SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported). December 23, 2002
ONE LIBERTY PROPERTIES, INC.
(Exact name of registrant as specified in charter)
Maryland 0-11083 13-3147497
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(State or other (Commission file no.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
Item 5. Other Events and Required FD Disclosure
On December 23, 2002, registrant acquired in an arms length transaction a
188,567 square foot flex building located in Jupiter, Florida. The consideration
for the purchase, which was paid in cash, was $15,750,000. In addition
registrant paid to an unrelated party a finder's fee of $250,000. The
registrant purchased the property using its working capital.
On or about December 19, 2002, the seller of the property to the registrant
purchased the property from, and leased the property back to, GE Medical Systems
Information Technologies, Inc., a subsidiary of GE Medical Systems (a division
of General Electric Company). The lease was assigned by the seller, as landlord,
to the registrant at closing. Pursuant to the terms of the lease, the Tenant
leased the entire premises for a term expiring December 31, 2009 with one
five-year renewal option and three separate three-year renewal options. The base
rent under the lease is $2,074,237 per annum for the first lease year (payable
in equal monthly installments) with rent increasing each lease year thereafter
by an amount equal to the increase in the consumer price index (as defined in
the lease), but not less than 3%; provided, however, if the CPI increase is
greater than 5%, the percentage increase is 5%. The basic rent includes an
amount intended to cover future capital expenditures. In addition to the basic
rent, the Tenant reimburses Landlord for real estate taxes and expenses incurred
in connection with operating, maintaining, repairing and managing the property
all as set forth in the lease. Landlord is responsible for structural repairs,
the mechanical and electrical systems and roof maintenance, all as set forth in
the lease.
Since the transaction is essentially a sale and lease back transaction, no
financial statements are available or required.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) None.
(b) None.
(c) Exhibits
1. Lease Agreement dated December 19, 2002 between Marquette
Realty Partners LLC and GE Medical Systems Information
Technologies, Inc.
2. Guarantee of GE Medical Systems.
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned officer thereunto duly authorized.
ONE LIBERTY PROPERTIES, INC.
Date: December 26, 2002 By: /s/ Simeon Brinberg
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Simeon Brinberg
Senior Vice President
EXHIBIT INDEX
Exhibit
Number Exhibit Title
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1 Lease Agreement dated December 19, 2002 between
Marquette Realty Partners LLC and GE Medical
Systems Information Technologies, Inc.
2 Guarantee of GE Medical Systems.
EXHIBIT 1
LEASE AGREEMENT
THIS LEASE is made this 19th day of December, 2002, by and between
Marquette Realty Partners LLC, a Florida limited liability company (f.k.a. GEMS
of Jupiter LLC)("Landlord") and or assigns and GE Medical Systems Information
Technologies, Inc.. a Wisconsin corporation, ("Tenant").
1. Premises. Landlord hereby leases to Tenant the premises shown on Exhibit
A, attached hereto and incorporated herein by this reference (the "Premises"),
which Premises are located on the real property commonly known as 100 Marquette
Drive, Jupiter, Florida, together with a right, subject to the provisions
hereof, to use all appurtenances thereunto, including, but not limited to,
parking areas and any other areas designated by Landlord for use by tenants of
the building thereon (the "Building")(the real property on which the same is
situated, improvements, parking areas, other areas and appurtenances hereinafter
collectively referred to as the "Property"). This Lease is subject to the terms,
covenants and conditions set forth herein, and Tenant and Landlord each covenant
as a material part of the consideration for this Lease to keep and perform each
and all of said terms, covenants and conditions to be kept and performed by
them.
2. Term: The term of this Lease (the "Lease Term") shall commence at 12.01
a.m on December 19, 2002 (the "Commencement Date") and terminate at 12:00
midnight on December 31, 2009 (the "Termination Date"), unless sooner terminated
or extended pursuant to the terms hereof. Tenant shall have the night to renew
the Lease Term as to all of the Premises for one (1) five (5) year renewal term
and three (3) separate renewal terms of three (3) years (i.e., one five year
term to commence on January 1, 2010 and then, provided Tenant shall have elected
to exercise such 5-year renewal term, then three subsequent and successive
three-year renewal terms) (each, a "Renewal Term"), each of which shall commence
on the day following the then scheduled Termination Date and end on the fifth
(5th) anniversary or the third (3m) anniversary, as applicable, of such
then-scheduled Termination Date, unless the Renewal Term shall sooner terminate
pursuant to any of the terms of this Lease or otherwise. Upon the commencement
of any Renewal Term, (a) such Renewal Term shall be added to and become part of
the Lease Term, (b) any reference to "this Lease", to the "Lease Term", or any
similar expression shall be deemed to include such Renewal Term, and (c) the
expiration of such Renewal Term shall become the Termination Date. In the event
that Tenant is not electing to exercise its next available Renewal Term, then
Tenant must give Landlord written notice of same no less than twenty-four (24)
months prior to the then-scheduled Termination Date, time being of the essence,
with it being understood and agreed that if Tenant shall deliver such written
notice of non-exercise on a later date, then in such event the then-scheduled
Termination Date shall be automatically extended to the date that is twenty-four
(24) months after Landlord's actual receipt of said written notice. It is the
express intent of the parties that Landlord receive no less than twenty-four
(24) months prior written notice of Tenant's election not to renew the Lease
Term as herein provided.
3. Base Rent.
(a) Tenant shall pay to Landlord, as rent for the Premises ("Base Rent") the
sum of $2,074,237 the product of $11 times the rentable square footage of
the Building, which the parties agree is 188,567 square feet ("Rentable
Square Footage of the Building"), per year payable in equal monthly
installments of $172,853, plus applicable sales tax, with such Base Rent
being subject to annual adjustment as set forth herein. The amount set
forth above as Base Rent includes all Capital Reserves (defined below). All
installments of Base Rent shall be payable in advance, on the first (1st)
day of each calendar month during the Lease Term hereof In the event the
Lease commences or ends other than on the first or last day of a month,
Base Rent and Additional Rent for such month shall be prorated. All Base
Rent shall be paid without notice, demand, deduction or offset, at the
office of Landlord or to such other person or at such other place as
Landlord may designate in writing. Tenant shall pay to Landlord as
"Additional Rent" all other sums due under this Lease. Prorated Base Rent
and Additional Rent for the month in which this Lease is executed and Base
Rent and Additional Rent for the first full month of the Lease Term shall
be due upon execution of this Lease.
(b) Base Rent for the second (2nd) Lease Year, and each succeeding Lease Year
(defined below) thereafter, including any Lease Years during any Renewal
Term, shall be an amount equal to the product resulting from multiplying
(i) the amount of annual Base Rent for the immediately preceding Lease Year
by (ii) the sum of one (1) plus the percentage increase, if any, in the CPI
from the first (Ist) month of the immediately preceding Lease Year to the
first (1 st) month of the Lease Year for which such Base Rent is being
calculated, provided that if the percentage increase is (X) less than 3%,
the percentage increase shall be deemed to be 3% or (Y) greater than 5%,
the percentage increase shall be deemed to be 5%. Until the amount of Base
Rent for any Lease Year has been determined by Landlord in the manner
aforesaid and notice of such determination has been delivered to Tenant,
Tenant shall pay the amount of monthly Base Rent payable in the immediately
preceding Lease Year, and shall pay with the next installment of monthly
Base Rent due for the then current Lease Year the amount of any deficit for
such Lease Year after the monthly Base Rent therefore has been determined
in accordance herewith.
(c) As used herein, the term:
(i) "Lease Year" shall mean a period of twelve (12) consecutive calendar
months, commencing on the first day of the calendar month following the month in
which the Commencement Date occurs (unless the Commencement Date occurs on the
first day of the month, in which case the Lease Year shall commence on such
date) and terminating on the last day of the twelfth (12th) calendar month
thereafter and succeeding twelve (12) consecutive calendar month periods
thereafter;
(ii) "CPI" shall mean the United States Department of Labor's Bureau of
Labor Statistics' Revised Consumer Price Index, All Urban Consumers, All items
(1982-84 equals 100) for Miami-Ft. Lauderdale, Florida, or other corresponding
standard metropolitan statistical area for which such CPI may at anytime be
published. If the Bureau of Labor Statistics substantially revises the manner in
which the CPI is determined, an adjustment shall be made in such revised index
which would produce results equivalent, as nearly as possible, to those which
would be obtained if the CPI had not been so revised. If the 1982-84 average
shall no longer be used as an index of 100, such change shall constitute a
substantial revision. If the CPI becomes unavailable to the public because
publication is discontinued, or otherwise becomes unavailable, or if equivalent
data is not readily available to enable Landlord to make the adjustment to the
revised index referred to above, Landlord and Tenant shall mutually agree upon a
substitute 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 is available, then a comparable index published by
a major bank, other financial institution, university or recognized financial
publication.e, then a comparable index published by a major bank,other financial
institution, university or recognized financial publication.
4. Operating Expenses and Taxes:
(a) Tenant is deemed to occupy 188,567 square feet of the Building
("Rentable Square Footage of the Premises") and (ii) "Tenant's Pro Rata Share"
is deemed to be 100.00%, which is the quotient expressed as a percentage derived
by dividing the Rentable Square Footage of the Premises by the Rentable Square
Footage of the Building.
(b) Payment of Tenant's Pro Rata Share of Expenses and Taxes.
(1) Tenant shall pay Tenant's Pro Rata Share of the total amount of
Expenses (defined below) and Taxes (defined below) for each calendar year during
the Lease Term, as same may be extended as provided in this Lease. Landlord
shall provide Tenant with a good faith estimate of the total amount of Expenses
and Taxes for each upcoming calendar year during the Term and Tenant's monthly
installment payments for such upcoming year shall be based on such estimate
(subject to revision by Landlord as hereafter provided). The parties acknowledge
and agree that the estimate of the amount of Expenses and Taxes for the first
Lease Year is as set forth in Paragraph 4(e) below. On or before the first day
of each month, Tenant shall pay to Landlord a monthly installment equal to
one-twelfth (1/12) of Tenant's Pro Rata Share of Landlord's estimate of the
total amount of Expenses and Taxes. If Landlord determines that its good faith
estimate was incorrect by a material amount, Landlord may provide Tenant with a
revised estimate. After its receipt of the revised estimate, Tenant's monthly
payments shall be based upon the revised estimate. If Landlord does not provide
Tenant with an estimate of the total amount of Expenses and Taxes for a given
calendar year by January 1 of such calendar year, Tenant shall continue to pay
monthly installments based on the previous year's estimate until Landlord
provides Tenant with the new estimate. Upon delivery of the new estimate, an
adjustment shall be made for any month for which Tenant paid monthly
installments based on the previous year's estimate (and Tenant shall also begin
paying Tenant's Prorata Share as herein provided based upon such new estimate on
the first day of the immediately succeeding month). Tenant shall pay Landlord
the amount of any underpayment within thirty (30) days after receipt of the new
estimate. Any overpayment shall be refunded to Tenant within thirty (30) days;
(2) Within ninety (90) days following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual amount of Expenses
and Taxes for the prior calendar year and Tenant's Pro Rata Share of the actual
amount of Expenses and Taxes paid by Tenant for the prior calendar year. If the
estimated amount of Expenses and Taxes for the prior calendar year is more than
the actual amount of Expenses and Taxes for the prior calendar year, Landlord
shall refund any such overpayment to Tenant within thirty (30) days after
determination Thereof If the estimated amount of Expenses and Taxes for the
prior calendar year is less than the actual amount of Expenses and Taxes for
such prior year, Tenant shall pay Landlord, within thirty (30) days after
receipt of the statement of Expenses and Taxes, any such underpayment for the
prior calendar year.
(c) Expenses Defined. "Expenses" means all reasonable costs and expenses
incurred in each calendar year in connection with operating, maintaining,
repairing, and managing the Property, including, but not limited to:
(1) Management fees not to exceed four percent (4%) of the amount of Base
Rent. Landlord, by itself or through an affiliate, shall have the right to
directly perform or provide any services under this Lease (including management
services), provided that the cost of any such services shall not exceed the cost
that would have been incurred had Landlord entered into an arms-length contract
for such services with an unaffiliated entity of comparable skill and
experience;
(2) The cost of services, including, but not limited to, amounts paid for
landscaping, pest control, window cleaning, common area and Premises cleaning,
trash removal, security services, and any other amounts paid to any other
service providers;
(3) Premiums and deductibles paid by Landlord for insurance, including
workers compensation, fire and extended coverage, flood, earthquake, general
liability, rental loss, elevator, boiler and other insurance customarily carried
from time to time by owners of comparable buildings;
(4) Electrical Costs (defined below) and charges for water, gas, steam and
sewer and other utilities, but excluding those charges for which Landlord is
reimbursed by other tenants. "Electrical Costs" means those charges paid by
Landlord for electricity, adjusted as follows: (i) amounts received by Landlord
as reimbursement for above standard electrical consumption by other tenants at
the Property (if any) shall be deducted from Electrical Costs; (ii) the cost of
electricity incurred to provide overtime heating, ventilation and air
conditioning ("HVAC") services to specific tenants (as reasonably estimated by
Landlord) other than Tenant shall be deducted from Electrical Costs; and (iii)
if Tenant is billed directly for the cost of building standard electricity to
the Premises as a separate charge in addition to Base Rent, the cost of
electricity to individual tenant spaces in the Building other than the Premises
shall be deducted from Electrical Costs.
In no event shall the term "Expenses" be deemed to include the cost of the
performance by Tenant of its obligations pursuant to Paragraph 9(a) below, all
of which shall be performed by Tenant at Tenant's sole cost and expense separate
and apart from Tenant's obligations set forth in this Paragraph 4. Expenses
shall not include: the cost of capital improvements, structural repairs or
alterations (including without limitation, roof and parking area/roadway
resurfacing, repairs and replacements); depreciation; interest, principal
payments of mortgage and other non-operating debts of Landlord; repairs to or
replacement of mechanical or electrical systems, including, without limitation
generators and HVAC equipment; the cost of repairs or other work to the extent
Landlord is reimbursed by insurance or condemnation proceeds or payments by
tenants or any other parry; costs in connection with leasing space in the
Building, including brokerage commissions; lease concessions, including rental
abatements and construction allowances, granted to specific tenants; costs
relating to services directly benefiting specific tenants other than Tenant;
costs incurred in connection with the sale, financing or refinancing of the
Building; fines, interest and penalties incurred due to the late payment of
Taxes (defined below) or Expenses unless late payment is due solely to Tenant's
failure to timely pay Tenant's Pro Rata Share of such Taxes or Expenses, in
which case Tenant shall pay any and all fines, interest and penalties incurred
due to such late payment; organizational expenses associated with the creation
and operation of the entity which constitutes Landlord; or any penalties or
damages that Landlord pays to Tenant under this Lease or to other tenants in the
Building under their respective leases.
(d) Taxes Defined. "Taxes" shall mean (i) all real estate taxes and other
assessments on the Building and/or Property or any portion thereof, including,
but not limited to, assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in pan of any such taxes and assessments and the
Property's share of any real estate taxes and assessments under any reciprocal
easement agreement, common area agreement of similar agreement as to the
Property; and (ii) all personal property taxes for property that is owned by
Landlord and used in connection with the operation, maintenance and repair of
the Property. Taxes shall not include any income, capital levy, franchise,
capital stock, gift, estate or inheritance tax. If an assessment is payable in
installments, Taxes for the year shall include the amount of the installment and
any interest due and payable dunng that year. If a reduction in Taxes is
obtained for any year of the Term for which Tenant shall have paid Tenant's
Prorata Share of Taxes, the Taxes for that year will be retroactively adjusted
and Landlord shall provide Tenant with a credit, if any, based on the
adjustment.
(e) Lease Year One. Expenses and Taxes for the first Lease Year are
estimated to be $1,131,402 (i.e., S6.00 per rentable square foot (188,567)),
plus applicable sales tax.
(f) Audit Rights Tenant may, within ninety (90) days after receiving
Landlord's statement of Expenses and Taxes, give Landlord written notice
("Review Notice") that Tenant intends to review Landlord's records of the
Expenses for that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its review, If
any records are maintained at a location other than the office of the Building,
Tenant may either inspect the records at such other location or pay for the
reasonable cost of copying and shipping the records. Within sixty (60) days
after the records are made available to Tenant, Tenant shall have the right to
give Landlord written notice (an "Objection Notice") stating in reasonable
detail any objection to Landlord's statement of Expenses for that year. If
Tenant fails to give Landlord an Objection Notice within the thirty (30) day
period or fails to provide Landlord with a Review Notice within the sixty (60)
day period described above, Tenant shall be deemed to have approved Landlord's
statement of Expenses and shall be barred from raising any claims regarding the
Expenses for that year. If Tenant provides Landlord with timely Objection
Notice, Landlord and Tenant shall work together in good faith to resolve any
issues raised in Tenant's Objection Notice. if Landlord and Tenant determine
that Expenses for the calendar year are less than reported, Landlord shall
refund such overpayment to Tenant within thirty (30) days thereafter. If
Landlord and Tenant determine that Expenses for the calendar year are greater
than reported, Tenant shall pay Landlord the amount of any underpayment within
thirty (30) days thereafter.
5. Capital Reserve. In addition to Tenant's Prorata Share of Expenses and
Taxes and all other payments to be made by Tenant under this Lease, Tenant shall
pay to Landlord an annual amount equal to $0.50 multiplied by the Rentable
Square Footage of the Premises (188,567 s.f.) to establish a "capital reserve".
Such amount shall be paid by Tenant in monthly installments as part of the Base
Rent in paragraph 3(a) above.
6. Character of Occupancy:
(a) The Premises are to be used for office, storage and/or manufacturing
purposes and for no other purpose without the prior written consent of Landlord
Tenant shall procure, at its sole expense, all permits or licenses required for
the transaction of business at the Premises.
(b) Tenant shall not suffer nor permit the Premises nor any part thereof to
be used in any manner, nor anything to be done therein, nor suffer or permit
anything to be brought into or kept therein, which would in any way (i) make
void or voidable any fire or liability insurance policy then in force with
respect to the Premises, (ii) make unobtainable from reputable insurance
companies authorized to do business in Florida any fire insurance with extended
coverage, or liability, boiler or other insurance required to be furnished by
Landlord under the terms of any lease or mortgage affecting the Premises, (iii)
cause or in Landlord's reasonable opinion be likely to cause physical damage to
the Premises or any part thereof, (iv) constitute a public or private nuisance,
(v) impair, in the opinion of Landlord, the appearance, character or reputation
of the Premises, (vi) discharge objectionable fumes, vapors or odors into the
Premises air conditioning system or into the building flues or vents not
designed to receive them or (viii) create waste in or around the Premises.
(c) Tenant shall not use the Premises nor permit anything to be done in or
about the Premises or which will in any way conflict with any law, statute,
ordinance, protective covenants affecting the Premises or governmental or
quasi-governmental rules or regulations now in force or which may hereafter be
enacted or promulgated. Landlord shall give prompt notice to Tenant of any
notice it receives relative to the violation by Tenant of any law or requirement
of any public authority with respect to the Premises or the use or occupation
thereof.
(d) Tenant shall not suffer nor permit the Premises nor any pan thereof to
be used for the generation, storage or disposal of Hazardous Materials. The term
"Hazardous Material" shall mean asbestos, petroleum products and any other
chemical, waste or substance which has been determined to be hazardous or a
pollutant or is otherwise regulated by the U.S. Environmental Protection Agency
which substance the Property (or any part thereof) to be subject to liability
under or in violation of any applicable environmental laws; provided, however
the term "Hazardous Material" shall not include materials which are stored or
used in the ordinary course of Tenant's occupancy at the Property.
7. Services and Utilities: During the term hereof, Tenant shall have the
right to contract in its own name and pay for all charges for electricity, gas,
fuel, water, sanitary sewer, storm drainage, telephone, trash removal, snow
removal, janitorial and any other services or utilities used on, servicing or
assessed against the Premises, provided such service or utility provider permits
separate metering or contracting and Tenant pays for the costs of establishing
any separate metering or contracting as assessed by such service or utility
provider.
8. Quiet Enjoyment: Subject to the provisions of this Lease (specifically
including Tenant's right to cure any default under this Lease), Landlord
covenants that Tenant on paying the rent and performing the covenants of this
Lease on its pan to be performed shall and may peacefully and quietly have, hold
and enjoy the Premises for the term of this Lease.
9. Maintenance and Repairs:
(a) Tenant, at its sole cost and expense, shall keep the interior of the
Premises in good condition and repair, reasonable wear and tear excepted.
Tenant's repair obligations include, without limitation, repairs to: (1) floor
covering; (2) interior partitions; (3) doors; (4) the interior side of demising
walls; (5) electronic, phone and data cabling and related equipment that is
installed by or for the exclusive benefit of Tenant and located in the Premises
or other portions of the Building; (6) supplemental air conditioning units,
private showers and kitchens, including hot water heaters, plumbing, and similar
facilities serving Tenant exclusively; (7) Improvements performed by contractors
retained by Tenant and (8) compliance with all applicable laws, ordinances,
codes, regulations and rules of any public authority relating to Tenant's repair
and maintenance obligations and/or Tenant's occupancy of the Premises; provided,
however, that Landlord shall have sole liability for any compliance with The
Americans with Disabilities Act of 1990 ("ADA").
(b) Landlord shall keep and maintain in good repair and working order and
make repairs to and perform maintenance upon. (1) structural elements of the
Building; (2) mechanical (including HVAC), electrical, plumbing and fire/life
safety systems serving the Building in general; (3) the common areas of the
Property, including but not limited to, landscaping, walkways, and corridors;
(4) the roof of the Building; (5) exterior windows of the Building; and (6) any
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord is
responsible. The costs of such obligations are subject to reimbursement and/or
payment by Tenant as expressly provided in Paragraphs 4 and 5 above, as
applicable.
(c) In the event Landlord or Tenant fails to satisfy its obligations under
subsections (a) and (b) above, the other parry shall, after reasonable notice to
such nonconforming parry, have the right, but shall not be required, to do such
acts and expend such funds at the expense of such non-conforming parry as are
reasonably required to perform such work, with such expenses being paid by such
non-conforming party within thirty days after demand by conforming party. The
conforming party shall have no liability to such non-conforming party for any
damage, inconvenience or interference with the use of the Property by such
non-conforming party as a result of performing any such work.
10. Alterations and Additions:
(a) Tenant, shall not make any alterations, additions, installations,
substitutions, betterments and decorations (collectively "Improvements") in and
to the Premises without Landlord's consent which consent shall not be
unreasonably withheld or delayed. Landlord shall respond within five (5)
business days to any written request for consent to Improvements. If Landlord
shall fail to respond, Landlord's consent to such improvements shall be presumed
to have been given. If Landlord so consents, then:
(1) the Improvements may not result in a violation of or require a change
in any certificate of occupancy applicable to the Premises;
(2) the character, outside appearance of the Premises or any pan thereof
shall not be changed in any material way, and such Improvements shall not
adversely affect or weaken or impair (temporarily or permanently) the structure
of the Premises either during the making of such Improvements or upon their
completion;
(3) in performing the work involved in making such Improvements, Tenant
shall be bound by and observe all of the terms of this Lease and any applicable
laws, regulations, or covenants affecting the Premises; and
(4) Tenant shall provide notice to Landlord, at least ten (10) days prior
to commencement of any Improvements, and Landlord shall be entitled to post
notices on and about the Premises with respect to Landlord's non-liability for
mechanics' liens and Tenant shall not permit such notices to be defaced or
removed.
Notwithstanding the foregoing, Landlord's consent shall not be required for
any nonstructural Improvements costing $50,000.00 or less, however, all such
Improvements shall be subject to other requirements contained in this article.
(b) All Improvements to the Premises, including, by way of illustration but
not by limitation, all counters, screens, grilles, special cabinetry work,
partitions, paneling, carpeting, drapes or other window coverings and light
fixtures, shall be deemed a part of the real estate and the property of Landlord
and shall remain upon and be surrendered with the Premises as a part thereof
without molestation, disturbance or injury at the end of the Lease term, whether
by lapse of time or otherwise. Any such removal, whether required or permitted
by Landlord, shall be at Tenant's sole cost and expense, and Tenant shall
restore the Premises to the condition in which the Premises were prior to the
making of the same, reasonable wear and tear excepted. All movable partitions,
machines and equipment which are installed in the Premises by or for Tenant, and
all furniture, furnishings and other articles of personal property owned by
Tenant and located in the Premises (all of which are herein called "Tenant's
Property") shall be and remain the property of Tenant and may be removed by it
at any time during or at the expiration of the term of this Lease. However, if
any of Tenant's Property is removed, Tenant shall repair or pay the cost of
repairing any damage to the Premises resulting from such removal. All additions
or improvements which are to be surrendered with the Premises shall be
surrendered with the Premises, as a part thereof, at the end of the term or the
earlier termination of this Lease.
(c) If Landlord permits persons requested by Tenant to perform any
Improvements to the Premises, then prior to the commencement of any such work
costing $50,000.00 or more in any one instance, Tenant shall deliver to Landlord
certificates issued by insurance companies qualified to do business in the State
of Florida evidencing that workmen's compensation, public liability insurance
and property damage insurance, all in amounts, with companies and on forms
satisfactory to Landlord, are in force and maintained by all such contractors
and subcontractors engaged by Tenant to perform such work. All such policies
shall name Landlord as an additional insured and shall provide that the same may
not be canceled or modified without thirty (30) days' prior written notice to
Landlord.
11. Entry by Landlord: Landlord and it agents shall have the right to enter
the Premises at all reasonable times and upon reasonable notice for the purpose
of examining or inspecting the same, to supply any services to be provided by
Landlord hereunder, to show the same to prospective tenants or purchasers of the
Premises, to make such alterations, repairs, improvements or additions to the
Premises as Landlord is required to perform under this Lease. Landlord and its
agent may enter the Premises at all times and without advance notice for the
purpose of responding to an actual or apparent emergency.
12. Mechanic's Liens: Tenant shall pay or cause to be paid all costs for
work done by or on behalf of Tenant on the Premises of a character which will or
may result in liens against Landlord's interest in the Building or Premises and
Tenant will keep the Premises and Building free and clear of all mechanic's
liens and other liens on account of work done of or on behalf of Tenant or
persons claiming under Tenant. Tenant hereby agrees to indemnify, defend and
save Landlord harmless of and from all liability, loss, damages, costs or
expenses, including attorneys' fees, incurred in connection with any claims of
any nature whatsoever for work performed for, or materials or supplies furnished
to Tenant, including lien claims of laborers, materialmen or others. Should any
such liens be filed or recorded against the Premises, with respect to work done
for or materials supplied to or on behalf of Tenant or should any action
affecting the title thereto be commenced, Tenant shall cause such liens to be
released of record within thirty (30) days after notice thereof and defend such
action at Tenant's sole cost and expense. If Tenant desires to contest any such
claim of lien, Tenant shall nonetheless cause such lien to be insured against by
purchase of a bond from a title company satisfactory to Landlord at Tenant's
expense. If Tenant shall fail to pay any charge for which such a mechanic's lien
or suit to foreclose such a lien has been recorded or filed and shall not have
caused the lien to be released as aforesaid, Landlord may (but without being
required to do so) pay such lien or claim and any costs associated therewith,
and the amount so paid, together with interest at the Interest Rate, as defined
hereinafter, and reasonable attorneys' fees incurred in connection therewith,
shall be immediately due from Tenant to Landlord as Additional Rent.
13. Damage to Property, Injury to Persons:
(a) Tenant, as a material part of the consideration to be rendered to
Landlord under this Lease, hereby waives all claims of liability against and
hereby indernnifies and agrees to hold harmless Landlord, its agents, employees,
contractor, legal representatives, successors and assigns, from any and all
claims of liability for any injury or damage to any property whatsoever
occurring in, on or about the Property or any part thereof, to the extent such
injury or damage is caused by the negligence, wrongful acts, fault or omission
of Tenant, its agents, contractors, employees, licensees or invitees.
(b) Landlord, as a material part of the consideration to be rendered to
Tenant under this Lease, hereby waives all claims of liability against and
hereby indemnifies and agrees to hold harmless Tenant, its agents, employees,
contractor, legal representatives, successors and assigns, from any and all
claims of liability for any injury or damage to any person or property
whatsoever occurring in, on or about the Property or any part thereof, to the
extent such injury or damage is caused by the negligence, wrongful acts, fault
or omission of Landlord, its agents, contractors, employees, licensees.
14. Insurance:
(a) Property. Landlord shall keep in effect insurance against loss or
damage to the Building or the Property by fire and such other casualties as may
be included within fire, extended coverage and special form insurance covering
the full replacement cost of the Building (but excluding coverage of Tenant's
personal property in, the Premises), and such other insurance as Landlord may
reasonably deem appropriate or as may be reasonably required from time-to-time
by any mortgagee. Tenant shall reimburse Landlord for Tenant's Prorata Share of
the cost of same as part of Expenses as provided in Paragraph 4 above.
(b) Landlord's Liability Insurance. Landlord will maintain commercial
general public liability insurance with respect to the Property, including
contractual liability insurance, with such limits of liability for bodily injury
(including death) and property damage, equal to or greater than the minimum
limits for the liability insurance to be carried by Tenant under this Section.
The insurer shall be a responsible insurance carrier which is authorized to
issue such insurance and licensed to do business in Florida and which has at all
times during the lease term a rating of no less than ANTI in the most current
edition of Best's insurance Reports. At Tenant's request, Landlord will provide
Tenant with a certificate or certificates evidencing such insurance. Tenant
shall reimburse Landlord for Tenant's Prorata Share of the cost of same as part
of Expenses as provided in Paragraph 4 above.
(c) Tenant's Liability Insurance. Tenant, at its own expense, shall keep in
effect commercial general public liability insurance with respect to the
Premises, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $3,000,000. The policy of commercial general public liability
insurance shall name Landlord, Landlord's lender (if any) and if requested by
Landlord, and Landlord's property manager, if any, as additional insureds with
respect to the Premises, shall be written on an "occurrence" basis and not on a
"claims made" basis, shall provide that it is primary with respect to any
policies carried by Landlord and that any coverage carried by Landlord shall be
excess insurance, shall provide that it shall not be cancelable or reduced
without at least 30 days prior written notice to Landlord and Landlord's lender
and shall be issued in form reasonably satisfactory to Landlord- The insurer
shall be a responsible insurance carrier which is authorized to issue such
insurance and licensed to do business in the state in which the Property is
located and which has at all times during the Term a rating of no less than
A/VII u7 the most current edition of Best's Insurance Reports. Tenant shall
deliver to Landlord on or before the Commencement Date, and subsequently
renewals thereof, a certificate of insurance evidencing such coverage and the
waiver of subrogation described below.
(d) Release and Waiver of Subrogation. Landlord and Tenant each waive, and
release each other from and against, all claims for recovery against the other
for any loss or damage to the property of such parry arising out of fire or
other casualty coverable by a standard "Causes of Special Loss" property
insurance policy with such endorsements and additional coverages as are
considered good business practice in such party's business, even if such loss or
damage shall be brought about by The fault or negligence of the other party or
its agents. This waiver and release is effective regardless of whether the
releasing party actually maintains the insurance described above in this
subsection and is not limited to the amount of insurance actually carried, or to
the actual proceeds received after a loss. Each party shall have its insurance
company that issues its property coverage waive any rights of subrogation, and
shall have the insurance company include an endorsement acknowledging this
waiver, if necessary.
(e) Increase of Premiums. Tenant agrees not to do anything or fail to do
anything which will increase the cost of Landlord's insurance or which will
prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed. Landlord warrants that Tenant's occupancy of the Premises for the
permitted use will not in itself cause such an increase in Landlord's insurance
costs.
15. Damage or Destruction to Premises:
(a) In the event that the Premises is damaged by fire or other insured
casualty and the insurance proceeds have been made available therefore by the
holder or holders of any mortgages or deeds of trust covering the Premises,
Landlord shall repair or restore the Premises to the extent of the insurance
proceeds available therefore, provided such repairs and restoration can, in
Landlord's reasonable opinion, be made within twelve (12) months after the
occurrence of such damage without the payment of overtime or other premiums.
Until such repairs and restoration are completed, the Base Rent shall be abated
in proportion to the part of the Premises which is unusable by Tenant in the
conduct of its business, as may be reasonably determined by Landlord. Landlord
agrees to notify Tenant within ten (10) business days after such casualty if it
estimates that it will be unable to repair and restore the Premises within said
twelve (12) month period. Such notice shall set forth the approximate length of
time Landlord estimates will be required to complete such repairs and
restoration. Notwithstanding anything to the contrary contained herein, if
Landlord cannot or estimates it cannot make such repairs and restoration within
said twelve (12) month period, then Tenant may, by written notice to Landlord
cancel this Lease, provided such notice is given to Landlord within fifteen (15)
days after Landlord notifies in writing Tenant of the estimated time for
completion of such repairs and restoration. Except as provided in this
paragraph, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business or property
arising from the making of any such repairs, alterations or improvements in or
to the Premises or fixtures, appurtenances and equipment. Tenant understands
that Landlord will not carry insurance of any kind on Tenant's Property,
including furniture and furnishings, or on any fixtures or equipment removable
by Tenant under the provisions of this Lease, and that Landlord shall not be
obligated to repair any damage thereto or replace the same. In all events,
Landlord shall be entitled to receive any and all insurance proceeds, but
excluding proceeds resulting from policies that Tenant maintains on their
personal property and equipment.
(b) In the case that all or substantially all of the Premises shall be so
injured or damaged, whether by fire or otherwise (so that it cannot be repaired
within said twelve (12) months) that Landlord, within ten (10) business days
after the happening of such injury, shall decide not to reconstruct or rebuild
the Premises, then notwithstanding anything contained herein to the contrary,
upon notice in writing to that effect given by Landlord to Tenant within said
ten (10) days, Tenant shall pay the Base Rent, Additional Rent and all other
payments due from Tenant hereunder properly apportioned up to date of such
casualty, this Lease shall terminate from the date of delivery of said written
notice, and both parties hereto shall be released and discharged from all
further obligations hereunder (except those obligations which expressly survive
termination of the Lease term).
16. Condemnation:
(a) If the whole of the Premises or so much thereof as to render the
balance unusable by Tenant for the proper conduct of its business shall be taken
under power of eminent domain or transferred under threat thereof, then this
Lease, at the option of either Landlord or Tenant exercised by either party
giving notice to the other of such election within thirty (30) days after such
conveyance or taking possession, whichever is earlier, shall forthwith cease and
terminate and the rent shall be duly apportioned as of the date of such taking
or conveyance. No award for any partial or entire taking shall be apportioned
and Tenant hereby assigns to Landlord any award for Tenant's leasehold interest
which may be made in such taking or condemnation, together with any and all
rights of Tenant now or hereafter arising in or to the same or any pan thereof.
Notwithstanding the foregoing, Tenant shall be entitled to seek, directly from
the condemning authority, an award for its removable trade fixtures, equipment
and personal property and relocation expenses, if any, to the extent Landlord's
award is not diminished. In the event of a partial taking which does not result
in a termination of this Lease, Base Rent shall be reduced in proportion to the
reduction in the size of the Premises so taken and this Lease shall be modified
accordingly. Landlord shall use any condemnation award to restore the Premises
to as close as practical to their original condition. Promptly after obtaining
knowledge thereof, Landlord or Tenant, as the case may be, shall notify the
other of any pending or threatened condemnation or taking affecting the
Premises.
(b) If all or any portion of the Premises shall be condemned or taken for
governmental occupancy for a limited period, this Lease shall not terminate and
Landlord shall be entitled to receive the entire amount of any such award or
payment thereof as damages, rent or otherwise. Tenant hereby assigns to Landlord
any award which may be made in such temporary taking, together with any and all
rights of Tenant now or hereafter arising in or to the same or any part thereof.
Tenant shall be entitled to receive an abatement of Base Rent in proportion to
the reduction in the size of the Premises so taken.
17. Reduction of Premises. Assignment and Subletting:
Tenant shall expressly have the right (in compliance with this Paragraph
(17), by operation of law, or otherwise, to sublet, assign, transfer or encumber
this Lease or any interest herein or sublet all or a portion of the Premises
(any and all of which shall hereinafter be referred to as "Transfer") without
Landlord's prior written consent. Any Transfer shall nonetheless be subject to
the following conditions:
(1) such Transfer shall not relieve Tenant of its primary obligations
hereunder, including the obligation for payment of all rents due hereunder;
(2) Landlord, at its option and from time to time after an Event of
Default, may collect the rent from the assignee or sublesee(s), and apply the
net amount collected to the rent herein reserved, but no such collection shall
be deemed a release of Tenant from further performance of covenants on the pan
of Tenant herein contained;
(3) such assignee shall, in writing, assume and agree to perform all of
Tenant's obligations under this Lease; although such assumption shall not be
considered an accord or shall not release Tenant of its obligations under this
Lease;
(4) Tenant is not in default of any term or condition of this Lease at the
time of the assignment or sublet;
(5) all assignments and subleases shall be in writing and a copy thereof
shall be provided to Landlord within ten (10) calendar days prior to its
effective date; and
(6) all subleases are expressly subject and subordinate in all respects to
this Lease.
(7) at Tenant's sole cost and expense, Landlord will construct any and all
demising walls or other improvements, including but not limited to, dock ramps
necessary to cause the reduction premises and the Premises to constitute
separate, contiguous self-contained units of space;
18. Estoppel Certificate-Subordination:
(a) Tenant further agrees at any time and from time to time on or before
fifteen (15) days after written request by Landlord, to execute, acknowledge and
deliver to Landlord an estoppel certificate certifying (to the extent it
believes the same to be true) that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified, and stating the modifications), that there have been no
defaults thereunder by Landlord or Tenant (or if there have been defaults,
setting forth the nature thereof), the date to which the rent and other charges
have been paid, if any, that Tenant claims no present charge, lien, claim or
offset against rent, the rent is not prepaid for more than one month in advance
and such other matters as may be reasonably required by Landlord, Landlord's
mortgagee, or any potential purchaser of the Building. Landlord agrees at any
time or from time to time on or before fifteen (15) days after request by
Tenant, to execute, acknowledge and deliver to Tenant an estoppel certificate
certifying (to the extent of belief of same to be true) that this Lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified, and stating the
modifications), that there have been no defaults thereunder by Landlord or
Tenant (or if there have been defaults, setting forth the nature thereof), the
date to which rent and other charges have been paid, if any, that Landlord
claims no demands for rent or other charges under the Lease other than those due
to the date of such estoppel certificate or as may be due under the lease.
(b) This Lease shall be subject and subordinate at all times to: (i) any
and all ground leases or underlying leases now existing or hereafter executed
affecting all or any part of the Property and (ii) the lien of any mortgage(s)
or deed(s) of trust now existing or hereafter executed for which the Premises
(or any portion thereof), ground leases, underlying leases, or Landlord's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord, at Landlord's option, shall have the
right to subordinate or cause to be subordinated any such ground leases or any
such liens to underlying leases or to this Lease. In the event that any ground
lease or underlying lease terminates for any reason or any mortgage or deed of
trust is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, Tenant shall, notwithstanding such subordination and at the option of
such successor, atom to and become Tenant of the successor in interest to
Landlord, at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver within ten (10) days of request by Landlord and in
the form requested by Landlord or Landlord's lender, any additional documents
evidencing the priority of subordination of this Lease with respect to any such
ground leases or underlying leases or in the lien of any such mortgage or deed
of trust. If reasonably requested by any present or future lender or ground
lessor, Tenant agrees to amend this Lease provided such amendment does not
materially increase the obligations or materially decrease the rights of Tenant
under this Lease.
19. Default:
(a) The happening of any one or more of the following events, which shall
continue after any applicable cure period, shall constitute an "event of
default";
(1) Tenant shall fail to pay when due any installment of Base Rent,
Additional Rent or any other amounts payable hereunder and such failure shall
continue for a period of five (5) days after written notice from Landlord to
Tenant;
(2) This Lease or the Premises or any part thereof shall be taken upon
execution or by other process of law directed against Tenant, or shall be taken
upon or subject to any attachment at the instance of any creditor or claimant
against Tenant, and said attachment shall not be discharged or disposed of
within ninety (90) days after the levy thereof,
(3) Tenant shall file a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or shall voluntarily take advantage of
any such law or act by answer or otherwise, or shall be dissolved or shall make
an assignment for the benefit of creditors;
(4) Involuntary proceedings under any such bankruptcy law or insolvency act
or for the dissolution of Tenant shall be instituted against Tenant, or a
receiver or trustee shall be appointed of all or substantially all of the
property of Tenant, and such proceedings shall not be dismissed or such
receivership or trusteeship vacated within ninety (90) days after such
institution or appointment; and
(5) Tenant shall fail to perform any of the other agreements, terms,
covenants or conditions hereof on Tenant's part to be performed, and such
nonperformance shall continue for a period of thirty (30) days after written
notice thereof by Landlord to Tenant, provided, however, that if Tenant cannot
reasonably cure such nonperformance within thirty (30) days, tenant shall not be
in default if it commences cure within said thirty (30) days and diligently
pursues the same to completion.
(b) Upon the occurrence of an event of default, Landlord shall have the
right, at its election, then or at any time thereafter and while any such event
of default shall continue, either.
(1) To give Tenant written notice of Landlord's intention to terminate this
Lease on the date such notice is given or on any later date specified therein,
whereupon, on the date specified in such notice, Tenant's right to possession of
the Premises shall cease and this Lease shall thereupon be terminated; provided
however, all of Tenants obligations, including but not limited to, the amount of
Base Rent and Additional Rent reserved in this Lease for the balance of the term
hereof, shall immediately be accelerated and due and payable less a credit for
the aggregate market rental value of the Premises for the remainder of the Lease
Term both discounted to present worth at the rate of eight percent (8%) per
annum.
(2) To re-enter and take possession of the Premises or any part thereof and
repossess the same as Landlord's former estate and expel Tenant and those
claiming through or under Tenant, and remove the effects of both or either,
without being liable for prosecution thereof, without being deemed guilty of any
manner of trespass and without prejudice to any remedies for arrears of rent or
preceding breach of covenants or conditions. Should Landlord elect to re-enter
the Premises as provided in this paragraph or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for by law,
Landlord may, from time to time, without terminating this Lease, relet the
Premises or any part thereof in Landlord's or Tenant's name, but for the account
of Tenant, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the term of this Lease)
and on such conditions and upon such other terms (which may be include
concessions of free rent and alteration and repair of the Premises) as Landlord,
in its commercially reasonable judgment, may determine, and Landlord may collect
and receive the rents therefor; provided Landlord shall use commercially
reasonable efforts to mitigate its damages. No such re-entry or taking
possession of the Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention be given to Tenant. No notice bom Landlord hereunder or under a
forcible entry and detainer statute or similar law shall constitute an election
by Landlord to terminate this Lease unless such notice specifically so states.
Landlord reserves the right following any such reentry and/or reletting, to
exercise its right to terminate this Lease by giving Tenant such written notice,
in which event, this Lease will terminate as specified in said notice. In the
event that Landlord elects to take possession without terminating this Lease,
Tenant shall pay to Landlord (i) the rent and other sums as herein provided,
which would be payable hereunder if such repossession had not occurred, less
(ii) the net proceeds, if any, of any reletting of the Premises after deducting
Landlord's reasonable and necessary, third party, repossession costs, brokerage
commissions, and attorneys' fees actually incurred in connection with such
reletting. If, in connection with any reletting, the new lease term extends
beyond the existing term, or the premises covered thereby include other premises
not part of the Premises, a fair apportionment of the rent received from such
reletting and the expenses incurred in connection therewith as provided
aforesaid will be made in determining the net proceeds from such reletting.
Tenant shall pay such rent and other sums to Landlord monthly on the days on
which the rent would have been payable hereunder if possession had not been
retaken.
(c) Suit or suits for the recovery of the amounts and damages set forth
above may be brought by Landlord, from rime to time, at Landlord's election and
nothing herein shall be deemed to require Landlord to await the date whereon
this Lease or the term hereof' would have expired had there been no such default
by Tenant or no such termination, as the case may be.
(d) No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any such
breach of such agreement, term, covenant or condition. No agreement, term,
covenant or condition hereof to be performed or complied with by Tenant, and no
breach thereof, shall be waived, altered or modified except by written
instrument executed by Landlord. No waiver of any breach shall affect or alter
this Lease, but each and every agreement, term, covenant and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach thereof. Notwithstanding any unilateral termination of this
Lease, this Lease shall continue in force and effect as to any provisions hereof
which require observance or performance of Landlord or Tenant subsequent to
termination.
(e) Nothing contained in this paragraph shall limit or prejudice the right
of Landlord to provide and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding, an amount
equal to the maximum allowed by any statute or rule of law governing such
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal to or less than the amounts recoverable,
either as damages or rent, referred to in any of the preceding provisions of
this paragraph.
(f) Any rents or other amounts owing to Landlord hereunder which arc not
paid within ten (10) days of the date they are due, shall thereafter bear
interest from the due date at the rate of eight percent (8%) per annum
("Interest Rate") until paid. Similarly, any amounts paid by Landlord to cure
any default of Tenant or to perform any obligation of Tenant, shall, if not
repaid by Tenant within five (5) days of demand by Landlord, thereafter bear
interest from the date paid by Landlord at the Interest Rate until paid. In
addition to the foregoing, Tenant shall pay to Landlord whenever any Base Rent,
Additional Rent or any other sums due hereunder are not paid when due and remain
unpaid more than five (5) days after written notice from Landlord to Tenant
thereof, a late charge equal to two percent (2%) of the amount due.
(g) Each right and remedy provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for in this
Lease now or hereafter existing at law or in equity or by statute or otherwise,
including, but not limited to, suits for injunctive or declaratory relief and
specific performance. The exercise or commencement of the exercise by Landlord
of any one or more of the rights or remedies provided for in this Lease now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or subsequent exercise by Landlord of any or all other
rights or remedies provided for in this Lease, or now or hereafter existing at
law or in equity or by statue or otherwise.
20. Removal of Tenant's Property. All movable furniture and personal
effects of Tenant not removed from the Premises upon the vacation or abandonment
thereof or upon the termination of this Lease for any cause whatsoever shall
conclusively be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed or otherwise disposed of by Landlord.
21. Holding Over: Should Tenant hold over after the termination of this
Lease and continue to pay rent, Tenant shall become a tenant from month to month
only upon each and all of the terms herein provided as may be applicable to such
month to month tenancy and any such holding over shall not constitute an
extension of this Lease. During such holding over, Tenant shall pay monthly rent
equal to one hundred twenty-five percent (125%) of the last monthly installment
rate plus all other monetary charges as provided herein. Such tenancy shall
continue until terminated by Landlord, as provided by law, or Tenant, until
Tenant shall have given to Landlord upon at least thirty (30) days' written
notice prior to the last day of the calendar month intended as the date of
termination of such month to month tenancy.
22. Surrender and Notice: Upon the expiration or earlier termination of
this Lease, Tenant shall promptly quit and surrender to Landlord the Premises
broom clean, in good order and condition, ordinary wear and tear excepted, and
Tenant shall remove all of its movable furniture and other effects and such
alterations, additions and improvements as Landlord shall require Tenant to
remove pursuant to Paragraph 11 hereof.
23. Authorities for Action and Notice:
(a) Except as otherwise provided herein, Landlord may, for any matter
pertaining to this Lease, act by and through its building manager or any other
person designated in writing from time to time.
(b) All notices or demands required or permitted to be given to Landlord
hereunder shall be in writing, and shall be served by hand delivery or by
deposit in the United States mail, with proper postage prepaid, certified or
registered, return receipt requested, addressed as follows:
Landlord:
Marquette Realty Partners LLC or assigns 350 S. County Road, Suite 201
Palm Beach, FL 33480
with a copy to:
James J. Hurchalla, Esq. or assigns 600 S. Andrews Avenue,
Suite 302 Ft. Lauderdale, FL 33301
(c) All notices or demands required or permitted to be given to Tenant
hereunder shall be in writing and shall be served by hand delivery or by deposit
in the United States Mail, with proper postage prepaid, certified or registered,
return receipt requested, addressed to Tenant as follows:
Tenant:
GE Medical Systems Information Technologies, Inc. 8200 West Tower Avenue,
Milwaukee, Wisconsin 53223 Attn: Jeffrey Mathewson, Global Facilities Manager
with a copy to:
GE Medical Systems Information Technologies, Inc. 8200 West Tower Avenue
Milwaukee, Wisconsin 53223, Arm. Pam Krop, General Counsel
Either party shall have the right to designate in writing, served as above
provided, a different address to which notice is to be provided. All notices or
demands shall be deemed served on the day of delivery if hand delivered, or
three (3) days after deposit in the U.S. Mail, if sent by registered or
certified mail. The foregoing shall in no event prohibit notice from being given
as provided by the federal or state statutes or Rules of Civil Procedure, as the
same may be amended from time to time.
24. Liability of Landlord: Landlord's liability under this Lease shall be
limited to Landlord's estate and interest in the Premises (or to the proceeds
thereof) and no other property or other assets of Landlord or its partners (if
Landlord is a partnership), agents, employees, legal representatives, successors
or assigns, shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this Lease,
the relationship of Landlord and Tenant hereunder or Tenant's use and occupancy
of the Premises.
25. Brokerage: Tenant and Landlord each represent and warrant that it has
not dealt with any Broker in the negotiation of this Lease. Each party hereby
agrees to indemnify and hold the other harmless of and from any and all loss,
costs, damages or expenses (including, without limitation, all attorneys' fees
and disbursements) by reason of any claim of or liability to any broker or
person claiming through said party and arising out of or in connection with the
negotiation, execution and delivery of this Lease.
26. Rights Reserved to Landlord:
(a) Landlord shall have the following rights without liability to Tenant
for damage or injury to property, person or business, except to the extent
directly or indirectly arising from the negligence or willful misconduct of
Landlord (all claims for damage being hereby waived and released), and without
effecting an eviction or disturbance of Tenant's use or possession of the
Premises or giving rise to any claim for setoffs or abatement of rent:
(2) To have pass keys to the Premises;
(3) To decorate, remodel, repair, alter or otherwise prepare the Premises
for reoccupancy during the last six (6) months of the term hereof if, during or
prior to such time, Tenant has vacated the Premises, or at any time after Tenant
abandons the Premises and has removed all of its property and trade fixtures;
(4) To do or permit to be done any work in or about the exterior of the
Building or any adjacent or nearby building, land, street or alley as provided
in this Lease.
27. Transfers of Premises by Landlord. Landlord shall have the right to
transfer and assign, in whole or in part, all of its rights and obligations
under this lease and in the Premises and/or Property referred to herein, and
upon such transfer Landlord shall be released from any obligations hereunder
which arise after the date of such transfer, and Tenant agrees to look solely to
the successor in interest of Landlord for the performance of such obligations.
28. Force Maieure Clause: Wherever there is provided in this Lease a time
limitation for performance by Landlord or Tenant of any obligation, including
but not limited to obligations related to construction, repair, maintenance or
service, but excluding any payment of rent or any other monetary obligation of
Tenant, the time provided for shall be extended for as long as and to the extent
that delay in compliance with such limitation is due to an act of God,
governmental control or other factors beyond the reasonable control of such
party.
29. Attorneys' Fees: In the event of any dispute hereunder, or any default
in the performance of any term or condition of this Lease, the prevailing parry
shall be entitled to recover all costs and expenses associated therewith,
including reasonable attorneys' fees. The prevailing party shall be as
determined by the trier of fact.
Miscellaneous:
(a) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in the event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there shall be added as
a part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable, provided such addition does not increase or decrease the
obligations of or derogate from the rights or powers of either Landlord or
Tenant.
(b) The captions of each paragraph are added as a matter of convenience
only and shall be considered of no effect in the construction of any provision
or provisions of this Lease.
(c) Except as herein specifically set forth, all terms, conditions and
covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respective heirs, administrators, executors,
successors and assigns. The terms, conditions and covenants hereof shall also be
considered to be covenants running with the land.
(d) Tenant and Landlord and the parry executing this Lease on behalf of
each of them represent to each other that such party is authorized to do so by
requisite action of the board of directors or partners, as the case may be, and
agree upon request to deliver to each other a resolution or similar document to
that effect.
(e) This Lease shall be governed by and construed in accordance with the
laws of the State of Florida.
(f) This Lease, together with the exhibits attached hereto, contains the
entire agreement of the parties and may not be amended or modified in any manner
except by an instrument in writing signed by both parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, Landlord and Tenant have executed thus Lease the day
and year first above written
LANDLORD:
ATTEST: MARQUETTE REAL PARTNERS LLC,
a Florida limited liability company
By: By:
- --------------------------
Name (print): Name (print): W. Lawrence LeNere
- --------------------------
Title:. Title: Managing Member
- --------------------------
TENANT:
GE MEDICAL SYSTEMS INFORMATION
TECHNOLOGIES, INC., a Wisconsin
corporation
By:
----------------------------
By:
- ------------------------------
Name (print): Name (print): Pamela S. Krop
- ------------------------------
Title: Title: Vice President and General Counsel
- ------------------------------
EXHIBIT #2
GUARANTY
THIS GUARANTY (the "Guaranty") is made and entered into as of December ti,
2002, by GE Medical Systems, a division of General Electric Company, a New York
corporation (the "Guarantor"), in favor of Marquette Realty Partners LLC, a
Florida limited liability company (together with its successors and assigns,
"Landlord"). Guarantor, having received a copy of that certain Lease dated of
even date herewith (the "Lease") between Landlord, and GE Medical Systems
Information Technologies, Inc., a Wisconsin corporation (together with its
heirs, successors, assigns, transferees, or sublessees, the "Tenant"), hereby
acknowledges that Guarantor has examined the Lease and is familiar with all the
terms, covenants and provisions contained therein, and as an inducement to
Landlord to enter into the Lease, Guarantor does hereby guarantee to Landlord:
(i) the full and prompt payment of all rent (including additional rent) and all
other sums and charges payable by Tenant under the Lease; (ii) the full and
timely performance and observance of all the covenants, terms, conditions, and
agreements therein provided to be performed and observed by Tenant; and (iii)
the full and prompt payment of all costs, expenses and reasonable attorneys'
fees incurred by Landlord in enforcing the Lease and/or this Guaranty; and
Guarantor hereby covenants to and agrees with Landlord that if default shall at
any time be made by Tenant in the payment of any rent or any other sum or charge
payable by Tenant under the Lease, or if Tenant should default in the
performance and observance of any of the covenants, terms, conditions, or
agreements contained in the Lease, Guarantor will forthwith pay such rent and
such other sums and charges to Landlord, and any arrears thereof, and shall
forthwith faithfully perform and fulfill all of such terms, covenants,
conditions, and agreements.
This Guaranty is a guaranty of payment and of performance, and not of
collection. It shall be enforceable against Guarantor without the necessity of
any suit or proceedings on Landlord's pan of any kind or nature whatsoever
against Tenant and without the necessity of any notice of nonpayment,
nonperformance or nonobservance or of any notice of acceptance of this Guaranty
or of any other notice or demand to which Guarantor might otherwise be entitled,
all of which Guarantor hereby expressly waives; and Guarantor hereby expressly
agrees that the validity of this Guaranty and the obligations of the Guarantor
hereunder shall in no way be terminated, affected, diminished, or impaired by
reason of the assertion or the failure to assert by Landlord against Tenant, or
against Tenant's successors and assigns, any of the rights or remedies reserved
to Landlord pursuant to the provisions of the Lease or by relief of Tenant from
any of Tenant's obligations under the Lease or otherwise, including, but not by
way of limitation, the rejection of said Lease in connection with proceedings
under the bankruptcy laws now or hereafter in effect.
This Guaranty shall be a continuing guaranty and the liability of Guarantor
hereunder shall in no way be affected, modified or diminished by reason of any
sublease, assignment, renewal, modification, or extension of the Lease or by
reason of any modification or waiver of or change in any of the terms,
covenants, conditions, or provisions of the Lease, or by reason of any extension
of time that may be granted by Landlord to Tenant, or a changed or different use
of the Premises, or by reason of any dealings or transactions or matters or
things occurring between Landlord and Tenant, whether or not notice thereof is
given to Guarantor.
Guarantor hereby waives (a) presentment, notice of dishonor, protest,
demand for payment, and all notices of any kind, including, without limitation,
notice of acceptance hereof; notice of nonpayment, non-performance, or other
default under the Lease; and notice of any action taken to collect upon or
enforce any of the terms and provisions of the Lease; (b) any subrogation to the
rights of Landlord against Tenant until all of the obligations of Tenant under
the Lease have been fully complied with and the Lease has expired or terminated
and such payments made by Guarantor are not subject to a right of recovery; and
(c) any setoffs or counterclaims against Landlord which would otherwise impair
Landlord's rights against Guarantor hereunder.
The assignment by Landlord of the Lease and/or the rents, profits, avails,
and/or proceeds thereof made either with or without notice to Guarantor shall in
no manner whatsoever release Guarantor from any liability as Guarantor.
All of Landlord's rights and remedies under the Lease or under this
Guaranty are intended to be distinct, separate and cumulative and no such right
or remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others.
Notice of acceptance of this Guaranty and any obligations or liabilities
contracted or incurred by Tenant are all hereby waived by Guarantor.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of Florida.
All of the provisions of this Guaranty shall inure to the benefit of
Landlord and its grantees, successors and assigns and shall inure to the benefit
of any future owner of the fee title of which the Premises are a part, and all
the provisions of this Guaranty shall be binding upon Guarantor and its heirs,
legal representatives, successors, and assigns.
All of Landlord's rights and remedies under the Lease and under this
Guaranty shall be distinct, separate and cumulative and no such right or remedy
shall be exclusive of or a waiver of any of the others.
Initially capitalized terms used but not otherwise defined herein have the
same meanings given them in the Lease.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date
first written above.
GUARANTOR
GE MEDICAL SYSTEMS, a division
of General Electric Company,
a New York corporation
GUARANTOR
GE MEDICAL SYSTEMS, a division of General
Electric Company, a New York corporation
(02/olp/8kolpDEC)