LEASE AGREEMENT BETWEEN
SKW II REAL ESTATE PARTNERSHIP, AS LANDLORD,
AND
FINANTRA CAPITAL, INC., AS TENANT
DATED _______________________________, 1998
FLORIDA
______________________________________________________________________________
LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as of
_____________, 19___, between SKW II REAL ESTATE LIMITED PARTNERSHIP, a
Delaware limited partnership ("Landlord"), and FINANTRA CAPITAL, INC., a
Florida corporation ("Tenant").
1. Lease Grant. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, Suite No. 500 (the "Premises.) in the
office building (the "Building") located at 000 Xxxxx Xxxx Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000. The land on which the Building is located and the
Premises are described on Exhibit A. The term "Building" includes the related
land, driveways, parking facilities, and similar improvements.
2. Term. The term of this Lease (the "Term", which definition shall
include all renewals of the initial Term) shall be for a period, unless
extended or sooner terminated as herein provided, commencing on the
commencement date (the "Commencement Date") and expiring at 5:00 p.m. on the
last day of the sixty (60) full month thereafter. The Commencement Date shall
be the earlier to occur of (i) the date Tenant moves into the Premises or any
portion thereof for the commencement of business; or (ii) the ninety-first day
following the full execution of this Lease. Tenant and Tenant's Agents shall be
granted immediate access to the Building and the Premises upon the full
execution of the Lease in order to commence construction. Tenant agrees to use
due diligence in obtaining all permits and completion of all construction so as
to ready the Premises for occupancy.
3. Rent.
(a) Basic Rent. "Basic Rent" (herein so called) shall be the
following amounts for the following periods of time:
Months Monthly Basic Rent
01-12 $16,750.21
13-24 $17,252.71
25-36 $17,770.30
37-48 $18,303.40
49-60 $18,852.51
(b) Payment. Tenant shall timely pay to Landlord Basic Rent and all
additional sums to be paid by Tenant to Landlord under this Lease
(collectively, the "Rent"), without deduction or set off, at Landlord's address
provided for in this Lease or as otherwise specified by Landlord. Basic Rent,
adjusted as herein provided, shall be payable monthly in advance, and shall be
accompanied by all applicable state and local sales or use taxes. The first
monthly installment of Basic Rent shall be payable contemporaneously with the
execution of this Lease; thereafter, Basic Rent shall be payable on the first
day of each month beginning on the
first day of the second full calendar month of the Term. The monthly Basic Rent
for any partial month at the beginning of the Term shall equal the product of
1/365 of the annual Basic Rent in effect during the partial month and the
number of days in the partial month from and after the Commencement Date, and
shall be due on the Commencement Date.
(c) Operating Expenses.
(1) During each calendar year after the 1999
calendar year, year which includes the Lease Commencement Date, Tenant shall
pay an amount (per each rentable square foot in the Premises) ("Additional
Rent") equal to the difference between the Operating Costs (defined below) per
rentable square foot in the Building and the actual Operating Costs for the
calendar year 1999 (the "Expense Stop"). Landlord may collect such amount in a
lump sum, which shall be due within 30 days after Landlord furnishes to Tenant
the Operating Costs and Tax Statement (defined below). Alternatively, Landlord
may make a good faith estimate of the Additional Rent to be due by Tenant for
any calendar year subsequent to the 1999 calendar year which includes the
Commencement Date or part thereof during the Term ,and Tenant shall pay to
Landlord, commencing January 1, 2000 and on the first day of each calendar
month thereafter in advance, an amount equal to the estimated Additional Rent
for such calendar year or part thereof divided by the number of months therein.
From time to time, Landlord may estimate and re-estimate the Additional Rent
to be paid by Tenant and deliver a copy of the estimate or re-estimate to
Tenant. Thereafter, the monthly installments of Additional Rent payable by
Tenant shall be appropriately adjusted tn accordance with the estimations so
that, by the end of the calendar year in question, Tenant shall have paid all
of the Additional Rent as estimated by Landlord. Any amounts paid based on such
an estimate shall be subject to adjustment as herein provided when actual
Operating Costs are available for each calendar year.
(2) The term "Operating Costs" shall mean all
expenses and disbursements (subject to the limitations set forth below) that
Landlord incurs in connection with the ownership, operation, and maintenance of
the Building, determined in accordance with sound accounting principles
consistently applied, including, but not limited to, the following costs: (A)
wages and salaries (including management fees) of all employees engaged in the
operation, maintenance, and security of the Building, including taxes,
insurance and benefits relating thereto; (B) all supplies and materials used in
the operation, maintenance, repair, replacement, and security of the Building;
(C) costs for improvements made to the Building which, although capital in
nature, are expected to reduce the normal operating costs of the Building, as
well as capital improvements made in order to comply with any law hereafter
promulgated by any governmental authority, as amortized over the useful
economic life of such improvements as determined by Landlord in its reasonable
discretion; (D) cost of all utilities, except the cost of utilities
reimbursable to Landlord by the Building's tenants other than pursuant to a
provision similar to this Section 3.(c); (E) insurance expenses; (F) repairs,
replacements, and general maintenance of the Building, and (G) service or
maintenance contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of the Building (including,
without limitation, alarm service, window cleaning, and elevator maintenance).
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Operating Costs shall not include costs for (i) capital improvements made to
the Building, other than capital improvements described in Section 3.(c)(2)(C)
and except for items which are generally considered maintenance and repair
items, such as painting of common areas, replacement of carpet in elevator
lobbies. and the like; (ii) repair, replacements and general maintenance paid
by proceeds of insurance or by Tenant or other third parties; (iii) interest,
amortization or other payments on loans to Landlord; (iv) depreciation; (v)
leasing commissions; (vi) legal expenses for services, other than those that
benefit the Building tenants generally (e.g., tax disputes); (vii) renovating
or otherwise improving space for occupants of the Building or vacant space in
the Building; (viii) Taxes (defined below), and (ix) federal income taxes
imposed on or measured by the income of Landlord from the operation of the
Building.
(3) During each calendar year after the 1999
calendar year Tenant shall also pay a proportionate share of the increase in
Taxes for each year and partial year falling within the Term over and above the
1999 Taxes. Tenant's proportionate share shall be determined by multiplying the
aggregate Taxes by a fraction, the numerator of which is the number of rentable
square feet in the Premises and the denominator of which is thc number of
rentable square feet in the Building. Tenant shall pay its proportionate share
of Taxes in the same manner as provided above for Additional Rent with regard
to Operating Costs. "Taxes" shall mean taxes, assessments, and governmental
charges whether federal, state, county or municipal and whether they be by
taxing districts or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments attributable to the
Building (or its operation), excluding, however, penalties and interest thereon
and federal and state taxes on income (if the present method of taxation
changes so that in lieu of the whole or any part of any Taxes, there is levied
on Landlord a capital tax directly on the rents received therefrom or a
franchise tax assessment, or charge based, in whole or in part, upon such rents
for the Building, then all such taxes, assessments, or charges, or the part
thereof so based, shall be deemed to be included within the term "Taxes" for
purposes hereof);
(4) By April 1 of each calendar year, or as soon
thereafter as practicable, Landlord shall furnish to Tenant a statement of
Operating Costs for the previous year, adjusted as provided in Section 3.(c)6),
and of the Taxes for the previous year (the "Operating Costs and Tax
Statement"). If the Operating Costs and Tax Statement reveals that Tenant paid
more for Operating Costs than the actual amount for the year for which such
statement was prepared, or more than its actual share of Taxes for such year,
then Landlord shall promptly credit or reimburse, at Landlord s option, Tenant
for such excess; likewise, if Tenant paid less than the actual Additional Rent
or share of Taxes due, then Tenant shall promptly pay Landlord such deficiency.
(5) As used herein, Tenant's "Proportionate Share"
shall be 9.78%, which is the percentage obtained by dividing the rentable
square feet of area in the Premises, which is stipulated to be 9805 rentable
square feet by the total number of square feet of area in the Building, which
is stipulated to be 100,303 rentable square feet.
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(6) Notwithstanding anything contained herein this
Article 3.(d) to the contrary, it is mutually understood and agreed, Tenant's
payments as set forth herein this Article 3.(d) shall not increase greater than
six percent (6%) per annum from prior lease years . However, said limitation
shall be exclusive of Real Estate Taxes, Insurance, Utilities, and expenses or
costs which increase as a result of federal minimum wage standards. For
purposes of this provision, the actual 1999 Operating Costs, as calculated by
Landlord and as set forth herein this Article 3.(d) shall be utilized as the
basis for establishing said limitation.
4. Delinquent Payment; Handling Charges. All payments not paid within
five (5) days when due required of Tenant hereunder shall bear interest from
the date due until paid at the greater of one and one-half (1 1/2) percent per
month or the maximum lawful rate of interest; alternatively, Landlord may
charge Tenant a fee equal to 5% of the delinquent payment to reimburse Landlord
for its cost and inconvenience incurred as a consequence of Tenant's
delinquency. In no event, however, shall the charges permitted under this
Section 4 or elsewhere in this Lease, to the extent they are considered to be
interest under law, exceed the maximum lawful rate of interest.
5. Security Deposit. Contemporaneously with the execution of this
Lease, Tenant shall pay to Landlord $16,750.21 (the "Security Deposit"), which
shall be held by Landlord to secure Tenant's performance of its obligations
under this Lease. The Security Deposit is not an advance payment of Rent or a
measure or limit of Landlord's damages upon an Event of Default (defined in
Section 16). Landlord may, from time to time and without prejudice to any other
remedy, use all or a part of the Security Deposit to perform any obligation
Tenant fails to perform hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. Provided that
Tenant has performed all of its obligations hereunder, Landlord shall within 30
days after the Term ends, return to Tenant the portion of the Security Deposit
which was not applied to satisfy Tenant's obligations. The Security deposit may
be commingled with other funds, and no interest shall be paid thereon. If
Landlord transfers its interest in the Premises and the transferee assumes
Landlord's obligations under this Lease, then Landlord may assign the Security
Deposit to the transferee and Landlord thereafter shall have no further
liability for the return of the Security Deposit.
6. Landlord's Obligations.
(a) Services. Landlord shall furnish to Tenant (1) water at
those points of supply provided for general use of tenants of the Building and
if applicable to the Premises, provided plumbing is agreed to as part of the
Working Drawings, as set forth in Exhibit C of this Lease; (2) heated and
refrigerated air conditioning as appropriate, at such temperatures and in such
amounts as are standard for comparable buildings in the vicinity of the
Building; (3) janitorial service to the Premises on weekdays, other than
holidays, for Building-standard installations and such window washing as may
from time to time be reasonably required;
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(4) elevators for ingress and egress to the floor on which the Premises are
located, in common with other tenants, provided that Landlord may reasonably
limit the number of operating elevators during non-business hours and holidays;
and (5) electrical current during normal business hours for equipment that does
not require more than 110 volts and whose electrical energy consumption does
not exceed normal office usage. Landlord shall maintain the common areas of the
Building in reasonably good order and condition, except for damage caused by
Tenant, or its employees, agents or invitees. If Tenant desires any of the
services specified in this Section 6.(a) at any time other than (A) between
7:00 am. and 7:00 p on weekdays, (B) 7:00 am. to 1:00 p.m. on Saturday, or (C)
on Sunday or holidays, then such services shall be supplied to Tenant upon the
written request of Tenant delivered to Landlord before 3:00 p.m. on the
business day preceding such extra usage, and Tenant shall pay to Landlord the
cost of such services, currently stipulated to be $25.00 per hour within ten
days after Landlord has delivered to Tenant an invoice therefor.
(b) Excess Utility Use. Landlord shall not be required to
furnish electrical current for equipment that requires more than 110 volts or
other equipment whose electrical energy consumption exceeds normal office usage
. If Tenants requirements for or consumption of electricity exceed the electric
to be provided by Landlord as described in Section 6.(a), Landlord shall, at
Tenant's expense, make reasonable efforts to supply such service through the
then- existing feeders and risers serving the Building and the Premises. and
Tenant shall pay to Landlord the cost of such service within ten days after
Landlord has delivered to Tenant an invoice therefor. Landlord may determine
the amount of such additional consumption and potential consumption by any
verifiable method, including installation of a separate meter in the Premises
installed, maintained, and read by Landlord, at Tenant's expense. Tenant shall
not install any electrical equipment requiring special wiring or requiring
voltage in excess of 110 volts or otherwise exceeding Building unless approved
in advance by Landlord. The use of electricity in the Premises shall not exceed
the capacity of existing feeders and risers to or wiring in the Premises. Any
risers or wiring required to meet Tenant's excess electrical requirements
shall, upon Tenant's written request, be installed by Landlord at Tenant's
cost, if in Landlord's judgment, the same are necessary and shall not cause
permanent damage to the Building or the Premises, cause or create a dangerous
or hazardous condition, entail excessive or unreasonable alterations, repairs,
or expenses, or interfere with or disturb other tenants of the Building. If
Tenant uses machines or equipment in the Premises which affect the temperature
otherwise maintained by the air conditioning system or otherwise overload any
utility, Landlord may install supplemental air conditioning units or other
supplemental equipment in the Premises, and the cost thereof, including the
cost of installation, operation, use, and maintenance, shall be paid by Tenant
to Landlord within ten days after Landlord has delivered to Tenant an invoice
therefor.
(c) Restoration of Services; Abatement. Landlord shall use
reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not meter Landlord liable for
any damages caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Tenant's obligations hereunder. If, however,
Tenant
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is prevented from using the Premises for more than 15 consecutive business days
because of the unavailability of any such service, then Tenant shall, as its
exclusive remedy be entitled to a reasonable abatement of Rent for each
consecutive day (after such 15 day period) that Tenant is so prevented from
using the Premises.
7. Improvements; Alterations; Repairs; Maintenance.
(a) Improvements; Alterations. Improvements to the Premises
shall be installed at Tenant's expense only in accordance with plans and
specifications which have been previously submitted to and approved in writing
by Landlord. No alterations or physical additions in or to the Premises may be
made without Landlord's prior written consent, which shall not be unreasonably
withheld or delayed; however, Landlord may withhold its consent to any
alteration or addition that would affect the Building's structure or its HVAC,
plumbing, electrical or mechanical systems. Tenant shall not paint or install
lighting or decorations, sign, window or door lettering, or advertising media
of any type on or about the Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed; however,
Landlord may withhold its consent to any such painting or installation which
would affect the appearance of the exterior of the Building or of any common
areas of the Building. All alterations, additions, or improvements made in or
upon the Premises shall remain on the Premises at the end of the Term without
compensation to Tenant. All alterations, additions, and improvements shall be
constructed, maintained, and used by Tenant, at its risk and expense, in
accordance with all laws; Landlord's approval of the plans and specifications
therefor shall not be a representation by Landlord that such alterations
additions, or improvements comply with any law.
(b) Repairs; Maintenance. Tenant shall maintain the Premises
in a clean, safe, and operable condition and shall Dot permit or allow to
remain any waste or damage to any portion of the Premises. Tenant shall repair
or replace, subject to Landlord's direction and supervision, any damage to the
Building caused by Tenant, Tenant's transferees, or their respective agents,
contractors, or invitees. If Tenant fails to make such repairs or replacements
within 15 days after the occurrence of such damage, then Landlord may make the
same at Tenant's cost. If any such damage occurs outside of the Premises, then
Landlord may elect to repair such damage at Tenant's expense, rather than
having Tenant repair such damage. The cost of all repair or replacement work
performed by Landlord under this Section 7 shall be paid by Tenant to Landlord
within ten days after Landlord has invoiced Tenant therefor.
(c) Performance of Work. All work described in this Section 7
shall be performed only by Landlord or by contractors and subcontractors
approved in writing by Landlord. Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage naming Landlord as an
additional insured against such risks, in such amounts, and with such companies
as Landlord may reasonably require. All such work shall be performed in
accordance with all legal requirements and in a good and workmanlike manner so
as not to damage the Premises, the Building, or the components thereof.
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(d) Mechanic's Liens. Tenant shall not permit any mechanic's
liens to be filed against the Premises or the Building for any work performed,
materials furnished, or obligation incurred by or at the request of Tenant. If
such a lien is filed, then Tenant shall, within ten days after Landlord has
delivered notice of the filing thereof to Tenant, either pay the amount of the
lien or diligently contest such lien and deliver to Landlord a bond or other
security reasonably satisfactory to Landlord. If Tenant fails to timely take
either such action, then Landlord may pay the lien claim, and any amounts so
paid, including expenses and interest, shall be paid by Tenant to Landlord
within ten days after Landlord has invoiced Tenant therefor.
8. Use. Tenant shall occupy and use the Premises only for General
Office Use (the "Permitted Use") and shall comply with all laws, orders, rules,
and regulations relating to the use, condition, access to, and occupancy of the
Premises. The Premises shall not be used for any use which is disreputable,
creates extraordinary fire hazards, or results in an increased rate of
insurance on the Building or its contents, or for the storage of any hazardous
materials or substances If, because of Tenant's acts, the rate of insurance on
the Building or its contents increases, then such acts shall be an Event of
Default, Tenant shall pay to Landlord the amount of such increase on demand,
and acceptance of such payment shall not waive any of Landlord's other rights
Tenant shall conduct its business and control its agents, employees, and
invitees in such a manner as not to create any nuisance or unreasonably
interfere with other tenants or Landlord in its management of the Building.
9. Assignment and Subletting.
(a) Transfers; Consent. Tenant shall not, without the prior
written consent of Landlord. (1) assign, transfer, or encumber this Lease or
any estate or interest herein, whether directly or by operation of law, (2)
permit any other entity to become Tenant hereunder by merger, consolidation, or
other reorganization, (3) if Tenant is an entity other than a corporation whose
stock is publicly traded, permit the transfer of an ownership interest in
Tenant so as to result in a change in the current control of Tenant, (4) sublet
any portion of the Premises (5) grant any license, concession, or other right
of occupancy of any portion of the Premises, or (6) permit the use of the
Premises by any parties other than Tenant (any of the events Listed in Section
9.(a)(l) through 9.(a)(4), 9.(a)(5), 9.(a)(6) being a "Transfer"). However, the
foregoing, specifically as noted in 9(a)(6) above shall not apply to Tenant's
affiliated companies, provided (1) in Landlord's sole and absolute discretion
the proposed transferee's use is consistent with the nature and operation of
the Building, (2) is of a creditworthiness equal to or greater than Tenant, (3)
operates the same business as Tenant and does not conflict with any exclusive
use rights which may exist in the Building, and (4) Tenant provides the
documentation relative to the proposed transferee as provided in the next
sentence of this Article 9(a). If Tenant requests Landlord's consent to a
Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee:
name and address; reasonably satisfactory information about its business and
business history, its proposed use of the Premises;
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banking, financial. and other credit information; and general references
sufficient to enable Landlord to determine the proposed transferee's
creditworthiness and character. Landlord shall not unreasonably withhold its
consent to any assignment or subletting of the Premises, provided that the
proposed transferee (A) is creditworthy, (B) has a good reputation in the
business community, (C) does not engage in business similar to those of other
tenants in the Building, and (D) is not another occupant of the Building;
otherwise, Landlord may withhold its consent in its sole discretion.
Concurrently with Tenants notice of any request for consent to a Transfer,
Tenant shall pay to Landlord a fee of $75.00 to defray Landlord's expenses in
reviewing such request, and Tenant shall also reimburse Landlord immediately
upon request for its attorneys' fees incurred in connection with considering
any request for consent to a Transfer. If Landlord consents to a proposed
Transfer, then the proposed transferee shall deliver to Landlord a written
agreement whereby it expressly assumes the Tenants obligations hereunder,
however, any transferee of less than all of the space in the Premises shall be
liable only for obligations under this Lease that are properly allocable to the
space subject to the Transfer for the period of the Transfer. Landlord's
consent to a Transfer shall not release Tenant from its obligations under this
Lease, but rather Tenant and its transferee shall be jointly and severally
liable therefor. In the event, however, Tenant assigns this Lease to a
non-related 3rd party, acceptable to Landlord, in Landlord's sole and absolute
discretion, Landlord at is option may elect to release Tenant from this Lease.
Landlord's consent to any Transfer shall not waive Landlord's rights as to any
subsequent Transfers. If an Event of Default occurs while the Premises or any
part thereof are subject to a Transfer, then Landlord, in addition to its other
remedies, may collect directly from such transferee all rents becoming due to
Tenant and apply such rents against Rent. Tenant authorizes its transferees to
make payments of rent directly to Landlord upon receipt of notice from Landlord
to do so.
(b) Cancellation. Landlord may, within 30 days after
submission of Tenant's written for Landlord's consent to an assignment or
subletting, cancel this Lease as to the portion of the Premises proposed to be
sublet or assigned as of the date the proposed Transfer is to be effective. If
Landlord cancels this Lease as to any portion of the Premises, then this Lease
shall cease for such portion of the Premises and Tenant shall pay to Landlord
all Rent accrued through the cancellation date relating to the portion of the
Premises covered by the proposed Transfer. Thereafter, Landlord may lease such
portion of the Premises to the prospective transferee (or to any other person)
without liability to Tenant.
(c) Additional Compensation. Tenant shall pay to Landlord,
immediately upon receipt thereof, the excess of (1) all compensation received
by Tenant for a Transfer less the costs reasonably incurred by Tenant with
unaffiliated third parties in connection with such Transfer (i.e., brokerage
commissions, tenant finish work, and the like) over (2) the Rent allocable to
the portion of the Premises covered thereby.
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10. Insurance; Waivers; Subrogation; Indemnity.
(a) Insurance. Tenant shall maintain throughout the Term the
following insurance policies: (1) comprehensive general liability insurance in
amounts of not less than a combined single limit of $2,000,000 or such other
amounts as Landlord may from time to time reasonably require, insuring Tenant,
Landlord. Landlord's agents and their respective affiliates against all
liability for injury to or death of a person or persons or damage to property
arising from the use and occupancy of the Premises,(2) insurance covering the
full value of Tenant's property and improvements, and other property (including
property of others) in the Premises, (3) contractual liability insurance
sufficient to cover Tenant's indemnity obligations hereunder, (4) worker's
compensation insurance, containing a waiver of subrogation endorsement
acceptable to Landlord, and (5) business interruption insurance. Tenant's
insurance shall provide primary coverage to Landlord when any policy issued to
Landlord provides duplicate or similar coverage, and in such circumstance
Landlord's policy will be excess over Tenant's policy. Tenant shall furnish to
Landlord certificates of such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required hereunder, and
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord at least 30 days before cancellation or a material change of
any such insurance policies. All such insurance policies shall be in form, and
issued by companies, reasonably satisfactory to Landlord. but in no event,
however, shall said insurance company(ies) which have a policy holders' rating
of no less than a B+ in the most recent edition of Best Insurance Reports. The
term "Affiliate" shall mean any person or entity, directly or indirectly,
controlling, controlled by, or under common control with the party in question.
(b) Waiver of Negligence; No Subrogation. Landlord and Tenant
each waives any claim it might have against the other for any injury to or
death of any person or persons or damage to or theft, destruction, loss, or
loss of use of any property (a "Loss"), to the extent the same is insured
against under any insurance policy that covers the Building, the Premises,
Landlord's or Tenant's fixtures, personal property, leasehold improvements, or
business, or, in the case of Tenant's waiver, is required to be insured against
under the terms thereof, regardless of whether the negligence of the other
party caused such loss; however, Landlord's waiver shall not include any
deductible amounts on insurance policies carried by Landlord or to any
coinsurance penalty which Landlord may sustain. Each party shall cause its
insurance carrier to endorse all applicable policies waiving the carrier's
rights of recovery under subrogation or otherwise against the other party.
(c) Indemnity. Tenant hereby indemnifies and holds Landlord
harmless from and against any and all claims, demands, liabilities and
expenses, including reasonable attorney's fees, arising from Tenant's use of
the Premises or from any negligent act or omission to act or willful
misconduct, in or about the Premises or the Building by Tenant or its agents,
employees or contractors, or from any breach or default by Tenant of this
Lease, except to the extent caused by Landlord's gross negligence or willful
misconduct. In the event any action or proceeding shall
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be brought against Landlord by reason of any such claim, Tenant shall defend
the same at Tenant's expense by counsel reasonably satisfactory to Landlord,
(though to the extent such claim is covered by insurance maintained by Tenant,
Landlord shall not unreasonably withhold its approval with respect to any
counsel selection by the insurance company to defer such claim.
11. Subordination Attornment; Notice to Landlord's Mortgagee.
(a) Subordination. This Lease shall be subordinate to any
deed of trust mortgage, or other security instrument, or any ground lease,
master lease, or primary lease, that now or hereafter covers all or any part of
the Premises (the mortgagee under any such mortgage or the lessor under any
such lease is referred to herein as a "Landlord's Mortgagee"). Any Landlord's
Mortgagee may elect, at any time, unilaterally, to make this Lease superior to
its mortgage, ground lease, or other interest in the Premises by so notifying
Tenant in writing.
(b) Attornment. Tenant shall attorn to any party succeeding
to Landlord's interest in the Premses, whether by purchase, foreclosure, deed
in lieu of foreclosure, power of sale, termination of lease, or otherwise. upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request. If requested by Tenant,
Landlord shall agree to use reasonable effort to obtain a non-disturbance
agreement from all mortgagees encumbering the Building, however, the failure of
Landlord to obtain such agreement shall not affect the validity of this Lease
or Tenant's obligation hereunder.
(c) Notice to Landlord's Mortgagee. Tenant shall not seek to
enforce any remedy it may have for any default on the part of the Landlord
without first giving written notice by certified mail, return receipt
requested, specifying the default in reasonable detail to any Landlord's
Mortgagee whose address has been given to Tenant, and affording such Landlord's
Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(d) Landlord's Mortgagee's Protection Provisions. If
Landlord's Mortgagee shall succeed to the interest of Landlord under this
Lease, Landlord's Mortgagee shall not be: (1) liable for any act or omission of
any prior lessor (including Landlord); (2) bound by any rent or additional rent
or advance rent which Tenant might have paid for more than the current month to
any prior lessor (including Landlord), and all such rent shall remain due and
owing, notwithstanding such advance payment; (3) bound by any security or
advance rental deposit made by Tenant which is not delivered or paid over to
Landlord's Mortgagee and with respect to which Tenant shall look solely to
Landlord for refund or reimbursement; (4) bound by any termination, amendment
or modification of this Lease made without Landlord's Mortgagee's consent and
written approval except for those terminations, amendments and modifications
permitted to be made by Landlord without Landlord's Mortgagee's consent
pursuant to the terms of the loan documents between Landlord and Landlord's
Mortgagee; (5) subject to the defenses which Tenant might have against any
prior lessor (including Landlord); and (6) subject to the offsets which Tenant
might have against any prior lessor (including Landlord) except for those
offset rights which (A) are expressly provided in this Lcase, (B) relate to
periods of time
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following the acquisition of the Building by Landlord's Mortgagee, and (C)
Tenant has provided written notice to Landlord's Mortgagee and provided
Landlord's Mortgagee a reasonable opportunity to cure the event giving rise to
such offset event Landlord's Mortgagee shall have no liability or
responsibility under or pursuant to the terms of this Lease or otherwise after
it ceases to own an interest in the Building. Nothing in this Lease shall be
construed to require Landlord's Mortgagee to see to the application of the
proceeds of any loan, and Tenant's agreements set forth herein shall not be
impaired on account of any modification of the documents evidencing and
securing any loan.
12. Rules and Regulations. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as Exhibit B. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Building and related facilities, provided that such
changes are applicable to all tenants of the Building and will not unreasonably
interfere with Tenant's use of the Premises. Tenant shall be responsible for
the compliance with such rules and regulations by its employees, agents, and
invitees.
13. Condemnation.
(a) Total Taking. If the entire Building or Premises are
taken by right of eminent domain or conveyed in lieu thereof (a "Taking"), this
Lease shall terminate as of the date of the Taking.
(b) Partial Taking - Tenant's Rights. If any part of the
Building becomes subject to a Taking and such Taking will prevent Tenant from
conducting its business in the Premises in manner reasonably comparable to that
conducted immediately before such Taking for a period of more than 180 days,
then Tenant may terminate this Lease as of the date of such Taking by giving
written notice to Landlord within 30 days after the Taking, and Rent shall be
apportioned as of the date of such Taking. If Tenant does not terminate this
Lease, then Rent shall be abated on a reasonable basis as to that portion of
the Premises rendered untenantable by the Taking.
(c) Partial Taking - Landlord's Rights. If any material
portion, but less than all, of the Building becomes subject to a Taking, or if
Landlord is required to pay any of the proceeds received for a Taking to a
Landlord's Mortgagee, then Landlord may terminate this Lease by delivering
written notice thereof to Tenant within 30 days after such Taking, and Rent
shall be apportioned as of the date of such Taking. If Landlord does not so
terminate this Lease, then this Lease will continue, but if any portion of the
Premises has been taken, Rent shall xxxxx as provided in the last sentence of
Section 13.(b).
(d) Award. If any Taking occurs, then Landlord shall receive
the entire award or other compensation for the land on which the Building is
situated, the Building, and other improvements taken, and Tenant may separately
pursue a claim (to the extent it will not reduce Landlord's award) against the
condemnor for the value of Tenant's personal property which
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Tenant is entitled to remove under this Lease, moving costs, loss of business,
and other claims it may have.
14. Fire or Other Casualty.
(a) Repair Estimate. If the Premises or the Building are
damaged by fire or other casualty (a "Casualty"), Landlord shall, within 90
days after such Casualty, deliver to Tenant a good faith estimate (the "Damage
Notice") of the time needed to repair the damage caused by such Casualty.
(b) Landlord's and Tenant's Rights. If a material portion of
the Premises or the Building is damaged by Casualty such that Tenant is
prevented from conducting its business in the Premises in a manner reasonably
comparable to that conducted immediately before such Casualty and Landlord
estimates that the damage caused thereby cannot be repaired within 180 days
after the Casualty, then Tenant may terminate this Lease by delivering written
notice to Landlord of its election to terminate within 30 days after the Damage
Notice has been delivered to Tenant. If Tenant does not so timely terminate
this Lease, then (subject to Section 14 (c)) Landlord shall repair the Building
or the Premises, as the case may be, as provided below, and Rent for the
portion of the Premises rendered untenantable by the damage shall be abated on
a reasonable basis from the date of damage until the completion of the repair,
unless Tenant caused such damage, in which case, Tenant shall continue to pay
Rent without abatement.
(c) Landlord's Rights. If a Casualty damages a material
portion of the Building, and Landlord makes a good faith determination that
restoring the Premises would be uneconomical or if Landlord is required to pay
any insurance proceeds arising out of the Casualty to a Landlord's Mortgagee,
then Landlord may terminate this Lease by giving written notice of its election
to terminate within 30 days after the Damage Notice has been delivered to
Tenant, and Basic Rent and Additional Rent shall be abated as of the date of
the Casualty.
(d) Repair Obligation. If neither party elects to terminate
this Lease following a Casualty, then Landlord shall, within a reasonable time
after such Casualty, begin to repair the Building and the Premises and shall
proceed with reasonable diligence to restore the Building and Premises to
substantially the same condition as they existed immediately before such
Casualty; however, Landlord shall not be required to repair or replace any of
the furniture, equipment, fixtures, and other improvements which may have been
placed by, or at the request of, Tenant or other occupants in the Building or
the Premises, and Landlord's obligation to repair or restore the Building or
Premises (including tenant improvements which existed at the time the Lease was
executed) shall be limited to the extent of the insurance proceeds actually
received by Landlord for the Casualty in question.
15. Personal Property Taxes. Tenant shall be liable for all
taxes levied or assessed agaist personal property, furniture, or fixtures
placed by Tenant in the Premises. If any taxes for which Tenant is liable are
levied or assessed against Landlord or Landlord's property and
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Landlord elects to pay the same, or if the assessed value of Landlord's
property is increased by inclusion of such personal property, furniture or
fixtures and Landlord elects to pay the taxes based on such increase, then
Tenant shall pay to Landlord, upon demand, the part of such taxes for which
Tenant is primarily liable hereunder, however, Landlord shall not pay such
amount if Tenant notifies Landlord that it will contest the validity or amount
of such taxes before Landlord makes such payment, and thereafter diligently
proceeds with such contest in accordance with law and if the non-payment
thereof does not pose a threat of loss or seizure of the Building or interest
of Landlord therein or impose any fee or penalty against Landlord.
16. Events of Default. Each of the following occurrences shall be an
"Event of Default":
(a) Tenant's failure to pay Rent within five days after
Landlord has delivered notice to Tenant that the same is due; however, an Event
of Default shall occur hereunder without any obligation of Landlord to give any
notice if Landlord has given Tenant written notice under this Section 16.(a) on
more than one occasion during the twelve (12) month interval preceding such
failure by Tenant;
(b) Tenant (1) abandons and has defaulted in the payment of
Rent for the Premises or any substantial portion thereof;
(c) Tenant fails to provide any estoppel certificate within
the time period required under Section 24.(e) and such failure shall continue
for days after written notice thereof from Landlord to Tenant;
(d) Tenant's failure to perform, comply with, or observe any
other agreement or obligation of Tenant under this Lease and the continuance of
such failure for a period of more than 30 days after Landlord has delivered to
Tenant written notice thereof; and
(e) The filing of a petition by or against Tenant (the term
"Tenant" shall include, for the purpose of this Section 16.(e), any guarantor
of Tenant's obligations hereunder) (1) in any bankruptcy or other insolvency
proceeding; (2) seeking any relief under any state or federal debtor relief
law; (3) for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in this Lease;
or (4) for the reorganization or modification of Tenant's capital structure;
however, if such a petition is filed against Tenant, then such filing shall not
be an Event of Default unless Tenant fails to have the proceedings initiated by
such petition dismissed within 90 days after the filing thereof.
Any notice periods provided for under this Section 16 shall run
concurrently with any statutory notice periods and any notice given hereunder
may be given simultaneously with or incorporated into any such statutory
notice.
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17. Remedies. Upon any Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder or by law or equity,
take any of the following actions:
(a) Terminate this Lease by giving Tenant written notice
thereof, in which event Tenant shall pay to Landlord the sum of (1) all Rent
accrued hereunder through the date of termination, (2) all amounts due under
Section 18.(a) and (3) an amount equal to the total Rent than Tenant would have
been required to pay for the remainder of the Term.
(b) Terminate Tenant's right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (1) all Rent and other amounts accrued
hereunder to the date of termination, (2) all amounts due from time to time
under Section 18.(a) and (3)all Rent and other net sums referred hereunder to
be paid by Tenant during the remainder of the Term, diminished by any net sums
thereafter received by Landlord through reletting the Premises during such
period, after deducting all costs incurred by Landlord in reletting the
Premises. Landlord shall use reasonable efforts to relet the Premises on such
terms as Landlord in its sole discretion may determine (including a term
different from the Term, rental concessions, and alterations to, and
improvement of, the Premises);however, Landlord shall not be obligated to relet
the Premises before leasing other portions of the Building. Landlord shall not
be liable for, nor shall Tenant's obligations hereunder be diminished because
of, Landlord's failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired
Term, rather, Landlord may, from time to time, bring an action against Tenant
to collect amounts due by Tenant, without the necessity of Landlord's waiting
until the expiration of the Term. Unless Landlord delivers written notice to
Tenant expressly stating that it has elected to terminate this Lease, all
actions taken by Landlord to dispossess or exclude Tenant from the Premises
shall be deemed to be taken under this Section 17.(b). If Landlord elects to
proceed under this Section 17(b), it may at any time elect to terminate this
Lease under Section 17.(a).
18. Payment by Tenant; Non-Waiver.
(a) Payment by Tenant. Upon any Event of Default, Tenant
shall pay to Landlord all reasonable and customary costs incurred by Landlord
(including court costs and reasonable attorneys' fees and expenses) in
(1) obtaining possession of the Premises, (2) removing and storing Tenant's or
any other occupant's property, (3) repairing, restoring, altering, remodeling,
or otherwise putting the Premises into condition acceptable to a new tenant,
(4) if Tenant is dispossessed of the Premises and this Lease is not terminated,
reletting all or any part of the Premises (including brokerage commissions,
cost of tenant finish work, and other costs incidental to such reletting), (5)
performing Tenant's obligations which Tenant failed to perform, and (6)
enforcing, or advising Landlord of, its rights, remedies, and recourse arising
out of the Event of Default. To the full extent permitted by law, Landlord and
Tenant agree the federal and
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state courts of Florida shall have exclusive jurisdiction over any matter
relating to or arising from this Lease and the parties, rights and obligations
under this Lease.
(b) No Waiver. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event of
Default except with respect to a monetary Event of Default where such payment
fully cures such Event of Default. No waiver by Landlord of any violation or
breach of any of the terms contained herein shall waive Landlord's rights
regarding any future violation of such term. Landlord's acceptance of any
partial payment of Rent shall not waive Landlord's rights with regard to the
remaining portion of the Rent that is due, regardless of any endorsement or
other statement on any instrument delivered in payment of Rent or any warning
delivered in connection therewith; accordingly, Landlord's acceptance of a
partial payment of Rent shall not constitute an accord and satisfaction of the
full amount of the Rent that is due.
19. Landlord's Lien. Landlord shall have all lien and distress rights
against Tenant's property as provided by Florida law.
20. Surrender of Premises. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, broom-clean, reasonable wear and tear (and condemnation and
Casualty damage not caused by Tenant. as to which Sections 13 and 14 shall
control) excepted, and shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its obligations hereunder, Tenant may
remove all unattached trade fixtures, furniture, and personal property placed
in the Premises by Tenant, and shall remove such trade fixtures, personal
property, equipment, wiring, and furniture as Landlord may request. Tenant
shall repair all damage caused by such removal. All items not so removed shall
be deemed to have been abandoned by Tenant and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord without notice to
Tenant and without any obligation to account for such items. The provisions of
this Section 20 shall survive the end of the Term.
21. Holding Over. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant at will and, in addition to all other
damages and remedies to which Landlord may be entitled for such holding over.
Tenant shall pay, in addition to the other Rent. a daily Basic Rent equal to
the greater of (a) 150% of the daily Basic Rent payable during the last month
of the Term, or (b) 125%of the prevailing rental rate in the Building for
similar space. The provisions of this Section 21 shall not be deemed to limit
or constitute a waiver of any other rights or remedies of Landlord provided
herein or at law. If Tenant fails to surrender the Premises upon the
termination or expiration of this Lease, in addition to any other liabilities
to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and
hold Landlord harmless from all loss, costs (including reasonable attorneys'
fees) and liability resulting from such failure, including, without limiting
the generality of the foregoing, any claims made by any
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succeeding tenant founded upon such failure to surrender, and any lost profits
to Landlord resulting therefrom.
22. Certain Rights Reserved by Landlord. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs,
alterations, additions, changes, or improvements, whether structural or
otherwise, in and about the Building, or any part thereof, to enter upon the
Premises and, during the continuance of any such work, to temporarily close
doors, entryways, public space, and corridors in the Building; to interrupt or
temporarily suspend Building services and facilities; to change the name of the
Building; and to change the arrangement and location of entrances or
passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or
other public parts of the Building;
(b) To take such reasonable measures as Landlord deems
advisable for the security of the Building and its occupants; evacuating the
Building for cause, suspected cause, or for drill purposes; temporarily denying
access to the Building; and closing the Building after normal business hours
and on Sundays and holidays, subject, however, to Tenant's right to enter when
the Building is closed after normal business hours under such reasonable
regulations as Landlord may prescribe from time to time; and
(c) To enter the Premises at reasonable hours to show the
Premises to prospective purchases, lenders, or, during the last 12 months of
the Term, tenants.
23. Miscellaneous.
(a) Landlord Transfer. Landlord may transfer any portion of
the Building and any of its rights under this Lease. If Landlord assigns its
rights under this Lease, then Landlord shall thereby be released from any
further obligations hereunder, provided that the assignee assumes Landlord's
obligations hereunder in writing.
(b) Landlord's Liability. The liability of Landlord to Tenant
for any default by Landlord under the terms of this Lease shall be recoverable
only from the interest of Landlord in the Building, and Landlord shall not be
personally liable for any deficiency. This Section shall not limit any remedies
which Tenant may have for Landlord's defaults which do not involve the personal
liability of Landlord.
(c) Force Majeure. Other than for Tenant's obligations under
this Lease that can be performed by the payment of money (e g., payment of Rent
and maintenance of insurance), whenever a period of time is herein prescribed
for action to be taken by either party hereto, such party shall not be liable
or responsible for, and there shall be excluded from the computation of any
such period of time, any delays due to strikes, riots, acts of God, shortages
of
-16-
labor or materials, war, governmental laws, regulations, or restrictions, or
any other causes of any kind whatsoever which are beyond the control of such
party.
(d) Brokerage. Neither Landlord nor Tenant has dealt with any
broker or agent in connection with the negotiation or execution of this Lease,
other than Insignia/ESG, Inc. and Xxxxx Xxxxxxx & Co., whose commission shall
be paid by Landlord. Tenant and Landlord shall each indemnify the other against
all costs, expenses, attorneys' fees, and other liability for commissions or
other compensation claimed by any broker or agent claiming the same by,
through, or under the indemnifying party.
(e) Estoppel Certificates. From time to time, Tenant shall
furnish to any party designated by Landlord, within ten days after Landlord has
made a request therefor, a certificate signed by Tenant confirming and
containing such factual certifications and representations as to this Lease as
Landlord may reasonably request.
(f) Notices. All notices and other communications given
pursuant to this Lease shall be in writing and shall be (1) mailed by first
class, United States Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address specified next to
their signature block, (2) hand delivered to the intended address, or (3) sent
by prepaid telegram, cable, facsimile transmission, or telex followed by a
confirmatory letter. All notices shall be effective upon delivery to the
address of the addressee. The parties hereto may change their addresses by
giving notice thereof to the other in conformity with this provision.
(g) Separability. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such
clause or provision, 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.
(h) Amendments; and Binding Effect. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord, and no custom or practice which
may evolve between the parties in the administration of the terms hereof shall
waive or diminish the right of Landlord to insist upon the performance by
Tenant in strict accordance with the terms hereof. The terms and conditions
contained in this Lease shall inure to the benefit of and be binding upon the
parties hereto, and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided. This Lease is
for the sole benefit of Landlord and Tenant, and, other than Landlord's
Mortgagee, no third party shall be deemed a third party beneficiary hereof.
(i) Quiet Enjoyment. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without
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hindrance from Landlord or any party claiming by, through, or under Landlord,
but not otherwise, subject to the terms and conditions of this Lease.
(j) No Merger. There shall be no merger of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof
if the same person acquires or holds, directly or indirectly this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k) No Offer. The submission of this Lease to Tenant shall
not be construed as an offer, and Tenant shall not have any rights under this
Lease unless Landlord executes a copy of this Lease and delivers it to Tenant.
(l) Entire Agreement. This Lease constitutes the entire
agreement between Landlord and Tenant regarding the subject natter hereof and
supersedes all oral statements and prior writings relating thereto. Except for
those set forth in this Lease, no representations, warranties, or enforcement
have been made by Landlord or Tenant to the other with respect to this Lease or
the obligations of Landlord or Tenant in connection therewith.
(m) Waiver of Jury Trial. To the maximum extent permitted by
law, Landlord and Tenant each waive right to trial by jury in any litigation
arising out of or with respect to this Lease.
(n) Governing Law. This Lease shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located.
(o) Joint and Several Liability. If Tenant is comprised of
more than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease.
(p) Financial Reports. Within 15 days after Landlord's
request, Tenant will furnish Tenant's most recent audited financial statements
(including any notes to them) to Landlord, or, if no such audited statements
have been prepared, such other financial statements (and notes to them) as may
have been prepared by an independent certified public accountant or, failing
those, Tenant's internally prepared financial statements. Tenant will discuss
its financial statements with Landlord. Landlord will not disclose any aspect
of Tenant's financial statements that Tenant designates to Landlord as
confidential except (a) to Landlord's lenders or perspective purchasers of the
project, (b) in litigation between Landlord and Tenant, and (c) if required by
court order.
(q) Landlord's Fees. Whenever Tenant requests Landlord to
take any action or give any consent required or permitted under this Lease,
Tenant will reimburse Landlord for Landlord's reasonable costs incurred in
reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within 10 days after
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Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord
consents to any such proposed action.
(r) Telecommunications. Tenant and its telecommunications
companies, including but not limited to local exchange telecommunications
companies and alternative access vendor services companies shall have no right
of access to and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless and any other transmission systems' for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent, which consent shall
not be unreasonably withheld.
(s) Confidentiality. Tenant acknowledges that the terms and
conditions of this Lease are to remain confidential for the Landlord's benefit,
and may not be disclosed by Tenant to anyone, by any manner or means directly
or indirectly, without Landlord's prior written consent. The consent by the
Landlord to any disclosures shall not be deemed to be a waiver on the part of
the Landlord of any prohibition against any future disclosure.
(t) Notice Concerning Radon Gas. Radon is a naturally
occurring radioactive gas that, when rt has accumulated in a structure in
sufficient quantities, may present health risks to persons who are exposed to
it. Levels of radon that exceed Federal and State guidelines have been found in
buildings in the State of Florida. Additional information regarding radon and
radon testing may be obtainable from the county public health unit. Landlord
makes no representation to Tenant concerning the presence or absence of radon
gas in the Premises or the Building at any time or in any quantity. By
executing this Lease, Tenant expressly releases Landlord from any loss, claim,
liability, or damage now or hereafter arising from or relating to the presence
at any time of such substances in the Premises or the Building.
(u) No Right to Terminate. Tenant hereby waives the remedies
of termination and rescission and hereby agrees that Tenant's sole remedies for
Landlord's default hereunder and for breach of any promise or inducement shall
be limited to a suit for damages and/or injunction.
(v) No Liability for Crimes. The Landlord makes no
representations or warranties with respect to crime in the area, undertakes no
duty to protect against criminal acts and shall not be liable for any injury,
wrongful death or property damage arising from any criminal act. The Landlord
may, from time to time, employ security personnel and equipment, however, such
personnel and equipment are only for the protection of Landlord's property.
Landlord reserves the right, in its sole discretion, to start, alter or
terminate any such security services without notice. The Tenant is urged to
provide security for its invitees, its own personnel, and property as it deems
necessary. The Tenant is urged to obtain insurance to protect against criminal
acts.
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(w) List of Exhibits. All exhibits and attachments attached
hereto are incorporated herein by this reference.
Exhibit A - Outline of Premises/Legal Description
Exhibit B - Building Rules and Regulations
Exhibit C - Tenant Finish-Work: "Allowance"
Exhibit D - Parking
Exhibit E - Guaranty
Exhibit F - Agency Disclosure
Exhibit G - Tenant Estoppel Certificate
Exhibit H - Right of First Offer
(x) Corporate Tenancy. If Tenant is a corporation, the
undersigned officer of Tenant hereby warrants and certifies to Landlord that
Tenant is a corporation in good standing and authorized to do business in the
State of Florida. The undersigned officer of Tenant hereby further warrants and
certifies to Landlord that he or her, as such officer, is authorized and
empowered to bind the corporation to the terms of this Lease by his or her
signature thereto. Landlord, before it accepts and delivers this Lease, may
require Tenant to supply it with a certified copy of the corporate resolution
authorizing the execution of this Lease by Tenant.
(y) General Definitions. The following terms shall have the
following meanings: "Laws" means all federal, state, and local laws, rules and
regulations, all court orders, all governmental directives and governmental
orders, and all restrictive covenants affecting the Property, and "Law" means
any of the foregoing; "Affiliate" means any person or entity which, directly or
indirectly, controls, is controlled by, or is under common control with the
party in question; "Tenant Party" shall include Tenant, any assignees claiming
by, through, or under Tenant, any subtenants claiming by, through, or under
Tenant, and any agents, contractors, employees, invitees of the foregoing
parties; and "including" means including, without limitation.
(z) Hazardous Materials. The term "Hazardous Material" means
any substance, material or waste which is now or hereafter classified or
considered to be hazardous, toxic, or dangerous under any Law relating to
pollution or the protection or regulation of human health, natural resources or
the environment, or poses or threatens to pose a hazard to the health or safety
of persons on the Premises or in the Building. Tenant shall not use, generate,
store, or dispose of, or permit the use, generation, storage or disposal of
Hazardous Materials on or about the Premises or the Building except in a manner
and quantity necessary for the ordinary performance of Tenant's business, and
then in compliance with all Laws. If Tenant breaches its obligations under this
Section 24.(x), Landlord may immediately take any and all action reasonably
appropriate to remedy the same, including talcing all appropriate action to
clean up or remediate any contamination resulting from Tenant's use,
generation, storage or disposal of Hazardous Materials. Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against any and all claims, demands, liabilities, causes of
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action, suits" Judgments, damages and expenses (including attorneys' fees and
cost of clean up and remediation) arising from Tenant's failure to comply with
the provisions of this Section 23.(z). This indemnity provision shall survive
termination or expiration of the Lease.
24. Other Provisions.
(a) LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, A TENANTS OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS
HEREUNDER AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL
CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION.
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
(b) Lease Subject to Certain Option Rights. The parties agree
that this Lease is subject to specific option rights (e.g. right of first
refusal and expansion option) of existing tenant(s) at the Building, and the
terms and conditions, as set forth herein this Lease shall only be binding upon
the Landlord and Tenant, upon Landlord's receipt of any applicable notices from
said existing tenant(s), thereby releasing said option rights and/or declining
the exercise of said option(s).
(c) Disposition of Existing Tenant. Tenant recognizes that
the Premises is currently occupied pursuant to a Lease with American Telnet,
Inc., (ATN), dated May 15, 1997. This Lease is accordingly subject to Landlord
obtaining possession of the Premises from ATN in a mutually agreed upon manner.
Notwithstanding any provision herein to the contrary, if for any reason
Landlord is unable to terminate the Lease with ATN and deliver exclusive
possession of the Premises to Tenant within fifteen (15) business days
following the full execution of this Lease, then at any time thereafter, (until
such lease with ATN is terminated and exclusive possession of the Premises
delivered to Tenant), either party shall have the right to terminate this Lease
by written notice to the other party, and both parties shall thereafter be
released from all obligation hereunder, except as otherwise provided herein.
-21-
[THIS SPACE INTENTIONALLY LEFT BLANK]
Dated as of the date first above written.
TENANT:
FINANTRA CAPITAL. INC., Address:
a Florida corporation 0000 Xxxxx xx Xxxx Xxxx.
Xxxxx Xxxxxx, XX 00000
By:__________________________ Witnesses:
Name:________________________ ____________________________
Title:_______________________ ____________________________
LANDLORD:
SKW II REAL ESTATE LIMITED Address:
PARTNERSHIP, 000 Xxxx Xxx Xxxxxxx Xxxx., Xxxxx 0000
a Delaware limited Partnership Xxxxxx, Xxxxx 00000
By: SKW II GEN-PAR, INC.,
a Delaware corporation
Its: general partner Witnesses:
By:__________________________ ____________________________
____________________________
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TABLE OF CONTENTS
Page
Lease Grant.......................................................................................................1
Term..............................................................................................................1
Rent..............................................................................................................1
(a) Basic Rent......................................................................................1
(b) Payment.........................................................................................1
(c) Operating Expenses..............................................................................2
Delinquent Payment; Handling Charges..............................................................................4
Security Deposit..................................................................................................4
Landlord's Obligations............................................................................................4
(a) Services........................................................................................5
(b) Excess Utility Use..............................................................................5
(c) Restoration of Services; Abatement..............................................................5
Improvements; Alterations; Repairs; Maintenance...................................................................6
(a) Improvements; Alterations.......................................................................6
(b) Repairs; Maintenance............................................................................6
(c) Performance of Work.............................................................................6
(d) Mechanic's Liens................................................................................7
Use...............................................................................................................7
Assignment and Subletting.........................................................................................7
(a) Transfers; Consent..............................................................................7
(b) Cancellation....................................................................................8
(c) Additional Compensation.........................................................................8
Insurance; Waivers; Subrogation; Indemnity........................................................................9
(a) Insurance.......................................................................................9
(b) Waiver of Negligence; No Subrogation............................................................9
(c) Indemnity.......................................................................................9
Subordination Attornment; Notice to Landlord's Mortgagee.........................................................10
(a) Subordination..................................................................................10
(b) Attornment.....................................................................................10
(c) Notice to Landlord's Mortgagee.................................................................10
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(d) Landlord's Mortgagee's Protection Provisions...................................................10
Rules and Regulations............................................................................................11
Condemnation.....................................................................................................11
(a) Total Taking...................................................................................11
(b) Partial Taking - Tenant's Rights...............................................................11
(c) Partial Taking - Landlord's Rights.............................................................11
(d) Award..........................................................................................11
Fire or Other Casualty...........................................................................................12
(a) Repair Estimate................................................................................12
(b) Landlord's and Tenant's Rights 12
(c) Landlord's Rights..............................................................................12
(d) Repair Obligation..............................................................................12
Taxes............................................................................................................12
Events of Default................................................................................................13
Remedies.........................................................................................................14
Payment by Tenant; Non-Waiver....................................................................................14
(a) Payment by Tenant..............................................................................14
(b) No Waiver......................................................................................15
Landlord's Lien..................................................................................................15
Surrender of Premises............................................................................................15
Holding Over.....................................................................................................15
Certain Rights Reserved by Landlord..............................................................................16
Miscellaneous....................................................................................................16
(a) Landlord Transfer..............................................................................16
(b) Landlord's Liability...........................................................................16
(c) Force Majeure..................................................................................16
(d) Brokerage......................................................................................17
(e) Estoppel Certificates..........................................................................17
(f) Notices........................................................................................17
(g) Separability...................................................................................17
(h) Amendments; and Binding Effect.................................................................17
(i) Quiet Enjoyment................................................................................17
(j) No Merger......................................................................................18
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(k) No Offer.......................................................................................18
(l) Entire Agreement...............................................................................18
(m) Waiver of Jury Trial...........................................................................18
(n) Governing Law..................................................................................18
(o) Joint and Several Liability....................................................................18
(p) Financial Reports..............................................................................18
(q) Landlord's Fees................................................................................18
(r) Telecommunications.............................................................................19
(s) Confidentiality................................................................................19
(t) Notice Concerning Radon Gas....................................................................19
(u) No Right to Terminate..........................................................................19
(v) No Liability for Crimes........................................................................19
(w) List of Exhibits...............................................................................20
(x) Corporate Tenancy..............................................................................20
(y) General Definitions............................................................................20
(z) Hazardous Materials............................................................................21
Other Provisions.................................................................................................21
LIST OF DEFINED TERMS
Additional Rent...................................................................................................2
Affiliate.........................................................................................................7
AS-IS............................................................................................................21
Basic Rent........................................................................................................1
Building..........................................................................................................1
Casualty..........................................................................................................9
Commencement Date.................................................................................................1
Construction Allowance...........................................................................................22
Damage Notice.....................................................................................................9
Event of Default.................................................................................................10
Expense Stop......................................................................................................2
Hazardous Materials..............................................................................................15
including........................................................................................................15
Landlord..........................................................................................................1
Landlord's Mortgage...............................................................................................8
Law..............................................................................................................15
Laws.............................................................................................................15
Lease.............................................................................................................1
Loss..............................................................................................................7
Office Space.....................................................................................................29
Office Notice....................................................................................................29
Operating Costs...................................................................................................2
Operating Costs and Tax Statement.................................................................................3
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Parking Area.....................................................................................................23
Permitted Use.....................................................................................................5
Premises..........................................................................................................1
Proportionate Share...............................................................................................3
Rent..............................................................................................................1
Security Deposit..................................................................................................3
Taking............................................................................................................8
Taxes.............................................................................................................3
Tenant............................................................................................................1
Tenant Party.....................................................................................................15
Term..............................................................................................................1
Total Construction Costs.........................................................................................22
Transfer..........................................................................................................6
Work.............................................................................................................21
Working Drawings.................................................................................................21
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