1
EXHIBIT 10.6
OFFICE LEASE
Palm Beach County, Florida
THIS OFFICE LEASE ("Lease"), made this the 13TH day of AUGUST, 1998, by
and between HIGHWOODS/FLORIDA HOLDINGS, L.P., a Delaware limited partnership,
hereinafter "Landlord" and hereinafter, ONLINE TRADING, INC., a Florida
corporation, hereinafter "Tenant":
W I T N E S S E T H :
Upon the terms and conditions hereinafter set forth, Landlord leases to
Tenant and Tenant leases from Landlord property referred to as the Premises, all
as follows:
1. PREMISES. The property hereby leased to Tenant is that area shown on
EXHIBIT A hereto attached, which consists of approximately 6,747 rentable square
feet, in Suite 200, (THE "PREMISES") which is located in what is sometimes
called the HIGHWOODS SQUARE III BUILDING (THE "BUILDING"), located at, 0000 X.
XXXXXXXX XXXXX Xxxx Xxxxx, Xxxx Xxxxx Xxxxxx, Xxxxxxx (THE "PREMISES"). The
Building is one of three buildings comprising an office project known as
HIGHWOODS SQUARE (THE "PROJECT") consisting of a total of 242,337 RENTABLE
SQUARE FEET.
The usable area of the Premises, 5,918 square feet, shall be
multiplied by the core area factor of 1.14, OR ACTUAL PER BOMA STANDARD OF
MEASUREMENT, WHICHEVER IS LESS, to determine the rentable square footage as
referred to above. Tenant hereby acknowledges and agrees that Base Rent, as
defined in PARAGRAPH 4, shall be computed based on the RENTABLE square footage
of the Premises, NOT THE USABLE square footage of the Premises. Tenant hereby
waives any right to assert any claim or to institute any litigation or other
legal proceedings against Landlord in which Tenant alleges that Landlord agreed
to calculate Base Rent for the Premises based upon the usable square footage of
the Premises. The foregoing waiver by Tenant has been made as a condition
precedent and material inducement to Landlord's agreement to enter into this
Lease.
2. TERM. The term of this Lease ("Lease Term") is for 96 months, and
shall commence FIVE (5) DAYS AFTER THE LATER TO OCCUR OF (a) COMPLETION OF THE
BUILDING, OR (b) SUBSTANTIAL COMPLETION OF THE TENANT IMPROVEMENTS, WHICH SHALL
BE EVIDENCED BY THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY BY THE CITY OF BOCA
RATON. TENANT ACKNOWLEDGES THAT THE BUILDING IS PRESENTLY UNDER CONSTRUCTION.
LANDLORD ANTICIPATES (a) THAT IT WILL BE READY TO COMMENCE CONSTRUCTION OF
TENANT IMPROVEMENTS, BY SEPTEMBER 30, 1998, AND (b) THAT CONSTRUCTION OF THE
BUILDING WILL BE COMPLETE BY OCTOBER 31, 1998, ("Commencement Date"), and shall
expire (unless sooner terminated or extended as herein provided) at noon
on ____________ ("Expiration Date").
If Landlord, for any reason whatsoever, cannot deliver possession of
the Premises to Tenant on the Commencement Date, this Lease shall not be void or
voidable, no obligation of Tenant shall be affected thereby, and neither
Landlord nor Landlord's agents shall be liable to Tenant for any loss or damage
resulting from the delay in delivery of possession; provided, however, that in
such event, the Commencement Date and Expiration Date of this Lease, and all
other dates that may be affected by their change, shall be revised to conform to
the date of Landlord's delivery of possession to Tenant. The above, however, is
subject to the provision that the period permitted for the delay of delivery of
possession of the Premises shall not exceed sixty (60) days from the
Commencement Date set forth in the first sentence of this PARAGRAPH 2 (except
that those delays beyond Landlord's control or caused by Tenant ("Delays") shall
be excluded in calculating such period). If Landlord does not deliver possession
to Tenant within such period, Tenant may terminate this Lease by written notice
to Landlord; provided, that written notice shall be ineffective if given after
Tenant takes possession of any part of the Premises, or if given more than
seventy (70) days after the original Commencement Date plus the time of any
Delays. Unless expressly otherwise provided herein, Rent shall commence on the
earlier of: (a) the Commencement Date; (b) occupancy of the Premises by Tenant;
(c) the date Landlord has the Premises ready for occupancy by Tenant, as such
date is adjusted under the Work Letter, if any, attached hereto; or (d) the date
Landlord could have had them ready had there been no Delays attributable to
Tenant. Unless the context otherwise so requires, the term "Rent" as used herein
includes both Base Rent and Additional Rent as set forth in PARAGRAPHS 4 AND 5.
2
If the Expiration Date, as determined herein, does not occur on the
last day of a calendar month, Landlord, at its option, may extend the Lease Term
by the number of days necessary to cause the Expiration Date to occur on the
last day of the last calendar month of the Lease Term. Tenant shall pay Base
Rent and Additional Rent for such additional days at the same rate payable for
the portion of the last calendar month immediately preceding such extension. The
Commencement Date, Lease Term (including any extension by Landlord pursuant to
this PARAGRAPH 2) and the Expiration Date shall be set forth in a Commencement
Letter or Commencement Agreement prepared by Landlord and executed by Tenant in
accordance with the provisions of this PARAGRAPH 2.
3. USE. The Premises may be used only for general office purposes in
connection with Tenant's present business. Tenant's Premises shall be occupied
for no other use without Landlord's prior written consent. Tenant shall never
make any use of the Premises which is in violation of any governmental laws,
rules or regulations, whether now existing or hereafter enacted, nor may Tenant
make any use of the Premises not permitted, or otherwise prohibited, by any
restrictive covenants which apply to the Premises. Tenant may not make any use
which is or may be a nuisance or trespass, which increases any insurance
premiums, or makes such insurance unavailable to Landlord on the Building. In
the event of an increase in any of Landlord's insurance premiums which results
from Tenant's use or occupancy of the Premises, if Tenant does not pay Landlord,
on demand, the amount of such increase, Landlord may treat such use as a default
hereunder.
4. BASE RENT. All Rent payable by Tenant shall be without previous
demand or notice therefor by Landlord and without set off or deduction. The base
rent for the Term shall be the sum of $1,079,317.59 ("Base Rent"), which shall
be payable in equal monthly installments of $9,839.38 for the first twelve
months, payable in advance on or before the first day of each calendar month
during the Term of this Lease, unless the Term commences on a day other than the
first day of a calendar month, in which event prorated Rent at the above rate
until the end of the month in which the Lease Term commences shall be due and
payable on the Commencement Date. In addition to such remedies as may be
provided under the default provisions of this Lease, Landlord shall be entitled
to a late charge of five percent (5%) of the amount of each monthly Rent payment
and any other charges not received by the fifth day of the month when due, and a
charge of the lower of a lawful bad check fee or five percent (5%) of the amount
of any check given by Tenant not paid when first presented by Landlord.
On the first anniversary of the Commencement Date and on each
anniversary thereafter for the first five (5) years of the Lease Term, the
amount of Base Rent shall be increased as follows: by multiplying the Base Rent
for the previous Lease Year by One Hundred Four Percent (104%). The Base Rent
for the final three (3) years of the Lease Term will be increased as follows: by
multiplying the Base Rent for the previous Lease Year by One Hundred Three
(103%). Such increased amount shall then be the Base Rent for that Lease Year.
"Lease Year" as used herein shall mean each twelve (12) month period commencing
on the Commencement Date or any anniversary thereof; provided that, if the
Commencement Date is other than the first day of a calendar month, then the
first Lease Year shall include such partial month together with the next
succeeding twelve (12) months, and each succeeding Lease Year shall begin on the
first day of the calendar month that corresponds to the month following the
Commencement Date.
5. ADDITIONAL RENT; INDEPENDENT COVENANTS.
(1) PAYMENT OF ADDITIONAL RENT. Landlord shall notify Tenant in
writing, giving calculations, if reasonably necessary, of the amount of
Additional Rent (as defined below) payable by Tenant, which Additional Rent
shall be payable monthly at the same time as, and in addition to, the Base Rent.
Tenant shall pay as Additional Rent any sales or use tax imposed on rents
collected by Landlord or any tax on rents in lieu of ad valorem taxes on the
Building, even though laws imposing such taxes attempt to require Landlord to
pay the same. If any such sales or use tax shall be imposed upon Landlord, and
Landlord shall be prohibited by applicable law from collecting the amount of
such tax from Tenant as Additional Rent, then Landlord, upon sixty (60) days
prior written notice to Tenant, may terminate this Lease, unless Tenant legally
can and does in fact reimburse Landlord for such tax.
2
3
(2) TENANT'S PROPORTIONATE SHARE OF DIRECT EXPENSE PASSTHROUGHS.
Tenant further shall pay as Additional Rent, which Additional Rent shall be
payable at the same time as, and in addition to, the Base Rent, Tenant's
Proportionate Share (hereafter defined) of all of Landlord's Direct Expenses
(hereinafter defined) as set forth on Lease Addendum No. 1 attached to this
Lease. TENANT'S PROPORTIONATE SHARE SHALL BE DETERMINED BY MULTIPLYING THE TOTAL
COST OF THE DIRECT EXPENSES BY A FRACTION, THE NUMERATOR OF WHICH IS THE
RENTABLE SQUARE FOOTAGE OF THE PREMISES, AND THE DENOMINATOR WHICH IS EQUAL TO
THE GREATER OF (i) THE RENTABLE SQUARE FOOTAGE OF THE PROJECT WHICH IS THEN
LEASED TO ALL TENANTS OF THE PROJECT, OR (ii) 95% OF THE TOTAL RENTABLE SQUARE
FOOTAGE IN THE PROJECT.
(3) DEFINITION OF ADDITIONAL RENT. The term "Additional Rent" as
used throughout this Lease shall mean all sums and charges other than Base Rent
due or payable by Tenant under this Lease.
(4) TENANT'S INDEPENDENT COVENANTS. Tenant's obligation to pay Rent
under this Lease is completely separate from and independent of any of
Landlord's obligations under this Lease.
6. SERVICES BY LANDLORD. Provided that Tenant is not then in default,
Landlord shall cause to be furnished to the Premises, in common with other
tenants, during business hours of 8:00 A.M. to 6:00 P.M., Monday through Friday
(excluding national and state holidays), the following services: janitorial
services (once per working day after normal working hours), water (if available
from city mains) for drinking, lavatory and toilet purposes, operator less
elevator service and heating and air conditioning for the reasonably comfortable
use and occupancy of the Premises, provided heating and cooling conforming to
any governmental regulation prescribing limitations thereon shall be deemed to
comply with this service. Landlord shall furnish the Premises with electricity
for the maintenance of building standard fluorescent lighting composed of 2' x
4' fixtures. Incandescent fixtures, table lamps, all lighting other than the
aforesaid building standard fluorescent light, dimmers and all lighting controls
other than controls for the aforesaid building standard fluorescent lighting
shall be serviced, replaced and maintained at Tenant's expense. Landlord shall
also furnish the Premises with electricity for lighting for the aforesaid
building standard fluorescent lighting and for the operation of general office
machines, such as electric typewriters, desk top computers, word processing
equipment, dictating equipment, adding machines and calculators, and general
service non-production type office copy machines. Landlord shall have the right
to enter and inspect the Premises and all electrical devices therein from time
to time. All additional costs resulting from Tenant's extraordinary usage of
heating, air conditioning or electricity shall be paid by Tenant upon demand as
Additional Rent for each month or portion thereof, and Tenant shall not install
equipment with unusual demands for any of the foregoing without Landlord's prior
written consent, which Landlord may withhold if it determines that in its
opinion such equipment may not be safely used in the Premises or that electrical
service is not adequate therefor. If heat generating machines or equipment shall
be used in the Premises by Tenant which affect the temperature otherwise
maintained by the heating and air conditioning system, Landlord shall have the
right to install supplemental air conditioning units in the Premises and the
cost thereof, including the cost of engineering and installation, and the cost
of operation and maintenance thereof, shall be paid by Tenant upon demand by
Landlord. Landlord shall further provide a reasonable pro rata amount of
unreserved free parking, in common with the other tenants, for Tenant's
employees and visitors.
So long as Landlord acts reasonably and in good faith, there shall
be no abatement or reduction of Rent by reason of any of the foregoing services
not being continuously provided to Tenant.
Tenant shall report immediately to Landlord any defective condition
in or about the Premises known to Tenant and if such defect is not so reported
and such failure to promptly report results in other damage, Tenant shall be
liable for same. Landlord shall not be liable to Tenant for any damage caused to
Tenant and its property due to the Building or any part or appurtenance thereof
being improperly constructed or being or becoming out of repair, or arising from
the leaking of gas, water, sewer or steam pipes, or from electricity.
3
4
7. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES; LIENS; LANDLORD'S
DUTIES AND RIGHTS. Tenant's occupancy of the Premises is Tenant's representation
to Landlord that it has examined and inspected the same, finds the Premises to
be as represented by Landlord and satisfactory for Tenant's intended use, and
constitutes Tenant's acceptance "as is," "where is" and with all faults.
Landlord makes no representation or warranty as to the condition of said
Premises. During Tenant move-in, the representative of the Tenant must be
on-site with any moving company to insure proper treatment of the Premises.
Elevators and multi-story office buildings must remain in use for the general
public during business hours. Any specialized use of elevators must be
coordinated with the Landlord's Property Manager. All packing material and
refuse must be properly disposed of. Any damage or destruction due to moving
will be the sole responsibility of the Tenant. Tenant shall deliver at the end
of this Lease each and every part of the Premises in good repair and condition,
ordinary wear and tear and damage by insured casualty excepted. The delivery of
key or other such tender of possession of the Premises to Landlord or to an
employee of Landlord shall not operate as a termination of this Lease or a
surrender of the Premises except upon written notice by Landlord. Tenant shall:
(a) keep the Premises and fixtures in good order; (b) make repairs and
replacements to the Premises or Building needed because of Tenant's misuse or
primary negligence; (C) repair and replace special equipment or decorative
treatments above Building standard installed by or at Tenant's request and that
serve the Premises only, except (A) to the extent the repairs or replacements
are needed because of Landlord's misuse or primary negligence, which are not
covered by Tenant's insurance, or the insurance Tenant is required to carry
under this Lease, whichever coverage is greater, or (B) if this Lease is ended
because of casualty loss or condemnation; and (d) not commit waste. Tenant,
however, shall make no structural or interior alterations of the Premises. If
Tenant requires alterations, Tenant shall provide Landlord's managing agent with
a complete set of construction drawings, and such agent shall then determine the
actual cost of the work to be done (to include a construction supervision fee of
5% to be paid to Landlord's managing agent). Tenant may then either agree to pay
Landlord to have the work done or withdraw its request for alterations. If
requested by Landlord on termination of this Lease or vacation of the Premises
by Tenant, Tenant shall restore the Premises, at Tenant's sole expense, to the
same condition as existed at the commencement of the Lease Term, ordinary wear
and tear and damage by insured casualty only excepted. Landlord, however, may
elect to require Tenant to leave alterations performed for Tenant unless at the
time of such alterations Landlord agreed in writing they could be removed on
expiration of this Lease.
Except for repairs and replacements that Tenant must make
under this XXXXXXXXX 0, Xxxxxxxx shall pay for and make all other repairs and
replacements to the Premises, common areas and Building (including Building
fixtures and equipment).
Tenant shall keep the Premises and the Building free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by or on behalf of Tenant. Should any claim of lien or other lien be
filed against the Premises or the Building by reason of any act or omission of
Tenant or any of Tenant's agents, employees, contractors or representatives,
Tenant shall cause the same to be canceled and discharged of record by bond or
otherwise within ten (10) days after the filing thereof. Should Tenant fail to
discharge such lien within such ten (10) day period, Landlord may discharge the
same, in which event Tenant shall reimburse Landlord, on demand, as Additional
Rent, for the amount of the lien or the amount of the bond, if greater, plus all
administrative costs incurred by Landlord in connection therewith. The remedies
provided herein shall be in addition to all other remedies available to Landlord
under this Lease or otherwise.
Tenant shall have no power to do any act or make any contract
which may create or be the foundation of any lien, mortgage or other encumbrance
upon the reversionary or other estate of Landlord, or any interest of Landlord
in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR AFFECT THE INTEREST OF
LANDLORD IN AND TO THE PREMISES OR THE BUILDING.
Except for non-standard items installed for Tenant's sole use,
Landlord shall make the repairs and replacements to maintain the Building in a
condition comparable to other first class office buildings in the Metropolitan
area where the Premises are located. This maintenance shall
4
5
include the roof, foundation, exterior walls, interior structural walls, all
structural components, and all exterior (outside of walls) systems, such as
mechanical, electrical, HVAC, and plumbing. Repairs or replacements required
under this PARAGRAPH 7 shall be made within a reasonable time (depending on the
nature of the repair or replacement needed) after receiving notice from Tenant
or having actual knowledge of the need for a repair or replacement.
Notwithstanding anything to the contrary set forth above in
this PARAGRAPH 7, if Tenant does not perform its maintenance obligations in a
timely manner as set forth in this Lease, commencing the same within five (5)
days of receipt of notice from Landlord specifying the work needed and
thereafter diligently and continuously pursuing completion of unfulfilled
maintenance obligations, Landlord shall have the right, but not the obligation,
to perform such maintenance, and any amounts so expended by Landlord shall be
paid by Tenant to Landlord within thirty (30) days after demand, with interest
at the maximum rate allowed by law (or the rate of fifteen percent (15%) per
annum, whichever is less) from the date of expenditure through the date paid.
8. DAMAGES TO PREMISES. If the Premises shall be partially damaged by
fire or other casualty insured under Landlord's insurance policies, and if
Landlord's lender(s) shall permit insurance proceeds paid as a result thereof to
be so used, then upon receipt of the insurance proceeds, Landlord shall, except
as otherwise provided herein, promptly repair and restore the same (exclusive of
improvements made by Tenant, Tenant's trade fixtures, decorations, signs, and
contents) substantially to the condition thereof immediately prior to such
damage or destruction; limited, however, to the extent of the insurance proceeds
received by Landlord. If by reason of such occurrence: (a) the Premises are
rendered wholly untenantable; (b) the Premises are damaged in whole or in part
as a result of a risk which is not covered by Landlord's insurance policies; (c)
Landlord's lender does not permit a sufficient amount of the insurance proceeds
to be used for restoration purposes; (d) the Premises are damaged in whole or in
part during the last two years of the Lease Term; or (e) the building containing
the Premises is damaged (whether or not the Premises are damaged) to an extent
of fifty percent (50%) or more of the fair market value thereof, Landlord may
elect either to repair the damage as aforesaid, or to cancel this Lease by
written notice of cancellation given to Tenant within sixty (60) days after the
date of such occurrence, and thereupon this Lease shall terminate. Tenant shall
vacate and surrender the Premises to Landlord within fifteen (15) days after
receipt of such notice of termination. In addition, Tenant may also terminate
this Lease by written notice given to Landlord at any time between the one
hundred eighty-first (181st) and one hundred ninety-sixth (196th) days after the
occurrence of any such casualty, if Landlord has failed to restore the damaged
portions of the Building (including the Premises) within one hundred eighty
(180) days of such casualty. However, if Landlord is prevented by causes beyond
its reasonable control (including, without limitation, those encompassed in the
meaning of the term FORCE MAJEURE) ("Delays"), from completing the restoration
within said one hundred eighty (180) day period, and if Landlord provides Tenant
with written notice of such cause for delay within fifteen (15) days of the
occurrence thereof, said notice to contain the reason for delay and a good faith
estimate of the period of the delay caused thereby, then Landlord shall have an
additional period beyond said one hundred eighty (180) days, equal to the Delays
in which to restore the damaged areas of the Building; and Tenant may not elect
to terminate this Lease until said additional period required for completion has
expired with the Building not having been substantially restored. In such case,
Tenant's fifteen (15) day notice of termination period shall begin to run upon
the expiration of Landlord's additional period for restoration set forth in the
preceding sentence. Upon the termination of this Lease as aforesaid, Tenant's
liability for the Rent and other charges reserved hereunder shall cease as of
the effective date of the termination of this Lease, subject, however, to the
provisions for abatement of Rent hereinafter set forth.
Unless this Lease is terminated as aforesaid, this Lease shall
remain in full force and effect, and Tenant shall promptly repair, restore, or
replace Tenant's improvements, trade fixtures, decorations, signs, and contents
in the Premises in a manner and to at least a condition equal to that existing
prior to their damage or destruction, and the proceeds of all insurance carried
by Tenant on said property shall be held in trust by Tenant for the purposes of
such repair, restoration, or replacement.
If, by reason of such fire or other casualty, the Premises are
rendered wholly untenantable, the Rent and other charges payable by Tenant shall
be fully abated, or if only partially
5
6
damaged, such Rent and other charges shall be abated proportionately as to that
portion of the Premises rendered untenantable, in either event (unless the Lease
is terminated, as aforesaid) from the date of such casualty until the Premises
have been substantially repaired and restored, or until Tenant's business
operations are restored in the entire Premises, whichever shall first occur.
Tenant shall continue the operation of Tenant's business in the Premises or any
part thereof not so damaged during any such period to the extent reasonably
practicable from the standpoint of prudent business management. However, if such
damages or other casualty shall be caused by the negligence or other wrongful
conduct of Tenant or of Tenant's subtenants, licensees, contractors, or
invitees, or their respective agents or employees, there shall be no abatement
of Rent or other charges. Except for the abatement of the Rent and other charges
hereinabove set forth, Tenant shall not be entitled to, and hereby waives, all
claims against Landlord for any compensation or damage for loss of use of the
whole or any part of the Premises and/or for any inconvenience or annoyance
occasioned by any such damage, destruction, repair, or restoration.
9. ASSIGNMENT; SUBLEASE. Tenant may not assign or encumber this
Lease or its interest in the Premises arising under this Lease, and may not
sublet any part or all of the Premises without the written consent of Landlord
first had and obtained, which consent may not be unreasonably withheld. Any
assignment or sublease to which Landlord may consent (one consent not being any
basis that Landlord should grant any further consent) shall not relieve Tenant
of any or all of its obligations hereunder. For the purpose of this PARAGRAPH 9,
the word "assignment" shall be defined and deemed to include the following: (i)
if Tenant is a partnership, the withdrawal or change, whether voluntary,
involuntary or by operation of law of partners owning thirty percent (30%) or
more of the partnership, or the dissolution of the partnership; (ii) if Tenant
consists of more than one person, an assignment, whether voluntary, involuntary,
or by operation of law, by one person to one of the other persons that is a
Tenant; (iii) if Tenant is a corporation, any dissolution or reorganization of
Tenant, or the sale or other transfer of a controlling percentage (hereafter
defined) of capital stock of Tenant other than to an affiliate or subsidiary or
the sale of fifty-one percent (51%) in value of the assets of Tenant; and (iv)
if Tenant is a limited liability company, the change of members whose interest
in the company is fifty percent (50%) or more. The phrase "controlling
percentage" means the ownership of, and the right to vote, stock possessing at
least fifty-one percent (51%) of the total combined voting power of all classes
of Tenant's capital stock issued, outstanding and entitled to vote for the
election of directors, or such lesser percentage as is required to provide
actual control over the affairs of the corporation. Acceptance of Rent by
Landlord after any non-permitted assignment shall not constitute approval
thereof by Landlord. Notwithstanding the foregoing provisions of this XXXXXXXXX
0, Xxxxxx may assign or sublease part or all of the Premises without Landlord's
consent to: (i) any corporation or partnership that controls, is controlled by,
or is under common control with, Tenant; (ii) any corporation resulting from the
merger or consolidation with Tenant or to any entity that acquires all of
Tenant's assets as a going concern of the business that is being conducted on
the Premises, as long as the assignee or sublessee is a bona fide entity and
assumes the obligations of Tenant, and continues the same use as permitted under
PARAGRAPH 3, or (iii) ANY INDIVIDUAL EMPLOYEE OR CUSTOMER ACTIVELY ENGAGED IN
TRADING SECURITIES WITHIN THE PREMISES. However, Landlord must be given prior
written notice of any such assignment or subletting, and failure to do so shall
be a default hereunder. Landlord will never consent to an assignment or sublease
that might result in a use that conflicts with the rights of an existing tenant.
Furthermore, LANDLORD SHALL NEVER BE OBLIGATED TO CONSENT TO AN ASSIGNMENT OR
SUBLEASE TO ANY PARTY WHICH IS THEN A TENANT OR A PROSPECTIVE TENANT OF
LANDLORD'S, OR ANY AFFILIATE OF LANDLORD, EITHER WITH RESPECT TO SPACE WITHIN
THE BUILDING PROJECT, OR WITH RESPECT TO SPACE WITHIN ANY OTHER PROPERTY OWNED
BY LANDLORD OR ANY AFFILIATE OF LANDLORD. A PROSPECTIVE TENANT IS ANY PARTY WITH
WHICH LANDLORD OR ANY AFFILIATE OF LANDLORD HAS BEEN IN CONTACT, EITHER VERBALLY
OR IN WRITING, PERTAINING TO THE POSSIBILITY OF SUCH PARTY'S LEASING SPACE FROM
LANDLORD OR ANY OF LANDLORD'S AFFILIATES.
In no event shall this Lease be assignable by operation of any law,
and Tenant's rights hereunder may not become, and shall not be listed by Tenant
as an asset under any bankruptcy, insolvency or reorganization proceedings.
Tenant is not, may not become, and shall never represent itself to be an agent
of Landlord, and Tenant acknowledges that Landlord's title is paramount, and
that it can do nothing to affect or impair Landlord's title.
6
7
If this Lease shall be assigned or the Premises or any portion
thereof sublet by Tenant at a rental that exceeds the rentals to be paid to
Landlord hereunder, attributable to the Premises or portion thereof so assigned
or sublet, then any such excess shall be paid over to Landlord by Tenant.
10. TENANT'S COMPLIANCE; INSURANCE REQUIREMENTS. Tenant shall comply
with all applicable laws, ordinances and regulations affecting the Premises, now
existing or hereafter adopted, including general rules and regulations for
tenants (a copy of the present rules are attached as EXHIBIT B) as may be
developed from time to time by Landlord effective as of the date delivered to
Tenant or posted on the Premises providing such rules are uniformly applicable
to all tenants in the Building.
Throughout the Term of this Lease, Tenant at its sole cost and
expense shall keep or cause to be kept for the mutual benefit of Landlord,
Landlord's managing agent, if any, and Tenant, public liability and property
damage insurance with combined single limit coverage of at least $1,500,000
(with appropriate cross-liability endorsements so showing), which policies
insure against all liability of Tenant, Tenant's authorized representatives, and
anyone for whom Tenant is responsible, arising out of and in connection with
Tenant's use of the Premises, and which shall insure Tenant's performance of the
indemnity provisions contained herein. Not more frequently than once every three
(3) years, Landlord may require the limits to be increased if in its reasonable
judgment (or that of its mortgagee) the coverage is insufficient. Tenant shall
also insure its personal property and fixtures located in the Premises and any
improvements made by Tenant for their full reasonable insurable value, and
Tenant shall neither have, nor make, any claim against Landlord for any loss or
damage to the same, regardless of the cause thereof.
Prior to taking possession of the Premises, and thereafter at least
ten (10) business days prior to the renewal dates thereof, Tenant shall deliver
to Landlord copies of original policies, or certificates thereof satisfactory to
Landlord, and a receipt for payment of the next year's premium. All such
policies shall be non-assessable and shall contain language to the extent
obtainable that: (a) any loss shall be payable notwithstanding any act or
negligence of Landlord or Tenant that might otherwise result in forfeiture of
the insurance, (b) that the policies are primary and non-contributing with any
insurance that Landlord may carry, and (c) that the policies cannot be canceled
or changed except after thirty (30) days' prior written notice to Landlord. If
Tenant fails to provide Landlord with insurance coverage and/or receipts as
required, Landlord may obtain such coverage and Tenant shall reimburse the cost
thereof on demand.
Anything in this Lease to the contrary notwithstanding, Landlord
hereby releases and waives unto Tenant (including all partners, stockholders,
officers, directors, employees and agents thereof), its successors and assigns,
and Tenant hereby releases and waives unto Landlord (including all partners,
stockholders, officers, directors, employees and agents thereof), its successors
and assigns, all rights to claim damages for any injury, loss, cost or damage to
persons or to the Premises or any other casualty, as long as the amount of which
injury, loss, cost or damage has been paid either to Landlord, Tenant, or any
other person, firm or corporation, under the terms of any fire, extended
coverage, public liability or other policy of insurance, to the extent such
releases or waivers are permitted under applicable law. All policies of
insurance carried or maintained pursuant to this Lease shall contain, or be
endorsed to contain, a provision whereby the insurer waives all rights of
subrogation against either Tenant or Landlord.
Subject to the terms of the preceding Paragraph, Tenant shall
indemnify and hold Landlord harmless from and against any and all claims arising
out of (a) Tenant's use of the Premises or any part thereof, (b) any activity,
work, or other thing done, permitted or suffered by Tenant in or about the
Premises or the Building, or any part thereof, (c) any breach or default by
Tenant in the performance of any of its obligations under this Lease, or (d) any
act or negligence of Tenant, or any officer, agent, employee, contractor,
servant, invitee or guest of Tenant; and in each case from and against any and
all damages, losses, liabilities, lawsuits, costs and expenses (including
attorneys' fees at all tribunal levels) arising in connection with any such
claim or claims as described in (a) through (d) above, or any action brought
thereon. If such action be brought against Landlord, Tenant upon notice from
Landlord shall defend the same through counsel selected by Tenant's insurer, or
other counsel acceptable to Landlord. Tenant assumes all risk of damage or loss
to its property or injury or death to persons in, on, or about the Premises,
from all causes except those for which the law
7
8
imposes liability on Landlord regardless of any attempted waiver thereof, and
Tenant hereby waives such claims in respect thereof against Landlord. The
provisions of this PARAGRAPH 10 shall survive the termination of this Lease.
Landlord shall keep the Building, including the improvements,
insured against damage and destruction by fire, earthquake, vandalism, and other
perils in the amount of the full replacement value of the Building, as the value
may exist from time to time. The insurance shall include an extended coverage
endorsement of the kind required by institutional lenders.
Each party shall keep its personal property and trade fixtures in
the Premises and Building insured with "all risks" insurance in an amount to
cover one hundred percent (100%) of the replacement cost of the property and
fixtures. Tenant shall also keep any non-Building-standard improvements made to
the Premises at Tenant's request insured to the same degree as Tenant's personal
property.
Tenant covenants during the Lease Term and such further time as
Tenant occupies any part of the Premises to keep all of Tenant's employees
working in the Premises covered by worker's compensation insurance and required
statutory amounts and to furnish Landlord with certificates thereof upon written
request. Tenant's insurance policies required by this Lease shall: (a) be issued
by insurance companies licensed to do business in the state of Florida with
general policyholder's ratings of at least A- and a financial rating of at least
X in the most current BEST'S INSURANCE REPORTS available on the commencement
date, or if the BEST'S ratings are changed or discontinued, the parties shall
agree to a comparable method of rating insurance companies; (b) name the
nonprocuring party as an additional insured as its interest may appear [other
landlords or tenants may be added as additional insureds in a blanket policy];
(c) provide that the insurance is not to be canceled oR materially changed in
the scope or amount of coverage unless thirty (30) days advance notice is given
to the nonprocuring party; (d) be primary policies, not contributing with, or in
excess of, the coverage that the other party may carry; (e) provide that any
loss shall be payable notwithstanding any act or negligence of Landlord or
Tenant which might result in a forfeiture thereunder of such insurance or the
amount of proceeds payable; (f) have no deductible unless Landlord accepts a
policy showing a reasonable deductible; (g) have contractual coverage
endorsements insuring indemnities under this Lease; and (h) be maintained during
the entire Lease Term and any extension terms.
11. SUBORDINATION; ATTORNMENT; LANDLORD FINANCING. Tenant agrees
that this Lease is automatically subordinate to any mortgage or deed of trust
heretofore or hereafter executed by Landlord covering the Premises. Tenant
agrees that this Lease will be either subordinate or superior to any mortgage
heretofore or hereafter executed by Landlord covering the Premises, depending on
the requirements of such mortgagee. Tenant within ten (10) days of request to do
so from Landlord or its mortgagee will execute such agreement making this Lease
superior or subordinate and containing such other agreements and covenants on
Tenant's part as Landlord's mortgagee may request, and will agree to attorn to
said mortgagee provided the mortgagee agrees not to disturb Tenant's possession
hereunder so long as Tenant is in compliance with this Lease. Further, Tenant
agrees to execute within five (5) days of request therefor, and as often as
requested, estoppel certificates confirming any factual matter requested therein
which is true and is within Tenant's knowledge regarding this Lease, the
Premises, or Tenant's use thereof, including, but not limited to date of
occupancy, expiration date of this Lease, the amount of Rent due and date to
which Rent is paid, whether or not Tenant has any defense or offsets to the
enforcement of this Lease or the Rent payable hereunder or knowledge of any
default or breach by Landlord, and that this Lease together with any
modifications or amendments is in full force and effect. Tenant shall attach to
such estoppel certificate copies of all modifications or amendments.
Tenant agrees to give any mortgagee of Landlord which has provided a
non-disturbance agreement to Tenant, notice of, and a reasonable opportunity
(which shall in no event be less than thirty (30) days after written notice
thereof is delivered to mortgagee as herein provided) to cure, any Landlord
default hereunder; and Tenant agrees to accept such cure if effected by such
mortgagee. No termination of this Lease by Tenant shall be effective until such
notice has been given and the cure period has expired without the default having
been cured. Further Tenant agrees to permit such mortgagee (or other purchaser
at any foreclosure sale), and its successors and
8
9
assigns, on acquiring Landlord's interest in the Premises and the Lease, to
become substitute Landlord hereunder, with liability only for such Landlord
obligations as accrue after Landlord's interest is so acquired. Tenant agrees to
attorn to any successor Landlord.
12. SIGNS. Tenant may not erect, install or display any sign or
advertising material upon the Building exterior, the exterior of the Premises,
or the exterior walls thereof, or in any window therein, without the prior
written consent of Landlord. Landlord shall furnish, install and maintain a
building standard directory at a location in or near the lobby and Building
standard suite signage, at Tenant's expense. TENANT MAY AT TENANT'S EXPENSE
UTILIZE ONE SPACE FOR SIGNAGE IDENTIFICATION ON ANY MARQUE SIGNAGE WHICH
LANDLORD MAY INSTALL IN THE GROUND NEAR THE BUILDING ENTRANCE. LANDLORD WILL
DETERMINE WHERE SUCH SIGNAGE WILL BE PLACED.
13. ACCESS TO PREMISES. Landlord shall have the right, at all
reasonable times, either itself or through its authorized agents, to enter the
Premises (i) to make repairs, alterations or changes as Landlord deems
necessary, (ii) to inspect the Premises, and (iii) to show the Premises to
prospective mortgagees and purchasers. Landlord shall have the right, either
itself or through its authorized agents, to enter the Premises at all reasonable
times for inspection to show prospective tenants if within one hundred eighty
(180) days of the termination date as extended by any exercised option, to allow
inspection by mortgagees, and to make such repairs, alterations or changes as
Landlord deems necessary. Tenant, its agents, employees, invitees, and guests,
shall have the right of ingress and egress to common and public areas of the
Building, provided Landlord by reasonable regulation may control such access for
the comfort, convenience, safety and protection of all tenants in the Building,
or as needed for making repairs and alterations.
14. DEFAULT; REMEDIES; TENANT WAIVERS. If Tenant: (i) fails to pay
when due any Rent, or any other sum of money which Tenant is obligated to pay,
and such breach shall continue and not be remedied within five (5) days after
Landlord shall have given Tenant written notice specifying the breach, then
Tenant shall be in default as provided in this Lease; or (ii) breaches any other
agreement, covenant or obligation herein set forth and such breach shall
continue and not be remedied within fifteen (15) days after Landlord shall have
given Tenant written notice specifying the breach, or if such breach cannot,
with due diligence, be cured within said period of fifteen (15) days and Tenant
does not within said fifteen (15) day period commence and thereafter with
reasonable diligence completely cure the breach within thirty (30) days after
notice; or (iii) files (or has filed against it and not stayed or vacated within
sixty (60) days after filing) any petition or action for relief under any
creditor's law (including bankruptcy, reorganization, or similar action), either
in state or federal court; or (iv) makes any transfer in fraud of creditors as
defined in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (11 U.S.C. 548, as
amended or replaced) ("Code"), has a receiver appointed for its assets (and
appointment shall not have been stayed or vacated within thirty (30) days), or
makes an assignment for benefit of creditors; then Tenant shall be in default
hereunder, and, in addition to any other lawful right or remedy which it may
have, Landlord may, at its option, in addition to such other remedies as may be
available under Florida law: (x) terminate this Lease and Tenant's right of
possession; or (y) terminate Tenant's right to possession but not this Lease
and/or proceed in accordance with any and all of the following remedies:
(1) Landlord may, without further notice, re-enter the Premises in
accordance with applicable law and dispossess Tenant by summary proceedings or
otherwise, as well as the legal representative(s) of Tenant and/or other
occupant(s) of the Premises, and remove their effects and hold the Premises as
if this Lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end; and/or
at Landlord's option,
(2) All Base Rent and all Additional Rent for the balance of the
Lease Term will, at the election of Landlord, be accelerated and the present
worth of same (as reasonably determined by Landlord) for the balance of the
Lease Term, net of amounts actually collected by Landlord, shall become
immediately due thereupon and be paid, together with all expenses of every
nature which Landlord may incur such as (by way of illustration and not
limitation) those for attorneys' fees, brokerage, advertising, and refurbishing
the Premises in good order or preparing them for re-rental; and/or at Landlord's
option,
(3) Landlord may re-let the Premises, or any part thereof, either in
the name of Landlord or otherwise, for a term or terms which may at Landlord's
option be less than or exceed the period which would otherwise have constituted
the balance of the Lease Term, and may grant
9
10
concessions or free rent or charge a higher rental than that reserved in this
Lease; provided, however, Landlord shall have no obligation to re-let the
Premises, or any part thereof, and shall in no event be liable for failure to
re-let the Premises, or any part thereof, or, in the event of any such
re-letting, for refusal or failure to collect any rent due upon such re-letting,
and no such refusal or failure shall operate to release Tenant of any liability
under this Lease or otherwise to effect or reduce any such liability; and/or at
Landlord's option,
(4) Tenant or its legal representative(s) will also pay to Landlord
as agreed upon damages, in addition to such other damages that Landlord may be
legally entitled to, any deficiency between the Base Rent and all Additional
Rent hereby charged and/or agreed to be paid and the net amount, if any, of the
rents collected on account of this Lease or leases of the Premises for each
month of the period which would otherwise have constituted the balance of the
Lease Term.
All rights and remedies of Landlord are cumulative, and the exercise
of any one shall not be an election excluding Landlord at any other time from
exercise of a different or inconsistent remedy. No exercise by Landlord of any
right or remedy granted herein shall constitute or effect a termination of this
Lease unless Landlord shall so elect by written notice delivered to Tenant.
The failure of Landlord to exercise its rights in connection with
this Lease or any breach or violation of any term, covenant or condition or any
subsequent breach of the same or any other term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
or any subsequent breach of the same or any other covenant or condition herein
contained.
No acceptance by Landlord of a lesser sum than Base Rent,
administrative charges, Additional Rent and other sums then due shall be deemed
to be other than on account of the earliest installment of such payments due,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such installment or pursue any other remedy provided in this
Lease. In addition, no payments of money by Tenant to Landlord after the
expiration or termination of this Lease after the giving of any notice by
Landlord to Tenant shall reinstate or extend the Lease Term, or make ineffective
any notice given to Tenant prior to the payment of such money. After the service
of notice or the commencement of a suit, or after final judgment granting
Landlord possession of the Premises, Landlord may receive and collect any sums
due under this Lease, and the payment thereof shall not make ineffective any
notice, or in any manner affect any pending suit or any judgment previously
obtained.
15. PROPERTY OF TENANT. Tenant shall timely pay any and all taxes
levied or assessed against or upon Tenant's equipment, fixtures, furniture,
leasehold improvements and personal property located in the Premises. Tenant (if
not in default hereunder), prior to the Expiration Date may remove all fixtures
and equipment which it has placed in the Premises, provided Tenant repairs all
damages caused by such removal. If Tenant does not remove its property from the
Premises upon termination (for whatever cause) of this Lease, such property
shall be deemed abandoned by Tenant, and Landlord may dispose of the same in
whatever manner Landlord may elect without any liability to Tenant.
16. SECURITY AGREEMENT. In addition to, but not lieu of, any
statutory lien which Landlord has under Florida law, including under Section
83.08, Florida Statutes, Tenant hereby grants to Landlord and Landlord shall
have at all times, a valid first priority security interest, to secure payment
of all sums of money due and payable under this Lease from Tenant and to secure
payment of any damages or loss which Landlord may suffer by reason of the breach
by Tenant of any term, covenant, or condition contained herein, in and to all
goods, inventory, equipment, fixtures, and all other tangible and intangible
personal property owned by Tenant and all insurance proceeds of or relating to
any of the foregoing (collectively, "Personal Property") presently or hereafter
situated in or about the Premises, and all proceeds therefrom, and such Personal
Property shall not be removed therefrom without the consent of Landlord until
all arrearages in Base Rent and any Additional Rent then due and payable to
Landlord under this Lease shall first have been paid and discharged and all the
provisions of this Lease have been fully complied with by Tenant. If Tenant
shall default under this Lease, or is no longer in possession of the Premises
for any reason,
10
11
then Landlord may, in addition to any other remedies provided in this Lease or
allowed at law or in equity, all of which are cumulative, enter upon the
Premises and take possession of any and all of the Personal Property, without
liability for trespass or conversion, and sell the same at public or private
sale, with or without having such property at the sale, after giving Tenant
reasonable notice of the time and place of any public sale or of the time after
which any private sale is to be made, at which sale the Landlord or its assigns
may purchase such Personal Property unless otherwise prohibited by law. The
requirement of reasonable notice shall be met if such notice is given in the
manner prescribed in this Lease at least five (5) days before the date of the
sale. The proceeds from any such disposition of the Personal Property, less all
expenses incurred in connection with the taking of possession, holding, and
selling of the Personal Property (including, without limitation, reasonable
attorneys' fees and disbursements ) shall be applied as a credit against the
indebtedness secured by this security interest. Any surplus shall be paid to
Tenant or as otherwise required by law, and Tenant shall pay any deficiencies
forthwith. Although title to all of the Personal Property shall be in Tenant,
none of such property or any right or interest therein or thereto shall be
conveyed, transferred, assigned, mortgaged, or encumbered in any manner by
Tenant without the prior written consent of Landlord, which may be granted or
withheld in Landlord's sole discretion.
The provisions of this PARAGRAPH 16 shall constitute a security
agreement under the Uniform Commercial Code of the State of Florida ("UCC"), and
create a security interest in the Personal Property, and Tenant agrees to
execute, as debtor, such financing statements as Landlord may now or hereafter
reasonably request to perfect the foregoing security interest pursuant to the
UCC. Simultaneously with the execution of this Lease, Tenant agrees to execute
all UCC-1 financing statements necessary to perfect Landlord's security interest
granted by this PARAGRAPH 16. Tenant shall take all necessary action to maintain
and preserve such security interest including, but not limited to, the
executing, delivering, filing, refiling, recording, or re-recording of any
financing statements, continuation statements, or other security agreements, and
the giving of such instruments of further assurance as Landlord from time to
time may request to protect its security interest. Without limiting the
foregoing, Tenant appoints Landlord as Tenant's attorney-in-fact to execute,
deliver, and file such instruments for and on behalf of Tenant, but Landlord
shall not be required, and shall not be deemed to be under any duty to Tenant,
any guarantor or surety with respect to this Lease, or any other person to
protect, perfect, secure, or insure the security interest nor shall Landlord
have any obligation for, among other things, the filing of any financing
statements under the UCC. The limited power of attorney granted by Tenant in the
immediately preceding sentence, being coupled with an interest, is deemed to be
irrevocable by Tenant. Notwithstanding the expiration or sooner termination of
this Lease, the terms of this PARAGRAPH 16 shall survive as a security agreement
with respect to the security interest until repayment or satisfaction in full of
all obligations of Tenant under this Lease. The Personal Property shall at all
times remain in the Premises, subject to the control of Landlord. In the event
of a sale or ground lease of the Premises, the security interest shall be
automatically transferred to the purchaser or ground lessor. In addition,
Landlord may, at its election, file a copy of this Lease at any time as a
financing statement. Landlord, as secured party, shall be entitled to all of the
rights and remedies afforded a secured party under the UCC in addition to all
other rights and remedies under this Lease, at law, in equity or otherwise.
17. BANKRUPTCY. Landlord and Tenant understand that, notwithstanding
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the Code may have certain rights to assume or assign this
Lease. Landlord and Tenant further understand that, in any event, Landlord is
entitled under the Code to adequate assurances of future performance of the
provisions of this Lease. The parties agree that, with respect to any such
assumption or assignment, the term "adequate assurance" shall include at least
the following:
(1) In order to assure Landlord that the proposed assignee will have
the resources with which to pay all Base Rent and any Additional Rent payable
pursuant to the provisions of this Lease, any proposed assignee must have, as
demonstrated to Landlord's satisfaction, a net worth (as defined in accordance
with generally accepted accounting principles consistently applied) of not less
than the net worth of Tenant on the date this Lease became effective, increased
by seven percent (7%), compounded annually, for each year from the Commencement
Date through the date of the proposed assignment. It is understood and agreed
that the financial condition and resources of Tenant were a material inducement
to Landlord in entering into this Lease.
11
12
(2) Any proposed assignee must have been engaged in the conduct of
business for the five (5) years prior to any such proposed assignment, which
business does not violate the Permitted Uses, and such proposed assignee shall
continue to engage in the Permitted Uses. It is understood and agreed that
Landlord's asset will be substantially impaired if the trustee in bankruptcy or
any assignee of this Lease makes any use of the Premises other than the
Permitted Uses.
(3) Any proposed assignee of this Lease must assume and agree to be
personally bound by the provisions of this Lease.
18. EMINENT DOMAIN. If all of the Premises, or such part thereof as
will make the same unusable for the purposes contemplated by this Lease, be
taken under the power of eminent domain (or a conveyance in lieu thereof), then
this Lease shall terminate as of the date possession is taken by the condemnor,
and Rent shall be adjusted between Landlord and Tenant as of such date. If only
a portion of the Premises is taken and Tenant can continue use of the remainder,
then this Lease will not terminate, but Rent shall xxxxx in a just and
proportionate amount to the loss of use occasioned by the taking. Landlord shall
be entitled to receive and retain the entire award for the affected portion of
the Building. Tenant shall have no right to advance any claim against Landlord
for any part of the award made to or received by Landlord for any taking and no
right or claim for any alleged value of the unexpired portion of this Lease or
its leasehold estate, or for costs of removal, relocation, business interruption
expense or any other damages arising out of such taking. Tenant, however, shall
not be prevented from making a claim against the condemning party (but not
against Landlord) for any moving expenses, loss of profits, or taking of
Tenant's personal property (other than its leasehold estate) to which Tenant may
be entitled; provided, however, any such award shall not reduce the amount of
the award otherwise payable to Landlord, if any.
19. QUIET ENJOYMENT. If Tenant promptly and punctually complies with
each of its obligations hereunder, it shall peacefully have and enjoy the
possession of the Premises during the Term hereof, provided that no action of
Landlord or other tenants working in other space in the Building, or in
repairing or restoring the Premises, shall be deemed a breach of this covenant,
or give to Tenant any right to modify this Lease either as to term, rent
payables, or other obligations to be performed.
20. SECURITY DEPOSIT. $28,925.50, which is the equivalent of two (2)
months Base Rent and Additional Rent per Tenant's initial Lease year Base Rent
Schedule and Additional Rent per Landlords projection for such calendar year.
LANDLORD WILL APPLY TENANT'S EXISTING $4,000.00 SECURITY DEPOSIT TOWARDS THAT
REQUIRED HEREIN.
21. NOTICES. All notices, demands and requests which may be given or
which are required to be given by either party to the other must be in writing.
All notices, demands and requests by Landlord or Tenant shall be sent by
express, registered or certified mail, return receipt requested, postage
prepaid, by overnight courier service such as Federal Express, by facsimile
transmission (with written confirmation of receipt of the transmission), or by
personal delivery and addressed as follows (or to such other address as a party
may specify by duly given notice):
RENT PAYMENT ADDRESS:
HIGHWOODS/XXXXXXX X.X.
XX Xxx 000000
Xxxxx, Xxxxxxx 00000-0000
LEGAL NOTICE ADDRESS FOR LANDLORD:
HIGHWOODS/FLORIDA HOLDINGS, L.P.
One Boca Place, 0000 Xxxxxx Xxxx
Xxxxx 000-X
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx, Vice President
Telephone: 000-000-0000
12
13
Telecopier: 000-000-0000
WITH A COPY TO:
HIGHWOODS PROPERTIES, INC.
c/o Highwoods Properties, Inc.
0000 Xxx Xxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xx. Xxxx Prio Touzet, Vice President
TENANT:
ONLINE TRADING, INC.
0000 X. Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxx Xxxxx, Xx 00000
Attention: Xxxxxx Xxxxx or Xxxxx zum Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Notices will be deemed to be received, if personally delivered, upon
delivery, if sent by overnight courier, on the first (1st) business day after
being sent, if sent by mail, on the date set forth on the return receipt, if
sent by telecopier, on the date sent if confirmation of receipt shows delivery
on or before 5:00 p.m., or the next business day if confirmation of receipt
shows delivery after 5:00 p.m. The parties shall notify the other of any change
in address, which notification must be at least fifteen (15) days in advance of
it being effective.
Notices may be given on behalf of any party by such party's legal
counsel. The foregoing notice provisions shall in no way prohibit notices from
being given as provided in the rules of civil procedure of the State of Florida,
as the same may be amended from time to time and any notice so given shall
constitute notice herein.
22. HOLDING OVER. If Tenant shall hold over after the expiration of
the Lease Term or other termination of this Lease, such holding over shall not
be deemed to be a renewal of this Lease but shall be deemed to create a
month-to-month tenancy only, and by such holding over Tenant shall continue to
be bound by all of the terms and conditions of this Lease, except that during
such month-to-month tenancy, Tenant shall pay to Landlord (A) the greater of (i)
ONE AND THREE QUARTERS (1.75) times the monthly Base Rent Landlord is then
charging new tenants for space in the Building, or (ii) two (2) times the Base
Rent payable hereunder during the last month of the Lease Term, and (B) any and
all operating expenses and other forms of Additional Rent payable under the
terms of this Lease. Such month-to-month tenancy may be terminated by Landlord
or Tenant effective as of the last day of any calendar month by delivery to the
other of notice of such termination prior to the first day of such calendar
month. Tenant shall indemnify, defend and hold Landlord harmless from and
against any claim, damage, loss, liability, judgement, suit, disbursement or
expense (including consequential damages and reasonable attorneys' fees and
disbursements) (collectively, "Claims") resulting from failure to surrender
possession upon the Expiration Date or sooner termination of the Lease Term,
including any Claims made by any succeeding tenant, and such obligations shall
survive the expiration or sooner termination of this Lease.
23. BROKER'S COMMISSIONS. Tenant represents and warrants that it has
not dealt with any real estate broker, finder or other person, with respect to
this Lease in any manner. Tenant shall indemnify and hold Landlord harmless from
any and all damages resulting from claims that may be asserted against Landlord
by any broker, finder or other person, claiming to have dealt with Tenant in
connection with this Lease or any amendment or extension hereto, or which may
result
13
14
in Tenant leasing other or enlarged space from Landlord. The provisions of this
PARAGRAPH 24 shall survive the termination of this Lease.
24. ENVIRONMENTAL COMPLIANCE.
(1) TENANT'S RESPONSIBILITY. Tenant shall not (either with or
without negligence) cause or permit the escape, disposal or release of any
biologically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or in compliance with the highest standards prevailing in the
industry for the storage and use of such substances or materials, nor allow to
be brought into the Building in which the Premises are located any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. Tenant covenants and agrees that the
Premises will at all times during its use or occupancy thereof be kept and
maintained so as to comply with all now existing or hereafter enacted or issued
statutes, laws, rules, ordinances, orders, permits and regulations of all state,
federal, local and other governmental and regulatory authorities, agencies and
bodies applicable to the Premises and the Building, pertaining to environmental
matters or regulating, prohibiting or otherwise having to do with asbestos and
all other toxic, radioactive, or hazardous wastes or material including, but not
limited to, the federal Clean Air Act, the federal Water Pollution Control Act,
and the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as from time to time amended (all hereafter collectively called "Laws").
Tenant shall execute affidavits, representations and the like, from time to
time, at Landlord's request, concerning Tenant's best knowledge and belief
regarding the presence of hazardous substances or materials on the Premises.
(2) TENANT'S LIABILITY. Tenant shall hold Landlord free, harmless,
and indemnified from any penalty, fine, claim, demand, liability, cost, or
charge whatsoever which Landlord shall incur, or which Landlord would otherwise
incur, by reason of Tenant's failure to comply with this PARAGRAPH 25 including,
but not limited to: (1) the cost of bringing the Premises into compliance with
all Laws; (2) the reasonable cost of all appropriate tests and examinations of
the Premises to confirm that the Premises have been brought into compliance with
all Laws; and (3) the reasonable fees and expenses of Landlord's attorneys,
engineers, and consultants incurred by Landlord in enforcing and confirming
compliance with this PARAGRAPH 25.
(3) PROPERTY. For the purposes of this PARAGRAPH 25, the Premises
shall include the real estate covered by this Lease; all improvements thereon;
all personal property used in connection with the Premises (including that owned
by Tenant); and the soil, ground water, and surface water of the Premises, if
the Premises include any ground area.
(4) INSPECTIONS BY LANDLORD. Landlord and its engineers,
technicians, and consultants (collectively the "Auditors") may, from time to
time as Landlord deems appropriate, conduct periodic tests and examinations
("Audits") of the Premises to confirm and monitor Tenant's compliance with this
PARAGRAPH 25. Such Audits shall be conducted in such a manner as to minimize the
interference with Tenant's permitted activities on the Premises; however in all
cases, the Audits shall be of such nature and scope as shall be reasonably
required by then existing technology to confirm Tenant's compliance with this
PARAGRAPH 25. Tenant shall fully cooperate with Landlord and its Auditors in the
conduct of such Audits. The cost of such Audits shall be paid by Landlord unless
an Audit shall disclose a material failure of Tenant to comply with this
PARAGRAPH 25, in which case, the cost of such Audit, and the cost of all
subsequent Audits made during the Lease Term and within thirty (30) days
thereafter (not to exceed two [2] such Audits per calendar year), shall be paid
for on demand by Tenant.
(5) LANDLORD'S LIABILITY. Provided, however, the foregoing covenants
and undertakings of Tenant contained in this PARAGRAPH 25 shall not apply to any
condition or matter constituting a violation of any Law: (1) which existed prior
to the commencement of Tenant's use or occupancy of the Premises; (2) which was
not caused, in whole or in part, by Tenant or Tenant's agents, employees,
officers, partners, contractors or invitees; or (3) to the extent such violation
is
14
15
caused by, or results from the acts or neglect of Landlord or Landlord's agents,
employees, officers, partners, contractors, guests, or invitees.
(6) TENANT'S LIABILITY AFTER TERMINATION OF LEASE. The covenants
contained in this PARAGRAPH 25 shall survive the expiration or termination of
this Lease, and shall continue for so long as Landlord and its successors and
assigns may be subject to any expense, liability, charge, penalty, or obligation
against which Tenant has agreed to indemnify Landlord under this PARAGRAPH 25.
25. RADON GAS. The following notification is provided pursuant to
Section 404.056(6), Florida Statutes: "Radon is a naturally-occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of Radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding Radon and Radon testing
may be obtained from your county public health unit."
26. ATTORNEYS' FEES. In the event of any action or proceeding under
this Lease, THE PREVAILING PARTY shall be entitled to recover court costs and
the fees and disbursements of its attorneys in such action or proceeding
(whether at the administrative, trial or appellate levels) in such amount as the
court or administrative body may judge reasonable. The prevailing party shall
also be entitled to recover attorneys' fees and disbursements incurred in
connection with a Tenant default hereunder which does not result in the
commencement of any action or proceeding.
27. JURY TRIAL WAIVER. LANDLORD AND TENANT EACH HEREBY IRREVOCABLY,
KNOWINGLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER OR THEIR
SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY
REMEDY.
28. MISCELLANEOUS. Headings of Paragraphs are for convenience only
and shall not be considered in construing the meaning of the contents of such
Paragraph. The invalidity of any portion of this Lease shall not have any effect
on the balance hereof. Should Landlord institute any legal proceedings against
Tenant for breach of any provision herein contained, and prevail in such action,
Tenant shall in addition be liable for the costs and expenses of Landlord,
including its reasonable attorneys' fees (at all tribunal levels). This Lease
shall be binding upon the respective parties hereto, and upon their heirs,
executors, successors and assigns. This agreement supersedes and cancels all
prior negotiations between the parties, and no changes shall be effective unless
in writing signed by both parties. Tenant acknowledges and agrees that it has
not relied upon any statements, representations, agreements or warranties except
those expressed in this Lease, and that this Lease contains the entire agreement
of the parties hereto with respect to the subject matter hereof. Landlord may
sell the Premises or the Building without affecting the obligations of Tenant
hereunder; upon the sale of the Premises or the Building, Landlord shall be
relieved of all responsibility for the Premises and shall be released from any
liability thereafter accruing under this Lease. If any security deposit or
prepaid Rent has been paid by Tenant, Landlord may transfer the security deposit
or prepaid Rent to Landlord's successor and upon such transfer, Landlord shall
be released from any liability for return of the security deposit or prepaid
Rent. This Lease may not be recorded without Landlord's prior written consent,
but Tenant agrees on request of Landlord to execute a memorandum hereof for
recording purposes. The singular shall include the plural, and the masculine,
feminine or neuter includes the other. If Landlord, or its employees, officers,
directors, stockholders or partners are ordered to pay Tenant a money judgment
because of Landlord's default under this Lease, said money judgment may only be
enforced against and satisfied out of: (i) Landlord's interest in the Building
in which the Premises are located including the rental income and proceeds from
sale; and (ii) any insurance or condemnation proceeds received because of damage
or condemnation to, or of, said Building that are available for use by Landlord.
No other assets of Landlord or said other parties exculpated by the preceding
sentence shall be liable for, or subject to, any such money judgment. This Lease
shall be interpreted and enforced in accordance with the laws of the State of
Florida. If requested by Landlord, Tenant shall furnish appropriate legal
15
16
documentation evidencing the valid existence and good standing of Tenant and the
authority of any person signing this Lease to act for Tenant. If Tenant signs as
a corporation, each of the persons executing this Lease on behalf of Tenant does
hereby covenant and warrant that Tenant is a duly authorized and existing
corporation, that Tenant has and is qualified to do business in the State of
Florida, that the corporation has full right and authority to enter into this
Lease and that each of the persons signing on behalf of the corporation is
authorized to do so. The submission of this Lease to Tenant for review does not
constitute a reservation of or option for the Premises, and this Lease shall
become effective as a contract only upon the execution and delivery by both
Landlord and Tenant. The date of execution shall be entered on the top of the
first page of this Lease by Landlord, and shall be the date on which the last
party signed the Lease, or as otherwise may be specifically agreed by both
parties. Such date, once inserted, shall be established as the final day of
ratification by all parties to this Lease, and shall be the date for use
throughout this Lease as the "Date of Execution" or "Execution Date".
29. SPECIAL CONDITIONS OR ADDENDUMS. The following addendum shall
apply, and where in conflict with earlier provisions in this Lease shall
control, and are incorporated herein and made a part of this Lease:
1. Lease Addendum No. 1, attached to this Lease.
2. Lease Addendum No. 2, attached to this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this lease in duplicate
originals, all as of the day and year first above written.
LANDLORD: TENANT:
HIGHWOODS/FLORIDA HOLDINGS, L.P. ONLINE TRADING INC., a Florida
corporation
By: Highwoods Properties, Inc., Agent
By: By:
------------------------------- ---------------------------
Title: Title:
---------------------------- ------------------------
(CORPORATE SEAL) (CORPORATE SEAL)
Witnesses: Witnesses:
---------------------------------- ------------------------------
Typed Name: Typed Name:
----------------------- -------------------
Typed Name: Typed Name:
----------------------- -------------------
16
17
ACKNOWLEDGMENTS
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _______ day
of ______________, 199__, by _________________________, the ____________________
__________ of Highwoods Properties, Inc., Agent for HIGHWOODS/FLORIDA HOLDINGS,
L.P., a Delaware limited partnership. The foregoing individual [ ] is personally
known to me or [ ] has produced _____________________ as identification.
Notary Public - State of Florida
-------------------------------------------
Print Name:
--------------------------------
My Commission Number:
----------------------
My Commission Expires:
---------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _______ day
of _________________, 199__ , by _____________________, the ____________________
of _______________________ __________________, on behalf of the corporation.
The foregoing individual [ ] is personally known to me or [ ] has produced as
identification.
Notary Public - State of Florida
-------------------------------------------
Print Name:
--------------------------------
My Commission Number:
----------------------
My Commission Expires:
---------------------
17
18
EXHIBIT A
PREMISES
[To be attached following Tenant approval of final plan.]
1 of 1
19
EXHIBIT B
RULES AND REGULATIONS
1. ACCESS TO BUILDING. On Saturdays, Sundays, legal holidays and on weekdays
between the hours of 6:00 P.M. and 8:00 A.M., access to the Building and/or
to the halls, corridors, elevators or stairways in the Building may be
restricted and access shall be gained by use of a key or electronic card to
the outside doors of the Building. Landlord may from time to time establish
security controls for the purpose of regulating access to the Building.
Tenant shall cause each of its employees to comply with all such security
regulations so established.
2. PROTECTING PREMISES. The last member of Tenant to leave the Premises shall
close and securely lock all doors or other means of entry to the Premises and
shut off all utilities in the Premises.
3. BUILDING DIRECTORIES. The directories for the Building in the form selected
by Landlord shall be used exclusively for the display of the name and
location of tenants. Any additional names and/or name change requested by
Tenant to be displayed in the directories must be approved by Landlord and,
if approved, will be provided at the sole expense of Tenant.
4. LARGE ARTICLES. Furniture, freight and other large or heavy articles may be
brought into the Building only at times and in the manner designated by
Landlord and always at Tenant's sole responsibility. All damage done to the
Building, its furnishings, fixtures or equipment by moving or maintaining
such furniture, freight or articles shall be repaired at the expense of
Tenant.
5. SIGNS. Tenant shall not paint, display, inscribe, maintain or affix any sign,
placard, picture, advertisement, name, notice, lettering or direction on any
part of the outside or inside of the Building, or on any part of the inside
of the Premises which can be seen from the outside of the Premises, without
the written consent of Landlord, and then only such name or names or matter
and in such color, size, style, character and material as shall be first
approved by Landlord in writing. Landlord reserves the right to remove at
Tenant's expense all matter other than that above provided for without notice
to Tenant.
6. COMPLIANCE WITH LAWS. Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, whether now
existing or hereinafter enacted with respect to the Premises and the use or
occupancy thereof. Tenant shall not make or permit any use of the Premises
which directly or indirectly is forbidden by law, ordinance, governmental
regulations or order or direction of applicable public authority, which may
be dangerous to person or property or which may constitute a nuisance to
other tenants.
7. HAZARDOUS MATERIALS. Tenant shall not use or permit to be brought into the
Premises or the Building any flammable oils or fluids, or any explosive or
other articles deemed hazardous to persons or property, or do or permit to be
done any act or thing which will invalidate, or which, if brought in, would
be in conflict with any insurance policy covering the Building or its
operation, or the Premises, or any part of either, and will not do or permit
to be done anything in or upon the Premises, or bring or keep anything
therein, which shall not comply with all rules, orders, regulations or
requirements of any organization, bureau, department or body having
jurisdiction with respect thereto (and Tenant shall at all times comply with
all such rules, orders, regulations or requirements), or which shall increase
the rate of insurance on the Building, its appurtenances, contents or
operation.
8. DEFACING PREMISES AND OVERLOADING. Tenant shall not place anything or allow
anything to be placed in the Premises near the glass of any door, partition,
wall or window which may be unsightly from outside the Premises. Tenant shall
not place or permit to be placed any article of any kind on any window ledge
or on the exterior walls; blinds, shades, awnings or other forms of inside or
outside window ventilators or similar devices shall not be placed in or about
the outside windows in the Premises except to the extent that the character,
shape, color, material and make thereof is approved by Landlord. Tenant shall
not do any painting or decorating in the Premises or install any floor
coverings in the Premises or make, paint, cut or drill into, or in any way
deface any part of the Premises or Building without in each instance
obtaining the prior written consent of Landlord. Tenant shall not overload
any floor or part thereof in the Premises, or any facility in the Building or
any public corridors or elevators therein by bringing in or removing any
large or heavy articles and Landlord may direct and control the location of
safes, files, and all other heavy articles and, if considered necessary by
Landlord may require Tenant at its expense to supply whatever supplementary
supports necessary to properly distribute the weight.
9. OBSTRUCTION OF PUBLIC AREAS. Tenant shall not, whether temporarily,
accidentally or otherwise, allow anything to remain in, place or store
anything in, or obstruct in any way, any sidewalk, court, hall, passageway,
entrance, or shipping area. Tenant shall lend its full cooperation to keep
such areas free from all obstruction and in a clean and sightly condition,
and move all supplies, furniture and equipment as soon as received directly
to the Premises, and shall move all such items and waste (other than waste
customarily removed by Building employees) that are at any time being taken
from the Premises directly to the areas designated for disposal. All courts,
passageways, entrances, exits, elevators, escalators, stairways, corridors,
halls and roofs are not for the use of the general public and Landlord shall
in all cases retain the right to control and prevent access thereto by all
persons whose presence, in the judgment of Landlord, shall be prejudicial to
the safety, character, reputation and interest of the Building and its
tenants; provided, however, that
1 of 3
20
nothing herein contained shall be construed to prevent such access to
persons with whom Tenant deals within the normal course of Tenant's business
so long as such persons are not engaged in illegal activities.
10. ADDITIONAL LOCKS. Tenant shall not attach, or permit to be attached,
additional locks or similar devices to any door or window, change existing
locks or the mechanism thereof, or make or permit to be made any keys for
any door other than those provided by Landlord. Upon termination of this
Lease or of Tenant's possession, Tenant shall immediately surrender all keys
to the Premises.
11. COMMUNICATIONS OR UTILITY CONNECTIONS. If Tenant desires signal, alarm or
other utility or similar service connections installed or changed, Tenant
shall not install or change the same without the approval of Landlord, and
then only under direction of Landlord and at Tenant's expense. Tenant shall
not install in the Premises any equipment which requires a greater than
normal amount of electrical current for the permitted use without the
advance written consent of Landlord. Tenant shall ascertain from Landlord
the maximum amount of load or demand for or use of electrical current which
can safely be permitted in the Premises, taking into account the capacity of
the electric wiring in the Building and the Premises and the needs of other
tenants in the Building, and shall not in any event connect a greater load
than that which is safe.
12. OFFICE OF THE BUILDING. Service requirements of Tenant will be attended to
only upon application at the office of Landlord. Employees of Landlord shall
not perform, and Tenant shall not engage them to do any work outside of
their duties unless specifically authorized by Landlord.
13. RESTROOMS. The restrooms, toilets, urinals, vanities and the other apparatus
shall not be used for any purpose other than that for which they were
constructed, and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by Tenant who, or whose employees or
invitees, shall have caused it.
14. INTOXICATION. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord, is intoxicated, or
under the influence of liquor or drugs, or who in any way violates any of
the rules and regulations of the Building.
15. NUISANCES AND CERTAIN OTHER PROHIBITED USES. Tenant shall not (a) install or
operate any internal combustion engine, boiler, machinery, refrigerating,
heating or air conditioning apparatus in or about the Premises; (b) engage
in any mechanical business, or in any service in or about the Premises or
Building, except those ordinarily embraced within the permitted use of the
Premises specified in PARAGRAPH 3; (c) use the Premises for housing,
lodging, or sleeping purposes; (d) prepare or warm food in the Premises or
permit food to be brought into the Premises for consumption therein (heating
coffee and individual lunches of employees excepted) except by express
permission of Landlord; (e) place any radio or television antennae on the
roof or on or in any part of the inside or outside of the Building other
than the inside of the Premises, or place a musical or sound producing
instrument or device inside or outside the Premises which may be heard
outside the Premises; (f) use any power source for the operation of any
equipment or device other than dry cell batteries or electricity; (g)
operate any electrical device from which may emanate waves that could
interfere with or impair radio or television broadcasting or reception from
or in the Building or elsewhere; (h) bring or permit to be in the Building
any bicycle, other vehicle, dog (except in the company of a blind person),
other animal or bird; (I) make or permit any objectionable noise or odor to
emanate from the Premises; (j) disturb, harass, solicit or canvass any
occupant of the Building; (k) do anything in or about the Premises which
could be a nuisance or tend to injure the reputation of the Building.
16. SOLICITATION. Tenant shall not canvass other tenants in the Building to
solicit business or contributions and shall not exhibit, sell or offer to
sell, use, rent or exchange any products or services in or from the Premises
unless ordinarily embraced within the Tenant's use of the Premises for which
specific authority granted in the lease agreement.
17. ENERGY CONSERVATION. Tenant shall not waste electricity, water, heat or air
conditioning and agrees to cooperate fully with Landlord to insure the most
effective operation of the Building's heating and air conditioning, and
shall not allow the adjustment (except by Landlord's authorized Building
personnel) of any controls.
18. BUILDING SECURITY. At all times other than normal business hours the
exterior Building doors and suite entry door(s) must be kept locked to
assist in security. The janitorial service, upon completion of its duties,
will lock all Building doors. Problems in Building and suite security should
be directed to Landlord at (000) 000-0000.
19. PARKING. Parking is in designated parking areas only. There may be no
vehicles in "no parking" zones or at curbs. Handicapped spaces are for
handicapped persons and the Police Department will ticket unauthorized
(unidentified) cars in handicapped spaces.
20. JANITORIAL SERVICE. The janitorial staff will remove all trash from trash
cans. Any container or boxes left in hallways or apparently discarded unless
clearly and conspicuously labeled DO NOT REMOVE may be removed without
liability to the Tenant. Any large volume of trash resulting from delivery
of furniture, equipment, etc., should be removed by the delivery company,
Tenant, or Landlord at Tenant's expense. Janitorial service will be provided
after hours each business day Monday through Friday. All requests should be
directed to Landlord at (000) 000-0000.
2 of 3
21
21. CONSTRUCTION. Tenant shall make no structural or interior alterations of the
Premises. All structural and nonstructural alterations and modifications to
the Premises shall be coordinated through Landlord as outlined in PARAGRAPH
7 of the Lease. Completed construction drawings of the requested changes are
to be submitted to Landlord's construction department for pricing and
construction supervision.
3 of 3
22
EXHIBIT C
COMMENCEMENT AGREEMENT
THIS COMMENCEMENT AGREEMENT is made as of ________________, 199___, by
and between HIGHWOODS/FLORIDA HOLDINGS, L.P., a Delaware limited partnership
("Landlord") and ONLINE TRADING INC., a Florida corporation. ("TENANT").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
___________ (the "Lease"), covering premises situated in the Highwoods Square
III/ 2700 N. Military Trail Building, Boca Raton, Palm Beach County, Florida
("Premises") which Premises are more particularly described in the Lease; and,
WHEREAS, the Lease provided for the execution of a Commencement
Agreement establishing the actual date of the commencement of the term of the
lease of the Premises, and establishing the number of rentable square feet in
the Premises.
NOW, THEREFORE, the parties hereto agree as follows:
The term of the Lease actually commenced on __________________ 199__.
The initial term of the Lease shall terminate on ______________. The number of
rentable square feet in the Premises is agreed to be 6,806.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to
be duly executed, as of the day and year first above written.
TENANT:
ONLINE TRADING, INC., a Florida corporation
By:
--------------------------------
Typed Name:
------------------------
Typed Title:
-----------------------
(Corporate Seal)
Date:
------------------------------
LANDLORD:
HIGHWOODS/FLORIDA HOLDINGS, L.P.
By: Highwoods Properties, Inc., Agent
By:
--------------------------
Title:
-----------------------
(Corporate Seal)
Date:
-------------------------
1 of 1
23
LEASE ADDENDUM NO. 1
ADDITIONAL RENT - OPERATIONAL EXPENSE PASS THROUGHS. Tenant shall pay
monthly, as Additional Rent, one-twelfth (1/12) of Landlord's estimate of
Tenant's proportionate share ("Tenant's Proportionate Share") of all of the
Direct Expenses for the then-current calendar year, incurred on account of the
operation or maintenance of the PROJECT in which the Premises are situated.
Landlord will give Tenant notice from time to time of such estimated amounts,
and Tenant shall pay such amounts monthly to Landlord in the same manner and at
the same time as Base Rent. As soon as is reasonably practicable following the
end of each calendar year, Landlord will submit to Tenant an operating statement
("Operating Statement") showing in reasonable detail the Direct Expenses on a
per rentable square foot basis for the preceding calendar year, together with a
reconciliation of estimated payments made by Tenant as compared to the actual
Tenant's Proportionate Share paid for such calendar year. However, the failure
or delay by Landlord to provide Tenant with an Operating Statement shall not
constitute a waiver by Landlord of Tenant's obligation to pay the Direct
Expenses or a waiver of Landlord's rights to send such a statement thereafter or
a waiver of its right to reconcile the Direct Expenses. Within thirty (30) days
after receipt of an Operating Statement, Tenant shall pay to Landlord any
additional amounts owed to Landlord as shown on the Operating Statement. Any
funds owed by Landlord to Tenant shall be applied by Landlord against the next
accruing monthly installment(s) of Additional Rent due from Tenant. Tenant or
its representative shall have the right, upon not less than ten (10) days prior
notice rendered no later than twenty (20) days after delivery of an Operating
Statement, to review, at Tenant's sole expense, Landlord's books and records
with respect to the Direct Expenses during normal business hours, at the
location of Landlord's books and records, but no more than twice annually with
respect to any given calendar year. Unless Tenant shall take written exception
to any item contained in the Operating Statement within twenty (20) days after
delivery thereof, the Operating Statement shall be deemed final and accepted by
Tenant. If Tenant disputes an Operating Statement, Tenant shall pay the amount
set forth therein and any other funds then owed by Tenant under this Lease as a
condition precedent to any further review of the content of the Operating
Statement. Any payments due herein shall be prorated for any partial calendar
year occurring during the Lease Term. Tenant's obligation to pay any amounts due
herein and Landlord's obligation to refund any overpayments made by Tenant for
the final year of the Lease Term shall survive the Expiration Date or earlier
termination of this Lease.
The term "Direct Expense" as used herein shall include direct costs of
operation, repair and maintenance as determined by standard accounting practices
and shall include by way of illustration, but is not limited to ad valorem real
and personal property taxes, hazard and liability insurance premiums, utilities,
heat, air conditioning, janitorial service, labor, materials, supplies,
equipment and tools, permits, licenses, inspection fees, management fees, and
common area expenses. The term "Direct Expenses" shall not include depreciation
on the Building in which the Premises are situated or equipment therein,
interest, executive salaries, real estate brokers' commissions, or other
expenses that do not relate to the operation of the Project.
TENANT'S INITIAL LEASE YEAR ADDITIONAL RENT WILL BE CAPPED AT $8.50 PER RENTABLE
SQUARE FOOT. THEREFORE TENANT'S INITIAL LEASE YEAR ADDITIONAL RENT WILL BE THE
LESSOR OF THE LANDLORD'S PROJECTION OR $8.50 PER RENTABLE SQUARE FOOT. TENANT'S
ANNUAL ADDITIONAL RENT INCREASE SHALL BE CAPPED AT 107% OF THEIR PROPORTIONATE
SHARE OF THE PREVIOUS CALENDAR YEAR'S OPERATING EXPENSES, EXCEPT REAL ESTATE
TAXES, ELECTRICITY, INSURANCE AND ANY OTHER NON-CONTROLLABLE OPERATING EXPENSE
ASSOCIATED WITH THE DIRECT OPERATION OF THE PROJECT, WHICH WILL BE PASSED
THROUGH TO TENANT WITHOUT ANT CAP OR LIMITATION.
1 of 1
24
LEASE ADDENDUM NO. 2
TENANT IMPROVEMENT ALLOWANCE: Landlord will build out Tenants Premises, at
Landlord's expense, not to exceed $188,916.00. This is based on Tenant receiving
the equivalent of $28.00 per rentable square foot of Tenant's Premises. Landlord
will price Tenant's alteration requirements per architectural plans and
specifications reviewed with and approved by Tenant. Landlord will then review
such with Tenant prior to the commencement of construction to Tenant's Premises.
Should Tenant request additional Tenant Improvement monies from Landlord,
Landlord will consider providing such additional Tenant Improvement monies and
amortizing such over the Term of Tenant's Lease as Additional Rent due monthly
with Tenant's Base and Additional Rent. A nine and one-half (9.50%) annual costs
of funds will be applied to such additional Tenant Improvement monies if
utilized by Tenant.
RESERVED COVERED PARKING: Landlord, at Landlord's costs, shall provide Tenant
six (6) covered reserved parking spaces for Tenant's use for the life of this
Lease Term and any renewal periods, at a charge to Tenant of $20.00 per space
per month with annual increases of five (5%) percent effective each anniversary
of Tenant's Lease Commencement Date.
OPTION TO RENEW LEASE: Tenant shall receive one (1), five (5) year option to
extend this Lease at then fair market terms and conditions. Tenant shall provide
Landlord with a minimum of nine (9) months prior written notice of their intent
to exercise such renewal option. Landlord and Tenant will have ninety (90) days
from Landlord's receipt of Tenant's notice to renew, to finalize a mutually
acceptable Amendment to extend Tenant's Lease. If Tenant and Landlord are unable
to fully execute such an Amendment within such timeframe, then the option to
renew this Lease shall become null and void.
RIGHT OF FIRST REFUSAL: Tenant shall have the Right of First Refusal on up to
3,867 Rentable Square Feet contiguous to Tenant's Premises, upon the
availability of such space. Landlord and Tenant acknowledge that the subject
space contiguous to Tenant's original Premises is not expected to be available
for lease to an outside party for approximately four (4) years from Tenant's
Lease Commencement. Tenant will have seven (7) days from Landlord's notification
of an outside parties intent to Lease the contiguous Right of First Refusal
Space defined herein, to exercise their Right of First Refusal. If Tenant
exercises their Right of First Refusal, the Base Rent and Additional Rent
Schedule for Tenant's expansion space, will be consistent on a price per
Rentable Square Foot with Tenant's original Premises, Suite 200. Tenant will
also receive from Landlord a Tenant Improvement Allowance which will be the Pro
Rated equivalent on a dollars and cents per Rentable Square Foot basis of their
original Tenant Improvement Allowance. Such Pro Rating will be based on the
remaining Lease Term from Tenant's Expansion Space Commencement Date through the
then in effect Lease Expiration Date.
25
LEASE ADDENDUM NO. 2, CONTINUED
TEMPORARY SPACE: Tenant will be permitted to Holdover in their previously leased
Suite 125 in Highwoods Square II/ 0000 X. Xxxxxxxx Xxxxx, from their Lease
Expiration Date of October 14, 1998 until the day preceding their Lease
Commencement for Suite 200 in Highwoods Square III/ 0000 X. Xxxxxxxx Xxxxx.
Tenant will only be responsible for Additional Rent during their Holdover
Tenancy in Suite 125 in Highwoods Square II/ 0000 X. Xxxxxxxx Xxxxx.
CABLE TELEVISION/ DIRECT TELEVISION: Landlord will provide best efforts to
provide Tenant the ability to have either Cable Television or Direct Television,
at Tenant's expense in Tenant's Premises.
