EXHIBIT 10.10
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INDEX TO
OFFICE LEASE
LEASE Page No.
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BASIC LEASE INFORMATION RIDER ......................................I
1. PREMISES; COMMON AREAS...........................................157
2. LEASE TERM; LEASE DATE.........................................157
3. RENT..............................................................157
4. SECURITY DEPOSIT................................................158
5. USE...............................................................158
6. ACCEPTANCE OF PREMISES; LANDLORD'S WORK..........................158
7. PARKING...........................................................159
8. UTILITY SERVICES..................................................159
9. SECURITY..........................................................159
10. REPAIRS, MAINTENANCE AND UTILITIES................................159
11. TENANT'S ALTERATIONS............................................159
12. LANDLORD'S ADDITIONS AND ALTERATIONS..............................160
13. ASSIGNMENT AND SUBLETTING.........................................160
14. TENANT'S INSURANCE COVERAGE.....................................161
15. (INTENTIONALLY DELETED)...........................................161
16. WAIVER OF CLAIMS.................................................162
17. DAMAGE OR DESTRUCTION BY CASUALTY.................................162
18. CONDEMNATION AND EMINENT DOMAIN...................................162
19. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION.............162
20. (INTENTIONALLY DELETED)...........................................163
21. COMPLIANCE WITH LAWS AND PROCEDURES...............................163
22. RIGHT OF ENTRY....................................................163
23. DEFAULT...........................................................163
24. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT.......................164
25. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT............164
26. LIENS.............................................................164
27. NOTICES...........................................................165
28. ENCUMBERANCES.....................................................165
29. (INTENTIONALLY DELETED)...........................................165
30. TRANSFER BY LANDLORD............................................165
31. SURRENDER OF PREMISES; HOLDING OVER...............................165
32. NO WAIVER; CUMULATIVE REMEDIES................................165
33. WAIVER............................................................166
34. CONSENTS AND APPROVALS............................................166
35. RULES AND REGULATIONS.............................................166
36. SUCCESSORS AND ASSIGNS............................................166
37. QUIET ENJOYMENT...................................................166
38. ENTIRE AGREEMENT..................................................166
39. HAZARDOUS MATERIALS..............................................166
40. BANKRUPTCY PROVISIONS...........................................168
41. MISCELLANEOUS.....................................................169
EXHIBIT(S)
Exhibit "A" Legal Description
Exhibit "B" Rules and Regulations
Exhibit "C" Acceptance Memorandum
1
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BASIC LEASE INFORMATION RIDER
PREAMBLE Date of Lease: May 28, 2002
PREAMBLE Landlord: B & B Lakeview Realty Corp.
PREAMBLE Tenant: DriverShield Corp.
SECTION 1 Premises: the Rentable Area located in that certain building
(the "Building") located on ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. The Building is legally described on
Exhibit "A" attached to this Lease.
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ of Premises: 7,358 square feet, which is
stipulated and agreed by the parties.
SECTION 2 Commencement Date: As set forth in Section 6 of the Lease.
Estimated as August 1, 2002. Tenant shall complete, execute
and return to Landlord an Acceptance of Premises Memorandum in
the form attached hereto as Exhibit "C" within 3 business days
after Landlord's request therefor.
SECTION 2 Expiration Date: 5 years and 6 months after Commencement Date
SECTION 2 Lease Term: 5 years and 6 months
SECTION 3 Each year commencing on the Commencement Date (or commencing
on the first day of the first month following the Commencement
Date if the Commencement Date is other than the first day of
the month, in which event the First Lease Year shall include
the period between the Commencement Date and the first month
thereafter) or anniversary thereof is hereafter referred to as
a "Lease Year."
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LEASE YEAR $/PSF ANNUAL MONTHLY
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1 $17.00 $125,086.00 $10,423.83
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2 $18.25 $134,283.50 $11,190.29
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3 $19.50 $143,481.00 $11,956.75
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4 $21.00 $154,518.00 $12,876.50
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5 $22.50 $165,555.00 $13,769.25
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6 $24.00 $176,592.00 $14,716.00
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SECTION 4 Security Deposit Received: $22,098.52
First Month's Rent Received: $11,049.26 (includes 6%
Florida sales tax)
Last Month's Rent Received: none
SECTION 5 Use of Premises: General office use.
SECTION 6 Landlord's Work: construction of improvements contemplated by
those certain architectural drawings prepared by Quincy,
▇▇▇▇▇▇▇ Architects, project number 6572.01. Except to the
extent specifically designated in such drawings, all finishes
and materials shall be Building standard as selected by
Landlord. No later than the Commencement Date, Tenant shall
reimburse Landlord for any costs associated with Landlord's
Work that exceed the sum of $147,160.00.
SECTION 14 Amount of General Liability Insurance: $2,000,000 per
occurrence and $5,000,000 in the aggregate; provided, however,
Landlord reserves the right to require such higher amount
during any renewal Term if the parties subsequently agree to
same) as Landlord reasonably deems necessary consistent with
sound risk management practice.
SECTION 27 Tenant's Address for Notices: the Premises
Landlord's Address for Notices through June 30, 2002:
B & B Lakeview Realty Corp.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C/o DriverShield Corp.
▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Landlord's Address for notices from July 1 until the
Commencement Date:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C/o DriverShield Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇
Landlord's Address for Notices from and after the
Commencement Date:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C/o DriverShield Corp.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
Certain of the information relating to the Lease, including
many of the principal economic terms, are set forth in the foregoing Basic Lease
Information Rider (the "BLI Rider"). The BLI Rider and the Lease are, by this
reference, hereby incorporated into one another. In the event of any direct
conflict between the terms of the BLI Rider and the terms of the Lease, the BLI
Rider shall control. Where the Lease simply supplements the BLI Rider and does
not conflict directly therewith, the Lease shall control.
[REST OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Landlord and Tenant have signed this BLI
Rider as of the dates below their names.
WITNESSES (SIGN AND PRINT NAME): "LANDLORD"
Sign B & B Lakeview Realty Corp.
--------------------------------
Print
-------------------------------
Sign
--------------------------------
Print By:
------------------------------- -------------------------------
(As to Landlord) President
Dated:
-----------------------------
WITNESSES (SIGN AND PRINT NAME): "TENANT"
Sign DriverShield Corp.
--------------------------------
Print
-------------------------------
Sign
--------------------------------
Print
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(As to Tenant) By:
-------------------------------
President
Dated:
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OFFICE LEASE
1. PREMISES; COMMON AREAS
Landlord leases to Tenant and Tenant leases from Landlord the
Building described in the Basic Lease Information Rider (the "BLI Rider")
attached to the front of this Lease and incorporated into this Lease by this
reference. The Building includes both the Premises and all other areas of the
Building including, without limitation, all parking spaces, driveways, truck
service areas, and sidewalks (the "Building Areas").
2. LEASE TERM; LEASE DATE
A. GENERAL. The lease term ("Lease Term") is for the period of
time set forth in the BLI Rider, commencing on the Lease commencement date set
forth in the BLI Rider ("Commencement Date") and ending on the Lease expiration
date set forth in the BLI Rider ("Expiration Date"). Tenant's obligation to pay
all rent, including Base Rent, Taxes and Additional Rent, (collectively,
"Rent"), as such terms are hereafter defined, will commence on the Commencement
Date.
3. RENT
A. BASE RENT. During the Lease Term, Tenant will pay as the
base rent for the Premises ("Base Rent") the amounts set forth in the BLI Rider,
with same being payable without demand, setoff or deduction, in advance, on or
before the first day of each month, in equal monthly installments of the amounts
set forth in the BLI Rider plus applicable sales and other such taxes as are now
or later enacted. The term "Rent" shall refer collectively to Base Rent, Taxes
and Additional Rent. The term "Additional Rent" is sometimes used herein to
refer to any and all other sums payable by Tenant hereunder. The Rent shall be
paid by Tenant at the Building management office located in the Building or
elsewhere as designated by Landlord in writing to Tenant. Any Rent payable for a
portion of a month shall be prorated based upon the number of days in the
applicable calendar month.
B. TAXES. Beginning on the Commencement Date, Tenant shall pay
100% of the total amount of Taxes (as hereafter defined). Beginning on the
Commencement Date, Landlord shall, in advance, reasonably estimate for each such
calendar year the total amount of the Taxes. One-twelfth (1/12) of the estimated
Taxes shall be payable monthly, along with the monthly payment of the Base Rent.
On or before March 31 of each calendar year following the year in which the
Commencement Date occurs, Landlord shall use diligent efforts to provide Tenant
with a reconciliation statement showing the amount of Taxes for the previous
calendar year. If the reconciliation statement reflects an underpayment in
Taxes, Landlord shall also deliver to Tenant an invoice which Tenant shall pay
within thirty (30) days following receipt of such invoice or with the due date
of its next monthly payment of Rent, whichever shall first occur. If the
reconciliation statement reflects an overpayment in Taxes, Tenant shall be
entitled to a credit against the next payment(s) of Rent in an amount equal to
the overpayment. When calculating annual Taxes, such calculation shall, with
respect to ad valorem taxes, be calculated with reference to the gross amount
set forth in the official tax ▇▇▇▇ issued by the appropriate taxing authorities,
irrespective of the amount actually paid by Landlord for such calendar year in
light of a protest or dispute over the amount of such Taxes. In the event the
Taxes for any calendar year are in fact contested by Landlord, however,
ultimately the amount payable for that calendar year shall be the amount found
to be payable in a final determination, whether such final determination is in
the form of a pronouncement from the appropriate tribunal or a settlement. The
delivery of the aforedescribed projection statement after January 1 and/or the
reconciliation after March 31 shall not be deemed a waiver of any of Landlord's
rights to collect monies and/or a waiver of any of the duties and obligations of
Tenant as described in this section or as provided elsewhere in the Lease. As
used in this Lease, the term "Taxes" shall mean the gross amount of all
impositions, taxes, assessments (special or otherwise), water and sewer
assessments and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitutes therefor, including all taxes whatsoever (except for taxes for
the following categories which shall be excluded from the definition of Taxes:
any inheritance, estate, succession, transfer or gift taxes imposed upon
Landlord or any income taxes specifically payable by Landlord as a separate
tax-paying entity without regard to Landlord's income source as arising from or
out of the Building and/or the land on which it is located) attributable in any
manner to the Building, the land on which the Building is located or the rents
(however the term may be defined) receivable therefrom, or any part thereof, or
any use thereon, or any facility located therein or used in conjunction
therewith or any charge or other amount required to be paid to any governmental
authority, whether or not any of the foregoing shall be designated "real estate
tax", "sales tax", "rental tax", "excise tax", "business tax", or designated in
any other manner. Notwithstanding the foregoing, for so long as the there has
been no transfer (as defined in Section 13 of this Lease) and Tenant has at all
times remained current in its monetary obligations under this Lease, the
following shall apply if not prohibited by the holder of any first mortgage
encumbering the Building: (i) In lieu of escrowing estimated payments on account
of Taxes with Landlord, Tenant shall pay Taxes directly to the taxing authority
on the later to occur of (x) the last day on which Taxes can be paid without
imposition of late charge or penalty and (y) 10 days after Tenant's receipt of a
copy of the ▇▇▇▇ for Taxes; and (ii) with Landlord's prior written consent which
shall not be unreasonably withheld, Tenant shall be entitled to challenge Taxes
provided such challenge is conducted in accordance with applicable requirements
and Tenant does not delay payment of the full amount of the Tax ▇▇▇▇
irrespective of the challenge.
C. LATE CHARGE. Tenant covenants and agrees to pay a late
charge for any payment of Rent not received by Landlord on or before the date
when same is due. The late charge shall be $250.00 for the first late payment,
and $500.00 for each subsequent late payment within any 12 month period. Tenant
shall also pay Landlord interest at a rate equal to eighteen percent (18%) per
annum accruing on any Rent(s) outstanding. Tenant shall pay Landlord any such
late charge(s) or interest within five (5) days after Landlord notifies Tenant
of same.
D. RENT TAXES. In addition to Base Rent and Taxes, Tenant
shall and hereby agrees to pay to Landlord each month a sum equal to any sales
tax, tax on rentals and any other similar charges now existing or hereafter
imposed, based upon the privilege of leasing the space leased hereunder or based
upon the amount of rent collected therefor.
E. COMMENCEMENT OTHER THAN FIRST DAY. If Tenant's possession
of the Premises commences on any day other than the first day of the month,
Tenant shall occupy the Premises under the terms of this Lease and the pro rata
portion of the Rent shall be paid by Tenant; provided, however, that in such an
event the Commencement Date, for the purposes of this Lease, shall be deemed to
be the first day of the month immediately following the month in which
possession is given.
F. TAXES AFTER EXPIRATION DATE. Taxes for the final months of
this Lease are due and payable even though it may not be calculated until
subsequent to the Expiration Date of the Lease. Tenant expressly agrees that
Landlord, at Landlord's sole discretion,
4
may apply the Security Deposit, as defined in the BLI Rider, in full or partial
satisfaction of any Taxes due for the final months of this Lease. If said
Security Deposit is greater than the amount of any such Taxes and there are no
other sums or amounts owed Landlord by Tenant by reason of any other terms,
provisions, covenants or conditions of this Lease, then Landlord shall refund
the balance of said Security Deposit to Tenant as provided herein. Nothing
herein contained shall be construed to relieve Tenant, or imply that Tenant is
relieved, of the liability for or the obligation to pay any Taxes due for the
final months of this Lease by reason of the provisions of this paragraph, nor
shall Landlord be required first to apply said Security Deposit to such Taxes if
there are any other sums or amounts owed Landlord by Tenant by reason of any
other terms, provisions, covenants or conditions of this Lease.
G. TRIPLE NET RENT. All Base Rent payable hereunder shall be
paid as "triple net" rent without deduction or offset. It is the intent of the
parties that Base Rent shall be absolutely net to Landlord, and Tenant shall pay
all costs, charges, insurance premiums, taxes, utilities, expenses and
assessments of every kind and nature incurred for, against, or in connection
with the Leased Premises including, without limitation, costs of repairs and
replacements necessitated by any reason including casualty. All such costs,
charges, insurance premiums, taxes, utilities, expenses and assessments covering
the Leased Premises shall be approximately prorated upon the expiration of this
Lease. Tenant's obligations under this paragraph shall require Tenant to pay any
assessments by the community association operating the community of which the
Building is part. Notwithstanding anything herein to the contrary, if Landlord
chooses to purchase insurance in addition to the insurance required of Tenant
under this Lease, Tenant shall not be required to pay for such additional
insurance.
4. SECURITY DEPOSIT
A. SECURITY DEPOSIT. Tenant, concurrently with the execution
of this Lease, has deposited with Landlord the Security Deposit set forth in the
BLI Rider. Except as provided in the BLI Rider, this sum will be retained by
Landlord as security for the payment by Tenant of the Rent and Additional Rent
and for the faithful performance by Tenant of all the other terms and conditions
of this Lease. In the event Tenant fails to faithfully perform the terms and
conditions of this Lease, Landlord, at Landlord's option, may at any time apply
the Security Deposit or any part thereof toward the payment of the Rent and/or
Additional Rent and/or toward the performance of Tenant's obligations under this
Lease; in such event, within five (5) days after notice, Tenant will deposit
with Landlord cash sufficient to restore the Security Deposit to its original
amount. The Security Deposit is not liquidated damages. Landlord will return the
unused portion of the Security Deposit to Tenant within thirty (30) days after
the Expiration Date if Tenant is not in violation of any of the provisions of
this Lease. Landlord may (but is not obligated to) exhaust any or all rights and
remedies against Tenant before resorting to the Security Deposit. Landlord will
not be required to pay Tenant any interest on the Security Deposit nor hold same
in a separate account. If Landlord sells or otherwise conveys the Building,
Landlord will deliver the Security Deposit or the unapplied portion thereof to
the new owner. Tenant agrees that if Landlord turns over the Security Deposit or
the unapplied portion thereof to the new owner Tenant will look to the new owner
only and not to Landlord for its return upon expiration of the Lease Term. If
Tenant assigns this Lease with the consent of Landlord, the Security Deposit
will remain with Landlord for the benefit of the new tenant and will be returned
to such tenant upon the same conditions, as would have entitled Tenant to its
return.
5. USE
Tenant will use and occupy the Premises solely for the
operation of the business set forth in the BLI Rider and for no other use
whatsoever. Tenant acknowledges that its type of business, as above specified,
is a material consideration for Landlord's execution of this Lease. Tenant will
not commit waste upon the Premises nor suffer or permit the Premises or any part
of them to be used in any manner, or suffer or permit anything to be done in or
brought into or kept in the Premises or the Building, which would: (i) violate
any law or requirement of public authorities, (ii) cause injury to the Building
or any part thereof, (iii) interfere with the normal operations of HVAC,
plumbing or other mechanical or electrical systems of the Building, (iv)
constitute a public or private nuisance, or (v) alter the appearance of the
exterior of the Building or of any portion of the interior other than the
Premises pursuant to the provisions of this Lease. Tenant agrees and
acknowledges that Tenant shall be responsible for obtaining any special
amendments to the certificate of occupancy for the Premises and/or the Building
and any other governmental permits, authorizations or consents required solely
on account of Tenant's use of the Premises. Tenant will at all times maintain a
level of air conditioning in the Premises (not greater than 78(Degree)
Fahrenheit) as Landlord reasonably deems sufficient to prevent mildew and/or
damage to the Premises.
6. ACCEPTANCE OF PREMISES; LANDLORD'S WORK
Tenant accepts the Premises in its as-is condition and
acknowledges that Landlord has no obligation to perform any renovation or
improvement of the Premises or contribute to the cost thereof except for
Landlord's Work described in the BLI Rider. All leasehold improvements (as
distinguished from trade fixtures and apparatus) installed in the Premises at
any time, whether by or on behalf of Tenant or by or on behalf of Landlord,
shall not be removed from the Premises at any time, unless such removal is
consented to in advance by Landlord; and at the expiration of this Lease (either
on the Termination Date or upon such earlier termination as provided in this
Lease), all such leasehold improvements shall be deemed to be part of the
Premises, shall not be removed by Tenant when it vacates the Premises, and title
thereto shall vest solely in Landlord without payment of any nature to Tenant.
All trade fixtures and apparatus (as distinguished from leasehold improvements)
owned by Tenant and installed in the Premises shall remain the property of
Tenant and shall be removable at any time, including upon the expiration of the
Term; provided Tenant shall not at such time be in default of any terms or
covenants of this Lease, and provided further, that Tenant shall repair any
damage to the Premises caused by the removal of said trade fixtures and
apparatus and shall restore the Premises to substantially the same condition as
existed prior to the installation of said trade fixtures and apparatus. As used
herein, "Substantial Completion" shall mean that Landlord's Work has been
completed but for "punch list" items that do not prevent Tenant from occupying
the Premises and that Landlord has obtained a certificate of occupancy (or its
equivalent) with respect to Landlord's Work; provided however, Tenant may elect
to waive the requirement of a certificate of occupancy and shall be deemed to
have waived it if Tenant accepts possession of the Premises. Landlord shall,
subject to Tenant Delays and any other cause beyond Landlord's reasonable
control, use due diligence to complete Landlord's Work as soon as may be
practicable, but Landlord shall not be liable in any manner whatsoever for its
failure to do so by any particular date. Landlord's Work shall be deemed
completed and satisfactory in all respects except for any such "punch list"
items identified in writing by Tenant during a walk-through inspection of the
Premises prior to Tenant occupying same. As used in the Lease, the "Commencement
Date" shall be the earliest of the following: (a) the date of Substantial
Completion; (b) the date on which Tenant takes possession of the Premises; and
(c) the date that Substantial Completion would have occurred but for any Tenant
Delay as determined by Landlord in its reasonable discretion. As used herein,
Tenant Delay means any delay in the completion of Landlord's Work that is caused
by or attributable to Tenant, including without limitation, the following:
Tenant's failure to respond to requests for information or to furnish plans,
drawings, and specifications as required by Landlord for it to perform
Landlord's work, within a reasonable time period established by Landlord; or the
failure of Tenant or any of its consultants or agents to fully respond within 3
business days to requests of Landlord or any of its
5
consultants or agents for input and/or information; any delays resulting from
the disapproval by Landlord of all or a portion of Tenant's revised plans and
specifications as resubmitted after initial submission; any delays resulting
from Tenant's request for changes to the scope of Landlord's Work; or entry into
the Premises prior to completion of Landlord's Work by Tenant or any employee,
agent or contractor of Tenant acting on Tenant's behalf.
7. PARKING
Tenant acknowledges that: (i) Landlord has made no
representations or warranties with respect to the parking area, the number of
spaces located therein or access thereto; (ii) Landlord has no obligation to
provide a parking attendant and Landlord shall have no liability on account of
any loss or damage to any vehicle or the contents thereof, Tenant hereby
agreeing to bear the risk of loss for same.
8. UTILITY SERVICES
GENERAL. The Tenant shall pay directly all charges for
electric, telephone and any other utilities used or consumed in the Building,
including the cost of utility meters and connection charges. Notwithstanding the
foregoing, Landlord at its expense shall be responsible for bringing utility
mains to the Building. If Tenant requires utility services in addition to or in
excess of those initially provided to the Building, Tenant shall pay all costs
of bringing such services to the Premises and for the use of such services, but
Tenant shall not bring additional utilities or utility services to the Premises
without the express written consent of Landlord.
B. INTERRUPTION OF SERVICES. It is understood and agreed that
Landlord does not warrant that any of the services referred to above will be
free from interruption. Tenant acknowledges that any one or more of such
services may be suspended by reason of accident or repairs, alterations or
improvements necessary to be made, or by reason of operation of law, or other
causes beyond the control of Landlord. No such interruption or discontinuance of
service will be deemed an eviction or a disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable to
Tenant for damages or abatement of Rent or relieve Tenant from the
responsibility of performing any of Tenant's obligations under this Lease.
9. SECURITY
It is hereby agreed by both parties that security of the
Premises is the sole responsibility of the Tenant and that the Landlord has no
liability for breach of security to the Premises. Tenant may at Tenant's expense
install a security system to the Premises; provided, however, that Tenant, in
addition to access otherwise required hereunder, will provide Landlord adequate
access to the Premises in case of emergencies particularly regarding Premises
that contain fire sprinkler risers and equipment. All repairs required to the
Premises caused by security breaches are the responsibility of the Tenant;
however, Landlord may elect to effect such repairs, if appropriate to insure
continued security, protection of property, or safety of life. The cost of such
repairs shall be Additional Rent.
10. REPAIRS, MAINTENANCE AND UTILITIES
A. TENANT'S RESPONSIBILITIES. During the Lease Term, Tenant
will repair and maintain at Tenant's sole expense the entire Building pursuant
to levels of repairs and maintenance established by Landlord. Tenant's
obligations include the following:
(1) All interior and exterior walls and doors.
(2) All utility systems, facilities and equipment
(including without limitation electrical and plumbing), HVAC, life safety and
mechanical systems of the Building. Tenant shall, at its expense, contract with
a reputable firm for periodic servicing of the HVAC systems as recommended by
the manufacturer of such equipment. Tenant shall furnish Landlord not less than
once per year, with a copy of a current maintenance agreement with a qualified
heating and air-conditioning contractor stipulating that the HVAC contractor
will be required to service the HVAC system at least four (4) times per year.
Notwithstanding anything to the contrary in this Lease: (i) Landlord shall be
responsible for maintenance of all structural elements initially comprising the
Building as of the Commencement Date; (ii) provided Tenant properly discharges
its obligations to perform routine maintenance of the HVAC system including
keeping in place and causing performance of the required HVAC maintenance
contract, Landlord shall be responsible for necessary replacement of the HVAC
system to the extent that such replacement is not necessitated by Tenant's
misuse of the HVAC system; and (iii) Landlord shall be responsible for
maintenance of plumbing lines below the slab of the Building provided that the
need for any such maintenance is not necessitated by Tenant's misuse of
plumbing.
(3) All floors.
(4) All cabinets and millwork.
(5) All personal property, improvements or fixtures
within the Building.
(6) The structural and roof systems of the Building.
(7) All Building Areas including landscaping, parking
areas and external lighting except to the extent that same is performed by the
community association referenced in Section 3.
(8) Removal of trash and garbage except to the extent
that same is performed by the community association referenced in Section 3.
11. TENANT'S ALTERATIONS
A. GENERAL. During the Lease Term, Tenant will make no
alterations, additions or improvements in or to the
6
Premises or the Building, of any kind or nature, excluding telephone or computer
installations to the extent that such installation does not affect structural
elements of the Building (any and all of such alterations, additions or
improvements are collectively referred to in this Lease as the "Alteration(s)"),
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant shall submit to Landlord detailed drawings and
plans of the proposed alterations at the time Landlord's consent is sought.
Should Landlord consent to any proposed Alterations by Tenant, such consent will
be conditioned upon Tenant's agreement to comply with all requirements
established by Landlord, including safety requirements and the matters
referenced in Section 21 of this Lease. As stated herein, all Alterations made
hereunder will become Landlord's property when incorporated into or affixed to
the Building. However, at Landlord's option Landlord may, at the expiration of
the Lease Term, require Tenant, at Tenant's expense, to remove Alterations made
by or on behalf of Tenant and to restore the Premises to their original
condition.
B. ALTERATION FEE. Tenant shall pay Landlord's reasonable
out-of-pocket costs and expenses incurred by Landlord should it elect to retain
consultants to review plans and specifications of any Alterations and/or monitor
the performance thereof.
12. LANDLORD'S ADDITIONS AND ALTERATIONS
Landlord has the right to make changes in and about the
Building and parking areas, including, but not limited to, signs, entrances,
address or name of Building. Such changes may include, but not be limited to,
rehabilitation, redecoration, refurbishment and refixturing of the Building and
expansion of or structural changes to the Building. The right of Tenant to quiet
enjoyment and peaceful possession given under the Lease will not be deemed
breached or interfered with by reason of Landlord's actions pursuant to this
paragraph so long as such actions do not materially deprive Tenant of its use
and enjoyment of the Premises.
13. ASSIGNMENT AND SUBLETTING
A. LANDLORD'S CONSENT REQUIRED. Except as provided below with
respect to assignment of this Lease following Tenant's bankruptcy, Tenant will
not effect a transfer without first obtaining the consent of Landlord, which
consent Landlord shall not unreasonably withhold provided that all of the
requirements of paragraph B. of this Section 13 are satisfied. As used in this
Section 13, any of the following shall be deemed to be a transfer: assignment of
this Lease, in whole or in part; sublet of all or any part of the Premises; any
license allowing anyone other than Tenant to use or occupy all or any part of
the Premises; a pledge or encumbrance by mortgage or other instrument of
Tenant's interest in this Lease; any transfer of corporate shares as described
in paragraph C. of this Section 13; or any transfer of partnership interest as
described in paragraph D. of this Section 13. Consent by Landlord to any
transfer shall not constitute a waiver of the requirement for such consent to
any subsequent transfer. In lieu of approving any transfer, Landlord may elect
to terminate this Lease as to the portion of the Premises affected by such
transfer (together with such additional portion of the Premises needed by
Landlord to render the terminated portion marketable) by giving Tenant notice of
such election, in which event this Lease and the rights and obligations of the
parties hereunder shall cease as of a date set forth in such notice which date
shall not be less than sixty (60) days after the date of such notice. In the
event of any such termination, all Rent (other than any Additional Rent due
Landlord by reason of Tenant's failure to perform any of its obligations
hereunder) shall be adjusted as of the date of such termination.
B. CONDITIONS FOR TRANSFER APPROVAL. The parties recognize
that this Lease and the Premises are unique, and that the nature and character
of the operations within and management of the Premises are important to the
success of the Building. Accordingly, Landlord shall be entitled to arbitrarily
withhold its consent to any transfer, unless all of the following conditions are
satisfied, in which event, Landlord agrees that it shall not unreasonably
withhold its consent to the transfer in question:
(1) In Landlord's reasonable judgment, the proposed
assignee or subtenant or occupant is engaged in a business or activity, which
(a) is in keeping with the then standards of the Building, (b) is limited to the
use of the Premises as general and executive offices, and (c) will not violate
any negative covenant as to use contained in any other lease of office space in
the Building;
(2) The proposed assignee or subtenant or occupant is
a reputable person of good character and with sufficient financial worth
considering the responsibility involved, and Landlord has been furnished with
reasonable proof thereof;
(3) The form of the proposed sublease or instrument
of assignment or occupancy shall be reasonably satisfactory to Landlord, and
shall comply with the applicable provisions of this Paragraph;
(4) The proposed subtenant or assignee or occupant
shall not be entitled, directly or indirectly, to diplomatic or sovereign
immunity and shall be subject to the service of process in, and the jurisdiction
of the courts of the State of Florida.
(7) Such transferee shall assume in writing, in a
form acceptable to Landlord, all of Tenant's obligations hereunder and Tenant
shall provide Landlord with a copy of such assumption/ transfer document;
(8) Tenant shall pay to Landlord a transfer fee of
One Thousand Five Hundred Dollars ($1,500.00) prior to the effective date of the
transfer in order to reimburse Landlord for all of its internal costs and
expenses incurred with respect to the transfer, including, without limitation,
costs incurred in connection with the review of financial materials, meetings
with representative of transferor and/or transferee and preparation, review,
approval and execution of the required transfer documentation, and, in addition,
Tenant shall reimburse Landlord for any out-of-pocket costs and expenses
incurred with respect to such transfer;
(9) As of the effective date of the transfer and
continuing throughout the remainder of the Term, the Base Rent shall not be less
than the greater of Base Rent set forth in the BLI Rider or fair market rental
value of the space in question;
(10) Tenant to which the Premises were initially
leased shall continue to remain liable under this Lease for the performance of
all terms, including but not limited to, payment of Rental due under this Lease;
(11) Tenant shall give notice of a requested transfer
to Landlord, which notice shall be accompanied by (a) a conformed or photostatic
copy of the proposed assignment or sublease, the effective or commencement date
of which shall be at least 60 days after the giving of such notice, (b) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (c) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most recent financial
report and (d) such other information as Landlord may reasonably request.
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C. TRANSFER OF CORPORATE SHARES. If at any time after
execution of this Lease any part or all of the corporate shares shall be
transferred by sale, assignment, bequest, inheritance, operation of law or other
disposition (including, but not limited to, such a transfer to or by a receiver
or trustee in federal or state bankruptcy, insolvency, or other proceedings) so
as to result in a transfer in the aggregate of 35% of said corporate shares, a
transfer shall be deemed to have occurred. Tenant shall give Landlord notice
that such transfer is imminent at least fifteen (15) days prior to the date of
such transfer. If any such transfer is made (and regardless of whether Tenant
has given notice of same), Landlord may elect to terminate this Lease at any
time thereafter by giving Tenant notice of such election, in which event this
Lease and the rights and obligations of the parties hereunder shall cease as of
a date set forth in such notice which date shall not be less than sixty (60)
days after the date of such notice. In the event of any such termination, all
Rent (other than any Additional Rent due Landlord by reason of Tenant's failure
to perform any of its obligations hereunder) shall be adjusted as of the date of
such termination.
D. TRANSFER OF PARTNERSHIP INTERESTS. If Tenant is a general
or limited partnership and if at any time after execution of this Lease any part
or all of the interests in the capital or profits of such partnership or any
voting or other interests therein shall be transferred by sale, assignment,
bequest, inheritance, operation of law or other disposition (including, but not
limited to, such a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings, and also including, but not limited
to, any adjustment in such partnership interests) so as to result in a change in
the present control of said partnership by the person or persons now having
control of same, a transfer shall be deemed to have occurred. Tenant shall give
Landlord notice that such transfer is imminent at least fifteen (15) days prior
to the date of such transfer. If any such transfer is made (and regardless of
whether Tenant has given notice of same), Landlord may elect to terminate this
Lease at any time thereafter by giving Tenant notice of such election, in which
event this Lease and the rights and obligations of the parties hereunder shall
cease as of a date set forth in such notice which date shall be not less than
sixty (60) days after the date of such notice. In the event of any such
termination, all Rent (other than any Additional Rent due Landlord by reason of
Tenant's failure to perform any of its obligations hereunder) shall be adjusted
as of the date of such termination.
E. ACCEPTANCE OF RENT FROM TRANSFEREE. The acceptance by
Landlord of the payment of Rent following any assignment or other transfer
prohibited by this Article shall not be deemed to be a consent by Landlord to
any such assignment or other transfer nor shall the same be deemed to be a
waiver of any right or remedy of Landlord hereunder.
F. ADDITIONAL PROVISIONS RESPECTING TRANSFERS. If Landlord
shall consent to any Transfer, Tenant shall in consideration therefor, pay to
Landlord as Additional Rent an amount equal to the Transfer Consideration. For
purposes of this paragraph, the term Transfer Consideration shall mean in any
Lease Year (i) any rents, additional charges or other consideration payable to
Tenant by the transferee of the Transfer which is in excess of the Base Rent and
Taxes accruing during such Lease Year, (ii) all sums paid for the sale or rental
of Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property in excess of the fair market sale or rental value thereof as
of the date of the Transfer and (iii) all sums paid for services provided by
Tenant to the transferee (including, without limitation, secretarial, word
processing, receptionist, conference rooms, and library) in excess of the fair
market value of such services. The Transfer Consideration shall be paid to
Landlord as and when paid by the transferee to Tenant. Landlord shall have the
right to audit Tenant's books and records upon reasonable notice to determine
the amount of Transfer Consideration payable to Landlord. In the event such
audit reveals an understatement of Transfer Consideration in excess of five
percent (5%) of the actual Transfer Consideration due Landlord, Tenant shall pay
for the cost of such audit within ten (10) days after Landlord's written demand
for same.
14. TENANT'S INSURANCE COVERAGE
A. COMPREHENSIVE LIABILITY INSURANCE. Tenant shall, at its
cost and expense, at all times during the Term, maintain in force, for the joint
benefit of Landlord and Tenant, and any holder of a mortgage on the Building, a
broad form comprehensive coverage policy of public liability insurance issued by
a carrier satisfactory to Landlord and licensed to do business the State of
Florida with at least a Best's Insurance Guide Rating of B+ or better,by the
terms of which Landlord and Tenant, and at Landlord's request any holder of a
mortgage on Landlord's interest in the Building, are named as insureds and are
indemnified against liability for damage or injury to the property or person
(including death) of Tenant, any of its invitees or any other person entering
upon or using the Leased Premises, or any structure thereon or any part thereof.
Such insurance policy or policies shall be maintained in an amount no less than
as set forth in the BLI Rider, with a deductible not exceeding $5,000.00.
Landlord reserves the right to require reasonable increases in the limits of
coverage within the period of thirty (30) days prior to or following annual
renewal of the policy from time to time during the Term. Such insurance policy
or policies shall be stated to be primary and noncontributing with any insurance
which may be carried by Landlord. A certificate of said insurance shall be
delivered to Landlord on the Commencement Date, effective from and after the
Commencement Date, and renewal certificates shall be delivered to Landlord not
later than seven (7) days following the binding of any such insurance policies
during the Term and any Extended Term. Such insurance shall be cancelable only
after thirty (30) days' prior written notice to Landlord and Tenant, and any
holder of a mortgage on the Leased Premises. In the event Tenant fails to timely
pay any premium when due, Landlord shall be authorized to do so, and may charge
all costs and expenses thereof, including the premium, to Tenant, to be paid by
Tenant as additional rent hereunder.
B. SPECIAL FORM PROPERTY INSURANCE. Tenant shall, at its cost
and expense and at all times during the Term, maintain in force, for the joint
benefit of Landlord and Tenant, and any holder of a mortgage on the Building, a
policy of special form property insurance that insures against loss or damage by
fire and lightning, and such other perils as are covered under the broadest form
of special form property insurance with "extended coverage" or "all risk"
endorsements available in Florida, including, but not limited to, damage by wind
storm, flood, hurricane, explosion, smoke, sprinkler leakage, vandalism,
malicious mischief and such other risks as are normally covered by such
endorsements. Landlord shall be named as an additional insured on such policy of
insurance as its interests appear, and the leasehold mortgagee shall be named as
required by its loan documents; however, any insurance proceeds shall be applied
in the manner as set forth in this Lease. The insurance shall be carried and
maintained to the extent of full (actual) replacement cost of the value of the
Building (real property) and personal property (contents) with a deductible not
to exceed two percent (2%) of the total value insured. Such insurance policy or
policies shall be stated to be primary and noncontributing with any insurance
which may be carried by Landlord. A certificate of said insurance shall be
delivered to Landlord on the Commencement Date, to be effective from and after
the Commencement Date. Any renewal certificates shall be delivered to Landlord
not later than seven (7) days following the binding of any such insurance
policies during the Term. Such insurance shall be cancelable only after thirty
(30) days' prior written notice to Landlord, Tenant, and at Landlord's request
any holder of a mortgage on Landlord's interest in the Leased Premises. In the
event Tenant fails to timely pay any premium when due, Landlord shall be
authorized to do so, and may charge all costs and expenses thereof, including
the premium, to Tenant, to be paid by Tenant as additional rent hereunder.
15. (INTENTIONALLY DELETED)
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16. WAIVER OF CLAIMS
Tenant acknowledges that Landlord will not carry insurance on
the Building improvements, nor on the furniture, furnishings, trade fixtures,
equipment installed in or made to the Building by or for Tenant, and Tenant
agrees that Tenant, and not Landlord, will be obligated to promptly repair any
damage thereto or replace the same. Landlord shall not be liable to Tenant for
any damage to any building, structure or other tangible property, or any
resulting loss of income, or losses under worker's compensation laws and
benefits, even though such loss or damage might have been occasioned by the
negligence of Landlord, its agents or employees.
17. DAMAGE OR DESTRUCTION BY CASUALTY
A. ABSOLUTE RIGHT TO TERMINATE. If by fire or other casualty
the Premises are damaged or destroyed to the extent of fifty percent (50%) or
more of the replacement cost thereof, or the Building is damaged or destroyed to
the extent of fifty percent (50%) or more of the replacement cost thereof,
Landlord will have the option of terminating this Lease or any renewal thereof
by serving written notice upon Tenant within one hundred and eighty (180) days
from the date of the casualty and any prepaid Rent or Additional Rent will be
prorated as of the date of destruction and the unearned portion of such Rent
will be refunded to Tenant without interest.
B. QUALIFIED RIGHT TO TERMINATE. If by fire or other casualty
either the Premises or the Building is damaged or destroyed to the extent of
less than fifty percent (50%) but more than twenty-five per cent (25%) of the
replacement cost of the Premises or the Building (as applicable) (or the
Premises or Building are damaged to a lesser degree but Section 17C does not
apply because of the number of years remaining in the Lease Term), then Landlord
may either terminate this Lease by serving written notice upon Tenant within one
hundred and eighty (180) days of the date of destruction or Landlord may restore
the Premises.
C. OBLIGATION TO RESTORE. If by fire or other casualty either
the Premises or the Building is destroyed or damaged, but only to the extent
twenty-five per cent (25%) or less of the replacement cost of the Premises or
the Building (as applicable), and, also, the unexpired Lease Term is more than
three years, then Landlord will restore the Premises.
D. RENT ADJUSTMENTS. There shall be no abatement or suspension
of any of Tenant's Rent obligations on account of any damage or destruction, and
in lieu thereof, Tenant shall maintain such business interruption insurance
coverage as it deems appropriate.
E. QUALIFICATIONS. Said restoration, rebuilding or repairing
will exist and will be at Landlord's sole cost and expense, subject to the
availability of applicable insurance proceeds. Landlord shall have no duty to
restore, rebuild or replace Tenant's personal property and trade fixtures.
Notwithstanding anything to the contrary in this Lease, including, but not
limited to this Section 17A, Landlord's obligation(s) to repair, rebuild or
restore the Building or the Premises shall exist (i) only to the extent of
insurance proceeds received by Landlord in connection with the condition or
event which gave rise to Landlord's obligation to repair, rebuild or restore
and/or (ii) only so long as the area unaffected by the casualty may, as
determined by Landlord using reasonable business judgment, be restored as a
profitable, self functioning unit.
F. APPLICATION OF INSURANCE PROCEEDS. Any and all fire or
other insurance proceeds that become payable at any time during the Term because
of damage to or destruction of any buildings or improvements on the Building
shall be paid to Landlord, and applied toward the cost of repairing and
restoring the damaged or destroyed buildings or improvements in the manner
required this Article; provided, however, that should Landlord exercise its
option granted by this Lease to terminate this Lease because of damage to or
destruction of buildings or improvements on the Building, then, in that event,
any and all fire or other insurance proceeds that become payable because of such
damage or destruction shall be paid to Landlord.
G. TENANT'S TERMINATION RIGHT. In the event (i) Landlord does
not commence restoration, as contemplated under this Section 17, within one
hundred eighty (180) days after the date of such casualty ("Commencement
Deadline") and such casualty is not caused by the willful misconduct of Tenant
or (ii) Landlord does not complete such restoration of the Premises within one
(1) year after Landlord commences such restoration ("Completion Deadline") and
such casualty is not caused by the willful misconduct of Tenant, Tenant shall be
entitled to terminate this Lease by giving Landlord notice of intent to
terminate within ten (10) days after either the Completion Deadline or the
Commencement Deadline, as the case may be.
18. CONDEMNATION AND EMINENT DOMAIN
A. ABSOLUTE RIGHT TO TERMINATE. If all or a material part of
the Premises or the Building or the parking spaces is taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by right
of eminent domain or by purchase in lieu thereof, and the taking would prevent
or materially interfere with the use of the Premises for the purpose for which
they are then being used, this Lease will terminate and the Rent and Additional
Rent will be abated during the unexpired portion of this Lease effective on the
date physical possession is taken by the condemning authority. Tenant will have
no claim to the condemnation award.
B. OBLIGATION TO RESTORE. In the event an immaterial part of
the Premises or the Building or the parking spaces is taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or by purchase in lieu thereof, and this Lease is not
terminated as provided in subsection A above, then Landlord shall, subject to
the remaining provisions of this Section, at Landlord's expense, restore the
Premises to the extent necessary to make them reasonably tenantable. The Rent
and Additional Rent payable under this Lease during the unexpired portion of the
Lease Term shall be adjusted to such an extent as may be fair and reasonable
under the circumstances. Tenant shall have no claim to the condemnation award
with respect to the leasehold estate but, in a subsequent, separate proceeding,
may make a separate claim for trade fixtures installed in the Premises by and at
the expense of Tenant and Tenant's moving expense. In no event will Tenant have
any claim for the value of the unexpired Lease Term.
C. QUALIFICATIONS. Notwithstanding the foregoing, Landlord's
obligation to restore exists (i) only if and/or to the extent, that the
condemnation or similar award received by Landlord is sufficient to compensate
Landlord for its loss and its restoration costs and/or (ii) the area unaffected
by the condemnation or similar proceeding may, as determined by Landlord's
reasonable business judgment, be restored as a profitable, and self functioning
unit.
19. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION
9
A. PERSONAL PROPERTY. All personal property placed or moved
into the Building will be at the sole risk of Tenant or other owner. Landlord
will not be liable to Tenant or others for any damage to person or property
arising from theft, vandalism, HVAC malfunction, the bursting or leaking of
water pipes, or any act or omission of any person. Landlord agrees, however,
this if it possesses claim regarding any such damage against unrelated third
parties, Landlord will upon request of Tenant or its insurance company assign
such claims to Tenant's designee.
B. LIMITATIONS. Notwithstanding any contrary provision of this
Lease: (i) Tenant will look solely (to the extent insurance coverage is not
applicable or available) to the interest of Landlord (or its successor as
Landlord hereunder) in the Building for the satisfaction of any judgment or
other judicial process requiring the payment of money as a result of any
negligence or breach of this Lease by Landlord or its successor or of Landlord's
managing agent (including any beneficial owners, partners, corporations and/or
others affiliated or in any way related to Landlord or such successor or
managing agent) and Landlord has no personal liability hereunder of any kind,
and (ii) Tenant's sole right and remedy in any action or proceeding concerning
Landlord's reasonableness (where the same is required under this Lease) will be
an action for declaratory judgment and/or specific performance.
C. INDEMNITY. Tenant agrees to indemnify, defend and hold
harmless Landlord and Landlord's employees, officers, directors and agents
("Landlord's Agents") from and against all claims, causes of actions,
liabilities, judgments, damages, losses, costs and expenses, including
reasonable attorneys' fees and costs, including appellate proceedings and
bankruptcy proceedings, incurred or suffered by Landlord and arising from or in
any way connected with the Building or the use thereof or any acts, omissions,
neglect or fault of Tenant or any of Tenant's Agents, including, but not limited
to, any breach of this Lease or any death, personal injury or property damage
occurring in or about the Building. Tenant will reimburse Landlord upon request
for all costs incurred by Landlord in the interpretation and enforcement of any
provisions of this Lease and/or the collection of any sums due to Landlord under
this Lease, including collection of agency fees, and reasonable attorneys' fees
and costs, regardless of whether litigation is commenced, and through all
appellate actions and proceedings, including bankruptcy proceedings, if
litigation is commenced. The foregoing claims, causes of actions, liabilities,
judgments, damages, losses, costs and expenses shall include but not be limited
to any of same arising from Tenant's failure to comply with any of the
requirements of Americans with Disabilities Act ("ADA") within the Premises.
20. (INTENTIONALLY DELETED)
21. COMPLIANCE WITH LAWS AND PROCEDURES
A. COMPLIANCE. Tenant, at its sole cost, will promptly comply
with all applicable laws, guidelines, rules, regulations and requirements,
whether of federal, state, or local origin, applicable to the Premises and the
Building, including, but not limited to, the Americans with Disabilities Act, 42
U.S.C. ss. 12101 et seq, and those for the correction, prevention and abatement
of nuisance, unsafe conditions, or other grievances arising from or pertaining
to the use or occupancy of the Premises. Notwithstanding the foregoing, Tenant
shall not be responsible for violations of laws, which violations exist as of
the Commencement Date. Further, in the event that any laws require capital
expenses on account of structural elements of the Building and the effect of
laws is not triggered by Tenant's particular use of the Premises including any
Alterations by Tenant, Tenant shall be responsible only for its proportionate
share of such capital costs with the balance being paid by Landlord. Tenant's
proportionate share such capital costs shall be a fraction, the numerator of
which is the number of months remaining in this Term and the denominator of
which is the number of months of useful life of the capital improvement in
question as reasonably estimated by Landlord. In the event that the parties
subsequently agree to renew the Term, Tenant's proportionate share shall be
ratably adjusted and Tenant shall pay Landlord for any resulting increase in the
amount owed by Tenant.
B. RADON. In accordance with Florida Law, the following
disclosure is hereby made: RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE
GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISK TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON
THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
22. RIGHT OF ENTRY
Landlord and its agents will have the right to enter the
Premises during all reasonable hours to make necessary repairs to the Premises.
In the event of an emergency, Landlord or its agents may enter the Premises at
any time, without notice, to appraise and correct the emergency condition. Said
right of entry will, after reasonable notice, likewise exist for the purpose of
removing placards, signs, fixtures, alterations, or additions which do not
conform to this Lease. Landlord or its agents will have the right to exhibit the
Premises at any time to prospective tenants within one hundred and eighty days
(180) before the Expiration Date of the Lease.
23. DEFAULT
A. EVENTS OF DEFAULT BY TENANT. If (1) Tenant vacates,
abandons or surrenders all or any part of the Premises prior to the Expiration
Date, or (2) Tenant fails to fulfill any of the terms or conditions of this
Lease or any other lease heretofore made by Tenant for space in the Building or
(3) the appointment of a trustee or a receiver to take possession of all or
substantially all of Tenant's assets occurs, or if the attachment, execution or
other judicial seizure of all or substantially all of Tenant's assets located at
the Premises, or of Tenant's interest in this Lease, occurs, or (4) Tenant or
any of its successors or assigns or any guarantor of this Lease ("Guarantor")
should file any voluntary petition in bankruptcy, reorganization or arrangement,
or an assignment for the benefit of creditors or for similar relief under any
present or future statute, law or regulation relating to relief of debtors, or
(5) Tenant or any of its successors or assigns or any Guarantor should be
adjudicated bankrupt or have an involuntary petition in bankruptcy,
reorganization or arrangement filed against it, or (6) Tenant shall permit,
allow or suffer to exist any lien, judgment, writ, assessment, charge,
attachment or execution upon Landlord's or Tenant's interest in this Lease or to
the Premises; then, Tenant shall be in default hereunder.
B. TENANT'S GRACE PERIODS.
(1) If Tenant fails to cure any default in the
payment of Rent within 3 days after notice from Landlord notice of such payment,
then Landlord shall have such remedies as are provided under this Lease and/or
under the laws of the State of Florida. Notwithstanding the foregoing, Landlord
shall not be required to give such notice more than twice in any calendar year,
and after two such notices in any calendar year, Tenant's failure to make any
payment of Rent on its due date shall automatically entitle Landlord to exercise
its remedies under this Lease and/or Florida law without any notice to Tenant.
10
(2) If Tenant fails to cure any other default within
ten (10) days after notice from Landlord specifying the nature of such default
(unless such default is of a nature that it cannot be completely cured within
said ten (10) day period and steps have been diligently commenced to cure or
remedy it within such ten (10) day period and are thereafter pursued with
reasonable diligence and in good faith), then Landlord shall have such remedies
as are provided under this Lease and/or under the laws of the State of Florida.
C. LANDLORD'S DEFAULT. If Tenant asserts that Landlord has
failed to meet any of its obligations under this Lease, Tenant shall provide
written notice ("Notice of Default") to Landlord specifying the alleged failure
to perform, and Tenant shall send by certified mail, return receipt requested, a
copy of such Notice of Default to any and all mortgage holders, provided that
Tenant has been previously advised of the address(es) of such mortgage
holder(s). Landlord shall have a thirty (30) day period after receipt of the
Notice of Default in which to commence curing any non-performance by Landlord,
and Landlord shall have as much time thereafter to complete such cure as is
necessary so long as Landlord's cure efforts are diligent and continuous. If
Landlord has not begun the cure within thirty (30) days of receipt of the Notice
of Default, or Landlord does not thereafter diligently and continuously attempt
to cure, then Landlord shall be in default under this Lease. If Landlord is in
default under this Lease, then the mortgage holder(s) shall have an additional
thirty (30) days within which to cure such default or, if such default cannot be
cured within that time, then such additional time as may be necessary so long as
their efforts are diligent and continuous.
24. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT
A. LANDLORD'S OPTIONS. If Tenant is in default of this Lease,
Landlord may, at its option, in addition to such other remedies as may be
available under Florida law:
(1) terminate this Lease and Tenant's right of
possession; or
(2) terminate Tenant's right to possession but not
the Lease and/or proceed in accordance with any and all provisions of paragraph
B below.
B. LANDLORD'S REMEDIES.
(1) Landlord may without further notice reenter the
Premises either by force or otherwise and dispossess Tenant by summary
proceedings or otherwise, as well as the legal representative(s) of Tenant
and/or other occupant(s) of the Premises, and remove their effects and hold the
Premises as if this Lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end; and/or at Landlord's option,
(2) All Rent and all Additional Rent for the balance
of the Term will, at the election of Landlord, be accelerated and the present
worth of same for the balance of the Lease Term, net of amounts actually
collected by Landlord, shall become immediately due thereupon and be paid,
together with all expenses of every nature which Landlord may incur such as (by
way of illustration and not limitation) those for attorneys' fees, brokerage,
advertising, and refurbishing the Premises in good order or preparing them for
re-rental. For purposes of the preceding sentence, "present worth" shall be
computed by discounting such amount to present worth at an interest rate equal
to one percentage point above the discount rate then in effect at the Federal
Reserve Bank nearest to the location of the Building; and/or at Landlord's
option,
(3) Landlord may re-let the Premises or any part
thereof, either in the name of Landlord or otherwise, for a term or terms which
may at Landlord's option be less than or exceed the period which would otherwise
have constituted the balance of the Lease Term, and may grant concessions or
free rent or charge a higher rental than that reserved in this Lease; and/or at
Landlord's option (however, Landlord may elect to take no action and collect
rent as it accrues, it being the intent of the parties that Landlord shall not
be required to mitigate damages resulting from Tenant's default, and Tenant
waives to the fullest extent not prohibited by law any implied obligation of
Landlord to mitigate such damages),
(4) Tenant or its legal representative(s) will also
pay to Landlord as liquidated damages any deficiency between the Rent and all
Additional Rent hereby reserved and/or agreed to be paid and the net amount, if
any, of the rents collected on account of the lease or leases of the Premises
for each month of the period which would otherwise have constituted the balance
of the Lease Term.
25. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT
If Tenant fails to observe or perform any term or condition of
this Lease within the grace period, if any, applicable thereto, then Landlord
may immediately or at any time thereafter perform the same for the account of
Tenant. If Landlord makes any expenditure or incurs any obligation for the
payment of money in connection with such performance for Tenant's account
(including reasonable attorneys' fees and costs in instituting, prosecuting
and/or defending any action or proceeding through appeal), the sums paid or
obligations incurred, with interest at eighteen percent (18%) per annum, will be
paid by Tenant to Landlord within ten (10) days after rendition of a ▇▇▇▇ or
statement to Tenant. In the event Tenant in the performance or non-performance
of any term or condition of this Lease should cause an emergency situation to
occur or arise within the Premises or in the Building, Landlord will have all
rights set forth in this paragraph immediately without the necessity of
providing Tenant any advance notice.
26. LIENS
A. GENERAL. In accordance with the applicable provisions of
the Florida Mechanic's Lien Law and specifically Florida Statutes, Section
713.10, no interest of Landlord whether personally or in the Premises, or in the
underlying land or Building of which the Premises are a part or the leasehold
interest aforesaid shall be subject to liens for improvements made by Tenant or
caused to be made by Tenant hereunder. Further, Tenant 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 Premises of this provision exculpating Landlord's liability
for such liens.
B. DEFAULT. Notwithstanding the foregoing, if any mechanic's
lien or other lien, attachment, judgment, execution, writ, charge or encumbrance
is filed against the Building or the Premises or this leasehold, or any
alterations, fixtures or improvements therein or thereto, as a result of any
work action or inaction done by or at the direction of Tenant or any of Tenant's
Agents,
11
Tenant will discharge same of record within ten (10) days after the filing
thereof, failing which Tenant will be in default under this Lease. In such
event, without waiving Tenant's default, Landlord, in addition to all other
available rights and remedies, without further notice, may discharge the same of
record by payment, bonding or otherwise, as Landlord may elect, and upon request
Tenant will reimburse Landlord for all costs and expenses so incurred by
Landlord plus interest thereon at the rate of eighteen percent (18%) per annum.
27. NOTICES
Notices to Tenant under this Lease will be addressed to Tenant
and mailed or delivered to the address set forth for Tenant in the BLI Rider.
Notices to Landlord under this Lease (as well as the required copies thereof)
will be addressed to Landlord (and its agents) and mailed or delivered to the
address set forth in the BLI Rider. Notices will be personally delivered or
given by registered or certified mail, return receipt requested. Notices
delivered personally will be deemed to have been given as of the date of
delivery and notices given by mail will be deemed to have been upon receipt by
Tenant or attempted delivery by the U.S. Postal Service. Each party may change
its address from time to time by written notice given to the other as specified
above.
28. ENCUMBERANCES
This Lease and Tenants rights hereunder shall at all times be
subordinate and inferior to any mortgages, deeds of trust, major leases, ground
leases, or an other encumbrances, now or hereafter affecting the Building.
Tenant agrees in the event of any act or omission by Landlord which would
otherwise give Tenant the right to terminate this Lease or to claim a partial or
total eviction, Tenant shall not exercise any such right (i) until it has
notified in writing the holder of such mortgage or encumbrances which at the
time shall be in a lien on or encumber the Premises of such act or omission;
(ii) until thirty (30) days shall elapsed following the giving of such notice
and such holder shall not commenced and continued, with reasonable diligence, to
remedy such act or omission or to cause the same to be remedied. During the
period between the giving of such notice and the remedying of such act or
omission, the rental herein recited shall be abated or apportioned to the extent
that any part of the Premises shall be untenantable. If such mortgage is
foreclosed, or if the Building is conveyed to the mortgagee or its designee in
lieu of foreclosure, then upon request of the mortgagee, Tenant shall attorn to
the purchaser at any foreclosure sale there under or to the grantee of such
conveyance, and Tenant shall execute and deliver such instruments or agreements
as may, in the judgment of such purchaser or grantee be necessary or appropriate
to evidence such attornment. Tenant agrees that within seven (7) days after
request by Landlord or any mortgagee of the Building, Tenant will execute,
acknowledge and deliver to the Landlord and/or the mortgagee an estoppel letter
in form and substance satisfactory to Landlord and/or the mortgagee (as prepared
by Landlord), setting forth such information as Landlord and/or the mortgagee
may require including status of this Lease and/or the Premises. If for any
reason Tenant does not timely comply with the provisions of this paragraph,
Tenant will be deemed to have confirmed all matters set forth in the estoppel
letter prepared by Landlord. Landlord shall use commercially reasonable efforts
to obtain a non-disturbance agreement from the holder of any mortgage which is
superior to this Lease, which non-disturbance agreement shall provide in effect
that Tenant's right to use and occupy the Premises will not be deprived as a
result of a foreclosure of such mortgage so long as Tenant shall not be in
default under this Lease; provided, however, the rights and obligations of
Landlord and Tenant under this Lease shall be unaffected if Landlord is unable
to obtain such non-disturbance agreement.
29. (INTENTIONALLY DELETED)
30. TRANSFER BY LANDLORD
If Landlord's interest in the Building terminates by reason of
a bona fide sale or other transfer, Landlord will, upon transfer of the Security
Deposit to the new owner, thereupon be released from all further liability to
Tenant under this Lease. At the expiration or termination of the Lease Term,
Tenant shall deliver to Landlord all keys to the Premises and make known to
Landlord the location and combination of all safes, locks and similar items.
31. SURRENDER OF PREMISES; HOLDING OVER
A. SURRENDER. Tenant agrees to surrender the Premises to
Landlord on the Expiration Date (or sooner termination of the Lease Term
pursuant to other applicable provisions hereof) in as good condition as they
were at the commencement of Tenant's occupancy, ordinary wear and tear, and
damage by fire and windstorm excepted.
B. RESTORATION. In all events, Tenant will promptly restore
all damage caused in connection with any removal of Tenant's personal property.
Tenant will pay to Landlord, upon request, all damages that Landlord may suffer
on account of Tenant's failure to surrender possession as and when aforesaid and
will indemnify Landlord against all liabilities, costs and expenses (including
all reasonable attorneys' fees and costs if any) arising out of Tenant's delay
in so delivering possession, including claims of any succeeding tenant.
C. REMOVAL. Upon expiration of the Lease Term, Tenant will not
be required to remove from the Premises Building standard items, all of such
Building standard items are the property of Landlord.
D. HOLDOVER. If Tenant shall be in possession of the Premises
after the expiration of the Term, in the absence of any agreement extending the
Term, the tenancy under this Lease shall become one from month to month,
terminable by either party on thirty (30) days' prior notice, and shall be
subject to all of the terms and conditions of this Lease as though the Term had
been extended from month to month, except that (i) the Base Rent payable
hereunder for each of the first 2 months during said holdover period shall be
equal to 150% of the monthly installment of Base Rent payable during the last
month of the Term, and the Base Rent payable hereunder for each additional month
of said holdover period shall be equal to twice the monthly installment of Base
Rent payable during the last month of the Term and (ii) all Taxes payable
hereunder shall be prorated for each month during such holdover period.
E. NO SURRENDER. No offer of surrender of the Premises, by
delivery to Landlord or its agent of keys to the Premises or otherwise, will be
binding on Landlord unless accepted by Landlord, in writing, specifying the
effective surrender of the Premises. At the expiration or termination of the
Lease Term, Tenant shall deliver to Landlord all keys to the Premises and make
known to Landlord the location and combinations of all locks, safes and similar
items. No receipt of money by Landlord from Tenant after the Expiration Date (or
sooner termination) shall reinstate, continue or extend the Lease Term, unless
Landlord specifically agrees to same in writing signed by Landlord at the time
such payment is made by Tenant.
32. NO WAIVER; CUMULATIVE REMEDIES
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A. NO WAIVER. No waiver of any provision of this Lease by
either party will be deemed to imply or constitute a further waiver by such
party of the same or any other provision hereof. The rights and remedies of
Landlord under this Lease or otherwise are cumulative and are not intended to be
exclusive and the use of one will not be taken to exclude or waive the use of
another, and Landlord will be entitled to pursue all rights and remedies
available to landlords under the laws of the State of Florida. Landlord, in
addition to all other rights which it may have under this Lease, hereby
expressly reserves all rights in connection with the Building or the Premises
not expressly and specifically granted to Tenant under this Lease and Tenant
hereby waives all claims for damages, loss, expense, liability, eviction or
abatement it has or may have against Landlord on account of Landlord's exercise
of its reserved rights, including, but not limited to, Landlord's right to alter
the existing name, address, style or configuration of the Building or the
Building Areas, signage, suite identifications, parking facilities, lobbies,
entrances and exits, elevators and stairwells.
B. RENT PAYMENTS. No receipt of money by Landlord from Tenant
at any time, or any act, or thing done by, Landlord or its agent shall be deemed
a release of Tenant from any liability whatsoever to pay Rent, Additional Rent,
or any other sums due hereunder, unless such release is in writing, subscribed
by a duly authorized officer or agent of Landlord and refers expressly to this
Section. Any payment by Tenant or receipt by Landlord of less than the entire
amount due at such time shall be deemed to be on account of the earliest sum
due. No endorsement or statement on any check or any letter accompanying any
check or payment shall be deemed an accord and satisfaction. In the case of such
a partial payment or endorsement, Landlord may accept such payment, check or
letter without prejudice to its right to collect all remaining sums due and
pursue all of its remedies under the Lease.
33. WAIVER
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH (i) THIS LEASE, (ii) THE PREMISES, (iii) TENANT'S USE OR
OCCUPANCY OF THE PREMISES, OR (iv) THE RIGHT TO ANY STATUTORY RELIEF OR REMEDY.
TENANT FURTHER WAIVES THE RIGHT TO INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY
NATURE IN ANY ACTION OR PROCEEDING COMMENCED BY LANDLORD TO OBTAIN POSSESSION OF
THE PREMISES. IF TENANT VIOLATES THIS PROVISION BY FILING A PERMISSIVE
COUNTERCLAIM, WITHOUT PREJUDICE TO LANDLORD'S RIGHT TO HAVE SUCH COUNTERCLAIM
DISMISSED, THE PARTIES STIPULATE THAT SHOULD THE COURT PERMIT TENANT TO MAINTAIN
THE COUNTERCLAIM, THE COUNTERCLAIM SHALL BE SEVERED AND TRIED SEPARATELY FROM
THE ACTION FOR POSSESSION PURSUANT TO RULE 1.270(b) OF THE FLORIDA RULES OF
CIVIL PROCEDURE OR OTHER SUMMARY PROCEDURES SET FORTH IN SECTION 51.011, FLORIDA
STATUTES (1993). THE WAIVERS SET FORTH IN THIS SECTION ARE MADE KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY BY TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED IN THE MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS
THESE WAIVERS WITH COUNSEL. THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD
IN AGREEING TO ENTER INTO THIS LEASE. In the event of any dispute hereunder, or
any default in the performance of any term or condition of this Lease, the
prevailing party in litigation shall be entitled to recover all costs and
expenses associated therewith, including reasonable attorneys' fees through all
appeals.
34. CONSENTS AND APPROVALS
If Tenant requests Landlord's consent or approval under this
Lease, and if in connection with such requests Landlord deems it necessary to
seek the advice of its attorneys, architects and/or other experts, then Tenant
shall pay the reasonable fee of Landlord's attorneys, architects and/or other
experts in connection with the consideration of such request and/or the
preparation of any documents pertaining thereto. Whenever under this Lease
Landlord's consent or approval is expressly or impliedly required, the same may
be arbitrarily withheld except as otherwise specified herein.
35. RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations attached
hereto as Exhibit "B" and incorporated herein by this reference, as reasonably
amended and supplemented from time to time by Landlord. Landlord will not be
liable to Tenant for violation of the same or any other act or omission by any
other tenant. Tenant shall also abide by all rules and regulations of the
community association referenced in Section 3 above.
36. SUCCESSORS AND ASSIGNS
This Lease will be binding upon and inure to the benefit of
the respective heirs, personal and legal representatives, successors and
permitted assigns of the parties hereto.
37. QUIET ENJOYMENT
In accordance with and subject to the terms and provisions of
this Lease, Landlord warrants that it has full right to execute and to perform
under this Lease and to grant the estate demised and that Tenant, upon Tenant's
payment of the required Rent and Additional Rent and performing of all of the
terms, conditions, covenants, and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises during the full Lease
Term.
38. ENTIRE AGREEMENT
This Lease, together with the BLI Rider, exhibits, schedules,
addenda and guaranties (as the case may be) fully incorporated into this Lease
by this reference, contains the entire agreement between the parties hereto
regarding the subject matters referenced herein and supersedes all prior oral
and written agreements between them regarding such matters. This Lease may be
modified only by an agreement in writing dated and signed by Landlord and Tenant
after the date hereof.
39. HAZARDOUS MATERIALS
A. REPRESENTATION. Tenant represents, warrants and covenants
that (1) the Premises will not be used for any dangerous, noxious or offensive
trade or business and that it will not cause or maintain a nuisance there, (2)
it will not bring, generate, treat, store, use or dispose of Hazardous
Substances at the Premises, (3) it shall at all times comply with all
Environmental Laws (as hereinafter
13
defined) and shall cause the Premises to comply, and (4) Tenant will keep the
Premises free of any lien imposed pursuant to any Environmental Laws.
Notwithstanding anything to the contrary in this Lease, Tenant shall have no
responsibility or liability with respect to Hazardous Substances not introduced
by Tenant or by any employee, agent or contractor of Tenant.
B. REPORTING REQUIREMENTS. Tenant warrants that it will
promptly deliver to the Landlord, (i) copies of any documents received from the
United States Environmental Protection Agency and/or any state, county or
municipal environmental or health agency concerning the Tenant's operations upon
the Premises; (ii) copies of any documents submitted by the Tenant to the United
States Environmental Protection Agency and/or any state, county or municipal
environmental or health agency concerning its operations on the Premises,
including but not limited to copies of permits, licenses, annual filings,
registration forms and, (iii) upon the request of Landlord, Tenant shall provide
Landlord with evidence of compliance with Environmental Laws.
C. TERMINATION, CANCELLATION, SURRENDER. At the expiration or
earlier termination of this Lease, Tenant shall surrender the Premises to
Landlord free of any and all Hazardous Substances and in compliance with all
Environmental Laws and to the complete satisfaction of Landlord. Landlord may
require, at Tenant's sole expense at the end of the term, a clean-site
certification, environmental audit or site assessment.
D. ACCESS AND INSPECTION. Landlord shall have the right but
not the obligation, at all times during the term of this Lease to (i) enter upon
and inspect the Premises, (ii) conduct tests and investigations and take samples
to determine whether Tenant is in compliance with the provisions of this
Article, and (ii) request lists of all Hazardous Substances used, stored or
located on the Premises; the cost of all such inspections, tests and
investigations to be borne by Tenant. Promptly upon the written request of
Landlord, from time to time, Tenant shall provide Landlord, at Tenant's expense,
with an environmental site assessment or environmental audit report prepared by
an environmental engineering firm acceptable to Landlord to assess with a
reasonable degree of certainty the presence or absence of any Hazardous
Substances and the potential costs in connection with abatement, cleanup, or
removal of any Hazardous Substances found on, under, at, or within the Premises.
Tenant will cooperate with Landlord and allow Landlord and Landlord's
representatives access to any and all parts of the Premises and to the records
of Tenant with respect to the Premises for environmental inspection purposes at
any time. In connection therewith, Tenant hereby agrees that Landlord or
Landlord's representatives may perform any testing upon or of the Premises that
Landlord deems reasonably necessary for the evaluation of environmental risks,
costs, or procedures, including soils or other sampling or coring.
E. VIOLATIONS - ENVIRONMENTAL DEFAULTS. Tenant shall give to
Landlord immediate verbal and follow-up written notice of any actual or
threatened spills, releases or discharges of Hazardous Substances on the
Premises, caused by the acts or omissions of Tenant or its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
Tenant covenants to promptly investigate, clean up and otherwise remediate any
spill, release or discharge of Hazardous Substances caused by the acts or
omissions of Tenant or its agents, employees, representatives, invitees,
licensees, subtenants, customers or contractors at Tenant's sole cost and
expense; such investigation, clean up and remediation to be performed in
accordance with all Environmental Laws and to the satisfaction of Landlord and
after Tenant has obtained Landlord's written consent. Tenant shall return the
Premises to the condition existing prior to the introduction of any such
Hazardous Substances.
(1) In the event of (1) a violation of an
Environmental Law, (2) a release, spill or discharge of a Hazardous Substance on
or from the Premises, or (3) the discovery of an environmental condition
requiring response which violation, release, or condition is attributable to the
acts or omissions of Tenant, its agents, employees, representatives, invitees,
licensees, subtenants, customers, or contractors, or (4) an emergency
environmental condition (collectively "Environmental Defaults"), Landlord shall
have the right, but not the obligation, to immediately enter the Premises, to
supervise and approve any actions taken by Tenant to address the violation,
release or environmental condition; and in the event Tenant fails to immediately
address such violation, release, or environmental condition, or if the Landlord
deems it necessary, then Landlord may perform, at Tenant's expense, any lawful
actions necessary to address the violation, release, or environmental condition.
(2) Landlord has the right, but not the obligation to
cure any Environmental Defaults, has the right to suspend some or all of the
operations of the Tenant until it has determined to its sole satisfaction that
appropriate measures have been taken, and has the right to terminate this Lease
upon the occurrence of an Environmental Default.
F. ADDITIONAL RENT. Any expenses, which the Landlord incurs,
which are to be at Tenant's expense pursuant to this Article, will be considered
Additional Rent under this Lease and shall be paid by Tenant on demand by
Landlord.
G. ASSIGNMENT AND SUBLETTING. Notwithstanding anything to the
contrary in this Lease, the Landlord may condition its approval of any
assignment or subletting by Tenant to an Assignee or Subtenant that in the sole
judgment of the Landlord does not create any additional environmental exposure.
H. INDEMNIFICATION. Tenant shall indemnify, defend (with
counsel approved by Landlord) and hold Landlord and Landlord's affiliates,
shareholders, directors, officers, employees and agents harmless from and
against any and all claims, judgments, damages (including consequential
damages), penalties, fines, liabilities, losses, suits, administrative
proceedings, costs and expenses of any kind or nature, known or unknown,
contingent or otherwise, which arise out of or in anyway related to the acts or
omissions of Tenant, its agents, employees, representatives, invitees,
licensees, subtenants, customers or contractors during or after the term of this
Lease (including, but not limited to, attorneys', consultant, laboratory and
expert fees expert fees and including without limitation, diminution in the
value of the Premises, damages for the loss or restriction on use of rentable or
usable space or of any amenity of the Premises and damages arising from any
adverse impact on marketing of space), arising from or related to the use,
presence, transportation, storage, disposal, spill, release or discharge of
hazardous Substances on or about the Premises.
I. DEFINITIONS.
(1) "Hazardous Substance" means, (i) asbestos and any
asbestos containing material and any substance that is then defined or listed
in, or otherwise classified pursuant to, any Environmental Laws or any
applicable laws or regulations as a "hazardous substance", "hazardous material",
"hazardous waste", "infectious waste", "toxic substance", "toxic pollutant" or
any other formulation intended to define, list, or classify substances by reason
of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic
Leaching Procedure (TCLP) toxicity, (ii) any petroleum and drilling fluids,
produced waters, and other wastes associated with the exploration, development
or production of crude oil, natural gas, or geothermal resources and (iii)
petroleum products, polychlorinated biphenyls, urea formaldehyde, radon gas,
radioactive material (including any source,
14
special nuclear, or by-product material), and medical waste.
(2) Environmental Laws" collectively means and
includes all present and future laws and any amendments (whether common law,
statute, rule, order, regulation or otherwise), permits, and other requirements
or guidelines of governmental authorities applicable to the Premises and
relating to the environment and environmental conditions or to any Hazardous
Substance (including, without limitation, CERCLA, 42 U.S.C.ss.9601, et. seq.;
the Resource Conservation and Recovery Act of 1976, 42 ▇.▇.▇.▇▇. 6901, et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C.ss.1801, et seq., the
Federal Water Pollution Control Act, 33 U.S.C.ss.1251, et seq., the Clean Air
Act, 33 U.S.C.ss.7401, et seq., the Clear Air Act, 42 U.S.C.ss.741, et seq., the
Toxic Substances Control Act, 15 ▇.▇.▇.▇▇. 2601-2629, the Safe Drinking Water
Act, 42 ▇.▇.▇.▇▇. 300f-300j, the Emergency Planning and Community Right-To-Know
Act, 42 ▇.▇.▇.▇▇. 1101, et seq., and any so-called "Super Fund" or "Super Lien"
law, any law requiring the filing of reports and notices relating to hazardous
substances, environmental laws administered by the Environmental Protection
Agency, and any similar state and local laws and regulations, all amendments
thereto and all regulations, orders, decisions, and decrees now or hereafter
promulgated thereunder concerning the environment, industrial hygiene or public
health or safety.)
J. RADON. RADON GAS: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risk to persons who are exposed to it over time.
Levels of radon that exceed Federal and State Guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit.
40. BANKRUPTCY PROVISIONS
A. EVENT OF BANKRUPTCY. If this Lease is assigned to any
person or entity pursuant to the provisions of the United States Bankruptcy
Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"), any and all monies
or other consideration payable or otherwise to be delivered in connection with
such assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord, and shall not constitute the property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and
all monies or other considerations constituting Landlord's property under this
Section not paid or delivered to Landlord shall be held in trust for the benefit
of Landlord and shall be promptly paid or delivered to Landlord. Any person or
entity to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed without further act or deed to have assumed all
of the obligations arising under this Lease on and after the date of such
assignment.
B. ADDITIONAL REMEDIES. In addition to any rights or remedies
hereinbefore or hereinafter conferred upon Landlord under the terms of this
Lease, the following remedies and provisions shall specifically apply in the
event Tenant is in default of this Lease:
(1) In all events, any receiver or trustee in
bankruptcy shall either expressly assume or reject this Lease within sixty (60)
days following the entry of an "Order for Relief" or within such earlier time as
may be provided by applicable law.
(2) In the event of an assumption of this Lease by a
debtor or by a trustee, such debtor or trustee shall within fifteen (15) days
after such assumption (i) cure any default or provide adequate assurance that
defaults will be promptly cured; (ii) compensate Landlord for actual pecuniary
loss or provide adequate assurance that compensation will be made for actual
monetary loss, including, but not limited to, all attorneys' fees and costs
incurred by Landlord resulting from any such proceedings; and (iii) provide
adequate assurance of future performance.
(3) Where a default exists under this Lease, the
trustee or debtor assuming this Lease may not require Landlord to provide
services or supplies incidental to this Lease before its assumption by such
trustee or debtor, unless Landlord is compensated under the terms of this Lease
for such services and supplies provided before the assumption of such Lease.
(4) The debtor or trustee may only assign this Lease
if (i) it is assumed and the assignee agrees to be bound by this Lease, (ii)
adequate assurance of future performance by the assignee is provided, whether or
not there has been a default under this Lease, and (iii) the debtor or trustee
has received Landlord's prior written consent pursuant to the provisions of this
Lease. Any consideration paid by any assignee in excess of the rental reserved
in this Lease shall be the sole property of, and paid to, Landlord.
(5) Landlord shall be entitled to the fair market
value for the Premises and the services provided by Landlord (but in no event
less than the rental reserved in this Lease) subsequent to the commencement of a
bankruptcy event.
(6) Any security deposit given by Tenant to Landlord
to secure the future performance by Tenant of all or any of the terms and
conditions of this Lease shall be automatically transferred to Landlord upon the
entry of an "Order of Relief".
(7) The parties agree that Landlord is entitled to
adequate assurance of future performance of the terms and provisions of this
Lease in the event of an assignment under the provisions of the Bankruptcy Code.
For purposes of any such assumption or assignment of this Lease, the parties
agree that the term "adequate assurance" shall include, without limitation, at
least the following: (i) any proposed assignee must have, as demonstrated to
Landlord's satisfaction, a net worth (as defined in accordance with generally
accepted accounting principles consistently applied) in an amount sufficient to
assure that the proposed assignee will have the resources to meet the financial
responsibilities under this Lease, including the payment of all Rent; the
financial condition and resources of Tenant are material inducements to Landlord
entering into this Lease; (ii) any proposed assignee must have engaged in the
permitted use described in the BLI Rider for at least five (5) years prior to
any such proposed assignment, the parties hereby acknowledging that in entering
into this Lease, Landlord considered extensively Tenant's permitted use and
determined that such permitted business would add substantially to the tenant
balance in the Building, and were it not for Tenant's agreement to operate only
Tenant's permitted business on the Premises, Landlord would not have entered
into this Lease, and that Landlord's operation of the Building will be
materially impaired if a trustee in bankruptcy or any assignee of this Lease
operates any business other than Tenant's permitted business; (iii) any
assumption of this Lease by a proposed assignee shall not adversely affect
Landlord's relationship with any of the remaining tenants in the Building taking
into consideration any and all other "use" clauses and/or
15
"exclusivity" clauses which may then exist under their leases with Landlord; and
(iv) any proposed assignee must not be engaged in any business or activity which
it will conduct on the Premises and which will subject the Premises to
contamination by any Hazardous Materials.
41. MISCELLANEOUS
A. If any term or condition of this Lease or the application
thereof to any person or circumstance is, to any extent, invalid or
unenforceable, the remainder of this Lease, or the application of such term or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, is not to be affected thereby and each term and
condition of this Lease is to be valid and enforceable to the fullest extent
permitted by law. This Lease will be construed in accordance with the laws of
the State of Florida.
B. Submission of this Lease to Tenant does not constitute an
offer, and this Lease becomes effective only upon execution and delivery by both
Landlord and Tenant.
C. Tenant acknowledges that it has not relied upon any
statement, representation, prior or contemporaneous written or oral promises,
agreements or warranties, except such as are expressed herein.
D. Tenant will pay before delinquency all taxes assessed
during the Lease Term against any occupancy interest in the Premises or personal
property of any kind owned by or placed in, upon or about the Premises by
Tenant.
E. Each party represents and warrants that it has not dealt
with any agent or broker in connection with this transaction except for the
agents or brokers specifically set forth in the BLI Rider with respect to each
Landlord and Tenant. If either party's representation and warranty proves to be
untrue, such party will indemnify the other party against all resulting
liabilities, costs, expenses, claims, demands and causes of action, including
reasonable attorneys' fees and costs through all appellate actions and
proceedings, if any. The foregoing will survive the end of the Lease Term.
F. Neither this Lease nor any memorandum hereof will be
recorded by Tenant.
G. Nothing contained in this Lease shall be deemed by the
parties hereto or by any third party to create the relationship of principal and
agent, partnership, joint venturer or any association between Landlord and
Tenant, it being expressly understood and agreed that neither the method of
computation of Rent nor any other provisions contained in this Lease nor any act
of the parties hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and tenant.
H. Whenever in this Lease the context allows, the word
"including" will be deemed to mean "including without limitation". The headings
of articles, sections or paragraphs are for convenience only and shall not be
relevant for purposes of interpretation of the provisions of this Lease.
I. This Lease does not create, nor will Tenant have, any
express or implied easement for or other rights to air, light or view over or
about the Building or any part thereof.
J. Any acts to be performed by Landlord under or in connection
with this Lease may be delegated by Landlord to its managing agent or other
authorized person or firm.
K. It is acknowledged that each of the parties hereto has been
fully represented by legal counsel and that each of such legal counsel has
contributed substantially to the content of this Lease. Accordingly, this Lease
shall not be more strictly construed against either party hereto by reason of
the fact that one party may have drafted or prepared any or all of the terms and
provisions hereof.
L. Landlord has made no inquiries about and makes no
representations (express or implied) concerning whether Tenant's proposed use of
the Premises is permitted under applicable law, including applicable zoning law;
should Tenant's proposed use be prohibited, Tenant shall be obligated to comply
with applicable law and this Lease shall nevertheless remain in full force and
effect.
M. Notwithstanding anything to the contrary in this Lease, 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 Landlord's
control include, but are not limited to, hurricanes and floods and other acts of
God, war, civil commotion, labor disputes, strikes, fire, flood or other
casualty, shortages of labor or material, government regulation or restriction
and weather conditions.
N. Tenant agrees to pay, before delinquency, all taxes
assessed during the Lease Term agreement (i) all personal property, trade
fixtures, and improvements located in or upon the Premises and (ii) any
occupancy interest of Tenant in the Premises.
O. At the request of Landlord, Tenant shall, not later than
ninety (90) days following the close of each fiscal year of Tenant during the
Term, furnish to Landlord a balance sheet of Tenant as of the end of such fiscal
year and a statement of income and expense for the fiscal year then ended,
together with an opinion of an independent certified public accountant of
recognized standing to the effect that said financial statements have been
prepared in conformity with generally accepted accounting principles
consistently applied, and fairly present the financial condition and results of
operations of Tenant as of and for the periods covered.
16
EXHIBIT "A"
LEGAL DESCRIPTION
A PORTION OF PARCEL "A", "▇▇▇▇ ▇▇▇▇ SQUARE", ACCORDING TO THE PLAT THEREOF, AS
RECORDED IN PLAT BOOK 132, PAGE 3 OF THE PUBLIC RECORDS OF BROWARD COUNTY,
FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF SAID PARCEL "A";
THENCE NORTH 00(degree)11'23" WEST ALONG THE EAST LINE OF SAID PARCEL
"A", A DISTANCE OF 25.52 FEET;
THENCE SOUTH 90(degree)00'00" WEST, A DISTANCE OF 215.04 FEET TO THE
POINT OF BEGINNING;
THENCE CONTINUE SOUTH 90(degree)00'00" WEST, A DISTANCE OF 87.75 FEET;
THENCE NORTH 00(degree)00'00" EAST, A DISTANCE OF 69.72 FEET;
THENCE NORTH 90(degree)00'00" EAST, A DISTANCE OF 87.75 FEET;
THENCE SOUTH 00(degree)00'00" WEST, A DISTANCE OF 69.72 FEET TO THE
POINT OF BEGINNING.
TOGETHER WITH:
A PORTION OF PARCEL "A", "▇▇▇▇ ▇▇▇▇ SQUARE", ACCORDING TO THE PLAT
THEREOF, AS RECORDED IN PLAT BOOK 132, PAGE 3 OF THE PUBLIC RECORDS OF
BROWARD COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF SAID PARCEL "A";
THENCE NORTH 00(degree)11'23" WEST ALONG THE EAST LINE OF SAID PARCEL
"A", A DISTANCE OF 25.52 FEET;
THENCE SOUTH 90(degree)00'00" WEST, A DISTANCE OF 302.79 FEET TO THE
POINT OF BEGINNING;
THENCE CONTINUE SOUTH 90(degree)00'00" WEST, A DISTANCE OF 88.33 FEET;
THENCE NORTH 00(degree)00'00" EAST, A DISTANCE OF 69.72 FEET;
THENCE NORTH 90(degree)00'00" EAST, A DISTANCE OF 88.33 FEET;
THENCE SOUTH 00(degree)00'00" WEST, A DISTANCE OF 69.72 FEET TO THE
POINT OF BEGINNING.
17
EXHIBIT "B"
RULES AND REGULATIONS
1. NO AWNINGS OR OTHER PROJECTIONS SHALL BE ATTACHED TO THE OUTSIDE WALLS OF
THE BUILDING WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD. NO CURTAINS,
BLINDS, SHADES, OR SCREENS SHALL BE ATTACHED TO OR HUNG IN, OR USED IN
CONNECTION WITH, ANY WINDOW OR DOOR OF THE PREMISES, WITHOUT THE PRIOR
WRITTEN CONSENT OF LANDLORD. SUCH AWNINGS, PROJECTIONS, CURTAINS, BLINDS,
SHADES, SCREENS OR OTHER FIXTURES MUST BE OF A QUALITY, TYPE, DESIGN, AND
COLOR, AND ATTACHED IN THE MANNER APPROVED BY LANDLORD. NOTWITHSTANDING THE
FOREGOING, SUBJECT TO COMPLIANCE WITH APPLICABLE LAWS AS WELL AS RULES AND
REGULATIONS OF THE COMMUNITY ASSOCIATION REFERENCED IN SECTION 3 ABOVE,
TENANT SHALL BE ENTITLED TO AFFIX ITS IDENTIFICATION SIGNAGE ON ANY
MONUMENT SIGN THAT MAY BE INSTALLED IN THE BUILDING.
2. NO SIGN, ADVERTISEMENT, NOTICE OR OTHER LETTERING SHALL BE EXHIBITED,
INSCRIBED, PAINTED OR AFFIXED BY TENANT ON ANY PART OF THE OUTSIDE OF THE
PREMISES OR BUILDING OR ON THE INSIDE OF THE PREMISES IF THE SAME CAN BE
SEEN FROM THE OUTSIDE OF THE PREMISES WITHOUT THE PRIOR WRITTEN CONSENT OF
LANDLORD EXCEPT THAT THE NAME OF TENANT MAY APPEAR ON THE ENTRANCE DOOR OF
THE PREMISES
3. TENANT SHALL NOT OCCUPY OR PERMIT ANY PORTION OF THE PREMISES DEMISED TO IT
TO BE OCCUPIED AS AN OFFICE FOR A PUBLIC STENOGRAPHER OR TYPIST, OR AS A
▇▇▇▇▇▇ OR MANICURE SHOP. TENANT SHALL NOT ENGAGE OR PAY ANY EMPLOYEES ON
THE PREMISES, EXCEPT THOSE ACTUALLY WORKING FOR TENANT AT THE PREMISES, NOR
ADVERTISE FOR LABOR GIVING AN ADDRESS AT THE PREMISES. THE PREMISES SHALL
NOT BE USED FOR GAMBLING, LODGING, OR SLEEPING OR FOR ANY IMMORAL OR
ILLEGAL PURPOSES. THE PREMISES SHALL NOT BE USED FOR THE MANUFACTURE,
STORAGE, OR SALE OF MERCHANDISE, GOODS OR PROPERTY OF ANY KIND WHATSOEVER.
4. THE WATER AND WASH CLOSETS AND OTHER PLUMBING FIXTURES SHALL NOT BE USED
FOR ANY PURPOSES OTHER THAN THOSE FOR WHICH THEY WERE CONSTRUCTED AND NO
SWEEPINGS, RUBBISH, RAGS, OR OTHER SUBSTANCES SHALL BE THROWN THEREIN. ALL
DAMAGES RESULTING FROM ANY MISUSE OF THE FIXTURES BY TENANT, ITS SERVANTS,
EMPLOYEES, AGENTS, OR LICENSEES SHALL BE BORNE BY TENANT.
5. LANDLORD SHALL HAVE THE RIGHT TO RETAIN A PASSKEY AND TO ENTER THE PREMISES
AT ANY TIME, TO EXAMINE SAME OR TO MAKE SUCH ALTERATIONS AND REPAIRS AS MAY
BE DEEMED NECESSARY, OR TO EXHIBIT SAME TO PROSPECTIVE TENANTS DURING
NORMAL BUSINESS HOURS.
6. NO ADDITIONAL LOCKS OR BOLTS OF ANY KIND SHALL BE PLACED UPON ANY OF THE
DOORS OR WINDOWS BY TENANT, NOR SHALL ANY CHANGES BE MADE IN EXISTING LOCKS
OR THE MECHANISM THEREOF. TENANT MUST, UPON THE TERMINATION OF ITS TENANCY
RESTORE TO THE LANDLORD ALL KEYS OF OFFICES AND TOILET ROOMS, EITHER
FURNISHED TO, OR OTHERWISE PROCURED BY, TENANT. TENANT SHALL PAY TO THE
LANDLORD THE COST OF ANY LOST KEYS.
7. LANDLORD WILL NOT BE RESPONSIBLE FOR LOST, STOLEN, OR DAMAGED PROPERTY,
EQUIPMENT, MONEY, OR JEWELRY.
8. LANDLORD RESERVES THE RIGHT TO MAKE SUCH OTHER AND FURTHER REASONABLE RULES
AND REGULATIONS AS IN ITS JUDGMENT MAY FROM TIME TO TIME BE NEEDED FOR THE
SAFETY, CARE AND CLEANLINESS OF THE PREMISES, AND FOR THE PRESERVATION OF
GOOD ORDER THEREIN AND ANY SUCH OTHER OR FURTHER RULES AND REGULATIONS
SHALL BE BINDING UPON THE PARTIES HERETO WITH THE SAME FORCE AND EFFECT AS
IF THEY HAD BEEN INSERTED HEREIN AT THE TIME OF THE EXECUTION HEREOF.
18
EXHIBIT "C"
ACCEPTANCE OF PREMISES MEMORANDUM
This Acceptance of Premises Memorandum is being executed pursuant to
that certain Office Lease dated the day of , 2002, between B & B Lakeview Realty
Corp. as Landlord, and DriverShield Corp., as Tenant, pursuant to which Landlord
leased to Tenant and Tenant leased from Landlord certain space more particularly
described in the Lease. Unless specified otherwise herein, all capitalized terms
used herein shall have the meanings assigned to them in the Lease. Landlord and
Tenant hereby agree that:
1. Except for the "Punch List Items" (herein so called, as shown on the
attached Punch List, if any) Landlord's Work (if any) required under the terms
of the Lease and the Work Letter attached thereto has been fully completed.
2. Tenant hereby acknowledges that the Premises are tenantable and that
Landlord has no further obligation for construction with respect to the Premises
, and Tenant further hereby acknowledges that the Building and the Premises are
satisfactory in all respects, except for the Punch List Items, and are suitable
for the Permitted Use as set forth in the Lease.
3. The Commencement Date of the Lease is hereby acknowledged and agreed
to be _____________________ .
4. Tenant acknowledges receipt of the current Rules and Regulations for
the Building, which current Rules and Regulations are attached as an exhibit to
the Lease.
Agreed and Executed this ______ day of _________________, 2002.
LANDLORD:
B & B Lakeview Realty Corp.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
TENANT:
DriverShield Corp.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
19