LEASE
THIS LEASE is a entered into as of December 1, 1997 by and between The
Century Group, Inc. , ( "Landlord" ) , whose address is 0000 X. Xxxxxxx Xxxx
Xxxx., Xx. Xxxxxxxxxx, Xxxxxxx, 00000 and First Independent Computer, Inc. (
"Tenant " ) whose address is 0000 Xxxxx 0xx, Xxxxxxx, XX 00000.
W I T N E S S E T H:
PREMISES
Section 1. For the rent and upon the agreements contained in this Lease,
Landlord leases to Tenant and Tenant rents from Landlord certain space
consisting of 2,886 rentable square feet (Premises"). The Premises are located
in a facility ("Building") known as The Century Building which is located at
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 ("Building
Site").
TERM
Section 2. Lease Term. The term of this Lease ("Term") shall commence on
the Commencement Date (as herein defined) and shall continue until 12:00 noon on
the date which is 12 months after the Commencement Date (hereinafter referred to
as the "Expiration Date"), unless this Lease is sooner terminated under any
other provision of this Lease. The Commencement Date means the earlier of (i)
the date on which Tenant takes possession of the Premises, or (ii) December 1,
1997, whichever shall first occur. Notwithstanding the foregoing, in the event
the Commencement Date begins on a day of the month other than the first day
thereof, the Expiration Date shall be computed starting with the first day of
the month following the month during the Commencement Date falls, Within thirty
(30) days after the Commencement Date, Tenant shall sign and deliver to Landlord
a statement in which Tenant acknowledges and agrees to the Commencement Date,
the Expiration Date, and such other information as is reasonably by Landlord.
BASE RENT AND SECURITY DEPOSIT
Section 3.
(a) During the twelve (12) months of the Term, Tenant shall pay to
Landlord, without any deductions or setoff, the sum of Thirty-one thousand seven
hundred forty-six ($31,746.00), plus all applicable sales and use taxes thereon,
in equal monthly installments of Two thousand six hundred forty-five and 50
cents ($2,645.50) plus 6% sales tax, in advance on the first day of each and
every month during the Term of the Lease; Rent shall be payable to The Century
Group, Inc. and shall be sent to 0000 X. Xxxxxxx Xxxx Xxxx., Xx. Xxxxxxxxxx ,
Xxxxxxx 00000 or such other entity as Landlord may designate from time to time.
Rent for a partial month shall be due and payable on a pro rata daily basis on
the first day that said rent accrues in said month. The rent due under this
Section 3 (a) is hereinafter referred to as "Base Rent".
(b) All installments of Base Rent or Additional Rent (as defined
hereinafter) not received by Landlord when due shall bear interest at the rate
of eighteen percent (18%) per annum from the due date (i.e., the first day of
the month) until paid; provided, however, that in no event shall such rate
exceed the maximum rate allowed by law.
ADDITIONAL RENT
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Section 4. (a) Tenant agrees to pay to Landlord, as additional rent
("Additional Rent") for the Premises, throughout the Term, Tenant's
proportionate share (defined in Section 4 (e) herein and referred to as
"Tenant's Proportionate Share") of the operating expenses (which items are
defined in this Section 4 (a), and referred to as "Operating Expenses"), plus
all applicable sales and use taxes thereon. This Additional Rent for the
current year amounts to $961.49 a month plus 6% sales tax. An estimate of
Tenant's Proportionate Share of the Operating Expenses for the first calendar
year of the Term, or the portion thereof remaining after the Commencement Date,
shall be delivered to Tenant within ten (10) days of the execution of this
lease. The Operating Expenses shall include the following:
(i) Any real estate taxes and assessments (collectively referred to
hereinafter as the "Tax Cost") (A) which shall or may become a lien upon, become
due and payable, or be assessed, imposed, or levied by lawful taxing authorities
against the Building, the Building Site and any other improvements on the
Building Site; (B) which arise in connection with the use, occupancy, or
possession of the Building Site or any part thereof; (C) which become due and
payable out or for the Building Site, or any part thereof; or (D) which are
imposed, assessed, or levied in lieu of, in substitution for, or in addition to
any or all of the foregoing. The Tax Cost shall not include any charge (such as
a water meter charge) which is measured by actual user consumption. A real
estate tax xxxx or copy thereof submitted by Landlord to Tenant shall be
conclusive evidence of the amount of any real estate taxes, assessments, or
installment thereof;
(ii) All premiums and costs (collectively referred to as the "Insurance
Cost") for public liability, fire and extended coverage or all risk, business
interruption, and/or any other insurance coverage which may reasonably be
carried by Landlord insuring the Premises, the Building, the Building Site or
any improvements thereon; and
(iii) All electricity, gas, and air conditioning service costs ("Utility
Cost") provided to the Premises by Landlord pursuant to Sections 11 (c) and (g).
(iv) All operating expenses, not specifically mentioned above, are also
considered as Additional Rent, including security, lawn care, elevator
maintenance, etc.
(b) Prior to the beginning of each calendar year, Landlord shall estimate
Tenant's Proportionate Share of the Operating Expenses for the following
calendar year and give Tenant written notice of such estimate. Tenant shall pay
such amount as Additional Rent in twelve (12) equal monthly installments on the
first day of each month, throughout such calendar year. After the end of that
calendar year, Landlord shall furnish Tenant a statement of the actual Operating
Expenses. Tenant shall pay deficiency upon receipt of Landlord's notice
thereof. Any surplus paid by Tenant during the preceding calendar year, shall
be applied against the next monthly installments of Additional Rent due from
Tenant.
(c) During any part of the Term which shall be less than a full calendar
year, Landlord's estimated Operating Expenses shall be prorated on a daily basis
so that Tenant shall pay Tenant's Proportionate Share (or such other amount as
set forth in Section 4 (f) below) of such expenses attributable to the portion
of the calendar year occurring within the Term. Any such deficiency or surplus
which occurs in the last year of the Term shall be determined by Landlord, and
notice of such determination given to Tenant within sixty (60) days after the
end of the calendar year in which such deficiency or surplus occurs. In the
event a surplus is determined to exist, Landlord shall deliver payment thereof
to Tenant with said notice. In the event a deficiency is determined to exist,
Tenant shall deliver payment thereof to Landlord within ten (10) days of receipt
of said notice.
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(d) Any and all sums of money or charges, except for Base Rent,
required to be paid by Tenant under this Lease, whether or not the same is so
designated, shall be considered Additional Rent and shall be due and payable
no later than the due date of the next installment of Base Rent. Nothing
herein shall limit any other remedy Landlord may have.
(e) Tenant's Proportionate Share of the Building is Five point seven
(5.7%) percent, which shall be a percentage equal to the ratio of the
rentable square footage of the Premises to ninety-five (95%) percent of the
total rentable square footage of all rentable area within the Building.
(f) Notwithstanding anything contained herein to the contrary, it is
agreed that in the event the Building is not fully occupied during any year of
the Lease Term, the Operating Expenses shall be allocated for Tenant's Premises
according to Tenant's Proportionate Share of the entire building.
USE OF COMMON AREAS
Section 5. (a) Landlord hereby grants to Tenant and Tenant's employees,
agents, customers and invitees, the right to use, during the Term, along with
other tenants in the Building, the common areas of the Building ("Building
Common Areas") consisting of corridors, elevators, foyers, restrooms, vending
areas, building stairs and other similar facilities provided for the common use
of tenants generally and/or the public.
(b) Landlord hereby grants to Tenant and Tenant's employees, agents,
customers and invitees, the right to use, during the Term, along with other
tenants in the Building or any other tenants on the Building Site, the common
areas on the Building Site ("Building Site Common Areas") consisting of the
parking areas, access roads and facilities which may be furnished by the
Landlord and which are located adjacent to the Building, the truck ways,
driveways, loading docks and areas, sidewalks, ramps, and any other areas and
improvements which may be provided from time to time by Landlord for the general
use in common of the Building tenants and their officers, agents, employees, and
customers, and all lighting facilities incident thereof, as such areas and
facilities may be changed from time to time by Landlord. Landlord reserves the
right to change or modify the design or layout of the parking areas.
(c) If Landlord deems it necessary to prevent the acquisition of public
rights in and to the Building, Landlord may from time to time temporarily close
portions of the Common Areas, and may erect private boundary markers or take
such steps as deemed appropriate for the purpose. Such action shall not
constitute or be considered an eviction or disturbance of Tenant's quiet
possession of the Premises.
USE OF PREMISES BY TENANT
Section 6. (a) The Premises may be occupied and used as an office, and
for no other purpose.
(b) Tenant shall use and occupy the Premises in accordance with all
governmental laws, ordinances, rules, and regulations, and shall maintain all
permits, licenses and authorizations as required by all applicable governmental
authorities. Tenant shall not use, or allow the Premises to be used, for any
purpose other than as specified herein and shall not us, or permit the Premises
to be used, for any unlawful, disreputable, or immoral purpose or in any way
that will injure the reputation of the Building Site. Tenant shall pay for any
and all costs incurred to insure that Tenant's activities comply with all
applicable laws, ordinances, rules and regulations.
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RULES AND REGULATIONS
Section 7. Tenant's occupancy shall be subject to, and Tenant shall abide
by, the rules and regulations ("Rules and Regulations") of general application
governing the conduct of tenants in the Building and parking garage, and the use
of the Building Common Areas as my be established by Landlord from time to time.
CONDITION OF PREMISES, ALTERATIONS AND INSTALLATIONS
Section 8. (a) Except as specifically set forth below, Tenant shall not
make alterations, changes, and improvements to the Premises or the Building,
including any roof or exterior wall penetration. Tenant may make nonstructural
alterations, changes, or improvements only with the prior written approval of
Landlord, which approval will not be unreasonably withheld. Landlord may impose
any conditions or requirements upon the making of such alterations, changes, and
improvements.
(b) Notwithstanding anything set forth in the Lease to the contrary,
Tenant does hereby accept the Premises in "as is" condition, without any
obligation or liability of whatsoever kind or nature by Landlord to do or
perform any improvements, repairs or maintenance to the Premises.
(c) No improvements or construction shall be commenced in or upon the
Premises until such time as Landlord shall have approved, in writing, all plans
and specifications therefore, and Tenant shall have received, and provided
evidence thereof to Landlord, all governmental approvals and permits therefore.
Further, Tenant shall provide to Landlord, prior to commencement of the work to
be performed by Tenant hereunder, evidence of financial responsibility of Tenant
in such form and content as shall be satisfactory to landlord, in its sole and
absolute discretion.
(d) In the event Tenant shall default in the performance of any of
Tenant's obligations as described above, or shall fail to provide the plans and
specifications, building permits and/or financial assurances as described above
on or before commencement, Tenant shall be deemed in default and Landlord shall
be entitled to rely upon any of Landlord's remedies as provided in this Lease.
SERVICES TO BE FURNISHED BY LANDLORD
Section 9. Landlord agrees to furnish to Tenant the following services:
(a) Water for sanitary and drinking purposes only at those points of
supply provided for general use of other tenants in the Building. If Tenant
requires, uses or consumes water for any purpose in addition to sanitary and
drinking purposes, Landlord may install a water meter and thereby measure
Tenant's water consumption for all purposes. In such event, Tenant shall pay
Landlord for the cost of the meter, the cost of the installation thereof and the
cost of the water consumption throughout the duration of Tenant's occupancy.
Landlord hall maintain the meter and related equipment in good working order and
repair at Tenant's own expense. If Tenant defaults in this obligation, Landlord
may replace or repair the meter and collect the cost thereof from Tenant.
Tenant agrees to pay for water consumed, as shown on said meter as and when the
bills are rendered. Any amounts due hereunder from Tenant shall be deemed
Additional Rent.
(b) Limited access to the Building during other than normal operating
hours of Tenant shall be provided in such form as Landlord deems appropriate.
Landlord, however, shall have no liability to Tenant, its employees,
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agents, invitees or licensees for losses due to theft or burglary, or for
damages done by unauthorized persons on the Premises or in the Building, and
Landlord shall not be required to insure against any such losses. Tenant shall
cooperate fully in Landlord's efforts to maintain security in the Building and
shall follow all regulations promulgated by Landlord with respect thereto.
(c) Central heat and air conditioning during normal business hours at such
temperatures and in such amounts as are considered by Landlord to be Building
Standard (as may be defined in the Building Rules) or as required by
governmental authority. Heating and air conditioning service shall be provided
at other times (as established by the Building Rules) only upon the written
request of Tenant delivered to Landlord in accordance with the Building Rules.
Tenant shall bear the cost of such additional service, which shall be considered
Additional Rent, at rates determined and billed by Landlord from time to time,
and shall pay such charge as provided in Section 4(d).
(d) Standard routine maintenance and electric lighting service for all
Building Common Areas only, as determined by Landlord to be necessary.
(e) Electrical current for standard building lighting fixtures and for
normal incidental uses.
The failure by Landlord to any extent to furnish, or the interruption,
cessation or termination of services in whole or in part, or any curtailment in
the use of the Premises resulting from any of the matters and things herein
referred to, shall not render Landlord liable in any respect nor be construed as
an eviction (constructive or otherwise) of Tenant, nor work an abatement of
rent, nor relieve Tenant from the obligation to fulfill any covenant or
agreement of this Lease. If any of the equipment or machinery used to provide
the foregoing services does not function properly, Tenant shall have no claim
for offset or abatement of rent or damages on account of any resulting
interruption in service.
LIABILITY OF LANDLORD
Section 10. Landlord and Landlord's agents and employees shall be liable
for, and Tenant waives all claims for damage to person or property sustained by
Tenant or any person claiming through Tenant resulting from an accident or
occurrence in, about, or upon the Premises, the Building, or any other part of
the Building, the Common Areas unless due to the gross negligence of Landlord
and/or Landlord's agents and employees. Tenant, as a material part of the
consideration to Landlord, further assumes all risk of damage to property or
injury to person in, upon, or about the Premises from any cause whatsoever,
(except that which is caused by the gross negligence of Landlord).
INDEMNIFICATION AND INSURANCE
Section 11. (a) Tenant will indemnify Landlord and save Landlord harmless
from and against any and all claims, actions, damages, liability, and expense in
connection with loss, damage or injury to persons or property occurring in, on ,
or about, arising out of the Premises, or occasioned wholly or in part by any
act or omission of Tenant, Tenant's agents, contractors, customers, or
employees.
(b) Tenant shall, at all times during the Term and during any other period
that Tenant actually occupies any portion of the Premises, at its own expense,
keep in full force and effect public liability insurance with minimum limits of
One Million Dollars ($1,000,000.00) on account of bodily injuries to or death of
one (1) person, and One Million Dollars ($1,000,000.00) on account of bodily
injuries to or death of more than one (1) person as a result of any one (1)
accident or disaster, and One Million Dollars($1,000,000.00) on account of
damages to property,
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naming Landlord and Landlord's mortgagees ('the Mortgagee"), if any, as
additional insured. Tenant shall deliver to Landlord prior to the Commencement
Date or Occupancy Date, whichever is sooner, a certificate of insurance
evidencing the coverage required herein. The policy shall provide that the
insurer cannot cancel the policy without at least thirty (30) days prior written
notice to Landlord.
(c) Tenant shall not carry on any activity in or about the Premises which
will in any way cause an increase in the insurance rates on the Premises and/or
the Building. Tenant shall pay as Additional Rent upon demand any increases in
such insurance rates resulting from the use of the Premises.
SIGNS
Section 12. Tenant acknowledges that Tenant will abide by the restrictions
on the type and location of signs as set forth in the Rules and Regulations.
Accordingly, Tenant will not erect or install any sign except in strict
conformity with the standards set forth by Landlord, as determined by Landlord
in Landlord's sole discretion. Landlord may determine type, location and
content of any sign for Tenant.
ASSIGNMENT AND SUBLETTING
Section 13. (a) This Lease shall not be mortgaged, pledged, encumbered,
assigned, or otherwise transferred by Tenant, voluntarily, involuntarily, by
operation of law, or otherwise, or the Premises or any part thereof sublet,
used, or occupied for the conduct of ant business by any other party or for any
purpose other than herein authorized, without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, and the Landlord's
Mortgagee, or if required, any future mortgagee of Landlord. Any consents to
any assignment or subletting shall not constitute a waiver of the necessity for
consent to any subsequent assignment or subletting. The sale, or sales, during
the term hereof, aggregating fifty percent (50%) or more of the outstanding
shares of stock or other ownership interests of Tenant shall be deemed to be an
assignment of this Lease within the meaning of this Section 15.
(b) In the event of any permitted assignment or other transfer of this
Lease by Tenant, (i) Tenant shall remain liable for performance of all
obligations of the assignee or transferee of Tenant hereunder, and Tenant hereby
agrees to absolutely and unconditionally guarantee the performance hereunder of
such assignee or transferee; and (ii) any rent which Tenant receives pursuant to
any sublease in excess of the Base Rent, Percentage Rent, and the Additional
Rent shall be paid by Tenant to Landlord.
CASUALTY
Section 14. (a) if the Premises shall be destroyed or so injured by any
cause as to be unfit, in whole or in part, for occupancy and such destruction or
injury could reasonably be repaired within six (6) months from the date the
repair work is commenced (as determined by Landlord and Landlord's Mortgage, in
their sole discretion), Landlord shall notify Tenant within thirty (30) days
after the happening of such destruction or injury whether or not Landlord will
repair or rebuild. If Landlord elects not to repair or rebuild, this Lease
shall be terminated. If Landlord elects to repair, then Tenant shall not be
entitled to surrender possession of the Premises nor shall Tenant's liability to
pay rent under this Lease cease without the mutual consent of the parties
hereto; and Landlord shall repair the damage or injury with all reasonable speed
and complete such repairs within six (6) months from the date Landlord receives
the insurance proceeds paid on account of such damage or destruction.
Notwithstanding the foregoing if Tenant has agreed that the damage or injury
reparable, and provided that Landlord is proceeding with the necessary
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repairs in good faith, Landlord's failure to complete such repairs within the
six (6) month period shall not entitle Tenant to surrender possession of the
Premises. If during such period Tenant shall be deprived of the use of all or
any portion of the Premises, a proportionate allowance shall be made to Tenant
from the Base Rent and the Additional Rent corresponding to the time during
which and to the portion of the Premises of which Tenant shall be so deprived.
(b) If such destruction or injury cannot reasonably be repaired within six
(6) months from the date the repair work commences (as determined by Landlord
and Landlord's First Mortgagee, in their sole discretion), Landlord shall notify
Tenant within thirty (30) days after the happening of such destruction or injury
whether or not Landlord will repair or rebuild. If Landlord elects not to
repair or rebuild, this Lease shall be terminated. If Landlord shall elect to
repair or rebuild, Landlord shall specify the time within which such repairs of
reconstruction will be completed and Tenant shall have the option within thirty
(30) days after the receipt of such notice to elect either to terminate this
Lease and any further liability hereunder, or to extend the term of the Lease by
a period of time equivalent to the time from the happening of such destruction
or injury until the Premises are restored to their former condition. In the
event Tenant elects to extend the term of the Lease, landlord shall restore the
Premises to the condition as originally delivered to Tenant within the time
specified in such notice, and Tenant shall not be able to pay rent for the
period from the time of such destruction or injury until the Premises are so
restored to their former condition. Notwithstanding the foregoing, if Tenant
has agreed that the damage or injury is reparable, and provided that Landlord is
proceeding with the necessary repairs in good faith, Landlord's failure to
complete such repairs within the time specified shall not entitle Tenant to
damages or a right to terminate the Lease and surrender possession of the
Premises.
(c) In addition to all rights to cancel or terminate this Lease given to
the parties in Section 15 (a) and (b) hereof, if the Premises and/or Building
are destroyed or damaged during the last year of the Term, to the extent of
fifty percent (50%) or more of the value of the Premises and/or the Building,
then Landlord shall have the right to cancel and terminate this Lease as of the
date of such damage or destruction by giving notice thereof within thirty (30)
days after the date of said damage or destruction.
(d) Notwithstanding anything to the contrary contained in Sections 15 (a),
(b) or (c) hereof, Landlord may cancel this Lease with no further liability to
Tenant in the event that following destruction or injury to the Premises,
Landlord's Mortgagee elects to require Landlord to apply any insurance proceeds
paid to Landlord as a result of the casualty to reduce any debt secured by the
Building Site.
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CONDEMNATION
Section 15. (a) In the event the entire Premises shall be taken by
condemnation or right of eminent domain, this Lease shall terminate as of the
day possession shall be taken by the taking authority, and Landlord and Tenant
shall be released from any further liability hereunder thereafter accruing. In
the event only a portion of the Premises shall be taken by condemnation or right
of eminent domain and the portion so taken renders the balance unsuitable for
the purpose of this Lease, either the Landlord or the Tenant shall be entitled
to terminate this Lease, such termination to become effective as of the day
possession shall be taken, provided thirty (30) days notice in writing of such
termination is given. If, in such case, this Lease is not terminated, Landlord
agrees to restore the Premises with reasonable speed to an architectural unit as
nearly like its condition prior to such taking as shall be practicable, and if
during and/or after the work of restoration, Tenant is deprived of the use of
all or a part of the Premises, an appropriate reduction of rent, depending upon
the time during which and the portion of said Premises of which Tenant is so
deprived shall be granted.
(b) All damages awarded in connection with the taking of the Premises,
whether allowed as compensation for diminution in value to the leasehold or to
the fee of the Premises, shall belong to the Landlord. Notwithstanding the
foregoing, Tenant shall be entitled to make a separate claim against the
condemning authority for damage to merchandise and fixtures, and removal,
reinstallation, and moving expenses, provided that such separate claim by Tenant
does not diminish Landlord's award.
(c) Notwithstanding anything to the contrary contained in Sections 17 (a),
(b) or (c) hereof, Landlord may cancel this Lease with no further liability to
Tenant in the event that following a taking by condemnation or right of eminent
domain, Landlord's Mortgagee elects to require Landlord to apply any proceeds
paid to Landlord as a result of the condemnation or eminent domain proceedings
to reduce the debt secured by the Building Site.
LANDLORD'S REMEDIES UPON DEFAULT
Section 16. (a) If Tenant shall at any time (i) be in default in the
payment of Base Rent, Additional Rent, or other sums of money required to be
paid by Tenant and Tenant shall fail to remedy such default within five (5) days
of the date such sum is due; (ii) violate any restriction or rule in the
Building Rules and fail to remedy such violation within thirty (30) days after
receipt of written notice thereof; (iii) be in default in the performance of any
other covenant, term, condition, provision, rule, or regulation of this Lease,
and Tenant shall fail to remedy such default within fifteen (15) days after
receipt of written notice thereof (but Tenant shall not be deemed to be in
default if Tenant commences to remedy said defaults within said fifteen (15) day
period and proceeds therewith with due diligence), and despite Tenant's efforts,
said defaults cannot be remedied within said fifteen (15) day period); (iv)
commits waste upon the Premises; (v) vacates the Premises or fails to
continuously occupy and conduct Tenant's business on the Premises; or (vi)
becomes insolvent or makes an assignment for the benefit of creditors, or if a
receiver or trustee of Tenant's property shall be appointed, or if proceedings
under any chapter of the United States Bankruptcy Code shall be instituted by or
against Tenant and shall not be dismissed within sixty (60) days after being
filed, or if any event shall happen which, aside from this provision, would
cause any assignment or devolution of Tenant's interest or occupancy hereunder
by operation of law; then, in any event, Landlord, in addition to all other
remedies given to Landlord in law or in equity, may by written notice to Tenant,
terminate this Lease, or without terminating this Lease, reenter the Premises by
summary proceedings or otherwise. In any event Landlord may dispossess the
Tenant, it being the understanding that under no circumstances is this Lease to
be an asset for Tenant's creditors by operation of law or otherwise.
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In the event of such reentry Landlord may relet the Premises without being
obligated so to do and may apply the rent from such reletting first to the
payment of Landlord's expenses, including attorneys' fees incurred by reason of
Tenant's default, and the expense of reletting, including, without limitation,
repairs, renovation, or alteration of the Premises and then to the amount of
Base Rent, Additional Rent, and all other sums due from Tenant hereunder and for
any deficiency. Any and all such deficiencies shall be payable by the Tenant
monthly on the date herein provided for the payment of Base Rent.
(b) In the event of a default by Tenant of any of the terms, provisions,
covenants, conditions, rules, and regulations of this Lease, Landlord shall have
the right to invoke any remedy permitted to Landlord in law or equity, including
the right to terminate this Lease. Such remedies shall include the right to xxx
immediately for any and all damages, including immediate payment of all Base
Rent and Additional Rent owing for the remainder of the term hereof. No
termination of this Lease and no taking or recovery of possession of the
Premises shall deprive Landlord of any of its remedies or actions against Tenant
and Tenant shall remain liable for all past or future Base Rent, Additional
Rent, and all other charges payable by Tenant under this Lease, during and for
the balance of the term hereof. The bringing of any action for rent or other
default shall not be construed as a waiver of the right to obtain possession of
the Premises.
(c) If suit shall be brought for recovery of possession of the Premises,
for the recovery of rent, or any other amount due under the provisions of this
Lease, or because of the breach of any other covenant herein contained on the
part of Tenant to be kept or performed, and breach shall be established, Tenant
shall pay to Landlord all expenses incurred therefor, including reasonable
attorneys', legal assistant and paralegal fees incurred.
(d) All rights and remedies provided herein or otherwise existing at law
or in equity are cumulative, and the exercise of one or more rights or remedies
by either party shall not preclude or waive its right to the exercise of any or
all of the others.
DISCHARGE OF LIENS - INABILITY TO BIND LANDLORD'S INTEREST
Section 17. Tenant shall not do or suffer anything to be done whereby the
Premises, the Building, or the Building Site may be encumbered by any liens or
mechanics, laborers, or materialmen, chattel mortgages or any other liens.
Furthermore, Tenant shall have no authority to create any lien for labor or
material on or against the Premises, the building, or any Landlord's interest
therein. Tenant shall, whenever and as often as any such liens are filed
purporting to be for labor or material furnished or to be furnished to Tenant,
discharge the same of record within ten (10) days after the Date of filing by
payment, bonding or otherwise, as provided by law. Tenant, upon reasonable
notice and request in writing from Landlord, shall also defend for Landlord, at
Tenant's sole costs and expense, any action, suit, or proceeding which may be
brought on or for the enforcement of any such lien. Tenant will pay any damages
and satisfy and discharge any judgments entered in such action, suit or
proceeding and save harmless the Landlord from any liability, claim, or damages
resulting therefrom. In default of Tenant procuring the discharge, as
aforesaid, of any such lien, Landlord may, with ten (10) days' prior notice,
procure the discharge thereof by bonding or payment or otherwise, and all costs
and expenses incurred by Landlord in obtaining such discharge shall be paid by
Tenant as Additional Rent within ten (10) days after notice from Landlord of the
amount thereof.
LIMITATION ON LIABILITY OF LANDLORD
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Section 18. If Landlord shall fail to perform any covenant, term, or
condition of this Lease upon Landlord's part to be performed and, as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levy thereon against the right,
title, and interest of Landlord in the Building as the same then may be
encumbered, and neither Landlord, nor any of its partners, shall be liable for
any deficiency. It is understood and agreed that in no event shall Tenant have
any right to levy execution against any property of Landlord other than its
interest in the Building. Such right of execution shall be subordinate and
subject to any mortgage or other encumbrance upon the Building. In the event of
the sale or other transfer of Landlord's right, title, and interest in the
Premises or the Building, Landlord shall be released from all liability and
obligations hereunder accruing after the date of such sale or other transfer.
RIGHTS OF LANDLORD
Section 19. (a) Landlord reserves the right at all reasonable times, by
itself or its duly authorized agents, to go upon and inspect the Premises and
every part thereof, and at its option to make repairs, alterations, and
additions to the Premises, or the Building.
(b) If Landlord shall make any payments on behalf of Tenant which are
Tenant's obligation in order to fulfill Tenant's covenants, then any amounts so
paid by Landlord are agreed and declared to be items of Additional Rent and
shall be due and payable to Landlord from Tenant with the next installment of
Base Rent due thereafter under this Lease. Any such amounts which shall be paid
by Landlord on behalf of Tenant shall bear interest at the rate of eighteen
(18%) percent per annum, provided in no event shall rate to be charged to Tenant
be in excess of that otherwise permitted by law.
(c) Landlord shall have the right to use Tenant's name in any advertising
conducted by Landlord or Landlord's agents for and with respect to the Building.
MORTGAGE SUBORDINATION AND ESTOPPEL LETTER
Section 20. (a) Tenant understands, acknowledges and agrees that this
Lease is and shall be subordinate to any mortgage, ground lease or other lien
now existing or hereafter placed on or affecting the Premises, the Building, or
any part thereof, and to any renewals, refinancing or extensions and to all
advances made or thereafter to be made upon the security thereof. This shall be
self-operative and no further instrument of subordination shall be required by
any mortgagee or lender hereof. However, Landlord is hereby irrevocably vested
with full power and authority to subordinate this Lease to any mortgage, or
other lien now existing or hereafter placed upon the Premises, the Building, or
the Building Site as a whole. Further, Tenant agrees upon demand or request of
any party in interest, to execute promptly such further instruments or
certificates to carry out the intent hereof.
(b) Notwithstanding the provisions of Section 21 (a) hereof, any mortgagee
may at any time subordinate the lien of its mortgage to the operation and effect
of this Lease without obtaining the Tenant's consent thereto, by giving the
Tenant written notice thereof, in which this Lease shall be deemed to be senior
to such mortgage without regard to their respective dates of execution,
delivery, and/or recordation among the Land Records of the county in which the
Building is located, and thereafter such mortgagee shall have the same rights as
to this Lease as it would have had were this Lease executed and delivered before
the execution of such mortgage.
(c) Tenant shall, within ten (10) days from request by Landlord, execute
and deliver, to such persons as
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Landlord shall request a statement in recordable form certifying that his Lease
is unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as so modified), stating the dates to
which rent and other charges payable under this Lease have been paid, stating
that Landlord is not in default hereunder (of if Tenant alleges a default
stating the nature of such alleged default) and further stating such other
matters as Landlord or its mortgagee (s) shall reasonably require.
(d) The terms of this Lease are subject to approval by the Mortgagee, if
any, or any other lender (s), such approval is a condition precedent to
Landlord's obligations hereunder. If First Mortgagee requires reasonable
changes to the provisions of the Lease other than those provisions designating
the length of the term and the rent payable under this Lease, Landlord shall
have the right to cancel this Lease if Tenant refuses to approve any such
reasonable change in writing within thirty (30) days after Landlord's request
therefor.
NO WAIVER BY LANDLORD
Section 21. No waiver of any of the terms, covenants, provisions, conditions,
rules, and regulations imposed or required by this Lease, and no waiver of any
legal or equitable relief or remedy shall be implied by the failure of Landlord
to assert any rights to declare any forfeiture, or any other reason. No waiver
of any of said terms, provisions, covenants, rules, and regulations shall be
valid unless it shall be in writing signed by the Landlord. No waiver or
forgiveness of performance by Landlord in respect to one or more tenants of the
Building shall constitute a waiver or forgiveness of performance of any one or
more of the terms, provisions, conditions, rules, and regulations of this Lease
may be failure of performance of any other terms, provisions, conditions,
covenants, rules, and regulations of this Lease.
VACATION OF PREMISES
Section 22. Tenant shall deliver and surrender to Landlord possession of
the Premises, including all Tenant Improvements (and all replacements thereof)
and all fixtures permanently attached to the Premises during the Term, upon the
expiration of the Term or the termination of this Lease in any other way in as
good condition and repair, ordinary wear and tear and insured casualty excepted;
provided, however, that upon Landlord's request made at least thirty (30) days
prior to the end of the Term or the date Tenant is otherwise required to vacate
the Premises, Tenant shall remove all fixtures and equipment affixed to the
Premises by Tenant, and restore the Premises to good condition, ordinary wear
and tear and insured casualty excepted, at Tenant's sole expense. Such removal
shall be performed prior to the earlier of the end of the Term, or the date
Tenant is required to vacate the Premises.
LANDLORD'S LIEN
Section 23. (a) Tenant hereby grants to Landlord a lien and security
interest on all property of Tenant now or hereafter placed in or upon the
Premises, and such property shall be and remain subject to such lien and
security interest of Landlord for payment of all rent and other sums agreed to
be paid by Tenant herein. It is provided, however, the Landlord shall not have
a lien with respect to the Premises which would be superior to a lien from a
lending institution, supplier or leasing company, if such lending institution,
supplier or leasing company has a perfected security interest in the equipment,
furniture or other tangible personal property and which security interest has
its origin in a transaction whereby Tenant acquired such equipment, furniture or
other tangible personal property.
(b) The provisions of this Section 24 relating to such lien and security
interest shall constitute a
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security agreement under and subject to the Uniform Commercial Code of the
State of Florida, so that Landlord shall have and may enforce a security
interest on all property of Tenant now or hereafter place in or on the rights
provided by law or by the other terms and provisions of this Lease.
(c) Tenant agrees to execute as debtor such financing statement or
statements and such other documents as Landlord my now or hereafter request in
order to protect or further perfect Landlord's security interest.
Notwithstanding the above, Landlord shall neither sell nor withhold from Tenant
Tenant's business records.
SECURITY DEPOSIT
Section 24. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood that
the Security Deposit shall not be considered an advance payment of rental or a
measure of Tenant's damages in case of default by Tenant. The Security Deposit
shall be paid to Landlord upon execution of this Lease. Landlord may, in its
sole discretion, from time to time without prejudice to any other remedy, use
the Security Deposit to the extent necessary to make good any default under this
Lease or to satisfy any other covenant or obligation of Tenant hereunder;
provided, however, that no portion of the Security Deposit shall be applied
towards payment of the last month's rent hereunder without the prior written
consent of the Landlord's Mortgagee. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. If Tenant is
not in default at the termination of this Lease, the balance of the Security
Deposit remaining after any such application shall be returned by Landlord to
Tenant after deducting therefrom any unpaid obligation of the Tenant to the
landlord as may arise under this Lease, including, without limitation, the
obligation to restore the Premises pursuant to Section 23. If Landlord
transfers its interest in the Premises during the term of this Lease, Landlord
may assign the Security Deposit to the transferee and thereafter Landlord shall
have no further liability for the return of such Security Deposit.
NO INCOME PARTICIPATION
Section 25. Neither Tenant nor any other person having an interest in
the possession, use, occupancy or utilization of the Premises shall enter into
any lease, sublease, license, concession or other agreement for use, occupancy
or utilization of the Premises which provides for rental or other payment for
such use, occupancy or utilization based in whole or in part on the net income
or profits derived by any person from the Premises or portion thereof leased,
used, occupied or utilized (other than an amount based on a fixed percentage or
percentages of receipts of sales), and that any such purported lease, sublease,
license, concession or other agreement shall be absolutely void and ineffective
as a conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the leased Premises.
MEMORANDUM OF LEASE
Section 26. This Lease shall not be recorded, but either party may
record a Memorandum of Lease in which shall be described the property herein
demised, the Term, and which shall refer to this Lease. The party requesting
that the Memorandum of Lease be recorded shall prepare and pay all costs of
recording the Memorandum of Lease, and the other party agrees to execute at any
and all times such instruments as may be reasonably required for such recording.
RENT DEMAND
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Section 27. Every demand for rent wherever and whenever made shall have
the same effect as if made at the time if falls due and at the place of payment.
After the service of any notice or commencement of any suit, or final judgment
therein, Landlord may receive and collect any rent due, and such collection or
receipt shall not operate as a waiver of or otherwise affect such notice, suit,
or judgment.
NOTICES
Section 28. Any notices or consent required to be given by or on behalf
of either party upon the other shall be in writing and shall be given by
personal delivery, or by overnight delivery service, effective upon the date
actually delivered, or by mailing such notices or consent by registered or
certified United States mail, postage prepaid, return receipt requested,
addressed to the parties at the addresses noted above or at such other address
as may be specified from time to time, in writing, delivered to the other party,
and the time of the rendition of such notice by mail shall be three (3) days
following the date such notice is deposited in an official United States Post
Office, postage prepaid.
APPLICABLE LAW AND CONSTRUCTION
Section 29. The laws of the State of Florida shall govern the validity,
performance, enforcement, and interpretation of the Lease. The invalidity or
unenforceability of any provision of this Lease shall not affect or impair any
other provision. The submission of this document for examination does not
constitute an offer to lease, or a reservation or option for the Premises and
becomes effective only upon execution and delivery thereof by Landlord and
Tenant. All negotiations, considerations, representations, and understandings
between the parties are incorporated herein and may be modified or altered only
by agreement in writing between the parties. Tenant shall have no right to quit
the Premises or cancel or rescind this Lease except as expressly granted herein.
FORCE MAJEURE
Section 30. In the event that Landlord shall be delayed, hindered in, or
prevented from the performance of any act required hereunder by reason of
strikes, lockouts, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war, or any other reason
of a like nature not the fault of the Landlord, then such performance shall be
excused for the period of the delay and the period of performance shall be
extended for a period equivalent to the period of such delay.
NO PARTNERSIP
Section 31. Landlord does not, in any way or for any purpose, become a
partner of Tenant in the conduct of Tenant's business or otherwise, or joint
venturer, or a member of a joint enterprise with Tenant.
QUIET ENJOYMENT
Section 32. Landlord hereby convenants and agrees that if Tenant shall
perform all of the covenants and agreements herein stipulated to be performed on
Tenant's part, Tenant shall at all times during the continuance hereof have
peaceable and quiet enjoyment and possession of the Premises without any manner
of hindrance from Landlord.
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HOLDING OVER
Section 33. If at the expiration of the Term of this Lease, or any renewal
thereof, Tenant continues to occupy the Premises, such holding over shall not
constitute a renewal of this Lease, but Tenant shall be a tenant from
month-to-month.
CAPTIONS
Section 34. Any paragraph, titles, or captions contained in this Lease are
for convenience only and shall not be deemed part of the context of this Lease.
VARIATION IN PRONOUNS
Section 35. All the terms and words used in this Lease, regardless of the
number and gender in which they are used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context or sense of this Lease or any paragraph or
clause herein may require, the same as if such words had been fully and properly
written in the number and gender so required.
RADON
Section 36. 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 own
county public health unit.
IN WITNESS WHEREOF, the parties hereto have set their hands this
day of 1997, as to the Landlord and this day of ,1997 as
to the Tenant.
Signed, Sealed and Delivered
in the Presence of:
The Century Group, Inc.
By:
--------------------------------
"LANDLORD"
First Independent Computer, Inc.
BY:
--------------------------------
"TENANT"
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