SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-KA
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
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This Form 8-KA restates in its entirety that certain Form 8-K filed by
registrant on December 26, 2002 regarding the subject matter hereof.
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 will pay to an unrelated party a finder's fee of $250,000. The
registrant purchased the property using its working capital, a substantial
portion of which represents the balance of the net proceeds available to the
registrant from a public offering made pursuant to a Registration Statement
declared effective May 24, 2002.
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
Tenant may terminate the lease during the original lease term (but not any
renewal term) following the second lease year upon not less than 12 month's
prior notice, provided no termination would be effective prior to the second
anniversary of the lease. The Tenant may reduce the leased premises by up to
65,000 square feet but the tenant will be responsible for the rent for such
space through the end of the second lease year. 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%. In addition to the basic rent, the Tenant pays the
real estate taxes applicable to the lease plus 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, electrical, plumbing and fire/life safety systems, maintaining the
common areas, roof maintenance, maintenance of exterior windows and maintenance
of any elevators servicing the building all set forth in the lease. The lease
has no guaranty.
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.
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: January 16, 2003 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.
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
Properties, LLC, a Florida limited liability company)("Landlord") 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 right 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 (5) year
renewal term to commence on January 1, 2010, provided Tenant shall have
exercised its option hereunder, and then three (3) subsequent and successive
three (3) 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 thereof and the (3rd) anniversary thereof, as
applicable, of the then scheduled Termination Date, unless the Renewal Term
shall sooner terminate pursuant the terms herein. Each Renewal Term shall
commence on the day following the then scheduled Termination Date, only if
Tenant shall have notified Landlord in writing of Tenant's exercise of such
renewal right not later than one (1) year prior to such Termination Date. 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.
3. Base Rent:
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(a) Tenant shall pay to Landlord, as rent for the Premises ("Base
Rent") the sum of $2,074,237 (being 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, subject
to 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; Base Rent and Additional Rent for the
first full month of the Lease Term and Base Rent for the last 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 (1st) month of the immediately
preceding Lease Year to the first (1st) 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
therefor 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 of 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.
4. Operating Expenses and Taxes:
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(a) Tenant's Pro Rata Share. As of the date hereof and subject to
adjustment as provided in Paragraph 17(b) hereof, (i) 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 the 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
hereinafter 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 begin paying Tenant's Pro Rata
Share 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 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 paid by Landlord 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 party; 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 due and payable for the
current year, including, but not limited to, taxes and assessments levied
in substitution or supplementation in whole or in part 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
or 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 only shall
include that prorated amount which represents the portion of the year
during which Tenant leases the Premises pursuant to the terms herein.
Without limitation, Taxes shall not include any income, capital levy,
franchise, capital stock, gift, estate or inheritance tax, transfer,
documentary or intangible tax. If an assessment is payable in installments,
Taxes for the year shall include only the amount of the installment and any
interest thereon due and payable during that year. If a reduction in Taxes
is obtained for any year of the Term for which Tenant shall have paid
Tenant's Pro Rata Share of Taxes, then 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., $6.00 ---- 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 sixty (60) days 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.
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 provides Landlord with a 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. A portion of the Base Rent payable by Tenant to
Landlord under this Lease shall be allocated by Landlord as a "Capital
Reserve", which Capital Reserve shall be an amount equal to the product of
$.50 and the Rentable Square Footage of the Premises. The Capital Reserve
shall be included in and represent a part of the Base Rent payable by
Tenant pursuant to Paragraph 3(a) above.
6. Character of Occupancy:
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(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 part
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, as of the
date hereof, been determined to be hazardous, or a pollutant, or is
otherwise regulated by the U.S. Environmental Protection Agency which
substance causes the Property (or any part thereof) to be subject to
liability under or in violation of any applicable environmental laws;
provided, however, that 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 part 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:
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(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 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, at its sole cost and expense, shall keep and maintain in
good repair and working order and make repairs to and perform maintenance
upon: (1) structural elements of the Building (including the interior of
the Premises); (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.
(c) In the event Landlord or Tenant fails to satisfy its obligations
under subparagraphs (a) and (b) above, the other party shall, after
reasonable notice to such non-conforming party, have the right, but shall
not be required, to do such acts and expend such funds at the expense of
such non-conforming party as are reasonably required to perform such work,
with such expenses being paid by such non-conforming party within thirty
(30) days after demand by the 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:
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(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 part
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 non-structural 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 indemnifies 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 person or
property whatsoever occurring in, on or about the Property or any part
thereof, except to the extent such injury or damage is caused by the
negligence, wrongful acts, fault or omission of Landlord, its agents,
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, except to the extent such injury or damage is caused by the
negligence, wrongful acts, fault or omission of Tenant, its agents,
employees, licensees or invitees.
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 Pro Rata 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 Paragraph. 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 A/VII 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 Pro Rata Share of the cost of same as part of Expenses as provided
in Paragraph 4 above.
(c) [THIS SECTION WAS STRICKEN FROM THE LEASE AT EXECUTION] 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 in 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 party 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 subparagraph 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 therefor 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 therefor, provided such repairs and
restoration can, in Landlord's reasonable opinion, be made within one
hundred eighty (180) days after the occurrence of such damage without the
payment of overtime or other premiums. Until such repairs and restoration
are completed, the Base Rent and Additional 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 one hundred eighty (180) day 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 one hundred eighty (180) day
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 under property and casualty policies pursuant to which Landlord is
a named insured.
(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 one hundred eighty (180) days) 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). A total destruction of the Premises shall
automatically terminate this Lease.
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 part 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. Assignment and Subletting; Reduction of Premises; Termination
-------------------------------------------------------------
Option:
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(a) Assignment and Subletting. Tenant shall be permitted to assign,
sublet, transfer or encumber this Lease or any interest herein, including,
without limitation, subletting all or a portion of the Premises (any and
all of which shall hereinafter be referred to as "Transfer") provided each
of the following conditions are satisfied:
(1) such consent and resulting assignment 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, may collect the
rent from the assignee, and apply the net amount collected to the rent
herein reserved, but no such collection shall be deemed an acceptance by
Landlord of the assignee as the tenant hereof, or a release of Tenant from
further performance of covenants on the part 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 it requests Landlord's consent; and
(5) all assignments shall be in writing and a copy thereof shall be
provided to Landlord within ten (10) calendar days prior to its effective
date.
(b) Option to Reduce Premises
(1) Tenant shall have the option (the "Reduction Option"), upon
written notice to Landlord (the "Reduction Notice"), to reduce the Premises
by any reasonable portion (the "Reduction Premises") of the approximately
65,000 rentable square feet of the Premises located in the Northwest corner
of the Building, which area includes one single bay dock loading area
proximate thereto and is more particularly shown on Exhibit B attached
hereto and incorporated herein by reference. The Reduction Notice shall
identify the effective date of the return of the Reduction Premises (the
"Reduction Delivery Date"), provided that the Reduction Delivery Date shall
not be earlier than: (i) ninety (90) days after delivery of the Reduction
Notice if delivery of the Reduction Notice occurs during the first year of
the Lease Term or (ii) two hundred ten (210) days after delivery of the
Reduction Notice if delivery of the Reduction Notice occurs after the first
year of the Lease Term. If Tenant does not tender possession of the
Reduction Premises on the Reduction Delivery Date for any reason beyond
Tenant's reasonable control, Tenant shall not be liable for any damage
thereby and Tenant shall not be in default hereunder, but Tenant shall use
its reasonable efforts to tender possession of the Reduction Premises to
Landlord as soon as reasonably possible. In no event shall Tenant be liable
for consequential damages suffered by Landlord.
(2) Upon receipt of the Reduction Notice, Landlord will use
commercially reasonable efforts to lease the Reduction Premises at
commercially reasonable rental rates, and promptly after execution thereof,
Landlord shall deliver to Tenant a true and complete copy of any lease so
entered. Until the first day of the twenty-fourth (24th) month following
the Commencement Date, Tenant shall continue to pay Base Rent and
Additional Rent with respect to the Reduction Premises ("Gap Rent"),
provided that Gap Rent shall be offset by any amounts payable to Landlord
by any tenant under any replacement lease for the Reduction Premises.
Subject to Tenant's obligation to pay Gap Rent as provided herein, upon the
Reduction Delivery Date, the Reduction Premises shall no longer be a part
of the Premises and the Base Rent and Tenant's Pro Rata Share shall be
proportionately decreased to reflect the reduction of the Rentable Square
Footage of the Premises by virtue of the return of the Reduction Premises
to Landlord.
(3) Improvements to Reduction Premises. In connection with any tender
of the Reduction Premises from Tenant to Landlord, Landlord covenants and
warrants to Tenant that:
(i) at its 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;
(ii) construction of or in the Reduction Premises or the Premises
shall not disturb Tenant's occupancy or otherwise interfere with Tenant's
ability to conduct business at the Premises;
(iii) no license, easement or other right of ingress or egress to and
from the Reduction Premises shall encroach upon the Premises;
(iv) for each 1,000 square feet of Rentable Square Footage of the
Premises, no less than two and eight-tenths (2.8) parking spaces adjacent
to the Premises shall be reserved to Tenant; and
(v) Landlord shall not attempt to lease any portion of the Reduction
Premises to any person or entity which engages in a business substantially
similar to that of Tenant.
(c) Termination Option. Notwithstanding anything to the contrary in
this Lease, during the Lease Term, but not during any Renewal Term, Tenant
shall have the option to terminate this Lease, exercisable by notice to
Landlord delivered at least twelve (12) months prior to the effective date
of termination designated by Tenant, provided that no termination shall be
effective prior to the second (2nd) anniversary of the Commencement Date.
18. Estoppel Certificate; Subordination:
-----------------------------------
(a) Any time after the Commencement Date, but no more than two (2)
times each calendar year, Tenant shall on or before fifteen (15) days after
written request by Landlord, 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 the
lien of any mortgage or deed 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, provided such subordination is evidenced by a written
agreement reasonably acceptable to Tenant. Notwithstanding the foregoing,
Landlord, at Landlord's option, shall have the right to subordinate or
cause to be subordinated any such liens to underlying leases or to this
Lease. In the event that 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,
attorn to and become Tenant of the successor in interest to Landlord, at
the option of such successor in interest, provided that such successor in
interest agrees not to disturb Tenant's possession of the Premises pursuant
to a written agreement reasonably satisfactorily to Tenant. Tenant
covenants and agrees to execute and deliver, within thirty (30) days of
request by Landlord and in the form reasonably requested by Landlord or
Landlord's lender and reasonably acceptable to Tenant, any additional
documents evidencing the priority or 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.
19. Default:
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(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 from
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 time 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 are
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 10 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
350 S. County Road, Suite 201
Palm Beach, Florida 33480
with a copy to:
James J. Hurchalla, Esq.
600 S. Andrews Ave, Suite 302
Ft. Lauderdale, Florida 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
Attn: 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:
(1) To enter the Premises as more fully provided in this Lease;
(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. Force Majeure 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.
28. 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, provided such successor in interest of
Landlord assumes all obligations of Landlord under the Lease which arise
after the date of such transfer.
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 party 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.
30. 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 party 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 this Lease the
day and year first above written.
LANDLORD:
ATTEST: MARQUETTE REALTY PARTNERS LLC,
a Florida limited liability company
By: By: /s/ W. Lawrence LeNeve
---------------------------- --------------------------------
Name (print): Name (print): W. Lawrence LeNeve
----------------- ------------------
Title: Title: Managing Member
------------------------- -----------------------------
TENANT:
ATTEST: GE MEDICAL SYSTEMS INFORMATION
TECHNOLOGIES, INC., a Wisconsin
corporation
By: By: /s/ Pamela S. Krop
-------------------------- ------------------------------
Name (print): Name (print): Pamela S. Krop
----------------- ----------------------
Title: ----------------------- Title: Vice President & General Counsel
------------------------------
EXHIBIT A
THE PREMISES
EXHIBIT B
THE REDUCTION PREMISES