LEASE AGREEMENT
THIS AGREEMENT, entered into this 6th day of February, 1998,
by and between MOSTA CORPORATION, INC., a Florida Corporation,
hereinafter referred to as "LANDLORD", whose business address is 00
Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, and TOTALTEL
FLORIDA, INC., a New Jersey Corporation, hereinafter referred to as
"TENANT", whose business address is 000 Xxxxx Xxxx, Xxxxxx Xxxxx
Xxx Xxxxxx 00000.
WITNESSETH, that the LANDLORD does hereby devise and lease
unto said TENANT, and TENANT does hereby hire and take as tenant
under and from said LANDLORD, the following described space and
premises, hereinafter referred to as the leased premises, to-wit:
Space designated as the Penthouse Floor, comprising
approximately 4,959 square feet, more or less, being on
the Penthouse Floor, in the Courthouse Plaza, located at
00 X. Xxxxxxx Xxxxxx, Xxxx of Miami, State of Florida,
hereinafter referred to as the "Building", subject to and
conditioned upon all of the term, provisions and
conditions of this lease.
1. TERM: TENANT to have and to hold the above described
premises subject to the provisions and conditions of the Lease, for
the term of fifteen (15) years, commencing on the 1st day of
February, 1998 and terminating on the 1st day of January, 2013.
2. RENT: TENANT hereby covenants and agrees to pay, without
deduction, diminution or set-off, together with any and all sales
and use taxes levied upon the use and occupancy of the leased
premises, during the term hereof, to the LANDLORD, in advance and
beginning on the commencement date of this Lease and on the first
day of each and every month thereafter, for the annual rent of ONE
HUNDRED SIX THOUSAND SIX HUNDRED EIGHTEEN AND 50/100 ($106,618.50)
DOLLARS, lawful money of the United States, hereinafter sometimes
referred to as "Base Rent" or "Base Rental", in equal monthly
installments of EIGHT THOUSAND EIGHT HUNDRED EIGHTY FOUR AND 88/100
($8,884.88) DOLLARS, plus applicable taxes, in advance, to LANDLORD
at its principal office or that of its agent (or at any other place
designated in writing by LANDLORD). Monthly base rent will be
adjusted annually in the manner set forth in Paragraph Three. If
TENANT'S possession commences on other than the first day of the
month, TENANT shall occupy the leased premises under the terms,
conditions, and provisions of this Lease, and the prorata portion
of the monthly rent for said month shall be paid and the term of
this Lease shall commence on the first day of the month following
that in which possession is given. A service charge of three
percent (3%) of the delinquent rent or a minimum charge of Twenty
Five ($25.00) Dollars, whichever shall be the greater, may be
assessed on the payment of rent received after the due date
thereof. A service charge of Twenty Five ($25.00) will be assessed
or handling of any returned check.
TENANT shall not be required to make any rental payment for
the month of February, 1998. TENANT'S initial rental payment shall
be applied to the monthly rental payment due on March 1, 1998.
TENANT shall have five (5) day grace period in which to make
the monthly rental payments due under this Lease.
LANDLORD agrees to give a rent credit to TENANT, in the total
amount of SEVENTY FIVE THOUSAND ($75,000.00) DOLLARS, which rent
credit shall be given to TENANT based upon the following schedule:
(a) TENANT shall not be required to pay the monthly rental
payment to LANDLORD, in the monthly amount of EIGHT THOUSAND EIGHT
HUNDRED EIGHTY FOUR and 88/100 ($8,884.88) DOLLARS. which is due on
March 1, 1998, April 1, 1998, and May 1, 1998.
(b) TENANT shall not be required to pay the monthly rental
payment to LANDLORD, which is due on February 1, 1999, March 1,
1999, and April 1, 1999.
(c) TENANT shall not be required to pay the monthly rental
payment to LANDLORD, which is due on February 1, 2000, and March 1,
2000.
(d) After deducting amount of the monthly rental payment
credits set forth in paragraphs (a), (b) and (c) hereinabove from
the SEVENTY FIVE THOUSAND ($75,000.00) DOLLAR rental credit due
TENANT, any remaining rental credit due TENANT shall be deducted
from the rental payment due LANDLORD on April 1, 2000. The balance
of the April 1, 2000 rental payment due LANDLORD shall be due and
payable to LANDLORD.
3. ANNUAL RENT ADJUSTMENT: The monthly base rent for each
twelve month period subsequent to the first complete twelve month
period occurring during the term of this Lease or any renewal
thereof shall be computed by multiplying the base rent, as set
forth in Paragraph Two, by a fraction whose numerator shall be the
number reported by the U.S. Department of Labor, Bureau of Labor
Statistics as the Revised Urban Wage Earners and Clerical Workers
Index for the third month prior to the respective anniversary date
and whose denominator shall be the number supplied for the third
month prior to the commencement date of the Lease, provided that in
no event shall such rent be less than the rent paid by TENANT for
each twelve (12) month period of this Lease immediately prior to
each anniversary date of this Lease.
The LANDLORD shall notify the lessee of the adjusted monthly
base rent, in writing, if such adjustment occurs. The TENANT
agrees to pay the adjusted monthly base rent, together with any
applicable taxes, on the first day of each and every month for the
following twelve (12) month period.
In the event the Bureau of Labor Statistics changes the form
or the basis of calculating the Index, the parties agree that the
burden shall be upon the LANDLORD to select the new Index to be
used. The new Index selected by LANDLORD shall be an index
comparable to the Index set forth hereinabove.
TENANT'S annual rental payment due LANDLORD for each
subsequent year that this lease shall be in effect shall be capped
at a maximum of a three (3%) percent increase annually based upon
the amount of the prior year's rental payment.
4. PRO RATA SHARE OF INCREASE IN OPERATING COSTS: (a) In
addition to the "Base Rental" described above, each calendar year
the TENANT is required to pay his pro rata share of any increase in
the direct operating costs of the Building. The TENANT'S pro rata
share of any increase in direct operating costs is known herein as
"additional rent". (b) The amount of increase in direct operating
costs for each calendar year (January 1 to December 31) shall be
computed by comparing the cost during that year with the costs
incurred during the "Base Year". The Base Year shall be 1998.
TENANT'S prorata share of any increase is hereby fixed at 7.96%
percent.
4.1. PRO RATA SHARE: The pro rata share of the increase in
direct operating costs to be charged to TENANT shall be pro rated
based upon the number of square feet leased by the TENANT as it
related to the whole leasable square footage of the Building. In
the event part of the Building is unoccupied during the Base Year
or any subsequent calendar year, the direct operating costs shall
be adjusted so as to reflect operating costs of the Building as
though fully occupied and the computation of increase shall be
based upon such adjusted costs.
4.2. DIRECT OPERATING COSTS: Direct operating costs shall
include taxes and assessments, janitorial, guard and maintenance
services, labor, reasonable managerial expenses, insurance, air
conditioning, heating, electricity, water, sewage, payroll
expenses, materials and supplies, services, charges and all other
direct operating costs of operating and maintaining the Building.
Direct operating costs shall not include expenditures for capital
improvements, interest expenses or depreciation, nor additional
charges imposed under Paragraphs six (6) and seven (7) hereof.
Such additional charges shall be computed separately for each
TENANT. All expenditures scheduled less often than annually shall
be pro rated over the period to which such expenditures are
applicable.
4.3. TAXES: Taxes for the Base Year shall be computed for this
purpose by multiplying the general real estate rate by the assessed
value of the land and the completed building for the Base Year.
Taxes for subsequent Base Years shall be deemed to be the taxes
payable in the respective calendar year even though the levy or
assessment thereof may be for a different year. Said taxes shall
include general real estate taxes, special assessments, and any
other taxes that may be imposed partially or entirely in lieu of
general real estate taxes. Changes in taxes may be due to changes
in the tax rates and/or changes in the assessment of the land
and/or Building.
4.4. CALCULATING ADDITIONAL RENT: For each calendar year after
the Base Year the direct operating costs for the Building during
that calendar year shall be determined. This determination shall
be made as soon as appropriate accounting information for the
calendar year is available. This amount shall then be compared to
the direct operating costs of the Building during the TENANT'S Base
year. The "additional rent" payable by the TENANT shall be his pro
rata share (See Schedule 4.1) of the increase in direct operating
costs when said costs are compared to the direct costs of the Base
Year.
4.5. STATEMENTS: A statement, in reasonable detail, containing
the above described calculations of "additional rent" shall be
rendered to the TENANT for each calendar year after the Base Year.
The statement will be issued subsequent to the termination of the
calendar year and as soon as practicable after appropriate
accounting information for the calendar year is available as set
forth in Paragraph 4.6. The TENANT shall have thirty (30) days
from the receipt of said statement to make any "additional rent"
payments due and owing thereunder.
4.6. METHOD OF ACCOUNTING - BASE YEAR OPERATING COSTS:
LANDLORD agrees to keep books and records reflecting direct
operating costs of the Building in accordance with the standard
method of accounting consistently applied. Within thirty (30) days
after receipt of this statement the TENANT shall have the right
upon reasonable notice and at such reasonable business hours to
inspect and review the books and records of the LANDLORD that
verify such statement. This statement shall be conclusive between
all parties as to the operating costs of the Building for each
calendar year. Once the operating costs for the Base Year have
been determined, the parties hereto agree to acknowledge the same
in writing.
4.7. FINAL CALENDAR YEAR OF LEASE: "Additional Rent" for the
final months of this Lease is due and payable even though it may
not be calculated until subsequent to the termination date of the
Lease. In calculating "additional rent" for the final months of
the Lease, the direct operating costs for the calendar year during
which the Lease terminated shall be pro rated according to that
portion of said calendar year that this Lease was actually in
effect.
5. SERVICES TO BE FURNISHED: LANDLORD will furnish the
following services to TENANT: (1) twenty four (24) hour elevator
service; (2) electric current for normal and customary usage as is
provided to the existing tenant; water in such amounts as in
LANDLORD'S reasonable judgment is necessary for lavatory and like
purposes; heat and/or air conditioning service to the demised
premises from 8:30 A.M. until 5:00 P.M., Monday through Friday, at
such temperatures and in such amounts as are reasonably considered
by LANDLORD to be standard, but LANDLORD shall not be required to
furnish heat and/or air conditioning on Saturdays, Sundays and
legal holidays; provided, however, upon the timely request by
TENANT, LANDLORD shall furnished heat and/or air conditioning
service to the demised premises during hours other than the
foregoing at an hourly rate to be negotiated in advance, and such
rate for additional service shall be billed to TENANT monthly; and
(5) cleaning and janitorial service to the demised premises for all
public and special service areas, except on Saturdays, Sundays, and
legal holidays, in the manner and to the extent reasonably deemed
by LANDLORD to be standard.
6. INCREASE IN SERVICE: If TENANT shall require electrical
current or shall install electrical equipment, including but not
limited to electrical heating, refrigeration equipment, electronic
data processing machines, computers, punch card machines, or
machines or equipment using current in excess of 110 volts, or
which will in any way increase the amount of electricity and/or
water usually furnished for general or normal use of the demised
premises, then TENANT shall obtain prior written approval from the
LANDLORD, who may condition such consent upon the payment by the
TENANT of additional rent as compensation for excess consumption of
water and/or electricity occasioned by the operation of said
equipment or machinery, including any installation costs thereof.
LANDLORD shall not be liable for any delay or failure to supply
such services due to unusual conditions beyond its control, and
LANDLORD shall not be liable for damages nor shall TENANT ever be
entitled to any abatement of rent for failure to supply the same.
LANDLORD hereby acknowledges that the current tenant's present use
of the demised premises does not increase the amount of electricity
and/or water furnished for general or normal office use of the
demised premises. TENANT shall be solely responsible for payment
of the cost of electricity used to operate TENANT'S equipment.
7. INCREASE IN INSURANCE: TENANT shall not do or permit
anything to be done upon or bring or keep or permit anything to be
brought or kept into or on the premises which shall increase the
rate of insurance on the Building of which the premises form a part
or on the property located therein. If by reason of the failure of
TENANT to comply with the terms of this Lease, or by reason of
TENANT'S occupancy (even though permitted or contemplated by this
Lease), the insurance rate shall at any time be higher than it
would otherwise be, TENANT shall reimburse LANDLORD for that part
of all insurance premiums charged because of such violation or
occupancy by TENANT. LANDLORD hereby acknowledges that the current
tenant's present use of the demised premises does not cause an
increase the rate of insurance on the Building of which the
premises form a part or on the property located therein.
8. NO LIABILITY: It is covenanted and agreed by and between
the parties hereto that the LANDLORD shall not in any event,
whether caused by LANDLORD's negligence or otherwise, except for
LANDLORD'S gross negligence or intentional conduct, be liable for
any failure of water supply, electric current, heating or air
conditioning, elevator service, or any other service, nor be
liable for any loss, damage or injury to the TENANT. TENANT'S
agents, servants, employees or visitors, or the TENANT'S property,
for any damage or injury caused by or from the bursting or leaking
of boilers of water, sewer, steam or gas pipes or gas pipes or from
electricity, water, rain or dampness, which may leak or flow from
any part of the Building, or by fire or theft or by other tenants
or persons in the Building, or resulting from the operation of
elevators, heating or air conditioning or light apparatus, or from
falling plaster or tiles, or from electric wires equipment or
fixtures, or from gas odors or plumbing fixtures, or from the
elements, or from any cause whatsoever, except in the case of the
willful neglect of the LANDLORD. All goods and property or
personal effects stored or placed by the TENANT in or about the
Building shall be at the sole risk of the TENANT.
9. LIENS: The TENANT herein shall not have any authority to
create any liens for labor or material on the LANDLORD'S interest
in the above described property, and all persons contracting with
the TENANT for the destruction or removal of any building or for
the erection, installation, alteration, or repair of any building
or other improvements on the above described premises, and all
materialmen, contractors, mechanics, and laborers, are hereby
charged with notice that they must look to the TENANT and to the
TENANT'S interests only in the above described property to secure
the payment of any xxxx for work done or material furnished during
the rental period created by this Lease. LANDLORD shall not be
liable nor shall the leased premises be subject to any mechanics,
materialmen or other type liens and TENANT shall keep the premises
and property in which the leased premises are situated free from
any such liens and shall indemnify LANDLORD against and satisfy any
such liens which may be obtained because of acts of TENANT
notwithstanding the foregoing provision. TENANT further agrees
that TENANT will pay all liens of contractors, mechanics, laborers,
materialmen, and other items of like character, and will indemnify
LANDLORD against all legal costs and charges, bond premium for
release of liens and including counsel fees reasonably incurred in
and about the defense of any suit in discharging the said premises
or any part thereof from any liens, judgments, or encumbrance
caused or suffered by TENANT. It is understood and agreed between
the parties hereto that the cost and charges above referred to
shall be considered as rent due and shall be included in any lien
for rent.
10. ALTERATIONS AND IMPROVEMENTS, ETC.: TENANT shall not make
any alterations, additions, or improvements to the premises without
the prior written consent from the LANDLORD which consent shall not
be unreasonably withheld. In making any alterations, decorations,
additions, installments, or improvements to or in the premises,
TENANT shall employ only such labor as will not cause strikes or
labor trouble with other employees in the Building employed by
LANDLORD or LANDLORD'S contractors; and all such work done by
TENANT shall be performed and installed in such a manner that the
same shall comply with all provisions of law, ordinances, and all
rules and regulations of any and all agencies and authorities
having jurisdiction over the premises, and at such time and in such
manner as not to interfere with the progress of any work being
performed by or on account of LANDLORD. Notwithstanding the
foregoing, it is understood that all alterations, additions,
improvements, decorations or installations, including, but not
limited to, all presently existing or hereinafter installed
telephone communications equipment, generators and fuel tanks,
partitions, railings, air conditioning ducts or equipment, movable
equipment, furniture and fixtures contained within the demised
premises shall be removed by TENANT at the termination of the term
of this Lease.
11. INSPECTION, EXAMINATION AND ENTRY: LANDLORD and
LANDLORD'S agents shall have the right to enter the premises at all
reasonable hours to examine the same, and workmen may enter at any
reasonable time when authorized by LANDLORD and LANDLORD'S agents
to make such repairs, alterations or improvements in the Building
as LANDLORD may deem necessary or desirable. If during the last
month of the term, TENANT shall have removed all or substantially
all of TENANT'S property, LANDLORD may immediately enter the
premises and prepare them for any future TENANT. Furthermore the
LANDLORD may allow such future TENANT to occupy the premises.
These acts shall have no effect upon TENANT'S obligation under this
Lease and TENANT shall be entitled to no abatement or diminution of
rent as a result thereof, except that in the event such future
TENANT makes any payment for the period up until the expiration of
this Lease, TENANT shall be entitled to a credit to the extent of
such payment. If TENANT shall not be personally present to open
and permit entry into the premises, when entry thereinto shall be
permissible or necessary hereunder, LANDLORD may enter same at all
reasonable times. LANDLORD shall have the right, after reasonable
prior notice to TENANT, to enter the leased premises at all
reasonable hours for the purpose of displaying said premises to
prospective tenants within ninety (90) days prior to the
termination of this Lease. LANDLORD shall give TENANT reasonable
prior notice of LANDLORD'S intention to enter the leased premises
except in the case of an emergency.
12. INDEMNIFICATION: The LANDLORD shall not be liable for
any damage or injury to any person or property whether it be the
person or property of the TENANT, the TENANT'S employees, agents,
guests, invitees or otherwise by reason of TENANT'S occupancy and
use of the leased premises or because of fire, flood, windstorm,
Acts of God, or for any other reason. TENANT shall indemnify and
save LANDLORD harmless, and does agree to indemnify and save
LANDLORD harmless, of and from all fines, claims, demands and
causes of action of every nature whatsoever arising or growing out
of or in any manner connected with the occupation or use of the
premises and Building, and every part thereof, by TENANT and the
employees, agents, servants, guests and invitees of TENANT
including without limiting the generality of the foregoing, any
claims, demands and causes of action for personal injury and/or
property damage, and said indemnification shall extend to any
fines, claims, demands and causes of action of every nature
whatsoever which may be made upon, sustained or incurred by
LANDLORD by reason of any breach, violation or non-performance of
any term, covenant or condition hereof on the part of TENANT, or by
reason of any act or omission on the part of TENANT and the
employees, agents, servants, guests, and invitees of TENANT. TENANT
agrees that this indemnification shall further extend to all costs
incurred by LANDLORD including reasonable attorney's fees.
13. ASSIGNMENT AND SUBLEASE: The TENANT covenants and agrees
not to encumber or assign this Lease or to sublet all or any part
of the leased premises without the prior written consent of the
LANDLORD. The LANDLORD covenants and agrees that consent shall not
be unreasonably withheld, provided that:
A) The LANDLORD shall have the option to refuse to consent to
any sublease or assignment by canceling this Lease and mutually
releasing the TENANT from this Lease.
B) At the option of the LANDLORD there shall be deposited with
LANDLORD such additional sums as LANDLORD deems reasonably
necessary to secure the faithful performance of the terms and
conditions of this Lease.
C) The LANDLORD may, at LANDLORD'S option, require that any
sublease or assignment include therein such terms, conditions or
covenants as LANDLORD deems reasonably necessary to safeguard
LANDLORD'S interests.
D) In no event shall TENANT be entitled to sublease the leased
premises for a rental amount which exceeds the amount of rental
which the TENANT is obligated to pay to LANDLORD at the time the
sublease is proposed.
TENANT agrees to give notice to LANDLORD, within ten (10)
days, of the transfer by TENANT of any controlling stock or
interest in its business; LANDLORD shall have the option to deem
any such transfer to be an assignment by TENANT of this Lease, and
subject to LANDLORD'S written consent and all other rights retained
by LANDLORD in respect of an assignment of the leased premises.
LANDLORD acknowledges that TENANT may permit the use of
TENANT'S equipment and improvements by other telephone service
providers and that such use shall not constitute an assignment or
sublease of the demised premises by TENANT.
14. DEFAULT: In the event TENANT shall default in the
payment of rent or any other sums payable by TENANT herein and such
default shall continue for a period of three (3) days, or if the
TENANT shall abandon the premises and remove or attempt to remove
therefrom the major portion of its furniture or fixtures, or if the
TENANT shall default in the performance of any other covenants or
agreements of this Lease and such default shall continue for thirty
(30) days or for fifteen (15) days after written notice thereof, or
if TENANT should become bankrupt or insolvent or any debtor
proceedings be taken by or against the TENANT, then and in addition
to any and all other legal remedies and rights, the LANDLORD may
declare the entire balance of the rent for the remainder of the
term to be due and payable and may collect the same by distress or
otherwise and LANDLORD shall have a lien on the personal property
of the TENANT which is located in the leased premises and in order
to protect its security interest in the said property LANDLORD may,
without first obtaining a distress warrant, lock up the leased
premises in order to protect said interest in the secured property,
or the LANDLORD may terminate this Lease and retake possession of
the leased premises, or enter the leased premises and relet the
same without termination, in which latter event the TENANT
covenants and agrees to pay any deficiency after TENANT is credited
with the rent thereby obtained less all repairs and expenses
(including the expenses of obtaining possession), or the LANDLORD
may resort to any two or more of such remedies or rights, and
adoption of one or more such remedies or rights shall not
necessarily prevent the enforcement of others concurrently or
thereafter. Any monies received from the TENANT at any point
during the period of the Lease will be applied at LANDLORD'S
discretion towards TENANT'S earliest obligation.
TENANT also covenants and agrees to pay reasonable attorney's
fees and costs and expenses of the LANDLORD, including court costs,
if the LANDLORD employs an attorney to collect rent or enforce
other rights of the LANDLORD herein in event of any breach as
aforesaid and the same shall be payable regardless of whether
collection or enforcement is effected by suit or otherwise.
15. DAMAGE BY FIRE OR OTHER CASUALTY: If, through no fault
or negligence of TENANT, its visitors, agents, or servants, the
premises shall be partially damaged by fire or other casualty, the
damage shall be repaired by LANDLORD, and the rent until such
repairs are made, shall be apportioned according to the portion of
the premises which are still usable. If the damage shall be so
extensive as to render the premises wholly untenantable, the rent
shall cease until such time as the premises shall become
tenantable. However, if the damage is so extensive that the
premises cannot be made tenantable within three (3) months from the
date rehabilitation is started, either party shall have the right
to terminate this Lease upon ten (10) days written notice to the
other. In case the Building generally throughout (though the
demised premises may not be affected) is so injured or destroyed by
fire or other casualty that LANDLORD shall decide no to re-build or
reconstruct the Building, the term of this Lease shall cease upon
ten (10) days' written notice sent by LANDLORD and the rent shall
be paid up to the time of such destruction and the Lease shall
thereafter be o no further effect. In the event that any question
shall arise between LANDLORD and TENANT as to whether or not
repairs shall have been made with reasonable dispatch, due
allowance shall be made for any delays which may arise in
connection with the adjustment of the fire insurance loss and for
any delays arising out of what are commonly known as "labor
troubles" or "material troubles" or from any other cause beyond
LANDLORD'S control. In any event LANDLORD shall not be liable to
TENANT by reason of fire or other damage to the Building or the
demised premises. LANDLORD shall not be liable to carry fire,
casualty or extended damage insurance on the person or property of
the TENANT or any person or property which may now or hereinafter
be place in the leased premises.
16. CONDEMNATION: If during the term of this Lease, the
whole of the leased premises or Building, or such portion(s)
thereof as will render the leased premises unusable for the purpose
leased, be condemned or otherwise leased or taken under the right
of eminent domain by any competent authority for public or quasi-
public use or purpose or is taken by private purchase in lieu of
condemnation, then in such event, this Lease shall, at the option
of the LANDLORD, cease and come to an end as of the date of the
vesting of title in such public authority or by private purchase,
or when possession is given to such public authority, whichever
event last occurs. Upon such occurrence the rent shall be
proportioned as of such date and any prepaid rent shall be returned
to the TENANT. The LANDLORD shall be entitled to the entire award
or purchase price for the building and improvements owned by
LANDLORD and the TENANT shall have no right or claim, to any part
thereof. TENANT shall be entitled to claim an award for the value
of TENANT'S property located upon the demised premises. LANDLORD
shall have no interest in those sums specifically awarded to TENANT
for TENANT'S interest in the leased premises which may be
recoverable by TENANT in the condemnation proceeding. The interest
of LANDLORD and TENANT shall be dealt with separately and according
to law and TENANT shall be a party in any condemnation proceeding
and/or action at law in connection with or relating to any
condemnation proceeding; the foregoing being for the purpose of
establishing TENANT'S interest and compensation therefor in the
event that condemnation does occur.
17. SUBORDINATION: This lease shall be subject to and
subordinate at all time to any mortgage or ground or underlying
lease now or hereafter placed upon or affecting the land or
Building or demised premises. To that effect TENANT agrees to
execute any and all instruments necessary to effect said
subordination. The liability of the LANDLORD or his assigns under
this Lease shall exist only so long as such person is the owner of
the subject real estate, and such liability shall not continue or
survive after transfer of ownership. LANDLORD shall assist TENANT,
and use its best efforts, in obtaining Non-Disturbance Agreements
from the existing first and second mortgagees but, in no event
shall the failure of TENANT to obtain such Non-Disturbance
Agreements affect the validity of this Lease.
A) TENANT agrees, in the event of any act or omission by
LANDLORD which would give TENANT the right to terminate this Lease
or to claim a partial or total eviction, not to exercise any such
right (i) until he has notified in writing the holder of any
mortgage which at the time shall be a lien on the demised premises
or the underlying LANDLORD, if any, of such act or omission, (ii)
until a reasonable period, not exceeding thirty (30) days, shall
have elapsed following the giving of such notice, and (iii) unless
such holder or underlying LANDLORD with reasonable diligence, shall
not have so commenced and continued to remedy such act or omission
or to cause the same to be remedied. During the period between the
giving of such notice and the remedying of such act or omission,
the rental herein recited shall be abated and apportioned to the
extent that any part of the demised premises shall be untenable.
B) If such mortgage be foreclosed or such underlying Lease be
terminated, then, upon request of the mortgagee or underlying
LANDLORD, TENANT will attorn to the purchaser at any foreclosure
sale thereunder or the underlying LANDLORD and will execute such
instruments as may be necessary or appropriate to evidence such
attornment.
18. EXAMINATION OF PREMISES AND NO ORAL REPRESENTATIONS: At
the time of taking possession of the premises the TENANT shall be
afforded the opportunity to examine said premises and submit to the
LANDLORD a written list of any discrepancies it may know. If said
list is not provided to the LANDLORD within twenty-four (24) hours
of taking possession of the premises, said premises shall be deemed
to be in good condition at the time of said examination. No
representations, except those contained herein, have been made on
the part of LANDLORD with respect to the order, repair or condition
of the premises or the Building. TENANT will make no claim on
account of any representations whatsoever, whether made by any
renting agent, broker, officer or other representative of LANDLORD
or which may be contained in any circular, prospectus or
advertisement with respect to the order, repair or condition of the
premises or the Building unless the same is specifically set forth
in this Lease.
19. SECURITY: TENANT has deposited with LANDLORD the sum of
EIGHT THOUSAND EIGHT HUNDRED EIGHTY FOUR AND 88/100 ($8,884.88)
DOLLARS, as security for the faithful performance and observance by
TENANT of the terms, provisions and conditions of this Lease; it is
agreed that, in the event TENANT defaults in respect to any of the
terms, provisions, and conditions of this Lease, including, but not
limited to the payment of rent and additional rent, LANDLORD may
use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which TENANT is in default
or for any sum which LANDLORD may expend or may be required to
expend by reason of TENANT'S default in respect to any of the
terms, covenants and conditions of this Lease, including, but not
limited to any damages or deficiency in the re-letting of the
premises, whether such damage or deficiency accrued before or after
summary proceedings or other re-entry by LANDLORD. In the event
that TENANT shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Lease the
security shall be returned to TENANT after the date fixed as the
end of the Lease and after delivery of entire possession of the
premises to LANDLORD. In the event of a sale of the land and
Building, of which the premises form a part, LANDLORD shall have
the right to transfer the security to the vendee, and LANDLORD
shall thereupon be released by TENANT from all liability for the
return of such security and TENANT agrees to look to the new
LANDLORD solely for the return of said security. It is agreed that
the provisions hereof shall apply to every transfer or assignment
made of the security to a new LANDLORD. TENANT further covenants
that it will not assign or encumber the monies deposited herein as
security and that neither LANDLORD nor its assigns shall be bound
by any such assignment or encumbrance. LANDLORD shall not be
required to keep the security in a segregated account and the
security may be commingled with other funds of LANDLORD, and in no
event shall TENANT be entitled to any interest on the security.
20. NOTICE: In every instance where it shall be necessary or
desirable for the LANDLORD to serve any notice or demand upon the
TENANT, it shall be sufficient (a) to deliver or cause to be
delivered to the TENANT, during regular business hours, at the
demised premises a written or printed copy thereof, in which event
the notice or demand shall be deemed to have been served at the
time the copy is so delivered, or (b) to send a written or printed
copy thereof by United States registered or certified mail, return
receipt requested, addressed to the TENANT at the demised premises,
in which event the notice or demand shall be deemed to have been
served three (3) business days from the date of deposit in the
United States mails, postage prepaid, or (c) to leave a written or
printed copy thereof, in or upon the demised premises or to affix
the same upon any door leading into the demised premises, in which
event the notice or demand shall be deemed to have been served at
the time the copy is so left or affixed. All notices or demands
shall be signed by or on behalf of the LANDLORD.
Any notice by TENANT to LANDLORD shall be deemed duly given is
sent by United States registered or certified mail, return receipt
requested, postage prepaid, to LANDLORD at 00 Xxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxx 00000 or at such address as may hereafter
be designated by LANDLORD, and also to the agent of LANDLORD
charged with the renting and management of the Building.
21. USE OF PREMISES: TENANT shall use and occupy the
premises only for operation of telephone communication services or
other lawful general office purposes and for no other purpose. In
the event the TENANT uses premises for purposes not expressly
permitted herein, the LANDLORD may terminate the Lease or, without
notice to TENANT, restrain said improper use by injunction.
22. CERTIFICATE BY TENANT: TENANT shall deliver to LANDLORD
or to its mortgagee, auditors, or prospective purchaser, or the
owner of the fee, when requested by LANDLORD, a certificate to the
effect that this Lease is in full force and effect and that
LANDLORD is not in default therein, or stating specifically any
exceptions thereto. Failure to give such a certificate within two
(2) weeks after written request shall be conclusive evidence that
the TENANT is in full force and effect and LANDLORD is not in
default and TENANT shall be estopped from asserting any defaults
known to him at that time.
23. POSSESSION: If, for any reason, LANDLORD is unable to
give possession of the demised premises on the date of the
commencement of this Lease, this Lease shall not be affected
thereby nor shall TENANT have any claim against LANDLORD by reason
thereof. All claims for damages arising out of such delay other
than a proportionate abatement of rent are waived and released by
TENANT. Nothing herein contained shall operate to extend the term
of the Lease beyond the agreed expiration date and TENANT'S only
remedy and LANDLORD'S only liability shall be the abatement of rent
herein referred to. If LANDLORD is unable to give possession of
the demised premises to TENANT within ninety (90) days next after
the commencement of the term of this lease, then TENANT shall have
the right to cancel this Lease upon written notice thereof
delivered to LANDLORD within ten (10) days after the lapse of said
ninety (90) day period, and upon such cancellation, LANDLORD and
TENANT shall each be released and discharged from all liability in
connection with this Lease. This lease is contingent upon the
existing tenant vacating the subject property and surrendering
possession of the demised premises to LANDLORD at which time the
LANDLORD shall immediately tender possession and occupancy of the
demised premises to TENANT.
24. HOLDING OVER: In the event the TENANT shall withhold
from the LANDLORD the possession of the premises demised herein
after the termination of this Lease and the term hereby demised,
whether by expiration of said term or by the election or act of
either party hereto, the damages for which the TENANT shall be
liable to the LANDLORD for such detention shall be and hereby are
liquidated at a sum equal to double the amount of rent stipulated
herein for a period equal to the period of such detention. In the
event the TENANT shall remain in possession of said premises after
the expiration and termination of this Lease for any cause
whatsoever, the TENANT shall then be considered a tenant at will
and by sufferance, and no such holding over or retention of
possession or occupancy shall operate as an extension or renewal of
this Lease in any manner whatsoever.
25. TENANT TO TAKE GOOD CARE OF PREMISES: TENANT shall keep
the premises in a clean, safe and sanitary condition and shall
permit no waste or injury to occur to the premises and fixtures
therein, or to any additions, alterations, and improvements
thereto. All damage caused by TENANT'S negligence, or that of its
agents, servants, employees or visitors, shall be repaired promptly
by TENANT at his sole cost and expense. In the event that the
TENANT fails to comply with the foregoing provisions the LANDLORD
shall have the option to enter the premises and make all necessary
repairs at TENANT'S cost and expense, the same to be added to and
be payable with the next monthly installment of rent.
26. COMPLIANCE WITH ORDINANCES AND DIRECTIVES OF AUTHORITIES:
TENANT shall at its own cost and expense comply with all present or
future rules, regulations, directives, laws, ordinances and orders
of all public authorities, and Fire Underwriters, which are or may
become applicable to TENANT'S leased premises, which are required
as a result of TENANT'S use of the leased premises, except as said
rules pertain to any structural work or outside repairs or common
areas. TENANT waives any claim against LANDLORD for any expenses
or damages resulting from compliance with any of the said rules,
regulations, directives, laws, ordinances or orders which are or
may become applicable to the leased premises and space, except as
said rules pertain to any structural work or outside repairs.
27. NO ABATEMENT: No diminution or abatement of rent, or
other compensation, shall be allowed for inconvenience or injury
arising from the making of repairs, alterations, or improvements to
the Building nor for any space taken to comply with any law,
ordinance, or order of governmental authority, nor for the
LANDLORD'S failure, delay, or interruption in supplying any
service, or in performing any obligation on LANDLORD'S part to be
performed if the same be occasioned or caused, in whole or in part,
by accident, alterations, or repairs, desirable or necessary to be
made, or by LANDLORD'S inability or difficulty in obtaining labor,
material or supplies or by reason of any cause beyond LANDLORD'S
control. No such interruption, curtailment or change of any such
"service" shall be deemed a constructive or actual eviction.
LANDLORD shall not be required to furnish any of such "services"
during any period wherein TENANT shall be in default in the
payment of rent or additional rent. LANDLORD shall be required to
make reasonable efforts, when undertaking such repairs, so as to
permit TENANT'S continuous use and occupancy of the demised
premises.
28. NO WAIVER OF PERFORMANCE: No waiver by LANDLORD of any
provision hereof shall be deemed to have been made unless such
waiver be in writing signed by LANDLORD. The failure of LANDLORD
to insist upon the strict performance of any of the covenants or
conditions of this Lease, or to exercise any option herein
conferred, shall not be construed as waiving or relinquishing for
the future any such covenants, conditions or option but the same
shall continue and remain in full force and effect. No act of
LANDLORD or its agent during the term hereof shall be deemed an
acceptance of a surrender of the said premises unless made in
writing and personally subscribed by LANDLORD, neither shall the
delivery of the keys to the premises by TENANT to LANDLORD or its
agent be deemed a surrender and acceptance thereof. No payment by
TENANT of a lesser amount than the monthly rent herein stipulated
shall be deemed to be other than on account of the stipulated rent.
29. TIME OF THE ESSENCE: Every term of this agreement shall
be deemed and construed to be of the essence thereof, and any
breach shall be deemed and construed to be of the very substance of
this agreement, and the lessee hereby consents to the issuance of
an injunction by any court of competent jurisdiction restraining
any threatened breach or any continuing breach of any covenants
imposed upon the TENANT herein and hereby. Said right of
injunction shall be cumulative to the other remedies mentioned
herein.
30. SURRENDER AT EXPIRATION OF TERM: TENANT agrees at the
expiration of the term to quit and surrender the premises hereby
demised and everything belonging to or connected therewith in as
good a state and condition as reasonable wear and use thereof will
permit, and to remove all signs, advertisements and rubbish from
the said premises; and TENANT hereby expressly authorizes LANDLORD,
as the agent of TENANT, to remove such rubbish and make repairs as
may be necessary to restore the premises to such condition at the
expense of TENANT. TENANT shall, upon the expiration or
termination of this Lease, reasonably restore the leased premises
to the condition as exists as of the date of execution of this
lease by LANDLORD and TENANT.
31. ADDITIONAL RENT: If LANDLORD shall make any expenditure,
for which TENANT is liable under this Lease, or if TENANT shall
fail to make any payment due from him under this Lease, the amount
thereof shall at LANDLORD'S option be deemed "additional rent" and
shall be due with the next succeeding installment of rent. For the
non payment of any "additional rent" LANDLORD shall have the same
remedies and rights and LANDLORD has for the nonpayment of the base
rent.
32. QUIET POSSESSION AND OTHER COVENANTS: LANDLORD covenants
that if and so long as TENANT pay the rent and additional rent
reserved by this Lease and performs and observes all of the
covenants, conditions, and rules and regulations hereof. TENANT
shall quietly enjoy the demised premises subject, however, to all
of the terms of this Lease. TENANT expressly agrees for itself,
and its successors and assigns that the covenant of quiet enjoyment
(express or implied) and all other covenants in this Lease on the
part of the LANDLORD to be performed shall be binding upon LANDLORD
only so long as LANDLORD remains the owner of the Building of which
the demised premises form a part.
33. RULES AND REGULATIONS: TENANT agrees to observe and
comply with and TENANT agrees that its agents and all persons
visiting in the demised premises will observe and comply with the
reasonable rules and regulations as LANDLORD may from time to time
deem needful and prescribe for the reputation, safety, care and
cleanliness of the Building and the preservation of good order
therein and the comfort, quiet and convenience of other occupants
of the Building which reasonable rules and regulations shall be
deemed terms and conditions of this Lease. LANDLORD shall not be
liable to TENANT for the violation of any said rules and
regulations by any other TENANT or person. LANDLORD shall not
enact any rules or regulations which shall limit TENANT'S ability
to use, occupy and conduct business within the demised premises.
34. EMERGENCY GENERATOR: TENANT specifically assumes
liability for the maintenance of generator and tank located upon
the terrace of the Penthouse Floor and agrees to indemnify and hold
LANDLORD harmless form any damage to or incurred by any person as
a result of the operation of the generator and tank.
35. PARKING: There is no parking provided under this Lease.
36. LANDLORD'S WORK: LANDLORD shall paint the demised
premises using two (2) coats of building standard satin finish
paint. LANDLORD shall also re-carpet all areas of the demised
premises where carpeting presently exists, using building standard
carpeting, and shall make ordinary repairs. TENANT shall choose
the color of the paint and carpeting. LANDLORD shall also "power
clean" the floors located in the switch room and all floor tile
located within the demised premises.
37. "AS IS" CONDITION: The subject property is being leased
by TENANT in its existing "as is" condition.
38. ENVIRONMENTAL REQUIREMENTS: TENANT shall, if at any time
TENANT or LANDLORD believes or has any suspicion that there are
materials or wastes located on or under the property which, under
any Environmental Requirement require special handling in
collection, storage treatment, or disposal, take or cause to be
taken within thirty (30) days after written notice thereof, at its
sole expense, such investigations or tests or otherwise, and if
they exist, then to comply with all Environmental Requirements. If
TENANT fails to take such actions, LANDLORD may make advances or
payments towards performance or satisfaction of the same, but shall
be under no obligation so do to; and all sums so advanced or paid,
including all sums advanced or paid in connection with any judicial
or administrative investigation or proceeding relating thereto,
including, without limitation, reasonable attorneys' fees,
including paralegal assistants, fines or other penalty payments,
and any losses, claims, expenses, damages and liabilities suffered
or incurred by LANDLORD, directly or indirectly, because of
TENANT'S failure to take such actions (including but not limited to
tests, inspections, clean-up or removal, etc.), shall be at once
repayable to LANDLORD.
Failure of TENANT to comply with this Section and all
Environmental Requirements shall constitute and be a default under
these Lease Agreement and LANDLORD shall be entitled to all
remedies hereunder arising out of TENANT'S breach of this Lease
Agreement.
TENANT shall give LANDLORD prompt notice of any notice it
receives concerning Waste or material problem(s) under any
Environmental Requirement, or of any administrative review, claim,
demand, action or suit, threatened or instituted against LANDLORD
or TENANT or anyone having any relationship to the property, by
reason of or in connection with any Waste or material problem under
any Environmental Requirements.
TENANT shall remain totally liable for all damages and losses
to LANDLORD under this Section as to any and all hazardous and/or
toxic waste materials, products and violations caused by or in
behalf of TENANT, TENANT'S agents, guests, invitees and employees
and TENANT shall be responsible for all costs and expenses to
correct any environmental violations or remove any hazardous waste
or hazardous materials. TENANT shall not be liable for any costs
and expenses to correct any environmental violations or remove any
hazardous waste or hazardous materials which are in existence prior
to TENANT'S occupancy of the demised premises.
LANDLORD, to the best of LANDLORD'S knowledge, is not aware of
any environmental violations, hazardous waste, hazardous materials
or radon gas affecting the real property and/or improvements
containing the demised premises.
39. RADON GAS NOTIFICATION: 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 you county public health unit.
40. MISCELLANEOUS:
(a) It is understood that any dimensions or sizes on
either working or renting plans are merely approximations and
whether such plans are attached or are made part of this Lease or
not, LANDLORD shall not be liable, because exigencies arising
during construction, alteration or preparation for TENANT'S
occupancy result in changes not indicated on such plans.
(b) Whenever the word "its" is used it shall refer
likewise to "his", or "her" or "their", whenever the word "his" is
used it shall refer likewise "her", "its" or "their", and whenever
the word "Landlord" or "Tenant" is used it shall refer likewise to
"LANDLORD" and "TENANT", respectively. The plural shall be
substituted for the singular number in any place or places herein
where the context may require such substitution or substitutions.
(c) If any term or provision of this Lease or the
application thereof to any person or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Lease or
the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and such term and
provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
(d) This Lease shall not be altered, changed, or amended,
except by an instrument in writing signed by both parties hereto.
LANDLORD may at any time change the name or number of the
Building, remodel or alter the same, or the location of any
entrance thereto, or any other portion thereof not occupied by
TENANT, and the same shall not constitute a constructive or actual,
total or partial eviction.
(e) In the event this Lease or any instrument referring to
this Lease is recorded without the consent of lessor, then LANDLORD
shall have the right to void this Lease or bring an action to
expunge this Lease from the Public Records and shall be entitled to
damages, costs and attorney's fees.
(f) LANDLORD shall not be held responsible for acts of God
or anything else beyond its control and in no event shall LANDLORD
be liable to TENANT for a sum greater than the balance of the
unpaid rent.
41. DIRECTORY LISTING: LANDLORD shall provide TENANT with
five (5) listings in the directory located in the building lobby.
42. COMPENSATION OF BROKER: LANDLORD and TENANT acknowledge
that TENANT shall be solely responsible for payment of any and all
compensation to XXXXXX-XXXXXXXX INC., hereinafter referred to as
"BROKER", whose business address is 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, for BROKER'S services rendered in behalf of TENANT.
LANDLORD shall have no obligation or responsibility for payment of
BROKER'S services rendered referable to the lease of the demised
premises between LANDLORD and TENANT.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals on the dates as are set forth hereinbelow.
Executed by TENANT this day of February, 1998.
Signed, Sealed and Delivered TENANT:
in the Presence of: TOTALTEL FLORIDA, INC.,
a New Jersey Corporation
By:
Authorized Agent
Executed by LANDLORD this day of February, 1998.
Signed, Sealed and Delivered LANDLORD:
in the Presence of: MOSTA CORPORATION, a Florida
Corporation
By:
Authorized Agent
