EXHIBIT 10.35
DATE: DECEMBER 31, 2004
OFFICE LEASE AGREEMENT
FOR
THE COURTYARD BUILDING
0000 X. XXXXXXX XXXXXXX
XXXX XXXXX, XXXXXXX 00000
CONECA PROPERTIES, LTD.
AS LANDLORD
AND
MYDOCONLINE, INC.
AS TENANT
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THE COURTYARD BUILDING
INDEX TO OFFICE LEASE AGREEMENT
Paragraph # Topic
1. Definitions
2. Lease Grant
3. Lease Term
4. Use
5. Rental
6. Payment of Common Area Maintenance/Operating Expenses
7. Services to be Furnished by Landlord
8. Improvements to the Premises
9. Maintenance and Repair of Building by Landlord
10. Care of Premises by Tenant
11. Repairs and Alterations by Tenant
12. Graphics
13. Use of Electrical Services by Tenant
14. Parking
15. Law and Regulation
16. Building Rules and Regulations
17. Entry by Landlord
18. Assignment and Subletting
19. Mechanics Liens
20. Property Insurance
21. Liability Insurance
22. Assumption of Risks
23. Waiver of Subrogation Rights
24. Casualty Damage
25. Condemnation
26. Damage from Certain Causes
27. Events of Default/Remedies
28. Property Taxes and Assessments
29. Peaceful Enjoyment
30. Relocation
31. Holding Over
32. Subordination to Mortgage
33. Landlord's Lien
34. Attorney's Fees
35. No Implied Waiver
36. Limitation of Liability
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PARAGRAPH# TOPIC PAGE #
37. Security Deposit
38. Last Month Rent Deposit
39. Notices
40. Severability
41. Recordation
42. Governing
43. Time of Performance
44. Force Majeure
45. Transfers by Landlord
46. Brokers
47. Effect of Delivery of this Lease
48. Captions
49. Relationship of Parties
50. Exhibits
51. Prior Agreements and Amendments
52. Binding Effect pg.26
53. Americans With Disabilities Act
54. Radon Gas
55. Compliance with Environmental Laws
56. Option to Extend Term
57. Right of First refusal on Contiguous Space
TOPIC EXHIBIT LETTER PAGE #
Attachments:
Legal Description Exhibit "A"
Floorplan Exhibit "B"
Work Letter Exhibit "C"
Rules And Regulations Exhibit "D"
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OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into on the 31st day of
December, 2004 by and between CONECA PROPERTIES, LTD, a Florida limited
partnership, having an office at 000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000 (hereinafter referred to as "Landlord"), and
MYDOCONLINE, INC., a Delaware Corporation (hereinafter referred to as "Tenant"),
and wholly owned subsidiary of Zix Corporation, a Texas corporation.
WITNESSETH:
1. DEFINITIONS. Landlord and Tenant hereby agree that the words and phrases set
forth below shall, when used in this Lease have the following meaning:
(a) "Building" shall mean the office building located upon the real
property (the "Property") described in Exhibit "A" attached hereto and
incorporated herein. Reference made to the Property in this Lease shall be
deemed to include the Building unless expressly provided otherwise.
(b) "Premises" shall mean the suite of offices located within the
Building, know as Suite #260 and outlined on the floor plan attached to
this Lease as Exhibit "B" incorporated herein. The Premises are stipulated
for all purposes to have a floor area of approximately 1,835 square feet,
such size being hereby agreed upon, which includes any portion of the
"Common Areas" allocated to the Premises.
(c) "Lease Rental Rate" shall mean the Base Rent as shown below (*)
RENT SCHEDULE
OPER.
BASE RENT EXP.(EST) BASE RENT BASE RENT OP. EXP. SUB TOTAL STATE SUB TOTAL ELECTRIC TOTAL RENT
PERIOD $/SF/yr. $/SF/yr. $/Period $/Mo. $/Mo. $/Mo TAX Incl. Tax $/Mo. $/ Month
------ -------- -------- -------- ----- ----- ---- --- --------- ----- --------
January,05 17.00 7.54 2,599.58 2,599.58 1,152.99 3,752.58 243.92 3,996.49 305.83 4,302.33
Feb. 00 xxxx Xxxx Xxxx
Xxx.00-Xxx 00 17.00 7.54 28,595.42 2,599.58 1,152.99 3,752.58 243.92 3,996.49 305.83 4,302.33
(*)adjusted pursuant to Paragraph 5 hereof.
(d) "Commencement Date" shall be January 1, 2005 or the date determined in
accordance with subparagraph 3(c) hereof.
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(e) "Lease Term" shall mean a term commencing on the Commencement Date and
continuing until thirteen (13) months after the first day of the first
full month following the Commencement Date.
(f) A "Security Deposit" shall mean the Sum of $8,600.00
(g) deleted
(h) "First Month'Rent" shall mean the sum of $4,302.33 (Jan. 2005), incl.
tax
(i) "Common Areas" shall mean those areas devoted to corridors, elevator
foyers and elevator cabs, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar
facilities provided for the common use or benefit of tenants generally
and/or the public.
(j) "Service Areas" shall mean those areas within the exterior walls of
the Building used for elevator mechanical rooms, building stairs, fire
towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical
ducts (but shall not include any such areas designated for the exclusive
use or benefit of the Tenant).
(k) "Exterior Common Areas" shall mean those portions of the Property
which are not located within the Building and which are provided and
maintained for the common use and benefit of Landlord and tenants of the
Building generally and the employees, invitees and licensees of Landlord
and such tenants; including, without limitation, all parking areas,
enclosed or otherwise, and all streets, sidewalks and landscaped areas.
(l) "Building Standard Improvements" when used herein, shall mean those
improvements (including the "Shell Improvements" and the "Allowance
Items") constructed or installed within the Premises which Landlord shall
agree to provide according to the "Work Letter" attached hereto as Exhibit
"C" and incorporated herein for all purposes. "Building Grade" shall mean
the type, brand and/or quality of materials Landlord designates from time
to time to be the minimum quality to be used in the Building or the
exclusive type, grade or quality of material to be used in providing the
Building Standard Improvements.
(m) Operating Expense Contribution: Tenant shall pay Operating Expense
Contribution equal to Tenant's proportionate share of the annual Operating
Expenses, estimated at $7.54 per rentable square foot per annum including
utilities (excluding electric), real estate taxes and insurance for year
2004 & 2005, subject to adjustment at the beginning of each calendar year
for remainder of lease. Operating Expense Contribution shall be paid in
equal monthly installments along with the Base Rent andf electric.
(n) Electric: Tenant shall pay electric equal to Tenant's proportionate
share of the annual total electric expenses, estimated at $2.00 per
rentable square foot per annum including air conditioning for the years
2004 & 2005, subject to adjustment at the beginning of each calendar year
for remainder of lease. Operating Expense Contribution shall be paid in
equal monthly installments along with the Base Rent and Operating
Expenses. [See table in 1(c)]
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2. LEASE GRANT. Subject to and upon the terms, provisions and conditions
herein set forth, and each in consideration of the covenants of the
other hereunder, Landlord leases to Tenant and Tenant leases from
Landlord the Premises.
3. LEASE TERM.
(a) This Lease shall continue in force during a period beginning on
Commencement Date and continuing until the expiration of the Lease Term,
unless this Lease is sooner terminated or extended to a later date under
any other term or provision hereof.
(b) If by the date specified as the Commencement Date in Paragraph 1(d),
the Premises have not been substantially completed pursuant to the Work
Letter due to omission, delay or default by Tenant or anyone acting under
or for Tenant or due to any cause other than Landlord's default, Landlord
shall have no liability for such failure to complete, and the obligations
of this Lease (including without limitation the obligation to pay rent)
shall nonetheless commence as of said Commencement Date.
(c) If however the Premises are not substantially completed by the date
specified as the Commencement Date in Paragraph l(d) and such failure to
complete is due to default on the part of Landlord, then, as Tenant's sole
remedy for the delay in Tenant's occupancy of the Premises, the
Commencement Date shall be delayed (and the rent herein provided shall not
commence) until the earlier of either (i) the date of actual occupancy by
Tenant or (ii) the date of substantial completion of the work which
Landlord has agreed to perform.
(d) Tenant agrees to accept possession of the Premises when the Building
Standard Improvements to the Premises as provided in the Work Letter have
been substantially completed. If there are any finishing touches remaining
to be done which will not materially interfere with the conduct of
Tenant's business on the Premises, Tenant will nevertheless accept
delivery of the Premises and allow Landlord to complete such finishing
touches.
ARTICLE 4
USE
4. USE OF PREMISES: It is agreed and understood that Tenant shall use the
Premises for general office use only unless otherwise agreed to in writing by
Landlord. Tenant shall abide by and not violate any of the Rules and Regulations
set forth on Exhibit "D", annexed hereto and made a part hereof, and such other
Rules and the Landlord may modify Regulations as from time to time hereafter.
Landlord shall not be liable to Tenant for violation of the Rules and
Regulations by any other tenant or such tenant's employees, agents, invitees or
licensees.
a) Operation of Tenant's Business: If any governmental license or permit,
other than a certificate of occupancy, shall be required for the proper
and lawful conduct of Tenant's business in the Premises or any part
thereof, Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit. Tenant shall, at all times, comply with
the terms and conditions of each such license or permit. Tenant shall not,
at any time, use or
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occupy, or suffer or permit anyone to use or occupy, the Premises, or do
or permit anything to be done in the Premises, in any manner which may (i)
violate the certificate of occupancy for the Premises or for the Building;
(ii) cause or be liable to cause injury to the Building or any equipment,
facilities or systems therein; (iii) constitute a violation of the laws
and requirements of any public authority or the requirements of insurance
bodies; (iv) not permit occupancy of the demised premises in excess of the
number of persons designated or allowed by occupational licenses granted
by applicable governmental agencies or any other regulations; (v) impair
or tend to impair the character, reputation or appearance of the Building
as a first class office building; (vi) impair or tend to impair the proper
and economic maintenance, operation, and repair of the Building and/or its
equipment, facilities or systems; (vii) annoy or inconvenience or tend to
annoy or inconvenience other tenants or occupants of the Building; (viii)
cause or violate any provisions of Landlord's fire and extended liability
coverage, Landlord shall give notice to Tenant of any non-standard
insurance provisions.
(b) Occupancy Density: Intentionally deleted.
5. RENTAL.
(a) Tenant covenants and agrees to pay during the Lease Term to Landlord
without any setoff or deduction whatsoever, the Base Rental and all such
other sums or money as shall become due hereunder as additional rent (all
of which are sometimes herein collectively called "Rent"), for the
non-payment of which Landlord shall be entitled to exercise all such
rights and remedies as are herein provided in the case of the non-payment
of Base Rental. The Base Rental payable during each calendar year or
portion thereof during the Lease Term, as increased pursuant to
subparagraph (e) below, shall be due and payable in twelve (12) equal
installments on the first day of each calendar month during the initial
term of this Lease and any extensions or renewals thereof and Tenant
hereby agrees to pay such Base Rental and any adjustments thereto to
Landlord at Landlord's address provided herein (or such other address as
may be designated by Landlord in writing from time to time). Tenant agrees
to pay all such sums in advance, and without notice or demand. If the
Lease Term commences on a day other than the first day of a month or
terminates on a day other than the last day of a month, then the
installments of Bass Rental and any adjustments thereto for such month or
months shall be prorated, based on a Thirty (30) day month.
(b) Landlord shall have the same rights and remedies with respect to
additional rent as with respect to Fixed Annual Rent. The term "Rent" is
hereby defined to mean the Fixed Annual Rent and any additional rent or
other sums payable by Tenant under this Lease. In the event that any
payment due Landlord under this Lease shall not be paid on the due date, a
late charge of Ten (10%) percent of the delinquent shall be charged by
Landlord. If any installment of Rent shall remain overdue for more than
Ten (10) days, an additional late charge in an amount equal to One and
One-half (1-1/2%) percent per month (18% per annum) of the delinquent
amount shall be charged by Landlord, such charge to be computed for the
entire period for which the amount is overdue and which is in addition to
and not in lieu of the Ten percent (10%) late charge or any other remedy
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available to Landlord. In the event that any check, bank draft, order for
payment or negotiable instrument given to Landlord for any payment under
this Lease shall be dishonored for any reason whatsoever not attributable
to Landlord, Landlord shall be entitled to make an administrative charge
to Tenant of Twenty-Five and 00/100 ($25.00) Dollars. Tenant recognizes
and agrees that the aforesaid charges represent, at the time this Lease is
made, a fair and reasonable estimate and liquidation of the costs of
Landlord in the administration of the Building resulting from the events
described, which costs are not contemplated or included in any rent or
other charges provided to be paid by Tenant to Landlord in this Lease. Any
charges becoming due under this paragraph of this Lease shall be deemed to
be additional rent due hereunder and shall become due with the next
ensuing monthly payment of Fixed Annual Rent.
(c) Tenant shall pay all sales and use taxes levied or assessed against
all rent payments due under this Lease simultaneously with each payment
required hereunder.
(d) The Base Rental due for the first full calendar month of the Lease
Term has been deposited with Landlord by Tenant as of the execution
of this Lease.
(e) Tenant shall pay the monthly installments of the Base Rental as same
come due through the end of the first Lease Year
6. PAYMENT OF COMMON AREA MAINTENANCE/OPERATING EXPENSES.
(a) In addition to the Base Rental as the same is Tenant adjusted, shall
according to the provisions of this Paragraph pay to Landlord as
additional rents Tenant's pro rata share of the "Operating Expenses"
incurred by Landlord in connection with the ownership, operation and
management of the Property. The Operating Expenses shall be determined in
accordance with generally accepted accounting principles as applied to the
ownership, management and operation of such property and shall include the
total of all expenses and costs of every kind and nature which Landlord
shall pay or be obligated to pay because of or in connection with the
ownership and operation of the Property, including but not limited to the
following:
1. Wages and salaries and all payroll costs or benefits paid to
or on behalf of Landlord's employees engaged in the operation,
maintenance and security of the Property.
2. Administrative costs of management of the Property, including
a management fee.
3. Costs of all utilities furnished to the Property, including
water, sewer and electricity.
4. All supplies and materials used in the operation and
maintenance of the Property.
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5. Cost of any maintenance or service agreements such as alarm or
security service, janitorial service, landscape maintenance,
window cleaning and elevator or air conditioning service.
6. Cost of all insurance, including but not limited to fire,
casualty, liability and rental abatement insurance applicable
to the Property and Landlord's personal property used in
connection herewith.
7. Cost of repairs, replacements and general maintenance of the
Property.
8. All real or personal property taxes (or payments in lieu of
such taxes) exercises, levies, fees, or charges, general and
special, ordinary and extraordinary, unforeseen as well as
foreseen of any kind which are assessed, levied, charged,
confirmed, or imposed by any public authority upon the
Property, its operations or the rent provided for in this
Lease. (It is agreed that Tenant will be responsible for ad
valorem taxes on its personal property and on the value of
leasehold improvements to the extent that same exceeds
Building Standard Improvements as described in Exhibit "C" of
this Lease.)
9. Amortization of capital improvements made to the Property by
Landlord subsequent to the Commencement Date of this Lease
which will improve the operating efficiency of the Property.
(b) Operating Expenses shall not include: (1) expenses for repairs or
other work occasioned by condemnation or fire or other casualty; (2)
leasing commissions; (3) interest or amortization of mortgages secured by
the Property; (4) any expense fully reimbursed to Landlord by Tenant or
any other tenant of the Property, or any expense billed to and paid
directly by same for their own account or on Landlord's behalf; and (5)
expenses for repairs or replacement to the extent that same are reimbursed
by insurance proceeds.
(c) Tenant's share of the Operating Expenses shall be in the same
proportionate amount as the ratio determined by the gross leasable area of
the Premises as stipulated in Paragraph 1(b) (which includes any portion
of the Common Areas allocated to the Premises) over the gross leasable
area of the Building. [The "Gross Leasable of the Building" shall mean the
total floor area within the exterior walls of the Building, less any
portion(s) of the Service Areas contained herein per Building Owners and
Managers Association Standards (BOMA)]. Tenant's proportional share is 2.6
%
(d) Promptly following the Commencement Date, and thereafter promptly
following the beginning of each calendar year occuring during the term of
this Lease, or any extension or renewal thereof, Landlord shall deliver to
Tenant a statement setting forth Landlord's projection of the Operating
Expenses for the then current calendar year and Tenant's pro-rata share
thereof based on the portion of such calendar year during which this Lease
is in effect. Tenant's share of the projected Operating Expenses shall be
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payable in equal monthly installments due on the first day of each
calendar month for the remaining months of such calendar year.
(e) Commencing with Landlord's statement delivered at the beginning of the
first full calendar year occurring during the term of this Lease, Landlord
shall also set forth the actual amount of Operating Expenses incurred
during the preceeding calendar year, Tenant's pro rata share of those
actual operating Expenses (to the extent that this Lease was in effect
during that calendar year) and any underpayment or overpayment by Tenant
based on Tenant's monthly payment(s) (if any) of the projected Operating
Expenses made during that preceeding calendar year. In the event of any
underpayment by Tenant, Tenant shall pay the full amount to such
deficiency to Landlord within thirty (30) days of receipt of Landlord's
statement. Any overpayment by Tenant shall be deducted from the monthly
installments of Tenant's share of the projected Operating Expenses for the
ensuing calendar year as the same become due.
(f) Prior to the expiration date of the Lease Term Landlord shall deliver
to Tenant (i)a statement setting forth Tenant's share of the actual
Operating Expenses incurred during the final Lease Year up to and
including the date of expiration of the Lease Term and (ii) any
underpayment or overpayment of same based on Tenant's payment of Tenant's
share of the projected Operating Expenses made during the final Lease
Year. In the event of any such underpayment Tenant shall pay the full
amount of same to Landlord on or before the date of the expiration of the
Lease term. If Tenant has overpaid Landlord shall reimburse Tenant the
full amount of such overpayment not later than the expiration date of the
Lease Term. The respective obligations of the parties hereto pursuant to
this Paragraph 6 shall survive the termination of this Lease.
(g) Each Operating Statement given by Landlord, shall be conclusive and
binding upon Tenant (a) unless within thirty (30) days after the receipt
thereof, Tenant shall notify Landlord that it disputes the accuracy of
said Operating Statement, specifying the particular respects in which the
Operating Statement is claimed to be incorrect and (b) if such dispute
shall not have been settled by agreement, either party may submit the
dispute to arbitration in accordance with Chapter 682, Florida Statutes.
The arbitration shall take place in Broward County, Florida and shall be
held in accordance with the rules of the American Arbitration Association.
A panel of three (3) arbitrators shall be selected by the parties to the
dispute from a panel selected by the American Arbitration Association and
the award of the three (3) arbitrators shall be final and non-appealable
and judgment may be entered in any court of competent jurisdiction. In the
event the parties are unable to agree on three (3) arbitrators, each party
shall select one (1) arbitrator from the panel and the two arbitrators
selected shall select the third arbitrator. The matter must be submitted
to arbitration within sixty (60) days after receipt of each Operating
Statement; and pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall within ten (10) days after receipt
of such Operating Statement, pay Operating Expense Contribution in
accordance with Landlord's statement, without prejudice to Tenant's
position. If the dispute shall be determined in Tenant's favor, Landlord
shall forthwith pay to Tenant the amount of Tenant's overpayment of
Operating Expense Contribution resulting from compliance with the
Operating Statement. However, in no case shall Tenant delay or withhold
payment of Base
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Rent and Operating Expense Contribution pending resolution of a dispute
with regard to Operating Expenses.
7. SERVICES TO BE FURNISHED BY LANDLORD. Landlord agrees to furnish Tenant the
following services:
(a) Water at those points of supply provided for general use of Tenant and
other tenants in the Building;
(b) Routine maintenance and electric lighting service for Common Areas and
Service Areas of the Building in the manner and to the extent deemed by
Landlord to be standard.
(c) Janitorial service to the Premises and all Common Areas Mondays
through Fridays, exclusive of normal business holidays; provided, however,
if Tenant's floor covering or other improvements to the Premises require
special treatment, Tenant shall pay the additional cleaning cost
attributable thereto as additional rent upon presentation of a statements
therefore by Landlord.
(d) Subject to the provisions of Paragraph 13, facilites to provide all
electrical current required by Tenant in its use and occupancy of the
Premises.
(e) All Building Standard fluorescent bulb replacement in the Premises and
fluorescent and incandescent bulb replacement in the Common Areas and
Service Areas.
(f) Security in the form of limited access to the Building during other
than Normal Business Hours shall be provided in such form as Landlord
deems appropriate Landlord, however, shall have no liability to Tenant,
its employees, agents, invitees or licensees for losses due to theft or
burglary, or for damages done by unauthorized persons on the Premises and
neither shall Landlord be required to insure against any such losses.
Tenant shall cooperate fully in Landlord's efforts to maintain security in
the Building and shall follow all regulations promulgated by Landlord with
respect thereto.
(g) Elevator service to each floor of the Premises provided that Tenant
shall be permitted to use such elevators for the purpose of moving bulky
property in and out of the Building only during other than Normal Business
Hours and only after first obtaining Landlord's consent to be submitted
not less than five (5) days in-advance of each move. Tenant shall promptly
reimburse Landlord for all costs associated with the after-hours operation
of the elevator service for moving purposes, including without limitation
the cost of any operator or security personnel and Tenant shall also
promptly reimburse Landlord's cost to repair any damage to the elevator
cab(s) or the Building resulting from Tenant's moving.
The failure by Landlord to any extent to furnish the defined services
noted above in whole or in parts or the interruption or termination of same,
resulting from causes beyond the reasonable control of Landlord shall not render
Landlord liable in any respect nor be construed as an eviction (constructive or
otherwise) of Tenant nor cause an abatement of rent nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof. Should any of the
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equipment or machinery used in the provision of such services cease for any
reason to function properly, Tenant shall have no claim for offset or abatement
of rent or damages on account of an interruption in service occasioned thereby,
or resulting therefrom.
8. IMPROVEMENTS TO THE PREMISES. Landlord shall be obligated to construct or
install at Landlord's expense, only those Building Standard Improvements as
provided in the Work Letter attached hereto as Exhibit "C". All installations
and improvements now or hereafter constructed in or placed on the Premises other
than the said Building Standard Improvements shall be for Tenant's account and
at Tenant's sole cost and expense. Tenant shall pay all ad valorem taxes
assessed separately on any improvements to the Premises and all increased
insurance premiums thereon.
9. MAINTENANCE AND REPAIR OF BUILDING BY LANDLORD. Landlord agrees to keep in
good repair the roof, foundations, appurtenances, parking area, and exterior
walls and windows of the Building and underground utility and sewer pipes
outside of the exterior walls of said Building. Landlord shall repair and
maintain all heating, air conditioning, lighting, electrical, ventilation,
plumbing, and storm drainage equipment. Except as otherwise expressly provided
herein, Landlord shall not be required to make any repairs to the Premises.
10. CARE OF PREMISES BY TENANT. Tenant shall, at its expenses keep the Premises
in good repair and in a clean, attractive, first-class tenantable condition
(including without limitation all furniture, equipment, fixtures and decorations
located in the Premises). Tenant agrees not to commit or allow any waste to be
committed on any portion of the Premises or the Property and at the termination
of this Lease to deliver up the Premises to Landlord in as good condition as at
the date of the Commencement Date, ordinary wear and tear excepted.
11. REPAIRS AND ALTERATIONS BY TENANT. Tenant covenants and agrees with Landlord
at Tenant's own cost and expense, to repair any damage done to the Premises, the
Building or the Property or any part thereof including replacement of damaged
portions or items where such damages are caused by Tenant or Tenant's agents,
employees, invitees or visitors, and Tenant covenants and agrees to make all
such repairs as may be required to restore the Premises, the Building or the
Property to as good a condition as it was in prior to such damage. All such work
or repairs by Tenant shall be effected in compliance with all applicable laws;
provided, howevere if Tenant fails to make such repairs or replacements then
Tenant shall pay the cost thereof to the Landlord within ten (10) days of
Landlord's demand therefore as additional rent. Tenant agrees with Landlord not
to make or allow to be made any alterations to the Premises, install any vending
machines on the Premises, or place signs, furnishings equipment or any window
coverings on any part of the Premises which are visible from outside the
Premises without first obtaining the prior written consent of Landlord in each
such instance, which consent may be given on such conditions as Landlord may
elect. Any and all alterations or additions to the Premises made by Tenant shall
become the property of Landlord upon termination of this Lease (except for
movable equipment or furniture owned by Tenant). Landlord may nonetheless
require Tenant to remove any and all fixtures, equipment and other improvements
installed on the Premises. In the event that Landlord so elects and Tenant fails
to remove such
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improvements, Landlord may remove such improvements at Tenant's cost, and Tenant
shall pay Landlord on demand of restoring the Premises to Building Standard.
12. GRAPHICS. Landlord shall provide and install at Tenant's cost all letters or
numerals on doors entering the Premises. All such letters and numerals shall be
in the standard graphics as approved by Landlord for the Building, and no others
shall be permitted on the Premises without Landlord's prior written consent.
13. USE OF ELECTRICAL SERVICES BY TENANT. Tenant's use of electrical services
furnished by Landlord shall not exceed either in voltage, rated capacity or
overall load that, which Landlord deems to be standard for general business
office use in a manner comparable to other Building tenants. In the event Tenant
shall request that it be allowed to consume electrical services in excess of
that deemed by Landlord to be standard for Building tenants, Landlord may refuse
to consent to such usage or may consent upon such conditions as Landlord elects
(including the requirement that submeters be installed at Tenant's expense).
14. PARKING.
(a) During the term of this Lease, Landlord shall provide Tenant with
unassigned parking spaces in the uncovered parking areas located on the
Property, such parking spaces and all driveways and walkways located on
the Property to be used by Tenant on a non-exclusive basis with Landlord
and other tenants of the Building, their guests and invitees. All
uncovered parking shall be provided at no charge to Tenant.
(b) In addition to the uncovered parking spaces Landlord and Tenant hereby
agree that Tenant shall have the use of one (1) assigned parking space in
the parking garage located on the Property for the term of the Lease, such
parking space to be used only by the of principals and employees of
Tenant. Such space shall be forfeited in the event Tenant is ever in
material Default of Lease, including any payment default, after received
Notice of Default and not curing samewithin the time period specified
herein.
(c) Landlord shall have a right to designate the location of Tenant's
parking and alter such designation upon reasonable notice to Tenant.
Landlord shall also have the right to establish or modify the methods used
to control parking on the Property, including without limitation the
installation of certain control devices or the hiring of parking
attendants.
(d) Landlord shall not be liable for any damage to or any theft of any
vehicle, or any contents Tenant will lose any reserved parking privileges
at any time in which Tenant is in an event of Default under the Terms and
Conditions of this Lease Agreement.
15. LAWS AND REGULATIONS. Tenant agrees to comply with all applicable laws,
ordinances, rules and regulations of any governmental entity, agency or
authority having jurisdiction of the Premises of Tenant's use thereof.
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16. BUILDING RULES AND REGULATIONS. Tenant will comply with the reasonable rules
and regulations of the Building adopted and altered by Landlord from time to
time and will cause all of its agents, employees, invitees and visitors to do
so. Landlord shall give Tenant notice of all such rules and regulations and any
changes thereto, and Tenant shall be charged with compliance with such rules and
regulations as the same may be changed from time to time from the date of said
notice.
17. ENTRY BY LANDLORD. Tenant agrees to permit Landlord or its agents or
representatives to enter into and upon any part of the Premises at all
reasonable hours upon reasonable notice (and in emergencies at all times) to
inspect the conditions, occupancy or use thereof or to show the Premises to
prospective purchasers, mortgagees, tenants or insurers, or to clean or make
repairs, alterations or additions thereto; and Tenant shall not be entitled to
any abatement or reduction of rent by reason thereof.
18. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign, sublease, transfer, pledge or encumber this
Lease or any interest therein without Landlord's prior written consent,
whose consent shall not be unreasonably withheld, conditioned, delayed or
denied, except (1) to an affiliate of Tenant or (2) to a purchaser of all
or substantially all the business of Tenant or a successor-in-interest to
the business of Tenant so long as (A) Tenant's obligations hereunder are
assumed by the acquiring entity or successor in interest and (B) the
tangible net worth of the surviving or created entity is not less than the
tangible net worth of Tenant as of the date of execution of this Lease: or
Tenant shall in no event be allowed to enter into a partial assignment of
tenant's leasehold interest. Any attempted assignment, sublease or other
transfer or encumbrance by Tenant in violation of the terms and covenants
of this Paragraph shall be void.
(b) In the event that Tenant shall desire Landlord's consent to either the
subletting of the Premises in whole or in parts or the assignment of
Tenant's entire interest under the Lease, Tenant shall give Landlord one
(1) month's prior written notice thereof
(c) Notwithstanding Landlord's consent to any assignment or subletting by
Tenant, Tenant shall remain liable for the full and faithful performance
of the covenants and conditions of this Lease unless expressly released in
writing by Landlord.
(d) Should Landlord consent to such assignment of the Lease, or to a
sublease of all or any part of the Leased Premises, Tenant does hereby
guarantee payment of all rent herein reserved until the expiration of the
term hereof and no failure of Landlord to promptly collect from any
assignee or sublessee, or any extension of the time for payment of such
rents, shall release or relieve Tenant from its guaranty or obligation of
14
payment of such rents. Any assignment by Landlord shall not relieve Tenant
of its obligations hereunder.
(e) The form of the Sublease is substantially the same form as the current
lease. The Sublessee shall provide first, last and security deposits.
(f) Reasonable grounds for deciding the Tenant's request by Landlord
include: (i) Financial strength of the proposed sublessee/assignee must be
at least equal to that of the existing tenant; (ii) Business reputation of
the proposed sublessee/assignee must be in accordance with generally
acceptable commercial standards; (iii) Use of the premises by the proposed
sublessee/assignee; (iv) Use of the premises will not violate any other
agreements affecting the premises, Landlord or other tenants. The
Sublessee shall provide such financial statements as may be reasonably
requested by Landlord, which Landlord shall use to help deem financial
acceptability.
(g) The Sublessee shall pay its rent payments directly to Landlord under
the terms and conditions of the sublease. Tenant and Landlord shall
execute separate agreement allowing the sublease that the sublease and
agreement shall be contingent upon one another.
(h) The covenants in this Paragraph concerning assignment shall run with
the land and shall bind Tenant and Tenant's heirs, executors,
administrators, personal representatives, successors and permitted
assigns.
(i) In the event that Tenant is a corporation (other than a corporation
whose stock is regulary traded on a nationally recognized stock exchange),
the conveyance of any stock in such corporation shall be deemed to be an
assignment of Tenant's leasehold interest hereunder. Should Tenant be a
partnerships the dissolution of such partnership or the assignment of any
interest therein by any general partner thereof shall also be determed to
be an assignment of Tenant's leasehold interest, hereunder. Any such
assignment of partnership interest or conveyanceof corporate stock in
Tenant, as the case may be, shall therefore be subject to the restrictions
set forth herein.
19. MECHANIC'S LIENS. Landlord and Tenant hereby expressly agree and acknowledge
that, pursuant to the terms of this Lease and applicable. Law of the State of
Florida, no interest of Landlord in the Premises, the Building or the Property
shall be subject to any lien for improvements made by Tenant in or for the
Premises, and Tenant shall not permit any mechanic's lien or liens to be placed
upon the Premises or any portion of the Building or the Property. Landlord has
recorded in the public records of Palm Beach County, Florida, a public notice
containing a true and correct copy of this Paragraph 19, and Tenant agrees to
inform all contractors and materialmen performing work on or supplying material
to the Premises of the existence of such notice. Nothing in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any person for
performance of any labor or the furnishing of any materials to the Premises, or
any part thereof, nor as giving Tenant any right, power, or authority to
contract for or permit the
15
rendering of any services or the furnishing of any materials that would or might
give rise to any mechanic's or other liens against the Premises or any portion
of the Building or the Property. In the event any such lien is claimed against
the Premises or any portion of the Building or the Property, then Tenant shall
discharge same or transfer such lien to other security within thirty (30) days
of notice thereof. In the event that Tenant fails to discharge or otherwise
remove any such liens, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same. Any
amount paid by Landlord for any of the aforesaid purposes shall be reimbursed by
Tenant to Landlord within ten (10) days of Landlord's demand therefore as
additional rent.
20. PROPERTY INSURANCE. Landlord shall maintain fire and extended coverage
insurance on the Building and the Premises in such amounts as Landlord's
imortgagee(s) shall require. Such insurance shall be maintained at the expense
of Landlord and payments for losses thereunder shall be made solely to Landlord
or Landlord's mortgagee(s) as their interests shall appear. Tenant shall
maintain at its expenses in an amount equal to full replacement cost fire and
extended coverage insurance on all of its personal property including removable
trade fixtures located in the Premises and in such additional amounts as are
required to meet Tenant's obligations pursuant to Paragraph 24 hereof. Tenant
shall, at Landlord's request from time to time, provide Landlord with current
certificates of Insurance evidencing Tenant's compliance with this Paragraph 20
and Paragraph 21 hereof.
21. LIABILITY INSURANCE. Tenant and Landlord shall, each at its own expense,
maintain a policy or policies of comprehensive general liability, insurance with
respect to their respective, activities in the building and on the Property with
the premiums thereon fully paid on or before due date iIssued by and binding
upon an insurance company approved by Landlord. Such insurance shall afford
minimum protection of not less than $1,000,000.00 combined single limit coverage
of bodily injury, property damage or combination thereof. Landlord shall not
required to maintain insurance against thefts within th Premises, or the
Building.
22. ASSUMPTION OF RISKS. Landlord shall not be liable to Tenant or Tenant's
customers, licensees, agents or guests or employees for any injury or damages to
its, his or their persons or property by any cause whatsoever, including, but
not limited to acts or omissions of any other tenant in the Building
construction defects, water, rain,, sleet, fire, storms, negligence and
accidents, breakage, stoppage or leaks of gas, water, heating, sewer pipes,
boilers, wiring or plumbing or any other defect in or about the Premises. Tenant
expressly assumes all liability for or on account of any injury, loss or damage,
and will at all times indemnify and save Landlord harmless from and against all
liability, damage or expense caused by or arising out of any such injury, loss
or damage to persons or property upon the Premises.
23. WAIVER OF SUBROGATION RIGHTS. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waive any and all rights of
recovery, claim, action, or cause of action, against the other, its agents,
officers, or employees, for any loss or damage that may occur to the Premises or
any improvements thereto, or the Building of which the Premises are a
16
part, or any improvements thereto, or any personal property of such party
therein, by reason of fire, the elements or any other cause(s), which are
insured against under the terms of the standard fire and extended coverage
insurance policies referred to in Paragraph 20 hereof regardless of cause or
origin, including negligence of the other party hereto its agents, officers, or
employees; provided that such waiver by either Landlord or Tenant does not limit
in any way such party's right to recovery under such insurance policies.
Landlord and Tenant shall each obtain an endorsement to all of their insurance
policies to effect the provisions of this Paragraph, provided that such
endorsements are available at no additional cost.
24. CASUALTY DAMAGE. If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. If the Building shall be so damaged that substantial alteration or
reconstruction of the Building shall, in Landlord's sole opinion be required
(whether or not the Premises shall have been damaged by such casualty) or in the
event any mortgagees of Landlord's should require that the insurance proceeds
payable as a result of a casualty be.applied to the payment of the mortgage
debt, or in the event of any material uninsured loss to the Building, Landlord
may, at its option, terminate this Lease by notifying Tenant in writing of such
termination within Ninety (90) days after the date of such damage. If Landlord
doesnot thus elect to terminate this Lease, Landlord shall commence and proceed
with reasonable diligence to restore the Building to substantially, the same
condition in which it was immediately prior to the happening of the casualty,
except that Landlord's obligation to restore shall not exceed the scope of the
work required to be done by Landlord in originally constructing the Building and
installing Shell Improvements (as described in the Work Letter but not including
replacement of acoustical ceiling tiles) in the Premises, nor shall Landlord be
required to spend for such work an amount in excess of the insurance proceeds
actually received by Landlord as a result of the casualty. When the Shell
Improvements have been restored by Landlord, Tenant shall complete the
restoration of the Premises to Building Standard and the restoration of Tenant's
furniture and equipment. Landlord shall, subject to the last sentence of this
Paragraph, provide Tenant with an allowance (the "Reconstruction Allowance") to
pay for reconstruction of the Premises to Building Standard, such Reconstruction
Allowance to be in a dollar amount equal to the actual original cost to Landlord
of providing the Allowance Items provided by Landlord pursuant to the Work
Letter. Except for reconstruction of the Shell improvements by Landlord and the
Reconstruction Allowance, all cost and expense of reconstructing the Premises to
Building Standard shall be borne by Tenant. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of rent during the time and to the extent the Premises are unfit
for occupancy. If the Premises or any other portion of the Building be damaged
by fire or other casualty resulting from the fault or negligence of Tenant or
any of Tenant's agents, employees, or invitees the rent hereunder shall not be
diminished during the repair of such damage and Tenant shall be liable to
Landlord for the entire cost of the repair and restoration of the Building
caused thereby to the extent such cost and expense is not covered by Landlord's
insurance proceeds.
17
25. CONDEMNATION. If the whole of the Building or the Premises should be taken
for any public or quasi-public user by right of eminent domain or otherwise or
if the same should be sold in lieu of condemnation then this Lease shall
terminate as of the date when physical possession of the Building or the
Premises is taken by the condemning authority. If less than the whole of the
Building or the Premises is thus taken or sold then Landlord (whether or not the
Premises are affected thereby) may at its option, terminate this Lease by giving
written notice thereof to Tenant, in which event this Lease shall terminate as
of the date when physical possession of such portion of the Building or Premises
is taken by the condemning authority. If this Lease is not so terminated upon
any such taking or sale, the Base Rental payable hereunder shall be diminished
by an equitable amount and Landlord shall, to the extent Landlord deems
feasible, restore the Building and the Premises to substantially their former
conditions but such,work shall not exceed the scope of the work done by
Landlord, in originally constructing the Building and installing Building
Standard Improvements in the Premises nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation for such taking. All amounts awarded upon a taking of
any part or all of the Building or the Premises shall belong to Landlord, Tenant
shall not be entitled to and expressly waives all claim to any
such'compensation.
26. DAMAGES FROM CERTAIN CAUSES. Landlord shall not be liable to Tenant for any
loss or damage to any property or person occasioned by theft, fire, act of God,
public enemy, injunction, riot, strike, insurrection, war, court order,
requisition, or order of governmental body or authority or by any other cause
beyond the control of Landlord. Nor shall Landlord be liable for any damage or
inconvenience which may arise through repair or alterations of any part of the
Building or Premises.
27. EVENTS OF DEFAULT/REMEDIES.
(a) Except in the event of an emergency and after the expiration of any
applicable grace periods, the following events shall be deemed to be events
of default by Tenant under this Lease: (i) Tenant shall fail to pay any rent
or any other sums of money due hereunder and such failure shall continue for
a period of five (5) business days after the date sum is due; (ii) Tenant
shall fail to comply with any material provision of this Lease or any other
agreement between Landlord and Tenant including the Work Letter; (iii) the
leasehold hereunder demised shall be taken on execution or other process of
law in any action against Tenant; (iv) Tenant shall fail to promptly move in
or take possession of and operate its business on the Premises when the
Premises are ready for occupancy; (v) Tenant shall become insolvent or
unable to pay its debts as they become due or Tenant notifies Landlord that
it anticipates either condition; (vi) Tenant takes any action to or notifies
Landlord that Tenant intends to file a petition under any section or chapter
of the Federal Bankruptcy Act as amended, or under any similar law or
statute of the United States or any State thereof, or a petition shall be
filed against Tenant under any such statute or Tenant or any creditor of
Tenant notifies Landlord that it knows such a petition will be filed or
Tenant notifies Landlord that it expects such a petition to be filed; or
(vii)
18
a receiver or trustee shall be appointed for Tenant's leasehold interest
in the Premises or for all or a substantial part of the assets of Tenant.
(b) Upon the occurrence of any event or events of default or other breach
of this Lease by Tenant not arising from Tenant's failure to pay any rent
or other sums of money due hereunder within five (5) business days of the
due dates and whether such default or defaults are enumerated in this
Paragraph or not, then if Tenant fails to cure any such default within ten
(10) days of written notice from Landlord, Landlord shall have the option
to pursue any one or more of the following remedies: (i) Landlord shall
have the right at its election to cancel and terminate this Lease and
dispossess Tenant; or, (ii) Landlord shall have the right without
terminating or cancelling this Lease to declare all amounts and rents due
under this Lease for the remainder of the existing term (or any applicable
extension or renewal thereof) to be immediately due and payable, and
thereupon all rents and other charges due hereunder to the end of the
initial term or any renewal term if applicable, shall be accelerated;
(iii) Landlord may elect to enter and repossess the Premises and relet the
Premises for Tenant's account, holding Tenant liable in damages for all
expenses incurred in any such reletting and for any difference between the
amount of rent received from such reletting and the rent due and payable
under the terms of this Lease; (iv) Landlord may enter upon the Premises
and do whatever Tenant is obligated to do under this Lease. If Tenant is
in default for any reason which would require written notice from
Landlord, and if such default cannot reasonably be expected to be cured
within the said ten (10) day period then Tenant shall have a reasonable
period of time to effect such cure provided that Tenant promptly commences
the cure and proceeds diligently to completion of same.
(c) In the event of any default by Tenant arrising from the failure to pay
rent or any other sum due hereunder within the five (5) day period
provided in subparagraph (a)(i) above, Landlord may immediately exercise
any remedy provided in subparagraph (b) above without being first required
to give Tenant written notice of such default.
(d) This Paragraph 27 shall be enforceable to the maximum extent not
prohibited by applicable law, and the unenforceability of any portion
hereof shall not thereby render unenforceable any other portion.
(e) Landlord shall be in default hereunder in the event Landlord has not
begun and pursued with reasonable diligence the cure of any failure of
Landlord to meet its obligations hereunder within thirty (30) days of the
receipt by Landlord of written notice from Tenant of the alleged failure
to perform. In no event shall Tenant have the right to terminate or
rescind this Lease as a result of Landlord's default as to any covenant or
agreement contained in this Lease or as a result of the breach of any
promise or inducement hereof whether in this Lease or elsewhere. Tenant
hereby waives such remedies of termination and recession and hereby
agrees that Tenant's remedies for default hereunder and for breach of any
promise or inducement by Landlord shall be limited to a suit for damages
and/or injunction. In addition, Tenant hereby covenants that prior to the
exercise of any such remedies it will give the mortgagees holding
mortgages on the Building notice and reasonable time to cure any default
by Landlord.
19
(f) Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may occur in effecting compliance with Tenant's obligations under
this lease and Tenant further agrees that Landlord shall not be liable for
any such damages resulting to the Tenant from such action. All such
remedies of Landlord shall be cumulative, and in addition Landlord may
pursue any other remedies that may be permitted by law or in equity.
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default or remedy.
28. PROPERTY TAXES AND ASSESSMENTS. Landlord shall pay all real property taxes
and special or other assessments for public betterments or improvements which
may be levied or assessed by any lawful authority against the Property. Tenant
shall be liable for all taxes levied or assessed against personal property,
furniture or fixtures or equipment placed by Tenant in the Premises. If any such
taxes for which Tenant is liable are levied or assessed against Landlord or
Landlord's property and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property,
furniture or fixtures or equipment placed by Tenant in the Premises and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord
upon demand that part of such taxes for which Tenant is liable hereunder.
29. PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold, and enjoy
the Premises against all persons claiming by, through or under Landlord, subject
to the other terms hereof provided that Tenant pays the rent and other sums
herein recited to be paid by Tenant and performs all of Tenant's covenants and
agreements herein contained. This covenant and any and all other covenants of
Landlord shall be binding upon Landlord and its successors only with respect to
breaches occurring during its or their respective periods of ownership of the
Landlord's interest hereunder.
30. RELOCATION. Intentionally deleted.
31. HOLDING OVER. In the event of holding over by Tenant without Landlord's
written consent thereto after expiration or other termination of this Lease or
in the event Tenant continues to occupy the Premises after the termination of
Tenant's right of possession pursuant to Paragraph 27(b) hereof, Tenant
covenants and agrees throughout the entire holdover periods to pay rent equal to
150% the Base Rental, as the same is adjusted pursuant to the terms hereof and
any additional rent which would have been applicable had the term of this Lease
continued through the period of such holding over by Tenant. No possession by
Tenant after the expiration of the term of this Lease shall be construed to
extend the term of this Lease unless Landlord has consented to such possession
in writing and throughout such holdover period Tenant shall be deemed a
tenant-at-sufferance.
20
32. SUBORDINATION TO MORTGAGE. This Lease is and shall be subject and
subordinate to any mortgage, deed of trust or other lien created by Landlord,
whether presently existing or hereafter arising upon the Premises, or upon the
Building and to any renewals, refinancing and extensions thereof, but Tenant
agrees that any such mortgagee shall have the right at any time to subordinate
such mortgage, deed of trust or other lien to this Lease on such terms and
subject to such conditions as such mortgagee may deem appropriate in its
discretion; provided that Tenant is given from any Landlord's mortgagee or
holder of a deed of trust or other lien created by Landlord a non-disturbance,
recognition, and attornment agreement in recordable form that provides that
Tenant's possession of the Premises and its rights under this Lease will not be
disturbed or affected in the event of a foreclosure. The terms of this Lease are
subject to approval by the Landlord's permanent lender(s), and such approval is
a condition precedent to Landlord's obligations hereunder. Tenant agrees that it
will from time to time upon request by Landlord execute and deliver to such
persons as Landlord shall request a statement in recordable form certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications that the same is in full force and effect as so modified) stating
the dates to which rent and other charges payable under this Lease have been
paid, stating that Landlord is not in default hereunder (or if Tenant alleges a
default stating the nature of such alleged default), and further stating such
other matters as Landlord or its mortgagee(s) shall reasonably require. Tenant
shall, in the event of the sale or assignment of Landlord's interest in the
Building of which the Premises form a part, or in the event of any proceedings
brought for the foreclosure of, or in the event of exercise of the power of sale
under, any mortgage made by Landlord covering the Premises attorn to the
purchaser and recognize such purchaser as Landlord under this Lease.
33. LANDLORD'S LIEN. Landlord waives Landlord's Lien.
34. ATTORNEY'S FEES. Tenant agrees that Tenant will pay, in addition to the
rents and other sums agreed to be paid hereunder, all collection and court costs
incurred by Landlord and Landlord's reasonable attorneys' fees incurred for the
collection of unpaid rentals or the enforcement, defense or interpretation of
Landlord's rights under this Lease, whether such fees and costs be incurred out
of court, at trial, on appeal, or in bankruptcy proceedings.
35. NO IMPLIED WAIVER. The failure of Landlord to insist at any time upon the
strict performance of any covenant or agreement or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of rent due
under this Lease shall be deemed to be other than on account of the earliest
rent due hereunder nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent 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 rent or pursue any other remedy
provided in this Lease.
21
36. LIMITATION OF LIABILITY. The liability of Landlord to Tenant for any default
by Landlord under the terms of this Lease interest of Landlord in the Building,
and shall be limited Property, and Tenant, agrees to look solely to Landlord's
interest in the Building and the Property for the recovery of any judgment from
the Landlord it being intended that Landlord shall not be personally liable for
any judgment or deficiency.
37. SECURITY DEPOSIT. The Security Deposit shall be paid by Tenant to Landlord
upon execution of this Lease and shall be held by Landlord without liability for
interest and as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that the Security
Deposit shall not be considered an advance payment of rental or a measure of
Tenant's damages in case of default by Tenant. Landlord may, from time to time,
without prejudice to any other remedy, use the Security Deposit to the extent
necessary to make good any arrearages of rent or to satisfy any other covenant
or obligation of Tenant hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. If Tenant is
not in material or monetary default at the termination of this Lease, the
balance of the Security Deposit remaining after any such application shall be
returned by Landlord to Tenant as prescribed by law and within 30 days. If
Landlord transfers its interest in the Premises during the term of this Lease,
Landlord may assign the Security Deposit to the transferee and thereafter
Landlord shall have not further liability for the return of such Security
Deposit.
39. NOTICES. Any notice, demand or request to be given pursuant to this Lease
must, unless otherwise expressly provided herein, be in writing, and may, unless
otherwise in this Lease expressly provided be given or be served by depositing
the same in the United States mail, postpaid and certified and addressed to the
party to be notified, with return receipt requested, or by delivering the same
in person to an officer of such party, or by prepaid telegram, when appropriate,
addressed to the party to be notified at the address stated in this Lease or
such other address notice of which has been given to the other party. Notice
deposited in the mail in the manner hereinabove described shall be effective
from and after the expiration of three (3) days after it is so deposited.
Notwithstanding any provision of this Lease to the contrary however Landlord may
always give Tenant notice by addressing or delivering same to the Premises.
Until further notices theaddresses for the parties shall be as follows:
As to Landlord:
CONECA PROPERTIES, LTD.
000 X. Xxxxxxxxxx Xxxxx Xxxxx 000
Xxxxx Xxxxxxx, XX 00000-0000
As to Tenant:
ZIX CORPORATION
0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Legal Department
22
40. SEVERABILITY. If any term or provision of this Lease or the application
thereof to any person or circumstance shall,to any extent, be invalid or
unenforceable the remainder of this Lease or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
41. RECORDATION. Tenant agrees not to record this Lease or any memorandum
hereof, but Landlord may record this Lease or a memorandum thereoft at its sole
election, and Tenant agrees to execute iuch memorandum upon request by Landlord.
42. GOVERNING LAW. This Lease and the rights and obligations of the parties
hereto shall be interpreted construed and enforced in accordance with the laws
of the State of Florida.
43. TIME OF PERFORMANCE. Except as expressly otherwise herein provided, with
respect to all required acts of Tenant, time is of the essence of this Lease.
44. FORCE MAJEURE. Whenever a period of time is herein prescrbed for the taking
of any action by Landlord, Landlord shall not be liable or responsible for and
there shall be excluded from the computation of such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war, acts
of terrorism, governmental laws, regulations or restrictions, financing, or any
other cause whatsoever beyond the control of Landlord.
45. TRANSFERS BY LANDLORD. Landlord shall have the right to transfer and assign,
in whole or in part, all its rights and obligations hereunder and in the
Building and the Premises referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations hereunder, and
tenant agrees to look solely to such successor in interest of Landlord for the
performance of such obligations.
46. BROKERS. Landlord and Tenant each represent and warrant one to the other
that except as may be hereinafter set forth neither of them has employed any
broker in connection with the negotiations of the terms of this Lease or the
execution thereof. Landlord and Tenant hereby agree to indemnify and to hold
each other harmless against any loss, expense or liability with respect to any
claims for commissions or brokerage fees arising from or out of any breach of
the foregoing representation and warranty. Landlord recognizes XXXXXX REALTY
SERVICES and XXXXXXX COMMERCIAL REAL ESTATE ADVISORS as the sole broker(s) with
whom Landlord has dealt in this transaction and agrees to pay any commissions
determined to be due to said broker(s) only
47. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy of this
Lease to Tenant for Tenant's review only and the delivery hereof does not
constitute an offer to Tenant or an
23
option to lease. This Lease shall not be effective until a copy executed by both
Landlord and Tenant is delivered to and accepted by Landlord.
48. CAPTIONS. The Paragraph captions used herein are for convenience and
reference only.
49. RELATIONSHIP OF PARTIES. Nothing contained herein shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of prinicipal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, nor any
acts of the parties herein, shall be deemed to create any relationship between
the parties hereto other thap the relationship of Landlord and Tenant.
50. EXHIBITS. In addition to Exhibits "A", "B", "C", and "D", the following
exhibits are attached hereto and incorporated herein and made a part this Lease
for all purposes:
51. PRIOR AGREEMENTS AND AMENDMENTS. The provisions of this Lease may not be
modified or amended, except by an instrument in writing and signed by both
parties hereto.
52. BINDING EFFECT. This Lease shall be binding upon and inure to the benefit of
Landlord, its successors and assigns, and Tenant, its successors and, to the
extent assignment is permitted under the provisions hereof, Tenant's assigns.
53. AMERICANS WITH DISABILITIES ACT OF 1990 (ADA). Subject to the provisions of
the Lease, Landlord agrees and acknowledges that Landlord shall be responsible
for compliance with the Title III of the ADA in the common areas of the
Building, as defined elsewhere in the Lease. Landlord represents that it has
made good faith efforts to bring the common areas into compliance with the
requirements of Title III of the ADA. Tenant represents and covenants that
Tenant shall be fully responsible for compliance with the ADA of any and all
improvements located within the Leased Premises, regardless of who pays for or
performs such improvements. Tenant covenants and agrees that any and all future
alterations or improvements made by Tenant to the Leased Premises shall comply
with ADA. Upon the request of Landlord, Tenant shall provide Landlord with
evidence reasonably satisfactory to Landlord that such work was performed in
compliance with the ADA. Tenant represents and covenants that Tenant shall
conduct its occupancy and use of the Leased Premises in accordance with the ADA
(including but not limited to, modifying its policies, practices and procedures,
and providing auxiliary aids and services to persons with disabilities).
Landlord and Tenant agree to indemnify the other for any costs, claims, damages,
losses or expenses (including the costs of consulting and legal fees) arising
out of the other's breaching its respective responsibilities for compliance with
the ADA as required in this Lease. This Indemnity shall survive the termination
of this Lease.
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54. RADON GAS. 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.
55. COMPLIANCE WITH ENVIRONMENTAL LAWS. To the extent that Tenant is
responsible, Tenant represents and warrants to Landlord that Tenant shall not
use the Demised Premises in any manner which would violate any applicable
environmental protection statutes, laws, rules or regulations. Without limiting
the foregoing, Tenant represents and warrants to Landlord that no hazard
substance, hazard waste, pollutant, contaminant, nuclear or byproduct material,
or toxic waste material of any kind whatsoever will be released or disposed of
on the Demised Premises or anywhere in the Building in violation of applicable
environmental protection statutes, laws, rules or regulations. Tenant agrees to
and shall indemnify, defend (by counsel reasonable acceptable to Landlord) and
hold the Landlord harmless of, from and against (i) any and all liability,
claims, obligations, losses, damages, awards, judgments, or amounts paid in
settlement or comprised thereon, and costs associated therewith, including
reasonable attorneys' fees, incurred by Landlord or assessed against the
Building by virtue of any investigation, inquiry, litigation, suit, action, or
claim of or by any governmental or quasi-governmental unit, body or agency, or
any third party for clean-up costs, damages, or any other costs, and (ii) any
and all fines, penalties, assessments, forfeitures, payments, impositions or
amounts paid in settlement or comprised thereon, together with costs associated
therewith including reasonable attorneys' fees, imposed or obtained by or
awarded to the Environmental Protection Agency, or any other governmental or
quasi-governmental unit, body or agency for violation of, or noncompliance with,
any environmental protection law, rule, regulation or order, and (iii) any and
all costs required to take necessary precaution to protect against the release
of, or to clean up any hazardous substance, hazardous waste, pollutant,
contaminant, or toxic waste materials in, on, under or affecting the Demised
Premises or the Building that was caused by the Tenant. A violation of this
Paragraph by Tenant shall be deemed to be a material noncurable default by
Tenant under this Lease.
56. OPTION TO RENEW -- Provided that tenant is not in material Default, which
Default is uncured within the time permitted herein after Notice from Landlord,
Tenant may extend this lease for an additional one (1) year period at a monthly
Base Rent of 103% of the last month of the Term of this Lease by giving advance
written Notice 90 days prior to the end of the Term.
57. RIGHT TO LEASE CONTIGUOUS SPACE: -- Tenant shall have the right during the
term to rent contiguous space provided that such expansion results in a new
lease providing a minimum Term of three (3) years. Such right must be exercised
within ten (10) days of Notice by Landlord that contiguous space is available.
The rate shall be the same rate as paid by Tenant under this Lease, with annual
increases of 3% per year. Landlord improvements shall consist of creating an
adjoining doorway, properly demising the space, painting, and cleaning carpets.
25
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
TENANT:
MYDOCONLINE INC.
by: /s/ Xxxx Xxxxxx
-----------------
Print Name: XXXX XXXXXX
Title: CFO
Witness: /s/ Xxxxx Xxxxxxxx Print Name: XXXXX XXXXXXXX
------------------
Witness: /s/ Xxxxx Xxxxxx Print Name: XXXXX XXXXXX
------------------
LANDLORD:
CONECA PROPERTIES, LTD.
By: CONECA, INC., as General Partner
By: /s/ Xxxxx Xxxxxxxx
------------------
Xxxxx Xxxxxxxx
President
Witnesses (as to Landlord):
By: /s/ Xxxxxxxx Xxxxx
-------------------
Print Name: XXXXXXXX XXXXX
By: /s/ Xxxxx Xxxxxx
-------------------
Print Name: XXXXX XXXXXX
26
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL 1:
Being a portion of the South one-half of the Southwest one-quarter of the
Southeast one-quarter of Section 5, Township 47 South, Range 43 East, and being
more particularly described as follows:
Beginning at the Intersection of a line parallel to and 400 feet North of the
South line of said Section 5, with the West right-of-way line of U.S. Highway
No. 1, as now constructed and In use; thence South 89 degrees 50 minutes 13
seconds West, along said parallel line, a distance of 557.83 feet; thence North
00 degrees 09 minutes 33 seconds West, a distance of 266.95 feet; thence North
89 degrees 48 seconds 06 minutes East; a distance of 598.54 feet to the said
West right-of-way; thence South 08 degrees 35 minutes 34 seconds West, along
said right-of-way, a distance of 237.19feet to a point of curvature of a curve
concave to the Southeast andhaving a central angle of 00 degrees 29 minutes 16
seconds and a radius of 3906.83 feet; thence along the arc of said curve 33.27
feet to the point of beginning.
Together with all rights under the Basement for Ingress, Egress and
Parking as set forth In instrument dated June 22,1982, flied February 17, 1983
In O.R. Book 3983, page 444, Public Records of Palm Beach County, Florida, as
amended by instruments recorded in Official Records book 4658 at page 724, and
Official Records Book 4720, page 413, Public Records of Palm Beach County,
Florida.
Together with a non-exclusive and perpetual easement for ingress and egress
across the South 22.5 feet of the North 33.5 feet of Parcel 2 which is described
below.
PARCEL 2:
Land located in the City of Boca Raton, County of Palm Beach, State of
Florida and being a portion of the South One-Half of the Southwest One-Quarter
of the Southeast One-Quarter of Section 5, Township 47 South, Range 43 East, and
being more particularly described as follows:
Commence at the Intersection of a line parallel to and 400 feet North of The
South Line of Section 5, with the West right-of-way line of U.S. Highway No. I
as now constructed and in use; thence South 89 degrees 50 minutes 13 seconds
Wes4 along said parallel line, a distance of 557.53 feet, to the point of
beginning; thence continue South 89 degrees 50 minutes 13 seconds West, along
said parallel line, a distance of 536.21 feet, to an Intersection with a curve
concave to the Southeast, and whose radius point bears South 80 degrees 50
minutes 17 seconds East from sold Intersection, and said Intersection 8180 being
on the Best right-of-way line of Xxxxx Highway as recorded in Official Records
Book 2639 at Page 1089; thence Northeasterly along said East right-of-way line
and said curve, having a central angle of 07 degrees 46 minutes 14 seconds and a
radius of 1859.86 feet, an arc distance of 252.24 feet; thence North 16 degrees
52 minutes 13 seconds East, along said Best right-of-way line, a distance or
22.27 feet; thence North 89 degrees 48 minutes 06 seconds Best, a distance of
472.38 feet; thence South 00 degrees 09 minutes 33 seconds East a distance of
266.95 feet to the point of beginning.
27
EXHIBIT "B"
FLOOR PLAN
28
EXHIBIT "C"
TENANT IMPROVEMENT
THIS WORK AGREEMENT is attached to and made part of the certain Office Lease
Agreement (the "Lease") dated on the 31st day of December, 2004 by and between
CONECA PROPERTIES, LTD. ("Landlord") AND MYDOCONLINE, INC. ("Tenant"). The
terms, definitions and other provisions of the Lease are hereby incorporated
into this Work Agreement by reference.
IN CONSIDERATION OF the execution of the Lease and the mutual covenants
and conditions hereinafter set forth, Landlord and Tenant agree as follows:
Tenant agrees to accept possession of the Premises in "As Is" condition as of
the Commencement Date provided that the Landlord shall be obligated to complete
the following work at Landlord's expense:
1. Paint walls building standard color per Tenant selection...
2. Building Standard entry sign by Landlord.
3. Landlord to supply imprinted Directory strips at East and North
entries. Security access name entry for all business names of
tenant.
4. Security entry cards (6 at no charge).
Tenant is responsible for installation, and removal at the end of its tenancy,
of all telecommunications cabling and equipment at Tenant's sole expense subject
to "Exhibit D, Building Rules and Regulations".
TENANT: MyDocOnLine, Inc.
By___________________________________________
Print Name:_________________________________
Title:_____________________________________
Date:__________________________, 2004
29
EXHIBIT "D"
RULES AND REGULATIONS
The following Rules and Regulations have been formulated for the safety
and well-being of all the tenants of the Building and Strict adherence to these
Rules become effective upon occupancy. Strict adherence to these Rules and
Regulations is necessary to guarantee that each and every Tenant will enjoy a
safe and unannoyed occupancy in the Building. Any repeated or continuing
violation of these Rules And Regulations by Tenant after notice and time to cure
from Landlord shall be sufficient cause for termination of this Lease at the
option of Landlord.
Landlord may upon request by any tenant, waive the compliance by such
tenant of any of the foregoing Rules and Regulations provided that (i) no waiver
shall be effective unless signed by Landlord's authorized agent (ii) any such
waiver shall not relieve such tenant from the obligation of complying with the
foregoing Rules and Regulations unless such other tenant has received a similar
waiver in writing from Landlord.
Landlord agrees not to unreasonably discriminate against Tenant in the
enforcement of the Rules and Regulations in effect with regard to the Building.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls or other parts of the Building not part of the
Premises of Tenant shall not be obstructed or encumbered by any tenant or used
for any purpose other than ingress and egress, and in the case of the freight
elevator, for the moving of freight to and from the Premises, and if the
Premises are situated on the ground floor of the Building the Tenant thereof
shall at said Tenant's own expense keep the sidewalks and curb directly in front
of said Premises clean and free from debris. Subject to the other provisions of
this Lease, Landlord shall have the right to control and operate the public
portions of the Building, and the facilities furnished for the common use of the
Building, in such manner as Landlord deems best for the benefit of the tenants
generally. No tenant shall permit the visit to the Premises of persons in such
numbers or under such conditions as to interfere with the use and enjoyment by
other tenants of the entrances, corridors, elevators and other public portions
or facilities of the Building.
2. No awnings other projections shall be attached to the outside walls of the
Building without the prior written consent of Landlord. No drapes, blinds,
shades or screens shall be attached to or hung in or used in connection with,
any window or door of the Premises without the prior consent of Landlord. Such
awnings, projections, curtains, blinds, screens or other fixtures must be of a
quality type, design and color and attached in the manner approved by Landlord.
Notwithstanding the foregoing, and notwithstanding any provision of this Lease
to the contrary, Tenant, from time to time, will be permitted to install floor
to ceiling drapes on the exterior windows of the Premises; said drapes shall be
submitted to Landlord for Landlord's approval.
30
3. Except as otherwise provided for in this Lease, no sign, picture,
advertisement notice or other lettering shall be exhibited, inscribed, printed
or affixed by any Tenant on any part of the outside or inside of Building
without the prior written consent of Landlord. In the event of the violation of
the foregoing by any Tenant, Landlord may remove same without any notice or
liability and may charge the expense incurred by such removal to the Tenant or
tenants violating this rule. Interior signs on doors and directory tablet shall
be inscribed, printed or affixed for each tenant by Landlord and shall be of a
size, color and style acceptable to Landlord.
4. No show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors or
vestibules without the prior written consent of Landlord.
5. The water and wash closets and other plumbing fixtures shall not be used for
any purpose other than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne by the tenant who or whose
servants, employees agents, visitors, or licensees, shall have caused the same.
6. All contractors and/or technicians performing work for Tenant within the
Premises, Building or parking facilities shall be referred to Landlord for
approval before performing such work. This shall apply to all work including but
not limited to, installation of telephones, telegraph equipment, electrical
devices and attachments, and all installations affecting floors, walls, windows,
doors, ceilings, equipment or any other physical feature of the Building, the
Premises or parking facilities. None of this work shall be done by Tenant
without Landlord's prior written approval.
7. No tenant shall construct, maintain, use or operate within the Premises or
elsewhere within or on the outside of the Building any electrical device, wiring
or apparatus in connection with a loud-speaker system other than an office
loudspeaker system with speakers solely within the Premises and the sound from
which does not disturb other tenants.
8. No bicycles, vehicles, or animals, birds or pets of any kind shall be brought
into or be kept in or about the Premises and no cooking shall be done or be
permitted by any tenant on said Premises, except for a tenant's clients and/or
employee's own use and with the prior written approval of Landlord. No tenant
shall make or permit to be made, any unseemly or disturbing noises which disturb
or interfere with occupants of this or neighboring buildings or premises or
those having business with them whether by the use of any musical instrument,
radio, phonograph, unmusical noise, whistling, singing or in any other way. No
tenant shall throw anything out of doors or windows or down corridors or stairs
of the Building.
9. No inflammable combustible or explosive fluid, chemical or substances shall
be brought or kept upon Premises. Landlord acknowledges however that Tenant
shall be entitled to keep those items necessary to run its photocopying
equipment.
31
10. No additional locks or bolts of any kind shall- be placed upon any of the
doors or windows by any tenant nor shall any changes be made in existing locks
or the mechanism thereof without Landlord's consent. Except on single-tenant
floors, the doors leading to the corridors or main halls (if any such doors
exist) shall be kept closed during Normal Business Hours except as they may be
used for ingress or egress. Each tenant shall, upon the termination of his
tenancy, restore to Landlord all keys of stores, offices storage and toilet
rooms either furnished to or otherwise procured by such tenant, and in the event
of the loss of any keys so furnished, such tenant shall-pay to Landlord the
cost to re-key the locks operated by those keys.
11. Except as otherwise provided for in this Lease, all removals, or the
carrying in or out of any sales, freight, furniture, or bulky matter of any
description must take place during the hours which Landlord or its agent may
determine from time to time and according to a method and routing of such
movement as is determined by Landlord upon request from Tenant. Tenant shall
assume all liability and risk to property Premises and Building in such
movement. Tenant shall not move furniture, machines, equipment, merchandise or
materials within, into or out of the Building, the Premises or parking
facilities without having first obtained a written permit from Landlord
twenty-four (24) hours in advance. Safes, large files, electronic data
processing equipment and other heavy equipment or machines shall be moved into
the Premises, Building or parking facilities only with Landlord's written
consent and placed where directed by Landlord.
12. Any person employed by any tenant to do janitorial work within the Premises
must obtain Landlord's consent, and such person shall, while in the Building and
outside of said Premises comply with all reasonable instructions issued by the
manager of the Building.
13. No tenant shall purchase spring water, ice, coffee, soft drinks, towels or
the like service, from any company or persons whose repeated violations of
Building regulations have caused, in Landlord's opinion, a hazard or nuisance to
the Building and/or its occupants.
14. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's opinion, tends to impair the reputation of the building or
its desirability as a building for offices, and upon written notice from
Landlord, such teenant shall refrain from or discontinue such advertising.
15. Landlord reserves the right to exclude from the Building at all times any
person who does not propertly identify himself to the Building management or
watchman, if so posted, on duty. Landlord may at its option require all persons
admitted to or leaving the building between the hours of 6 p.m. and 8 a.m.,
Monday through Friday, and at all times on Saturday and Sunday and legal
holidays, to register. Each tenant shall be responsible for all persons for whom
he authorizes entry into or exit out of the Building and shall be loiable to the
Landlord for all acts of such persons, except to the extent covered or required
to be covered by insurance carried, or required to be carried, by Landlord.
16. The Premises shall not be used for lodging or sleeping or for any immoral or
illegal purpose.
32
17. The requirements of the Tenant will be attended to only upon application at
the office of the Building. Building employees shall not perform any work or do
anything outside of their regular duties, unless under special instruction from
the management of the Building.
18. Canvassing, soliciting and peddling in the Building is prohibited and each
tenant shall cooperated to prevent the same.
19. There shall not be used in any space, or in the public halls of the
Building, either by tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
20. In the event Tenant must dispose of crates, boxes, etc. Which will not fit
into office wastepaper baskets, it will be the resposibility of the Tenant to
dispose of same. In no event shall Tenant set such items in the public hallways
or other areas of the Building or parking facilities, excepting Tenant's own
premises for disposal.
21. Tenant shall not install any antenna or aerial wires, or radio or television
equipment, or any other type of equipment, inside or outside the Building,
without Landlord's prior approval in writing and upon such terms and conditions
as may be spewcified by Landlord in each and every instance.
22. In the event the Fire Alarm System is set off as a result of actions by the
TENANT, their employees or invitees, any and all costs assessed will be paid by
the Tenant.
23. TENANT shall not allow any employee to smoke in the demised premises, common
areas, rest rooms or stairwells. In the event the tenant, their employees or
invitees, sets off the Fire Alarm System as a result of actions; the Tenant will
pay any and all costs assessed. This BUILDING, in accordance and to comply with
applicable "Indoor Clean Air Act(s)" of the Local, County, State and/or Federal
governments, is "SMOKE FREE" (the smoking of any tobacco products including but
not limited to cigarettes, cigars, pipes, etc.) within TENANTS' DEMISED PREMISES
and all COMMON AREAS including, but not limited to Corridors, Bathrooms,
Elevators, Emergency Exits and Stairways, is PROHIBITED.
TENANT hereby acknowledges receiving a copy of the foregoing Rules and
Regulations.
By:/s/ Xxxx Xxxxxx
------------------------
Print Name: XXXX XXXXXX
Title: CFO
Date: 12/31/04
33
