MEMORANDUM OF AGREEMENT OF EXTENSION OF LEASE AGREEMENT ENTERED INTO THE CITY
AND DISTRICT OF BOCA RATON, PALM BEACH COUNTY, FLORIDA ON THE _____ DAY OF
NOVEMBER 1996.
BY AND BETWEEN: CANPRO INVESTMENTS LTD., a Canadian
Corporation licensed to do business in Florida
("Landlord")
AND: NATIONAL AUTO FINANCE COMPANY L,P.
("Tenant")
WHEREAS, by a Lease Agreement dated January 16, 1995 ("Lease" for suite 200)
Landlord leased to Tenant for and during a term commencing March 1, 1995 certain
premises comprised of an area of approximately Five Thousand Four Hundred
Forty-Seven (5,447) square feet located in the One Park Place ("Office
Building") at 000 XX 00xx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Leased
Premise");
WHEREAS, the Tenant is desirous of Extending the Term of the Lease, upon terms
and conditions herein described;
THAT in consideration of the sum of TWO DOLLARS ($2.00) paid by each party to
the other, and for other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged), the parties agree and covenant as
follows:
1. The preamble hereto shall form part of this Agreement as if
incorporated in the body hereof;
2. The Term of the Lease shall be Extended to February 28, 1999 upon the
same terms and conditions provided for in the Lease. Notwithstanding
anything in the Lease to the contrary, the Leased Premises shall be
occupied by Tenant throughout the Extension Term on an "as is" basis,
in that Landlord shall not be required to perform any work on/or to the
Leased Premises;
3. Renewal Option. Provided the Tenant is not in default of the Terms and
Obligations of this lease, Tenant shall have one (1) two (2) year
option to renew the lease on the same terms and conditions as the
existing lease save for the minimum rent which shall increase in
accordance with paragraph 4.D. Leased premises shall be renewed on an
"As Is" basis in that Landlord shall not do or perform any of
Landlord's Work in, on or for the Leased Premises. There shall be no
further option to renew;
4. This Agreement shall enure to the benefit of and shall be binding upon
each of the Parties to this Agreement and their respective successors,
heirs, executors, administrators and assigns; and
5. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
This Extension Agreement and all of its terms and conditions have been freely
negotiated between the parties.
Except as modified hereby, the Lease shall remain in full force and effect in
accordance with the terms and provisions thereof and all of the terms, covenants
and conditions of the Lease are hereby ratified and reaffirmed by the parties
hereto.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED THESE PRESENTS AT THE PLACE AND ON
THE DATE FIRST HEREIN ABOVE MENTIONED.
LANDLORD:
CANPRO INVESTMENTS LTD.
By:
Witness Name:
Title:
Date:
TENANT:
NATIONAL AUTO FINANCE COMPANY L.P.
By:
Witness Name:
Title:
Date:
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REFERENCED DATA
Any reference in this lease to the following subjects shall
incorporate therein the data stated for the subject(s) in this Section:
DATE OF LEASE: 1-16-95
LANDLORD: CANPRO INVESTMENTS LTD., a
corporation organized under the laws of
Canada and authorized to transact
business in the State of Florida
LANDLORD'S ADDRESS: 000 X.X. 00xx Xxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000
TENANT: National Auto Finance Company, L.P.
TENANT'S ADDRESS: 000 XX 00xx Xxxxxx, Xxxxx 000,
Xxxx Xxxxx, XX 00000
DEMISED PREMISES: Five Thousand Four Hundred Forty-Seven
(5,447) rentable square feet on the
second (2nd) floor of the Building. For
all purposes hereof the Building shall be
deemed to contain Two Hundred
Thirty-Seven Thousand Three Hundred
Thirty-One (237,331) rentable square
feet, regardless of the actual number of
square feet found to be in the Leased
Premises.
LEASE TERM: Two (2) years.
OPTIONS: One (1) Two (2) year option to renew
Right of First Refusal.
RENTAL COMMENCEMENT DATE: March 1, 1995.
EXPIRATION DATE OF LEASE TERM: April 30, 1997.
MINIMUM ANNUAL RENT: Forty-Three Thousand Five Hundred
Seventy-Six Dollars ($43,576.00). Eight
Dollars ($8.00) per rentable square feet,
TENANT'S INITIAL SHARE OF TAXES Thirty-Seven Thousand Seven Hundred AND
OPERATING EXPENSES FOR THE Forty-Seven and 7/100 Dollars ($37,747.71) BUILDING
AND FOR OCCUPIED '94 estimated at $6.93 per rentable square PREMISES: foot,
$3,145.64 per month.
TENANT'S PROPORTIONATE SHARE 2.30%.
OF THE BUILDING:
PERMITTED USES: General Office.
SECURITY DEPOSIT: $7,183.59
GUARANTOR: Corporate.
WITNESSES: LANDLORD:
CANPRO INVESTMENTS, LTD.
By:
Authorized Signatory
TENANT:
NATIONAL AUTO FINANCE COMPANY L.P.
By:
Authorized Signatory
INITIALS: _____
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OFFICE LEASE
THIS LEASE made and entered into as of the ____ day of
________________, 19___ by and between CANPRO INVESTMENTS LTD., a corporation
organized under the laws of Canada and authorized to do business in the State of
Florida (hereinafter referred to as "Landlord") and National Auto Finance
Company L.B. (hereinafter referred to as "Tenant").
W I T N E S S E T H:
1. Demised Premises.
A. Landlord is the Owner of a tract of land situated at 000 X.X. 00xx
Xxxxxx, Xxxx Xxxxx, Xxxxxxx, more particularly described in Exhibit "A" attached
hereto. Upon said tract is located a multistory building known as ONE PARK PLACE
OF BOCA (hereinafter referred to as the "Building"), a parking garage,
surrounding parking areas and driveways (collectively called the "Parking
Facilities") and curbs, sidewalks, fountains, parks and plazas. The tract, along
with the Building, Parking Facilities and all other improvements presently or
hereafter located upon the tract, are hereinafter collectively referred to as
the "Property."
B. Landlord, for the term and subject to the provisions and conditions
hereof, shall lease to Tenant, and Tenant shall accept from Landlord, certain
space more particularly described by the cross-hatched area an the floor plans
annexed hereto as Exhibit "B", which for all purposes hereof shall be deemed to
contain Five Thousand Four Hundred Forty-Seven (5,447) rentable square feet on
the second (2nd) floor of the Building (the "Demised Premises"), together with a
license for the duration of the term or the Lease to use the parking spaces (the
"Parking Spaces") described in the Parking Space Schedule attached hereto as
Exhibit "C", at the rates set forth therein, for parking of automobiles of
Tenant and Tenant's invitees and employees and for no other purpose.
C. The Demised Premises shall be used for general office purposes and
for no other purposes.
D. The use and occupation by Tenant of the Demised Promises shall
include the non-exclusive use, in common with others entitled thereto, of the
common areas, employees' parking areas, service roads, loading facilities,
sidewalks and customer car parking areas as such common areas now exist or as
such common areas may hereafter be constructed, and other facilities as may be
designated from time to time by Landlord, subject, however, to the terms and
conditions of this agreement and to the rules and regulations for the use
thereof as prescribed from time to time by Landlord.
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2. Term.
A. The term of this Lease shall commence on the date hereof and end at
12: 00 Midnight on the last day of the month in which the second (2nd)
anniversary of the Rental Commencement Date occurs, unless sooner terminated as
herein provided.
OPTIONS
(1) Renewal Option. Provided the Tenant is not in default of
the Terms and Obligations of this Tenant shall have one (1) two (2)
year option to renew the lease on the same terms and conditions as the
existing lease save for the minimum rent which shall increase in
accordance with paragraph 4.D. Leased premises shall be renewed on an
"As Is" basis in that Landlord shall not do or perform any of
Landlord's Work in, on or for the Leased Promises. There shall be no
further option to renew.
(2) Right of First Refusal. During the first two (2) years of
the term only, provided the Tenant is not in default of the Terms and
obligations of this lease, Tenant shall have the right of first refusal
to lease 3,700 rentable square feet adjacent to the demised premises,
provided, however, that Tenant's right shall be subject to a prior
right of first refusal on such space granted by Landlord to
Inter-Office. Landlord must give written notice to Tenant of Landlord's
intent to enter into a lease with any third party to occupy all or any
portion of the Available Space prior to entering into any such third
party lease. Tenant shall then have three (3) days thereafter within
which to elect by written notice to Landlord to lease the available
space covered by such third party lease failing which, Tenant's rights
hereunder shall lapse. In the event Tenant exercises such right, all
terms and conditions of this lease shall apply save for minimum rent
which shall be calculated at Market Rate, but in any event not less
than the rate contained in the bona fide third party offer.
3. Construction of Leasehold Improvements.
A. Tenant shall take possession of the Demised Premises in its present
condition, "as is," it being agreed that Landlord shall have no obligation to
improve the Demised Premises and that Tenant, upon taking possession of the
Demised Premises, shall have accepted the condition thereof. Landlord agrees to
provide the following leasehold improvements at Landlord's expense as indicated
on Exhibit B.
B. Tenant shall be responsible for performing, at Tenant's sole
expense, any work in addition to the Leasehold Improvements to be constructed by
Landlord as set forth above. If Tenant desires to perform any additional
improvements beyond the Leasehold Improvements
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to be constructed by Landlord, Tenant shall cause Plans and Specifications for
such additional work to be prepared and submit the same to Landlord for
Landlord's approval. Any such approved additional work, shall be performed by
responsible contractors and subcontractors approved by Landlord. All such
contractors and subcontractors shall furnish in advance and maintain in affect
workmen's compensation insurance in accordance with statutory requirements and
comprehensive public liability insurance (naming Landlord and Landlord's manager
and mortgages as additional insured) with limits satisfactory to Landlord and
each shall, prior to commencement of any work, comply with the Mechanic's Lien
Law of the state of Florida. All work shall be performed in such manner and at
such time so as to avoid interference with any work being done by Landlord or
its contractors and subcontractors at the Property generally. Landlord shall,
however, endeavor to allow Tenant access for such work prior to the Rental
Commencement Data. Tenant and its contractors and subcontractors shall be solely
responsible for the transportation, safekeeping and storage of materials and
equipment used in the performance of its work, for the removal of waste and
debris resulting therefrom and for any damage caused by them to any
installations or work performed by Landlord or its contractors and
subcontractors. Tenant;s contractors and subcontractors shall be subject to the
general administrative supervision of Landlord for scheduling purposes, but
Landlord shall not be responsible for any aspect of the work performed by
Tenant's contractors or subcontractors. All work shall be performed in a good
and workmanlike manner, in accordance with applicable building codes and other
governmental requirements, and shall be diligently prosecuted to completion. No
work shall adversely affect the structural integrity of the Building or the
Demised Premises, nor shall such work diminish the value of the Building or the
Demised Premises. Upon the completion of Tenant's work, Tenant shall deliver to
Landlord and/or comply with the following: (1) Tenant's affidavit stating that
Tenant's work has been completed; (2) an Affidavit of all contractors and all
laborers and material suppliers stating that they have all been paid in full and
that all liens therefore that have been filed have been discharged of record or
waived; (3) a complete release and waiver of lien with respect to the Demised
Promises, executed by said contractor or contractors supplying labor and/or
materials for Tenant's work; and (4) all certificates and approvals with respect
to Tenant's work that may be required by any governmental authorities as a
condition for the issuance of a Certificate of Occupancy for the Demised
Premises. Landlord or Landlord's representative shall, during the course of
construction and after completion of construction of the Demised Premises, have
the right to inspect the Demised Promises to verify construction and completion
in accordance with the approved Plans and Specifications. It is agreed that
Tenant assumes the entire responsibility and liability for any and all injuries
or death of any and all persons including Tenant's contractor or subcontractors,
and their respective employees, and for any and all damages to property caused
by, or resulting from or arising out at, any act or omission on the part of the
Tenant, Tenant's contractor or subcontractors, or their respective employees, in
the prosecution of the Tenant's work, and with respect to such work, Tenant
agrees to indemnify and save harmless Landlord from and against any losses
and/or expenses including
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reasonable legal fees and expenses, which it may suffer or pay as a result of
claims or lawsuit due to, because of, or arising out of any and all such
injuries or death and/or damage, whether real or alleged and Tenant and Tenant's
contractor and/or subcontractors shall assume and defend at their own expense
all such claims or lawsuits. Tenant agrees to insure this assumed liability in
its comprehensive general liability policy and the Certificate of Insurance or
copy of the policy that Tenant will present to Landlord prior to commencement at
Tenant's work shall so indicate such contractual coverage. If Tenant requests
Landlord to perform any work in addition to the Leasehold improvements, Tenant
shall deposit an amount equal to Landlord's reasonable estimate at the cost of
such work with Landlord prior to commencement of such work, which amount shall
include an overhead and supervision charge equal to 20% of the estimated cost of
the additional work. If the cost of the additional work plus the twenty percent
(20%) overhead and supervision charge exceeds or is less than the estimate of
Landlord, Tenant shall pay such excess or Landlord shall refund such overage as
the case may be.
C. Notwithstanding anything to the contrary contained herein, Landlord
reserves the absolute right to relocate the Demised Premises and the Common
Areas from the locations shown on Exhibit "B," it being agreed by Landlord and
Tenant that the purpose of Exhibit "B" is to show the approximate location of
the Demised Premises, provided that the new locations of the Demised Premises
and Common Areas shall be similar in dimension. If Landlord gives Tenant notice
that Landlord is relocating the Demised Promises after Tenant has commenced or
completed any partitioning or other improvements to the Demised Premises, then
in such event, Landlord shall provide Tenant with partitions and other
improvements of equal quality and quantity in the relocated Demised Premises.
The relocation of the Demised Premises hereunder shall not affect any other
provision of this Lease.
4. Minimum Annual Rental.
A. Until adjusted pursuant to Paragraph 4D hereof, Tenant shall pay as
minimum rent for the Demised Premises the sum of Forty-Three Thousand Five
Hundred Seventy-Six ($43,576.00) annually which is Eight Dollars ($8.00) per
square foot of rentable area (the "Minimum Annual Rental"). Such Minimum Annual
Rental (as may be adjusted annually pursuant to Paragraph 4D hereof) shall be
payable during the term hereof, in advance, in equal monthly installments,
together with all sales, use or other taxes based thereon (including, but not
limited to the tax imposed by Florida Statutes 212.03), and any other state,
federal or other governmental or quasi-governmental tax, service tax, license
fee or other imposition levied on the Rents received by Landlord, all of which
shall collectively be referred to hereafter as "Sales Tax." The first
installment of Minimum Annual Rental shall be payable on the Rental Commencement
Date and payment of Minimum Annual Rental shall continue to be payable on the
first (1st) day or each successive month thereafter. Until otherwise adjusted
pursuant to Paragraph 4D hereof, the monthly installments shall be Three
Thousand Six
6
Hundred Thirty-One and 33/100 Dollars ($3,631.33), provided Tenant is not in
default hereunder.
B. Concurrently with each monthly installment of Minimum Annual Rent,
Tenant shall pay Tenant's Proportionate Share of Taxes and Operating Expenses of
the Building and Tenant's Proportionate share of the occupied premises in the
Building (the numerator of which is the rentable square foot area of the
Tenant's premises and the denominator shall be the weighted average of occupied
promises in the Building during the year in question), the amount due from
Tenant for its use of the Parking Spaces as provided in Schedule "C" hereof,
together with Sales Tax on all of the above and all other sums which are due to
Landlord under the terms of this Lease (all such sums being hereinafter
collectively referred to as "Additional Rent"). The Minimum Annual Rental and
Additional Rent are hereinafter sometimes collectively referred to as "Rent."
C. If the Rental Commencement Date occurs on a day other than the first
(1st) day of the month, Rent from the Rental Commencement Date until the first
(1st) day of the following month shall be prorated (calculated on the basis of a
thirty (30) day month) and shall be payable in advance of the Rental
Commencement Date (and, in such event, the installment of Rent paid at execution
hereof shall be applied to the Rent due for the first (1st) full calendar month
of the term hereof).
D. The Minimum Annual Rental shall be adjusted annually on the first
(1st) anniversary of the Rental Commencement Date if the Rental Commencement
Date is the first (1st) day of a month (otherwise, it shall be adjusted annually
on the first (1st) day of the month next following the Rental Commencement Date)
and on each subsequent anniversary or such first (1st) day of the month (an
"Adjustment Date") by multiplying the Minimum Annual Rental for the immediately
preceding twelve (12) month period by 1.05. The product of such multiplication
shall be the Minimum Annual Rental for the next twelve (12) month period of the
term of the Lease.
(1) (a) The Minimum Annual Rental established on each
Adjustment Date shall continue in effect until again revised in accordance with
the terms and conditions of this Paragraph 4D. In no event shall the Minimum
Annual Rental established pursuant to this Paragraph 4D be less than the Minimum
Annual Rental for the Lease Year immediately preceding applicable Adjustment
Date.
(2) Lease Year is defined as follows:
(a) "Lease Year" shall mean the period of twelve full
calendar months commencing on the Rental Commencement Date if the Rental
Commencement Date is
7
the first (1st) day of the month (otherwise, the period of twelve (12) full
calendar months commencing on the first (1st) day of the month next following
the Rental Commencement Date) and each consecutive twelve (12) month period
thereafter.
E. Adjustments to the Minimum Annual Rental under Paragraph 4D hereof
shall be effective as of each applicable Adjustment Date. Tenant shall pay the
Minimum Annual Rental so adjusted for each Lease Year in twelve (12) equal
monthly installments upon receipt of a written statement from Landlord
("Landlord's Statement of Minimum Annual Rental") setting forth (i) the new
Minimum Annual Rental for the Lease Year following the applicable Adjustment
Date and (ii) the difference, if any, between the Minimum Annual Rental paid by
Tenant on and after the applicable Adjustment Date and the amount of Minimum
Annual Rental actually due from Tenant on and after any applicable Adjustment
Date because of adjustments made in accordance with Paragraph 3D hereof. Tenant
shall, immediately with the next installment of rent due after receipt of
Landlord's Statement of Minimum Annual Rental, begin to pay the new Minimum
Annual Rental within ten (10) days after the receipt of such Landlord's
Statement of Minimum Annual Rental, Tenant shall pay the full amount of any
deficiency in the amounts of the monthly installments of Minimum Annual Rental
theretofore made between the Adjustment Date and the date of receipt of
Landlord's Statement of Minimum Annual Rental as set forth in subparagraph (ii)
of this paragraph. Tenant shall not be in default under the terms of this Lease
for failure to pay the full amount of Minimum Annual Rental, as newly adjusted
under Paragraph 4D hereof, until Tenant has received Landlord's Statement of
Minimum Annual Rental and has theretofore failed to pay the installments of
Minimum Annual Rental or any deficiency due as set forth under this Paragraph
4E. Nothing contained herein shall relieve Tenant of the responsibility to pay
Minimum Annual Rental at the prior Lease Year's rate until such time as it has
received Landlord's statement of the new Minimum Annual Rental.
F. Landlord shall arrange for the Demised Premises to be separately
metered so that Florida Power and Light shall provide electricity directly to
the Demised Premises. Tenant agrees to pay to Florida Power and Light (or other
utility company serving the Demised Premises) all charges for electricity
consumed with respect to the Demised Premises as measured by the aforesaid
electric meter for the Demised Premises. Notwithstanding the foregoing, Landlord
may, at Landlord's sole option, and upon notice to Tenant, elect to measure
usage of electricity by Tenant in the Demised Promises by connection to a single
meter commonly shared with some or all of the other tenants in the Building, so
that Florida Power and Light shall provide electricity directly to all spaces
commonly metered. In the event Landlord should elect to so commonly meter the
Building or any portion thereof, Landlord shall pay directly to Florida Power
and Light all charges for electricity so metered and Tenant shall pay, in
addition to Tenant's Proportionate Share of Taxes and Operating Expenses, such
share of the electricity xxxx so metered which shall be in proportion to a
fraction, the numerator
8
of which shall be the total rentable square footage of the Demised Premises and
the denominator of which shall be the total rentable square footage of all
tenants connected to the common meter, or such share as may be determined in any
other manner Landlord deems appropriate. Tenant acknowledges that the cost of
electricity for the Common Areas is included as an Operating Expense of the
Building separate from the charges for electricity to the Demised Premises.
G. All sums payable by Tenant under this Lease, whether or not stated
to be Minimum Annual Rental or Additional Rent, shall be collectible by Landlord
as Rent, and in the event of a default in payment thereof, Landlord shall have
the same rights and remedies as for a failure to pay Minimum Annual Rental
(without prejudice to any other right or remedy available therefore).
H. If Landlord, at any time or times, shall accept said Rent or any
other sum due to it hereunder after same shall become due and payable, such
acceptance shall not excuse delay upon subsequent occasions, or constitute, or
be construed as, a waiver of any of Landlord's rights hereunder.
I. All Rent and other sums due to Tenant hereunder shall be payable
without demand, deduction, set-off, or counterclaim at the office address of
Landlord first above given, or at such other address as Landlord may designate,
from time to time, by written notice to Tenant.
5. Taxes and Operating Expenses.
A. As used in this Paragraph 5, the following terms shall be defined as
hereinafter set forth:
(1) "Taxes" shall mean all real estate taxes and assessments,
transit taxes, and any other federal, state, city, county or other local
governmental charges or charges by any school, drainage or other special
improvement district, (but not including income taxes or any other taxes imposed
upon or measured by Landlord's income or profits, unless the same shall be
imposed in lieu of real estate taxes or limited solely to income from real
property), general or special, ordinary or extraordinary, foreseen or
unforeseen, which may now or hereafter be levied, assessed or imposed upon the
Property or with respect to the ownership thereof. Taxes shall also include any
personal property taxes imposed upon the furniture, fixtures, machinery,
equipment, apparatus, systems and appurtenances used in connection with the
Property for the operation thereof. If, due to a future change in the method of
taxation, any franchise, income, profit or other tax, however designated, shall
be levied, assessed or imposed in substitution, in whole or in part, for (or in
lieu of) any tax which would otherwise
9
be included within the definition of Taxes, such other tax shall be deemed to be
included within Taxes as defined herein, Taxes shall also include all of
Landlord's expenses, including, but not limited to, attorney's fees incurred by
Landlord in any effort to minimize taxes; provided, however, that Landlord shall
have no obligation to undertake any contest, appeal or other procedure to
minimize taxes.
(2) Subject to adjustment as herein before provided, "Tenant's
Proportionate Share" for all purposes of this Lease shall be deemed to be 2.30%.
(3) "Tenant's Initial Share shall mean Tenant's initial share
of Taxes and Operating Expenses which is estimated by Landlord to be
Thirty-Seven Thousand Seven Hundred Forty-Seven and 71/100 Dollars ($37,747.71)
for the first (1st) calendar year.
(4) (a) "Operating Expenses" shall mean all expenses incurred
by Landlord in the operation, repair, maintenance, protection, inspection and
management of all or any portion of the Property and shall include, without
limitation:
(i) operation, repair, replacement,
maintenance, inspection, protection and management of the systems and
components of the Building or any portion thereof;
(ii) wages, salaries, fees and other
compensation (and taxes imposed upon employers in connection therewith)
and fringe benefits paid to persons employed by Landlord or Landlord's
managing agent, including but not limited to social security taxes,
unemployment insurance taxes, cost for providing coverage for disability
benefits, cost of any pensions, hospitalization, welfare or retirement
plans, or any other similar or like expenses incurred under the
provisions of any collective bargaining agreement, or any other cost or
expense which Landlord pays or incurs to provide benefits for employees
so engaged in the operation, maintenance, protection and repair of the
Property, excluding any overtime wages or salaries paid for providing
extra services to specific tenants which is directly chargeable to and
paid by such tenants;
(iii) contract costs of independent
contractors hired for the operation, maintenance, inspection, protection
or repair of the Property or any portion thereof, including but not
limited to, service, materials and supplied included in ouch contract
costs;
(iv) costs of electricity, steam,
water, sewer, and all other utilities consumed in the operation, repair,
maintenance, inspection management of the
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Property (excluding utilities consumed within space occupied by
tenants, which are metered to and paid directly by tenants);
(v) cost of all insurance carried by
Landlord for the Property, including, but not limited to, all risk or
fire and extended coverage (including windstorm and flood coverage),
elevator, boiler, sprinkler leakage, water damage, public liability and
property damage, plate glass, rent protection, and workmen's
compensation, but excluding any charge for increased premiums due to
acts or omissions of any tenants of the Property because of extra risks
which are reimbursed to Landlord by such other tenants;
(vi) alterations, additions or
improvements to the non-rentable portions of the Property (hereinafter,
the "Common Areas") which benefit all tenants thereof, or which are made
to decrease the operating Expenses of the Property;
(vii) all materials, supplies, tools
and equipment purchased or rented to maintain and keep the Property in
good condition and repair;
(viii) legal, accounting and other
professional expenses incurred in connection with the operation,
maintenance, repair, protection and management of the Property;
(ix) reasonable reserves for the
operation, maintenance, repair, protection and management of the
Property;
(x) janitorial service for the
Building and Parking Facilities, including, but not limited to, the cost
of window cleaning, uniforms, supplies and sundries;
(xi) cleaning costs for the Property
including the facade, windows, and sidewalks and trash removal and the
cost of all labor, supplies, equipment and materials incidental to, such
cleaning;
(xii) management fees of the managing
agent for the Property, if any, and if there is no managing agent, or if
the managing agent is affiliated with Landlord, management fees shall be
15% of the charges stipulated in Section 5, an amount customarily
charged for the management of a first class office building by an
independent managing agent, in the County of Palm Beach, Florida;
11
(xiii) the cost of repainting,
redecorating, or refurbishing any part of the Property, including the
cost of displays, plantings or decorations for the lobby, balconies and
other public portions of the Property; and
(xiv) the amortized portion of the
cost of any capital improvements or alterations made to the Property
which is either required by law (any governmental regulation), required
by any insurance company issuing insurance carried by Landlord or
intended by Landlord to reduce Operating Expenses (including but not
limited to energy costs), it being understood that such amortization
shall be in accordance with generally accepted accounting principles and
shall include interest at the rate incurred by Landlord in connection
with the installation of the capital improvement or alteration;
(xv) any and all sums for
landscaping, ground maintenance, sanitation control, cleaning, lighting,
Parking Facilities and driveway maintenance, line striping and
resurfacing, equipment and fixture replacement, fire protection, and
security;
(xvi) depreciation of hand tools and
other moveable equipment used in the repair, maintenance or operation of
the Property; and
(xvii) all other expenses whether or
not hereinabove mentioned which, in accordance with generally accepted
accounting and management principles, would be considered as an expense
for the repair, maintenance, protection and operation of the Property by
virtue of the ownership thereof.
(b) The term "Operating Expenses" shall not
include: (1) the cost of painting, decorating, or installing fixtures or
equipment in space for the purposes of preparing the space for occupancy by a
tenant; (2) wages, salaries or fees paid to executive personnel of Landlord; (3)
the cost of any repair or replacement item which, by standard accounting
practice, should be capitalized, except as described above; (4) any charge for
depreciation or interest incurred by Landlord, except as described above; (5)
any charge for Landlord's income tax, excess profit taxes, franchise taxes or
similar taxes on Landlord's business; or (6) leasing commissions.
B. For and with respect to each calendar year during the term of this
Lease after the Rental Commencement Date (and any renewals or extensions
thereof), Tenant shall pay to Landlord, as Additional Rent, an amount equal to
Tenant's Proportionate Share of the Taxes and Operating Expenses for such
calendar year, appropriately prorated on a per diem basis for any partial
calendar year included within the beginning and of the term, Tenant's
Proportionate
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Share of Taxes and Operating Expense shall be computed by multiplying the total
amount of Taxes and Operating Expenses by Tenant's Proportionate Share. Tenant's
Initial Share of Taxes and Operating Expenses shall be as set forth in Paragraph
5A(3). Tenant's Proportionate Share of such Taxes and operating Expenses shall
be paid in accordance with the following procedures:
(1) Landlord shall furnish to Tenant on or before April
30 of each calendar year of the term hereof:
(a) A written statement (the "Estimate
Statement") of Landlord's good faith estimate of Taxes and Operating Expenses
and Tenant's Proportionate Share of same (the "Estimated Share"), for the
current calendar year, Landlord may, at any time, change Tenant's Estimated
Share by sending Tenant a revised Estimate Statement if, in Landlord's
reasonable opinion, Landlord determines that Tenant's Proportionate Share of
Taxes and Operating Expenses for any calendar year will exceed those set forth
in the most recent Estimate Statement.
(b) A written statement (the "Expense
Statement") setting forth: (i) Taxes and Operating Expenses for the calendar
year immediately prior to (the "Prior Year") the calendar Year in which any
Expense Statement is issued; (ii) Tenant's Proportionate Share of the Taxes and
Operating Expenses for the Prior Year; (iii) the amount, if any, due from Tenant
for any deficiency between Tenant's Proportionate Share of Taxes and Operating
Expenses for the Prior Year and the actual amounts paid by Tenant as its
Estimated Share during such Prior Year, and (iv) the amount due from Tenant for
any deficiency in the payments of Tenant's Estimated Share for the current
calendar year resulting from any adjustment of Tenant's Estimated Share for the
current calendar year.
(2) Tenant's Proportionate Share of Taxes and Operating
Expenses shall be paid monthly as Additional Rent together with payments of
Minimum Annual Rental as follows:
(a) The amount of any deficiency due from Tenant
as shown on the Expense Statement shall be paid by Tenant within twenty (20)
days from the date of issuance of such Expense Statement described above. If any
Expense Statement reflects an excess paid by Tenant during such period (the "Tax
and Operating Expense Credits"), said Tax Operating Expense Credit shall be
credited against Tenant's Estimated Share falling due after the date of the
applicable Expense Statement until such credit is depleted.
(b) On the first (1st) day of the first (1st)
full month after the Rental Commencement Date, Tenant shall pay Landlord
one-twelfth (1/12th) of the amount of
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Tenant's Initial Share of Taxes and Operating Expenses set forth in the
Referenced Data at the beginning of this Lease, together with the pro rata
portion of Tenant's Initial Share determined on a per diem basis with respect to
a thirty (30) day month for any period of time elapsed between the Rental
Commencement Date and the first (1st) day of the first (1st) full month after
the Rental Commencement Date.
(c) On the first (1st) day of each subsequent
month during the first (1st) calendar year of the term of this Lease, and
continuing thereafter until issuance of any Estimate Statement in which Tenant's
Estimated share exceeds Tenant's Initial Share of Taxes and Operating Expenses,
Tenant shall pay Landlord one-twelfth (1/12th) of Tenant's Initial Share of
Taxes and Operating Expenses set forth in the Referenced Data at the beginning
of this Lease.
(d) On the first (1st) day of the month after
receipt of an Estimated Statement increasing Tenant's Estimated Share above
Tenant's Initial Share and on the first (1st) day of each succeeding month
thereafter until Tenant shall receive a revised Estimated Statement, Tenant
shall pay to Landlord, on account of its share of Taxes and Operating Expense,
one-twelfth (1/12th) of the then current Estimated Share.
6. Security. As additional security for the full and prompt performance by
Tenant of the terms and covenants of this Lease, Tenant shall deliver to
Landlord concurrently upon execution of this Lease the amount of Seven Thousand
One Hundred Eighty-Three and 59/100 Dollars ($7,183.59) (the "Security
Deposit"), none of which Security Deposit shall constitute rent for any month
unless so applied by Landlord to compensate Landlord for all loss, cost expense
or damage suffered by Landlord due to default or failure of Tenant hereunder.
Tenant shall, upon demand, restore any portion of said Security Deposit so
applied by Landlord on account of any default or failure by Tenant hereunder and
Tenant's failure to do so shall constitute a default hereunder. To the extent
that Landlord has not applied said sum on account of a default, the Security
Deposit shall be returned (without interest) to Tenant promptly after
termination of this Lease. Landlord may, in its absolute discretion, commingle
the Security Deposit with other funds of Landlord. In the event Landlord
delivers the Security Deposit to a purchaser or other successor to Landlord's
interest in the Property, Landlord shall be discharged of any further liability
with respect to the Security Deposit.
7. Tenant's Covenants. Tenant agrees, on behalf of itself, its employees and
agents, that it shall:
A. Comply at all times with any and all federal, state, and local
statutes, regulations, ordinances and other requirements of any applicable
public authorities relating to its use and occupancy of the Demised Premises.
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B. Give Landlord access to the Demised Premises at all reasonable
times, without charge or diminution of rent, to enable Landlord: (1) to examine
the same and to make such repairs, additions and alterations as Landlord may be
permitted to make hereunder or as Landlord may deem advisable to the Demised
Promises or any other portion of the Property or any part thereof; and (2) upon
reasonable notice, to show the Demised Premises to any prospective mortgagees
and purchasers, and, during the six (6) months prior to expiration of the term,
to prospective tenants.
C. Maintain and repair, at its cost and expense, the Demised Premises,
including the plumbing, electrical, HVAC and other systems within the Demised
Premises, with the exception of such items which are Landlord's responsibility,
as required to keep the Demised Premises in good working order and condition,
Tenant shall commit no waste in or upon the Demised Premises.
D. Upon the termination of this Lease for any reason whatsoever, remove
Tenant's goods and effects and those of any other person claiming under Tenant,
and quit and deliver up the Demised Premises to Landlord peaceably and quietly
in as good order and condition as at the inception of the term of this Lease or
as the same hereafter may be improved by Landlord or Tenant, reasonable use and
wear thereof, damage from fire and other insured casualty and repairs which are
Landlord's obligation excepted. Goods and effects not removed by Tenant at the
termination of this Lease, however terminated, shall be considered abandoned and
Landlord may dispose of and/or store the same as it deems expedient, the cost
thereof to be charged to Tenant.
E. Not place signs on the Demised Premises except in accordance with
sign criteria approved by Landlord. All signs shall be purchased and erected at
Tenant's expense. Identification of Tenant and Tenant's location shall be
provided by Landlord at Tenant's expense in a directory in the Building Lobby.
F. Not overload, damage or deface the Demised Premises or do any act
which might make void or voidable any insurance on the Demised Premises of the
Building and/or the Property or which may render an increased or extra premium
payable for insurance (and without prejudice to any right or remedy of Landlord
regarding this subparagraph, Landlord shall have the right to collect from
Tenant, upon demand, any such increased ar extra premium).
G. Not make any alteration of or addition to the Demised Premises
without the prior written approval of Landlord in accordance with the provisions
of Paragraph 3E of this Lease. All such alterations and additions, as well as
all fixtures, equipment, improvements and
15
appurtenances installed in the Demised Premises (but excluding Tenant's trade
fixtures) shall, upon installation, become and remain the property of Landlord
and shall be maintained by Tenant during the term hereof and any renewals and
extensions thereof, in the same good order and repair in which the Demised
Premises are required to be maintained. Tenant shall, at the expiration or the
term hereof, remove Tenant's trade fixtures and other personal property which
can be removed without damage to the Demised Premises and shall likewise remove
such other items as Landlord shall designate for removal by Tenant upon
expiration of the term hereof (and in such case Tenant shall be obligated to
restore any damage caused thereby). The construction of any such alterations and
additions shall be performed at Tenant's expense by Landlord or Tenant, as
Landlord shall elect, subject to the requirements specified in Paragraph 3 of
this Lease. All alterations and additions to the Demised Premises shall be
performed in accordance with plans and specifications therefore submitted to,
and approved by Landlord, in a good and workmanlike manner and in conformity
with all building codes, laws, regulations, rules, ordinances and other
requirements of all governmental or quasi-governmental authorities having
jurisdiction.
H. Not install or authorize the installation of any coin operated
vending machines
I. Not bring any flammable, explosive or dangerous material or
article onto the Property.
J. Not violate Landlord's regulation that only persons approved
from time to time by Landlord may prepare, solicit orders for sell, serve or
distribute foods or beverages in the Building, or use the elevators, corridors
or common areas for any such purpose. Except with Landlord's prior written
consent and in accordance with arrangements approved by Landlord, Tenant shall
not permit on the Demised Premises the use of equipment for dispensing food or
beverages or for the preparation, solicitation of orders for sale, serving or
distribution of food or beverages.
K. Not bring safes, heavy files, or other heavy equipment into
the Property unless the weight, location and handling of same is approved by
Landlord. Regardless of said approval, Tenant shall indemnify, defend and save
Landlord harmless from any and all expanses and other damages, Including
attorney's fees, and costs, resulting from the use or installation by Tenant of
such heavy equipment.
L. Not use, create, store, or permit any toxic or hazardous
material anywhere on the Property, Tenant shall not dispose of any toxic or
other hazardous waste through the plumbing system or drainage system of the
Building or the Property, and Tenant shall not violate any requirement of the
Florida Department of Environmental Regulation or the Florida Department of
Health, or any other governmental agency, with respect to waste disposal,
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Tenant shall indemnify, defend and hold Landlord harmless from any and all
expenses and other damages, including attorney's fees and costs incurred by
Landlord, as a result of improper storage or handling of any hazardous materials
or waste or any improper waste disposal by Tenant, which indemnification shall
survive the explication or earlier termination of this Lease.
M. Immediately and at its expense, Tenant shall repair and restore any
and all damages caused to the Demised Premises or the Property due to Tenant's
improvements, installations, alterations, additions or other work conducted by
Tenant within the Demised Premises, and Tenant shall restore the Property to the
condition existing prior to improvement, installation, alterations, additions or
other work conducted by Tenant within the Demised Premises.
N. Comply with the rules and regulations as initially set forth on
Exhibit "E," which is attached hereto and incorporated herein, and comply with
such other rules and regulations as Landlord may establish, and from time to
time amend, for the general safety, comfort and convenience of Landlord,
occupants and tenants of the Building.
O. Unless Landlord elects to commonly meter the Demised Premises in
accordance with Paragraph 4F of this Lease, Tenant shall pay directly to the
entity providing same, the costs of all utilities consumed within the Demised
Premises and all other sums assessed against Tenant or the Demised Premises by
any governmental or quasi-governmental entity in connection with Tenant's use or
occupancy of the Demised Premises.
P. Not install or operate in the Demised Premises any electrically
operated equipment or other machinery, including computers, unless requiring not
more than three-phase, four-wire 227/480 volt electrical service and normally
used in modern offices, or any plumbing fixtures, without first obtaining the
prior written consent of Landlord. In the event that Landlord determined, in its
sole and absolute discretion, that Tenant's electrical consumption within the
Premises is greater than the normal usage of other tenants within the Building,
Landlord reserves the right to charge Tenant for such additional consumption, or
cause Tenant to separately meter electrical service to the Premises at Tenant's
sole cost and expense. Tenant shall not install any equipment of any kind or
nature whatsoever which would or might necessitate any changes, replacements or
additions to the structural system, water system, plumbing system, heating
system, air conditioning system or the electrical system servicing the Demised
Premises or any other portion of the Building without the prior written consent
of Landlord, and in the event such consent is granted, such replacements,
changes or additions shall be paid for by Tenant.
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8. Services. Landlord agrees that it shall:
A. Provide self-service passenger elevator service to the Demised
Premises from the ground floor. Access to the Demised Premises shall at all
times be subject to compliance with such security measures as shall be in effect
for the Building
B. Provide Janitorial service to the Demised Premises and the Common
Areas in the Building as are customarily provided in first class office
buildings in Palm Beach County, Florida. Any and all additional or specialized
janitorial service desired by Tenant shall be contracted for by Tenant directly
and the cost and payment thereof shall be and remain the sole responsibility of
Tenant. The firm providing such janitorial service shall first be approved by
Landlord, and Tenant shall not be entitled to any reduction, abatement, or other
credit against its Proportionate Share of Operating Expenses on account of any
contract for additional or specialized janitorial services, whether or not
Landlord's janitorial services are continued by Tenant. Janitorial services are
to be provided as detailed in the Cleaning Specifications Schedule attached as
Exhibit "D."
C. Subject to the provisions of Paragraphs 12 and 15 hereof, make all
necessary repairs of damage to the Common Areas of the Building, equipment used
to provide services specified herein and to the roof, outside walls and
structural members of the Building and Parking Facilities. In the event that any
repair is required by reason of the negligence or abuse of Tenant or its agents,
employees or invitees, or of any other person entering the Building with
Tenant's consent, express or implied, Landlord may make such repair and add the
cost thereof to the first installment of rent which will thereafter become due.
D. Furnish the Common Areas of the Property with electrical service for
lighting and normal office use. Furnish the Demised Premises with heating or air
conditioning between the hours of 8:00 a.m. and 6:00 p.m. Monday through Friday,
excluding federal and state holidays. Tenant may be permitted the use of after
hours air conditioning at Landlord's discretion, said after hours air
conditioning to be separately metered by floor only, and Tenant shall pay to
Landlord, in addition to Tenant's Proportionate Share of Operating Expenses, the
after hours air conditioning fee determined by Landlord, in its sole and
absolute discretion to be a reasonable charge for said services, and such sums
shall be paid by Tenant as Additional Rent under this Lease.
E. The costs of all services provided in this Paragraph 8 not
separately charged to Tenant shall constitute Operating Expenses an defined in
Paragraph 5 above, Tenant acknowledges that Landlord does not warrant that any
of the services referred to in this Paragraph 8 will be free from interruption
from causes beyond the reasonable control of Landlord. No interruption of
service shall ever be deemed an eviction or disturbance of Tenant
18
or render Landlord liable to Tenant for damages by abatement of Rent or
otherwise, or relieve Tenant from performance of Tenant's obligations under this
Lease, unless Landlord, after reasonable notice, shall willfully and without
cause fail or refuse to take reasonable action within its control to restore
such service.
9. Subletting and Assigning. Tenant shall not assign, mortgage or otherwise
transfer or encumber this Lease or any portion of Tenant's interest herein, or
sublet all or any portion of the Demised Premises without first obtaining
Landlord's prior written consent thereto, which the parties agree may be
withheld for any reason whatsoever in Landlord's sole and absolute discretion.
If Landlord consents to any given assignment or subletting, such consent will
not be deemed a consent to any further subletting or assignment. Duly attempted
assignment, mortgage, sublease or other encumbrance of the Demised Premises in
violation of this paragraph shall be null and void. If Landlord consents to any
subletting or assignment, it shall nevertheless be a condition to the
effectiveness thereof that a fully executed copy of the sublease or assignment
be furnished to Landlord and that any assignee assume in writing all obligations
of Tenant hereunder. Notwithstanding any consent by Landlord to any subletting
or assignment, in the event of any subletting or assignment of the Demised
Premises, Tenant shall remain liable for all of the obligations of Tenant set
forth herein. The sale by Tenant of a controlling interest in the Tenant entity
shall be deemed an assignment of this Lease requiring the consent of Landlord as
specified above.
10. Indemnification; Waiver of Liability.
A. Tenant agrees to indemnify, defend and save harmless Landlord and
its building manager and their officers, employees, agents and independent
contractors, from any and all suits, actions, damages, liability and expenses
(including reasonable attorney's fees and costs) in connection with loss of
income, loss of life, bodily or personal injury or property damage in or about
the Demised Premises arising from any cause whatsoever unless such loss of life,
injury, or property damage is the result of the willful and gross negligence of
Landlord, its building manager, or their officers, employees, agents and
independent contractors, and Landlord and said managers and their officers,
employees, agents and independent contractors shall not be liable to Tenant for
any such damage or loss whether or not the result of their willful and gross
negligence.
B. Tenant agrees to indemnify, defend and hold Landlord and its
building manager, and their employees, officers, agents and independent
contractors harmless of, and from any and all loss, liability or expense
including, without limitation, reasonable attorney's fees and costs incurred by
Landlord in connection with any failure of Tenant to fully perform its
obligations under this Lease, and in connection with any personal injury or
damage to or loss of property of any type or nature resulting out of Tenant's
use of the Property, or caused by
19
the negligence, misconduct or breach of this Lease by Tenant, its employees,
subtenants, invitees, contractors, subcontractors, or any other person entering
the Property under express or implied invitation of Tenant.
11. Public Liability and Business Interruption Insurance.
A. Tenant, at its own cost and expense, shall obtain and maintain in
full force and effect during the original term hereof, and any extensions or
renewals, single limit public liability and property damage insurance in an
amount at least equal to Two Million Dollars ($2,000,000) or such other amounts
as Landlord may reasonably require from time to time, upon thirty (30) days
prior written notice.
B. Tenant, at its own cost and expense, shall obtain and maintain in
full force and effect during the original term hereof, and any extensions or
renewals, business interruption insurance payable in case of loss resulting from
damage to the Demised Premises or the Building by fire or other casualty. Such
insurance shall be maintained in an amount not less than the sum of all Minimum
Annual Rental and additional rent coming due for the then current calendar year
as estimated by Landlord.
C. Tenant agrees to carry full replacement cost all risk fire and
extended coverage insurance in form satisfactory to Landlord an all improvements
to the Demised Premises. Tenant also agrees to carry such all risk insurance
covering Tenant's fixtures, furnishings, wall covering, carpeting, drapes,
equipment and all other items of personal property of Tenant located on or
within the Demised Premises.
D. All policies of insurance described above shall name Landlord and
any mortgagee of Landlord as named insured, and shall include an endorsement
providing that the policies will not be cancelled or amended until after thirty
(30) days' prior written notice to Landlord. All such policies of insurance
shall be issued by a financially responsible company or companies satisfactory
to Landlord and authorized to issue such policy or policies, and licensed to do
business in the state of Florida. Tenant shall deposit with Landlord duplicate
originals of such insurance on or prior to the Rental Commencement Date together
with evidence of paid-up premiums, and shall deposit with Landlord renewals
thereof at least fifteen (15) days prior to expiration of any such policies.
12. Fire or Other Casualty. In case of damage to the Demised Premises by fire or
other casualty, Tenant shall promptly give notice thereof to Landlord. In case
of damage to the Building, the Demised Premises or the Parking Facilities by
fire or other casualty, Landlord shall, unless Landlord elects to terminate this
Lease as described below, and subject to the rights of Landlord's Mortgagees,
thereupon undertake the repair and restoration of: (a) the
20
Building, to substantially the same condition as existed prior to the casualty;
provided that Landlord is not obligated to restore any portion of the Building
or Parking Facilities not necessary for Tenant's use of the Demised Premises
(hereinafter the "Excluded Area"); and (b) the Demised Premises, to
substantially the condition in which Landlord was obligated to deliver the
Demised Premises to Tenant on the Rental Commencement Date, at the expense of
Landlord, subject to delays which may arise by reason of adjustment of loan
under insurance policies and for delays beyond the reasonable control of
Landlord; provided, however, that Landlord shall not be obligated to restore the
Demised Premises if adequate insurance proceeds are not available to Landlord to
complete such work. The Minimum Annual Rent payable by Tenant hereunder shall be
equitably apportioned during the period of Landlord's repair and/or restoration
of the Demised Premises in accordance with the portion of the Demised Premises
which has been rendered untenantable. If Landlord elects to make such repairs,
Tenant shall, within thirty (30) days after completion by Landlord of such
repair and/or restoration, at Tenant's sole cost and expense, commence to repair
or restore the remainder of the Demised Premises to the condition it was in
prior to such fire or casualty, (which work shall be completed by Tenant, within
one hundred twenty (120) days of commencement). In the event that Landlord, in
Landlord's discretion, shall decide not to repair or rebuild the Demised
Promises, the Building or the Parking Facilities, Landlord shall deliver written
notice to Tenant of its election to terminate this Lease within ninety (90) days
after Landlord is notified of the casualty, and this Lease shall terminate as of
the date specified in such notice, which date shall not be more than ninety (90)
days thereafter, and the Rent (taking into account any apportionment as
aforesaid) shall be adjusted to the termination date, and Tenant shall thereupon
promptly vacate the Demised Premises.
13. Increase in Premiums. Tenant shall not do, permit or suffer to be done any
act, matter, thing or failure to act in respect to the Property or the Demised
Promises or use or occupy the Property or the Demised Premises or conduct or
operate Tenant's business in any manner objectionable to insurance companies
whereby the fire insurance or any other insurance now in force or hereafter to
be placed an the Demised Premises or any part thereof shall become void or
suspended or whereby any premiums in respect of insurance maintained by Landlord
shall be higher than those which would normally have been in effect for the
occupancy contemplated under the permitted uses. In case of a breach of this
covenant, in addition to all other rights and remedies of Landlord hereunder,
Tenant shall (a) indemnify Landlord and hold Landlord harmless from and against
any loss which would have been covered by insurance, which shall become void or
suspended because of such breach by Tenant, and (b) pay to Landlord any and all
increase of premiums on any insurance, including, without limitation, rent
insurance, resulting from any such breach.
14. Waiver of Subrogation. Landlord and Tenant waive, unless said waiver should
invalidate any Insurance required or permitted hereunder, their right to recover
damages
21
against each other for any reason whatsoever to the extent the damaged party
recovers indemnity from its insurance carrier. Any insurance policy procured by
either Tenant or Landlord which does not name the other as a named insured
shall, if obtainable, contain an express waiver of any right of subrogation by
the insurance company, including but not limited to Tenant's workmen's
compensation carrier, against Landlord or Tenant, whichever the case may be. All
public liability and property damage policies shall contain an endorsement that
Landlord, although named as an insured, shall nevertheless entitled to recover
for damages caused by the negligence of Tenant.
15. Eminent Domain.
A. If the whole of the Property, or the Demised Premises shall be taken
or condemned for a public or quasi-public use under any law, ordinance or
regulation, or by right of eminent domain or private purchase in lieu thereof by
any competent authority, this Lease shall terminate and Rent shall xxxxx for the
unexpired portion of the term of this Lease as of the date the right to
possession shall vest in the condemning authority.
B. If part of the Demised Premises shall be acquired or condemned as
aforesaid, and such acquisition or condemnation shall render the remaining
portion unsuitable for the business of Tenant (in the reasonable opinion of
Landlord), the term of this Lease shall cease and terminate as provided in
Paragraph 15(A) hereof, provided however, that diminution of rentable area shall
not in and of itself be conclusive as to whether the portion of the Demised
Premises remaining after such acquisition is unsuitable for Tenant's business.
If such partial taking is not extensive enough to render the Demised Promises
unsuitable for the business of Tenant, this Lease shall continue in full force
and effect except that the Minimum Annual Rental shall be reduced in the same
proportion that the rentable area of the Demised Premises taken bears to the
rentable area demised. Subject to the rights of any mortgagee of Landlord's
estate, Landlord shall, upon receipt of the net condemnation award, make all
necessary repairs or alterations to the Building so as to render the portion of
the Building not taken a complete architectural unit, but Landlord shall in no
event be required to spend for such work an amount in excess of the net amount
received by Landlord as damages for the part of the Building so taken. "Net
amount received by Landlord" shall mean that portion of the condemnation award
in excess of any sums required to be paid by Landlord to the holder of any
mortgage on the property so condemned, and all expenses and legal fees incurred
by Landlord in connection with the condemnation proceeding.
C. If part of the Building, but no part of the Demised Premises, is
taken or condemned as aforesaid, and, in the reasonable opinion of Landlord,
such partial acquisition or condemnation shall render Landlord unable to comply
with its obligations under this Lease, or shall render the Demised Premises
unsuitable for the business of Tenant, the term of the Lease
22
shall cease and terminate as provided in Paragraph 15(A) hereof, by Landlord
sending written notice to such effect to Tenant, whereupon Tenant shall
immediately vacate the Demised Premises.
D. In the event of any condemnation or taking as hereinbefore provided,
whether whole or partial, Tenant shall not be entitled to any part of the award,
as damages or otherwise, for such condemnation and Landlord is to receive the
full amount of such award, and Tenant hereby expressly waives any right or claim
to any part thereof. Although all damages in the event of any condemnation are
to belong to the Landlord whether such damages are awarded as compensation for
diminution in value of the leasehold or the fee of the Demised Premises, Tenant
shall have the right to claim and recover from the condemning authority, but not
from Landlord, such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right on account of any damage to Tenant's business by
reason of the condemnation and for or on account of any cost or loss to which
Tenant might be put in removing Tenant's 'merchandise, furniture, fixtures, and
equipment, or the loss of Tenant's business or decrease in value thereof.
16. Events of Default. Each of the following events shall constitute an Event of
Default under this Lease:
A. If Tenant shall fall to pay Minimum Annual Rental, Additional Rent,
or any other sum payable to Landlord hereunder when due; or
B. If Tenant shall fail to perform or observe any of the other
covenants, terms or conditions contained in this Lease within ten (10) clays
after written notice thereof by Landlord; or
C. If a receiver, or trustee is appointed to take possession of all or
a substantial portion of the assets of Tenant or any Guarantor and such receiver
or trustee is not dismissed within thirty (30) days; or
D. If Tenant or any Guarantor makes an assignment for the benefit of
creditors; or
E. If any bankruptcy, reorganization, insolvency, credit or adjustment
or debt rehabilitation proceedings are instituted by or against Tenant or any
Guarantor under any state or federal law and the same are not dismissed within
thirty (30) days; or
F. If levy, execution, or attachment, proceedings or other process of
law are commenced upon, on or against Tenant or any Guarantor or a substantial
portion of Tenant's or any Guarantor's assets and the same are not dismissed
within thirty (30) days; or
23
G. If a liquidator, receiver, custodian, sequester, conservator,
trustee, or other similar judicial officer is applied for by Tenant or any
Guarantor; or
H. If Tenant or any Guarantor becomes insolvent in the bankruptcy or
equity sense; or
I. If the Demised Premises are vacated, abandoned or deserted during
the term hereof or Tenant removes or manifests an intention to remove its goods
and property from the Demised Premises other than in the ordinary course of its
business.
17. Remedies.
A. If Tenant fails to pay Minimum Annual Rental, Additional Rent, or
any other sum payable to Landlord hereunder when due, Tenant shall pay a late
charge in the amount or Fifty Dollars ($50.00) plus interest accruing on the
unpaid sums from the date such sums are due at a rate equal to the greater of
(a) eighteen percent (18%) per annum or (b) three percent (3%) per annum in
excess of the prime rate of interest paid by Landlord on sums borrowed by
Landlord (the "Late Charge"). The Late Charge shall be Additional Rent under the
terms of this Lease. In no event, however, shall any interest or other charge on
any delinquent payments exceed the amount allowed to be charged under the usury
laws of the State of Florida, it being acknowledged and agreed that any amount
in excess of such limitation shall be refunded to Tenant by Landlord by means of
a credit against the next installment(s) of Rent coming due hereunder, or if no
such Rent payments remain to be paid, then the excess shall be refunded in cash.
The Late Charge shall be in addition to, and shall not in any way limit any
other rights or remedies available to Landlord under the terms of this Lease or
at law and in equity.
B. Upon the occurrence of an Event of Default, Landlord may, at any
time thereafter, and in addition to any other available rights or remedies at
law and/or in equity, elect any one or more of the following remedies:
(1) Without obligation to relet the Demised Premises, to
accelerate the whole or any part of the Minimum Annual Rental, the Additional
Rent, or any other sum payable to Landlord hereunder for the entire unexpired
balance of the Term of this Lease, as well as all other charges, payments, costs
and expenses herein agreed to be paid by Tenant and for purposes of this
Paragraph, the Minimum Annual Rental shall be deemed to be increased and
adjusted as described in Paragraphs 3C and 3D hereof, with the annual Cost of
Living Increase calculated as if the Adjustment Date was the month in which such
default occurred, and any Rent or other charges, payments, costs and expenses if
so accelerated shall, in addition to any and all installments of Rent already
due and payable and in arrears, and/or any other charge or
24
payment herein reserved, included or agreed to be treated or collected as rent
and/or any other charge, expense or cost herein agreed to be paid by Tenant
which may be due and payable and in arrears, be deemed due and payable as if, by
the terms and provisions of this Lease, such accelerated Rent and other charges,
payments, costs and expenses were on that date payable in advance, and Landlord
shall be entitled to all costs of collection, including attorney's fees and
costs through all appellate levels and post-judgment proceedings, and to
interest on all such amounts at the maximum rate allowed by law until such
amounts are actually paid to Landlord.
(2) To immediately re-enter the Demised Premises without
accepting surrender of the leasehold estate and remove all persons and all or
any property therefrom, with or without summary, dispossess proceedings or by
any suitable action or proceeding at law, without being liable to indictment,
prosecution or damages therefore, and repossess and enjoy the Demised Premises;
together with all additions, alterations and improvements. Upon recovering
possession of the Demised Promises by reason of or based upon or arising out of
a default on the part of Tenant, Landlord may, at Landlord's option, either
terminated this Lease or make such alterations and repairs as may be necessary
in order to relet the Demised Premises or any part or parts thereof, either in
Landlord's name or otherwise, for a term or terms which may at Landlord's option
be less than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease and at such rent or rents and upon such other
terms and conditions as in Landlord's sole discretion may seem advisable and to
such person or persons as may in Landlord's discretion seem best. Upon each such
reletting all rents received by Landlord from such reletting shall be applied:
first, to the payment of any indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any costs and expenses of such
reletting, including brokerage fees and attorney's fees and all costs of such
alterations and repairs; third, to the payment of Rent due and unpaid hereunder;
and the residue if any, shall be held by Landlord and applied in payment of
future rent as it may become due and payable hereunder. If such rentals received
from such reletting during any month shall be less than that to be paid during
that month by Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall be calculated and paid monthly. No such re-entry
or taking possession of the Demised Premises or the making of alterations and/or
improvements thereto or the reletting thereof shall be construed as an election
on the part of Landlord to terminate this Lease unless written notice of such
intention be given to Tenant. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Demised Promises or, in the event that the
Demised Premises or any part or parts thereof are relet, for failure to collect
the rent thereof under such reletting. Tenant, for Tenant and Tenant's
successors and assigns, hereby irrevocably constitutes and appoints Landlord as
Tenant's agent to collect the rents due and to become due under all subleases of
the Demised Premises or any part thereof without in any way affecting Tenant's
obligation to pay any unpaid balance of Rent due or to become due hereunder.
Notwithstanding any such reletting
25
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach.
(3) To terminate this Lease and the term hereby created
without accepting any surrender of the leasehold estate and without any right on
the part of Tenant to waive the forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken, whereupon Landlord shall
be entitled to recover, in addition to any and all sums and damages for
violation of Tenant's obligations hereunder in existence at the time of such
termination, damages for Tenant's default in an amount equal to the amount of
the Rent reserved for the balance of the term of this Lease, as well as all
other charges, payments, costs and expenses herein agreed to be paid by Tenant,
all discounted at the rate of six percent (6%) per annum to their then present
worth, less the fair rental value of the Demised Premises for the remainder of
said term, also discounted at the rate of six percent (6%) per annum to its then
present worth, all of which amount shall be immediately due and payable from
Tenant to Landlord.
C. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy herein or by law provided
but each shall be cumulative and in addition to every other right or remedy
given herein or now or hereafter existing at law or in equity or by statute.
D. In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions hereof, Landlord, in its sole and absolute
discretion, shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceedings and other
remedies were not herein provided for in law or in equity.
E. No waiver by Landlord of any breach by Tenant of any of Tenant's
obligations, agreements or covenants herein shall be a waiver of any subsequent
breach or of any obligation, agreement or covenant, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach.
18. Quiet Enjoyment. Upon paying the Minimum Annual Rental, Additional Rent, and
other charges and sums herein provided for, and upon Tenant's observance and
keeping of all the covenants, agreements and conditions of this Lease, Tenant
shall quietly have and enjoy the Demised Premises during the term of this Lease
without hindrance or molestation by anyone claiming by or through Landlord;
subject, however, to the terms, exceptions, reservations and conditions of this
Lease.
26
19. No Waiver. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more agreements, terms,
covenants, conditions, or obligations of this Lease, or to exercise any right,
remedy or election therein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
of this Lease or of the right to exercise such right, remedy or election, with
respect to any subsequent breach, act, or omission. The manner of enforcement or
the failure of Landlord to enforce any of the covenants, conditions, rules and
regulations set forth herein or hereafter adopted, against any tenant in the
Building shall not be deemed a waiver of any such covenants, conditions, rules
and regulations.
20. Attornment and Subordination.
A. Subject to the provisions in subsection B hereof, this Lease, and
the rights of Tenant hereunder, shall be subject or subordinate to any mortgages
which now are or may hereafter be placed upon the Property or any portion
thereof (a "mortgage") or any interest therein or to any leases (hereinafter
called "underlying leases") of the Property as a whole which now exist or may
hereafter be made (any holder of any such mortgage, or landlord with respect to
any underlying lease being hereinafter called an "Interested Party"). The terms
of this Subordination shall be self-operative, provided, however, that Tenant
shall execute such documents as may be requested by Landlord in order to confirm
this Subordination from time to time. Any failure by Tenant to execute any such
documents shall be a default hereunder.
B. Upon the request of Tenant, any Interested Party shall provide to
Tenant its written agreement providing substantially as follows: so long as
Tenant has not defaulted under this Lease; (I) Tenant's rights shall not be
terminated or disturbed by reason of any foreclosure of such mortgage or
termination of such underlying lease; (II) in the event that the property
containing the Demised Premises is sold or otherwise disposed of pursuant to any
right or power contained in or existing by reason of any such mortgage or the
bond, note or debt secured thereby, the purchaser thereof or other person
acquiring title thereto through or by virtue of such sale or other disposition
shall take title thereto subject to this Lease and all rights of Tenant
hereunder; (III) upon termination of any such underlying lease, that lessor
shall accept Tenant's attornment upon all the terms and conditions of this Lease
for the balance of the term hereof. Any such written agreement shall also
reserve to the Interested Party the rights specified in section D hereof.
C. Upon any foreclosure sale on any such mortgage or termination of any
underlying lease, if the holder of the mortgage or other purchaser at
foreclosure sale or any lessor with respect to any underlying lease shall so
request, Tenant shall attorn to such holder, purchaser or lessor as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such holder, purchaser or lessor may reasonably request to
27
evidence such attornment. Upon such attornment, this Lease shall continue in
full force and effect as a direct lease between such holder, purchaser or lessor
and Tenant upon all of the terms, conditions and covenants as are set forth in
this Lease.
D. In the event that the holder of such mortgage or the lessor under
such underlying lease shall succeed to the interest of Landlord hereunder, such
Interested Party shall not be: (i) liable for any act or omission of any prior
landlord (including Landlord); (ii) liable for the return of any security
deposit not actually received by it; (iii) subject to any offsets or defenses
which Tenant might have against any prior Landlord (including Landlord); (iv)
bound by any Rent or Additional Rent which Tenant might have paid for more than
the current month to any prior Landlord (including Landlord); or (v) bound by an
amendment or modification of this Lease made without its written consent.
E. Within ten (10) days after written request from Landlord from time
to time, Tenant shall execute and deliver to Landlord, or Landlord's designee, a
written statement certifying, (i) that this Lease is unmodified and in full
force and effect, or is in full force and effect as modified and stating the
modifications; (ii) the amount of Minimum Annual Rent and the date to which
Minimum Annual Rent and Additional Rent have been paid in advance; and (iii)
that Landlord is not in default hereunder or, if Landlord is claimed to be in
default, stating the nature of any claimed default; (iv) the amount of security
deposit landlord is holding and (v) any options to renew or purchase that tenant
may have. Within ten (10) days after written request from Tenant from time to
time, Landlord shall execute and deliver to Tenant, or Tenant's designee, a
written statement certifying, (i) that this Lease is unmodified and in full
force and effect, or is in full force and effect as modified and stating the
modifications; (ii) the amount of Minimum Annual Rent and the date to which
Minimum Annual Rent and Additional Rent have been paid in advance; and (iii)
that Tenant is not in default hereunder, or if Tenant is claimed to be in
default, stating the nature of any claimed default.
21. Notices. All bills, statements, notices or communications which either party
hereto may desire or be required to give to the other shall be deemed
sufficiently given or rendered if in writing and either hand delivered to
Landlord or Tenant or sent by registered or certified mail or overnight courier,
postage prepaid, addressed to Landlord or Tenant at the address set forth on the
first page hereof or any other address pursuant to notice given as herein set
forth. Any notices given in accordance with the Lease shall be deemed to be
given when the same is hand delivered to the other party, deposited with the
overnight courier or three (3) days after depositing in the all, as the case may
be.
22. Holding Over. Should Tenant continue to occupy the Demised Premises after
expiration of the term of this Lease or any renewal is thereof, or after a
forfeiture incurred such tenancy shall (without limitation on any of Landlord's
rights or remedies therefore) be
28
one at sufferance from month to month at a minimum monthly rent equal to twice
the rent payable for the previous month of the term of this Lease.
23. Brokers. Tenant represents and warrants that it has not employed any broker
or agent as its representative in the negotiation for or the obtaining of this
Lease other than Landlord's leasing agent, and agrees to indemnify and hold
Landlord harmless from and against any and all cost or liability for
compensation claimed by any broker or agent other than Landlord's leasing agent
with whom it has dealt or claimed to have been engaged by Tenant.
24. Definitions of Landlord and Tenant.
A. The word "Tenant" as used in this Lease shall be construed to mean
tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships, or individuals, men or women, shall in all cases be
assumed as through in each case fully expressed. Each provision hereof shall
extend to and shall, as the case may require, bind and inure to the benefit of
Tenant and its heirs, legal representatives, successors xxx assigns, provided
that this Lease shall not inure to the benefit of any assignee, heir, legal
representative, transferee or successor of Tenant except upon the express
written consent or election of Landlord, except as herein otherwise provided.
B. The term "Landlord" as used in this Lease shall mean the fee owner
of the entire Property or, if different, the party holding and exercising the
right, as against all others (except space tenants of Building) to possession of
the entire Property. In the event of voluntary or involuntary transfer of such
Ownership or right to a successor in interest of Landlord, Landlord shall be
freed and relieved of all liability and obligation hereunder which shall
thereafter accrue (and, as to any unapplied portion of Tenant's security
deposit, Landlord shall be relieved of all liability therefore upon transfer of
such portion to its successor in interest) and Tenant shall look solely to such
successor in interest for the performance of the covenants and obligations of
Landlord hereunder which shall thereafter accrue. Notwithstanding the foregoing,
no mortgagee or ground lessor which shall succeed to the interest or Landlord
hereunder (either in terms of ownership or possessory rights) shall: (1) be
liable for any previous act or omission of a prior Landlord; (2) be subject to
any rental offsets or defenses against a prior landlord; (3) be bound by any
amendment of this Lease made without its written consent, or by payment by
Tenant of rent in advance in excess of one (1) month's rent; or (4) be liable
for any security deposit not actually received by it. Subject to the foregoing,
the provisions hereof shall be binding upon and inure to the benefit of the
heirs, personal representatives, successors and assigns of Landlord. In no event
shall the liability of Landlord to Tenant hereunder exceed Landlord's, interest
in the Property. Tenant agrees that no judgment arising from any default of
Tenant's agreements under the terms of this lapse or
29
by reason of any willful or negligent act, of Landlord and its Building manager,
and their employees, officers, agents and independent contractors, shall attach
against any property of Landlord other than the Property, and in no event shall
any such judgment constitute a lien upon any other lands or properties owned by
Landlord wheresoever located. Neither shall any such judgment attach or
constitute a lien against any property of any principal or partner of the
Landlord, or of their heirs, executors, administrators, successors or assigns.
25. Prior Agreements; Amendments. Neither party hereto has made any
representations or promises except as contained herein. No agreement hereinafter
made shall be effective to change, modify, discharge or effect an abandonment of
this Lease, in whole or in part, unless such agreement in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
26. Captions. The captions of the paragraphs in this Lease are inserted and
included solely for convenience and shall not be considered or given any affect
in construing the provisions hereof.
27. Construct+/-on of Lease. If any term of this Lease, or the application
thereof to any person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Lease or the application of such term to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
28. Mechanic's Liens, etc.
A. Tenant shall comply with the Mechanic's Lien Law of the State or
Florida as set forth in Florida Statutes, Chapter 713. Tenant will not create or
permit to be created or remain as a result of any action or work done or
contracted for by Tenant, and will discharge, any lien, encumbrance or charge
(levied on account of any imposition or any mechanic's, laborer's or
materialman's lien) which might be or become a lien, encumbrance or charge upon
the Property, the Demised Promises or any part thereof or the income therefrom,
whether or not the same shall have any priority or preference over or ranking on
a parity with the estate, rights and interest of Landlord in the Property, the
Demised Premises or any part thereof, or the income therefrom, and Tenant will
not suffer any other matter or thing whereby the estate, rights and interest of
Landlord in the Property, the Demised Premises or any part thereof might be
impaired; provided that any mechanic's, laborer's or materialman's lien may be
discharged in accordance with subparagraph B of this Paragraph 28.
B. If any mechanic's, laborer's or materialman's lien shall at any time
be filed against the Building, the Demised Premises or any part thereof as a
result of any action or
30
work done on behalf of or contracted for by Tenant, Tenant, within fifteen (15)
days after notice of the filing thereof, will cause it to be discharged of
record by payment, deposit, bond, order of the court of competent jurisdiction
or otherwise. If Tenant shall fall to cause such lien to be discharged within
the period aforesaid, then in addition to any other right or remedy, Landlord
may, but shall not be obligated to, discharge it either by paying the amount
claimed to be due or by transferring same to security, and in any such event,
Landlord shall be entitled, if Landlord so elects, to compel prosecution of any
action for the foreclosure of such lien by the lienor and to pay the amount of
the judgment in favor of the lienor with interest costs and allowances. Any
amount so paid by Landlord and all costs, expenses, and fees including without
limitation attorneys' fees, incurred by Landlord in connection with any
mechanic's, laborer's or materialman's lien, whether or to the same has been
discharged of record by payment, deposit, bond, order of the court of competent
jurisdiction or otherwise, together with interest thereon, at the maximum rate
permitted by law, from the respective dates of Landlord's making of the payments
and incurring of the costs and expanses, shall constitute Additional Rent
payable by Tenant to Landlord upon demand.
C. Nothing contained in this Lease shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied by
inference or otherwise, to any contractor, subcontractor, laborer or materialman
for the performance of any labor or the furnishing of any materials for any
alteration, addition, improvement or repair to the Property, the Demised
Premises or any part thereof, nor as giving Tenant any right, power or authority
to contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to the filing of any lien against the Property,
the Demised Premises or any part thereof, nor to subject Landlord's estate in
the Property to liability under the Mechanic's Lien Law of the state or Florida
in any way, it being expressly understood that Landlord's estate shall not be
subject to any such liability.
D. Notwithstanding any provision to the contrary set forth in this
Lease, it is expressly understood and agreed that the interest of the Landlord
shall not be subject to liens for improvements made by Tenant in and to the
Demised Premises, Tenant shall notify each and every contractor making any such
improvements of the provision set forth in the preceding sentence of this
paragraph. The parties agree to execute, acknowledge and deliver to Landlord
without charge a Mechanic's Lien Notice, in recordable form, containing a
confirmation that the interest of the Landlord shall not be subject to liens for
improvements made by Tenant to the Property or the Demised Premises.
29. Certain Rights Reserved to Landlord. Landlord reserves the following rights:
A. Building Name. To name the Building and to change the name or
street address of the Building,
31
B. Exterior Signs. To install and maintain a sign or signs on the
exterior of the Building.
C. Redecoration. During the last ninety (90) days of the term, if
during or prior to that time Tenant has vacated the Demised Premises, to
decorate, remodel, repair, alter or otherwise prepare the Demised Premises for
re-occupancy, without affecting Tenant's obligation to pay Minimum Annual
Rental, Additional Rent and all other sums due under the terms of this Lease.
D. Pass Keys. To constantly have pass keys to the Demised Premises.
E. Adjoining Areas. The use and reasonable access thereto through the
Demised Premises for the purposes of operation, maintenance, decoration and
repair of all walls, windows and doors bounding the Demised Premises (including
exterior walls of the Building, core corridor walls and doors and any core
corridor entrance) except the inside surface thereof, any terraces or roofs
adjacent to the Demised Promises and any space in or adjacent to the Demised
Premises used for shafts, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other facilities are reserved to Landlord.
F. Common Areas and Parking Facilities. The exclusive right to manage
the Common Areas and the Parking Facilities.
30. Landlord's Lien. In addition to any statutory Landlord's Lien, Landlord
shall have, at all times, a valid security interest to secure payment of all
Minimum Annual Rental, Additional Rent, and other sums of money becoming due
hereunder from Tenant, and to secure payment of any damages or loss which
Landlord may suffer by reason of the breach by Tenant of any covenant, agreement
or condition contained herein, upon all goods, wares, equipment, fixtures,
furniture, types, improvements and other personal property of Tenant presently
or which may hereinafter be situated in the Demised Premises, and all proceeds
therefrom, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in Minimum Annual Rental, Additional Rent, and
all other sums of money then due to Landlord hereunder shall first have been
paid and discharged and all of the covenants, agreements, and conditions hereof
have been fully complied with and performed by Tenant. In consideration of this
Lease, upon the occurrence of any event of default by Tenant, Landlord may, in
addition to any other remedies provided herein, enter upon the Demised Premises
and take possession of any and all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant situated on or in the Demised
Premises, without liability for trespass or conversation, and sell the same at
public or private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, at which sale the Landlord
or its assigns
32
may purchase the above described Property unless otherwise prohibited by law.
Unless otherwise provided by law, and without intending to exclude any other
manner of giving Tenant reasonable notice, the requirement of reasonable notice
shall be met if such notice is given in the manner proscribed in Paragraph 20 of
this Lease at least five (5) days before the time of sale. The proceeds from any
such disposition, less any and all expenses connected with the taking of
possession and selling of the property (including reasonable attorney's fees and
other expenses) shall be applied as a credit against the indebtedness secured by
the security interest granted in this Paragraph 29. Any surplus shall be paid to
Tenant or as otherwise required by law, and Tenant shall pay any deficiencies
upon demand. Upon request by Landlord, Tenant agrees to execute and deliver to
Landlord a financing statement in form sufficient to perfect the security
interest of Landlord in the aforementioned property and proceeds thereof under
the provisions of the uniform Commercial Code in force in the State of Florida.
Any statutory lien for Rent is not hereby waived, the security interest herein
granted being in addition and supplementary thereto.
31. Rules and Regulations. Tenant covenants and agrees that it shall comply with
and observe all nondiscriminatory, uniformly applied reasonable rules and
regulations ("Rules and Regulations"), which Landlord shall from time to time
promulgate for the management and use of the Demised Premises, the Building and
the Parking Facilities. Landlord's initial Rules and Regulations are set forth
on Exhibit "E" attached hereto and made a part hereof. Landlord shall have the
right from time to time to reasonably amend or supplement the Rules and
Regulations theretofore promulgated.
32. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE ANY AND ALL RIGHT TO
A TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM, OR SUBSEQUENT
PROCEEDING, BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT'S USE OR OCCUPANCY OF THE DEMISED PREMISES, THE BUILDING OR THE PARKING
FACILITIES AND/OR ANY CLAIM OF INJURY OR DAMAGE.
33. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of Radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding Radon and Radon testing may be obtained from your county public health
unlit.
34. No Option. The submission of this Lease to Tenant for examination does not
constitute a reservation of or option for the Demised Premises and this Lease
becomes effective as a lease only upon execution and delivery thereof by the
Landlord and Tenant.
33
35. Force Majeure. Notwithstanding anything to the contrary contained herein,
Landlord shall not be deemed in default with respect to the delivery of the
Demised Premises or any other obligation of Landlord hereunder, if Landlord's
inability to perform is due to any strike, lockout, civil commotion, warlike
operation, invasion, rebellion, hostilities, military or usurped power,
governmental regulation, moratoriums or controls, acts of God or any other cause
beyond the control of Landlord, provided that such cause is not due to the
willful act or negligence of Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
day and year first aforesaid.
Signed, sealed and delivered LANDLORD:
in the presence of:
CANPRO INVESTMENTS, LTD.
By:
Authorized Officer
TENANT:
NATIONAL TO FINANCE COMPANY
L.P.
By:
Authorized Officer
34
EXHIBIT "A"
Legal Description
Parcel 2 - Office Building Site
(O.R.B. 4312 PG.1726)
A portion of section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 43 East, Palm Beach County,
Florida, being more particularly described as follows:
Commencing at the South one quarter corner of said section 6: Thence North
00(degree)58'48" East, along said North-South quarter line, a distance of 664.54
feet; Thence South 89(degree)41'52" East, a distance of 347.49 feet; Thence
North 01(degree)00'11" East, a distance of 30.00 feet to the point of beginning
of this description; Thence continue North 01(degree)00'11 East, a distance of
634.46 feet; Thence South 890(degree)41'01" East, a distance of 347.76 feet;
Thence South 01(degree)01'35" West, a distance of 522.29 feet; Thence South
72(degree)29'41" West, a distance of 366.48 feet to the point of beginning,
together with the following described parcel:
Commencing at the South one quarter of said section 6: Thence North
00(degree)58'48" East along the North-South quarter line, a distance of 664.54
feet; Thence South 89(degree)41'52" East a distance of 347.49 feet; Thence North
01(degree)00'11" East, a distance of 30.00 feet; Thence North 72(degree)29'41"
East, a distance of 366.48 feet to the point of beginning of this description;
Thence South 01(degree)01'35" West, a distance of 41.33 feet is now laid out and
in use; Thence North 45(degree)35'19" East, a distance of 596.04 feet to the
point of curvature of a circular curve to the left; Thence Northerly and
Easterly along the arc of said curve, having a radius of 3365.62 feet, and an
arc distance of 0.25 feet to a point on the Easterly boundary of the Lake Worth
drainage district; The last two described courses being coincident with said
right-of-way line; Thence North 17(degree)26'44" West, a distance of 4.08 feet;
Thence North 44(degree)26'44" West, a distance of 141.82 feet; the last two
described courses being coincident with the Easterly boundary of the Lake Worth
drainage district; Thence North 89(degree)41'01" West, a distance of 309.96
feet; Thence South 01(degree)01'35" West, a distance 522.29 feet to the point of
beginning; less and except therefrom the following described parcel:
Commencing at the South one quarter of said section 6: Thence North
00(degree)58'48" East along said North-South quarter line, a distance of 664.54
feet; Thence South 89(degree)41'52" East, a distance of 347.49 feet; Thence
North 01(degree)00'11" East, a distance of 242.48 feet to the point of beginning
of this description; Thence continue North 01(degree)00'11" East, a distance of
421.98 feet; Thence South 89(degree)41'01" East, a distance of 98.61 feet;
Thence South 00(degree)18'59" West, a distance of 97.55 feet; Thence South
89(degree)41'01" East, a distance of 81.73 feet; Thence South 44(degree)24'41"
East, a distance of 100.00 feet; Thence South 45(degree)35'19" West, a distance
of 245.00 feet; Thence South 44(degree)24'41" East, a distance of 65.00 feet;
Thence South 45(degree)35'19" West, a distance of 80.00 feet; Thence North
44(degree)24'41" West, a distance of 65.00 feet; Thence South 45(degree)35'19"
West, a distance of 35.00 feet to the point of beginning.
Said lands situate, lying, and being in Palm Beach County, Florida, and subject
to all easements, reservations, and right-of-way of record.
Together with (a) non-exclusive easements for ingress and egress for pedestrian
and vehicular traffic, and for the installation and maintenance of utility lines
and appurtenances over, across and under Parcel X-0, Xxxxxx X-0, Xxxxxx X-0X,
Xxxxxx R-3, APOC II Roads and Parcel R-3A to the extent that a portion of Parcel
R-3A is not located within the insured lands; and (b) a non-exclusive easement
for water retention, water management and drainage purposes over, across and
under all lakes, water retention areas and drainage easements or areas
established within the Total Arvida Property, all as more particularly described
and defined in that certain Agreement for and Grant of Easements and Other
Rights, dated September 8, 1982 and recorded in Official Records Book 3788, Page
1058; as supplemented by Supplemental Agreement dated September 8, 1982 and
recorded in Official Records Book 4041, Page 1854 and as further amended by
Amendment to Agreement for and Grant of Easements and Other Rights dated April
18, 1984 and recorded in Official Records Book 4312, Page 1721 all of the Public
Records of Palm Beach County, Florida.
A-1
And, further together with all of the non-exclusive, access easements, parking
easements and utility easements, over the common areas located within the
perimetrical boundaries of the Park Place Royale lands as set forth in Exhibit
"1" attached hereto, as contained in that certain Common Area Operations and
Reciprocal Easement Agreement, dated May 30, 1984 and recorded in Official
Records Book 4259, Page 1548, as amended by First Amendment to Common Area
Operation and Reciprocal Easement Agreement, dated August 29, 1984 and recorded
in Official Records Book 4341, Page 258 and further amended by Second Amendment
to Common Area Operation and Reciprocal Easement Agreement, recorded in Official
Records Book 6403, Page 553 all of the public records of Palm Beach County,
Florida.
A-2
EXHIBIT "B"
B-1
EXHIBIT "C"
Parking Space Schedule
Tenant shall be permitted to use undercover and/or covered parking spaces based
upon availability.
All said parking spaces shall be in areas designated by Landlord and are subject
to relocation by Landlord at any time. Landlord will not monitor the parking
spaces nor the Parking Facilities and shall have no liability to Tenant, its
employees, agents, licensees or invitees for any damages to or loss of vehicles,
automobiles, or accessories, or the contents thereof, caused by fire, theft,
collision or any other cause whatsoever.
C-1
EXHIBIT "D"
Cleaning Specifications
Daily (Five times a week)
1. Dust mop (treated) composition floors.
2. Spot mop for spillage on composition floors.
3. Sight vacuum all carpets.
4. Heavy traffic areas to be vacuumed completely.
5. Empty and wipe clean all waste receptacles.
6. Gather all trash and remove to designated areas.
7. Clean all tenant rest rooms as per rest room schedule.
D-1
EXHIBIT "E"
Rules and Regulations
BUILDING RULES AND REGULATIONS. Tenant and its employees, agents, licensees and
invitees shall faithfully observe and comply with the following Rules and
Regulations and all reasonable modifications of any additions thereto from time
to time put into effect by Landlord, Landlord shall not be responsible to Tenant
for the non-performance of any said Rules and Regulations by any other tenant or
occupant of the Building.
1. ADVERTISING. Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's opinion tends to impair the reputation of the
Building or its desirability as an office building, and upon written notice from
Landlord, Tenant promptly shall refrain from or discontinue such advertising.
Without limiting the foregoing, no advertising or notices shall be permitted in
the windows or common areas of the Building.
2. BICYCLES, ANIMALS. Tenant shall not bring any animals or birds into the
Building, and shall not permit any type of vehicle including bicycles, inside or
on the sidewalks outside the Building except in areas designated from time to
time by Landlord for such purposes.
3. DANGEROUS OR IMMORAL ACTIVITIES. Tenant shall not make any use of the Demised
Premises which involves the danger of injury to person or property, nor shall
the same be used for any immoral use.
4. DELIVERIES. Tenant shall ensure that deliveries of materials and supplies to
the Demised Premises are made through such entrances, elevators and corridors
and at such times as may from time to time be designated by Landlord, and shall
promptly pay or cause to be paid to Landlord the cost of repairing any damage to
the Building caused by any person making such deliveries.
5. FURNITURE AND EQUIPMENT. Tenant shall ensure that furniture and equipment
being moved into or out of the Demised Premises is moved through such entrances,
elevators and corridors and at such times as may from time to time be designated
by Landlord, and by movers or a moving company approved by Landlord, and shall
promptly pay or cause to be paid to Landlord the cost of repairing any damage in
the Building caused thereby.
6. HEAVY ARTICLES. Tenant shall not place in or move about the Demised Premises
without Landlord's prior written consent any safe or other heavy article which
in Landlord's reasonable opinion may damage the Building. Landlord may designate
the location of any heavy articles in the Demised Premises.
7. LOADING, UNLOADING AND MOVING.
A. This delivery and shipping of merchandise, supplies, fixtures, and
other materials or goods of whatsoever nature to or from the Demised Premises
and all loading, unloading and handling thereof shall be done only at such
times, in such areas, by such means and through such elevators, entrances, halls
and corridors as are designated by Landlord.
B. Landlord accepts no liability and Tenant hereby releases Landlord of
all liability with respect to the operation of delivery facilities for the
Building, or the adequacy thereof, or of the acts or omissions of any person or
persons engaged in the operation thereof, or in the acceptance, holding,
handling or dispatch, or any error, negligence or delay therein.
C. Landlord may from time to time make and amend regulations for the
orderly and efficient operation of the delivery facilities for the Building, and
may require the payment of reasonable and equitable charges for delivery
services provided by Landlord.
D. No furniture may be moved in or out of the Building without prior
consent of Landlord. Arrangements for the moving must be made with Landlord's
office and must be supervised by Landlord's
E-1
representative. Tenant agrees to pay for any and all damages to any part of the
Building or Demised Premises because of such moving, by either Tenant, its
agents or movers. No moving shall be permitted except between the hours of 8:00
a.m. and 5:00 p.m., Monday through Friday. Reasonable charges will be made for
the use of material and office building personnel including supervision, needed
to assist in the Tenant's move in, within, or out of the Building.
8. OBSTRUCTIONS. Tenant shall not obstruct or place anything in or on the
sidewalks or driveways outside the Building or in the lobbies, corridors,
stairwells or other common areas of the Building, or use such locations for any
purpose except access to and exit from the Demised Promises without Landlord's
prior written consent, Landlord may remove at Tenant's expense any such
obstruction or item (unauthorized by Landlord) without notice or obligation to
Tenant. Additionally, Tenant shall not permit its employees, agents, invitees,
or customers to loiter, sleep, assemble or congregate within any common areas or
grounds of the Building.
9. ODORS. Tenant shall not permit any odors of cooking or other processes, or
any unusual or other objectionable odors to permeate in or emanate from the
Devised Premises.
10. PARKING. Tenant shall ensure that its employees, customers, clients, guests,
invitees and licensees comply with the following parking regulations, and
acknowledges that such regulations shall be strictly enforced by Landlord.
A. The designated area on the first floor of the Parking Facilities
shall be used only by guests, clients and customers of the tenants of the
Building.
B. The other areas of the Parking Facilities shall be used only by the
employees of tenants of the Building.
C. All service vehicles (including those engaged in deliveries, loading
and unloading) must park only in the designated service parking area. Parking in
the service parking area shall be limited to a maximum of one (1) hour,
provided, however, that a tenant may make arrangements with the Landlord for
longer parking period when moving in or moving out of the Building.
D. Landlord reserves the right to control the method, manner and time
of parking in the Parking Facilities.
E. In the event of any violation of the parking regulations, Landlord
shall have the right to post a notice of violation on the offending vehicle and
to tow the offending vehicle (regardless of whether the vehicle is owned by a
Tenant or any party, including any employee, customer, client, invitee or
licensee of a Tenant), and to charge the expense thereof to the applicable
Tenant as Additional Rent, or terminate the Tenant's license to park in the
Parking Facilities. In the event of continued violations of these Regulations,
and after notice to the Tenant, the Landlord may assess a charge of twenty
dollars ($20.00) against the Tenant for each violation, which shall be payable
as additional rent.
11. PROPER CONDUCT. Tenant, its employees and invitees, shall not conduct
themselves in any manner which is inconsistent with the character of the
Building as a first quality Building or which will impair the comfort and
convenience of other tenants in the Building.
12. PERSONAL USE OF PREMISES. The Demised Premises shall not be used or
permitted to be used for residential, lodging or sleeping purposes, or for the
storage of personal effects or property not required for business purposes.
13. REFUSE. Tenant shall place all refuse in proper receptacles provided by
Tenant at its expense in the Demised Premises, or in receptacles (if any)
provided by Landlord for the Building, and shall keep sidewalks and driveways
outside the Building, and lobbies, corridors, stairwells, ducts and shafts of
the Building free of all refuse.
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