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EXHIBIT 10(aa)(1)
▇▇▇▇▇▇▇ COMMONS BUSINESS PARK NET LEASE
1. Parties.
THIS LEASE, dated, for reference purposes only, September 27,
1991, is made between ▇▇▇▇▇▇▇▇ METALS DEVELOPMENT COMPANY, a Delaware
corporation ("Landlord") and LIFECARE INVESTMENTS, INC. a Delaware corporation
("Tenant").
2. Premises.
Landlord hereby leases to the Tenant and Tenant leases from
Landlord for the term, at the rental, and upon all of the conditions set forth
herein, that certain real property situated in the County of Broward, State of
Florida, commonly known as Building C of ▇▇▇▇▇▇▇ Commons Business park, ▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as indicated on Exhibit "A"
attached hereto and by reference made a part hereof (the "Premises").
3. Term.
3.1 Term. The term of this Lease is twenty (20) years
commencing on the date on which a certificate of occupancy for any portion of
the Premises is issued (the "Commencement Date") and ending at midnight, twenty
(20) years thereafter, unless sooner terminated pursuant to any provision
hereof.
3.2 Delay in Completion of Improvements. Landlord will take
all steps reasonably necessary in order to ensure that the Improvements, as that
term is hereinafter defined, are completed no later than , 1991; however, if the
completion of the Improvements shall be delayed due to (a) any act or omission
of the Tenant or any of its employees, agents or contractors (including, but not
limited to (i) any delays due to changes in or additions to the Improvements, or
(ii) any delays by Tenant in the submission of plans, drawings, specification,
or other information or in approving drawings or in giving any authorizations or
approvals); (b) any delays beyond control of Landlord including, but not limited
to, strikes, lockouts, civil commotion, warlike conditions, invasion, rebellion,
hostility, inclement weather, inability to obtain material or services and acts
of God; or (c) any delays caused by governmental regulations or controls,
Landlord shall not be subject to any liability therefore, nor shall such failure
affect the validity of the Lese or the obligations of Tenant hereunder, but in
such case, Tenant shall not be obligated to pay rent until possession of the
Premises is tendered to Tenant.
3.3 Early Possession. If Tenant occupies the Premises prior to
the Commencement Date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Tenant shall pay rent
for such period at the initial monthly rates set forth below.
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4. Rent/Security Deposit.
4.1 Rent.
(a) Tenant shall pay to Landlord annual rent for
the Premises in the amounts set forth below under the heading "Annual Rent." As
long as Tenant is not in default hereunder, rent may be paid in equal monthly
installments in the amounts set forth below under the heading "Monthly Rent,"
as adjusted by Subsection 4.1(b), in advance, on the tenth day of each month of
each Lease Year, as herein defined, during the term hereof. Rent shall be
prorated if the term does not commence on the first day of a calendar month or
expire on the last day of a calendar month. Rent shall be paid to ▇▇▇▇▇▇▇▇
Metals Development Company, ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
Term Annual Rent Monthly Rent
---- ----------- ------------
First twelve months $ 99,698.75 $8,308.23
Second twelve months $103,941.25 $8,661.77
(b) The term "Lease Year", as used herein, (i)
shall mean the twelve (12) month period beginning with the Commencement Date as
defined in Section 3.1 hereof, and each twelve (12) month period thereafter
occurring during the term of this Lease, and (ii) in the event the Lease expires
or terminates on a date other than the date set forth herein, then the term
"Lease Year" shall also mean the period from the end of the preceding Lease Year
to the date of said expiration or termination of this Lease. Landlord and Tenant
agree that subsequent to the end of each and every Lease Year the Monthly Rent,
or Adjusted monthly Rent, as herein defined, if applicable, which was payable
for the immediately preceding Lease Year shall be adjusted for payment during
the current Lease Year by an amount equal to the product of (i) the Monthly Rent
or adjusted Monthly Rent, if applicable, for the immediately preceding Lease
Year multiplied by (ii) the difference expressed as a percentage between the
Consumer Price Index, as herein below defined, published for the last month of
the immediately preceding Lease year and the Consumer Price Index for the
corresponding month one year prior thereto (i.e., the percentage change in said
Index over said year); provide, however, that such new Monthly rent shall in no
event be less than the Monthly Rent, or Adjusted Monthly Rent for the preceding
year. The monthly rental payment so adjusted by the Consumer Price Index shall
become the adjusted monthly rent (the "Adjusted Monthly Rent"). The initial
annual adjustment shall be computed based on the Monthly Rent and the next
annual adjustment shall be computed based on the Adjusted Monthly Rent with each
annual adjustment thereafter based on the Adjusted Monthly Rent for the
immediately proceeding year. As soon as practicable after the end of each Lese
Year, Landlord shall prepare and submit to Tenant a statement (the "Statement")
reflecting the Adjusted Monthly Rent which shall be paid commencing with the
next monthly installment of Rent and shall remain in effect until the next
annual adjustment is made. In addition, within twenty (20) days following
receipt of Landlord's Statement, Tenant shall pay to Landlord a sum equal to the
difference between the amount of monthly rental payments Tenant has paid
Landlord since the start of the current Lease Year, if any, and an amount
computed as follows: 1/12th of the total Adjusted Monthly Rent for the entire
current Lease Year multiplied by the
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number of months which have fully or partially expired between the first day of
the current lease year and the date of the first payment of the Adjusted Monthly
Rent to be made subsequent to the date of the Statement.
Any Statement sent by Landlord to Tenant shall be
conclusively binding upon Tenant unless, within thirty (30) days after such
Statement is sent, Tenant shall send a written notice to Landlord objecting to
such Statement and specifying the respects in which such Statement is claimed to
be incorrect. If such notice is sent and the parties are unable to revolve the
issues, either party hereto may refer the matter to a reputable independent firm
of certified accountants selected by Landlord, and the decision of said
accountants shall be conclusively binding upon said parties. The fees and
expenses of the accountants shall be borne by the unsuccessful party unless both
parties are unsuccessful, then said expenses shall be apportioned between the
parties by the accountants based upon the degree of success of each party.
The term "Consumer Price Index," as used herein,
shall be the Consumer Price Index for All Urban Consumers based upon the U.S.
City Average (All Items Included, 1982-94 = 100) published by the Bureau of
Labor Statistics of the United States Department of Labor. If the Consumer Price
Index shall hereafter be converted to a different standard reference base or
otherwise revised, the determination of the percentage increase in the Consumer
Price Index shall be made with the use of such conversion factor, formula or
table for converting the Consumer Price Index as may be published by the Bureau
of Labor Statistics or, if said Bureau shall not publish the same, then with the
use of such conversion factor, formula or table as may be published by Prentice
Hall, Inc., or, failing such publication, by any other nationally recognized
publisher of statistical information. If the consumer Price Index shall become
unavailable to the public because publication is discontinued, or otherwise,
Landlord will substitute therefor a comparable index based upon changes in the
cost of living or purchasing power of the consumer dollar published by any other
governmental agency, or, if no such index shall be then available, a comparable
index published by a major bank or other financial institution or by a
university or a recognized financial publication, and the substituted index
shall be deemed the Consumer Price Index for the purposes of this Section.
(c) Tenant agrees that any adjustments to the base
monthly Rent and other sums due Landlord from Tenant under the tomboys of this
Lease shall be considered as additional rent from Tenant (the "Additional
Rent"). As used herein the term "Rent" shall include the Monthly Rent, Adjusted
Monthly Rent, Additional Rent and such other payments as are set forth herein.
(d) It is understood and agreed that Tenant's
obligation to pay the Additional Rent shall, for the purposes of the default
provision hereof, entitle Landlord to all remedies provided herein and at law or
equity on account of Tenant's failure to pay rent.
(e) In no event shall any adjustments made pursuant
to Section 4.1(b) result in the Landlord receiving an amount less than the
Monthly Rent or Adjusted Monthly Rent,if applicable for the immediately
preceding Lease Year.
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(f) Any delay or failure of Landlord in computing
or billing for Additional Rent shall not constitute a waiver or in any way
impair the continuing obligation of the Tenant to pay such Additional Rent.
4.2 Security Deposit. Tenant shall deposit with Landlord on
the Commencement Date $8,308.23 as security for Tenant's faithful performance of
Tenant's obligations hereunder (the "Security Deposit"). If Tenant fails to pay
rent or other charges due hereunder, or otherwise defaults with respect to any
provision of this Lease, Landlord may use, apply or retain all or any portion of
the Security Deposit for the payment of any rent or other charge in default or
for the payment of any sum to which Landlord may become obligated by reason of
Tenant's default, or to compensate Landlord for any loss or damage which
Landlord may suffer thereby. If Landlord so uses or applies all or any portion
of the Security deposit, Tenant shall within fifteen (15) days after written
demand therefore, deposit cause with Landlord in an amount sufficient to restore
the Security Deposit to the full amount hereinabove stated and Tenant's failure
to do so shall be a material breach of this Lease. Landlord shall not be
required to keep said deposit separate from its general accounts. If Tenant
performs all of Tenant's obligations hereunder, the Security Deposit, or so much
thereof as has not theretofore been applied by Landlord, shall be returned
without payment of interest or other increment for its use to Tenant (or, at
Landlord's option, to the last assignee, if any, of Tenant's interest hereunder)
at the expiration of the term hereof, and after Tenant has vacated the Premises.
No trust relationship is created herein between Landlord and Tenant with respect
to the Security Deposit.
5. Use.
5.1 Use. The Premises shall be used by Tenant for offices and
for no other purposes, and Tenant further agrees to use the entire Premises as
herein above provided. Tenant agrees not to store any material, waste or other
products outside the Premises in any adjoining area. Tenant further agrees that
it will not store or dispose of hazardous materials in or about the Premises.
For the purposes of this Lease, "hazardous materials" includes any hazardous,
toxic or dangerous waste, substance or material defined as such in (or for
purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act, any so-called "superfund" of "superlien" law, or any other
federal, state or local statute, law ordinance, code,rule, regulation, consent
agreement or other requirement of any governmental authority regulating,
relating to, or imposing liability or standards of conduct concerning, any
hazardous or toxic or dangerous waste. Tenant shall defend, indemnify and save
Landlord harmless from all costs and expenses (including consequential damages)
asserted or proven against Landlord by any party as result of Tenant's use,
storage or disposal of hazardous materials (as defined above) on the Premises.
The foregoing indemnity shall be a recourse obligation of Tenant which shall
survive termination or expiration of this Lease. In the event that any activity
of the Tenant causes an increase in the insurance rate on the building
containing the Premises as a whole, then Tenant shall pay this additional cost
of insurance as assessed by Landlord's insurer, which determination shall be
conclusive and binding upon Tenant.
5.2 Compliance with Law. Tenant shall, at Tenant's expense,
comply promptly with all applicable statutes, ordinances, rules, regulations,
orders, permits, covenants and restrictions of record, and requirements in
effect during the term or any part of their term
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hereof, regulating the use or condition of the Premises, including but not
limited to, environmental matters and employee health and safety. Tenant shall
not use nor permit the use of the Premises in any manner that will tend to
create waste or a nuisance or, if there shall be more than one tenant in the
building containing the Premises, shall tend to disturb such tenants.
5.3 Condition of Premises. Tenant hereby accepts the Premises
in their condition existing as of the Commencement Date of the Lease, subject to
all applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use and condition of the Premises and
any covenants or restrictions of record, and accepts this Lease subject thereto
and to all matters disclosed thereby. Tenant acknowledges that neither Landlord
nor Landlord's agent has made any representation or warranty as to the present
or future suitability of the Premises for the conduct of Tenant's business.
5.4 Common Areas. All areas and facilities that Landlord shall
from time to time designate as being for the mutual use of Tenant, its
customers, employees and other tenants, including but not limited to all parking
areas, sidewalks, driveways, roads and landscaped areas located in the business
park of which the Premises are a part, shall be known as the "Common Areas".
Tenant and its employees, customers and invites shall have the non-exclusive
right to use Common Areas together with Landlord and the other tenants of the
park, their customers, employees and guests and, subject to such reasonable
rules and regulations governing the use of the Common Areas as Landlord may from
time to time prescribe, such rules specifically to include but are not limited
to parking rules. Tenant shall not use the Common Areas for storage without the
prior written consent of Landlord or take any action which would interfere with
the rights of other persons to use the Common Areas. Landlord may temporarily
close any part of the Common Areas for such period of time as is reasonably
necessary to make repairs or alterations to the Common Areas.
6. Maintenance, Repairs and Alterations.
6.1 Tenant's Obligations.
(a) Tenant, at Tenant's expense, shall keep in good
order, condition and repair the nonstructural portions of the Premises and every
part thereof, including by way of illustration, all plumbing, heating, air
conditioning, ventilation, electrical and lighting facilities and equipment
located within the Premises, interior surfaces of exterior walls (including but
not limited to damage to such surfaces caused by etching or staining from
spilled or leaked materials), ceilings, windows, doors and plate glass and
Tenant's signs located on or about the Premises. Tenant shall be obligated to
make the repairs required hereunder whether or not such portion of the 'Premises
requiring repair, or the means of repairing the same are reasonably or readily
accessible to Tenant, and whether or not the need for such repairs occurs as a
result of Tenant's use, any prior use, th elements, or the age of such portion
of the Premises. All glass, both interior and exterior, is the sole risk of
Tenant and Tenant agrees to replace at Tenant's own expense any glass broken
during the term of this Lease and Tenant agrees to insure and to keep insured
all plate glass in the Premises and to furnish the Landlord with certification
of said insurance. In the event replacement is necessary, Tenant agrees to use
such insurance for the replacement of any broken glass. The term "repair" shall
be deemed to include replacements. In
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addition to Tenant's obligations set forth herein, Tenant shall, at its expense,
repair and replace any and all portions of the Premises, structural and
onstructural, or any landscaping, damaged by Tenant's acts of omissions or the
acts or omissions of Tenant's employees, agents, contractors or any others for
whom Tenant may be responsible.
(b) If Tenant fails to perform Tenant's obligations
under this Section 6.1 within a reasonable time after receipt of written notice
of the need for such repairs, Landlord may at Landlord's option enter upon the
Premises (except in the case of emergency, in which case no notice shall be
required), perform such obligations on Tenant's behalf and put the Premises in
good order, condition and repair, and the cost thereof shall be due and payable
as additional rent to Landlord, together with Tenant's next rental installment.
(c) On the last day of the term thereof, or on any
sooner termination, Tenant shall surrender the Premises to Landlord in the same
condition as received, ordinary wear and tear excepted, and the Premises shall
be delivered to Landlord clean, uncontaminated and free of debris. Tenant shall
remove its trade fixtures, furnishings and equipment from the Premises and shall
repair any damage to the Premises occasioned by the installation or removal of
its trade fixtures, furnishings and equipment.
6.2 Landlord's Obligations. Landlord, at Landlord's
expense,shall keep in good order, condition and repair, all of the structural
portions of the Premises, including, without limiting the generality of the
foregoing, the roof, the exterior walls and the foundation of the Premises.
Landlord shall repair and replace if necessary any latent or other defects in
the Premises which arose during, or which are attributable to, construction of
the Premises; and Landlord shall maintain the Common Areas as described in
Section 5.4. Landlord shall have no obligation to make repairs under this
Subsection 6.2 until a reasonable time after receipt of written notice of the
need for such repairs.
6.3 Common Area Maintenance.
(a) Each month, Tenant shall pay to Landlord, in
addition to the rent due on the Premises, Tenant's Share (defined below) of the
cost of Common Area maintenance for the Premises or the business park of which
the Premises are a part. Common Area maintenance costs shall include all
expenses reasonably incurred and paid by Landlord in operating, managing and
maintaining the Common Areas of the Premises or the business park of which the
Premises are a part, including, without limiting the generality of the
foregoing, painting and cleaning of paved and unpaved surfaces, lighting,
landscaping, signage, trash collection and other similar items.
(b) Tenant's Share" shall be a fraction, the
numerator of which shall be Tenant's leased space in the building comprising a
portion of the Premises (8,485 square feet) and the denominator of which shall
be the total leasable space in the buildings in the business park of which the
Premises are a part (33,940 square feet) or twenty-five percent (25%).
(c) During the First Lease Year, the Tenant's Share
of Common area Maintenance and Real Property Tax, as the term is defined in
Subsection 10.2 of this Lease, shall
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be $2.00 per square foot of leased space in the building (8,485 square
feet) comprising a portion of the Premises, which sum shall be adjusted annually
pursuant to this Subsection 6.3(c). Landlord shall prepare and submit to Tenant
a statement reflecting the Common Area expenses incurred during the prior year
and the projected Common Area expenses expected to be incurred during the
subsequent year, at which time the monthly amount to be paid by Tenant hereunder
shall be adjusted accordingly in order to pay any deficiency for the previous
year together with any increase or decrease in the projected Common Area
expenses expected to be incurred during the subsequent year over that which was
expected to be incurred during the prior year.
(d) Landlord, at Landlord's option or upon Tenant's
request, ▇▇▇ provide Tenant with a monthly written statement of Tenant's Share
of the Common area Maintenance costs.
6.4 Alterations and Additions.
(a) Tenant shall not make any alterations,
improvements or additions in, on or about the Premises without Landlord's prior
written consent, which consent shall not be unreasonably withheld.
(b) Any alterations, improvements or additions in
the Premises that Tenant shall desire to make shall be presented to Landlord in
written form with proposed detailed plans prepared by a professional architect
or engineer. If Landlord shall give its consent, the consent shall be deemed
conditioned upon Tenant acquiring a permit to do so from appropriate
governmental agencies, if required, furnishing a copy thereof to Landlord prior
to the commencement of the work and complying with all conditions of said permit
in a prompt and expeditious manner.
(c) Tenant shall pay, when due, all claims for
labor or materials furnished to or for Tenant at or for use in the Premises,
which claims are or may be secured by any mechanics' or materialmen's lien
against the Premises or any interest therein. Tenant shall give Landlord not
less than ten (10) days' notice prior to the commencement of any such work in
the Premise and Landlord shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Tenant shall, in
good faith, contest the validity of any such lien, claim or demand, then Tenant
shall, at is sole expense,defend itself and Landlord against the same and shall
pay and satisfy any such adverse judgement that my be rendered thereon before
the enforcement thereof against the Landlord or the Premises. Landlord may, at
its option, require Tenant to furnish to Landlord a surety bond satisfactory to
Landlord in an amount equal to 125% of the amount of such contested lien, claim
or demand indemnifying Landlord against liability for the same and holding the
Premises free from the effect of such lien or claim.
(d) Unless Landlord requires their removal, all
alterations, improvements and additions which may be made on the Premises shall
become the property of Landlord and remain upon and be surrendered with the
Premises at the expiration of the term. Notwithstanding the provisions of this
Section 6.4, Tenant's machinery and equipment, other than that which is affixed
to the Premises so that it cannot be removed without material damage
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to the Premises, shall remain the property of Tenant and may be removed by
Tenant subject to the provisions of Subsection 6. (c).
7. Insurance; Indemnity.
7.1 Liability Insurance. Tenant shall, at Tenant's
expense,obtain and keep in force during the term of this Lease, comprehensive
general liability insurance with a combined single limit of not less than
$1,000,000.00 per occurrence for bodily injury and property damage insuring both
Landlord and Tenant against liability arising out of Tenant's use, occupancy and
maintenance of the Premises and all other area appurtenant thereto. Tenant shall
deliver to Landlord a certificate of insurance required under this Subsection,
which policy shall expressly name Landlord as an insured. No such policy shall
be cancelable or subject to reduction in coverage except after thirty (30) days'
prior written notice to Landlord.
7.2 Property Insurance. Landlord agrees that it will keep in
force during the term of this Lease insurance covering loss or damage to the
Premises (but not to Tenant's trade fixtures, furnishings, personal property or
improvements) providing protection against all perils included within the
classification of fire, lightning and extended coverage. Tenant shall pay the
cost of such insurance.
7.3 Waiver of Subrogation. Insofar as the following provision
may be effective without invalidating insurance coverage, Tenant and Landlord
each hereby release and relieve the other, and waive their entire right of
recovery against the other for loss or damage arising out of or incident to the
perils insured against under this Section 7, which perils occur in, on or about
the Premises, whether due to the negligence of Landlord or Tenant or their
agents, employees, contractors and/or invitees, but only to the extent that such
loss or damage is actually covered by insurance, and only to the extent that the
insured party has received proceeds of insurance therefore.
7.4 Indemnity. Tenant agrees to pay, and to defend, indemnify
and save harmless Landlord from and against any and all liabilities, losses,
damages, costs, expenses (including reasonable attorneys fees) in connection
with any injury to, or the death of, any person in, on or about the Premises or
any damage to or loss of property on the Premises, except any such liabilities,
losses, damages, costs, or expenses arising out of Landlord's negligence or
willful act. If any action or proceeding is brought against Landlord by reason
of any such claim, Tenant upon notice from Landlord shall defend the same at
Tenant's expense by counsel mutually satisfactory to Landlord and Tenant.
7.5 Exemption of Landlord From Liability. Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other person
in or about the Premises, not shall Landlord be liable for injury to the person
of Tenant, Tenant's employees, agents or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures,or from any other cause, whether the said damage or injury
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results from conditions arising upon the Premises or upon other portions of the
building of which the premises are apart, or from other sources or places and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant except when such damage or injury
is caused by Landlord's negligence. Landlord shall not be liable for any damages
arising from any act or neglect of any other tenant, if any, of the business
park in which the Premises are located. Nothing contained herein shall be
construed as limiting the right of Tenant to proceed against other third parties
for any injury or damage caused to Tenant.
7.6
8. Damage or Destruction.
8.1 Definitions.
(a) "Partial Damage" means damage or destruction to
the Premises to the extent that the cost of repair is less than fifty percent
(50%) of the fair market value of the Premises immediately prior to such damage
or destruction.
(b) "Total Destruction" means damage or destruction
to the Premises to the extent that the cost of repair is fifty percent (50%) or
more of the fair market value of the Premises immediately prior to such damage
or destruction.
8.2 Partial Damage. If at any time during the term of this
Lease there is damage which falls within the classification of Partial Damage,
Landlord may, at Landlord's option, either (i) repair such damage, in which
event this Lease shall continue in full force and effect, or (ii) give written
notice to Tenant within thirty (30) days after the date of the occurrence of
such damage of Landlord's intention to terminate this Lease, which termination
shall be effective as of the date of the occurrence of such damage.
8.3 Total Destruction. If at any time during the term of this
Lease there is damage which falls into the classification of Total Destruction,
this Lease shall automatically terminate as of the date of such total
destruction.
8.4 Abatement of Rent. If Landlord repairs or restores the
Premises pursuant to the provisions of this Section 8, the rent payable
hereunder (including "Additional Rent") for the period during which such damage,
repair or restoration continues shall be abated in proportion to the degree to
which Tenant's use of the Premises is impaired. Except for abatement of rent, if
any, Tenant shall have no claim against Landlord as a result of any such damage.
Furthermore, notwithstanding anything above to the contrary, Tenant shall not be
entitled to any rent abatement if the Partial Damage is in any way caused by
Tenant.
9. Condemnation.
If the Premises or any portion thereof or other areas
appurtenant to the Premises are taken under the power of eminent domain, or sold
under the threat of the exercise of said power (all of which are herein called
"condemnation"), this Lease shall terminate as to the part so
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taken as of the date the condemning authority takes title or possession,
whichever first occurs. If in the reasonable opinion of Tenant, the portion of
the Premises taken by condemnation materially adversely affects Tenant's
operations on the premises, Tenant may, at Tenant's option, to be exercised in
writing only within thirty (30) days after Landlord shall have given Tenant
written notice of such taking (or in the absence of such notice, within thirty
(30) days after the condemning authority shall have taken possession) terminate
this Lease as of the date the condemning authority takes such possession.
Landlord shall also have an option to terminate this Lease by notice to Tenant
given within the time limits set forth above if in Landlord's reasonable
opinion, it would not be economically feasible to continue leasing the Premises
to Tenant as a result of such condemnation. If this Lease is not terminated in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent shall be
reduced in the proportion that the square feet of the Premises which is taken
bears to the total square feet of the Premises. Any award for the taking of all
or any part of the Premises under the power of eminent domain or any payment
made under threat of the exercise of such power shall be the property of
Landlord, whether such award shall be made as compensation for diminution in
value of the leasehold, for the taking of the fee, or as severance damages;
provided, however, that Tenant shall be entitled to any award made specifically
for loss of or damage to Tenant's trade fixtures and removable personal
property. In the event that this Lease is not terminated by reason of such
condemnation, Landlord shall, at Landlord's expense, promptly repair any damage
to the Premises caused by such condemnation.
10. Taxes.
10.1 Payment of Real Property Taxes. Each month, Tenant shall
pay Tenant's Share of the real property taxes applicable to the Premises during
the term of this Lease. "Tenant's Share" shall be calculated as set forth in
Section 6.3(b). All such payments shall be made within ten (10) days after
receipt of a written statement from Landlord setting forth Tenant's Share of
such taxes and a copy of the applicable real estate tax ▇▇▇▇ or bills. If any
real property taxes paid by Landlord covers any period of time prior to or after
the expiration of the term hereof, Tenant's Share of such taxes shall be
equitably prorated to cover only the period of time within the tax fiscal year
during which this Lease shall be in effect.
10.2 Definition of "Real Property Tax". As used herein, the
term "real property tax" shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other than
inheritance, personal income or estate taxes) imposed on the Premises by any
authority having the direct or indirect power to tax, including any city, state
or federal government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, as against any legal or
equitable interest of Landlord in the Premises or in the real property of which
the Premises are a part, as against Landlord's right to rent or other income
therefore, and as against Landlord's business of leasing the Premises. The
term"real property tax" shall also include any tax, fee, levy, assessment or
charge (i) in substitution of, partially or totally, any tax, fee levy,
assessment or charge hereinabove included within the definition of "real
property tax", or (ii) the nature of which was hereinbefore included within the
definition of "real property tax", or (iii) which is imposed by reason of this
transaction or any modifications or changes hereto.
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10.3 Joint Assessment. If the Premises are not separately
assessed, Tenant's liability shall be an equitable proportion of the real
property taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Landlord from the
respective valuations assigned in the assessor's work sheets or such other
information as may be reasonably available, and Landlord's reasonable
determination thereof, in good faith shall be conclusive.
10.4 Personal Property Taxes.
(a) Tenant shall pay, prior to delinquency,
all taxes assessed against and levied upon trade fixtures, furnishings,
equipment and all other personal property of Tenant contained in the Premises.
When possible, Tenant shall cause said fixtures, furnishings, equipment and all
other personal property to be assessed and billed separately from the real
property of Landlord.
(b) If any of the Tenant's personal property
shall be assessed with the Landlord's real property, Tenant shall pay Landlord
the taxes attributable to Tenant within twenty (20) days after receipt of a
written statement setting forth the taxes applicable to Tenant's property.
10.5 Sales and Use Tax. In addition to the annual rent
required hereunder, Tenant shall also be solely responsible for all sales tax
applicable thereon, or applicable to any other charges or payments due
hereunder.
11. Utilities and Services. Tenant shall pay for all water, gas,
heat, light, power, telephone and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such utilities are not
separately metered, Tenant shall pay a reasonable portion of the charges for
utilities jointly metered with other premises. Tenant shall provide, at its
expense, all janitorial and security services to the Premises.
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant shall not voluntarily
or by operation of law assign, transfer, mortgage, sublet, o otherwise transfer
or encumber all or any part of Tenant's interest in this Lease or in the
Premises, without Landlord's prior written consent, which consent shall not be
unreasonably withheld provided (i) such assignment is to an entity/individual(s)
whose financial integrity is at lease equal to that of Tenant; (ii) said
assignee has demonstrated prior experience in the management and operation of
its business in a similar setting and of the same magnitude; and (iii) proof
thereof satisfactory to Landlord has been delivered to Landlord at least ten
(10) days prior to the effective date of any such transfer. Any attempted
assignment, transfer, mortgage, encumbrance or subletting without such consent
shall be void, and shall constitute a breach of this Lease. Any sale, assignment
or other transfer of controlling stock interest in Tenant shall constitute an
"assignment" for purposes hereof.
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12.2 No Release of Tenant. Regardless of Landlord's consent,
no subletting or assignment shall release Tenant of Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any person shall not be deemed to be a waiver by Landlord of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default by
any assignee of Tenant or any successor of Tenant, in the performance of any of
the terms hereof, Landlord may proceed directly against tenant without the
necessity of exhausting remedies against such successor. Landlord may consent to
subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant and without obtaining its or their consent thereto
and such action shall not relive Tenant of liability under this Lease.
12.3 Attorney's Fees. In the event Tenant shall assign or
sublet the Premises or request the consent of Landlord to any assignment or
subletting or if Tenant shall request the consent of Landlord for any act Tenant
proposes to do, then Tenant shall pay Landlord's reasonable attorney's fees
incurred in connection therewith, but Tenant shall be allowed to prepare all
necessary documents for the sublease at its own expense.
12.4 Landlord's Option to Terminate. Except as otherwise
specifically set forth herein, in the event that at any time during the term of
this Lease Tenant desire to assign this Lease or to sublet all or part of the
Premises, Tenant shall notify Landlord in writing of the terms of the proposed
assignment or subletting and the area so proposed to be sublet, and Landlord
shall have the option to terminate this Lease wholly in the event of a proposed
assignment or sublet of the whole Premises, or partially as to the portion of
the Premises proposed to be sublet, upon written notice to Tenant within 45 days
after receipt of notice of Tenant's intention to assign or sublet. If Landlord's
election to terminate involves only a portion of the Premises, the rent
specified in this Lease shall be adjusted proportionately on the basis of the
number of square feet retained by Tenant and this Lease shall continue in full
force and effect in all other respects.
13. Defaults; Remedies.
13.1 Defaults. The occurrence of any one or more of the
following events shall constitute a material default and breach of this Lease by
Tenant:
(a) The vacating or abandonment of the Premises by
Tenant.
(b) The failure by Tenant to make any payment of
rent or any other payment required to be made by Tenant hereunder, as and when
due, where such failure shall continue for a period of five (5) days after
Tenant's receipt of written notice thereof. In the event that Landlord serves
Tenant with a notice to pay rent or quit pursuant to applicable unlawful
detainer statues, such notice to pay rent or quit shall also constitute the
notice required by this Section.
(c) The failure by Tenant to observe or perform any
of the covenants, conditions or provisions of this Lease to be observed or
performed by Tenant, other than
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described in Section 13.1(b) above, where such failure shall continue for a
period of thirty (30) days after written notice thereof from Landlord to Tenant;
provided, however, that if the nature of Tenant's default is such that more than
thirty (30) days are reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant commenced such cure within the 30-day period
and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Tenant of any general
arrangement or assignment for the benefit of creditors; (ii) Tenant becomes a
"debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto
(unless, in the case of a petition filed against Tenant, the same is dismissed
within 60 days); (iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to Tenant
within thirty (30) days.
13.2 Remedies. In the event of any such material default or
breach by Tenant, Landlord may, at any time thereafter, with or without notice
or demand and without limiting Landlord in the exercise of any right or remedy
which Landlord may otherwise have under Florida law by reason of such default or
breach:
(a) Terminate tenant's right to possession of the
Premises by any lawful means and terminate this Lease, in which case Tenant
shall immediately surrender possession of the Premises to Landlord. In such
event Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; the expense of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's fees
(including costs), and any real estate commission actually paid; the worth at
the time of award by the court having jurisdiction thereof of the amount by
which the unpaid rent for the balance of the term after the time of such award
exceeds the amount of such rental loss for the same period that Tenant proves
could be reasonably avoided; and that portion of the leasing commission paid by
Landlord pursuant to Section 14 applicable to the unexpired term of this Lease.
(b) Maintain Tenant's right to possession in which
case this Lease shall continue in effect whether or not Tenant shall have
abandoned the Premises. In such event Landlord shall be entitled to enforce all
of Landlord's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder; provided, however, that Landlord
shall have the right to accelerate all amounts owed to Landlord by Tenant under
this Lease as due and payable immediately upon default.
(c) Terminate Tenant's right to possession of the
Premises without terminating this Lease and re-enter and take possession of the
Premises, in which case Landlord shall use reasonable efforts to relet the
Premises to another party for Tenant's account and Tenant shall remain liable
for all rent and other amounts due under this Lease and not paid by such other
party; provided, however, that Landlord shall have the right to accelerate all
amounts owed to Landlord by Tenant under this Lease as due and payable
immediately upon default.
(d) Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions of the state
wherein the Premises are located. Unpaid installments
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of rent and other unpaid monetary obligations of Tenant under the terms of this
Lease shall bear interest from the date due at the maximum rate then allowable
by law.
13.3 Default by Landlord. Landlord shall not be in default
unless Landlord fails to perform obligations required of Landlord within a
reasonable time, but in no even later than thirty (30) days after written notice
by Tenant to Landlord and to the holder of any first mortgage or deed or trust
covering the Premises whose name and address shall have theretofore been
furnished to Tenant in writing, specifying wherein Landlord has failed toper
form such obligation; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for performance,
then Landlord shall not be in default if Landlord commences performance within
such 30-day period and thereafter diligently prosecutes the same to completion.
13.4 Late Charges. Tenant hereby acknowledges that late
payment by Tenant to Landlord of rent and other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which may
imposed on Landlord by the terms of any mortgage or trust deed covering the
Premises. Accordingly, if any installment of rent or any other sum due from
Tenant shall not be received by Landlord or Landlord's designee within ten (10)
days after such amount shall be due then, without any requirement for notice to
Tenant, Tenant shall pay to Landlord a late charge equal to 5% of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the casts Landlord will incur by reason of late payment
by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder, whether or not
collected, for three (3) consecutive installments of rent, then rent shall
automatically become due and payable quarterly in advance, rather than monthly,
notwithstanding Section 4 or any other provision of this Lease to the contrary.
13.5 Impounds. In the event that a late charge is payable
hereunder, whether or not collected, for three (3) consecutive installments of
rent, Tenant shall pay to Landlord, if Landlord shall so request, in addition to
any other payments required under this Lease, a monthly advance installment,
payable at the same time as the monthly rent, as estimated by Landlord, for real
property tax and insurance expenses on the Premises which are payable by Tenant
under the terms of this Lease. Such fund shall be established to insure payment
when due, before delinquency, of any or all such real property taxes and
insurance premiums. If the amounts paid to Landlord by Tenant under the
provisions of this section are insufficient to discharge the obligations of
Tenant to pay such real property taxes and insurance premiums as the same become
due, Tenant shall pay to Landlord, upon Landlord's demand, such additional sums
necessary to pay such obligations. All moneys paid to Landlord under this
section may be intermingled with other moneys of Landlord and shall not bear
interest. In the event of a default in the obligations of Tenant to perform
under this Lease, then any balance reaming from funds paid to Landlord under the
provisions of this section may, at the option of Landlord, be applied to the
payment of any monetary default of Tenant in lieu of being applied to the
payment of real property taxes and insurance premiums.
▇-▇▇▇
▇▇
▇▇. Broker's Fee.
Each party represents and warrants to the other that it has
not dealt with any broker, finder or similar agent in connection with any
transaction contemplated hereunder, other than ▇▇▇▇▇▇ & Co. and In-Site Realty
Associates, Inc., whose fees shall be the sole responsibility of Landlord. Each
party hereto hereby covenants and agrees to defend, indemnify, hold harmless and
reimburse the other party for, from and against all claims of any kind of any
other broker, finder or similar agent purporting to represent the indemnifying
party in connection with any transaction contemplated hereunder.
15. Estoppel Certificate.
(a) Tenant shall at any time upon not less than ten (10) days'
prior notice from Landlord execute, acknowledge and deliver to Landlord a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modifications and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises.
(b) At Landlord's option, Tenant's failure to deliver such
statement within such time shall be a material default under this Lease or shall
be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are no uncured defaults in Landlord's performance, and (iii) that not more than
month's rent has been paid in advance or such failure may b considered by
Landlord as a default by Tenant under this Lease.
(c) If Landlord desires to finance, refinance, or sell the
Premises or any part thereof, Tenant hereby agrees to deliver to any lender or
purchaser designated by Landlord such financial statements of Tenant as may be
reasonably required by such lender or purchaser. such statements shall include
the past three years financial statements of Tenant. all such financial
statements shall be received by Landlord and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
16. Landlord's Liability.
The term "Landlord" as use herein shall mean only the owner or
owners at the time in questions of the fee title or a tenant's interest in a
ground lease of the Premises. In the event of any transfer of such title or
interest, Landlord herein named (and in case of any subsequent transfers, then
the grantor) shall be relieved from and after the date of such transfer of all
liability in respect of Landlord's obligations thereafter to be performed,
provided that any funds in the hands of Landlord or the then grantor at the time
of such transfer, in which Tenant has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be
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performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only during their respective periods of ownership.
17. Severability.
The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
18. Interest on Past-Due Obligations.
Except as expressly herein provided, any amount due to
Landlord not paid when due shall bear interest at the maximum rate then
allowable by law from the date due. Payment of such interest shall not excuse or
cure any default by Tenant under this Lease; provided, however, that interest
shall not be payable on late charges incurred by Tenant nor on any amounts upon
which late charges are paid by Tenant.
19. Additional Rent.
Any monetary obligations of Tenant to Landlord under the terms
of this Lease shall be deemed to be Additional Rent.
20. Incorporation of Prior Agreements; Amendments.
This Lease contains all agreements of the parties with respect
to any matter mentioned herein. No prior agreement or understanding pertaining
to any such matter shall be effective. This Lease may be modified in writing
only and signed by the parties in interest at the time of the modification.
Except as otherwise stated in this Lease, Tenant hereby acknowledges that
neither the real estate broker listed in section 14 hereof nor any cooperating
broker on this transaction nor the Landlord or any employees or agents of any of
said persons has made any oral or written warranties or representations to
Tenant relative to the condition or use by Tenant or said Premises.
21. Notices.
Any notice required or permitted to be given hereunder shall
be in writing and may be given by express courier, personal delivery or by
certified mail, and shall be deemed sufficiently given if addressed to Tenant at
the address of the premises or to Landlord at the address noted next to the
signature of the Landlord. Either party may, by notice to the other, specify a
different address for notice purposes, except that upon Tenant's taking
possession of the Premises, the Premises shall constitute Tenant's address for
notice purposes. A copy of all notices required or permitted to be given to
Landlord hereunder shall be concurrently transmitted to such party or parties at
such addresses as Landlord may from time to time hereafter designate by notice
to Tenant.
▇-▇▇▇
▇▇
▇▇. Waivers.
No waiver by Landlord of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. landlord's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be waiver of any preceding breach by Tenant of any provision
hereof, other than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
23. Holding Over.
If Tenant, with Landlord's consent, remains in possession of
the Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month. Al provisions of this Lease
shall apply to the holdover period. Al options and rights of first refusal, if
any, granted under the terms of this Lease shall be deemed terminated and be of
no further effect during said month-to-month tenancy.
24. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in
equity.
25. Covenants and Conditions.
Each provision of this Lease performable by Tenant or Landlord
shall be deemed both a covenant and condition.
26. Binding Effect; Choice of Law.
Subject to any provisions hereof restricting assignment or
subletting by Tenant, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State wherein the Premises are located.
27. Subordination.
(a) This Lease, at Landlord's option, shall be subordinate to
any ground lease, mortgage, deed of trust, or any other hypothecation or
security now or hereafter placed upon the real property of which the Premises
are a part and to any advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof. If any
mortgagee, trustee or ground landlord shall elect to have this Lease prior to
the lien of its mortgage, deed of trust or ground lease, and shall be deemed
prior to such mortgage, deed of trust, or ground lease, whether this Lease is
dated prior or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof.
▇-▇▇▇
▇▇
▇▇. Attorney's Fees.
If either party named herein brings an action to enforce the
terms hereof or declare rights hereunder, the prevailing party in any such
action, on trial or appeal, shall be entitled to his costs and reasonable
attorney's fees, including all appeals, to be paid by the losing party as fixed
by the court.
29. Landlord's Access.
Landlord and Landlord's agents shall have the right to enter
the Premises at reasonable times for the purpose of inspecting the same, showing
the same to prospective purchasers, lenders or tenants, and making such
alterations, repairs, improvements or additions to the Premises as Landlord may
deem necessary or desirable. Landlord's right to inspect the Premises includes,
but is not limited to, the right to take samples and make such environmental
tests as Landlord may deem appropriate from time to time. Landlord may at any
time, place on or about the premises any ordinary "For Sale" signs and Landlord
may at any time during the last 120 days of the term hereof place on or about
the Premises any ordinary "For Lease" signs, all without rebate of rent or
liability to Tenant.
30. Auctions.
Tenant shall not conduct, nor permit to be conducted, whether
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Landlord's prior written consent. Notwithstanding anything to the
contrary in this Lease, Landlord shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
31. Signs.
Any and all signs placed on the exterior of the Premises,
including loading and unloading signs, name signs and number signs, shall be
provided by the Landlord at the Landlord's sole cost and expense and shall be in
such form, style and color as to conform to the standard used throughout the
business park of which the Premises are a part. Tenant is expressly prohibited
from displaying any signage not authorized by Landlord.
32. Merger.
The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not work a
merger, and shall, at the option of Landlord, terminate all or any existing
subtenancies or may, at the option of Landlord, operate as an assignment to
landlord of any or all such subtenancies.
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33. Quite Possession.
Upon Tenant paying the rent for the Premises and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have quiet possession of the
Premises subject to all of the provisions of this Lease. Landlord represents and
warrants to Tenant that the individuals executing this Lease on behalf of
Landlord are fully authorized and legally capable of executing
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