OFFICE/WAREHOUSE LEASE ARTICLE ONE: DEFINITIONS
Exhibit
10.6 - Lease Agreement Dated September 20, 2005
OFFICE/WAREHOUSE
LEASE
ARTICLE
ONE: DEFINITIONS
Section
1.1. Date
of Lease:
__September
20,______,
2005.
Section
1.2. Commencement
Date:
The
date on which the term of this Lease and the accrual of Rent begins which shall
be September 15, 2005 (the "Commencement Date").
Section
1.2.1. Landlord:
Penn
Florida Venture IV, a Florida limited partnership. Address of Landlord: C/O
Penn-Florida Capital, Corp., 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000.
Section
1.3. Landlord's
Work.
TTenant
accepts the Premises in “AS-IS” condition.
Section
1.4. Building.
The
office/warehouse improvements comprising a part of the Project in which the
Premises are located.
Section
1.5. Tenant:
Adsouth, Inc. as a Florida corporation
Mailing
Address of Tenant: 0000 Xxxxx Xxxxxx Xxxxxx, #00
Xxxx
Xxxxx, Xxxxxxx 00000
Section
1.6. Project.
The
office/warehouse project located at 0000
Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx, consisting of 70,927 square feet
of
rentable area.
Section
1.7. Premises:
Suites
10, 11 and 12, of the Project which Landlord and Tenant agree contains 20,394
square feet of rentable floor area.
Section
1.8. Lease
Term: Commencing
on the Commencement Date and ending on hundred twenty three (123) full calendar
months after the Commencement Date.
Section
1.9. Lease
Year or Year.
A
twelve (12) full calendar month period beginning on the Commencement Date and
each anniversary of the Commencement Date thereafter.
Section
1.10. Landlord's
Broker:
Penn-Florida Realty Corp.
Section
1.11. Tenant's
Broker:
N/A
Section
1.12. Operating
Expenses:
All
expenses of every kind incurred by Landlord with respect to the ownership,
management, operation, insuring, improvement, replacement, promotion and
maintenance of the Project including, without limitation, insurance premiums,
waste removal, lighting, drainage, utilities and other services provided through
Landlord or to the common areas of the Project, any property taxes, assessments,
governmental charges and owners' dues of any kind and nature whatsoever. All
such Operating Expenses shall be recorded on a accrual basis and in accordance
with acceptable principles of sound management and accounting practices
applicable to similar projects.
Section
1.13. Security
Deposit:
(This
section intentionally left blank).
Section
1.14. Base
Rent:
For the
initial Lease Year Base Rent shall be Two Hundred Thirty-Four Thousand Five
Hundred Thirty-One Dollars and 00/100 ($234,531.00) which amount shall be
adjusted as provided herein for each Lease Year after the initial Lease Year.
Payment of Base Rent shall commence on the first day following the Commencement
Date.
Provided
Tenant faithfully performs all terms and conditions of the Lease during the
term
hereof, Tenant’s obligation to pay Base Rent under this Lease shall be abated in
months one(1) through three (3) of the Lease Term.
If
Tenant
at any time breaches any term or covenant required to be performed by Tenant
under this Lease, Landlord may, in addition to all other rights or remedies
it
may have, rescind the abatement and receive all the base rent which Landlord
would have otherwise received from Tenant had there been no period of abatement.
Abatement shall apply to payment of Base Rent and additional Rent only and
shall
not be applicable to any other charges, expenses or cost payable by Tenant
under
this Lease. Landlord’s failure to rescind the abatement of rent provided for
hereunder as a result of any default by Tenant shall not be deemed to be a
waiver of Landlord’s right to so rescind on any subsequent default by
Tenant.
Section
1.15. Additional
Rent:
Tenant's
Proportionate Share of Operating Expenses, sales or other taxes, taxes imposed
on rents to use the Premises which Tenant shall pay and any other amounts
payable by Tenant pursuant to the terms of this Lease.
Section
1.16. Initial
Rent:
The
amount of Fifty-Four Thousand Five Hundred Eighty-Eight Dollars and Sixty-Two
Cents ($54,588.62) on account of the first and second months’ gross rent of the
Lease Term.
Section
1.17. Discount
Rate:
The
percentage rate which is equal to the equivalent yield on U.S. Treasury
obligations having a maturity as near as possible to the remaining term of
this
Lease as reported in the Wall
Street Journal
on the
date in question.
Section
1.18. Rent:
Base
Rent, and Additional Rent, and all other charges due in accordance
herewith.
Section
1.19. Tenant's
Proportionate Share:
Twenty-eight and seventy-five of one hundredths percent (28.75%) which is the
amount that is the percentage determined by dividing the rentable area of the
Premises by the rentable area of the Project.
Section
1.20. Calendar
Month.
The
period of time beginning on the first day of any given calendar month and
continuing until the last day of such month, partial months shall not be
considered a full calendar month.
ARTICLE
TWO: LEASE
TERM.
Section
2.1. Lease
of Premises For Lease Term:
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord for the Lease Term. Promptly after the Commencement Date, Landlord
and
Tenant shall execute a memorandum in the form attached hereto as Exhibit "B"
acknowledging the Commencement Date and the Lease Term.
Section
2.2. Delay
In Commencement:
Landlord shall not be liable to Tenant if Landlord does not deliver possession
of the Premises to Tenant on the Estimated Commencement Date and such failure
to
deliver shall not affect this Lease or the obligations of Tenant under this
Lease. If Landlord does not deliver possession of the Premises to Tenant within
one hundred eighty days (180) days after the Estimated Commencement Date, Tenant
may elect to cancel this Lease by giving written notice to Landlord within
ten
(10) days after the one hundred eighty day (180) day period ends. If Tenant
gives such notice, the Lease shall be canceled and neither Landlord nor Tenant
shall have any further obligations to the other. If Tenant does not give such
notice, Tenant's right to cancel the Lease shall expire and the Lease Term
shall
commence upon the delivery of possession of the Premises to Tenant.
Section
2.3. Early
Occupancy:
If
Tenant occupies the Property prior to the Commencement Date, Tenant's occupancy
of the Property shall be subject to all of the provisions of this Lease. Early
occupancy of the Property shall not advance the expiration date of this Lease.
Tenant shall pay Base Rent and all other charges specified in this Lease for
the
early occupancy period.
Section
2.4. Holding
Over:
Tenant
shall vacate the Premises upon the expiration or earlier termination of this
Lease. Tenant shall reimburse Landlord for and indemnify Landlord against all
damage incurred by Landlord from any delay by Tenant in vacating the Premises.
If Tenant does not vacate the Premises upon the expiration or earlier
termination of the Lease and Landlord thereafter accepts rent from Tenant,
Tenant's occupancy of the Premises shall be a tenancy at sufferance, subject
to
all of the terms of this Lease, except that the Base Rent then in effect shall
be increased to be the maximum allowed by Florida law.
ARTICLE
THREE: BASE
RENT
Section
3.1. Time
and Manner of Payment:
Tenant
agrees to pay Landlord the Base Rent, without notice or demand, in equal monthly
installments in advance, on or before the first day of each and every successive
calendar month during the Lease Term. Rent for any period which is for less
than
one (1) month shall be a prorated portion of the monthly installment provided
herein based upon a thirty (30) day month. Said rental shall be paid to
Landlord, without deduction or offset, in lawful money of the United States
of
America and payable at Landlord's address or at such other place as Landlord
may
from time to time designate in writing.
Section
3.2. Base
Rent Adjustment:
The
Base Rent shall be increased on each anniversary date of the Commencement Date
so that the Base Rent for the ensuing Lease Year shall be equal to the Base
Rent
for the Lease Year then ending multiplied by 105%.
ARTICLE
FOUR: OPERATING
EXPENSES; OTHER CHARGES PAYABLE BY TENANT.
Section
4.1. Operating
Expenses:
Tenant
shall pay monthly as Additional Rent an amount equal to one-twelfth (1/12th)
of
Tenant's Proportionate Share of the estimated Operating Expenses. For the period
from the Commencement Date to the date of the first adjustment as provided
below, Tenant shall pay Six Thousand Eighty-Four Dollars and Twenty-One Cents
($6,084.21) per month as the estimated Tenant's Proportionate Share of Operating
Expenses. Each calendar year on or before April 1, or as soon thereafter as
is reasonably possible, Landlord shall deliver to Tenant a statement setting
forth Landlord's reasonable estimate of the Operating Expenses for the then
current calendar year and shall furnish to Tenant a statement (the "Expense
Statement") which shall set forth the actual Operating Expenses for the prior
calendar year. Tenant shall continue to pay monthly installments in the current
amount until Tenant receives notice of a change in payment from Landlord and
thereafter each monthly installment will be increased by a prorata portion
of
the amount by which the payments which have been made in the calendar year
are
less than the amount due at the increased installment rate. Landlord agrees
to
keep true and accurate records of the Operating Expenses of the Building in
accordance with generally accepted accounting principles. After delivery of
the
Expense Statement, there shall be an adjustment between Landlord and Tenant
such
that after said adjustment Tenant will have paid the Additional Rent amount
due
in accordance with this section. Payment pursuant to said adjustment to Landlord
or Tenant, as the case may be, shall be made within thirty (30) days from the
date of Tenant's receipt of the Expense Statement. For any period less than
a
full calendar month or year, Tenant's Additional Rent under this section shall
be prorata based on actual expenses for that calendar year or month. In the
event that less than ninety-five percent (95%) of the total square footage
in
the Project is occupied by tenants at all times during any calendar year, then
Operating Expenses for such year shall include all additional costs, expenses
and disbursements that Landlord reasonably determines would have been incurred
had ninety-five percent (95%) of the total square footage in the Project been
occupied at all times during such year by tenants.
Section
4.2. Personal
Property Taxes.
(i) Tenant
shall pay all taxes charged against trade fixtures, furnishings, equipment
or
any other personal property belonging to Tenant. Tenant shall exert Tenant's
best efforts to have personal property taxed separately from the
Premises.
(ii) If
any of
Tenant's personal property is taxed with the Premises, Tenant shall pay Landlord
the taxes for the personal property within ten (10) days after Tenant receives
a
written statement from Landlord for such personal property taxes.
Section
4.3. Utilities:
Tenant
shall pay, directly to the appropriate supplier, the cost of all natural gas,
heat, light, power, sewer service, telephone, water, refuse disposal and other
utilities and services supplied to the Premises. However, if any services or
utilities are jointly metered with other portions of the Project, Landlord
shall
include such costs in Operating Expenses. Landlord reserves the right to require
Tenant to install separate meters for any utility service supplied through
joint
meters which installation cost shall be Tenant's expense.
Section
4.4. Insurance
and Indemnity:
(a) Liability
Insurance.
Tenant
shall, at Tenant's sole cost and expense, obtain and keep in force during the
term of this Lease a policy of Combined Single Limit, Bodily Injury and Property
Damage insurance insuring Landlord and Tenant against any liability arising
out
of the ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be provided through a combined single
limit policy in an amount not less than $1,000,000 per occurrence. The policy
shall insure performance by Tenant of the indemnity provision of this Section.
The limits of said insurance shall not, however, limit the liability of Tenant
hereunder. Executed copies of such policies of insurance or certificates thereof
shall be delivered to the Landlord within thirty (30) days after the
Commencement Date.
(b) Premises
Insurance.
(i) Landlord
shall obtain and keep in force during the term of this Lease a policy or
policies of insurance covering loss or damage to the Project, in the amount
of
the full replacement value thereof, as the same may exist from time to time,
but
in no event less than the total amount required by lenders having liens on
the
Premises, against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, flood (in the event same
is
required by a lender having a lien on the Project), and special extended perils
("all risk" as such term is used in the insurance industry). Said insurance
shall provide for a payment of loss thereunder to Landlord or to the holder
of
mortgages or deeds of trust on the Premises. The Tenant shall, in addition,
obtain and keep in force during the term of this Lease a policy of rental value
insurance covering Rent and Operating Expenses for a period of one year, with
loss payable to Landlord. Tenant shall pay the cost of such insurance directly
and provide Landlord proof of such insurance and payment of the premiums
therefor.
(ii) Tenant
shall pay for any increase in the property insurance obtained by Landlord if
said increase is caused by Tenant's acts, omissions, use or occupancy of the
Premises.
(iii) The
Landlord shall not insure Tenant's fixtures, equipment or tenant improvements
.
(c) Insurance
Policies.
Insurance required hereunder shall be in companies holding a "General
Policyholders Rating" of not less than "A", or such other rating as may be
required by a lender having a lien on the Project, as set forth in the most
current issue of "Best Insurance Guide." No policy carried by Tenant shall
be
cancelable or subject to reduction of coverage or other modification except
after thirty (30) days prior notice to Landlord. Prior to the expiration of
such
policies, Tenant shall furnish Landlord with renewals or "binders" thereof,
or
Landlord may order such insurance and charge the cost thereof to Tenant, which
amount shall be payable by Tenant upon demand. Tenant shall not do or permit
to
be done anything which shall invalidate the insurance policies carried by
Landlord. If Tenant does or permits to be done anything which shall increase
the
cost of the insurance policies referred to in this Section, then Tenant shall
forthwith upon Landlord's demand reimburse Landlord for any additional premiums
attributable to any act or omission or operation of Tenant causing such increase
in the cost of insurance.
(d) Waiver
of Subrogation.
Tenant
and Landlord each hereby release and relieve the other, and waive their entire
right of recovery against the other for loss or damage arising out of or
incident to the perils insured against under this Section, which perils occur
in, on or about the Premises, whether due to the negligence of Landlord or
Tenant or their agents, employees, contractors and/or invitees. Tenant and
Landlord shall, upon obtaining the policies of insurance required hereunder,
give notice to the insurance carrier or carriers that the foregoing mutual
waiver of subrogation is contained in this Lease.
(e) Indemnity.
Tenant
shall indemnify and hold harmless Landlord and Landlord's officers, agents,
employees, partners, successors and assigns from and against any and all claims
arising from Tenant's use of the Premises, or from the conduct of Tenant's
business or from any activity, work or things done, permitted or suffered by
Tenant in or about the Premises or elsewhere and shall further Indemnify and
hold harmless Landlord from and against any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to
be
performed under the terms of this Lease, or arising from any negligence of
the
Tenant, or any of Tenant's agents, contractors, or employees, and from and
against all cost, attorney's fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon; and
in
case any action or proceeding be brought against Landlord by reason of any
such
claim, Tenant upon notice from Landlord shall defend the same at Tenant's
expense by counsel satisfactory to Landlord. Tenant, as a material part of
the
consideration to Landlord, hereby assumes all risk of damages to property or
injury to persons, in, upon or about the Premises arising from any cause and
Tenant hereby waives all claims in respect thereof against
Landlord.
Section
4.5. Late
Charges:
Tenant's failure to pay rent promptly may cause Landlord to incur unanticipated
costs. The exact amount of such costs are impractical or extremely difficult
to
ascertain. Such costs may include, but are not limited to, processing and
accounting charges and late charges which may be imposed on Landlord by any
ground lease, mortgage or trust deed encumbering the Premises. Therefore, if
Landlord does not receive any rent payment within ten (10) days after it becomes
due, Tenant shall pay Landlord a late charge equal to ten percent (10%) of
the
overdue amount. The parties agree that such late charge represents a fair and
reasonable estimate of the costs Landlord will incur by reason of such late
payment.
Section
4.6. Interest
on Past Due Obligations.
Any
amount owed by Tenant to Landlord which is not paid when due shall bear interest
at a rate equal to the maximum rate allowable under applicable law (the "Default
Rate") from date that said payment was originally due. However, said interest
shall not be payable on late charges incurred by Tenant nor on any amounts
upon
which late charges are paid by Tenant under this Lease. The payment of interest
on such amounts shall not excuse or cure any default by Tenant under this
Lease.
ARTICLE
FIVE: USE
OF
THE PROPERTY
Section
5.1. Permitted
Uses:
Tenant
may use the Premises only for general office/warehouse use and for no other
uses
whatsoever except those approved by Landlord in writing.
Section
5.2. Manner
of Use:
Tenant
shall not cause or permit the Premises to be used in any way which constitutes
a
violation of any law, ordinance, or governmental regulation or order, which
annoys or interferes with the rights of tenants of the Project, or which
constitutes a nuisance or waste. Tenant shall obtain and pay for all permits,
including a Certificate of Occupancy, required for Tenant's occupancy of the
Premises and shall promptly take and pay for all substantial and non-substantial
actions necessary to comply with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating the use by Tenant of the
Premises, including, without limitation, the Occupational Safety and Health
Act
and the Americans with Disabilities Act.
Section
5.3. Uses
Prohibited:
Tenant
shall not do or permit anything to be done in or about the Premises nor bring
or
keep anything therein which is not within the permitted use of the Premises
which will in any way increase the existing rate on or affect any fire or other
insurance upon the Project or any of its contents, or cause a cancellation
of
any insurance policy covering the Project or any part thereof or any of its
contents.
Section
5.4. Signs
and Auctions:
Tenant
shall not place any signs on the Premises without Landlord's prior written
consent. Tenant shall not conduct or permit any auctions or sheriff's sales
at
the Premises.
Section
5.5. Landlord's
Access:
Landlord or its agents may enter the Premises at all reasonable times to show
the Premises to potential buyers, investors or tenants or other parties, or
for
any other purpose Landlord deems necessary. Landlord shall give Tenant prior
notice of such entry, except in the case of an emergency. Landlord shall at
all
times have and retain a key with which to unlock all of the standard entrances
and exit doors in, upon and about the Premises, excluding Tenant's vaults,
safes
and files, and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency, in order to obtain
entry to the Premises without liability to Tenant except for any failure to
exercise due care for Tenant's property and any entry to the Premises obtained
by Landlord by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into,
or
a detainer of, the Premises, or an eviction of Tenant from the Premises or
any
portion thereof. Landlord may place customary "For Sale" or "For Lease" signs
on
or about the Premises, but may not place such signs in or in front of the
Premises until one hundred eighty (180) days prior to the end of the Lease
Term
or if Tenant vacates the Premises prior to expiration of the Lease
Term.
Section
5.6. Quiet
Possession:
If
Tenant pays the rent and complies with all other terms of this Lease, Tenant
may
occupy and enjoy quiet possession of the Premises for the full Lease Term,
subject to the provisions of this Lease.
Section
5.7. Hazardous
Materials:
For
purposes of this Lease, "Hazardous Material" means any pollutant or contaminant
or hazardous, dangerous or toxic chemicals, materials, or substances within
the
meaning of any applicable federal, state, or local law, regulation, ordinance,
or requirement (including consent decrees and administrative orders) relating
to
or imposing liability or standards of conduct concerning any hazardous, toxic
or
dangerous waste substance or material, all as amended or hereafter amended.
Hazardous Material shall also include, without limitation, crude oil or any
fraction thereof, any radioactive material, asbestos in any form or condition,
radon, polychlorinated biphenyls ("PCBs") or substances or compounds containing
PCBs, medical waste and noxious chemicals used in any construction on the
Premises.
Tenant
agrees not to keep in or on the Premises any inflammable, combustible or
explosive substance nor any substance which would create or tend to create
a
dangerous or combustible condition (other than cleaning products and other
substances of the sort and in quantities customarily kept in similar operations
provided same are kept and used in accordance with applicable laws). Tenant
agrees not to cause or allow the presence, storage, use, maintenance or removal
of Hazardous Materials in or about the Premises without Landlord's prior written
consent. If Tenant's business requires use or possession of Hazardous Materials,
Tenant must advise Landlord and obtain Landlord's written consent before
bringing any Hazardous Materials onto or creating such condition on or within
the Premises. If Tenant uses or maintains Hazardous Materials on or in the
Premises, Tenant agrees to handle, store, transport and dispose of all Hazardous
Materials at Tenant's sole cost and expense in accordance with all then-existing
local, state and federal rules and laws. Provided it is lawful to do so, Tenant
agrees to enter into a contract(s) with a company certified to handle the
Hazardous Materials for the transport and disposal of all Hazardous Materials
from the Premises. A copy of all such contracts and all renewals must be
provided to Landlord.
Landlord
may, at Landlord's sole option, now or in the future, obtain a report from
an
environmental consultant of Landlord's choice as to whether Tenant has been
or
is currently using any part of the Premises for the improper use, handling,
storage, transportation or disposal of Hazardous Materials. If any such report
indicates such improper use, handling, storage, transportation or disposal
of
Hazardous Materials, Tenant agrees to immediately reimburse Landlord for the
cost of obtaining the environmental report, and, in addition, Landlord may
require that all violations of the law with respect to the Hazardous Materials
be corrected and/or that Tenant obtains all necessary environmental permits
and
approvals. If Tenant fails to correct any such violation(s) of law and/or fails
to obtain such necessary permits within a reasonable time after demand from
Landlord, then Landlord may declare this Lease in default and/or may cause
the
Premises and any surrounding areas to be freed from the Hazardous Materials
at
Tenant's sole cost and expense which Tenant agrees to pay on demand from
Landlord as additional rent.
Tenant
hereby agrees to indemnify, defend, save and keep Landlord, and Landlord's
officers, employees, partners, successors and assigns, harmless from any and
all
liabilities, obligations, charges, losses, damages, penalties, claims, actions
and expenses, including without limitation, engineers' and professional fees,
soil tests and chemical analysis, court costs and legal fees and expenses
through all trial, appellate and administrative levels, imposed on, incurred
by
or asserted against Landlord, in any way relating to, arising out of, or in
connection with the use, handling, storage, transportation or disposal of the
Hazardous Materials on the Premises and/or the Project. The foregoing
indemnification shall survive any assignment or termination of this Lease.
Section
5.8. Common
Areas and Parking Facilities:
All
automobile parking facilities, driveways, entrances and exits thereto, and
other
facilities in the Project furnished by Landlord, including, but not limited
to,
parking facilities, truckway or ways, loading areas, pedestrian walkways and
ramps, landscaped areas, stairways, corridors, and other areas and improvements
provided by Landlord for the general use, in common, of tenants, their officers,
agents, employees, servants, invitees, licensees, visitors, patrons and
customers (the "Common Areas"), shall be subject to the exclusive control and
management of Landlord subject to the Rules and Regulations set forth on Exhibit
"C" attached hereto (the "Rules"), and Landlord shall have the right from time
to time to modify and enforce the Rules; to police the same; from time to time
to change the area, level and location and arrangement of the Common Areas,
and
other facilities herein above referred to; to restrict parking by and enforce
parking charges (by operation of meters or otherwise) to tenants, their
officers, agents, invitees, employees, servants, licensees, visitors, patrons
and customers; to close all or any portion of the Common Areas to such extent
as
Landlord may desire or as may in the opinion of Landlord's counsel be legally
sufficient to prevent a dedication thereof or the accrual of any rights to
any
person or the public therein; to close temporarily all or any portion of any
public areas or Common Areas; to discourage non-tenant parking; to charge a
fee
for visitor and/or customer parking; and to do and perform such other acts
in
and to said areas and improvements as, in the sole judgment of Landlord,
Landlord shall determine to be advisable. Tenant, its employees, customers
and
invitees shall have the non-exclusive right to use the Common Areas in common
with other tenants for the purposes for which constructed subject to the Rules.
Landlord will operate and maintain the Common Areas, and other areas referred
to
above in such manner as Landlord shall determine from time to time. Without
limiting the scope of such discretion, Landlord shall have the full right and
authority to designate a manager of the Common Areas and other areas who shall
have full authority to make and enforce rules and regulations regarding the
use
of the same or to employ all personnel and to make and enforce all rules and
regulations pertaining to and necessary for the proper operation and maintenance
of the Common Areas and other areas. Reference in this paragraph to parking
facilities shall be construed as giving Tenant, its employees, invitees and
customers hereunder rights and/or privileges to the use of not more than 2.3
parking spaces per 1,000 square feet of rentable area in the Premises. Tenant,
its employees, invitees and customers shall not use more than the number of
parking spaces set forth above.
ARTICLE
SIX: CONDITION
OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS.
Section
6.1. Existing
Conditions/Landlord's Work:
Subject
to the completion of Landlord's Work, Tenant accepts the Premises in its
condition as of the execution of the Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations and orders. Tenant acknowledges
that neither Landlord nor any agent of Landlord has made any representation
as
to the condition of the Premises or the suitability of the Premises for Tenant's
intended use. Landlord agrees to complete Landlord's Work with diligence,
subject to delays due to causes beyond its reasonable control. The Premises
shall be deemed substantially completed and possession delivered when Landlord
has substantially completed the Landlord's Work, subject only to the completion
of items on Landlord's punch list. The taking of possession of the Premises
by
Tenant shall be deemed conclusively to establish that the Landlord's Work and
the Premises have been completed and are in good and satisfactory condition
as
of the date possession is so taken except for items on Landlord's punchlist
which may be completed at a later date. In the event of any dispute as to when
and whether the work performed or required to be performed by Landlord has
been
substantially completed, the certificate of occupancy or equivalent document
issued by the local governmental authority shall be conclusive evidence of
such
completion, effective on the date of issuance of any such certificate or
equivalent document.
Section
6.2. Exemption
of Landlord From Liability:
Landlord shall not be liable for any damage or injury to the person, business
(or any loss of income therefrom), goods wares, merchandise or other property
of
Tenant, Tenant's employees, invitees, customers or any other person in or about
the Premises, whether such damage or injury is caused by or results from: (a)
fire, steam, electricity, water, gas or rain; (b) the breakage, leakage
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures or any other cause; (c) condition arising
in or about the Premises or upon other portions of any building of which the
Premises is a part, or from other sources or places; or (d) any act or omission
of any other tenant of the Building. Landlord shall not be liable for any such
damage or injury even though the cause of or the means of repairing such damage
or injury are not accessible to Tenant. The provisions of this Section shall
not, however, exempt Landlord from liability for Landlord's gross negligence
or
willful misconduct.
Section
6.3. Maintenance
By Tenant:
Tenant
shall at all times during the Lease Term keep the Premises (including
maintenance of exterior entrances, all glass and show window moldings) and
all
partitions, doors, door jams, door closures, door hardware, fixtures, equipment
and appurtenances thereof (including electrical, lighting, heating and plumbing,
and plumbing fixtures, and any air conditioning systems, including leaks around
ducts, pipes, vents, or other parts of the air conditioning, heating or plumbing
systems which protrude through the roof) in good order, condition and repair
including replacements (including reasonable periodic interior painting as
determined by Landlord). Tenant shall also repair any damages to the structural
portions of the roof and Project resulting from Tenant's negligent acts or
omissions or anyone acting or claiming under Tenant as a result of the failure
of Tenant or any one claiming under Tenant, to perform or observe the covenants
or conditions in this Lease contained or resulting from alterations, additions
or improvements to the premises made by Tenant or anyone claiming under or
acting through Tenant.
Tenant
shall contract with a service company approved by Landlord for the maintenance
of the heating and air conditioning equipment and/or evaporative coolers
servicing the Premises with a copy of the service contract to be furnished
to
the Landlord within thirty (30) days after the Commencement Date, and a copy
of
any subsequent contracts to be furnished from time to time during the Lease
Term. If Tenant refuses or neglects to furnish a copy of a maintenance contract
for said heating and air conditioning equipment and/or evaporative coolers
Landlord may contract for such maintenance and will xxxx Tenant for the cost,
plus twenty percent (20%) overhead, and Tenant agrees to reimburse Landlord
for
the cost within ten (10) days of Landlord's billing.
Section
6.4. Maintenance
by Landlord:
If
Tenant refuses or neglects to maintain or repair the Premises as required
hereunder, and to the reasonable satisfaction of Landlord as soon as reasonably
possible after written demand, Landlord may make such repairs without liability
to the Tenant for any loss or damage that may accrue to Tenant' s merchandise,
fixtures or property or to Tenant's business thereof, and upon completion
thereof, Tenant shall pay Landlord's cost for making such repairs, plus twenty
percent (20%) for overhead, upon presentation of a xxxx therefore. Landlord
shall maintain, repair and replace the roof and roof membrane, the exterior
walls, and the structural portions of the Project, and shall periodically paint
the exterior walls of the Building from time to time as determined to be
necessary by Landlord or its designee, and subject to the obligations of Tenant
under the provisions of this Lease, Landlord shall repair and replace plumbing,
utility and/or sewer lines and mains which service the Premises.
Section
6.5. Alterations,
Additions and Improvements:
Tenant
shall not make any alterations, additions, or improvements to the Premises
without Landlord's prior written consent, except for non-structural alterations
which do not exceed Five Thousand Dollars ($5,000.00) in cost cumulatively
over
the Lease Term and which are not visible from the outside of the Building.
Landlord may require Tenant to provide demolition and/or lien and completion
bonds in form and amount satisfactory to Landlord. Tenant shall promptly remove
any alterations made upon Landlord's written request after the end of the Lease
Term. All alterations, additions, and improvements will be accomplished in
a
good and workmanlike manner, in conformity with all applicable laws and
regulations, and by a contractor licensed in the State of Florida approved
by
Landlord. Upon completion of any such work, Tenant shall provide Landlord with
"as built" plans, copies of all construction contracts, and proof of payment
for
all labor and materials.
Tenant
agrees that Tenant will pay all liens of contractors, subcontractors, mechanics,
laborers, materialmen, and other items of like character, and will indemnify
Landlord against all expenses, costs and charges, including bond premiums for
release of liens and attorneys fees and costs reasonably incurred in and about
the defense of any suit in discharging the Premises or any part thereof from
any
liens, judgments, or encumbrances caused or suffered by Tenant. In the event
any
such lien shall be made or filed, Tenant shall bond against or discharge the
same within ten (10) days after the same has been made or filed. It is
understood and agreed between the parties to this lease that the expenses,
costs
and charges above referred to shall be considered as Rent due and shall be
included in any lien for Rent.
Tenant
shall not have any authority to create any liens for labor or material on
Landlord's interest in the Premises and all persons contracting with Tenant
for
the destruction or removal of any facilities or other improvements or for the
erection, installation, alteration, or repair of any facilities or other
improvements on or about the Premises, and all materialmen, contractors,
mechanics, and laborers are hereby charged with notice (which notice Tenant
shall deliver in writing to each such party prior to the commencement of any
service by said party) that they must look only to Tenant and to Tenant's
interests in the Premises to secure the payment of any xxxx for work done or
material furnished at the request or instruction of Tenant. The provisions
of
this paragraph are set forth in a notice which has been recorded by Landlord
in
the Public Records of Palm Beach County, Florida.
Section
6.5.1. Surrender
of Premises.
At the
expiration or earlier termination of the tenancy hereby created, Tenant shall
surrender the Premises in the same condition as the Premises were delivered
under this Lease, reasonable wear and tear excepted, and damage by unavoidable
casualty excepted to the extent that the same is covered by Landlord's fire
insurance policy with extended coverage endorsement, and shall surrender all
keys for the Premises to Landlord at the place then fixed for the payment of
rent and shall inform Landlord of all combinations on locks, safes, and vaults,
if any, in the Premises. Tenant shall remove all its trade fixtures, and any
alterations or improvements, before surrendering the premises as aforesaid
and
shall repair any damage to the Premises caused thereby. Tenant's obligation
to
observe or perform this covenant shall survive the expiration or other
termination of the term of this Lease. Prior to vacating the Premises, Tenant
shall provide Landlord with a written statement from a reputable heating,
ventilation, and air conditioning (HVAC) company that certifies that the HVAC
equipment was inspected and serviced, if necessary, within the last thirty
(30)
days of the Lease Term and is in good working order. This certification is
to be
at Tenant's sole expense.
Section
6.6. Rules
and Regulations:
The
Tenant agrees that in its use of the Premises and the Project, Tenant and its
employees, invitees, customers and contractors will comply with the Rules and
Regulations as provided in Exhibit “C”.
Landlord
reserves the right from time to time to amend or supplement the Rules, and
to
adopt and promulgate additional rules and regulations and amendments and
supplements thereto, copies of which shall be given to the Tenant. Tenant agrees
to promptly comply with all such rules and regulations upon notice to Tenant
from Landlord.
ARTICLE
SEVEN: DAMAGE
OR DESTRUCTION.
Section
7.1. Partial
Damage to Premises:
Tenant
shall notify Landlord in writing immediately upon the occurrence of any damage
to the Premises. If the Premises are only partially damaged and if the proceeds
received by Landlord from the insurance policies maintained by Landlord are
sufficient to pay for the necessary repairs, this Lease shall remain in effect
and Landlord shall repair the damage an soon as reasonably possible. Landlord
shall not be required to make repairs or replacements of any damage to fixtures,
equipment, personal property or leasehold improvements of Tenant's. If the
insurance proceeds received by Landlord are not sufficient to pay the entire
cost of repair, or if the cause or the damage is not covered by the insurance
policies which Landlord maintains, Landlord may elect either to (a) repair
the
damage as soon as reasonably possible, in which case this Lease shall remain
in
full force and effect, or (b) terminate this Lease as of the date the damage
occurred. Landlord shall notify Tenant within thirty (30) days after receipt
of
notice of the occurrence of the damage, whether Landlord elects to repair the
damage or terminate the Lease. If Landlord elects to repair the damage, Tenant
shall pay Landlord the "deductible amount" (if any) under Landlord's insurance
policies, and, if the damage was due to an act or omission of Tenant, the
difference between the actual cost of repair and any insurance proceeds received
by Landlord. If the damage to the Premises occurs during the last six (6) months
of the Lease Term, Landlord may elect to terminate this Lease as of the date
the
damage occurred, regardless of the sufficiency of any insurance proceeds. In
such event, Landlord shall not be obligated to repair or restore the Premises
and Tenant shall have no right to continue this Lease. Landlord shall notify
Tenant of its election within thirty (30) days after receipt of notice of the
occurrence of the damage.
Section
7.2. Total
or Substantial Destruction:
If the
Premises are totally or substantially destroyed by any cause whatsoever, or
if
the Building is substantially destroyed (even though the Premises are not
totally or substantially destroyed), the Lease shall terminate as of the date
the destruction occurred regardless of whether Landlord receives any insurance
proceeds. However, if the Premises can be rebuilt within one hundred eighty
(180) days after the date of destruction, Landlord may elect to rebuild the
Premises at Landlord's own expense, in which case, this Lease shall remain
in
full force and effect. Landlord shall notify Tenant of such election within
thirty (30) days after the occurrence of total or substantial destruction.
If
the destruction was caused by an act or omission of Tenant, Tenant shall pay
Landlord the difference between the actual cost of rebuilding and any insurance
proceeds received by Landlord.
Section
7.3. Temporary
Reduction of Rent:
If the
Premises are destroyed or damaged and Landlord repairs or restores the Premises
pursuant to the provisions of this Lease, any Base Rent and Additional Rent
payable during the period of such damage, repair and/or restoration shall be
reduced according to the degree, if any, to which Tenant's use of the Premises
is impaired. However, the reduction shall not exceed the lesser of the sum
of
one year's payment of Base Rent and Additional Rent or the proceeds received
by
Landlord from Landlord's loss of income insurance coverage. Except for such
possible reduction in Base Rent and Additional Rent, Tenant shall not be
entitled to any compensation, reduction, or reimbursement for Landlord as a
result of any damage, destruction, repair, or restoration of or to the
Premises.
ARTICLE
EIGHT: CONDEMNATION.
If
all or
any portion of the Premises is taken under the power of eminent domain or sold
under the threat of that power (all of which are called "Condemnation"), this
Lease shall terminate as to the part taken or sold on the date the condemning
authority takes title or possession, whichever occurs first. If more than twenty
percent (20%) of the floor area of the Building is taken, Landlord may terminate
this Lease as of the date the condemning authority takes title or possession
by
delivering written notice to the other within ten (10) days after receipt of
written notice of such taking (or in the absence of such notice, within ten
(10)
days after the condemning authority takes possession). If Landlord does not
terminate this Lease, this Lease shall remain in effect as to the portion of
the
Premises not taken, except that the Base Rent shall be reduced in proportion
to
the reduction in floor area of the Premises. A Condemnation award or payment
shall be distributed in the following order: (a) to any ground lessor, mortgagee
or beneficiary under a deed of trust encumbering the Premises, the amount of
its
interest in the Premises; and (b) to Landlord, the remainder of such award,
whether as compensation for reduction in the value of the leasehold, the taking
of the fee, or otherwise. If this Lease is not terminated, Landlord shall repair
any damage to the Premises caused by the Condemnation, except that Landlord
shall not be obligated to repair any damage for which Tenant has been reimbursed
by the condemning authority. If the severance damages received by Landlord
are
not sufficient to pay for such repair, Landlord shall have the right to either
terminate this Lease or make such repair at Landlord's expense.
ARTICLE
NINE: ASSIGNMENT
AND SUBLETTING.
Section
9.1. Landlord's
Consent Required:
No
portion of the Premises or Tenant's interest in this Lease may be acquired
by
any other person or entity, whether by assignment, mortgage, sublease, transfer,
operation of law, or act of Tenant, without Landlord's prior written consent,
except as provided below. Landlord shall grant or withhold its consent as
provided below. Any attempted transfer without consent shall be void and shall
constitute a non-curable breach of this Lease. If Tenant is a partnership any
cumulative transfer of more than twenty-five percent (25%) of the partnership
interests shall constitute an assignment and shall require Landlord's consent.
If Tenant is a corporation, any change in a controlling interest of the voting
stock of the corporation shall constitute an assignment and shall require
Landlord's consent.
Section
9.2. No
Release of Tenant:
No
transfer permitted under this Lease, whether with or without Landlord's consent,
shall release Tenant or change Tenant's primary liability to pay the Rent and
to
perform all other obligations of Tenant under this Lease. Landlord's acceptance
of Rent from any other person is not a waiver of any provision of this Lease.
Consent to one transfer is not a consent to any subsequent transfer. If Tenant's
transferee defaults under this Lease, Landlord may proceed directly against
Tenant without pursuing remedies against the transferee. Landlord may consent
to
subsequent assignments or modifications of this Lease by Tenant's transferee,
without notifying Tenant or obtaining its consent. Such action shall not relieve
Tenant's liability under this Lease. If Tenant transfers Tenant's interest
hereunder, then Landlord shall receive, as Additional Rent, the excess, if
any,
between the rent (or any other consideration) paid in connection with such
assignment or sublease and the Rent payable by Tenant hereunder.
Section
9.3. Landlord's
Election:
Tenant's request for consent to any transfer described above shall be
accompanied by a written statement setting forth the details of the proposed
transfer, including the name, business and financial condition of the
prospective transferee, financial details of the proposed transfer (e.g., the
term of and rent and security deposit payable under any assignment or sublease),
and any other information Landlord deems relevant. Landlord shall have the
right
(a) to withhold consent; (b) to grant consent; or (c) if the transfer is a
sublease of the Premises or an assignment of this Lease, to terminate this
Lease
as of the effective date of such sublease or assignment and enter into a direct
lease with the proposed assignee or subtenant.
Section
9.4. No
Merger:
No
merger shall result from Tenant's sublease of the Premises, Tenant's surrender
of this Lease or the termination of this Lease in any other manner. In any
event, Landlord may terminate any or all subtenancies or succeed to the interest
of Tenant as sublandlord thereunder.
ARTICLE
TEN: DEFAULTS;
REMEDIES.
Section
10.1. Covenants
and Conditions:
Tenant's performance of each of Tenant's obligations under
this Lease is a condition as well as a covenant. Tenant's right to continue
in
possession of the Premises is conditioned upon such performance. Time is of
the
essence in the performance of all covenants and conditions.
Section
10.2. Events
of Default:
Tenant
shall be in material default under this Lease:
If
any
one or more of the following events (herein sometimes called "Events of
Default") shall happen and shall not have been remedied as herein
provided:
(a) if
default shall be made in the due and punctual payment of any Rent payable under
this Lease when and as the same shall become due and payable;
(b) if
default shall be made in the due and punctual payment of any other sum or charge
payable under this Lease or any part thereof when and as the same shall become
due and payable, and such default shall continue for a period of ten (10) days
after receipt by Tenant of notice from Landlord specifying the default;
or
(c) if
default shall be made by Tenant in the performance of or compliance with any
other provision of this lease, and such default shall continue for a period
of
thirty (30) days after written notice thereof from Landlord to Tenant specifying
the nature of such default, or, in the case of a default which cannot with
reasonable diligence be cured within such period of thirty (30) days, if Tenant
fails to proceed with all reasonable diligence within such period of thirty
(30)
days to cure the same and thereafter to prosecute the curing of such default
with all reasonable diligence (it being intended that in connection with a
default not susceptible of being cured with reasonable diligence within thirty
(30) days the time of Tenant within which to cure the same shall be extended
for
such period as may be necessary to complete the same with all reasonable
diligence).
Section
10.3. Remedies.
Upon
the occurrence of an Event of Default, Landlord shall have the following rights
and remedies:
(a)
The
right
to terminate this Lease by written notice to Tenant. In the event of a
termination of this Lease by reason of an Event of Default, Tenant shall
immediately pay the difference, discounted to present value using the Discount
Rate, between the Rent due for the residue of the Lease Term plus any other
sums
which may be due Landlord and the amount Landlord demonstrates Landlord is
reasonably likely to recover from reletting the Premises for the residue of
the
Lease Term hereunder and surrender possession and vacate the Premises
immediately, and deliver possession to Landlord, and hereby grants to Landlord
full and free license to enter into and upon the Premises in such event with
or
without process of law and to expel or remove Tenant and any others who may
be
occupying or within the Premises, and to remove any and all property therefrom
using such force as may be necessary, without being deemed in any manner guilty
of trespass, eviction or forcible entry or detainer, and without relinquishing
Landlord's right to Rent or any other right given to Landlord hereunder or
by
operation of law. Tenant expressly waives the service of any demand for payment
of Rent or for possession and the service of any notice of Landlord's election
to terminate this Lease or reenter the Premises, except as provided in this
Article, and agrees that the simple breach of any covenants or provisions of
this Lease by Tenant shall, of itself, without the service of any notice or
demand whatsoever, constitute an unlawful detainer by Tenant of the Premises
within the meaning of the Statutes of the State of Florida.
(b) Landlord
shall have the right to terminate Tenant's right to possession only, without
terminating the Lease by written notice to Tenant whereupon Landlord may at
Landlord's option, enter into the Premises, remove Tenant's signs and other
evidence of tenancy, and take and hold possession thereof without such entry
and
possession terminating the Lease or releasing Tenant, in whole or in part from
Tenant's obligation to pay the Rent hereunder for the full Term, and in any
such
case Tenant shall pay forthwith to Landlord, a sum equal to the entire amount
of
the Rent plus any other sums then due hereunder. Upon retaking possession of
the
Premises without termination of this Lease, Landlord shall list the Premises
with the broker then handling the leasing of the Project, or at Landlord's
option, any other reputable broker, and will not arbitrarily decline to accept
offers to lease at asking rentals and terms or substantially equivalent rates
and terms for qualified (i.e. in terms of credit worthiness, reputation,
experience and compatibility with other tenants of the Project) prospective
tenants. Landlord shall have no obligation to favor the Premises over any other
vacant space in the Project. Upon and after entry into possession of the
Premises without termination of the Lease, Landlord may relet the Premises
or
any part thereof with or without any furniture that may be therein, as the
agent
of Tenant, to any person, firm or corporation other than Tenant for such Rent,
for such time and upon such terms as Landlord in Landlord's sole discretion
shall determine; and Landlord shall not be required to accept any tenant offered
by Tenant or to observe any instructions given by Tenant about such reletting.
In any such case, Landlord may make repairs, alterations and additions in or
to
the Premises and Tenant shall, upon demand, pay the cost thereof, together
with
Landlord's expenses of the reletting. If the consideration collected by Landlord
upon any such reletting for Tenant's account is not sufficient to pay monthly,
the full amount of the Rent reserved in the Lease, together with the costs
of
repairs, alterations, additions, redecorating and Landlord's expenses, Tenant
shall pay to Landlord the amount of each monthly deficiency upon demand; and
if
the consideration so collected from any such reletting is more than sufficient
to pay the full amount of the Rent reserved herein, together with the costs
and
expenses of Landlord, Landlord shall pay the surplus to Tenant.
Section
10.4. Removal
of Property:
Tenant
hereby irrevocably appoints Landlord as agent and attorney-in-fact of Tenant,
to
enter upon the Premises on the occurrence of an Event of Default and to remove
any and all furniture and personal property whatsoever situated upon the
Premises. Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant
is
or may be entitled, may be handled, removed or stored by Landlord at the risk,
cost and expense of Tenant, and Landlord shall in no event be responsible for
the value, preservation or safekeeping thereof. Tenant shall pay to Landlord,
upon demand, all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in Landlord's possession
or
under Landlord's control. Landlord may place such property in storage for the
account of, and at the expense of Tenant, and if Tenant fails to pay the cost
of
storing such property after it has been stored for a period of ninety (90)
days
or more, Landlord may sell any or all of such property in such manner and at
such times and places as Landlord in its sole discretion may deem proper,
without notice to or demand upon Tenant for the payment of any part of such
charges or the removal of any of such property and shall apply the proceeds
thereof, first to such sale, including reasonable attorneys' fees; second,
to
the payment of the costs and charges of storing any property; third, to the
payment of any other sums of money which may then or thereafter be due to
Landlord from Tenant under any of the terms hereof, and fourth, the balance,
if
any, to Tenant. The removal and storage of Tenant's property as above provided
shall not constitute a waiver of Landlord's lien thereon.
Section
10.5. Cumulative
Remedies:
Landlord's exercise of any right or remedy shall not prevent it from exercising
any other right or remedy provided in this Lease, at law or in
equity.
ARTICLE
ELEVEN: PROTECTION
OF LENDERS.
Section
11.1. Subordination:
This
Lease and Tenant's rights hereunder are and shall be subordinate and inferior
to
any ground lease, deed of trust or mortgage encumbering the Project, any
advances made on the security thereof and any renewals, modifications,
consolidations, replacements or extensions thereof, whenever made or recorded.
If any ground lessor, beneficiary or mortgagee elects to have this Lease rank
prior to the lien of its ground lease, deed of trust or mortgage and gives
written notice thereof to Tenant, this Lease shall be deemed prior to such
ground lease, deed of trust or mortgage whether this Lease is dated prior or
subsequent to the date of said ground lease, deed of trust or mortgage or the
date of recording thereof.
Section
11.2. Attornment:
If
Landlord's interest in the Project is acquired by any ground lessor, beneficiary
under a deed of trust, mortgagee, or purchaser at a foreclosure sale, Tenant
shall attorn to the transferee of or successor to Landlord's interest in the
Project and recognizes such transferee or successor as Landlord under this
Lease. Tenant waives the protection of any statute or rule of law which gives
or
purports to give Tenant any right to terminate the Lease or surrender possession
of the Premises upon the transfer of Landlord's interest.
Section
11.3. Signing
of Documents:
Tenant
shall sign and deliver any instrument or documents necessary or appropriate
to
evidence any such attornment or subordination or agreement to do so. Such
subordination and attornment documents may contain such provisions as are
customarily required by any ground lessor, beneficiary under a deed of trust
or
mortgage. If Tenant fails to do so within ten (10) days after written request,
Tenant shall be in default under this Lease and further hereby makes,
constitutes and irrevocably appoints Landlord, or any transferee or successor
of
Landlord, the attorney-in-fact of Tenant to execute and deliver any such
instrument or document.
Section
11.4. Estoppel
Certificates:
(a) Upon
Landlord's written request, Tenant shall execute, acknowledge and deliver to
Landlord a written statement certifying: (i) that none of the terms or
provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been cancelled
or terminated; (iii) that the last date of payment of the Base Rent and other
charges and the time period covered by such payment; (iv) that Landlord is
not
in default under this Lease (or, if Landlord is claimed to be in default,
stating why); and (v) such other matters as may be reasonably required by
Landlord or the holder of a mortgage, deed of trust or lien to which the
Premises is or becomes subject. Tenant shall deliver such statement to Landlord
within ten (10) days after Landlord's request or Tenant shall be in default
under this Lease. Any such statement by Tenant may be given by Landlord to
any
prospective purchaser or encumbrancer of the Premises. Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct.
Unless Landlord has received a written statement to the contrary within such
ten
(10) day period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume and rely upon the following facts: (i) that the terms
and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been cancelled or terminated except
as
otherwise represented by Landlord; (iii) unless provided otherwise, that not
more than one month's Base Rent or other charges have been paid in advance;
and
(iv) that Landlord is not in default under the Lease. In such event, Tenant
shall be estopped from denying the truth of such facts.
Section
11.5. Tenant's
Financial Condition.
Tenant
shall deliver to Landlord such financial statements as are reasonably required
by Landlord to verify the net worth of Tenant or any assignee, subtenant, or
guarantor of Tenant. In addition, Tenant shall deliver to any lender designated
by Landlord any financial statements required by such lender to facilitate
the
financing or refinancing of the Premises. Tenant represents and warrants to
Landlord that each such financial statement is a true and accurate statement
as
of the date of such statement. All financial statements shall be confidential
and shall be used only for the purposes set forth herein.
ARTICLE
TWELVE: LEGAL
COSTS.
Section
12.1. Legal
Proceeding:
Tenant
shall reimburse Landlord, upon demand, for any costs or expenses incurred by
Landlord in connection with any breach or default of Tenant under this Lease,
whether or not suit is commenced or judgement entered. Such costs shall include
legal fees and costs incurred for the negotiation of a settlement, enforcement
of rights, in appellate actions or otherwise. Furthermore, if any action for
breach of or to enforce provisions of this Lease is commenced, the court in
such
action shall award to the party in whose favor a judgment is entered, a
reasonable sum as attorneys' fees and cost. Tenant shall also indemnify Landlord
against and hold Landlord harmless from all costs, expenses, demands and
liability incurred by Landlord if Landlord becomes or is made a party to any
claim or action (a) instituted by Tenant, or by any third party against Tenant,
or by or against any person holding any interest under or using the Premises
by
license of or agreement with Tenant; (b) for foreclosure of any lien for labor
or material furnished to or for Tenant or such other person; (c) otherwise
arising out of or resulting from any act or transaction of Tenant or such other
person; or (d) necessary to protect Landlord's interest under this Lease in
a
bankruptcy proceeding, or other proceeding under Title 11 of the United States
Code, as amended. Tenant shall defend Landlord against any such claim or action
at Tenant's expense with counsel reasonably acceptable to Landlord or, at
Landlord's election, Tenant shall reimburse Landlord for any legal fees or
costs
incurred by Landlord in any such claim or action.
Section
12.2. Landlord's
Consent:
Tenant
shall pay Landlord's reasonable attorneys' fees incurred in connection with
Tenant's request for Landlord's consent under a proposed assignment or
subletting, or in connection with any other act which Tenant proposes to do
and
which requires Landlord's consent. In each instance where Landlord's consent
is
required under this Lease, Landlord's consent may be given or withheld in
Landlord's sole discretion unless otherwise expressly provided in this Lease.
ARTICLE
THIRTEEN: MISCELLANEOUS
PROVISIONS.
Section
13.1. Non-Discrimination:
Tenant
promises, and it is a condition to the continuance of this Lease, that there
will be no discrimination against, or segregation of, any person or group of
persons on a basis of race, color, sex, creed, national origin or ancestry
in
the leasing, subleasing, transferring, occupancy, tenure or use of the Premises
or any portion thereof.
Section
13.2. Landlord's
Liability; Certain Duties:
(a) As
used
in this Lease, the term "Landlord" means only the current owner or owners of
the
fee title to the Premises or the leasehold estate under a ground lease of the
Premises at the time in question. Each Landlord is obligated to perform the
obligations of Landlord under this Lease only during the time such Landlord
owns
such interest or title. Any Landlord who transfers its title or interest is
relieved of all liability with respect to the obligations of Landlord under
this
Lease to be performed on or after the date of transfer. However, each Landlord
shall deliver to its transferee the Security Deposit, if any, previously paid
by
Tenant if such funds have not yet been applied under the terms of this
Lease.
(b) Tenant
shall give written notice of any failure by Landlord to perform any of its
obligations under this Lease to Landlord. Landlord shall not be in default
under
this Lease unless Landlord fails to cure such non-performance within thirty
(30)
days after receipt of Tenant's notice. However, if such nonperformance
reasonably requires more than thirty (30) days to cure, Landlord shall not
be in
default if such cure is commenced within such thirty (30) day period and
thereafter diligently pursued to completion.
(c) Tenant's
right to recover damages or any other amount from Landlord by reason of the
Lease or the actions or inactions of Landlord shall be strictly limited to
the
Project and Tenant shall have no right to recovery out of any assets of the
Landlord or Landlord's officers, directors, partner or principals. This
provision is not intended to be a measure or liquidation of Landlord's liability
with respect to any particular breach and shall not be utilized by any court
or
otherwise for the purpose of determining any liability of Landlord hereunder
except to determine the absolute maximum amount of Landlord's liability and
the
assets of Landlord out of which such liability may be satisfied.
(d) Upon
execution of this Lease Tenant shall deposit with Landlord a Security Deposit
and Last Months Rent in the amounts set forth in Article 1. Landlord may apply
all or part of the Security Deposit and Last Months Rent to any unpaid rent
or
other charges due from Tenant or to cure any other defaults of Tenant. If
Landlord uses any part of the Security Deposit and Last Months Rent, Tenant
shall restore the Security Deposit and Last Months Rent to its full amount
within ten (10) days after Landlord's written request. Tenant's failure to
do so
shall be a material default under this Lease. No interest shall be paid on
the
Security Deposit and Last Months Rent. Landlord shall not be required to keep
the Security Deposit and Last Months Rent separate from its other accounts
and
no trust relationship is created with respect to the Security Deposit and Last
Months Rent. Said Security Deposit and Last Months Rent shall not be mortgaged,
assigned, transferred or encumbered by Tenant without the prior written consent
of Landlord, and any such act on the part of Tenant shall be without force
and
effect and shall not be binding upon Landlord in any case.
X
Exhibit
10.6 - Lease Agreement Dated September 20,
2005
Landlord
shall deliver any security deposits, last months rent or any other deposits
made
hereunder by Tenant to any party who legally acquires any of Landlord's rights
or interest in the Premises, and in the event that such interest be sold or
otherwise conveyed, thereupon Landlord shall be released from any further
liability with respect to such deposits; and this provision shall also apply
to
any subsequent transferee of Landlord.
Section
13.3. Severability:
A
determination by a court of competent jurisdiction that any provision of this
Lease or any part thereof is illegal or unenforceable shall not cancel or
invalidate the remainder of such provision or this Lease, which shall remain
in
full force and effect.
Section
13.4. Interpretation:
The
captions of the Articles or Sections of this Lease are to assist the parties
in
reading this Lease and are not a part of the terms or provisions of this Lease.
Whenever required by the context of this Lease, the singular shall include
the
plural and the plural shall include the singular. The masculine, feminine and
neuter genders shall each include the other in any provision relating to the
conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's
agents, employees, contractors, invitees, successors, or others using the
Premises with Tenant's expressed or implied permission.
Section
13.5. Incorporation
of Prior Agreements; Modifications:
This
Lease is the only agreement between the parties pertaining to the letting of
the
Premises to Tenant and no other agreements are effective. All amendments to
this
Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
Section
13.6. Notices:
All
notices required or permitted under this Lease shall be in writing and shall
be
personally delivered or sent by certified mail, return receipt requested,
postage prepaid. Notices to Tenant shall be delivered to the address specified
in Article 1, except that upon Tenant's taking possession of the Premises,
the
Premises shall be Tenant's address for notice purposes. Notices to Landlord
shall be delivered to the address specified in Article 1. All notices shall
be
effective upon the date of delivery or the date delivery is attempted in
accordance with this Lease. Either party may change its notice address upon
written notice to the other party.
Section
13.7. Waivers:
All
waivers must be in writing and signed by the waiving party. Landlord's failure
to enforce any provision of this Lease or its acceptance of rent shall not
be a
waiver and shall not prevent Landlord from enforcing that provision or any
other
provision of this Lease in the future. No statement on a payment check from
Tenant or in a letter accompanying a payment check will be binding on Landlord.
Landlord may, with or without notice to Tenant, negotiate such check without
being bound to the conditions of such statement.
Section
13.8. No
Recordation:
Tenant
shall not record this Lease without prior written consent from Landlord.
However, Landlord may require that a "Short Form" memorandum of this Lease
executed by both parties be recorded.
Section
13.9. Binding
Effect; Choice of Law:
This
Lease binds any party who legally acquires any rights or interest in this Lease
from Landlord or Tenant. However, Landlord shall have no obligation to Tenant's
successor unless the rights or interests of Tenant's successor are acquired
in
accordance with the terms of this Lease. The laws of the State of Florida shall
govern this Lease.
Section
13.10. Corporate
Authority; Partnership Authority:
If
Tenant is a corporation, each person signing this Lease on behalf of Tenant
represents and warrants that he has full authority to do so and that this Lease
binds the corporation. Within thirty (30) days after this Lease is signed,
Tenant shall deliver to Landlord a certified copy of a resolution of Tenant's
Board of Directors authorizing the execution of this Lease or other evidence
of
such authority reasonably acceptable to Landlord. If Tenant is a partnership,
each person signing this Lease for Tenant represents and warrants that he is
a
general partner of the partnership, that he has full authority to sign for
the
partnership and that this Lease binds the partnership and all general partners
of the partnership. Tenant shall give written notice to Landlord of any general
partner's withdrawal or addition. Within thirty (30) days after this Lease
is
signed, Tenant shall deliver to Landlord a copy of Tenant's partnership
agreement or certificate of incorporation or limited partnership.
Section
13.11. Joint
and Several Liability:
All
parties signing this Lease as Tenant shall be jointly and severally liable
for
all obligations of Tenant.
Section
13.12. Force
Majeure:
If
Landlord cannot perform any of its obligations due to events beyond Landlord's
control, the time provided for performing such obligation shall be extended
by a
period of time equal to the duration of such events. Events beyond Landlord's
control include, but are not limited to, acts of God, war, civil commotion,
labor disputes, strikes, fire, flood or other casualty, shortages of labor
or
material, government regulations or restriction and weather
conditions.
Section
13.13. Execution
of Lease:
This
Lease may be executed in counterparts, and, when all counterpart documents
are
executed, the counterparts shall constitute a single binding instrument. The
delivery of this Lease by Landlord to Tenant shall not be deemed to be an offer
and shall not be binding upon either party until executed and delivered by
both
parties.
Section
13.14. 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 health
unit.
Section
13.15. Right
to Relocate.
Landlord reserves the right to relocate Tenant during the term of this Lease
or
any renewal hereof, to office space of similar quality construction standards
within Penn-Florida Commerce Center. If Landlord exercises this right to
relocate Tenant, then any and all costs incident to said relocation shall be
the
responsibility of the Landlord; said costs to be determined prior to the
relocation of Tenant. In the event Landlord elects to cause Tenant to relocate
and a Relocation Space is not available within the Building, Landlord may elect,
in its sole discretion, to either (i) not proceed with the relocation allowing
Tenant to remain in the Premises or, (ii) terminate the Lease effective sixty
(60) days following the Notice Date.
XI
Exhibit
10.6 - Lease Agreement Dated September 20,
2005
ARTICLE
FOURTEEN: BROKERS.
Section
14.1. Broker's
Fee:
When
this Lease is signed and delivered to both Landlord and Tenant, Landlord shall
pay a real estate commission to Landlord's Broker, as provided in a separate
written agreement between Landlord and Landlord's Broker. If a Tenant's Broker
is named in Article 1, Landlord's Broker shall pay an appropriate portion of
its
commission to Tenant's Broker if so provided in any agreement between Landlord's
Broker and Tenant's Broker. Nothing contained in this Lease shall impose any
obligation on Landlord to pay a commission or fee to any party other than
Landlord's Broker.
Section
14.2. No
Other Brokers:
Tenant
and Landlord represent and warrant to each other that the Brokers named in
Article 1 are the only agents, brokers, finders or other parties with whom
either party has dealt who are or may be entitled to any commission or fee
with
respect to this Lease or the Premises. Landlord and Tenant agree to indemnify
and hold the other and the other's officers, directors, persons, agents and
representatives harmless from and against any and all liabilities, damages,
claims, costs, fees and expenses whatsoever (including, without limitation,
reasonable attorneys' fees and costs at all trial and appellate levels)
resulting from any other broker, agent or other person claiming a commission
or
other form of compensation by virtue of having dealt with the indemnifying
party
with regard to this leasing transaction. The provisions of this paragraph shall
survive the termination of this Lease.
ARTICLE
FIFTEEN: RIDERS,
EXHIBITS & ADDENDA.
Section
15.1. Riders,
Exhibits & Addenda:
All of
the riders, exhibits and addenda listed below are attached to this lease and
made a part hereof: (i) Exhibit "A" Work Letter; (ii) Exhibit "B" Memorandum
Acknowledging Commencement Date and Lease Term; and (iii) Exhibit "C" - The
Rules.
ALL
AGREEMENTS AND UNDERSTANDINGS CONTAINED HEREIN, BY SIGNING BELOW WHERE
INDICATED, TENANT AND LANDLORD ACKNOWLEDGE, UNDERSTAND AND WARRANT TO EACH
OTHER, THAT, OTHER THAN AS EXPRESSLY SET FORTH HEREIN IN WRITING, THERE ARE
NO
AGREEMENTS, UNDERSTANDINGS,
PROMISES, STATEMENTS REPRESENTATIONS OR REPRESENTATIVES, INCLUDING WITHOUT
LIMITATION REAL ESTATE BROKERS OR SALESPERSONS, WHICH EITHER PARTY HAS RELIED
UPON IN ENTERING INTO THIS LEASE AND THAT THIS LEASE CONTAINS ALL OF THE
AGREEMENTS OF THE PARTIES HERETO WITH RESPECT TO ANY MATTER COVERED OR MENTIONED
IN THIS LEASE AND NO PRIOR ORAL OR WRITTEN AGREEMENTS OR UNDERSTANDINGS
PERTAINING TO ANY SUCH MATTERS SHALL BE EFFECTIVE FOR ANY
PURPOSE.
Landlord
and Tenant have signed this Lease at the place and on the date specified
adjacent to their signatures below and have initialed all Riders, Exhibits
and
Addenda, which are attached to or incorporated by reference in this
Lease.
WITNESSES: TENANT:
Adsouth, Inc.
_____________________________ By:
___/S/
Xxxx Cammarano________________________
_____________________________ As:
___President________________________
|
Date:
__September
9, 2005_______________
|
At:
0000
Xxxxx Xxxxxx Xxxxxx, Xxxxx # 00
|
|
Xxxx
Xxxxx, XX 00000
|
WITNESSES: LANDLORD: Penn-Florida
Venture IV, Limited Partnership
_____________________________ By:
___/S/
Xxxx X. Gensheimer___
XII
Exhibit
10.6 - Lease Agreement Dated September 20,
2005
Xxxx
X.
Xxxxxxxxxx, President
____________________________
Penn-Florida Venture IV Incorporated
|
|
General
Partner
|
Date:
__September
20, 2005_________
c/o
Penn-Florida Capital Corp.
0000
X.
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
THE
EXECUTION AND DELIVERY OF THIS LEASE INVOLVES SIGNIFICANT LEGAL CONSEQUENCES
AND
THE PARTIES HERETO SHOULD CONSULT THEIR RESPECTIVE ATTORNEY'S BEFORE ENTERING
INTO SAME. NO REPRESENTATIONS OR RECOMMENDATIONS ARE MADE BY THE LANDLORD,
ITS
ACTUAL OR APPARENT AGENTS, EMPLOYEES OR REPRESENTATIVES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION
RELATING THERETO.
XIII
