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EXHIBIT 10.20
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Agreement") is made this 31 day of
January 2000, by and between TOTALTEL FLORIDA, INC., a New Jersey corporation,
having an address of 000 Xxxxx Xxxx, 0xx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000
(the "Lessor") and AXISTEL GLOBAL NETWORK SERVICES INC., a Delaware corporation,
having an address of Xxx Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000 (the "Lessee").
WITNESSETH
WHEREAS, Lessor, as lessee, entered into that certain Lease Agreement
dated February 6, 1998 (the "Prime Lease"), with Mosta Corporation, Inc., a
Florida corporation (the "Original Overlessor"), whereby Lessor leased from the
Original Overlessor certain premises consisting of approximately 4,959 square
feet on the Penthouse floor in the building commonly known as the "Courthouse
Plaza" located at 00 X. Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, as more
particularly described in Exhibit "A" attached hereto (the "Premises"), to
which Prime Lease reference is hereby made as if the same were herein set forth
at length; and
WHEREAS, 28 Partners Ltd., a Florida limited partnership (the
"Overlessor") is the successor-in-interest to Original Overlessor and the holder
of the interest of the "lessor" under the Prime Lease; and
WHEREAS, Lessee has requested that Lessor sublet the Premises to
Lessee; and
WHEREAS, Lessor has agreed to sublet the Premises to Lessor pursuant to
the terms and conditions contained herein; and
WHEREAS, Overlessor simultaneously consents to this Agreement as
evidenced by its execution of the Overlessor's Consent to this Agreement, in the
form attached hereto as Exhibit "C".
NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. The initial capitalized terms used herein shall have the same meaning
given such terms in the Prime Lease, unless otherwise defined or unless the
context otherwise indicates.
2. Lessor hereby subleases to Lessee the Premises for a term commencing as
of January 1, 2000 and expiring on January 30, 2013 pursuant to the same terms
and conditions as set forth in the Prime Lease, except as otherwise set forth in
this Agreement.
3. This Agreement is subject and subordinate to the Prime Lease. Except as
may be inconsistent with the terms hereof or otherwise modified herein, all the
terms, covenants and conditions contained in the Prime Lease shall be applicable
to this Agreement with the same force and effect as if Lessor were the lessor
under the Prime Lease and Lessee were the lessee thereunder; and in case of any
breach hereof by Lessee, Lessor shall have all the rights against Lessee as
would be available to the lessor against the lessee under the Prime Lease if
such breach were by the lessee thereunder. Lessor represents and warrants to
Lessee that: (i) the Prime Lease has not been amended, modified, extended or
renewed, whether verbally or in writing; (ii) no default on the part of Lessor
exists as of the date hereof under the Prime Lease; (iii) no circumstances or
state of facts exist which would give Overlessor the right to declare Lessor in
default under the Prime Lease; and (iv) provided that Lessee is not in default
hereunder, Lessor shall maintain the Prime Lease in full force and effect during
the term of this Agreement. Notwithstanding anything contained in this Agreement
to the contrary, Lessor shall remain primarily liable for the obligations and
responsibilities of the lessee under the Prime Lease.
4. As between Lessor and Lessee, with respect to the Premises, Lessee shall
perform all of the obligations of Lessor under the Prime Lease. In the event
that Lessee does not perform any such obligation, Lessor may perform such
obligation and Lessee shall immediately pay to
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Lessor any costs incurred by Lessor in the performance of such obligation. In
the event that neither Lessor nor Lessee performs any such obligation,
Overlessor may, but shall not be required to, perform such obligation and Lessee
shall immediately pay to Overlessor any costs incurred by Overlessor in the
performance of such obligation. Lessee shall neither do nor permit anything to
be done which would cause the Prime Lease to be terminated or forfeited by
reason of any right of termination or forfeiture reserved or vested in the
lessor under the Prime Lease. Any failure of Lessee to comply with the
requirements of this Section 4 shall be a default under this Agreement.
5. Lessee represents that it has read and is familiar with the terms of the
Prime Lease.
6. Commencing as of January 1, 2000, Lessee shall, without offset, notice
or deduction, make all payments of Base Rental, Lessor's pro rata share of any
increase in the direct operating costs of the Building, and any other payments
required to be made by Lessor under the Prime Lease to Lessor at such times and
in such manner as Lessor is required to make such payments to Overlessor as
provided in the Prime Lease at the Lessor's address as set forth in Paragraph 18
below. Notwithstanding the foregoing, Lessee shall not receive the benefit of
the monthly rental payment credits given to Lessor by Overlessor under Section 2
of the Prime Lease. Throughout the term of this Agreement, Lessee shall make all
rental payments to Lessor when due, in the amounts required by the Prime Lease,
without regard to any monthly rental payment credits described in the Prime
Lease. Lessee shall also pay all Florida sales taxes or other taxes payable on
any amounts required to be paid under this Agreement.
7. Lessee acknowledges that Lessor's current use of the Premises and
Lessee's proposed use of the Premises under this Agreement involve the use of
electric current which is in excess of the electric current for normal and
customary usage for existing tenants in Courthouse Plaza. Lessee shall make such
improvements to the electrical system of the Premises as are necessary to
separately submeter the Premises from the remainder of the space in Courthouse
Plaza so that all electric current usage to the Premises shall be separately
billed to Lessee and not to Overlessor. Lessee shall timely pay all costs and
expenses billed to Lessee by the entity providing electrical service to the
Premises.
8. Simultaneous with the execution of this Agreement by Lessee, Lessee
shall pay to Overlessor in the form of a cashier's check the sum of $53,309.28
(the "Security Deposit"), which shall be held by Overlessor as security for the
faithful performance by Lessee of its obligations under this Agreement. Upon the
annual rent adjustment as set forth in Section 3 of the Prime Lease, Lessee
agrees to pay to Overlessor any additional amount necessary to increase the
Security Deposit to an amount equal to six (6) months' rent at adjusted amount;
provided that in no event shall the Security Deposit be reduced to an amount
less than the amount held immediately prior to the annual rent adjustment.
Overlessor shall hold the Security Deposit in a manner and for reasons similar
to those set forth in Section 19 of the Prime Lease; provided that with respect
to the Security Deposit described herein, any references in Section 19 to
"Tenant" shall be deemed references to Lessee and any references to the "Lease"
shall be deemed to include this Agreement. Lessee acknowledges and agrees that,
upon receipt of written notice from Overlessor stating that Lessee is in default
of the Agreement, Overlessor may use the Security Deposit or an appropriate
portion thereof for the payment of any rent, charges or other amounts then due
to Overlessor under the Prime Lease or this Agreement. Said use of the Security
Deposit for any reason pursuant to the provisions of the Prime Lease or of this
Agreement will not reduce or mitigate the obligations of either Lessor or Lessee
under the Prime Lease or this Agreement. In the event that Overlessor applies
the Security Deposit in whole or in part against a default by Lessee, Lessee
shall, upon written demand by Overlessor, deposit sufficient additional funds
with Overlessor to replenish and restore the Security Deposit to the amount held
by Overlessor immediately prior to Overlessor's application of the Security
Deposit to Lessee's default. Overlessor shall be solely responsible for holding
and maintaining the Security Deposit in accordance with this Agreement and
Lessee agrees that it shall look solely to Overlessor for the return of the
Security Deposit.
9. Lessor and Lessee acknowledge and agree that the Premises shall be
delivered to Lessee in "AS IS" condition, and Lessor makes no representations or
warranties concerning the
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Premises except as may be specifically set forth in this Agreement. Lessee
acknowledges and agrees that Lessor shall not be deemed in default of this
Agreement as the result of the failure of Overlessor to perform the obligations
of Overlessor under the Prime Lease.
10. Lessee shall not make any improvements to the Premises without the
written consent of Lessor and Overlessor. Lessor's consent to any improvements
may be conditioned upon Overlessor's consent to such improvements.
11. In the event that Lessee desires to make structural alterations to the
Premises, Lessee shall provide to Lessor and Overlessor written certification
(the "Certification") from a structural engineer ("Lessee's Structural
Engineer"), duly licensed by the State of Florida, and reasonably insured as
determined by Overlessor, that Lessee's actual or proposed improvements to the
Premises and Lessee's actual or proposed placement of equipment in the Premises
shall be in accordance with (i) all governmental laws and regulations applicable
to the Courthouse Plaza building and (ii) all structural standards and
limitations of the Courthouse Plaza. The Certification shall include, without
limitation, a statement that Lessee's placement of equipment in the Premises
shall not be in excess of the Premises' ability to bear the load of such
equipment. Lessee shall not place a load upon any part or all of any floor of
the Premises exceeding the floor load per square foot for said part or all which
such floor was designed to carry and which is allowed by law. Lessee shall not
move any safe, heavy equipment, business machines, freight, bulky matter or
fixtures (collectively, "Heavy Items") into or out of the Premises without
Overlessor's prior consent (which consent shall not be unreasonably withheld or
delayed, provided Landlord receives a certification letter from Lessee's
Structural Engineer, general contractor or architect stating that such Heavy
Items shall not exceed the floor load capacity of the area of the Premises upon
which such item or items will be placed and Lessee complies with Overlessor's
reasonable requirements for weight distribution and movement of such items in
and out of the Premises), and if Landlord's consent is granted, then Lessee
shall only move such Heavy Items in accordance with Landlord's reasonable rules
and regulations therefor. If such Heavy Items require special handling, Lessee
shall employ only persons holding a Master Rigger's license to do such work.
12. Lessor shall allow Lessee to use all of Lessor's equipment within the
Premises identified in the inventory attached hereto as Exhibit "D" and made a
part hereof. Lessee acknowledges that such equipment is owned by Lessor and
Lessee has no ownership rights to such equipment. Gas, electricity and or other
fuel for, and cleaning, insurance, repairs, maintenance and replacement of this
or any equipment and appurtenances located on the Premises shall be the sole
responsibility of Lessee. Lessee hereby acknowledges acceptance of the equipment
in good working order, and warrants that Lessee shall maintain the equipment in
good working order throughout the term of this Agreement and that Lessee shall
return the equipment in good working order at the termination of this Agreement,
reasonable wear and tear excepted with regard to the time period of utilization.
13. Lessee agrees that Lessor may continue to maintain on the premises,
without charge, cost, rent or payment to Lessee of any kind, for the term of
this Agreement, in Lessor's discretion, the equipment (the "Lessor's Equipment")
owned by Lessor identified in Exhibit "E" attached hereto and made a part
hereof. For the purpose of maintaining the Lessor's Equipment, Lessor shall be
permitted access to the Premises and to the Lessor's Equipment during regular
business hours and during non-regular business hours for emergency purposes.
Lessee shall, at Lessee's sole cost and expense, provide AC/DC power connected
to an uninterrupted power supply (UPS), as needed, to the Lessor's Equipment,
adequate HVAC and access to cross-connect facilities to MFS, Teleport and other
comparable facilities as installed.
14. Lessee shall not assign this Agreement or sublet all or any portion of
the Premises without the prior written consent of both Lessor and Overlessor,
which consent shall not be unreasonably withheld as set forth in Section 13 of
the Prime Lease.
15. In the event of a casualty, condemnation or other event described in
the Prime Lease wherein Lessor would have the right to terminate the Prime
Lease, Lessor shall have the right to terminate the Prime Lease without
liability to Lessee and in the event of any such termination, this Agreement
shall terminate effective as of the effective termination date of the Prime
Lease.
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16. Lessee shall indemnify, defend and hold harmless Lessor and Overlessor,
their respective subsidiaries, affiliates, officers, directors, shareholders,
partners, employees, managers, independent contractors, attorneys and agents
from and against any and all claims, demands, causes of action, judgments, costs
and expenses, and all losses and damages arising from or related to (i) any act
or omission of Lessee, its employees, agents, invitees or licensees, which
causes, directly or indirectly, a breach of the Prime Lease, or (ii) Lessee's
breach of this Agreement.
17. All prior understandings and agreements between the parties are merged
within this Agreement, which alone fully and completely sets forth the
understanding of the parties; and this Agreement may not be changed or
terminated orally or in any manner other than by an agreement in writing and
signed by the party against whom enforcement of the charge or termination is
sought. Notwithstanding anything contained herein to the contrary, the Prior
Lease shall remain in full force and effect.
18. Any notice or demand which either party may or must give to the other
hereunder shall be in writing and delivered personally or sent by registered
mail addressed, if to Lessor, as follows:
TotalTel Florida, Inc.
000 Xxxxx Xxxx, 0xx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxx, Vice President of
Administration
and if to Lessee, as follows:
Axistel Global Network Services Inc.
Xxx Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Contracts Administrator
Either party may, by notice in writing, direct that future notices or
demands be sent to a different address.
19. In the event of any conflict between the provisions of this Agreement
and the provisions of the Prime Lease, the provisions of the Prime Lease shall
prevail.
20. The covenants and agreements herein contained shall bind and inure to
the benefit of Lessor, the Lessee, and their respective successors and assigns.
21. This Agreement shall be effective as of the date Overlessor executes
the Overlessor's Consent attached to and incorporated into this Agreement.
[The remainder of this page is intentionally left blank. Signatures are on the
following page.]
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written.
LESSOR:
TOTALTEL FLORIDA, INC., a New Jersey
corporation
By: /s/ XXXXXX X. XXXXXXX
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Print Name: Print Name: Xxxxxx X. Xxxxxxx
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Title: Treasurer/Secretary
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Print Name:
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LESSEE:
AXISTEL GLOBAL NETWORK
SERVICES INC., a Delaware corporation
By: /s/ XXX XXXXXX
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Print Name: Print Name: Xxx Xxxxxx
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Title: CEO
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Print Name:
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EXHIBIT "A"
PRIME LEASE
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 lst day of February, 1998 and terminating on
the 31st 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.
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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.
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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 years 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 leaseable 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.
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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 as 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.
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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
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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.
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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.
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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
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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
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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 not 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 of 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 placed 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.
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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.
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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 xxx 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.
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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 premiums 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
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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
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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
learned 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
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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.
39. 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
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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.
17
23
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,
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24
New York 10022, 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 5th day of February, 1998.
Signed, Sealed and Delivered TENANT:
in the Presence of: TOTALTEL FLORIDA, INC.,
a New Jersey Corporation
/s/ [ILLEGIBLE] By: /s/ XXXXXX X. XXXXXXX
------------------------------ ------------------------------
Authorized Agent
Xxxxxx X. Xxxxxxx
/s/ [ILLEGIBLE]
------------------------------
Executed by LANDLORD this 6th day of February, 1998.
Signed, Sealed and Delivered LANDLORD:
in the Presence of: MOSTA CORPORATION, a Florida
Corporation
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE], Mgr.
------------------------------ ------------------------------
Authorized Agent
[ILLEGIBLE], Mgr.
/s/ [ILLEGIBLE]
------------------------------
19
25
EXHIBIT "B"
INTENTIONALLY OMITTED
26
EXHIBIT "C"
OVERLESSOR'S CONSENT
THE UNDERSIGNED, 28 PARTNERS LTD., a Florida limited partnership (the
"Overlessor"), as successor-in-interest to Mosta Corporation, Inc., a Florida
corporation, executes this Overlessor's Consent (this "Consent") to be effective
simultaneous with the full execution of that certain Sublease Agreement (the
"Agreement") which is attached hereto as Exhibit "A," between TOTALTEL FLORIDA,
INC., a New Jersey corporation (the "Lessor"), and AXISTEL GLOBAL NETWORK
SERVICES INC., a Delaware corporation (the "Lessee").
W I T N E S S E T H:
WHEREAS, Overlessor, as lessor, and Lessor, as lessee, entered into
that certain Lease Agreement dated February 6, 1998 (the "Prime Lease"), whereby
Lessor leased from Overlessor certain premises consisting of approximately
4,959 square feet on the Penthouse floor of the building commonly known as the
"Courthouse Plaza" located at 00 X. Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxx (the
"Premises"); and
WHEREAS, as a condition to entering into the Agreement and as required
by the Prime Lease, Lessee has requested that Lessor cause Overlessor to execute
this Overlessor's Consent and that Overlessor, upon Lessor's payment of valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, has
agreed to do so; and
WHEREAS, Lessee is, simultaneously with its execution of the Agreement,
providing to Overlessor a cashier's check in the amount of $53,309.28 (the
"Security Deposit") to be used as set forth in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Overlessor hereby consents to the
Agreement and agrees to hold and use the Security Deposit as set forth in
Section 8 of the Agreement. Overlessor further confirms that the Prime Lease has
not been amended, modified, extended or renewed, whether verbally or in writing.
To the best of Overlessor's knowledge, no default on the part of Overlessor or
Lessor exists as of the date hereof under the Prime Lease, and no circumstances
or state of facts exist which would give Overlessor the right to declare Lessor
in default under same. Overlessor further agrees that in the event of any
default by Lessor under the terms of the Prime Lease, Overlessor hereby agrees
to deliver to Lessor and Lessee written notice of such default.
IN WITNESS WHEREOF, Overlessor has executed this Overlessor's Consent
as of this 18th day of February, 2000.
OVERLESSOR:
28 PARTNERS LTD., a Florida limited
partnership
By: Flagler 28, Inc., a Florida
/s/ [ILLEGIBLE] corporation, its general partner
----------------------------------
Print Name: [ILLEGIBLE]
/s/ XXXXXXX X. XXXXXXX
---------------------------------- By: /s/ XXXXXXX XXXXXX
Print Name: Xxxxxxx X. Xxxxxxx ----------------------------
--------------------- Name: Xxxxxxx Xxxxxx
Title: Vice President
C-1
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EXHIBIT "D"
LEASED EQUIPMENT
GENERATOR: 1-ONAN 250
1-ONAN TRANSFER SWITCH
RECTIFIERS: 6-ITT PEC3874 200 amp
4-LORAIN RHM400 D50 400 amp
BATTERIES: 48-EXIDE GU 21 2020 amp hours WET CELL
AIR CONDITIONERS: 0-00 XXX
0-0 XXX
XXXXX: 3 Separate Units in three areas
28
EXHIBIT "B"
LESSOR'S EQUIPMENT
Located in the Switch Room of the Premises
Two (2) 23" lockable cabinets containing two (2) racks
Transmission Room
Three (3) racks containing fiber provided by Xxxx, TCG and MFS
