Exhibit 10.64
LEASE
AGREEMENT OF LEASE
made this 25th day of January,
between C.P.O.C. REALTY, AN ILLINOIS LIMITED LIABILITY
CORPORATION, C/O WELSH COMPANIES FL., INC., as agent for
OWNER, (hereinafter referred to as “Landlord”)
and CERTIFIED DIABETIC SERVICES, INC., A DELAWARE
CORPORTATION (hereinafter referred to as
“Tenant”).
The following Schedule (the
“Schedule”) is an integral part of this Lease, as are
all of the Exhibits referred to in this Lease. The Schedule, the
Exhibits, and the numbered paragraphs of this Lease, collectively,
contain the terms and conditions of the Lease Agreement between the
Landlord and Tenant.
SCHEDULE
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1.
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Name of
Tenant:
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Certified
Diabetic Services, Inc.
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2.
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Tenant’s
address for notices before possession date:
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3030 S.
Horseshoe Drive, Suite 100.
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3.
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Area being
leased (“Demised Premises”):
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3030 S.
Horseshoe Drive, Suite 100-200.
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4.
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Net Rentable
Square Feet in Demise premises:
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10,490 sq
ft.
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5.
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Tenant’s
use of Demised Premises:
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Administrative
Offices and Related Shipping, Etc.
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6.
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Base Rent (per
year for the First year):
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$68,726.60 plus
sales tax.
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7.
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Monthly
Installments of Base Rent for the First year:
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$ 5,727.22 plus
sales tax.
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8.
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Price per
square foot for the First year :
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$6.55 per sq.
ft.
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9.
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Escalations:
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CPI min 3% 1
max 4% annually.
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10.
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Due at
signing:
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Security
Deposit ($5,727.22).
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11.
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Tenant’s
Proportionate Share of Building:
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31.2%.
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12.
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Security
Deposit payable on execution of Lease:
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One (1)
month’s base rent ($5,727.22).
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13.
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Tenant’s
Real Estate Broker used for this lease:
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N/A.
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14.
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Tenant
improvements, if any:
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$7,000.00
allowance.
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15.
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Commencement
Date :
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June 1,
2002
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16.
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Term
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Five (5)
years.
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17.
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Renewal
Option:
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One (1) Five
(5) year option.
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18.
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The Florida
State sales tax and any similar local tax shall be applicable to
the Base Rent, Additional Rent, and the Index Rent, if any, and
shall be paid by Tenant and shall be at the rate applicable by
state and local law at the time said payments are due, currently
six (6%) percent.
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19.
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Landlord’s name and Address for
notices:
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C. P. O. C.
Realty, LLC.,
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c/o Welsh
Companies FL., Inc., 2400 Ninth Street North, Suite 101,
Naples, FL 34103.
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1. DEMISED PREMISES: Landlord leases to
Tenant and Tenant rents from Landlord those certain premises more
particularly described as 3030 S. Horseshoe Drive, Suites 100-200,
Naples, FL 34104 (the “Demised Premises”).
The Demised Premises consists of
approximately 10,490 sq. ft., the location of which is graphically
shown on Exhibit “A” attached hereto and incorporated
herein by virtue of this reference, however the amount of square
feet is neither guaranteed or warranted, nor is the lease rental
based on such number.
2. LENGTH OF TERM: The term,
Commencement Date, and Termination Date of this Lease are set forth
in the Schedule of this Lease.
3. BASE RENT:
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(a)
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The minimum
base Rent (also referred to as base rent) during the term of this
Lease shall be payable by Tenant in equal monthly. installments on
the first day of each month in advance and shall be at the annual
rate as follows:
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Monthly Base Rent
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State Sales Tax at 6%
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Total Monthly Base
Rent
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6/1/01 — 5/31/02
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$
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5,727.22
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$
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343.63
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$
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6,070.85
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6/1/02 — 5/31/03
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$
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5,899.04
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$
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353.94
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$
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6,252.98
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6/1/03 — 5/31/04
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$
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6,076.01
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$
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364.56
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$
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6,440.57
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6/1/04 — 5/31/05
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$
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6,258.29
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$
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375.50
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$
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6,633.79
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6/1/05 — 5/31/06
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$
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6,446.04
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$
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386.76
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$
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6,832.80
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(b)
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The phrase “Base
Rent” shall mean the fixed minimum rent above specified
without any , set-offs or deductions
whatsoever and without any prior demand being required
therefore.
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(c)
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If the monthly Base Rent is not
received by the Landlord by the fifteenth (15
`h
) of each
month, Tenant shall pay Landlord a late fee of $100.00 per month
that the Base Rent is late.
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(d)
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Additional Rent, as herein
defined, shall be payable by Tenant in equal monthly installments
on the first day of each month in advance during the term of the
Lease, together with all applicable sales tax. Landlord reasonably
estimates that the Additional Rent (exclusive of sales tax) for
calendar year 2002 is estimated to be One thousand Six hundred
Sixty-nine dollars and Sixty-Six cents ($1,669.66) per month, plus
sales tax. However, no warranties or representations are made by
Landlord as to the accuracy of this estimate of Additional Rent,
which estimate is given to Tenant only for Tenant’s planning
purposes. The actual amount of Additional Rent shall be computed as
soon as practical following the end of the calendar year, at which
time the actual amount of Additional Rent that was due Landlord by
Tenant for calendar year 2002 shall be computed. Any amounts still
due and owning Landlord for Tenant for Additional Rent for calendar
year 2002
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shall be paid by Tenant to
Landlord within thirty (30) days of Landlord’s demand
for same; any overage paid by Tenant to Landlord for Additional
Rent for calendar year shall be applied against the Additional Rent
liability owed to Landlord by Tenant for calendar year 2003. The
same policy will apply to subsequent lease years.
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4. ADDITIONAL RENT: In
addition to the foregoing Base Rent, all other payments to be made
by Tenant shall be deemed to be and shall become Additional Rent
hereunder whether or not the same be designated as such; and shall
be due and payable upon demand or together with the next succeeding
installment of rent, whichever shall first occur; and Landlord
shall have the same remedies, for failure to pay the same as for a
non-payment of Base Rent. Only after Landlord has provided proper
notice to Tenant and the appropriate cure period has expired,
Landlord, at its election, shall have the right to pay or do any
act which requires the expenditure of any sums of money by reason
of the failure or neglect of Tenant to perform any of the
provisions of this Lease, and in the event Landlord shall at its
election pay such sums or do such acts requiring the expenditure of
monies, Tenant agrees to pay Landlord, upon demand, all such sums,
and the sum so paid by Landlord, together with interest thereon,
shall be deemed Additional Rent and payable as such.
5. PLACE OF PAYMENTS: All
payment required to be paid by Tenant to Landlord shall be
delivered to: Landlord’s address as shown on the Schedule on
Page 1, without any prior demand for the same.
6. LIMITATIONS OF
REPRESENTATIONS: The Demised Premises are leased pursuant to
the terms and conditions set forth in this Lease. Neither Landlord
nor Landlord’s agents have made any representations,
warranties or promises with respect to the Demised Premises, except
as set forth in this Lease.
7. TENANT’S INSTALLATIONS
AND IMPROVEMENTS: The Landlord shall provide the Demised
Premises according to “Exhibit B” at Landlord’s
expense. Tenant shall fully equip the Demised Premises with all
equipment necessary for the proper operation of Tenant’s
business.
After initial delivery of the
Demised Premises by the Landlord to the Tenant, Tenant will be
responsible for obtaining any building permit required by any
controlling governmental authority in connection with
Tenant’s Work, and Tenant’s work shall be performed in
conformance with all controlling governmental ordinances, laws,
statutes, rules and regulations, and in conformance with any
building permit issued by the controlling governmental authority.
All of Tenant’s work shall be performed pursuant to properly
and competently prepared plans and specifications, and by
qualified, licensed and insured contractors and subcontractors.
Prior to the commencement of any of Tenant’s intended
improvements, the Tenant shall submit appropriate plans and
specifications to the Landlord. The Tenant shall not make, or have
made, any of Tenant’s improvements until such time as the
Landlord approves said improvements, however, the Landlord’s
approval shall not be unreasonably withheld. Landlord also reserves
the right to approve and disapprove, workmanship and construction,
and completion of improvements.
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Approval of Plans and
Specifications for Tenant’s Work: Tenant shall prepare and submit to Landlord, for
Landlord’s approval, which shall not be unreasonably
withheld, professionally prepared plans and specifications for
Tenant’s work, which shall be in such detail as Landlord may
reasonably require and shall include all improvements to be
constructed by Tenant. Within fifteen (15) days after the
plans and specifications are delivered to Landlord, Landlord shall
approve or notify Tenant in writing of any objections to same, and
if Landlord fails to notify Tenant in writing of its objections
within said fifteen (15) day period, Landlord shall be deemed
to have approved the plans and specifications. Tenant shall have
ten (10) days after receipt of Landlord’s written
objections to the detailed plans and specifications to revise same
so as to satisfy any reasonable objections of Landlord, and in
connection therewith shall be required to incorporate any
reasonable changes requested by Landlord. If the parties are
unable, in good faith, to resolve any dispute as to the plans and
specifications within said ten (10) day period, then Landlord
shall have the right to accept Tenant’s Plans and
Specifications as previously submitted by Tenant.
Completion
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of Tenant’s
Work: Upon completion of
Tenant’s Work, Tenant shall obtain lien waivers for all
contractor, subcontractors and suppliers, and Tenant shall provide
Landlord with copies of such lien waivers and with any other
evidence reasonably required by, and satisfactory to, Landlord that
Tenant’s Work has been paid for. It shall also be the sole
responsibility of Tenant to obtain a Certificate of Occupancy for
any of Tenant’s Work, or other similar document issued by the
controlling governmental agency which allows Tenant to open the
Demised Premises to the public, and a copy of same shall be
provided to Landlord.
Conformance to
Codes and Insurance Regulations: Any and all construction,
improvements, additions, and modifications made and/or installed by
either Landlord or Tenant shall be made or installed
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to conform to the
minimum requirements of the insurance service office of the state
having jurisdiction, insuring companies, the National Fire
Protection Association, the national Board of Fire Underwriters,
and all federal, state and municipal codes. All work will meet or
exceed minimum requirements of The Americans with Disabilities Act
(ADA) where applicable. Failure to conform to such minimum
standards by Tenant shall constitute a default on the part of
Tenant and if within twenty (20) days after receipt of a
notice of non-conformance, Tenant has not commenced to cure and
diligently pursue such curative action to completion, Landlord may
declare Tenant in default hereunder.
Tenant Alterations:
Tenant agrees not to make any
alterations or additions that would materially change the Demised
Premises or the appearance of the same from that previously
approved by Landlord, nor to install any additional equipment
therein without, in each instance, obtaining the prior written
consent of Landlord. All alterations and additions to the Demised
Premises shall be made in accordance with all applicable laws, and
where applicable, Tenant shall be required to obtain all necessary
governmental permits prior to commencing. Tenant hereby agrees to
indemnify and holds Landlord harmless from all expenses, liens,
claims, or damages, to either persons or property or the Demised
Premises, arising out of or resulting from the
undertaking,
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making of, or the existence of such
alterations or additions. In the event Tenant, at any time during
the Lease Term Removes any of its trade fixtures, any damage caused
by such removal shall be repaired.
8. USE OF DEMISED PREMISES:
Tenant shall use the Demised Premises for the purposes indicated on
the Schedule on page 1 of this Lease and no other. Tenant shall not
use or permit or suffer the use of the Demised Premises for any
other business or purpose, without the Landlord’s prior
consent, which may be withheld.
9. OPERATION OF BUSINESS:
Tenant shall (a) conduct its business in the entire Demised
Premises; (b) remain open for business during customary
business days and hours; (c) keep the Demised Premises and
exterior and interior portions of windows, doors and all other
glass or plate glass fixtures in a neat, clean and safe condition;
(d) neither solicit business nor distribute advertising matter
in the parking or other common areas.
10. LAWS, WASTE OR NUISANCE:
Tenant shall, at its sole cost and expense; (a) comply with
all governmental laws, ordinances, orders and regulations affecting
the Demised Premises now in force or which hereafter may be in
force; (b) comply with and execute all rules, requirements and
regulations of the Board of Fire Underwriters, Landlord’s
insurance companies and other organizations establishing insurance
rates; (c) not suffer, permit or commit any waste or nuisance;
and (d) not conduct any auction, distress, fire or bankruptcy
sale.
11. AMERICANS WITH DISABILITIES
ACT: With regard to any future construction tenant shall, at
its sole cost and expense, be responsible for compliance with the
Americans with Disabilities Act.
12. SIGNS, AWNINGS AND
CANOPIES: The Tenant shall not place or suffer to be placed or
maintain any sign, awning or canopy in, upon or outside the Demised
Premises or in the Building or within a half mile of the Building;
nor shall Tenant place in the display windows any sign, decoration,
lettering or advertising matter or other thing of any kind without
first obtaining Landlord’s written approval and consent in
each instance. Tenant .shall maintain any such sign or other
installation as may be approved in good condition and
repair.
13. ASSIGNMENT AND
SUBLETTING: Tenant shall first obtain the written consent of
Landlord, which may not be unreasonably withheld by Landlord, in
the exercise of Landlord’s discretion. No assignment, shall
relieve or discharge the Tenant from its obligations hereunder. The
Tenant shall not sublet the Demised Premises without
Landlord’s consent.
14. REPAIRS: Landlord shall
not be required to make any repairs or improvements of any kind
upon the Demised Premises except for necessary exterior structural
repairs and those repairs which relate to the common facilities and
common property. Tenant shall, at its sole cost and expense, take
good care of and make necessary repairs and replacements,
structural and otherwise, to the interior of the Demised Premises
and the fixtures and equipment therein and appurtenances thereto,
including the exterior and interior windows, doors and entrances,
sidewalks, fronts, signs, floor coverings, interior walls, columns
and partitions.
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15. TENANT’S FAILURE TO REPAIR: If
Tenant (a) refuses or neglects to make repairs, or (b) if
Landlord is required to make exterior or structural repairs by
reason of Tenant’s negligent acts or omissions, Landlord
shall have the right, but shall not be obligated, to make such
repairs on behalf of and for the account of Tenant. In such event,
such work shall be paid by Tenant as Additional Rent promptly upon
receipt of a bill thereof.
16. CONSTRUCTION LIENS:
Should any construction or other liens be filed against the Demised
Premises or any part thereof for any reason whatsoever by reason of
Tenant’s acts or omissions or because of a claim against
Tenant, Tenant shall cause the same to be canceled and discharged
of record by bond or otherwise upon reasonable notice by Landlord.
In the event Tenant does not cause the same to be canceled and
discharged within ten (10) days of receipt of said notice,
Landlord may cause the same to be canceled and discharged and
Tenant shall be responsible to pay Landlord all reasonable costs
and expenses incurred to discharge said lien together with interest
at the maximum allowable rate.
17. UTILITY CHARGES: Landlord
shall not be liable in the event of any interruption in the supply
of any utilities. Tenant agrees that it will not install any
equipment which will exceed or overload the capacity of any utility
facilities and that if any equipment installed by Tenant shall
require additional utility facilities, the same will be installed
at Tenant’s expense in accordance with plans and
specifications to be approved in writing by Landlord. Tenant shall
be solely responsible for and shall promptly pay all charges for
use of consumption for electricity, unless such charges are a part
of the common expenses as described herein. Tenant agrees to
purchase and pay for water and sewer.
18. TAXES: Landlord shall pay
all real property taxes which may be levied or assessed by any
lawful authority against the land, the Building, and improvements
in the Building. Tenant shall pay as Additional Rent, within ten
(10) days after a demand is made by the Landlord, its
proportionate share of any real property taxes, levied or assessed
and its proportionate share of any other charges or levies made by
any lawful authority against the land and improvements of the
Building. If taxes are paid in arrears, the Landlord shall have the
right to collect such funds in advance, on a monthly basis, during
the Lease year based upon last year’s taxes or some other
reasonable method of calculating what such taxes shall
be.
The proportion to be paid is based
upon Tenant’s proportionate share of the Building as set
forth in the Schedule on Page 1 of this Lease. The Tenant’s
share of taxes shall be collected as Additional Rent in advance in
equal monthly installments, the amount of which shall be computed
by the Landlord based upon his reasonable calculation of the taxes
that will be owed for the property when such taxes are
payable.
If the total of such monthly
remittances is greater than the Additional Rent due hereunder for
the tax year, Tenant may credit the difference against the next
installment of Additional Rent due to Landlord hereunder. If the
total of such remittances is less than the Additional Rent due for
such tax year, Tenant shall pay the difference to Landlord at the
time that Landlord provides a certification that explains the
additional amount due.
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Tenant shall pay all assessments and all taxes
levied on its own personal property. Tenant shall further pay, as
Additional Rent, any tax that may be levied, or assessed upon the
rent payable hereunder by any governmental authority acting under
any present or future laws. However, such obligation shall not
include the Landlord’s obligation to pay income tax. Tenant
shall not have the right to make application for or to bring
proceedings related to the assessed valuation of any land or
building in the Building.
19. MAINTENANCE OF COMMON
AREAS: All common areas and other facilities in or about the
Building provided by Landlord shall be subject to the exclusive
control and management of Landlord. Landlord shall have the right
to change the area, level, location and arrangement of parking
areas and other facilities; to restrict parking by Tenants, their
officers, agents and employees; to close all or any portion of said
areas or facilities to such extent as may be legally sufficient to
prevent a dedication therein or the accrual of any right to any
person or the public therein; to close temporarily all or any
portion of the parking areas or facilities to discourage
non-customer parking. Landlord shall operate and maintain the
common facilities in such manner as Landlord in its discretion
shall determine; but in all times in a manner befitting a first
class business location, and Landlord shall have full right and
authority to employ and discharge all personnel with respect
thereto.
20. COMMON AREA MAINTENANCE COSTS
AS ADDITIONAL RENT: Tenant, as Additional Rent, agrees to pay
to Landlord, without offset of deduction, in equal monthly
installments on the first day of each and every calendar month
during the term hereof (pro-rata for that portion of the calendar
month in which the term hereof shall commence, if such portion is
shorter than a full month) as its share of the cost to Landlord of
keeping and maintaining the parking areas and other common
facilities, as set forth herein, an annual amount equal to
(a) Tenant’s pro-rata share as defined hereinafter of
all costs and expenses of every kind and nature as may be paid or
incurred by Landlord during the Lease Term (including appropriate
reserves) in operating, managing, equipping, lighting, repairing,
replacing and maintaining the common areas, parking areas, common
facilities and related services, and in policing the Building and
affording protection thereof against fire and other natural
disasters (if and to the extent that such policing and/or fire
protection is provided) as determined in accordance with generally
accepted accounting principles and allocated to any particular
fiscal year on the accrual method of accounting.
21. INSURANCE COSTS AND
ADDITIONAL RENT:
Landlord’s
Insurance. Landlord shall
procure and maintain throughout the term of this Lease, a special
perils insurance policy which shall insure the Building for losses
caused by. fire, windstorm, and flood. However, the parties
recognize that flood insurance will not be available through a
commercial carrier if the property is within an area designated by
the Secretary of Housing and Urban Development as having special
flood hazards. In that case, i.e., where commercial flood insurance
is not available, Landlord shall also procure and maintain
throughout the term of the Lease flood insurance on the Building in
accordance with Title 44, Code of Federal Regulations and Title 42,
United States Code. The Landlord shall also maintain liability
insurance in commercially reasonable amounts. Tenant agrees to pay
its pro rata share of the cost of all such insurance coverage as a
part of its Additional Rent. Tenant agrees that it will not keep,
use, sell, or offer for sale, in or upon the Demised Premises, any
article which may be prohibited by the Landlord’s insurance
policy. In the event, there is an increase in the premium charged
by the insuring company or its authorized agent as a result of
Tenant’s use or occupancy of the Demised Premises, Tenant
shall pay upon demand the increase in the premium.
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Tenant’s
Insurance. Tenant shall,
during the Lease Term, at its sole cost, risk and obligation, keep
in full force and effect a policy of public