the number of its pager system,
and any changes thereto). Landlord shall instruct its employees and agents to
comply at all times with the provisions of this paragraph. Any failure on the
19
part of Landlord, its agents or employees to comply with the provisions of this
Paragraph shall constitute a default by Landlord under this Lease. Subject to
the limitation contained in this paragraph, Landlord or its agents may enter the
Property to show the Property to potential buyers, investors or tenants or other
parties; or to inspect and conduct tests in order to monitor Tenant's compliance
with all applicable environmental laws and all laws governing the presence and
use of Hazardous Material; or for any other purpose Landlord deems necessary in
the exercise of its reasonable discretion. During the last six months of the
Lease (and if Tenant has exercised a renewal option, during the last six months
of the renewal period) Landlord may place customary "For Sale" or "For Lease"
signs on the Property.
Section 5.7. QUIET POSSESSION. If Tenant pays the rent and complies
with all other terms of this Lease, Tenant may occupy and enjoy the Property for
the full Lease Term, subject to the provisions of this Lease.
Section 5.8. LANDLORD'S OPERATION OF THE PROJECT.
(a) Landlord may lease and/or otherwise transfer the other portions
of the Project to entities that will use those portions of the Project either
for office use or for warehouse use. Notwithstanding the foregoing: (i) no
noxious or offensive activity shall be carried on, in or upon the Project, nor
shall anything be done thereon which may be or become an annoyance or nuisance
to Tenant, in the exercise of its reasonable discretion; (ii) no portion of the
Project may be used for any of the following uses: Retail (as hereinafter
defined), restaurant, church, dance hall, bar, tavern, lounge, massage parlor,
strip joint, spa, movie theater, pornographic store, taxidermy, entertainment
center, gym, day care center, clinic or school. For purposes of this Paragraph,
Retail shall mean the following uses: (1) department store; (2) drug store; (3)
pharmacy; (4) bank; (5) boutique; (6) supermarket; (7) specialty store; (8)
general merchandise store; (9) food market; (10) flea market; (11) variety
store; (12) shoe store; (13) apparel store; (14) clothing store; (15) fabric
store; (16) computer store; (17) greeting card shop; (18) record, music or video
store; (19) book store; (20) stationery store; (21) gift shop; (22) candy store;
(23) furniture store; (24) hosiery store; (26) jewelry store; (27) toy store;
(28) sporting goods store; (29) any establishment that can be categorized as a
"super store," including, without limitation, (a) a sport super store (such as
Sports Authority), (b) a baby super store (such as Baby Superstore), (c) a
computer super store (such as Comp USA), or (d) a super store that sells
electronic or household equipment to the public (such as Best Buy or Service
Merchandise); (30) any entity that sells any of the following directly to the
public: (a) computer hardware, (b) computer software, (c) office supplies, (d)
housewares, (e) building supplies, (e) electronic equipment, (f) records, (g)
cassettes, (h) videos, (i) compac disques, (j) books, (k) home improvement
items; (31) automobile dealership; (32) car wash; or (33) any entity that sells
or installs tires, batteries or auto accessories. Landlord may lease portions of
the Project for uses defined above as Retail, provided that retail sales (to
entities that allow consumers to purchase their products directly) are
incidental to wholesale sales and/or distribution.
ARTICLE VI.
CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.1. EXISTING CONDITIONS. Landlord represents and warrants to
Tenant that: (i) it has obtained a permanent certificate of occupancy for the
Project and the Property; (ii) the Project and the Property have been
20
constructed in full compliance with all governmental requirements (local, state
and federal) including, without limitation, the Americans with Disabilities Act;
(iii) all structural aspects of the Property and the Project, including, without
limitation, the roof, structure, exterior weatherproofing system, building
exterior (including, without limitation, doors, windows and exterior walls),
stucco and foundation (collectively, the "Structural Items") have been properly
installed in accordance with high construction standards; (iv) all mechanical,
electrical, plumbing, HVAC, security, fire protection and sprinkler systems
(collectively the "Systems") have been properly installed and are in good
working order in accordance with all construction documents approved by all
applicable municipalities; all light fixtures are properly lamped; all HVAC
systems have been filtered; (v) all items that can be classified as "finishes"
(the "Finished Components"), including, without limitation, cabinetry, tile,
floors and ceilings have been properly installed and completed in accordance
with high construction standards; (vi) Landlord shall pursue with diligence any
and all claims it may have under any and all warranties it has with respect to
construction work on the Property, including, without limitation, warranties
from Landlord's contractor; (vii) Landlord shall proceed with diligence to
repair all items noted on the punch list attached hereto as Exhibit "C" (the
"Punch List"), so that all Punch List items which are classified as urgent on
the Punch List are completed as soon as is feasible but in no event later than
30 days after the date of the Lease and all items which are classified as
non-urgent on the Punch List are completed as soon as is feasible but in no
event later than 90 days after the date of the Lease.
Section 6.2. EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Property, when such damage or injury is caused by or results from: (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or any other cause; (c) conditions arising in
or about the Property or upon other portions of the Project, or from other
sources or places; or (d) any act or omission of any other tenant of the
Project, provided Landlord proceeds with diligence to complete repair of such
damage within ten (10) days of the date the damage occurred (so long as the item
to be repaired is one Landlord has a responsibility to repair pursuant to
Paragraph 6.3). Subject to the preceding sentence, Landlord shall not be liable
for any such damage or injury even though the cause of or the means of repairing
such damage or injury are not accessible to Tenant. The provisions of this
Section 6.2 shall not, however, exempt Landlord from liability for Landlord's
negligence or willful misconduct or for its failure to fulfill all of its
obligations as such are set forth in this Lease.
Section 6.3. LANDLORD'S OBLIGATIONS. Subject to the provisions of
Article VII (Damage or Destruction) and Article VIII (Condemnation), and except
for damage caused by any act or omission of Tenant, or Tenant's employees,
agents, contractors or invitees, Landlord shall keep the foundation, roof and
structural portions of exterior walls of the improvements on the Property in
good order, condition and repair. Landlord shall be responsible for keeping the
Structural Items and the Systems in the Building and the Project, but not within
21
the Property (the "Exterior Systems") in good condition and repair. To the
extent the Structural Items or Exterior Systems require repairs, Tenant shall
give written notice thereof to Landlord, and Landlord shall complete all such
repairs within thirty (30) days of the date of the notice. However, if such
repairs reasonably require more than thirty (30) days to complete, Landlord
shall not be in default if such cure is commenced within such thirty (30) day
period and thereafter diligently pursued to completion. Notwithstanding the
foregoing, if the item to be repaired materially impairs Tenant's ability to
operate its business, Landlord shall have five (5) days to complete such
repairs, failing which Tenant may (but shall not be obligated to), upon no less
than twenty-four hours written notice to Landlord, complete such repairs. For
purposes of this Paragraph, an item shall be deemed to materially impair
Tenant's ability to operate its business if it relates to an interruption or
breakdown in any of the Exterior Systems or Structural Items. Throughout the
term of the Lease, as such may be extended, Landlord shall provide Tenant with
access to electricity and water as such access currently exists on the Property.
If Landlord will approve any interruptions in these services: (i) Landlord must
deliver no less than twenty-four (24) hours' written notice to Tenant of such
interruption and (ii) such interruption cannot last for more than twenty-four
hours (unless such interruption is beyond ▇▇▇▇▇▇▇▇'s control). If any
interruption extends beyond a twenty-four hour period, Tenant shall have the
right (but not the obligation), upon no less than twenty-four hours written
notice to Landlord, to cure the cause of such interruption. Within ten (10) days
of the date of this Lease, Landlord shall provide Tenant with true and correct
copies of all warranties in its possession relating to the Property, the
Structural Items and the Systems (including Exterior Systems and Interior
Systems (as defined below)). To the extent any item on the Property, including,
without limitation, Structural Items, Exterior Systems and Interior Systems are
covered by a warranty (the "Warrantied Items"), Landlord covenants that if and
when repairs are needed to such Warrantied Items (as such need may be conveyed
by Tenant to Landlord in writing), Landlord shall immediately pursue all of its
rights under such warranties with diligence, and Tenant shall have no
responsibility with respect to Warrantied Items, for the term of such warranties
so long as Tenant complies with all maintenance requirements of said warranties.
Section 6.4. TENANT'S OBLIGATIONS.
(a) Except as provided in Section 6.3, Article VII (Damage or
Destruction), Article VIII (Condemnation), and except for Warrantied Items (as
defined in Section 6.3 above), Tenant shall keep all interior portions of the
Property, including all systems within the Property (the "Interior Systems"), in
good order, condition and repair (including interior repainting and refinishing,
as needed). Tenant shall maintain a preventive maintenance contract providing
for the regular inspection and maintenance of the heating and air conditioning
system by a licensed heating and air conditioning contractor. In addition,
Tenant shall, at Tenant's expense, repair any damage to the roof, foundation or
structural portions of walls caused by Tenant's acts or omissions. It is the
intention of Landlord and Tenant that, at all times during the Lease Term,
Tenant shall maintain the Property in an attractive, first-class and fully
operative condition. Notwithstanding the foregoing, as long as Tenant is
maintaining the Interior Systems in a good and operative condition, Landlord
22
shall have no right to interfere with such maintenance, and if Landlord chooses
to conduct any work on the Interior Systems, such work shall be at Landlord's
sole cost and expense. The intent of the parties is that Tenant shall maintain
the Interior Systems without interference from Landlord, unless Tenant has
failed to maintain the Interior Systems in a good and operative condition,
ordinary wear and tear excepted.
(b) Tenant shall fulfill all of Tenant's obligations under this
Section 6.4 at Tenant's sole expense. If Tenant fails to maintain, repair or
replace the Property as required by this Section 6.4, Landlord may, upon ten
(10) days' prior notice to Tenant (subject to the limitations of Sections 5.6
and 6.4(a) above and except that no notice shall be required in the case of an
emergency), enter the Property and perform such maintenance or repair (including
replacement, as needed) on behalf of Tenant. In such case, Tenant shall
reimburse Landlord for all costs incurred in performing such maintenance or
repair within twenty (20) days after receipt by Tenant of evidence of costs
actually expended by Landlord. Landlord shall not interfere with Tenant's
maintenance and repair of the Interior Systems unless they have been left
inoperative or damaged by Tenant.
Section 6.5. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a) Landlord acknowledges that Tenant intends to make substantial
alterations, additions and improvements to the Property. Prior to commencing any
work on the Property, Tenant shall deliver proposed plans and specifications to
Landlord, which shall be subject to Landlord's approval in the exercise of its
reasonable discretion. If Landlord fails to approve or disapprove such plans and
specifications within five (5) business days of receipt of them, Landlord shall
be deemed to have approved them. All such alterations, additions and
improvements shall be done in full compliance with all governmental rules and
regulations and shall be performed by a licensed contractor. Throughout the term
of the Lease, as such may be extended, Tenant may choose to construct or modify
additions and/or alterations on the Property. Landlord acknowledges Tenant's
improvements may require HVAC, plumbing, vent and/or exhaust penetrations
through the roofing system, which penetrations shall be properly waterproofed by
Tenant in such a manner as is reasonably acceptable to Landlord and as shall not
invalidate Landlord's roofing bond, if any, and/or warranty. In the construction
of its improvements, Tenant may use any fixtures or installations currently on
the Property (the "Landlord's Fixtures") and, subject to Landlord's approval in
the exercise of its reasonable discretion, may move them from their current
location on the Property to other locations on the Property. To the extent any
of the Landlord's Fixtures are not used or anticipated to be used during
Tenant's alteration process, they shall be returned to Landlord at the Property.
Tenant, at Tenant's sole cost and expense, shall be responsible for making any
and all additions, alterations and improvements necessary to allow Tenant to
lawfully use the Property for the permitted use specified in Paragraph 1.6 of
the Lease (the "Tenant Improvements"). Construction of the Tenant Improvements
by Tenant shall at all times be subject to the following conditions:
(i) Prior to commencing any work, Tenant shall submit for
Landlord's approval detailed plans and specifications for the Tenant
Improvements to be made by Tenant, which approval shall not be unreasonably
withheld. If Landlord fails to approve or disapprove such plans and
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specifications within five (5) business days of receipt of them, Landlord shall
be deemed to have approved them.
(ii) Landlord shall also have the right to approve the
contractors to be used by Tenant for Tenant Improvements, which approval shall
not be unreasonably withheld.
(iii) Tenant's work shall comply with the provisions of all
applicable governmental codes and regulations, and, prior to commencing any
work, Tenant shall deliver to Landlord copies of all governmental permits and
authorizations which may be required in connection with the use of the Property
and construction of the Tenant Improvements.
(iv) Tenant shall (and shall require that all contractors)
comply with all applicable provisions of the Florida Mechanics' Lien Law, and
the provisions of this Section 6.5.
(v) ▇▇▇▇▇▇'s work shall be subject to Landlord's periodic
review.
(vi) ▇▇▇▇▇▇'s contractors must procure workmen's compensation
insurance covering all persons employed in connection with the work who might
assert claims for death or bodily injury; and no work shall be commenced until
Landlord shall have received copies of certificates of insurance confirming the
existence of such insurance coverage. The amount of such insurance coverage
shall be in accordance with statutory requirements and mandates.
(vii) Prior to commencing any work, Tenant shall obtain, for the
benefit of Landlord or any holder of a mortgage given by Landlord encumbering
the Project, such additional liability, property damage and casualty insurance
as Landlord or such other party may reasonably require because of the nature of
the work to be done by ▇▇▇▇▇▇.
(b) Tenant shall pay when due all claims for labor and material
furnished to the Property. Tenant shall give Landlord at least twenty (20) days'
prior written notice of the commencement of any work on the Property, regardless
of whether ▇▇▇▇▇▇▇▇'s consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property. In accordance
with the applicable provisions of the Florida Mechanic's Lien Law and
specifically Florida Statutes, Section 713.10, no interest of Landlord in the
Property, or the Project, or the leasehold interest aforesaid shall be subject
to liens for improvements made by Tenant or caused to be made by Tenant
hereunder. Further, ▇▇▇▇▇▇ acknowledges that Tenant, with respect to
improvements or alterations made by Tenant or caused to be made by Tenant
hereunder, shall promptly notify the contractor making such improvements to the
Property of this provision exculpating Landlord's liability for such liens.
Notwithstanding the foregoing, if any mechanic's lien or other lien,
attachment, judgment, execution, writ, charge or encumbrance is filed against
the Property or the Project or this leasehold, or any alterations, fixtures or
improvements therein or thereto as a result of any work, action, or inaction
24
done by or at the direction of Tenant, ▇▇▇▇▇▇ will discharge same of record
within thirty (30) days after the filing thereof, failing which Tenant will be
in default under the Lease. In such event without waiving Tenant's default,
Landlord, in addition to all other rights and remedies, without further notice,
may discharge the same of record by payment, bonding or otherwise, as Landlord
may elect, and upon request, ▇▇▇▇▇▇ will reimburse Landlord for all costs and
expenses so incurred by Landlord. It is understood and agreed between the
parties hereto that the expenses, costs and charges referred to above shall be
considered as Additional Rent due and shall be included in any lien for rent.
Section 6.6. CONDITION UPON TERMINATION. Upon termination of the Lease,
Tenant shall surrender the Property to Landlord, broom clean and in good
condition, ordinary wear and tear excepted, subject to the provisions of this
Paragraph: (i) Tenant shall not be obligated to repair any damage which Landlord
is required to repair under Article VII; (ii) Tenant may, in its sole
discretion, remove any additions, alterations or improvements it constructed on
the Property (including, but not limited to, laboratory equipment, fixtures,
casework, hoods and exhaust fans; HVAC and water purifier equipment; and standby
power generator and fuel tank); (iii) Tenant shall repair any damage to the
Property resulting from such removal, and shall restore it to useable condition;
(iv) Upon termination of the Lease, Tenant shall not remove any of the
Landlord's Fixtures from the Property, but Tenant shall have no obligation
either to deliver them to Landlord or to return them to their originally
installed location as of the date of the Lease; (v) To the extent any of
Landlord's Fixtures have not been used by Tenant, they shall be left wherever
Tenant has last used them on the Property, ordinary wear and tear excepted; (vi)
Tenant shall have no obligation to replace any of the Interior Systems; Tenant
shall only be obligated to return them to Landlord in an operative condition,
ordinary wear and tear excepted, and subject to all other terms of this Lease;
and (vi) at Landlord's option, Landlord may require that Tenant restore the
warehouse space (the "Warehouse Space"), as such Warehouse Space is depicted on
Exhibit "D" attached hereto in the same condition it was on the date of the
Lease, ordinary wear and tear excepted. Tenant's responsibility to restore shall
be limited to the Warehouse Space.
ARTICLE VII.
DAMAGE OR DESTRUCTION
Section 7.1. PARTIAL DAMAGE TO PROPERTY.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the Property. If the Property is only partially
damaged (i.e., less than twenty percent (20%) of the Property is untenantable as
a result of such damage or less than twenty percent (20%) of Tenant's operations
are materially impaired) this Lease shall remain in effect and Landlord shall
repair the damage within ninety (90) days of the date of the casualty. Landlord
may elect (but is not required) to repair any damage to Tenant's fixtures,
equipment, or improvements.
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(b) If the damage to the Property occurs during the last six (6)
months of the Lease Term (or, if the Tenant has exercised its renewal option
during the last 6 months of the renewal period), and such damage will require
more than thirty (30) days to repair, either Landlord or Tenant may elect to
terminate this Lease as of the date the damage occurred, regardless of the
sufficiency of any insurance proceeds. The party electing to terminate this
Lease shall give written notification to the other party of such election within
thirty (30) days after ▇▇▇▇▇▇'s notice to Landlord of the occurrence of the
damage.
Section 7.2. SUBSTANTIAL OR TOTAL DESTRUCTION. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.1), and
regardless of whether Landlord receives any insurance proceeds, this Lease shall
terminate as of the date the destruction occurred. Notwithstanding the preceding
sentence, if the Property can be rebuilt within two (2) months after the date of
destruction, Landlord may elect to rebuild the Property at Landlord's own
expense, in which case this Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within fifteen (15) days after
▇▇▇▇▇▇'s notice of the occurrence of total or substantial destruction.
Section 7.3. TEMPORARY REDUCTION OF RENT. If the Property is destroyed
or damaged and Landlord or Tenant repairs or restores the Property pursuant to
the provisions of this Article VII, any rent payable during the period of such
damages, repair and/or restoration shall be reduced according to the degree, if
any, to which ▇▇▇▇▇▇'s use of the Property is impaired. Except for such possible
reduction in Base Rent, insurance premiums and real property taxes, Tenant shall
not be entitled to any compensation, reduction, or reimbursement from Landlord
as a result of any damage, destruction, repair, or restoration of or to the
Property.
Section 7.4. This section is intentionally deleted.
ARTICLE VIII.
CONDEMNATION
If a substantial portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate automatically as of the date the
condemning authority takes title or possession. If a non-substantial portion of
the Property is taken under the power of a Condemnation, Tenant, in its sole and
absolute discretion, may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to Landlord
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession). If Tenant does not terminate this Lease, this Lease
shall remain in effect as to the portion of the Property not taken, except that
the Base Rent and Additional Rent shall be reduced in proportion to the
reduction in the floor area of the Property. Any Condemnation award or payment
shall be distributed in the following order (a) first, to any ground lessor,
26
mortgagee or beneficiary under a deed of trust encumbering the Property, the
amount of its interest in the Property; (b) second, to Tenant, only the amount
of any award specifically designated for loss of or damage to Tenant's trade
fixtures, removable personal property, and other installations onto the Property
which have been placed on the Property at Tenant's cost and expense; and (c)
third, to Landlord, the remainder of such award, whether as compensation for
reduction in the value of the leasehold, the taking of the fee, or otherwise. If
this Lease is not terminated, Landlord shall repair any damage to the Property
caused by the Condemnation within ninety (90) days of the date of the
Condemnation, except that Landlord shall not be obligated to repair any damage
for which ▇▇▇▇▇▇ has been reimbursed by the condemning authority. For purposes
of this paragraph, a Condemnation of twenty percent (20%) or more of the square
footage of the Property shall be deemed substantial.
ARTICLE IX.
ASSIGNMENT AND SUBLETTING
Section 9.1. LANDLORD'S CONSENT REQUIRED. No portion of the Property or
of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation of
law, or act of Tenant, without ▇▇▇▇▇▇▇▇'s prior written consent, except as
provided in Section 9.2 below. Landlord has the right to grant or withhold its
consent as provided in Section 9.5 below. Any attempted transfer without consent
shall be void and shall constitute a non-curable breach of this Lease. If Tenant
is a partnership, any cumulative transfer of more than twenty percent (20%) of
the partnership interests shall require Landlord's consent. Landlord recognizes
that Tenant is a public company which will experience changes in ownership of
its stock, none of which shall be deemed a prohibited transfer under this
Article.
Section 9.2. TENANT AFFILIATE. Tenant may assign this Lease or sublease
the Property, without Landlord's consent, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any corporation
resulting from the merger of or consolidation with Tenant ("Tenant's
Affiliate"). In such case, any Tenant's Affiliate shall assume in writing all of
Tenant's obligations under this Lease.
Section 9.3. NO RELEASE OF TENANT. No transfer permitted by this
Article IX, whether with or without Landlord's consent, shall release Tenant or
change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. ▇▇▇▇▇▇▇▇'s acceptance of rent from any
other person is not a waiver of any provision of this Article IX. Consent to one
transfer is not a consent to any subsequent transfer. If ▇▇▇▇▇▇'s transferee
defaults under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the transferee. Such action shall not relieve ▇▇▇▇▇▇'s
liability under this Lease.
Section 9.4. OFFER TO TERMINATE. If Tenant desires to assign the Lease
or sublease the Property, Tenant shall have the right to offer, in writing, to
terminate the Lease as of a date specified in the offer. If Landlord elects in
27
writing to accept the offer to terminate within twenty (20) days after notice of
the offer, the Lease shall terminate as of the date specified and all the terms
and provisions of the Lease governing termination shall apply. If Landlord does
not so elect, the Lease shall continue in effect until otherwise terminated and
the provisions of Section 9.5 with respect to any proposed transfer shall
continue to apply.
Section 9.5. LANDLORD'S CONSENT.
(a) ▇▇▇▇▇▇'s request for consent to any transfer described in
Section 9.1 shall set forth in writing the details of the proposed transfer,
including the name, business and financial condition of the prospective
transferee, financial details of the proposed transfer (e.g., the term of and
the rent and security deposit payable under any proposed assignment or
sublease), and any other information Landlord deems relevant. Landlord shall
have the right to withhold consent, if reasonable, or to grant consent, based on
the following factors: (i) the business of the proposed assignee or subtenant
and the proposed use of the Property; (ii) the net worth and financial
reputation of the proposed assignee or subtenant; (iii) Tenant's compliance with
all of its obligations under the Lease, and (iv) such other factors as Landlord
may reasonably deem relevant. If Landlord objects to a proposed assignment
solely because of the net worth and/or financial reputation of the proposed
assignee, Tenant may nonetheless sublease (but not assign), all or a portion of
the Property to the proposed transferee, but only on the other terms of the
proposed transfer.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under the
Lease the Landlord's Share (stated in Section 1.14) of the Profit (defined
below) on such transaction as and when received by ▇▇▇▇▇▇, unless ▇▇▇▇▇▇▇▇ gives
written notice to ▇▇▇▇▇▇ and the assignee or subtenant that Landlord's Share
shall be paid by the assignee or subtenant to Landlord directly. The Profit
means (A) all amounts paid to Tenant for such assignment or sublease, including
"key" money, monthly rent in excess of the monthly rent payable under the Lease,
and all fees and other consideration paid for the assignment or sublease,
including fees under any collateral agreements, less (B) costs and expenses
directly incurred by Tenant in connection with the execution and performance of
such assignment or sublease for real estate broker's commissions and costs of
renovation or construction of tenant improvements required under such assignment
or sublease. Tenant is entitled to recover such costs and expenses before Tenant
is obligated to pay the Landlord's Share to Landlord. The Profit in the case of
a sublease of less than all the Property is the rent allocable to the subleased
space as a percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written statement
certifying all amounts to be paid from any assignment or sublease of the
Property within thirty (30) days after the transaction documentation is signed,
and Landlord may inspect Tenant's books and records to verify the accuracy of
such statement. On written request, Tenant shall promptly furnish to Landlord
copies of all the transaction documentation. all of which shall be certified by
Tenant to be complete, true and correct. ▇▇▇▇▇▇▇▇'s receipt of Landlord's Share
28
shall not be a consent to any further assignment or subletting. The breach of
Tenant's obligation under this Paragraph 9.5(b) shall be a material default of
the Lease.
(iii) Notwithstanding anything to the contrary in this Article
IX, no Profit shall be due or payable to Landlord if the assignment or sublease
is to an entity that is affiliated with, or under common control with Tenant.
Section 9.6. NO MERGER. No merger shall result from ▇▇▇▇▇▇'s sublease
of the Property under this Article IX, ▇▇▇▇▇▇'s surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of ▇▇▇▇▇▇ as
sublandlord under any or all subtenancies.
ARTICLE X.
DEFAULTS; REMEDIES
Section 10.1. COVENANTS AND CONDITIONS. ▇▇▇▇▇▇'s performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
▇▇▇▇▇▇'s right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
Section 10.2. DEFAULTS. Tenant shall be in material default under this
Lease:
(a) If ▇▇▇▇▇▇'s vacation of the Property results in the cancellation
of any insurance described in Section 4.4;
(b) If Tenant fails to pay rent or any other charge within ten (10)
days after the date such payment is due;
(c) If Tenant fails to perform any of ▇▇▇▇▇▇'s non-monetary
obligations under this Lease for a period of thirty (30) days after written
notice from Landlord; provided that if more than thirty (30) days are required
to complete such performance, Tenant shall not be in default if Tenant commences
such performance within the thirty (30)-day period and thereafter diligently
pursues its completion. However, Landlord shall not be required to give such
notice if ▇▇▇▇▇▇'s failure to perform constitutes a non-curable breach of this
Lease. The notice required by this Paragraph is intended to satisfy any and all
notice requirements imposed by law on Landlord and is not in addition to any
such requirement.
(d) (i) If Tenant makes a general assignment or general arrangement
for the benefit of creditors; (ii) if a petition for adjudication of bankruptcy
or for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
29
located at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates,
or purports to revoke or otherwise terminate, any guaranty of all or any portion
of Tenant's obligations under the Lease. Unless otherwise expressly provided, no
guaranty of the Lease is revocable.
Section 10.3. REMEDIES. On the occurrence of any material default by
▇▇▇▇▇▇ after the expiration of the grace periods described in Section 10.2
above, Landlord may, at any time thereafter:
(a) Terminate ▇▇▇▇▇▇'s right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord or maintain
Tenant's right to possession, in which case this Lease shall continue in effect.
In either case, the following provisions shall govern:
(i) If such event occurs during the first five years of the
Lease Term, Landlord shall be entitled to recover from Tenant each month until
the expiration of the fifth lease year, the monthly payment of Rent that Tenant
is obligated to make under the Lease, and, at the end of the fifth lease year, a
final payment equal to three months Rent, adjusted to the amount Rent will be
during the fifth lease year under the terms of this Lease (the "Final Payment"),
at which point Landlord shall return the Letter of Credit to Tenant, and Tenant
shall be relieved of all obligations under the Lease. If Tenant fails to make
any monthly payment as described in this Paragraph within ten (10) days after
Landlord delivers written notice to Tenant that such payment is past due (which
ten day period shall be in addition to the ten (10) day period described in
Section 10.2(b) above and in addition to the thirty (30) day periods described
in Section 10.2(c) and 10.2(d) above), then Landlord shall be entitled to
declare all amount of Rent due for the balance of the first five year term, plus
the Final Payment, to be immediately due and payable, at which point those sums
shall be accelerated;
(ii) If such event occurs during the second five years of the
Lease Term, Landlord shall be entitled to recover from Tenant each month until
the expiration of the Term, the monthly payment of Rent that Tenant is obligated
to make under the Lease at which point Landlord shall return the Letter of
Credit to Tenant and Tenant shall be relieved of all obligations under the
Lease. If Tenant fails to make any monthly payment as described in this
Paragraph within ten (10) days after Landlord delivers written notice to Tenant
that such payment is past due (which ten day period shall be in addition to the
ten (10) day period described in Section 10.2(b) above and in addition to the
thirty (30) day periods described in Section 10.2(c) and 10.2(d) above), then
Landlord shall be entitled to declare all amount of Rent due for the balance of
30
the second five year term, plus the Final Payment to be immediately due and
payable, at which point those sums shall be accelerated;
(iii) Landlord may draw on the Letter of Credit if and when it
is entitled to acceleration under Paragraphs (i) or (ii) above. To the extent
Landlord does not draw on the letter of Credit, it shall be returned to Tenant
when Landlord has received the payments to which it is entitled under Paragraphs
(i) or (ii) above;
(iv) Landlord shall use best efforts to relet the Property, in
which case Tenant shall receive a credit for monthly payments of rent received
by Landlord under such new lease less any and all expenses associated with
reletting.
(v) The parties agree that it would be difficult or impossible
to determine ▇▇▇▇▇▇▇▇'s actual damages in the event of a material default by
▇▇▇▇▇▇, and that the amount set forth herein is a fair and reasonable estimate
of the total detriment that ▇▇▇▇▇▇▇▇ would suffer in the event of a material
default by ▇▇▇▇▇▇. Landlord's damage remedy shall at all times be limited by the
provisions of this Paragraph 10.3(a).
(b) Subject to the limitation on damages contained in Subsection
10.3(a), either Landlord or Tenant may pursue against the other any other remedy
now or hereafter available under the laws of Florida arising form a breach of
the Lease.
Section 10.4. This section is intentionally deleted.
Section 10.5. This section is intentionally deleted.
Section 10.6. CUMULATIVE REMEDIES. ▇▇▇▇▇▇▇▇'s exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE XI.
PROTECTION OF LENDERS
Section 11.1. SUBORDINATION. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded, provided the holder of such mortgage or deed of trust
or such ground lessor shall agree in writing not to disturb Tenant's rights
under this Lease. Tenant shall cooperate with Landlord and any lender which is
acquiring a security interest in the Property or the Lease. Tenant shall execute
such further documents and assurances as such lender may require, provided that
Tenant's obligations under this Lease shall not be increased in any material way
(the performance of ministerial acts shall not be deemed material), and Tenant
shall not be deprived of its rights under this Lease. Tenant's right to quiet
31
possession of the Property during the Lease Term shall not be disturbed if
Tenant pays the rent and performs all of Tenant's obligations under this Lease
and is not otherwise in default. If any ground lessor, beneficiary or mortgagee
elects to have this Lease prior to the lien of its ground lease, deed of trust
or mortgage and gives written notice thereof to Tenant, this Lease shall be
deemed prior to such ground lease, deed of trust or mortgage whether this Lease
is dated prior or subsequent to the date of said ground lease, deed of trust or
mortgage or the date of recording thereof.
Section 11.2. ATTORNMENT. If ▇▇▇▇▇▇▇▇'s interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to ▇▇▇▇▇▇▇▇'s interest in the Property and recognize such transferee
or successor as Landlord under this Lease provided such ground lessor,
beneficiary under a deed of trust, mortgagee or purchaser at a foreclosure sale
shall agree in writing not to disturb Tenant's rights under this ▇▇▇▇▇ and to
assume the Lease. Tenant waives the protection of any statute or rule of law
which gives or purports to give Tenant any right to terminate this Lease or
surrender possession of the Property upon the transfer of Landlord's interest.
Section 11.3. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents reasonably necessary or appropriate to evidence any such
attornment or subordination or agreement to do so. If Tenant fails to do so
within thirty (30) days of receipt of written request from Landlord, this
failure shall constitute a default under this Lease, for which Landlord will be
entitled to the remedies outlined in Paragraph 10.3 above.
Section 11.4. ESTOPPEL CERTIFICATES. Upon ▇▇▇▇▇▇▇▇'s written request,
Tenant shall execute, acknowledge and deliver to Landlord a written statement
certifying: (i) that none of the terms or provisions of this Lease have been
changed (or if they have been changed, stating how they have been changed); (ii)
that this Lease has not been cancelled or terminated; (iii) the last date of
payment of the Base Rent and other charges and the time period covered by such
payment; (iv) that Landlord is not in default under this Lease (or, if Landlord
is claimed to be in default, stating why); and (v) such other representations or
information with respect to Tenant or the Lease as Landlord may reasonably
request or which any prospective purchaser or encumbrancer of the Property may
require. Tenant shall deliver such statement to Landlord within thirty (30) days
after ▇▇▇▇▇▇▇▇'s request. Landlord may give any such statement by Tenant to any
prospective purchaser or encumbrancer of the Property. Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct. Upon
▇▇▇▇▇▇'s written request, ▇▇▇▇▇▇▇▇ shall execute, acknowledge and deliver the
same information to ▇▇▇▇▇▇. The failure by either party to deliver the statement
called for in this Paragraph within thirty (30) days of receipt of written
request from the other shall constitute a default under this Lease, for which
the non-defaulting party shall be entitled to the remedies outlined in Paragraph
10.3 above.
Section 11.5. TENANT'S FINANCIAL CONDITION. Within thirty (30) days
after written request from Landlord (but no more than once per calendar year),
Tenant shall deliver to Landlord such financial statements as Landlord
reasonably requires to verify the net worth of Tenant or any assignee,
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subtenant, or guarantor of Tenant. In addition, Tenant shall deliver to any
lender designated by Landlord any financial statements required by such lender
to facilitate the financing or refinancing of the Property. Tenant represents
and warrants to Landlord that each such financial statement is a true and
accurate statement as of the date of such statement. All financial statements
shall be confidential and shall be used only for the purposes set forth in this
Lease.
ARTICLE XII.
LEGAL COSTS
Section 12.01. LEGAL PROCEEDINGS. In any litigation arising out of this
Lease, the prevailing party in such litigation shall be entitled to recover from
the non-prevailing party reasonable attorneys' fees, costs and expenses.
Section 12.1. This section is intentionally deleted.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
Section 13.1. NON-DISCRIMINATION. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no discrimination
against, or segregation of, any person or group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
Section 13.2. LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "Landlord" means only the
current owner or owners of the fee title to the Property or Project or the
leasehold estate under a ground lease of the Property or Project at the time in
question. Each Landlord is obligated to perform the obligations of Landlord
under this Lease only during the time such Landlord owns such interest or title.
Any Landlord who transfers its title or interest is relieved of all liability
with respect to the obligations of Landlord under this Lease to be performed on
or after the date of transfer. However, each Landlord shall deliver to its
transferee all funds that Tenant previously paid if such funds have not yet been
applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
Property whose name and address have been furnished to Tenant in writing.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor. mortgagee or beneficiary) fails to cure such non-performance
within thirty (30) days after receipt of ▇▇▇▇▇▇'s notice. However, if such
33
non-performance reasonably requires more than thirty (30) days to cure, Landlord
shall not be in default if such cure is commenced within such thirty (30)-day
period and thereafter diligently pursued to completion. Notwithstanding the
foregoing, if such non-performance materially impairs Tenant's ability to
operate its business, Landlord shall cure within five (5) days, failing which
Tenant can, upon twenty-four hours written notice to Landlord, effect a cure.
For purposes of this Paragraph, an item shall be deemed to materially impair
Tenant's ability to operate its business if it related to an interruption or
breakdown in any of the Exterior Systems or Structural Items.
(c) Notwithstanding any term or provision herein to the contrary,
the liability of Landlord for the performance of its duties and obligations
under this Lease is limited to Landlord's interest in the Property and the
Project, and neither the Landlord nor its partners, shareholders, officers or
other principals shall have any personal liability under this Lease.
Section 13.3. SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or ANY part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.4. INTERPRETATION. The captions of the Articles or Sections
of this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. Whenever required by the context of
this Lease, the singular shall include the plural and the plural shall include
the singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct. acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with ▇▇▇▇▇▇'s expressed or
implied permission.
Section 13.5. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.6. NOTICES. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by certified
mail. return receipt requested, postage prepaid. Notices to Tenant shall be
delivered to the address specified in Section 1.3 above, except that upon
▇▇▇▇▇▇'s taking possession of the Property, the Property shall be Tenant's
address for notice purposes. Notices to Landlord shall be delivered to the
address specified in Section 1.2 above. All notices shall be effective upon
delivery. Either party may change its notice address upon written notice to the
other party.
Section 13.7. WAIVERS. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provision of this Lease or its
acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
34
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section 13.8. NO RECORDATION. Tenant shall not record this Lease
without prior written consent from Landlord. However, either Landlord or Tenant
may require that a "Short Form" memorandum of this Lease executed by both
parties be recorded. The party requiring such recording shall pay all transfer
taxes and recording fees.
Section 13.9. BINDING EFFECT; CHOICE OF LAW. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to ▇▇▇▇▇▇'s successor unless
the rights or interests of Tenants successor are acquired in accordance with the
terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
Section 13.10. CORPORATE AUTHORITY. If Tenant is a corporation, each
person signing this Lease on behalf of Tenant represents and warrants that he
has full authority to do so and that this Lease binds the corporation. Within
thirty (30) days after this Lease is signed, Tenant shall deliver to Landlord a
certified copy of a resolution of Tenant's Board of Directors authorizing the
execution of this Lease or other evidence of such authority reasonably
acceptable to Landlord. Each person signing this Lease on behalf of Landlord
represents and warrants that he has full authority to do so and that this Lease
binds the Landlord. Upon request, Landlord shall deliver to Tenant the same
corporate resolutions that Tenant is required to deliver under this Paragraph.
Section 13.11. JOINT AND SEVERAL LIABILITY. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.12. FORCE MAJEURE. If Landlord cannot perform any of its
obligations due to events beyond Landlord's control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond ▇▇▇▇▇▇▇▇'s control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty.
Section 13.13. EXECUTION OF LEASE. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. ▇▇▇▇▇▇▇▇'s delivery of this Lease
to Tenant shall not be deemed to be an offer to lease and shall not be binding
upon either party until executed and delivered by both parties.
Section 13.14. SURVIVAL. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
Section 13.15. WAIVER OF JURY TRIAL. ▇▇▇▇▇▇▇▇ AND TENANT HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE
35
TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS LEASE.
Section 13.16. 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 the county public health unit.
ARTICLE XIV.
BROKERS
Section 14.1. BROKER'S FEE. When this Lease is signed by and delivered
to both Landlord and Tenant, Landlord shall pay a real estate commission to
Landlord's Broker named in Section 1.8 above, if any, as provided in the written
agreement between Landlord and ▇▇▇▇▇▇▇▇'s Broker, or the sum stated in Section
1.9 above for services rendered to Landlord by Landlord's Broker in this
transaction. Landlord shall pay Landlord's Broker a commission if Tenant
exercises any option to extend the Lease Term or to buy the Property, or any
similar option or right which Landlord may grant to Tenant, or if Landlord's
Broker is the procuring cause of any other lease or sale entered into between
Landlord and Tenant covering the Property. Such commission shall be the amount
set forth in Landlord's Broker's commission schedule in effect as of the
execution of this Lease. Nothing contained in this Lease shall impose any
obligation on Landlord to pay a commission or fee to any party other than
▇▇▇▇▇▇▇▇'s Broker.
Section 14.2. PROTECTION OF BROKERS. If Landlord sells the Property, or
assigns Landlord's interest in this Lease, the buyer or assignee shall, by
accepting such conveyance of the Property or assignment of the Lease, be
conclusively deemed to have agreed to make all payments to ▇▇▇▇▇▇▇▇'s Broker
thereafter required of Landlord under this Article XIV. ▇▇▇▇▇▇▇▇'s Broker shall
have the right to bring a legal action to enforce or declare rights under this
provision. The prevailing party in such action shall be entitled to reasonable
attorneys' fees to be paid by the losing party. Such attorneys' fees shall be
fixed by the court in such action. This Paragraph is included in this Lease for
the benefit of Landlord's Broker.
Section 14.3. AGENCY DISCLOSURE; NO OTHER BROKERS. Landlord and Tenant
each warrant that they have dealt with no other real estate broker(s) in
connection with this transaction except: CB Commercial Real Estate Group, Inc.,
who represents the LANDLORD.
In the event that CB Commercial represents both Landlord and Tenant,
Landlord and ▇▇▇▇▇▇ hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not expect
said broker to disclose to either of them the confidential information of the
other party.
36
ARTICLE XV.
COMPLIANCE
The parties hereto agree to comply with all applicable federal, state
and local laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this Agreement,
including, but not limited to, the 1964 Civil Rights Act and all amendments
thereto, the Foreign Investment In Real Property Tax Act, the Comprehensive
Environmental Response Compensation and Liability Act, and The Americans With
Disabilities Act.
ARTICLE XVI.
ABATED RENT
Base Rent for the first five (5) months of the Lease term shall be
$7,688.31 per month.
ARTICLE XVII.
BASE YEAR
The Base Year for all purposes in this Lease shall be 1998.
ARTICLE XVIII.
CANCELLATION OPTION
So long as Tenant is not in default under this Lease at the time of
exercise, Tenant shall have the option to cancel the Lease effective at the end
of the fifth (5th) Lease year by delivering written notice to Landlord no later
than nine (9) months prior to the expiration of the fifth (5th) Lease year. Upon
giving said notice, Tenant shall pay a cancellation fee equal to three (3)
months of the then current Base Rent.
ARTICLE XIX.
GENERATOR AND FUEL TANK
Tenant, at Tenant's expense, shall have the right to install an
emergency generator and fuel tank in an exterior location proximate to the meter
room, subject to Landlord's approval in the exercise of its reasonable
discretion and subject to the approval of all appropriate governmental entities.
37
ARTICLE XX.
RIGHT OF FIRST OFFER
(a) Tenant shall throughout the Lease Term, as such may be extended,
have a continuing right to lease ("Tenant's Right to Lease") any space in the
Project that is available or becomes available for lease to third parties (all
such space being referred to herein as "First Offer Space").
(b) From time to time during the Lease Term at any time(s) that
Landlord anticipates that First Offer Space may become available, and at any
time upon request of Tenant, Landlord shall give Tenant written notice of the
availability of such First Offer Space setting forth Landlord's determination of
the fair market rental rate for the applicable First Offer Space and including
the date the existing tenant or occupant, if any, is expected to vacate such
space ("Landlord's Availability Notice"). Tenant's lease of any First Offer
Space will be on the same terms and conditions as contained in this Lease with
respect to the original Property except that the Base Rent attributable to the
First Offer Space shall be in an amount equal to the rent set forth in
Landlord's Availability Notice; provided, however: (i) Tenant's Proportionate
Share will be increased to take into account the additional square footage of
the First Offer Space and all figures in this Lease affected by the addition of
the square footage of the First Offer Space to the Property will be adjusted
accordingly; and (ii) Tenant will be entitled, at no additional charge during
the balance of the Term of the Lease, to a total of 2.9 additional parking
spaces per 1,000 usable square feet of area within the First Offer Space.
(c) Within ten (10) business days after ▇▇▇▇▇▇'s receipt of
Landlord's Availability Notice, Tenant must give Landlord written notice
pursuant to which Tenant shall elect to either: (i) lease such First Offer Space
at the fair market rental rate set forth in Landlord's Availability Notice and
the same non-economic terms as set forth in the Lease with respect to the
Property; or (ii) refuse to lease such First Offer Space. ▇▇▇▇▇▇'s failure to
timely chose either clause (i) or clause (ii) above, if not remedied within two
(2) business days after notice of such failure from Landlord, will be deemed to
be Tenant's choice of clause (ii) above.
(d) If Tenant chooses (or is deemed to have chosen) clause (c)(ii)
above, Tenant's Right to Lease such First Offer Space will be null and void
unless and until Landlord shall enter into negotiations with regard to the First
Offer Space (or any portion thereof) with another proposed tenant if such
negotiations contemplate a total rent (including, without limitation, rental
abatement provisions) that is a better economic value for such space than the
total rent (including, without limitation, rental abatement provisions) set
forth in Landlord's Availability Notice, at which point, Tenant's Right to Lease
the First Offer Space shall automatically convert into a Right of First Refusal
with respect to the First Offer Space, to be governed by the following
provisions: Prior to entering into a lease for any portion of the First Offer
Space, Landlord shall offer Tenant the right to lease such portion of the First
Offer Space in accordance with the terms and conditions contained in the lease
or term sheet negotiated with the proposed tenant. Tenant shall have ten (10)
days from receipt of Landlord's notice to agree to lease such First Offer Space,
38
or portion thereof, on such terms, failing which ▇▇▇▇▇▇'s rights shall lapse,
but only as to that First Offer Space, or portion thereof and only with respect
to that offer. Tenant shall continue to have its Right to Lease with respect to
such space to the extent it is not leased pursuant to that offer. For purposes
of this paragraph, the total rent (including, without limitation, rental
abatement provisions) negotiated with a proposed tenant shall be deemed to be a
better economic value if, when adjusted to its net present value, it is lower
than the total rent (including, without limitation, rental abatement provisions)
set forth in Landlord's Availability Notice.
(e) If Tenant exercises its Right to Lease pursuant to this
paragraph, the parties shall promptly thereafter execute an amendment to this
Lease to include the First Offer Space in the Property and to document the lease
terms thereof.
ARTICLE XXI.
NOTICE
In all instances where ▇▇▇▇▇▇ is entitled to notice from Landlord under
the Lease, Tenant shall receive no less than twenty (20) days' written notice
(except for notices regarding payment of rent).
ARTICLE XXII.
LANDLORD'S COVENANTS AND REPRESENTATIONS
WITH RESPECT TO LIENS
Landlord covenants and represents that in the event the holder or
claimant under any lien on the Property or the Project initiates foreclosure
proceedings, joins Tenant in any litigation, or otherwise impairs Tenant's
ability to exercise its rights under this Lease, landlord shall, on no less than
ten (10) days written notice from Tenant, either pay off and satisfy such lien
of record or bond it to security, failing which Tenant shall have the right, but
not the obligation, to bond such lien to security or to satisfy such lien and to
offset any amounts paid by Tenant against the next installments of Base Rent to
become due under this Lease until fully credited.
ARTICLE XXIII
NON-DISTURBANCE FROM CURRENT LENDERS
Landlord represents and warrants to Tenant that there are currently two
mortgages encumbering the Property and the Project, one of which is held by
Florida Business Development Corp. ("Florida Business") and the other by
SunTrust Bank ("SunTrust"). Within fifteen (15) days of the date of this Lease,
39
Landlord shall obtain and deliver to Tenant non-disturbance agreements
("Non-Disturbance Agreements") from Florida Business and SunTrust, in form and
substance reasonably acceptable to Tenant. Each Non-Disturbance Agreement shall
provide, without limitation, that in the event the holder of a mortgage lien on
the Property forecloses its lien, it shall not disturb any of Tenant's rights
under the Lease and shall assume the Lease and all of landlord's obligations
thereunder. If such Non-Disturbance Agreements are not delivered to Tenant
within this fifteen (15) day period, Tenant may, in its sole discretion, cancel
the lease without penalty, or alternatively, grant Landlord an extension to
obtain such Non-Disturbance Agreements. No payments under this Lease (including
without limitation, payments of Base Rent or Additional rent) shall be due from
Tenant, nor shall the Letter of Credit be delivered to Landlord, until Landlord
delivers to Tenant the Non-Disturbance Agreements called for in this Paragraph.
(The rest of this page is intentionally left blank)
(Signature lines follow on the next page)
40
Landlord and ▇▇▇▇▇▇ have signed this Lease at the place and on the
dates specified adjacent to their signatures below and have initialed all Riders
which are attached to or incorporated by reference in this Lease.
"LANDLORD"
Signed on June 13, 1997 JETEX GROUP, INC.
at Miami, Florida
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President
By:_______________________________________
Its:______________________________________
"TENANT"
Signed on June 12, 1997 GENETIC VECTORS, INC.
at Miami, Florida.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chief Executive Officer
By:_______________________________________
Its:______________________________________
41
OPTION TO EXTEND TERM LEASE RIDER
This Rider is attached to and made part of that certain Lease (the "
Lease") dated June 12, 1997 between Jetex Group, Inc., as Landlord, and Genetic
Vectors, Inc., as Tenant, covering property located at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇.▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and more particularly described in the Lease (the
"Property"). The terms used herein shall have the same definitions as set forth
in the Lease. The provisions of this Rider shall supersede any inconsistent or
conflicting provisions of the Lease.
A. OPTION TO EXTEND TERM.
1. GRANT OF OPTION.
Landlord hereby grants to Tenant one (1) option (the "Option") to
extend the Lease Term for an additional term of five (5) years (the
"Extension"), on the same terms and conditions as set forth in the Lease, but at
the rent as set forth below. The Option shall be exercised only by written
notice delivered to Landlord at least one hundred twenty (120) days before the
expiration of the Lease Term. If Tenant fails to deliver Landlord written notice
of exercise of an Option within the prescribed time period, such Option shall
lapse, and there shall be no further right to extend the Lease Term. The Option
shall be exercisable by Tenant on the express conditions that (a) at the time of
the exercise, Tenant shall not be in material default under any of the
provisions of the Lease and (b) Tenant has not been ten (10) or more days late
in the payment of rent more than a total of three (3) times during the Lease
Term and all preceding Extensions.
2. PERSONAL OPTIONS.
The Option is personal to the Tenant named in Section 1.3 of the Lease
or any Tenant's Affiliate described in Section 9.2 of the Lease. If Tenant
subleases any portion of the Property or assigns or otherwise transfers any
interest under the Lease to an entity other than a Tenant Affiliate prior to the
exercise of an Option (whether with or without Landlord's consent), such Option
shall lapse. If Tenant subleases any portion of the Property or assigns or
otherwise transfers any interest of Tenant under the Lease to an entity other
than a Tenant Affiliate after the exercise of an Option but prior to the
commencement of the respective Extension (whether with or without Landlord's
consent), such Option shall lapse and the Lease Term shall expire as if such
Option were not exercised. If Tenant subleases any portion of the Property or
assigns or otherwise transfers any interest of Tenant under the Lease in
accordance with Article 9 of the Lease after the exercise of an Option and after
the commencement of the Extension related to such Option, then the term of the
Lease shall expire upon the expiration of the Extension during which such
sublease or transfer occurred.
42
B. CALCULATION OF RENT.
The Base Rent during the Extension shall be determined by a "Fair
Rental Value" adjustment as defined below.
The Base Rent shall be adjusted on the first day of the first year of
the Extension (the "Rental Adjustment Date") to the "Fair Rental Value" of the
Property, determined in the following manner:
(a) Not later than one hundred (100) days prior to the Rental
Adjustment Date, Landlord and Tenant shall meet in an effort to negotiate, in
good faith, the Fair Rental Value of the Property as of such Rental Adjustment
Date. If Landlord and Tenant have not agreed upon the Fair Rental Value of the
Property at least ninety (90) days prior to the applicable Rental Adjustment
Date, the Fair Rental Value shall be determined by appraisal, by one or more
appraisers (herein called "Appraiser(s)"), as provided below. Such appraiser(s)
shall have at least five (5) years' experience in the appraisal of
commercial/industrial real property in the area in which the Property is located
and shall be members of professional organizations such as MAI or equivalent.
(b) If Landlord and Tenant are not able to agree upon the Fair
Rental Value of the Property within the prescribed time period, then Landlord
and Tenant shall attempt to agree in good faith upon a single Appraiser not
later than seventy-five (75) days prior to the applicable Rental Adjustment
Date. If Landlord and Tenant are unable to agree upon a single Appraiser within
such time period, then Landlord and Tenant shall each appoint one Appraiser not
later than sixty-five (65) days prior to the applicable Rental Adjustment Date.
Within ten (10) days thereafter, the two (2) appointed Appraisers shall appoint
a third (3rd) Appraiser. If either Landlord or Tenant fails to appoint its
Appraiser within the prescribed time period, the single Appraiser appointed
shall determine the Fair Rental Value of the Property. If both parties fail to
appoint Appraisers within the prescribed time periods, then the first Appraiser
thereafter selected by a party shall determine the Fair Rental Value of the
Property. Each party shall bear the cost of its own Appraiser and the parties
shall share equally the cost of the single or third Appraiser, if applicable.
(c) For the purposes of such appraisal, the term "Fair Rental
Value" shall mean the price that a ready and willing tenant would pay, as of the
applicable Rental Adjustment Date, as monthly rent to a ready and willing
landlord of property comparable to the Property (in the condition it was in on
the date of the Lease, not on the Rental Adjustment Date, so that Fair Rental
Value shall be based on the value of the Property without taking into account
the value of the improvements installed by Tenant) if such property were exposed
for lease on the open market for a reasonable period of time and taking into
account all of the purposes for which such property may be used and taking into
account the term of the Extension. If a single Appraiser is chosen, then such
Appraiser shall determine the Fair Rental Value of the Property. Otherwise, the
Fair Rental Value of the Property shall be the arithmetic average of the two (2)
of the three (3) appraisals which are closest in amount, and the third appraisal
43
shall be disregarded. Landlord and Tenant shall instruct the Appraiser(s) to
complete the determination of the Fair Rental Value not later than thirty (30)
days prior to the applicable Rental Adjustment Date. If the Fair Rental Value is
not determined prior to the applicable Rental Adjustment Date, then Tenant shall
continue to pay to Landlord the Base Rent applicable to the Property immediately
prior to such Extension, until the Fair Rental Value is determined. When the
Fair Rental Value of the Property is determined, Landlord shall deliver notice
thereof to Tenant, and if the Fair Rental Value is higher than the Base Rent,
Tenant shall pay to Landlord, within ten (10) days after receipt of such notice,
the difference between the Base Rent actually paid by Tenant to Landlord and the
new Base Rent determined hereunder. In no event shall the rent payable during
any year of the Extension be less than the Base Rent during the tenth year of
the Lease.
Landlord: JETEX GROUP, INC. Tenant: GENETIC VECTORS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President Title: Chief Executive Officer
Address:__________________________ Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________________________ Miami, Florida 33133
Date: June 13, 1997 Date: June 12, 1997
44
EXHIBIT "A"
THE PROJECT
Attached is a diagram of the Landlord's multi-tenant real property
development known as the Palmetto Business Center. A copy is available upon
request.
A-1
EXHIBIT "B"
PARKING
Attached is a diagram of the Landlord's multi-tenant real property
development known as the Palmetto Business Center. The diagram highlights the
parking spaces to be used exclusively by the Company. A copy is available upon
request.
B-1
EXHIBIT "C"
PUNCH LIST
Attached is a list of defects and deficiencies identified by the
Company which the Landlord has agreed to repair within the time specified in the
Lease. A copy is available upon request.
C-1
EXHIBIT "D"
WAREHOUSE SPACE
Attached is a diagram of certain warehouse space referred to in Section
6.6 of the Lease. A copy is available upon request.
D-1
EXHIBIT "E"
THE PROPERTY
Attached is a diagram of the Landlord's Property, which is a flex space
project containing 13, 926 rentable square feet and located at Suite ▇▇▇, ▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. A copy is available upon request.
E-1