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EXHIBIT 10.6
LEASE AGREEMENT
BOCA RATON, FLORIDA
THIS LEASE AGREEMENT (this "Lease") is made as of this ___ day of
October, 1999, by and between FAIRFAX BOCA 92, L.P., a Georgia limited
partnership ("Landlord"), and VISUAL EDGE SYSTEMS INC., a Florida corporation
("Tenant");
W I T N E S S E T H:
1. Premises. In consideration of the rents, terms and covenants of this
Lease, Landlord hereby leases, lets and demises to Tenant those certain premises
(the "Premises") containing approximately 2,407 rentable square feet situated on
the first (1st) floor of Pod D in Building 235, 000 Xxxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000 (the "Building"), as shown outlined on EXHIBIT A, attached hereto
and made a part hereof. The land upon which the Building is located is more
particularly described on EXHIBIT B, attached hereto and made a part hereof (the
"Land"); the Building and the Land together with all improvements located
thereon are collectively referred to herein as the "Project"). All of the
windows and outside walls of the Premises, and any space in the Premises used
for shafts, pipes, conduits, ducts, telephone ducts and equipment, electric or
other utilities, or other Building facilities, and the use thereof and access
thereto through the Premises for the purposes of operation, maintenance,
inspection, display and repairs are hereby reserved to Landlord.
2. Terms. The Term (as hereinafter defined) of this Lease shall
commence on June 1, 2000 (the "Commencement Date") and ending at 12:00 midnight
on July 5, 2005 (the "Expiration Date") (such term, taking into account any
sooner termination or renewal or extension, is hereinafter referred to as the
"Term"). Tenant's occupancy of all or any portion of the Premises prior to the
Commencement Date shall be subject to and Tenant agrees to comply with (as
though the Term has commenced) all of the provisions of this Lease.
In the event the Premises are not ready for occupancy as a result of failure to
complete the Tenant Improvements, the Commencement Date shall be delayed until
substantial completion of the improvements for the Premises. If Tenant desires
occupancy of Premises earlier than June 1, 2000, then it shall notify Landlord
and Landlord will commence with design and construction. In the event of an
earlier completion of the Premises, then the Commencement Date will be adjusted.
Tenant must provide signed acceptance of design space plan by no later than
March 1, 2000 or Landlord will be provided a day for day extension of the
planned occupancy date of June 1, 2000.
3. Base Rent. (a) Tenant agrees to pay Base Rent in monthly
installments on the first day of each month, during the original Term of the
Lease in an amount equal to the product of the number of rentable square feet
contained in the Premises, multiplied by the annual rate per rentable square
foot set forth below:
The initial annual Base Rent shall be $12.05 per RSF and shall escalate by three
percent (3%) per annum beginning January 1, 2001.
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Each monthly installment of Base Rent shall be payable to Landlord at the
address set forth in Section 32 below on the first day of each calendar month,
in legal tender of the United States of America, without abatement, demand,
reduction or offset whatsoever, except as may be expressly provided in this
Lease. The monthly installment of Base Rent shall be due and payable on or
before the first day of each calendar month following the Commencement Date
during the Term; provided, that if the Commencement Date should be a date other
than the first day of a calendar month, the monthly Base Rent shall be prorated
to the end of that calendar month. Tenant shall pay, as Additional Rent, all
other sums due from Tenant under this Lease, including, but not limited to, any
rent tax or other tax imposed upon Landlord based upon rent payments to the
extent not included in Operating Expenses (as hereinafter defined) (the term
"Rent" means all Base Rent, Additional Rent and all other amounts payable
hereunder from Tenant to Landlord).
(b) In addition to the Base Rent payable pursuant to Section 3(a)
above, Tenant shall promptly pay to Landlord the cost of electric power consumed
in the Premises within any computer room, or for supplemental air conditioning
systems or any equipment installed which consumes electric current in excess of
the amounts specified in Section 9(c). Tenant shall, at Tenant's sole cost and
expense, install a submeter to measure all such electric power consumed in the
Premises by Tenant in such locations and Tenant shall pay the cost of such
electric power so consumed as determined by the submeter calculated at the rate
structure then existing of the utility company supplying electrical energy to
the Premises.
4. Operating Expenses. (a) Computation and Payment. Tenant agrees to
pay as Additional Rent, Tenant's pro rata share of such Operating Expenses (as
hereinafter defined) of the Project. The 1999 projected operating expenses are
$7.05 per SF. Landlord shall estimate the projected Operating Expenses for the
Project and Tenant's pro rata share of such projected Operating Expenses prior
to the commencement of each calendar year during the Term and shall notify
Tenant in writing of such estimate. The amount of Additional Rent specified in
such notification shall be paid by Tenant to Landlord in equal monthly
installments in advance on the first day of each month of such ensuing calendar
year, at the same time and in the same manner as Base Rent. Landlord shall,
within three (3) months following the close of each calendar year during the
Term, provide Tenant with a statement of the actual Operating Expenses for such
calendar year, in reasonable detail. If such statement shows an amount owing by
Tenant for the actual Operating Expenses during a calendar year that is less
than the sum of the monthly payments of Additional Rent made by Tenant for
projected Operating Expenses for such calendar year, the statement shall be
accompanied by a refund to Tenant of the overpayment. If such statement shows an
amount owing by Tenant for actual Operating Expenses during a calendar year
which is more than the sum of the monthly payments of Additional Rent made by
Tenant for projected Operating Expenses for such calendar year, Tenant shall pay
deficiency to Landlord within sixty (60) days after receipt of such statement.
If the Term shall begin on a day other than January 1 or shall end on a day
other than December 31, the amount of any Additional Rent for Operating Expenses
payable by Tenant applicable to the year in which the Term begins or ends,
respectively, shall be prorated on the ratio that the actual number of days of
the Term and such year bears to 365, Landlord may invoice Tenant for Tenant's
pro rata share of actual Operating Expenses for the calendar year to which the
Term ends (if such amount is more than the sum of the monthly payments of
Additional Rent for projected Operating Expenses made by Tenant in such calendar
year) within thirty (30) days prior to the end of the Term or at any time
thereafter. Notwithstanding any provision of this Lease to the contrary, if
occupancy of the
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Building at any time during the Term is less than one hundred percent (100%),
then actual variable Operating Expenses for the Building for such calendar year
shall be increased ("grossed up") to that amount of Operating Expenses that,
using reasonable estimates, would normally be expected to be incurred during
such calendar year if the Building was one hundred percent (100%) occupied
during such calendar year, as determined under generally accepted accounting
principles consistently applied. The term "grossed up" as used in this Section
shall mean and refer to the method of calculating such variable Operating
Expenses which is designed to reasonably estimate what would be the cost of
providing a variable Operating Expense service to the rentable areas of the
Building receiving such service. The gross-up treatment shall be applied only
with respect to the variable Operating Expenses, which are those component
expenses that are affected by variations in occupancy levels arising from
services provided to space in the Building being occupied by tenants, in order
to equitably allocate such variable Operating Expenses to the tenants receiving
the benefit thereof.
(b) Definition of "Operating Expenses". The term "Operating
Expenses" includes all costs and expenses incurred with respect to the
maintenance and operation of the Building or Project (determined in accordance
with generally accepted accounting principles consistently applied), such as,
but not limited to, Building services, maintenance and repair costs, electricity
(exclusive of any charges made pursuant to Section 3(b) above), fuel, water,
sewer, gas and other utility charges, security, window washing, janitorial
services, trash and snow removal, landscaping, pest control, management fees,
wages and fringe benefits payable to employees of Landlord or of any management
agent of Landlord whose duties are directly connected with the operation and
maintenance of the Building, all services, supplies, repairs, replacements or
other expenses for maintaining and operating the Building, including, but not
limited to lobby and other common use areas, vehicular and pedestrian traffic
areas and plaza areas; all real property taxes and installments of special
assessments, including special assessments due to recorded covenants or
restrictions, if any, which accrue against the Building during the Term, any and
all reasonable costs and expenses incurred by Landlord in seeking a reduction of
any such taxes or assessments, and all insurance premiums Landlord is required
to pay or deems necessary to pay, including public liability insurance, rent
loss insurance, and contractual liability insurance, with respect to the
Building; the costs, including interest, amortized over its useful life, of any
capital improvement made to the Building by or on behalf of Landlord after the
date of this Lease which is required under any governmental law or regulation
that was not applicable to the Building at the time of its construction, and of
the acquisition and installation of any device or equipment designed and
reasonably expected to reduce Operating Expenses or to improve the operating
efficiency of any system within the Building. The term "Operating Expenses" does
not include any depreciation allowance or expense, the cost of restoration
occasioned by casualty, income or franchise taxes of Landlord, expenses incurred
in leasing to or procuring of Tenants, leasing commissions or expenses for the
renovating of space for new Tenants.
(c) Tenant's Pro Rata Share. Tenant's pro rata share of Operating
Expenses shall mean the proportion that the rentable square footage in the
Premises hears to the total rentable square footage of the Building.
5. Late Payment Charge. Other remedies for nonpayment of Rent
notwithstanding, if any payment of Base Rent or Additional Rent is not received
by Landlord on or before the fifth
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(5th) day of the month for which such payment of Rent is due, or if any other
payment due Landlord by Tenant is not received by Landlord on or before the
tenth (10th) day of the month next following the month in which Tenant is
invoiced, a late payment charge of five percent (5%) of such amount for each and
every thirty (30) day period that said amount remains unpaid (but in no event
shall the amount of such late charge exceed an amount based upon the highest
legally permissible rate chargeable at any time by Landlord under the
circumstances) shall become due and payable in addition to such amounts owed
under this Lease. Should Tenant make a partial payment of past due amounts, the
amount of such partial payment shall be applied first to reduce all accrued and
unpaid late charges, in inverse order of their maturity, and then to reduce all
other past due amounts, in inverse order of their maturity.
6. Tenant Acceptance. Except as otherwise provided herein, Tenant has
accepted the Premises from Landlord pursuant to this Lease on an "as-is" basis,
and each party acknowledges that, except as specifically provided herein,
Landlord has made, makes and shall make no representations or warranties with
respect to the Premises, express or implied. Tenant acknowledges that Tenant has
had the full and complete opportunity to inspect the Premises (and to have the
engineering and other inspection reports prepared by professionals with respect
to the Premises). Without limiting the generality of the foregoing, Tenant
acknowledges and agrees that Landlord, except as specifically provided herein,
has made, makes and shall make (i) no representation or warranty of
tenantability or habitability with respect to the Premises, (ii) no
representation or warranty of fitness with respect to any personal property
contained therein, (iii) and no representation or warranty with respect to the
physical condition of the Premises or the operating order or condition of any
fixtures, equipment or systems of the Premises; and Tenant agrees that, except
for the representations specifically made herein, Tenant is not relying upon any
representations or warranties of Landlord with respect to the tenantability or
habitability, fitness, physical condition or operating order of the Premises or
any of the personal property or fixtures, equipment or systems contained
therein.
7. Security Deposits. Tenant shall pay to Landlord on or before March
1, 2000 a Security Deposit in the amount of $9,000.00. This Security Deposit
shall be returned to Tenant after termination of this Lease and delivery of
possession of the Premises in accordance with the terms of this Lease to the
Landlord. Such Security Deposit (or portion thereof) may be used by Landlord
toward payments due from Tenant. Tenant agrees to immediately restore the
Security Deposit so as to maintain a $9,000 balance throughout the term.
8. Usage. Tenant warrants and represents to Landlord that the Premises
shall be used and occupied only for the purpose of general offices (including
conference and computer facilities, employee kitchen and related facilities) and
for no other purpose.
9. Building Services. During the Term of this Lease, Landlord agrees to
operate and maintain the Building in a manner similar to and in accordance with
a standard of comparable buildings in the Boca Raton, Florida market area
("Comparable Buildings") and to provide to Tenant the following services, which
include, but are not limited to:
(a) General cleaning and janitorial service required as a result
of normal, prudent use of the Premises in accordance with EXHIBIT C attached
hereto and made a part hereof and only on Mondays through Fridays, inclusive,
with New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and Christmas Day (herein collectively called the "Holidays") excepted;
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(b) Heating, ventilating and air-conditioning service daily on
Mondays through Fridays, inclusive, with Holidays excepted, from 8:00 A.M. to
6:00 P.M. and on Saturdays, if not a Holiday, from 8:00 A.M. to 1:00 P.M. The
range of temperatures maintained in the Building shall be comparable to those
maintained in other like-kind office buildings in the City of Boca Raton,
Florida as the same may be regulated by governmental authority. Should Tenant
desire either heating or air conditioning at times when such services are not
furnished by Landlord under the terms of this Lease, such shall be provided upon
not less than twenty-four (24) hours prior notice to Landlord during Landlord's
normal business hours, and Tenant shall pay to Landlord $35.00 per hour. Tenant
may, in accordance with Section 12 hereof, install supplemental air conditioning
systems in the Premises at the sole cost and expense of Tenant, which systems
shall be separately metered (the installation cost of such meter to be Tenant's
expense) and all utility costs associated with such systems shall be Tenant's
responsibility.
(c) Electric current for lighting and reasonable facilities for
furnishing usual and normal electric power for office space. Tenant shall not,
without Landlord's prior written consent, use or install any equipment (i) which
consumes more than 30 Amps and 208 volts or (ii) uses electric current in excess
of the capacity of the feeders or lines to the Building or the risers or wiring
installation of the Building or the Premises;
(d) On-site property management services;
(e) Installation, as an Operating Expense subject to
reimbursement as provided in Section 4 hereof, of all replacement fluorescent
lamps, light bulbs and ballasts as needed in the Premises (including any
non-standard, special or upgraded lamps and ballasts within the Premises,
provided Tenant shall pay to Landlord upon demand as Additional Rent the
incremental difference in the cost of such non-standard lamps and ballasts over
the building standard lights and ballasts); and
(f) Passenger and freight elevators serving each of the floors of
the Premises in common with other tenants.
Failure by Landlord to any extent to furnish these defined services or
any other services not enumerated or any cessarion thereof, shall not render
Landlord liable in any respect for damages to either person or property, give
rise to any abatement of rent or relieve Tenant from fulfillment of any covenant
contained in this Lease. Should any of the equipment or machinery break down, or
for any cause cease to function properly, Landlord shall use reasonable
diligence to repair the same promptly, but Tenant shall have no claim for
abatement or rebate of rent on account of any interruption in service occasioned
from the repairs, except a specifically provided below.
10. INTENTIONALLY OMITTED.
11. Repairs and Maintenance. (a) Tenant's Repairs and Maintenance.
Tenant shall, at its own cost and expense, maintain the Premises in condition
existing on the date of this Lease, including all necessary repairs and
replacements. Tenant shall further, at its own cost and expense, repair or
restore any damage or injury to all or any part of the Building caused by Tenant
or Tenant's agents, employees, invitees, licensees, visitors or contractors,
including but not limited to any repairs or replacements necessitated by (i) the
construction or installation of
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improvements to the Premises by or on behalf of Tenant, (ii) the installation,
use or operation of Tenant's property, or (iii) the moving of any property into
or out of the Premises; provided, however, if Tenant fails to make the repairs
or replacements promptly, Landlord may, at its option upon ten (10) business
days written notice, make the repairs or replacements and the costs of such
repairs or replacements shall be charged to Tenant as Additional Rent and shall
become due and payable by Tenant with the monthly installment of Base Rent next
due hereunder.
(b) Condition at End of Term. On the Expiration Date, Tenant
shall surrender the Premises to Landlord in the condition in which Premises were
originally received from Landlord, except for ordinary wear and tear and damage
by casualty or taking not required to be repaired by Tenant hereunder. So long
as Tenant is not in default hereunder, Tenant may remove the Premises on or
prior to the Expiration Date all property situated therein which is not owned by
Landlord, and Tenant shall, on or prior to the Expiration Date, remove all of
Tenant's office equipment, trade fixtures and moveable furnishings from the
Premises. Property not so removed shall become the property of Landlord, and
Landlord may at Tenant's expense remove such property from the Premises and
dispose thereof without any liability of Landlord to Tenant.
(c) Landlord's Repairs and Maintenance. Landlord shall during the
Term maintain the Building in a manner comparable to other Comparable Buildings,
including, but not limited to, public areas of the Building, landscaped areas of
the Land and Building, elevators, stairs, common restrooms and main lobby area
for the Building, heating, ventilating and air conditioning systems (exclusive
of any Tenant supplemental air conditioning systems that Tenant shall install),
other mechanical systems, plumbing, life safety systems, electrical systems and
the structure.
12. Alterations and Improvements. (a) No alteration, addition,
improvement or installation (hereinafter collectively "Alterations" or
individually referred to as an "Alteration") to the Premises shall be made or
permitted to be made by Tenant, except as provided in Section 12(b) below,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. As a condition of giving any consent under
this Section 12, Landlord may require, among other things, that Tenant (a)
deliver to Landlord and obtain Landlord's approval of final plans and
specifications for the Alterations, (b) obtain Landlord's approval of all
contractors and subcontractors performing Alterations, (c) obtain all permits,
approvals and certificates required by governmental or quasi-governmental
bodies, and upon completion, certificates of final approval and shall deliver
promptly duplicates required by governmental permits, approvals and certificates
to Landlord, (d) carry and cause all contractors and subcontractors to carry,
worker's compensation, general liability, personal and property damage
insurance, (e) if notice is given by Landlord to Tenant concurrently with the
delivery of Landlord's approval of any alteration that Landlord will require the
removal of an Alteration at the expiration or earlier termination of the term,
Landlord shall have the right to require Tenant, at its sole cost and expense,
to remove any "Non-Standard" (hereinafter defined) Alteration, at the expiration
or earlier termination of the Term and (f) provide security reasonably
satisfactory to Landlord in order to insure that the Premises and Building shall
be kept free from mechanics' or materialmens' liens and that all approved
Alterations will be fully paid for. For purposes of this Section 12(a), a
"Non-Standard" Alteration shall be any Alteration (y) that shall in Landlord's
reasonable opinion require demolition costs on a per square foot basis
materially greater than the costs on a per square foot basis to demolish the
tenant improvements initially
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installed in the Premises and approved by Landlord and (z) that is of a nature
nor generally found in comparable office space at the time of the request for
approval.
Notwithstanding the foregoing provisions of this Section 12(a), Tenant
shall have no right without Landlord's prior written consent, to make any
Alterations which would (i) adversely affect the load bearing structural
components and structural soundness of the Building, (ii) adversely affect the
central environmental systems (excluding ventilation duets, diffusers and
returns), (iii) adversely affect the electrical, plumbing or other utility
systems of the Building or (iv) adversely affect the roofing systems, window
glass, window gaskets or glazing.
Landlord agrees to provide a $15.00 per SF allowance to be used by
Tenant in the design and construction of the Premises. Such allowance shall be
below the finished ceiling.
(b) Notwithstanding the foregoing, Tenant may, without Landlord's
consent, make Alterations that are non-structural in nature and do not adversely
affect the Building mechanical, plumbing or electrical systems; provided (i)
tenant shall give Landlord fifteen (15) days advance notice of such Alterations
which notice shall include a description of such Alterations; (ii) all such
Alterations shall be installed or constructed in accordance with all laws; (iii)
Tenant shall obtain all necessary permits required by governmental or
quasi-governmental bodies; (iv) all contractors shall be approved by Landlord,
such approval not to be unreasonably withheld or delayed; (v) Tenant shall
deliver to landlord upon completion thereof as-built plans therefore; (vi) if
the Alteration is a Non-Standard Alteration and if notice is given by Landlord
to Tenant within said fifteen (15) day period that Landlord requires the removal
of such Non-Standard Alteration at the expiration or earlier termination of the
Term, then Tenant shall, at its sole costs and expense, remove any Non-Standard
Alteration at the expiration or earlier termination of the Term; and (vii)
Tenant shall carry and cause its contractors to carry worker's compensation,
general liability, personal and property damage insurance.
(c) Notwithstanding any provision in this Section 12 or otherwise
in this Lease to the contrary, Tenant shall not make any Alteration that shall
affect the facade or exterior face of the Building or otherwise affect the
appearance of the Building from the exterior of the Building in any respect.
Landlord reserve the right to unreasonably withhold its consent to any such
Alteration in Landlord's sole and absolute discretion.
(d) All Alterations which may be made to the Premises, shall
become the property of Landlord and remain and be surrendered with the Premises.
Tenant agrees to repair any damage to the Premises caused by or in connection
with the removal of any articles of personal property, business or trade
fixtures, including without limitation thereto, repairing the floor and patching
and painting the wall where damaged.
13. Standards for Work. (a) Whenever in this Lease Landlord or Tenant
is permitted or required to maintain and repair, or make additions, alterations,
substitutions or replacements, or reconstruct or restore the Building or the
Premises, such party shall cause such work (the "Work") to be done and completed
in a good, substantial and workmanlike manner, free from faults and defects, and
in compliance with all legal requirements, and shall utilize only new
first-class materials and supplies. The party performing such Work shall be
solely responsible for construction means, methods, techniques, sequences and
procedures, and for coordinating all activities related to the Work, and the
other party shall have no duty or obligation to inspect the
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Work, but shall have the right to do so.
(b) Whenever Landlord or Tenant is required to perform any Work
upon the Building or the Premises, such party shall promptly commence the Work
and, once the Work is commenced, diligently and continually pursue the Work and
complete the Work within a reasonable time. The party performing such Work shall
supervise and direct the Work utilizing its best efforts and reasonable care,
and shall assign such qualified personnel to the Work as may be necessary to
cause the Work to be completed in an expeditious fashion.
(c) The party performing such Work shall (i) provide and pay for
all labor, material, goods, supplies, equipment, appliances, tools, construction
equipment and machinery and other facilities and services necessary for the
proper execution and completion of the Work; (ii) promptly pay when due all
costs and expenses incurred in connection with the Work; (iii) pay all sales,
consumer, use and similar taxes required by law in connection with the Work;
(iv) secure and pay for all permits, fees and licenses necessary for the
performance of the Work; and (v) at all times maintain the Premises and the
Project free and clear from any and all liens, claims, security interests and
encumbrances arising from or in connection with the Work, including, without
limitation, liens for materials delivered, supplied or furnished, or for
services or labor performed or rendered. All materials, supplies, goods,
appliances and equipment incorporated in the Work shall be free from any liens,
security interests or title retention arrangements, other than the lien or
security interest (if any) of the holder of any Mortgage placed upon the
Premises by Landlord. However, nothing contained in this Section is intended to
restrict or affect any right the party performing such Work may otherwise have
under this Lease for reimbursement of any costs or expenses incurred in
connection with such Work.
(d) The party performing such Work shall (i) be responsible for
the acts and omissions of all of it employees and all other persons performing
any of the Work; (ii) be responsible for initiating, maintaining and supervising
all necessary safety precautions and programs in connection with the Work; (iii)
take all reasonable precautions for the safety of, and provide all reasonable
protection to prevent damage, injury or loss to, the Work, all persons
performing the Work, all other persons who may be involved in or affected by the
Work, all materials and equipment to be incorporated in the Work and all other
property in the Building or on the land or adjacent thereto; (iv) purchase and
maintain in full force and effect, an cause its contractors and subcontractors
to purchase and maintain in full force and effect, such insurance (if any) in
addition to that otherwise required of such party under this Lease as may be
necessary to protect such party from claims under worker's compensation acts and
other employee benefit acts, from claims for damages because of bodily injury,
including death, and from claim for damage to property which arise out of
performance of the Work. Such additional insurance policies, if any, shall meet
the requirements set forth elsewhere herein with respect to the insurance
policies otherwise required to be obtained and maintained by such party under
this Lease. The party performing such Work shall pay and shall indemnify and
save the other party and its officers, employees and agents harmless from all
liabilities, damages, losses, costs, expenses, causes of action, suits, claims,
demands and judgments of any nature arising out of, by reason of or in
connection with the Work.
14. Compliance with Laws, Rules and Regulations. Tenant, at Tenant's
expense, shall comply with all laws, ordinances, orders, rules and regulations
of state, federal, county,
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municipal or other agencies or bodies having jurisdiction relating to the
Premises. Tenant will comply with the Rules and Regulations adopted by Landlord
which are set forth on EXHIBIT D, attached hereto and hereby made a part hereof.
Landlord shall have the right at all times to change the Rules and Regulations
in any reasonable manner as Landlord may deem necessary or advisable. All
changes and amendments in the Rules and Regulations will be sent by Landlord to
Tenant in writing and shall thereafter be carried out and observed by Tenant.
Landlord shall not enforce the Rules and Regulations in a discriminatory manner
against Tenant. landlord shall comply with all laws, ordinances, orders, rules
and regulation of state, federal, county, municipal or other agencies or bodies
having jurisdiction relating to the Building other than the Premises and
portions of the Project leased to other tenants.
15. Condemnation. (a) Substantial Taking. If, during the Term, all or a
substantial part of the Premises is permanently taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or by purchase or exchange in lieu thereof, and the
taking would prevent or materially interfere with the use of the Premises for
the purpose for which they are then being used, the Term shall terminate and the
Rent shall be abated during the otherwise unexpired portion of the Term
effective on the date physical possession of the condemned property it taken by
the condemning authority. The determination of whether such taking would prevent
or materially interfere with the use of the Premises shall be made by Landlord,
however Landlord shall act reasonably in making such determination.
(b) Less Than Substantial Taking. In the event a portion of the
Premises shall be taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain or by
purchase or exchange in lieu thereof, and the Term is not terminated as provided
in subsection (a) above, Landlord may, at Landlord's option and at Landlord's
expense, restore and reconstruct the Building and other improvements of which
the Premises are a part to the extent necessary to make them reasonably
tenantable, and the Rent for the remainder of the Term shall be abated to such
extent as may be fair and reasonable considering all the circumstances.
16. Fire and Casualty. (a) Substantial Damage. If the Premises should
be totally destroyed by fire or other casualty, or if the Premises should be so
damaged such that the rebuilding cannot reasonably be completed within two
hundred forty five (245) days after the date of written notification by Tenant
to Landlord of the destruction, either Landlord or Tenant may terminate this
Lease and the Rent shall be abated for the otherwise unexpired portion of the
Term, effective as of the date of such casualty. The determination of whether
such rebuilding can reasonably be completed within such period shall be made by
Landlord, however, Landlord shall act reasonably in making such determination.
(b) Less Than Substantial Damage. If the Premises should be
partially damaged by fire or other casualty, and the rebuilding or repairs can
reasonably be completed within two hundred forty five (245) days after written
notification by Tenant to Landlord of the damage, or if Landlord or Tenant does
not elect to terminate the Lease as set forth in Section 16(a) above, Landlord
may at its option, either terminate this Lease or proceed with reasonable
diligence to rebuild or repair the Building or other improvements of which the
Premises are a part to substantially the same condition as existed prior to the
damage. If the Premises are to be so rebuilt or repaired and are untenantable in
whole or in part following the damage, and the
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damage was not caused or contributed to by the willful misconduct of Tenant, its
agents, employees, invitees, visitors, contractors, or those for whom Tenant is
responsible, the Rent payable hereunder during the period for which the Premises
are untenantable shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. In the event that Landlord fails to complete
the necessary repairs or rebuilding within two hundred forty five (245) days
from the date of written notification by Tenant to Landlord of the damage, with
due allowance for any force majeure, Tenant may at its option terminate this
Lease effective as of the end of such period for repair or rebuilding, by
delivering written notice of such termination to Landlord.
17. Insurance. (a) Landlord's Insurance. Landlord agrees to maintain
during the Term the following insurance (the cost of which is to be included as
an Operating Expense): (i) "all risk" coverage insurance on the Building and the
other improvements on the Property, exclusive of any improvements constructed
within the Premises by or on behalf of Tenant, in an amount equal to the full
replacement cost thereof; and (b) a policy or policies of worker's compensation
and comprehensive general liability insurance, including personal injury and
property damage in the amount of One Million and No/100 Dollars ($1,000,000.00)
for property damage and One Million and No/100 Dollars ($1,000,000.00) per
occurrence for personal injuries or deaths of persons occurring in or about the
Property. Tenant shall not permit the Premises to be used in any way which
would, in the opinion of Landlord, be extra hazardous on account of fire or
other hazard or casualty or which would otherwise and in other ways increase the
premiums for or render void any insurance relating to the Building or the
contents thereof or any liability of Landlord. If Tenant's specific use and
occupancy of the Premises causes any increase in any insurance premiums paid by
Landlord with respect to the Building, or if Tenant abandons the Premises and
thereby causes an increase in such premiums, then Tenant shall pay the Landlord
upon demand as Additional Rent the amount of such increase. Landlord shall not
be obligated in any way or manner to insure any personal property (including but
not limited to any furniture, machinery, equipment, goods or supplies) of Tenant
or which Tenant may have upon or within the Premises or any fixtures installed
by or paid for by Tenant upon or within the Premises or any additional
improvements which Tenant may construct on the Premises.
(b) Tenant's Insurance. Tenant shall, at its sole expense, at all
times during the Term of this Lease maintain in effect a policy or policies of
insurance (i) covering its personal property located in the Premises and tenant
improvements to the Premises paid for and installed by Tenant and Landlord other
than as set forth in (a) above, providing protection against any period included
under insurance practices within the classification "all risk" and to the full
insurable value of such personal property and tenant improvements and (ii)
comprehensive public liability insurance with respect to the Premises and the
conduct or operation of Tenant's business therein, with limits of not less than
One Million and No/100 Dollars ($1,000,000.00) for death or bodily injury to any
one or more persons in a single occurrence and One Million and No/100 Dollars
($1,000,000.00) for property damage. Tenant hereby waives any and all rights of
recovery against Landlord for any insured loss or liability occurring to
Tenant's personal property and tenant improvements and the aforesaid policy or
policies shall contain appropriate provisions recognizing this release by Tenant
and waiving all rights of subrogation by the insurance carrier. Except for
Landlord's negligence or willful misconduct, Tenant hereby indemnifies and holds
Landlord harmless from all claims, demands, actions, damages, loss, liabilities,
judgments, costs and expenses, including, without limitation, attorneys' fees
and costs which are suffered by, recovered from or asserted against Landlord and
arise from or in
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connection with the use or occupancy of the Premises and/or any accident, injury
or damage occurring in the Premises. Tenant shall maintain a policy or policies
of insurance with the premiums paid in advance issued by and binding upon a
solvent insurance company, authorized to transact business in Florida, insuring
all personal property of Tenant upon or within the Premises in an amount equal
to the full replacement cost of such property. Tenant shall deliver certificates
of such insurance to Landlord on or before the Commencement Date, and thereafter
from time to time upon request.
18. Waiver of Subrogation. Landlord and Tenant, to the fullest extent
permitted by law, each hereby waive all claims, causes of action and rights of
recovery against the other for and hereby release the other from liability for,
loss or damage to the extent such loss or damage is insured by valid and
collectible insurance in effect at the time of such loss or damage.
19. Liability and Indemnification. Landlord shall not be liable to
Tenant's employees, agents, invitees, licensees, contractors or visitors, or to
any other person, for any injury to person or damage to property on or about the
Premises caused by the negligence or misconduct of Tenant, its agents, servants,
or employees or of any other person entering upon the Premises under express or
implied invitation by Tenant. Except for Landlord's negligence or willful
misconduct, Tenant agrees to indemnify and hold harmless Landlord of and from
any loss, attorneys' fees, expenses or claims arising out of (i) any such damage
or injury, (ii) any and all defaults by Tenant hereunder, or otherwise by reason
of or resulting from the use or occupancy of the Premises.
Except for Tenant's negligence or willful misconduct, Landlord
agrees to indemnify and hold harmless Tenant from any loss, attorneys' fees,
expenses or claims arising out of Landlord's negligence or willful misconduct.
20. Quiet Enjoyment. Landlord warrants that it has full right to
execute and to perform this Lease and that Tenant, upon payment in full of the
required Rent and full performance of the terms, conditions, covenants and
agreements contained in this Lease, shall peaceably and quietly have, hold and
enjoy the Premises during the Term, subject only to the matters set forth in
Section 21 below. Landlord shall not be responsible for the acts or omissions of
any other Tenant, lessee or third party that may interfere with Tenant's use and
employment of the Premises.
21. Landlord's Right Of Entry. With reasonable notice (except in the
case of an emergency), Landlord or its authorized agent shall at any and all
reasonable times have the right to enter the Premises to inspect the same, to
supply janitorial service or any other service to be provided by Landlord, to
show the Premises to perspective purchasers or tenants (only during the last
twelve (12) months of the Term with respect to prospective tenants), and to
alter, improve or repair the Premises or any other portion of the Building.
Tenant shall make available a representative of Tenant during all periods
(except in an emergency) during which Landlord shall at all times have and
retain a key with which to unlock all of the doors in, upon and about the
Premises. Tenant shall not change Landlord's lock system or in any other manner
prohibit Landlord from entering the Premises. Landlord shall have the right to
use any and all means which Landlord may deem proper to open any door in an
emergency without liability therefore.
22. Assignment of Sublet. (a) Tenant shall not assign, in whole or in
part, this Lease, or allow it to e assigned, in whole or in part, by operation
of law or otherwise(including without
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limitation by transfer of a majority interest in a partnership or a majority
interest of stock, merger or dissolution, which transfer of majority interest,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Premises in whole or in part, without the prior written
consent of Landlord (which consent shall not be unreasonably withheld or
delayed) and in no event shall any such assignment or sublease release Tenant or
any guarantor from any obligation or liability hereunder. The foregoing
provision of this Section 22 shall not apply to restrict any transfer of stock
whenever Tenant is a corporation the outstanding stock of which is listed on a
recognized national stock exchange or the National Association of Securities
Dealers National Market System or in connection with an initial public offering
or a private placement of stock pursuant to Section 3(a)(11), (4)(2) or
regulations D and S of the Securities Act of 1933, as amended. No assignee or
sublessee of the Premises or any portion thereof may assign or sublet the
Premises or any portion thereof.
(b) Any assignment or sublease made by Tenant without Landlord's
consent when Landlord's consent is required pursuant to the terms of this Lease
shall be void, and, at Landlord's option, constitute a default under the terms
and conditions of this Lease.
(c) Consent by Landlord to any assignment, transfer or subletting
to any party, shall not be construed as a waiver or a release of Tenant from the
terms of any covenant or obligation under this Lease, nor shall its consent to
one assignment, transfer or subletting to another person, partnership, firm or
corporation.
(d) In the case of an approved subletting, Landlord shall have
the right to any and all sums or economic consideration in excess of the Base
Rent and Additional Rent payable hereunder from such subletting reasonably
attributable to the sublet portion of the Premises, as and when received. In the
case of an assignment of this Lease, Landlord shall have the right to any and
all sums or other economic consideration in excess of the Base Rent and
Additional Rent reasonably attributable to such assignment of this Lease, as and
when received.
(e) Notwithstanding the above provisions of this Section 22,
Tenant shall have the right to sublet or assign all or part of the Premises
without the prior consent of Landlord to: (i) any person, corporation,
partnership or other entity which shall control, be under the control of, or be
under common control with, Tenant and/or (ii) any corporation, partnership or
other business entity resulting from the merger, consolidation or other business
combination with Tenant to any person or entity that acquires all or
substantially all of Tenant's assets as a going concern of the business that is
being conducted in the Premises, as long as the assignee or sublessee assumes in
full the obligations of Tenant under this Lease, provided, however, that (1)
such assignee or subtenant must be a bona fide entity, (2) such assignee's or
subtenant's proposed use of the Premises must be consistent with the uses
permitted under this Lease, (3) the character, reputation, and business of the
proposed assignee or sublessee is consistent with the tenants then in the
Building, including Tenant and (4) Tenant shall nonetheless be required to
provide the following information, documentation and notice: (aa) the identity
of such sublessee or assignee, (bb) the planned use of the Premises and the
business to be conducted therefrom, and (cc) reasonable documentation to
evidence that the proposed sublessee or assignee shall in fact be an affiliate
meeting the qualifications of this Section 22(e). Further, if requested by
Landlord, Tenant shall provide to Landlord such other information as may be
reasonably requested by Landlord during such fifteen (15) business day period to
substantiate Tenant's right
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to consummate said subleases or assignments as contemplated by this Section
22(e). For purposes of this Section 22, the term "control" shall mean
possession, direct or indirect, of the power to direct, or cause the direction
of, the management and policies of any person or entity, if through the
ownership of at least twenty percent (20%) of the voting securities, partnership
interests or similar ownership rights. Landlord acknowledges that such
information is confidential information and may not be used, disclosed or acted
upon for the purpose of xxxxxxx xxxxxxx or otherwise in contravention of the
Securities Act of 1933, as amended, or the Exchange Act of 1934.
23. Events of Default. Each of the following shall be deemed to be an
Event of Default by Tenant under this Lease: (a) Tenant shall fail to pay any
installment of Base Rent and Additional Rent when due or any other amount
required pursuant to this Lease within five (5) days after written notice by
Landlord to Tenant that such sum is due and unpaid; provided, however, that
notwithstanding the foregoing, Landlord shall have no obligation to notify
Tenant of the failure to pay any sum due from Tenant under this Lease on more
than two (2) occasions during any twelve (12) month period; (b) Tenant shall
fail to comply with any term, provision or covenant of this Lease, other than
payment of Base Rent, Additional Rent, or any other required amount, and the
failure is not cured within thirty (30) days after written notice to Tenant (or
if such failure to comply on the part of Tenant would reasonably require more
than thirty (30) days to rectify, unless Tenant commences rectification within
the thirty (30) day notice period and thereafter promptly, effectively an
continuously proceeds with the rectification of the failure to comply on the
part of Tenant and, in all events, cures such failure to comply on the part of
Tenant no later than sixty (60) after such notice); (c) Tenant shall file a
petition for relief or be adjudged bankrupt or insolvent under the Federal
Bankruptcy Act, as amended, U.S.C.A. Title 11 (entitled "Bankruptcy") Section
101 et seq., as amended, or any similar law or statute of the United States or
any state; or a receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant; or Tenant shall make a transfer in fraud of
creditors or shall make an assignment for the benefit of creditors and fails to
have such receiver or trustee dismissed within ninety (90) days from the date of
such appointment; or (d) Tenant shall do or permit to be done any act which
results in a lien being filed against the Premises or the Building and fails to
remove such lien by payment, bond or otherwise within twenty (20) business days
from receipt of Landlord's notice to remove.
24. Remedies For Tenant's Default. Upon the occurrence of any event of
Default, Landlord may at its option pursue any one or more of the following
remedies, and any and all other rights or remedies accruing to Landlord by law
or otherwise, without any notice or demand: (a) commence dispossessory
proceedings with or without the termination of this Lease; (b) declare the
entire amount of Rent calculated on the current rate being paid by Tenant, and
other sums which in Landlord's reasonable determination would become due and
payable during the remainder of the Term (including, but not limited to,
increases in Rent pursuant to the terms hereof), discounted to present value by
using a reasonable discount rate selected by Landlord, to be due and payable
immediately. Upon such acceleration of such amounts, Tenant agrees to pay the
same at once, together with all Rent and other amounts theretofore due, at
Landlord's address as provided herein, provided however, that such payment shall
not constitute a penalty or forfeiture but shall constitute liquidated damages
for Tenant's failure to comply with the terms and provisions of this Lease
(Landlord and Tenant agreeing that Landlord's actual damages in such an event
are impossible to ascertain and that the amount set forth above is a reasonable
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estimate thereof). Upon making such payment, Tenant shall receive from Landlord
all rents received by Landlord from other tenants renting the Premises during
the Term, provided that the monies to which Tenant shall so become entitled
shall in no event exceed the entire amount actually paid by Tenant to Landlord
pursuant to the preceding sentence, less all of Landlord's costs and expenses
(including, without limitation, brokerage and attorneys' fees and expenses)
incurred in connection with or in any way related to the reletting of the
Premises. The acceptance of such payment by Landlord shall not constitute a
waiver of rights or remedies to Landlord for any failure of Tenant thereafter
occurring to comply with any term, provision, condition or covenant of this
Lease; (c) commence proceedings against Tenant for all amount owed by Tenant to
Landlord whether a Base Rent, Additional Rent, damages or otherwise; (d)
terminate the Term, in which event Tenant shall immediately surrender the
Premises to Landlord and Tenant agrees to pay on demand the amount of all loss
and damage which Landlord may suffer by reason of the termination of the Term
under this subsection or otherwise; (e) with or without terminating this Lease,
relet the Premises on behalf of Tenant an receive directly the rent by reason of
the reletting in which event Tenant agrees to pay landlord on demand any
deficiency that may arise by reason of any reletting of the Premises and to
reimburse Landlord upon demand for any expenditures made by it for remodeling or
repairing in order to relet the Premises and for all other expenses incurred in
connection with such reletting; Landlord shall not be liable for any failure to
relet the Premises, in whole or in part, nor for any failure to collect any rent
due from any such reletting; rather, Tenant shall remain liable for all Rent and
for all such expenses; (f) enter upon and take possession of the Premises,
without being liable for prosecution of any claim for damages or for trespass or
other tort; (g) do or caused to be done whatever Tenant is obligated to do under
the terms of this Lease, in which case Tenant agrees to reimburse Landlord on
demand for any and all costs or expenses which Landlord may thereby incur and
Tenant agrees that Landlord shall not be liable for any damages resulting to
tenant from effecting compliance with Tenant's obligations under this
subsection, whether caused by the negligence of Landlord or otherwise; or (h)
enforce the performance of Tenant's obligations hereunder by injunction or other
equitable relief (which remedy may be exercised upon any breach or default or
any threatened breach or default of Tenant's obligations hereunder).
25. Waiver Of Default Or Remedy. Tenant understands and acknowledges
that no assent, express or implied, by Landlord to any breach of any one or more
of the terms, covenants or conditions hereof shall be deemed or taken to be a
waiver of any succeeding or other breach, whether of the same or any other term,
covenant or condition hereof.
26. Force Majeure. Landlord and Tenant (except with respect to the
payment of Base Rent, Additional Rent or any other monetary obligation under
this Lease) shall be excused for the period of any delay and shall not be deemed
in default with respect to the performance of any of the terms, covenants and
conditions of this Lease when prevented from so doing by a cause or causes
beyond the Landlord's or Tenant's (as the case may be) control, which shall
include, without limitation, all labor disputes, governmental regulations or
controls, fire or other casualty, inability to obtain any material or services,
acts of God, or any other cause not within the reasonable control of Landlord or
Tenant (as the case may be).
27. Attorney's Fees. In the event of any lawsuit or court action
between Landlord and Tenant arising out of or under this Lease or the terms and
conditions stated herein, the prevailing party in such lawsuit or court action
shall be entitled to and shall collect from the non-prevailing party the
reasonable attorney's fees and court costs actually incurred by the prevailing
party with
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respect to said lawsuit or court action. The prevailing party shall be deemed to
be that party who obtains substantially the same relief sought whether by
compromise, settlement or judgment.
28. Holding Over. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession of the Premises to
Landlord. If Tenant retains possession of the Premises or any part thereof after
such termination, then such holding over shall create a tenancy at sufferance
upon the terms and conditions set forth in this Lease; provided, however, that
the Base Rent shall, in addition to all other sums which are to be paid by
Tenant hereunder, whether or not as Additional Rent, be equal to one hundred
fifty percent (150%) of the Base Rent being paid to Landlord under this Lease
immediately prior to such termination (prorated for each day Tenant remains in
possession); provided, however, that in the event Landlord has provided Tenant
notice of termination and Tenant retains possession the Base Rent shall be two
hundred percent (200%) of the Base Rent being paid to Landlord under this Lease
immediately prior to such termination (prorated for each day Tenant remains in
possession); and there shall be no renewal of this Lease by operation of law.
The provisions of this Section 28 shall not constitute a waiver of any right of
re-entry as herein set forth or as provided by law; nor shall receipt of any
rent or other act in apparent affirmance of the tenancy operate as a waiver of
the right to terminate this Lease for a breach of any of the terms, covenants or
obligations herein on Tenant's part to be performed.
29. Rights Of Mortgagees And Others. Tenant accepts this Lease subject
and subordinate to the lien or security title of any recorded mortgage, deed of
trust or deed to secure debt presently existing or hereafter created upon the
Premises and to all existing recorded restrictions, covenants, easements and
agreements with respect to the Building or any part thereof, and all amendments,
modifications and restatements thereof and all replacements and substitutions
therefor. Any provisions of this Lease requiring the approval or consent of
Landlord shall not be deemed to have been unreasonably withheld if any mortgagee
(which shall include the holder of any mortgage, deed of trust or deed to secure
debt) of the Premises or Building or any portion thereof shall refuse or
withhold its approval or consent thereto. Any requirement of Landlord pursuant
to this Lease which is imposed pursuant to the direction of any such mortgagee
shall be deemed to have been reasonably imposed by Landlord if made in good
faith. Landlord agrees to obtain from the holder of any current or future
indebtedness secured by a deed of trust, deed to secure debt or mortgage
encumbering the Building such holder's agreement substantially in the form
attached hereto as EXHIBIT E and incorporated herein by this reference stating
that in the event of foreclosure under such deed of trust, deed to secure debt
or mortgage (or deed in lieu thereof), the purchaser or new owner of Building
will not disturb Tenant's occupancy or any other rights under the terms of this
Lease, and will honor and recognize this Lease, so long as Tenant is not in
default under the terms and provisions of this Lease subject to terms and
conditions typically contained in such instruments.
30. Estoppel Certificates. Within ten (10) business days following any
written request which a party may make from time to time (but not more often
than four (4) times in any calendar year), the other party shall execute,
acknowledge and deliver to the requesting party a certificate stating that this
Lease is unmodified and in full effect (or, if there have been modifications,
that this Lease is in full effect as modified, and setting forth such
modifications); the amounts and dates to which Base Rent, Additional Rent and
other sums payable hereunder have been paid; such other reasonable information
pertaining to the Lease as may be requested by Landlord or Tenant, as the case
may be; and either that to the knowledge of the signer of such
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certificate no default exists hereunder or specifying each such default of which
the signer has knowledge. Landlord and Tenant intend that any statement
delivered pursuant to this Section 30 may be relied upon by the requesting party
and any individual or entity named by the requesting party in the request
therefor.
31. Successors And Assigns. This Lease shall be binding upon and inure
to the benefit of Landlord and Tenant and their respective heirs,
representatives and assigns, subject, however, to the provisions of Section 23
above. It is hereby covenanted and agreed that should Landlord's interest in the
Premises cease to exist for any reason during the Term, then notwithstanding the
happening of such event this Lease nevertheless shall remain unimpaired and in
full force and effect and Tenant hereby agrees to be bound and obligated
hereunder to the then owner of the Premises as landlord provided the new owner
accepts the obligations of landlord hereunder.
32. Notice. (a) Except for legal process, which may also be served as
by law provided or as provided below, all notices required or desired so be
given with respect to this Lease shall be in writing and shall be deemed to be
given to and received by the party intended to receive such notice when
delivered by overnight courier, hand delivered or three (3) days after such
notice shall have been deposited, postage prepaid, in the United States mail,
certified, return receipt requested, properly addressed to the addresses
specified below. In the event of a change of address by either party, such party
shall give written notice thereof in accordance with the foregoing.
Landlord's Address for Notices: Tenant's Address for Notices:
------------------------------- ----------------------------
Fairfax Boca 92, L.P. Visual Edge Systems Inc.
c/o Flagship Group, Inc. 000 Xxxxxx Xxxx, Xxxxx 000
2300 Xxxxx Xxxxx Xxxxxxx, Xxxxx 00 Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxxx, XX 00000-0000 Attention: Xxx Xxxxxx
Attention: X. Xxxxx Germany
33. Brokerage Claims. Tenant and Landlord hereby warrant and represent
to the other that Tenant or Landlord, as the case may be, has not dealt with any
broker, agent or finder in connection with this Agreement other than Xxxxxxx &
Xxxxxxxxx of Florida, Inc. Both Landlord and Tenant covenant and agree to hold
each other harmless from and against any and all loss, liability, damage, claim,
judgment, cost or expense (including but not limited to attorneys' fees and
expenses and court costs) that may be incurred or suffered by the other party
because of any claim for any fee, commission or similar compensation with
respect to this Agreement, made by any other broker, agent or finder claiming to
have dealt with such party, whether or not such claim is meritorious. Landlord
agrees to pay Xxxxxxx & Wakefield of Florida, Inc. pursuant to a separate
agreement.
34. Signs. Tenant shall not install, paint, display, inscribe, place or
affix any sign, picture, advertisement, notice, lettering, or direction
(hereinafter collectively called "Signs") on the exterior of the Premises, the
common areas of the Building, the interior surface of glass or any other
location which could be visible from outside of the Premises without first
securing written consent from Landlord therefore. Any Sign permitted by Landlord
shall at all times conform with all municipal ordinances or other laws,
regulations, deed restrictions and protective covenants applicable thereto.
Tenant shall remove all Signs at the expiration or other
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termination of this Lease, at Tenant's sole risk and expense, and shall in a
good and workmanlike manner properly repair any damage caused by the
installation, existence, or removal of Tenant's Signs.
35. Entire Agreement, Amendment and Limitation of Warranties. IT IS
EXPRESSLY AGREED BY TENANT, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF
THIS LEASE, THAT THIS LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC
DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE PARTIES; THAT THERE ARE, AND WERE NO
VERBAL REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR
PROMISES PERTAINING TO THIS LEASE OR THE EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS
NOT INCORPORATED IN WRITING IN THIS LEASE. LANDLORD AND TENANT EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE OR OF ANY OTHER KIND
ARISING OUT OF THIS LEASE AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE
EXPRESSLY SET FORTH IN THIS LEASE. IT IS LIKEWISE AGREED THAT THIS LEASE MAY NOT
BE ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING
SIGNED BY BOTH LANDLORD AND TENANT.
36. Limitation Of Liability. Landlord's obligations and liability with
respect to this Lease shall be limited solely to Landlord's interest in the
Building, as such interest is constituted from time to time, and neither
Landlord nor any officer, director, shareholder or partner or Landlord, or of
any partner of Landlord, shall have any personal liability whatsoever with
respect to this Lease.
37. Submission of Agreement. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to acquire a
right of entry This Lease is not binding or effective until execution by and
delivery to both Landlord and Tenant.
38. Corporate Authority. (a) If Tenant executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Tenant does
hereby represent and warrant that Tenant is a duly organized an validly existing
corporation, that Tenant is qualified to do business in the State in which the
Building is located, that Tenant has full right, power, and authority to enter
into this Lease, and that each person signing on behalf of Tenant is authorized
to do so and Tenant shall provide Landlord evidence reasonably acceptable to
Landlord of such authority. Upon Landlord's request, Tenant shall provide
Landlord with evidence reasonably satisfactory to Tenant confirming the
foregoing representations and warranties.
39. Miscellaneous. The captions appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any provision hereof. If any provision of this
Lease shall ever be held to be invalid or unenforceable in any circumstance or
as to any person, such invalidity or unenforceability shall not effect such
provision in any other circumstance or as to any other person or any other
provision of this Lease. This Lease, or any portion hereof, shall not be
recorded unless both parties hereto agreed to the recording.
40. Governing Law. This Lease shall be governed and construed in
accordance with the laws of the State in which the Building is located.
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41. Counterparts. This Lease may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall constitute one
agreement, and the signatures of any party to any counterpart shall be deemed to
be a signature to, and may be appended to, any other counterpart.
42. Radon Disclosure. 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 a 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 the County Public Health Unit.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Lease under seal as of the day and year first above written.
LANDLORD:
FAIRFAX BOCA 92, L.P.,
a Georgia limited partnership
By: Fairfax Properties, Inc
Its duly authorized general partner
Witness: /s/ Illegible By: /s/ Illegible
------------------ ---------------------------------
Its: Illegible
--------------------------------
TENANT:
VISUAL EDGE SYSTEMS INC.
Witness: /s/ Xxx Xxxxxx By: /s/ Illegible
------------------ ---------------------------------
Its: CEO
--------------------------------
[CORPORATE SEAL]
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EXHIBIT "A"
(diagram provided)
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EXHIBIT "B"
[LEGAL DESCRIPTION OF LAND]
_______________ IN FLOOD PLAN A6, ELEV. 11 (2/1/79),
_________ FLOOD INSURANCE MAP, PALM BEACH COUNTY, FLORIDA,
___________ PANEL NUMBER 1,20192 0220 B, MAP REVISED OCTOBER 15, 1962
DESCRIPTION: Parcel "B" of North Forty
A parcel of land lying and being in Sections 1 and 12, Township 47 South; Range
42 East and Sections 6 and 7, Township 47 South, Range 43 East, Palm Beach
County, Florida, described as follows:
Commence at the Northeast corner of said Section 12; thence South
00(degree)29'15" West, along the East line of said Section 12, a distance of
80.01 feet to the North right-of-way line of N.W. 00xx Xxxxxx and the Point of
Beginning of this description; thence North 86(degree)35'00" West, along a line
80.00 feet South of, and parallel with, as measured at right angles to the North
line of said Section 12, a distance of 453.93 feet; thence North
00(degree)24'40" East, a distance of 149.73 feet; thence North 89(degree)35'20"
West, a distance of 4.27 feet;; thence North 00(degree)24'40" East, a distance
of 69.93 feet; thence North 89(degree)35'20" West, a distance of 2.46 feet;
thence North 00(degree)24'40" East, a distance of 578.59 feet; thence South
89(degree)35'20" East, a distance of 14.51 feet; thence North 00(degree)24'40"
West, a distance of 13.99 feet; thence South 88(degree)35'00" East, a distance
of 504.73 feet to the East line said Section 1, thence continue South
88(degree)35'00" East, a distance of 57.50 feet; thence South 00(degree)29'15"
West, parallel with the East line of said Section 1, a distance of 250.00 feet;
thence South 88(degree)35'00" East, a distance of 20.00 feet; thence South
00(degree)29'15" West, a distance of 436.82 feet to a line 45.00 feet North of
and parallel with the South line of said Section 6; thence South
89(degree)42'30" East, along said parallel line, a distance of 40.00 feet;
thence South 00(degree)29'15" West, a distance 45.00 feet to the South line of
said Section 6; thence continue South 00(degree)29'15" West, a distance of 80.00
feet to a line 80.00 feet South of and parallel with the South line of said
Section 6, said point being further described as being the North right-of-way
line of N.W. 00xx Xxxxxx; thence North 89(degree)42'30" West, along said
parallel line, a distance of 117.50 feet to the said Point of Beginning of this
description.
said lands situate, lying and being in Palm Beach County, Florida.
Containing 10.03 acres, more or less.
S=SET R/W=RIGHT-OF-WAY M=MEASURED
R=RADIUS (F)=FOUND P = PLAT
C=CALCULATED PP=POWER POLE
N/T=NAIL & TAB UE=UTILITY EASEMENT
O/S=OFFSET LME=LAKE MAINTENANCE EASEMENT
A/C=AIR CONDITIONING PAD TOB-TOP OF BANK
FT=FEET DEFAULT=DRAINAGE EASEMENT
C&G=CURB & GUTTER CL=CENTERLINE
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EXHIBIT "C"
Cleaning service for the North 40 includes:
Daily Operations
Lobby:-
1. Dust mop floors. Damp mop hard surface floors.
2. Spot clean interior glass partitions, doors, frames, light switches,
baseboards, et. Wash entrance glass on both sides.
3. Dust all partitions, doors, door frame surfaces and all horizontal
surfaces.
4. Wash exterior surfaces of all trash containers.
5. Empty and damp wipe ashtrays.
Corridors, Elevators and Stairwells -
1. Empty and damp wipe ashtrays.
2. Dust to hand height all horizontal surfaces of ledges, xxxxx,
ventilating louvers, frames, etc.
3. Clean and sanitize all drinking fountains.
4. Empty waste containers.
5. Vacuum all carpeted areas.
6. Spot wash wall an exterior surfaces of elevator doors.
7. Sweep and remove leaves from atrium floors.
8. Dust grab rails.
9. Sweep and wash steps and landings, as necessary.
General Office Area:
1. Empty all waste baskets in offices and replace basket liners as
required.
2. Dust and spot clean all countertops.
3. Dust all horizontal surfaces of desks, chairs, tables and office
equipment.
4. Dust all exposed filing cabinets, bookcases and shelves.
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Cleaning Service for The North 40
General Office Area: - (continued)
5. Dust to hand height all horizontal surfaces of equipment, ledges,
xxxxx, shelves, frames partitions, etc.
6. Dust all telephones.
7. Vacuum clean all exposed carpeting.
8. Dust mop or sweep all non-carpeted floors.
9. Spot wash walls, glass surfaces, doors, frames, light switches,
baseboards, desk tops, and countertops.
Rest Rooms: -
1. Clean and disinfect all fixtures, toilets, urinals and partitions. Mop
floors and clean mirrors. Stock all dispensers.
2. Empty and damp wipe ashtrays.
Work Hours: -
All cleaning shall be performed on a five (5) day week, Monday through Friday,
between 6:30 P.M. and 11:00 P.M.
Additional Work Requested by Tenant: -
Any additional work requested by tenants can be per an agreed additional charge
and can be paid for by management or the requesting tenant.
Insurance: -
Any company performing janitorial services in The North 40 will maintain
worker's compensation and contractor's liability insurance.
Quarterly or as required: -
o Wash windows interior and exterior
o Clean all mechanical, equipment rooms, plumbing pipes in stairwells
o Dust blinds and clean any finger prints
o Clean all light fixtures, fire equipment boxes and exit lights
o Spot clean all carpet, including traffic areas
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EXHIBIT "D"
[RULES AND REGULATIONS]
To ensure minimizing of inconvenience to tenants and to maintain the interior
space in a condition comparable to other first class space in the Boca Raton,
Florida market area, the following Building regulations are provided and are
applicable to Tenant except as otherwise specifically addressed in the Lease:
1. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by Tenant, or used by Tenant for any purpose
other than chose in ingress and egress. The floors, skylights and windows that
reflect or admit light into any place in said Building, shall not be covered or
obstructed by Tenant subject to Tenant's right to install window coverings such
as blinds. The water closets and other water apparatus, shall not be used for
any other purpose than those for which they were constructed, and no sweepings,
rubbish, or other obstructing substances shall be thrown therein.
2. No advertisement, sign, or other notice, shall be inscribed, painted
or affixed on any part of the outside or inside of said Building, except upon
the interior doors and windows permitted by Landlord, which signs, etc., shall
be of such order, size an style and at such places as shall be designated by
Landlord. Exterior signs on doors will be provided for Tenant by Landlord, the
cost of such signage to be charged to and paid for by Tenant.
3. Nothing shall be thrown by Tenant, its clerks, or servants out of
the windows or doors or down the passages or skylights of the Building. No rooms
shall be occupied or used as sleeping or lodging apartments at anytime.
4. Tenant shall not employ any persons other than the janitors of
Landlord or others reasonably approved by Landlord (who will be provided with
pass-keys into the offices) for the purposes of cleaning or taking charge of
said Premises. It is understood and agreed that the Landlord shall not be
responsible to Tenant for any loss of property from the Premises, however
occurring or for any damage done to the furniture or other effects of Tenant by
the janitor or any of its employees, provided, however, that the Landlord shall
use its good faith reasonable efforts to employ service companies for providing
such janitorial services which maintain quality controls for personnel employed.
5. No animals (except service animals), birds, bicycles or other
vehicles shall be allowed in the offices, halls, corridors, elevators or
elsewhere in the Building.
6. No painting shall be done, nor shall any alteration be made to any
part of the Building by putting up or changing any partitions, doors or windows,
nor shall there be any nailing, boring or screwing into the woodwork or
plastering, nor shall nay connection be made to the electric wires or electric
fixtures, without the consent in writing on each occasion of Landlord or its
Agent. All glass, locks and trimmings in or upon the doors and windows of the
building shall be kept whole and, when any part thereof shall be broken, the
same shall be immediately replaced or repaired and put in order under the
direction and to the satisfaction of Landlord, or its Agent, and shall be left
whole and in good repair. Tenant shall not injure, overload or deface the
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Building, the woodwork or the walls of the Premises, nor carry on upon the
Premises any noisome, noxious, noisy, of offensive business.
7. Tenant shall not (without Landlords' prior written consent) put up
or operate any steam engine, boiler, machinery or stove upon the Premises, or
carry on any mechanical business thereon, or do any cooking thereon, or use or
allow to be used upon the Premises oil, burning fluids, carophene, gasoline or
kerosene for heating, warming or lighting. No article deemed extra hazardous on
account of fire and no explosives shall be brought into the Premises. No
offensive gases or liquids will be permitted.
8. Landlord will post on the directory of its Building, if any, at no
charge to Tenant, names of the executives of Tenant, such executives to be
designated by Tenant. All additional names which Tenant shall desire put upon
said directory must be first consented to by Landlord, and if so approved, a
charge will be made for such additional listing ad prescribed by Landlord to be
paid to Landlord by Tenant.
9. The Landlord, and its agents, shall have the right to enter the
Premises at al reasonable hours for the purpose of making any repairs,
alterations, or additions which is shall deem necessary for the safety,
preservation, or improvement of said Building, and the Landlord shall be allowed
to take all material into and upon such Premises that may be required to make
such repairs, improvements, and additions, or any alteration for the benefit of
the Tenant without in any way being deemed or held guilty of an eviction of
Tenant; and the rent reserved shall in no wise xxxxx while said repairs,
alterations or additions are being made; and Tenant shall not be entitled to
maintain a set-off or counterclaim for damage against Landlord by reason of loss
or interruption to the business of Tenant because of the prosecution of any such
work. All such repairs, decorations, additions and improvements shall be done
during ordinary business hours or, if any such work is not the request of the
Tenant to be done during any other hours, Tenant shall pay for all overtime
costs.
10. Tenant shall instruct its mover to contact the Building manager two
(2) working days prior to truck arrival for coordination of move in and/or large
furniture/equipment deliveries. Such moves will normally be made after 6:00 p.m.
Friday and prior to 8:00 a.m. Monday. Tenant shall be responsible for any damage
to Building interior including, but not limited to floors and carpet. A Landlord
representatives will be present for all such moves.
11. Landlord reserves the right to make such other and reasonable rules
and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Premises, and for the preservation of good
order therein.
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