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EXHIBIT 10.17
LEASE AGREEMENT
BETWEEN
ARBORS ASSOCIATES, LTD.,
a Florida limited partnership
as Landlord
AND
XXXXX XXXXXXX AND ASSOCIATES, INC.
as Tenant
DATED JULY 1, 1994
for 46,125 rentable square feet
in the
Arbors Office Park
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
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TABLE OF CONTENTS
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PAGE
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1. Premises..................................................................1
2. Term......................................................................1
3. Rental....................................................................2
(a) Base Rental......................................................2
(b) Additional Rental................................................3
(i) Operating Expenses......................................3
(ii) Real Estate Taxes.......................................5
(c) Payment of Proportionate Share...................................6
(d) Dispute of Operating Expenses....................................7
(e) Adjustments to Operating Expenses................................7
(f) Other Charges....................................................8
(g) Place of Payment.................................................8
(h) Free Rent; Additional Free Rent..................................8
4. Construction..............................................................8
(a) Improvements to be Constructed...................................8
(b) Work Prior to Commencement Date..................................9
(c) Availability of Premises Prior to Commencement Date..............9
(d) Substantial Completion...........................................9
(e) Condition of Premises............................................9
(f) Overload........................................................10
5. Use of the Premises......................................................10
(a) Use.............................................................10
(b) Advertisement...................................................10
(c) Solicitation....................................................10
(d) Care............................................................10
(e) Noise; Odors....................................................11
6. Alterations..............................................................11
(a) Prohibition.....................................................11
(b) Indemnification.................................................11
(c) Compliance and Supervision of Alterations.......................12
(d) Landlord's Property.............................................12
(e) Wiring..........................................................12
7. Mechanics' Liens.........................................................12
8. Maintenance and Repair...................................................13
(a) Tenant's Maintenance............................................13
(b) Landlord's Maintenance..........................................14
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(c) Inspection......................................................14
9. Common Areas.............................................................15
(a) Grant...........................................................15
(b) Parking.........................................................15
(c) Right to Change Common Areas....................................15
10. Building Services........................................................16
(a) Electric........................................................16
(b) Water...........................................................16
(c) Air-Conditioning and Heat.......................................16
(d) Janitor Service.................................................17
(e) Elevator Service................................................17
(f) Interruption of Services........................................17
(g) Energy Curtailment..............................................18
(h) Normal Business Hours...........................................18
(i) Holidays........................................................18
(j) Life Support....................................................18
11. Estoppel Certificates....................................................19
12. Indemnification; Waiver of Claims........................................19
13. Insurance................................................................19
(a) Tenant's Insurance..............................................20
(b) Landlord as Additional Insured..................................20
(c) Landlord's Insurance............................................20
(d) Increase in Premiums............................................21
14. Waiver of Subrogation....................................................21
15. Holding Over.............................................................21
16. Assignment and Sublease..................................................21
17. Quiet Enjoyment..........................................................21
18. Compliance with Laws and with Rules and Regulations......................21
(a) Laws............................................................22
(b) Rules and Regulations...........................................22
(c) Landlord represents and warrants................................22
19. Fire and Casualty........................................................22
20. Eminent Domain...........................................................24
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21. Default..................................................................24
22. Waiver of Default or Remedy..............................................26
23. Landlord's Lien..........................................................27
24. Force Majeure............................................................27
25. Subordination of Lease...................................................27
26. Notices and Consents.....................................................28
27. Security Deposit.........................................................28
28. Miscellaneous Taxes......................................................29
29. Brokerage Commission.....................................................29
30. Hazardous Devices and Contaminants.......................................29
(a) Prohibition.....................................................29
(b) Indemnification by Tenant.......................................30
(c) Definitions.....................................................30
(d) Indemnification by Landlord.....................................30
(e) Landlord's Obligations..........................................31
31. Signs....................................................................31
32. Locks....................................................................31
33. Employment...............................................................32
34. Plumbing.................................................................32
35. Certain Rights Reserved to Landlord......................................32
36. Miscellaneous............................................................32
37. Relationship of Parties..................................................33
38. Gender and Number........................................................33
39. Topic Headings...........................................................33
40. Counterparts.............................................................33
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41. Entire Agreement.........................................................33
42. Recording................................................................33
43. Governing Law; Invalidity of any Provisions..............................34
44. Exhibits; Riders.........................................................34
45. ADA Compliance...........................................................34
46. Landlord Consents & Approvals............................................34
47. Attorneys' Fees & Costs..................................................34
48. Rules and Regulations....................................................34
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Exhibit A Floor Plan
Exhibit B Legal Description
Exhibit C Commencement Date Agreement
Exhibit D Tenant Improvements
Exhibit E Tenant Estoppel Certificate
Exhibit F Rules and Regulations
Exhibit G Cleaning Specifications
Exhibit H Landlord's Renovation Plans
Exhibit I Site Plan (with Designated Parking)
Exhibit J Memorandum of Lease
Rider No. 1 Renewal Option
Rider No. 2 Right to Negotiate
Rider No. 3 Radon Disclosure
Rider No. 4 Requirements for Construction
Rider No. 5 Subletting
Rider No. 6 Changes and Alterations
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), dated July 1, 1994, is between Arbors
Associates, Ltd., a Florida limited partnership ("Landlord" or "Lessor"), and
Xxxxx Xxxxxxx and Associates, Inc., a Florida Corp. ("Tenant" or "Lessee).
1. PREMISES. In consideration of the rents, terms, provisions and
covenants of this Lease, Landlord hereby leases unto Tenant and Tenant hereby
rents and accepts from Landlord those certain premises containing approximately
46,125 rentable square feet, located on the lst Floor (the "Premises"). The
Premises are outlined on the floor plan attached hereto as Exhibit A and
incorporated herein by reference. The Premises are contained in that certain
budding located at 0000 X. Xxxxxxxx Xxx., Xxxxxx Xxxxx, Xxxxxxx 00000 (the
"Building"), which Building contains approximately 100,000 rentable square feet
of space. The land on which the Building is situated, together with all
improvements located thereon (collectively, the "Property"), is more
particularly described on Exhibit B, attached hereto and incorporated herein by
reference.
2. TERM.
(a) Subject to and upon the terms and conditions set forth
below, the initial term of this Lease shall be for a period of
approximately seven (7) Lease Years (as hereinafter defined),
commencing on the Commencement Date (as hereinafter defined) and
ending December 31, 2001.
(b) For purposes of this Lease, the following terms shall
have the following meanings:
(i) "Commencement Date" shall mean the later of
10/1/94 or issuance of a permanent Certificate of Occupancy
by the City of Delray Beach and tenant's opening for
business, but no later than 1/1/95. Promptly upon
determination of the Commencement Date, Landlord and Tenant
shall execute a memorandum, setting forth the Commencement
Date and the expiration date of this Lease, in form and
substance substantially similar to that attached hereto as
Exhibit C and incorporated by reference, provided however
that if Landlord shall be delayed in substantially completing
the Premises as a result of the occurrence of any of the
following (a "DELAY")):
1. Tenant's failure to furnish information or to
respond to any request by Landlord for any approval
or information within two (2) business days of such
request; or
2. Tenant's insistence on materials, finishes, or
installations that have long lead times after having
first been informed by Landlord that such materials,
finishes, or installations will cause a Delay; or
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3. Changes in any plans and specifications initiated
by Tenant and which changes can be specifically
identified as the actual cause for the Delay; or
4. The performance or nonperformance by a person or
entity employed by Tenant in the completion of any
work (all such work and such persons or entities
being subject to the prior approval of Landlord); or
5. Any request in writing by Tenant that Landlord
delay the completion of any the work; or
6. Any material breach or default by Tenant in the
performance of Tenant's obligations under this
Lease; or
then for the purpose of determining the Commencement
Date, the date of substantial completion shall be
deemed to be the day that the Premises would have
been substantially completed absent any such
Delay(s).
2. (b) (i) [continued] Tenant may occupy the
premises prior to the commencement date at no cost
to tenant, provided that the p[remises are
substantially completed. Tenant shall observe and
perform all of its obligations under this Lease
(except its obligations to conduct business and to
pay rent) from the date Tenant takes possession of
the Premises until the Commencement Date in the same
manner as though the lease Term began when the
Premises were so delivered to Tenant. Under no
circumstances, however, may Tenant enter into
possession of the Premises prior to the substantial
completion of the premises without the express
written consent of Landlord and subject to any
reasonable terms of such consent.
(ii) "Lease Year" shall mean full calendar year,
beginning with calendar year 1995.
(iii) "Term" shall mean the initial term of this
Lease and any renewals or extensions thereof.
3. RENTAL.
(a) BASE RENTAL. Tenant shall pay to Landlord, as base rental
(the "Base Rental") during the Term of this Lease, the amounts set
forth on pages 2 and 3 hereof, payable monthly,
PERIOD PSF MONTHLY ANNUAL
------ --- ------- ------
1995 - Year 1 $ 6.90 $ 17,250.00 $ 207,000.00
1996 - Year 2 $ 7.23 $ 275,191.86
Month (13 - 18) $ 18,075.00
Month (19 - 24) $ 27,790.31
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PERIOD PSF MONTHLY ANNUAL
------ --- ------- ------
1997 - Year 3 $ 7.57 $ 29,097.19 $ 349,166.25
1998 - Year 4 $ 7.93 $ 30,480.94 $ 365,771.25
1999 - Year 5 $ 8.31 $ 31,941.56 $ 383,298.75
2000 - Year 6 $ 8.70 $ 33,440.63 $ 410,287.50
2001 - Year 7 $ 9.11 $ 35,016.56 $ 420,198.75
-------------
$2,401,914.36
Tenant shall pay a rental cost (base rent and operating expenses)
based on 30,000 rsf for a period of eighteen (18) months from the date
rent commences.
plus all applicable Sales and Use taxes thereon. Each such monthly installments
shall be due and payable in advance, on or before the first day of each and
every month during the Term, without notice, demand or set-off, except as
otherwise provided herein, provided, however, that the first month's rent shall
be due and payable January 1, 1995.
Base Rental for a partial month shall be due and payable on a pro rata daily
basis on the first day that said rent accrues in said month.
(b) ADDITIONAL RENTAL. Tenant Shall pay to Landlord as
Additional Rental (hereinafter defined), Tenant's Proportionate Share
(as hereinafter defined), of the Operating Expenses as set forth
below. As used in this Lease, "Proportionate Share" shall mean a
percentage factor determined by dividing the rentable square footage
contained in the Premises by 100% of the rentable square footage
contained in the Building. Tenant's Proportionate Share shall be 30%
for months 1 - 18, 46.13% for balance of Term.
(i) OPERATING EXPENSES. "Operating Expenses" shall
include those expenses paid by or on behalf of Landlord in
respect to the direct management, operation, service and
maintenance of the Property, including the Premises, in
accordance with generally accepted principles of office
building management as applied to the operation and
maintenance of office buildings similar to the type and
nature of the Property and in the general market area as the
Property. Operating Expenses shall include, but not be
limited to, (A) Real Estate Taxes (as hereinafter defined);
(B) premium costs for liability, boiler, extended coverage,
casualty and other insurance covering the Property to be
maintained by Landlord and required by the terms of this
Lease; (C) electricity, gas, water and other utility charges
for the Property, (D) HVAC, cleaning, trash removal, elevator
repair and maintenance, security, parking and irrigation
repairs and maintenance; (E) reasonable wages, salaries and
fees of operating, auditing, accounting, maintenance and
management personnel in connection with the Property; (F) all
payroll charges for such personnel, such as unemployment and
social security taxes, workers' compensation, health,
accident and group insurance, and other so-called fringe
benefits; (G) reasonable rental charges for office space
chargeable to the operation and management of the Property;
(H) license permits and inspection fees; (I) supplies and
materials used in the operation and management of the
Property; (J) furnishings and equipment not
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treated by Landlord as capital expenditures of the Property;
(K) depreciation on the cost of any labor saving devices that
may, from time to time, be placed in operation as a part of
Landlord's maintenance program; (L) personal property taxes
on property used in the operation, maintenance, service and
management of the Property; (M) the cost, as reasonably
amortized by Landlord, with interest at the rate of ten
percent (10%) per annum on the unamortized amount, of any
capital improvement made after completion of initial
construction of the Building which reduces Operating
Expenses, but in an amount not to exceed such reduction for
the relevant year, (N) reasonable and customary management
fees relating to Property (O) the cost of any installation or
improvement required by reason of any law, ordinance or
regulation, which requirement did not exist on the date of
the Lease and is generally applicable to similar office
buildings; and (P) all other expenses necessary for the
operation and management of the Property. Notwithstanding
anything in the Lease to the contrary, the following items
shall not be included for purposes of calculating Operating
Expenses:
(a) Cost of decorating, redecorating, or special cleaning or
other services not provided on a regular basis to tenants in
the building.
(b) Wages, salaries, fees, and fringe benefits paid to
administrative or executive personnel or officers, directors
or partners of Landlord, unless employed at competitive rates
as independent contractors for the building.
(c) Any charge for depreciation of the building or equipment
and any interest or other financing charge.
(d) Any charge for Landlord's income taxes, excess profit
taxes, franchise taxes, or similar taxes on Landlord's
business.
(e) All costs relating to activities for the solicitation and
execution of leases of space in the building.
(f) All costs for which Tenant or any other tenant in the
building is being directly charged, other than pursuant to
3.(b)(i) hereof.
(g) The cost of any electric service furnished to the
Premises or any other rentable area of the building for
purposes other than the operation of building equipment and
machinery and the lighting of public toilets, stairways,
shaftways, and building machinery or fan rooms.
(h) the cost of correcting defects in the construction of the
building or in the building equipment.
(i) The cost of any repair made by Landlord because of the
total or partial destruction of the building or the
condemnation of all or a portion of the building.
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(j) Any increase in insurance premium to the extent that such
increase is caused or attributable to the use of the building
by Landlord.
(k) The cost of any items for which Landlord is reimbursed by
insurance or otherwise compensated by parties other than
Tenant.
(l) The cost of any additions or capital improvements to the
building subsequent to the date of original construction.
(m) The cost of any repairs, alterations, additions, changes,
replacements, and other items which under generally accepted
accounting principles are properly classified as capital
expenditures to the extent they upgrade or improve the
building as opposed to replace existing items which have worn
out.
(n) Any operating expense representing an amount paid to a
related corporation, entity, or person, which is in excess of
the amount which would be paid in the absence of such
relationship.
(o) the cost of tools and equipment used in the construction,
operation, repair or maintenance of the building.
(p) The cost of any work or service performed for or
furnished to Tenant.
(q) The cost of alterations of space in the building leased
to other tenants.
(r) The cost of overtime or other expense to Landlord in
curing its defaults or performing work expressly provided in
this Lease to be borne at Landlord's expense.
(s) The cost of any work associated with the building
renovation and/or Building Certificate of Occupancy from the
City of Delray Beach granted on June 17, 1994.
(ii) REAL ESTATE TAXES. "Real Estate Taxes" shall
include all taxes, including state equalization factor, if
any, and assessments, special or otherwise, exclusive of
penalties or discounts levied upon or with respect to the
Property, including the Premises, imposed by any federal,
state or local governmental agency, and including any use,
occupancy, excise, sales or other like taxes (other than
general income taxes on rent or other income from the
Building computed in the case of a graduated tax, as if
Landlord's rent and other income from the Building was
Landlord's sole taxable income). Landlord shall use its best
efforts to pay Palm Beach County Real Estate Taxes in order
to obtain the maximum discount (currently available if paid
in November of each year). Notwithstanding anything in the
Lease to the contrary, the following items shall not be
included for purposes of calculating Real Estate Taxes:
(a) Inheritance taxes.
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(b) Gift taxes.
(c) Transfer taxes.
(d) Franchise taxes.
(e) Excise taxes.
(f) Net income taxes.
(g) Profit taxes.
(h) Capital levies
(i) Late payment charges and penalties
(j) Special assessments levied against other
than real estate. Assessments payable
hereunder may be payable by Tenant in
installments if the Landlord permitted it
to do so.
Real Estate Taxes also shall include the expense of
contesting the amount or validity of any such taxes, charges or assessments,
such expense to be applicable to the period of the item contested. Real Estate
Taxes shall not, however, include income, franchise, capital stock, estate or
inheritance taxes unless Landlord reasonably determines that such taxes are in
lieu of real estate taxes, assessments, rental, occupancy and other like excise
taxes. For purposes of this Lease, Real Estate Taxes for any calendar year
shall be those taxes the last timely payment date for which occurs within such
calendar year. In case of special taxes or assessments payable in installments,
only the amount of the installment(s) the last timely payment date for which
occurs on or after the first day and on or before the last day of such year
shall be included in Real Estate Taxes for that year.
Landlord shall retain the sole right to participate in any proceedings
to establish or contest the amount of Real Estate Taxes. If a complaint against
valuation, protest of tax rates or other action increases or decreases the Real
Estate Taxes for any calendar year, resulting in an increase or decrease in
rent hereunder, the Real Estate Taxes for the affected calendar year shall be
recalculated accordingly and the resulting increased rent plus the expenses
incurred in connection with such contest, or decreased rent, less the expenses
incurred in connection with such contest, shall be paid simultaneously with or
applied as a credit against, as the case may be, the rent next becoming due.
(c) PAYMENT OF PROPORTIONATE SHARE. To provide for current
payments of Operating Expenses, Tenant shall pay Tenant's
Proportionate Share of the Operating Expenses, as estimated by
Landlord from time to time, in twelve (12) monthly installments,
commencing on the first day of the month following the month in which
Landlord notifies Tenant of the amount of its estimated Proportionate
Share. Landlord and Tenant intend to estimate the amount of Operating
Expenses for each year and then to reconcile such estimated expenses
in the following year based on actual Operating Expenses for such year
paid by Landlord. If Tenant's Proportionate Share of the actual
Operating Expenses shall be greater than or less than the aggregate of
all installments so paid on account to Landlord for such twelve (12)
month period, then within thirty (30) days of Tenant's receipt of
Landlord's statement of reconciled Operating Expenses, Tenant shall
pay to Landlord the amount of such underpayment, or Landlord shall
credit Tenant for the amount of such overpayment against the next
maturing installment(s) of rent, as the case may be. The obligation of
Tenant with respect to the payment of Tenant's Proportionate Share of
the Operating Expenses shall survive the termination of this Lease.
Any payment, refund, or credit made pursuant to this
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subparagraph 3(c) shall be made without prejudice to any right of
Tenant to dispute the statement as hereinafter provided, or of
Landlord to correct any item(s) as billed pursuant to the provisions
hereof. Landlord's failure to give such statement shall not constitute
a waiver by Landlord of its right to recover rent that is due and
payable pursuant to this subparagraph 3(c). Landlord and Tenant agree
that estimated Operating Expenses shall be $6.56 per rentable square
foot for the calendar year 1995. Landlord hereby agrees that Tenant
shall not be required to pay more than $6.75 per rentable square foot
for 1995 Operating Expenses. Tenant's payment of "Controllable
Operating Expenses" (which, for purposes of this Lease, shall be
defined as Operating Expenses other than real estate taxes, insurance
and utilities) shall not increase by more than five percent (5%) per
annum, on a cumulative basis, based upon 1995 actual Operating
Expenses, as described above.
(d) DISPUTE OF OPERATING EXPENSES. If Tenant questions in
writing any such notice of reconciled Operating Expenses (or revised
notice thereof), and if the question is not amicably settled between
Landlord and Tenant within thirty (30) days after said notice of
reconciled Operating Expenses (or revised adjusted) has been given,
Landlord shall, during the sixty (60) days next following the
expiration of such thirty (30) day period, employ an independent
certified public accountant reasonably agreed to by Tenant to audit
Operating Expenses. The determination of such accountant shall be
final, conclusive and binding upon Landlord and Tenant. Tenant
understands that the actual itemization of, and the amount of
individual items constituting, Operating Expenses is confidential; and
while Landlord shall keep and make available to such accountant all
records in reasonable detail, and shall permit such accountant to
examine and audit such of Landlord's records as may reasonably be
required to verify such reconciled Operating Expenses, at reasonable
times during business hours, Landlord shall not be required to (and
the accountant shall not be permitted to) disclose to any person, firm
or corporation, including to Tenant, any such details (it being the
intent of the parties that such accountant shall merely certify to
Landlord and to Tenant the correct amount of adjusted additional
Operating Expenses for the calendar year, provided however, if Tenant
and/or agent(s) agree, in writing, to keep such information
confidential, then Landlord shall provide them with such information
for purposes of verifying the accountant's audit. Any change in the
reconciled Operating Expenses required by such accountant's
determination shall be made within thirty (30) days after such
determination has been rendered. The expenses involved in such
determination shall be borne by Tenant and deemed to be Additional
Rental under this Lease, unless the results of such audit determine
that the difference between the Operating Expenses as determined by
the audit and the Operating Expenses as determined by Landlord is
greater than five percent (5%) of the Operating Expenses as determined
by Landlord, in which case such expenses shall be borne by Landlord.
If Tenant does not, in writing, question the reconciled Operating
Expenses within thirty (30) days after such notice has been given,
Tenant shall be deemed to have approved and accepted such reconciled
Operating Expenses.
(e) ADJUSTMENTS TO OPERATING EXPENSES. If a clerical error
occurs or Landlord or Landlord's accountants discover new facts, which
error or discovery causes Operating Expenses for any period to
increase or decrease, upon notice by Landlord to Tenant of the
adjusted additional Operating Expenses for such calendar year, the
adjusted additional
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Operating Expenses shall apply and any deficiency or overpayment of
Tenant's Proportionate Share of the Operating Expense Pass-through
Amount, as the case may be, shall be paid by Tenant or taken as a
credit by Tenant according to the provisions set forth above. This
provision shall not survive the termination of the Lease.
(f) OTHER CHARGES. All costs, expenses and other sums that
Tenant assumes or agrees to pay to Landlord pursuant to this Lease
("Other Charges") shall be deemed rental and, in the event of
nonpayment thereof, within ten (10) days after due. Landlord shall
have all the rights and remedies herein provided for in case of
nonpayment of Base Rental. If a monthly installment of rent is not
received on or before the tenth (10th) day of the month in which it is
due, other remedies for nonpayment of rent notwithstanding, Tenant
shall pay to Landlord, a late charge of five percent (5%) of such
installment as rent for the purpose of defraying Landlord's
administrative expenses incident to the handling of such overdue
payment, and such past due rent shall bear interest at the greater of
(i) due date (after the expiration of any applicable grace period); or
(ii) a rate of interest equal to the prime rate as announced from time
to time by Bank One, Columbus, N.A., plus three percent (3%) per annum
(the "Default Rate"), for each day from the first day of the month
through the date such monthly installment of rent is received by
Landlord. For purposes of this Lease, "rent" shall mean Base Rental,
Additional Rental, and Other Charges.
(g) PLACE OF PAYMENT. Tenant shall pay all rent and other
charges due under this Lease without demand, deduction or set off
except as otherwise provided herein to Landlord at Arbors Associates,
Ltd., c/x Xxxxxxx & Co., 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 or at such other place as Landlord any designate from
time to time hereafter by written notice to Tenant.
(h) FREE RENT; ADDITIONAL FREE RENT. [new] Notwithstanding
anything in this Lease to the contrary, if and so long as Tenant is
not in default under this Lease, beyond any applicable grace period,
Tenant shall receive free gross rent (i.e., Base Rent, Additional Rent
and Other Charges) from the Commencement Date until December 31, 1994.
In addition to the free rent described above, Tenant shall
receive one (1) day additional free gross rent for each day that
Landlord does not complete its work for the Premises and obtain a
Certificate of Occupancy, after October 1, 1994. Parties acknowledge
that tenant approved a permit set of drawings on May 31, 1994 and
delivered to Landlord on the same day.
The rent abatement set forth in the preceding paragraph shall
not apply with respect to any period of delay in completion of the
Premises resulting from a Delay. Landlord shall give Tenant notice in
writing of the occurrence of any Delay.
4. CONSTRUCTION.
(a) IMPROVEMENTS TO BE CONSTRUCTED. Landlord, at its own cost
and expense, shall perform the work and make the installations in the
Premises that are designated as
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Landlord's Work in Exhibit D, attached hereto and incorporated herein
by reference. Landlord shall renovate the Building in a quality equal
to or greater than the renovation reflected at 0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000. The renovation shall be
completed, except for minor punch list items, on or before the
Commencement Date. Such renovation work shall include, without
limitation, renovations to the parking lot (including without
limitation, installation of additional parking lot lighting), the
building facade, landscaping, lobby, common hallways, bathrooms,
building systems (fire and safety), and HVAC, as more particularly set
forth in EXHIBIT "H" hereto. If such Landlord renovation work is not
completed on or before the Commencement Date, then Tenant may, at its
option, occupy or decline to occupy the Premises until such Landlord
renovation work is completed, and in all events, rent for the Premises
shall not be due or payable until Landlord's renovation work is
completed.
(b) WORK PRIOR TO COMMENCEMENT DATE. All work, including
Tenant's Work, in the Premises shall be substantially completed prior
to the Commencement Date and the Premises shall be in good and
tenantable condition in all respects for occupancy by Tenant for its
purposes and uses so long as Tenant shall have approved the plans and
specifications for construction and remodeling of the Premises on or
before June 1, 1994. Tenant may make changes in said plans and
specifications on or before June 1, 1994. Any extension of time and
modifications to plans and specifications shall be in writing, dated
and signed by both parties. Landlord and Tenant and their contractors,
subcontractors, etc. shall reasonably cooperate with each other and
their contractors, subcontractors, etc., to coordinate and facilitate
Landlord's and Tenant's work in the Premises.
(c) AVAILABILITY OF PREMISES PRIOR TO COMMENCEMENT DATE. If
Landlord, at Tenant's request, makes the Premises available to Tenant
before the Commencement Date to decorate, furnish and equip the
Premises, Tenant shall not interfere with the completion of Landlord's
Work. Tenant's use of the Premises for such work shall not create a
landlord-tenant relationship between the parties, or constitute
occupancy of the Premises within the meaning of the next sentence, but
the provisions of Paragraphs 12 and 13 of this Lease shall apply.
(d) SUBSTANTIAL COMPLETION. As used herein, the work in the
Premises shall be "substantially completed" when the work has been
completed in accordance with the plans and specifications; subject to
the completion of punch list items and a permanent certificate of
occupancy has been issued.
(e) CONDITION OF PREMISES. Except for Punch List items and as
otherwise agreed to in writing, Tenant's taking possession of the
Premises shall be conclusive evidence against Tenant that the Premises
were in good order and satisfactory condition when Tenant took
possession. Landlord has made no representation respecting the
condition of the Premises, the Building or the Property, except as is
expressly set forth in Exhibit D and Section 4(a) hereof. At the
termination of this Lease, by lapse of time or otherwise, Tenant shall
remove all Tenant's property, including but not limited to, trade
fixtures, from the Premises, and shall return the Premises broom-clean
and in as good a condition as when Tenant took
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possession or as same may thereafter have been put by Landlord, except
for ordinary wear, loss by fire or other casualty, and repairs that
Landlord is required to make under this Lease. If Tenant fails to
remove any or all of its property upon termination of this Lease, such
property shall be deemed to be abandoned and shall become the property
of Landlord.
(f) OVERLOAD. To coordinate orderly move-ins and move-outs,
no single piece of furniture, freight or equipment of any kind
exceeding three hundred (300) pounds shall be brought into the
Building without prior notice to Landlord and Landlord shall designate
a reasonable time and manner of moving of the same. Landlord shall
have the right to prescribe the weight, size and position of all safes
and other heavy equipment brought into the Building and also the times
and manner of moving the same in and out of the Building. Safes or
other heavy objects shall, if considered necessary by Landlord, stand
on supports of such thickness as is necessary to properly distribute
the weight. Landlord will not be responsible for loss of or damage to
any such safe or property from any cause, and all damage done to the
Building by moving or maintaining any such safe or other property
shall be repaired at Tenant's expense.
5. USE OF THE PREMISES.
(a) USE. Tenant shall use the Premises for the conduct of
general office (including without limitation, sale of computer
services, training, software and hardware, and all activities and
services related thereto including without limitation storage of
hardware for sale) and for no other purpose whatsoever. Tenant shall
not, without the prior written consent of Landlord, exhibit, sell or
offer for sale on the Premises or in the Building any article or
thing, except those articles and things essentially connected with
Tenant's stated use of the Premises.
(b) ADVERTISEMENT. Tenant shall not advertise the business,
profession or activities of Tenant conducted in the Building in any
manner which violates the letter or spirit of any code of ethics
adopted by any recognized association or organization pertaining to
such business of Tenant, and shall never use any picture or likeness
of the Building in any circulars, notices, advertisements or
correspondence without Landlord's prior written consent which shall
not be unreasonably withheld.
(c) SOLICITATION. Tenant shall not disturb, solicit, or
canvass any occupant of the Building and shall cooperate with Landlord
to prevent same.
(d) CARE. Tenant shall use and occupy the Premises so that no
other occupant of any adjoining premises will be unreasonably
disturbed and shall create no nuisance in, upon or about the Premises.
Subject to the provisions of Paragraph 8(b), Tenant shall take good
care of the Premises, the fixtures and appurtenances thereto, and all
alterations, additions and improvements thereto. Tenant will not make
or permit to be made any use of the Premises or any part thereof, and
will not bring into or keep anything in the Premises or any part
thereof, that (i) violates any of the covenants, agreements, terms,
provisions and conditions of this Lease; (ii) is forbidden by public
law, ordinance or regulation of any governmental
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or public authority (including zoning ordinances); (iii) is dangerous
to life, limb or property; (iv) increases the risk to Landlord or any
other tenant or invalidate or increase the premium cost of any policy
of insurance carried on the Building or covering its operation; or (v)
in the sole judgment of Landlord, in any way impairs or tends to
impair the character, reputation or appearance of the Property as a
first-class office building, or impairs or interferes with any of the
services performed by Landlord for the Property.
(e) NOISE; ODORS. Tenant shall not use, keep or permit to be
used or kept any foul or noxious gas or substance in the Premises;
permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors and/or vibrations; interfere in any
way with other tenants or those having business therein; or bring in
or keep any animals or birds in the Premises. Tenant shall not use the
Premises for housing accommodations or lodging or sleeping purposes,
or do any cooking (except microwave, coffee maker and toaster ovens)
therein, or use any illumination other than electric light.
6. ALTERATIONS.
(a) PROHIBITION. Tenant shall not make any alterations,
additions or improvements (other than initial alternations, additions
and improvements made prior to occupancy) (collectively, the
"Alterations") in or to the Premises, or in or to the Building without
the express prior written consent of Landlord; provided, however, that
Tenant may make alterations in accordance with the provisions of Rider
No. 6. Before commencing any work in connection with the Alterations,
Tenant shall furnish to Landlord for its approval the following: (i)
permit quality plans and specifications therefor, (ii) names and
addresses of each of the contractors and subcontractors. (iii) copies
of all contracts, subcontracts and necessary permits, (iv) such
documentation as is necessary to comply fully with the mechanics' lien
law of the state in which the Premises is located, and (v)
certificates of insurance, in form and amount reasonably satisfactory
to Landlord, from all contractors and subcontractors who will perform
labor or furnish materials, insuring Landlord against any and all
liability for personal injury, including workers' compensation claims
and for property damage that may arise out of or be in any manner
connected with the Alterations.
(b) INDEMNIFICATION. In addition to the indemnity set forth
in Paragraph 12 of this Lease, Tenant hereby specifically agrees to
indemnify and hold harmless Landlord from and against any and all
liabilities, costs and expenses of every kind and description,
including attorneys' fees, that may arise out of or in any manner be
connected with any Alterations made by Tenant. Tenant shall pay the
cost of all such Alterations and all costs associated with decorating
the Premises that may be occasioned thereby. Upon completion of any
such Alterations, Tenant shall furnish Landlord with (i) such
documentation as is necessary to comply fully with mechanics' lien law
of the state in which Premises are located; (ii) a true and correct
copy of the certificate of occupancy, if one is issued; and (iii) a
certificate of Tenant's architect or engineer if applicable stating
that such Alterations were made in accordance with the plans and
specifications. Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be furnished to
Tenant upon credit, and
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that no mechanic's or other lien for such labor or material shall
attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises.
(c) COMPLIANCE AND SUPERVISION OF ALTERATIONS. All
Alterations made by Tenant hereunder shall be installed in a good and
workmanlike manner, using only materials of the same or higher quality
as those installed in the Building. All Alterations shall comply with
all requirements of Landlord's insurance carriers and with all laws,
rules, ordinances and regulations of any lawful authority. Tenant
shall permit Landlord to supervise construction operations in
connection with any such Alterations, if Landlord requests the right
to do so (but Landlord shall have no obligation to make such requests,
or having done so, to supervise construction). Landlord's supervision
of construction shall be done solely for the benefit of Landlord and
shall not alter Tenant's liability and responsibility under this
Paragraph 6.
(d) LANDLORD'S PROPERTY. All Alterations, whether temporary
or permanent, including hardware, non-trade fixtures and wall and
floor coverings, whether placed in or upon the Premises by Landlord or
Tenant shall become Landlord's property and shall remain with the
Premises at the termination of this Lease, whether by lapse of time or
otherwise, without compensation, allowance or credit to Tenant;
provided, however, that notwithstanding the foregoing, Landlord may
request that any or all of said Alterations in or upon the Premises
made by Tenant "except initial tenant improvements made by landlord or
Tenant, pursuant to this lease" be removed by Tenant at the
termination of this Lease provided that Landlord notifies Tenant of
removal prior to installation of such alterations by Tenant. If
Landlord requests such removal or if Tenant removes its trade
fixtures, Tenant shall remove the same prior to the end of the Term
and shall repair all damage to the Premises, the Building or the
Property caused by such removal. Tenant shall not, however, be
required to remove pipes and wires concealed in floors, walls or
ceilings, provided that Tenant properly cuts and caps the same, and
seals them off in a safe, lawful and workmanlike manner, in accordance
with Landlord's reasonable requirements and all applicable building
codes. If Tenant does not remove any Alterations when requested by
Landlord to do so, Landlord may remove the same and repair all damage
caused thereby, and Tenant shall pay to Landlord the cost of such
removal and repair immediately upon demand therefor by Landlord, plus
ten percent (10%) of the cost of such removal to reimburse Landlord
for its administrative expense. Tenant's obligation to observe or
perform this covenant shall survive the expiration or termination of
this Lease.
(e) WIRING. Tenant will direct electricians as to where and
how telephone and computer wires are to be introduced. No boring or
cutting for wires will be allowed without Tenant's and Landlord's
consent which shall not be unreasonably withheld. The location of
telephones, call boxes and other office equipment affixed to the
Premises shall be subject to Tenant's and Landlord's approval, which
shall not be unreasonably withheld.
7. MECHANICS' LIENS.
(a) If, because of any act or omission of Tenant, any
mechanic's lien or other lien, charge or order for the payment of
money shall be filed against any portion of the Premises,
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Tenant, at its own cost and expense, shall cause the same to be
discharged of record or bonded against within ten (10) days of the
filing thereof unless Tenant shall contest the validity of such lien
by appropriate legal proceedings diligently conducted in good faith
and without expense to Landlord; and Tenant shall indemnify and save
harmless Landlord against and from all costs, liabilities, suits,
penalties, claims and demands, including attorneys' fees, on account
thereof.
(b) If Tenant shall fail to call such liens to be discharged
of record or bonded against within the aforesaid ten (10) day period
or shall fail to satisfy such liens within ten (10) days after any
judgment in favor of such lien-holders from which no further appeal
might be taken, then Landlord shall have the right to cause the same
to be discharged. All amounts paid by Landlord to cause such liens to
be discharged, plus interest on such amounts at the Default Rate shall
constitute Other Charges payable by Tenant to Landlord.
(c) The interest of Landlord in the Premises shall not be
subject in any way to any liens, including construction liens, for
improvements to or other work performed with respect to the Premises
by or on behalf of Tenant. Tenant shall have no power or authority to
create any lien or permit any lien to attach to the present estate,
reversion, or other estate of Landlord in the Premises or in the
Property and all mechanics, materialmen, contractors, artisans, and
other parties contracting with Tenant or its representative or privies
with respect to the Premises or any part of the Premises are hereby
charged with notice that they must look to the Tenant to secure
payment of any xxxx for work done or material furnished or for any
other purpose during the term of this Lease. The foregoing provisions
are made with express reference to Section 713.10, Florida Statutes
(1993). Tenant shall notify every contractor making improvements to
the Premises that the interest of the Landlord in the Premises shall
not be subject to liens for improvements to or other work performed
with respect to the Premises by or on behalf of Tenant.
8. MAINTENANCE AND REPAIR.
(a) TENANT'S MAINTENANCE. Except as set forth in 8(b) below,
Tenant, at its sole cost and expense, shall maintain and repair during
the Term of this Lease the Premises and every part thereof and any and
all appurtenances thereto, including but not limited to, the doors and
interior walls of the Premises; special light fixtures; kitchen
fixtures, auxiliary heating, ventilation, or air-conditioning
equipment; private bathroom fixtures and any other type of special
equipment, together with related plumbing or electrical services; and
rugs, carpeting, wall coverings, and drapes within the Premises,
whether installed by Tenant or by Landlord on behalf of Tenant, and
whether or not such items will become Landlord's property upon
expiration or termination of this Lease. Notwithstanding the
provisions hereof, in the event that repairs required to be made by
Tenant become immediately necessary to avoid possible injury or damage
to persons or property, Landlord may, but shall not be obligated to,
make repairs to such items at Tenant's expense, which shall constitute
Other Charges payable by Tenant to Landlord. Within Thirty (30) days
after Landlord renders a xxxx for the cost of said repairs, Tenant
shall reimburse Landlord.
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(b) LANDLORD'S MAINTENANCE. Subject to Paragraph 8(a) above,
Landlord shall keep, repair and maintain the Building (including the
roof and structural members, the Common Areas including without
limitation, the parking lot and lobby (as hereinafter defined),
mechanical and electrical equipment, the exterior and architectural
finish, and all items except those excepted elsewhere in this Lease)
of which the Premises are a part, and the lawn, shrubs and other
landscaping on the Property, all in good and tenantable condition
during the Term of this Lease including without limitation, cleaning
as set forth in Exhibit "G" hereto. Landlord shall, in addition,
supply reasonable snow removal for the walkways and parking areas of
the Property during Normal Business Hours (as hereinafter defined).
Tenant shall notify Landlord immediately when any repair to be made by
Landlord is necessary. If any portion of the Building or the Premises
is damaged through the fault or negligence of Tenant, its agents,
employees, invitees or customers, then Tenant shall promptly and
properly repair the same at no cost to Landlord; provided, however,
that Landlord may, at its option, make such repairs (after reasonable
notice to Tenant, but only if Tenant fails to make such repairs) and
Tenant shall, on demand, pay the cost thereof, together with interest
at the Default Rate to Landlord as Other Charges. Tenant shall
immediately give Landlord written notice of any defect or need for
repairs, after which notice Landlord shall have reasonable opportunity
to repair same or cure such defect. For the purposes of making any
repairs or performing any maintenance, Landlord may block, close or
change any entrances, doors, corridors, elevators, or other facilities
in the Building or in the Premises, and may close, block or change
sidewalks, driveways or parking areas of the Property as long as
Tenant continues to have reasonable access to the Property and the
Premises. Landlord shall not be liable to Tenant, except as expressly
provided in this Lease, for any damage or inconvenience and Tenant
shall not be entitled to any abatement of rent by reason of any
repairs, alterations or additions made by Landlord under this Lease.
Landlord shall be responsible for repairs and maintenance of all
electrical, plumbing, HVAC and mechanical systems of the Building. All
repairs and maintenance by Landlord shall comply with applicable
governmental and quasi-governmental requirements, including without
limitation, building codes. Tenant shall receive a credit against rent
on account of the following: any expenditures by Tenant on account of
any latent defects for a period of one (1) year after the Commencement
Date and/or violations with respect to governmental and
quasi-governmental requirements, including without limitation,
building codes, existing in the Premises on the date that landlord
delivers the premises to Tenant on account of correcting any
deficiencies in Landlord's work after reasonable notice to Landlord
only if Landlord fails to make such repairs; and any and all
expenditures by Tenant on account of providing repair, maintenance
and/or service obligations of landlord in the event that Landlord
fails to fulfill or has not diligently pursued such obligations within
ten (10) days of Tenant's notice to Landlord regarding same.
(c) INSPECTION. Tenant shall permit Landlord, its agents,
employees and contractors, at any time in the event of an emergency,
and otherwise at reasonable times and upon reasonable notice to Tenant
to take any and all measures, including inspections, repairs
alterations, additions and improvements to the Premises or to the
Building, as may be necessary to safeguard, protect or preserve the
Premises or the Building; to operate the Building; to comply on behalf
of Tenant with all laws, orders and requirements of
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governmental or other authority (if Tenant fails to do so); to examine
the Premises to verify Tenant's compliance with all of the terms,
covenants, obligations and conditions of this Lease; or to exercise
any rights with respect to the Premises that Landlord may exercise in
the event of default by Tenant.
9. COMMON AREAS.
(a) GRANT. During the Term of this Lease, Landlord grants to
Tenant, its employees, customers and invitees, a nonexclusive license
to use, in common with all others to whom Landlord has granted or may
hereafter grant a license to use, the common areas of the Property,
including but not limited to, the sidewalks, lobbies, halls, passages,
exits, entrances, elevators, stairways, restrooms, parking areas
(except as provided for in subparagraph (b) below), driveways and
landscaped areas (collectively, the "Common Areas") subject to
reasonable rules and regulations respecting the Common Areas as
Landlord may from time to time promulgate. The Common Areas shall not
be obstructed by Tenant or used for any purpose other than for ingress
to and egress from the Premises. The Common Areas are not for the use
of the general public and Landlord shall in all cases retain the right
to control and prevent access thereto by all persons whose presence,
in the judgment of Landlord, shall be prejudicial to the safety,
character, reputation and interests of the reasonable Building and its
tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom Tenant normally deals in the
ordinary course of Tenant's business unless such persons are engaged
in illegal activities. Neither Tenant nor its employees, customers or
invitees shall go upon the roof, mechanical areas or mechanical floors
of the Building.
(b) PARKING. All parking required by law will be provided by
Landlord. Parking will be provided in the surface parking area of the
Property. Landlord shall have the right to designate surface parking
areas for the use of the Building, and Tenant and its employees shall
not park in parking areas not so designated, specifically including
entrances. Upon written notice from Landlord, Tenant shall furnish to
Landlord, within ten (10) days after receipt of such notice, the state
automobile license numbers assigned to the automobiles of Tenant and
its employees. Landlord shall not be liable for any vehicle of Tenant
or its employees that the Landlord shall have towed from the Premises
when illegally parked except if due to an intentional or negligent act
or omission of Landlord, its employees or agent. Landlord shall have
no liability to Tenant for any damages or claims arising from the use
of the parking area or roadways by Tenant, other tenants, or their
customers, invitees or employees.
(c) RIGHT TO CHANGE COMMON AREAS. Landlord may do and perform
such acts in and to the Common Areas as, Landlord, in its good
business judgment, shall determine to be advisable. Landlord hereby
reserves the right to make alterations, additions, deletions or
changes to the Common Areas, including, but not limited to, changes in
it size and configuration provided that no such alteration, addition
or change reduces the square footage of the 1st floor lobby, and
provided that it does not reduce the 1st floor lobby corridor without
Tenant's prior written consent which shall not be unreasonably
withheld.
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10. BUILDING SERVICES.
(a) ELECTRIC. Landlord shall provide electric power to the
Premises. Electric power furnished by Landlord is intended to be that
consumed in normal office use during Normal Business Hours for
lighting, heating, ventilating, air conditioning and operating all
office equipment. Landlord reserves the right, if Tenant's consumption
of electricity exceeds that required for normal office use during
Normal Business Hours, to include a charge for such electricity as
rent. Such charge shall be based upon the average cost per unit of
electricity for the Building applied to the excess use as determined
by an independent engineer selected by Landlord, or at Landlord's
option, to be determined by a submeter to be furnished and installed
at Tenant's expense. If Tenant refuses to pay upon demand of Landlord
such excess charge, such refusal shall constitute a breach of the
obligation to pay rent under this Lease and shall entitle Landlord to
the rights granted in this Lease for such breach. Tenant shall use
strict care and caution to ensure that all electricity is carefully
shut off to prevent waste or damage. Notwithstanding the foregoing,
Landlord has reviewed and is familiar with Tenant's initial use of the
Premises, including without limitation, Tenant's electrical need as
shown on the approved permit set of construction drawings. Landlord
represents that the capacity of the existing feeders to the Building
and the wiring servicing the Premises are sufficient for Tenant's
purposes. Landlord has specifically reviewed with tenant the initial
nature and type of all equipment to be used in the Premises as show on
plan, including without limitation, computers, telephone systems and
related equipment Tenant intends to use, and Landlord approves of
same.
(b) WATER. Landlord shall provide water for drinking,
lavatory, kitchen and toilet purposes from the regular Building supply
(at the prevailing temperature) through fixtures installed by Landlord
(or by Tenant with Landlord's prior written consent); provided that
Tenant shall reimburse Landlord, at rates fixed by Landlord, for water
used by Tenant for supplementary air-conditioning or refrigeration
installed by or for Tenant and for any other water used by Tenant
(except for public drinking water and public lavatory use).
(c) AIR-CONDITIONING AND HEAT. Landlord shall provide air
conditioning and heat to the Premises for comfortable occupancy (A/C
to provide cooling and keep the temperature of the Premises at
70-76(degree)F. Landlord agrees to maintain adequate temperature in
the building equivalent to Class A South Florida Office Buildings)
during Normal Business Hours, subject at all times, however, to
restrictions placed upon Landlord by and duly constituted governmental
agency and/or by any utility supplier. Tenant shall reasonably
cooperate with Landlord to assure the effective operation of the
Building's air-conditioning and heating systems, and if windows are
operable, to keep them closed when the air-conditioning or heating
system is in use. Tenant shall not use any apparatus or device in,
upon or about the Premises that in any way may increase the amount of
such services usually furnished or supplied to tenants in the
Building, and Tenant shall not connect any apparatus or device with
the conduits or pipes, or other means by which such services are
supplied for the purpose of using additional, or unusual amounts of
such services, without the prior written consent of Landlord. If
Tenant uses such services under this provision to excess,
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Landlord reserves the right to charge Tenant for such services, as
rent. If Tenant refuses to make payment upon demand of Landlord, such
excess charge shall constitute a breach of the obligation to pay rent
under this Lease and shall entitle Landlord to the rights granted in
this Lease for such breach. HVAC shall be supplied to the Premises
from 8:00 a.m. to 6:00 p.m. Monday through Friday, and 8:00 a.m. to
12:00 Noon on Saturday. In the event Tenant requires HVAC at other
times, it shall be provided by Landlord at a cost of $5.00 per hour
for the Term of the Lease. After hours HVAC may be ordered by Tenant
as follows: A telephone controlled tenant code will be provided that
allows the tenant to access the energy management system.
Landlord shall, at its cost and expense, replace the cooling
tower and re-condition all air handlers serving the Premises.
(d) JANITOR SERVICE. Landlord shall provide janitor service
in and about the Premises and the Building at the end of each Monday,
Tuesday, Wednesday and Thursday, and at Landlord's option, at the end
of either Sunday or Friday, except for Holidays (as hereinafter
defined). Tenant shall not provide any janitor service without
Landlord's prior written consent. If Landlord consents to janitor
service provided by Tenant, the same shall be subject to Landlord's
rules and regulations and to Landlord's supervision, but at Tenant's
sole cost and expense (without reduction in Base Rent or Additional
Rental). The Building shall provide carpet cleaning in the Common
Areas and window cleaning at such times as Landlord, in its sole
opinion, considers that such cleaning is necessary. Each Tenant shall
cooperate with any janitor service in keeping the Premises neat and
clean. Landlord shall be in no way responsible to Tenant, its agents,
employees or invitees, for any loss of property from the Premises or
for any damage to property thereon, from any cause. Landlord shall
require the janitor service to obtain insurance and bonds for its
employees, covering theft or damage to the property of Tenant and its
employees and invitees.
(e) ELEVATOR SERVICE. If the Building contains elevators,
Landlord shall provide passenger elevator during Normal Business
Hours.
(f) INTERRUPTION OF SERVICES. Tenant hereby acknowledges that
any one or more of the utilities or building services specified in
this Paragraph 10 may be interrupted or dismissed temporarily by
Landlord or other person until certain repairs, alterations or other
improvements to the Premises or other parts of the Property can be
made or by any event or cause which is beyond Landlord's reasonable
control including, without limitation, any ration or curtailment of
utility services; that Landlord does not represent, warrant or
guarantee to Tenant the continuous availability of such utilities or
building services and that any such interruption shall not be deemed
or construed to be an interference with Tenant's right of possession,
occupancy and use of the Premises, shall not render Landlord liable to
Tenant for damages or entitle Tenant to any reduction of Base Rental,
and shall not relieve Tenant from its obligation to pay Base Rental
and to perform its other obligations under this Lease. Landlord
represents and warrants that the Building currently has, and Landlord
shall continue to maintain throughout the term of this Lease, a
generator to run the emergency systems in the Building in the event of
a power failure. Notwithstanding anything to the
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contrary contained herein, if as a result of any curtailment,
interruption or discontinuance of essential services such as water,
electric or air conditioning, to be provided by Landlord, and which
are not as a result of the partial or total destruction of the
Premises or other force majeure, and to the extent the Premises or any
portion thereof, become unfit for the purposes for which they are
being used immediately prior to the occurrence of such curtailment,
interruption or discontinuance for more than five (5) business days,
the rent payable under this Lease shall xxxxx during and for the
period after such five (5) day period that the Premises or any portion
thereof are unfit for Tenant's purposes. Further, if Landlord, to the
extent that such matters are within its control, does not restore such
services within twenty (20) days after Tenant has delivered written
notice thereof, or if Landlord fails to provide tenant with temporary
alternate space within thirty (30) days after Tenant has delivered
written notice of such failure of services to Landlord, and such
failure of services has rendered the Premises untenantable for
Tenant's occupancy, then, in either of such events, Tenant shall have
the right to terminate this Lease in its entirety and this Lease shall
terminate as of the date of such election by Tenant as if such date
were the date provided herein for expiration of the Term hereof, or
Tenant, at its option, may cure the curtailment, interruption or
discontinuance upon five (5) days' written notice to Landlord, and
Landlord shall promptly reimburse Tenant for the cost of effectuating
such a cure. If Landlord fails to reimburse Tenant, Tenant may offset
such costs against rent due, or Tenant may exercise any of Tenant's
other available legal or equitable remedies.
(g) ENERGY CURTAILMENT. Landlord and Tenant specifically
acknowledge that energy shortages in the region in which the Property
is located may from time to time necessitate reduced or curtailed
energy consumption on the Property. Tenant shall comply with all such
rules and regulations as may be promulgated from time to time by any
governmental authority with respect to energy consumption, and during
such period of time as such governmental authority may so require.
Tenant shall reduce or curtail operations in the Premises as shall be
directed by Landlord or such governmental authority. Compliance with
such rules and regulations and/or such reduction or curtailment of
operation shall not constitute a breach of Landlord's covenant of
quiet enjoyment or otherwise invalidate or affect this Lease, and
Tenant shall not be entitled to any diminution or abatement in Base
Rental during the periods of reduction or curtailment of operations,
except as otherwise provided herein.
(h) NORMAL BUSINESS HOURS. For purposes of this Lease,
"Normal Business Hours" shall mean 8:00 am. to 6:00 p.m., Monday
through Friday, and 8:00 a.m. to 12:00 p.m. on Saturday and not
including Sundays and Holidays.
(i) HOLIDAYS. For purposes of this Lease, Holidays shall mean
New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving
and Christmas.
(j) LIFE SUPPORT. All common areas of the building shall have
a complete heat-activated sprinkler system, smoke detectors, speaker
and strobes, fire alarm pull stations, and remote monitoring provided
by Landlord at Landlord's sole cost and expense.
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11. ESTOPPEL CERTIFICATES. Within ten (10) days after written request
by Landlord, Tenant shall execute, acknowledge and deliver to Landlord or to
Landlord's mortgagee, prospective mortgagee, land lessor or prospective
purchaser of the Property or any part thereof, an estoppel certificate, in form
and substance substantially similar to that attached as Exhibit E and
incorporated herein by reference. Tenant shall make such modifications to such
estoppel certificate as may be necessary to make such certificate true and
accurate, it being intended that any such statement delivered pursuant to this
Paragraph 11 may be relied upon by any such mortgagee, prospective mortgagee,
prospective purchaser, or land lessor of the Property. If Tenant fails to
provide such estoppel certificate within ten (10) days after Landlord's
request, Tenant shall be deemed to have approved the contents of any such
certificate submitted to Tenant by Landlord and Landlord is hereby authorized
to so certify.
12. INDEMNIFICATION; WAIVER OF CLAIMS.
(a) Landlord and Tenant shall each indemnify, defend, and
save harmless the other party and such other party's employees,
agents, and contractors (the "Indemnified Parties") from and against
any and all loss, damage, claim, demand, liability, or expense
(including reasonable attorneys' fees) resulting from claims by third
parties and based on any acts or omissions of the indemnitor, its
employees, agents, and contractors in connection with the Building.
The indemnitor shall have the right to assume the defense of any claim
covered by this indemnity on behalf of both itself and the Indemnified
Parties, provided that the lawyers selected by the Indemnitor to
handle such defense are reasonably satisfactory to the Indemnified
Parties and such representation does not result in a conflict of
interest for such lawyers. The Indemnified Parties may not settle any
claim covered by this Indemnity section without the consent of the
indemnitor. The provisions of this Indemnity section shall survive the
expiration or sooner termination of this Lease.
(b) Except as set forth above, or unless caused by an
intentional or negligent act or omission by Landlord, its agents,
servants, employees, officers, directors or partners, Landlord shall
not be liable for, and Tenant hereby waives all claim against
Landlord, (i) for any and all damage or loss to fixtures, equipment or
other property of Tenant and its servants, agents. employees,
contractors, suppliers, invitees, patrons and guests, in, upon or
about the Premises of the Property, or (ii) for injury or death to any
person, occurring in, upon or about the Premises or the Property,
resulting from any cause whatever including, but not limited to,
water, snow, frost, ice, explosion, falling plaster, fire or gas,
smoke or other fumes, nor by reason of the leaking, breaking, backing
up or other malfunction of any lines, wires, pipes, tanks, boilers,
lifts or any other appurtenances, regardless by whom installed or
maintained (Tenant hereby expressly assuming all responsibility for
the safety and security of the person and property of Tenant, its
servants, agents, employees, contractors, suppliers, invitees, patrons
and guests, while in the Premises). The occurrence of any event
described in this Paragraph 12 shall not constitute a breach of
Landlord's covenant of quiet enjoyment set forth in Paragraph 17.
13. INSURANCE.
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(a) TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall carry during the entire term of this Lease. the following types
of insurance:
(i) Commercial general liability insurance against,
injuries to persons occurring in, upon or about the Premises,
with minimum coverage of Two Million Dollars ($2,000,000.00)
per occurrence and Two Million Dollars ($2,000,000.00)
aggregate coverage per one (1) accident or disaster, and Two
Hundred Fifty Thousand Dollars ($250,000.00) for property
damage.
(ii) Fire, extended coverage, vandalism and
malicious mischief, and sprinkler damage and all-risk
insurance coverage on all personal property, trade fixtures,
floor coverings, wall coverings, furnishings, furniture, and
contents for their full insurable value on a replacement cost
basis;
(iii) Business income and extra expense insurance,
against loss or damage resulting from the same risks as are
covered by the insurance described in subparagraph 13(a)(ii)
on an actual low sustained basis, but in all events in an
amount sufficient to prevent tenant from being a co-insurer
of any loss covered under the applicable policy or policies.
(iv) Workers' Compensation or similar insurance, if
and to the extent required by law and in form and amounts
required by law.
(b) LANDLORD AS ADDITIONAL INSURED. All such insurance
required to be maintained by Tenant shall name Landlord as an
additional insured and shall be written with a company or companies
reasonably satisfactory to Landlord, having a policyholder rating of
at least "A" and be assigned a financial size category of at least
"Class XIV" as rated in the most recent edition of "Best's Key Rating
Guide" for insurance companies, and authorized to engage in the
business of insurance in the state in which the Premises are located.
Tenant shall deliver to Landlord copies of such policies and customary
insurance certificates evidencing such paid-up insurance. Such
insurance shall further provide that the same may not be canceled,
terminated or modified unless the insurer gives Landlord at least
thirty (30) days prior written notice thereof.
(c) LANDLORD'S INSURANCE. Landlord shall maintain in force,
at all times during the Term of this Lease, a policy or policies of
"All Risk" insurance on the Building (and Premises) for the full
replacement value thereof. Landlord shall also maintain further
covenants and agrees to maintain public liability insurance in the
form commonly known as "Commercial General Liability" insurance in the
amount of at least Two Million Dollars ($2,000,000.00) per occurrence,
combined single limit, which limit may be accomplished by use of an
umbrella policy. This policy shall be written on an occurrence basis.
Landlord agrees to provide Tenant with a certificate of insurance
indicating said insurance has been obtained at any time and from time
to time following written request thereafter from Tenant.
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(d) INCREASE IN PREMIUMS. If insurance premiums payable by
Landlord or any other tenant are increased as a result of any breach
of Tenant's obligations under this Lease or as a result of Tenant's
use and occupancy of the Premises, Tenant shall pay to Landlord an
amount equal to any increase in such insurance premiums.
14. WAIVER OF SUBROGATION. Except as set forth below, each party shall
look solely to its own insurance in the case of any damage to its property.
Accordingly, Landlord and Tenant each hereby expressly, knowingly, and
voluntarily waives and releases any claims which it may have against the other
or the other's employees, agents, or contractors for damage to its properties
and loss of business (specifically including loss of rent by Landlord and
business interruption by Tenant) as a result of the acts or omissions of the
other party or the other party's employees, agents, or contractors
(specifically including the negligence of either party or the other party's
employees, agents, or contractors and the intentional misconduct of the
employees, agents, or contractors of either party). This waiver shall not apply
to claims for damages of less than $5,000.00. Landlord and Tenant shall each,
on or before the earlier of the Commencement Date or the date on which Tenant
first enters the Premises for any purpose, at its sole cost and expense, obtain
and keep in full force and effect at all times thereafter a waiver of
subrogation from its insurer with respect to the property, rent loss, and
business interruption insurance maintained by it with respect to the Property
and the property located in the Property. This subsection shall not apply to
claims for personal injury or wrongful death.
15. HOLDING OVER. If Tenant retains possession of the Premises or any
part thereof after the termination of this Lease, Tenant shall, from that day
forward, be a tenant from month to month and Tenant shall pay Landlord rent at
1 1/2 times the monthly rate in effect immediately prior to the termination of
this Lease for the time the Tenant remains in possession. No acceptance of rent
by, or other act or statement whatsoever on the part of Landlord or its agent
or employee, in the absence of a writing signed by Landlord, shall be construed
as an extension of or as a consent for further occupancy. Tenant shall
indemnify Landlord for all damages, consequential as well as direct, sustained
by reason of Tenant's retention of possession. The provisions of this Paragraph
15 do not exclude pursuit of Landlord's right of re-entry or any other right
hereunder.
16. ASSIGNMENT AND SUBLEASE. (SEE RIDER NO. 5)
17. QUIET ENJOYMENT. If Tenant shall pay the rents and other sums due
to be paid by Tenant hereunder as and when the same become due and payable, and
if Tenant shall keep, observe and perform all of the other terms, covenants and
agreements of this Lease on Tenant's part to be kept, observed and performed.
Tenant shall, at all times during the Term herein granted, peacefully and
quietly have and enjoy possession of the Premises without any encumbrance or
hindrance by, from or through Landlord, except for regulations imposed by any
governmental or quasi-governmental agency on the occupancy of Tenant or the
conduct of Tenant's business operations.
18. COMPLIANCE WITH LAWS AND WITH RULES AND REGULATIONS.
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(a) LAWS. Tenant, at its sole cost and expense, shall procure
any permits and licenses required for the transaction of Tenant's
business in the Premises. Tenant, at its sole cost and expense, shall
promptly observe and comply with all present and future laws,
ordinances, requirements, orders, directives, rules and regulations of
all state, federal, municipal and other agencies or bodies having
jurisdiction relating to the use, condition and occupancy of the
Premises, the Building and the Property at any time in force,
applicable to the Premises or to Tenant's use thereof, except that
Tenant shall not be under any obligation to comply with any law,
ordinance, rule or regulation requiring my structural alteration of
the Premises, unless such alteration is required because of a
condition that has been created by, or at the instance of, Tenant, or
is required by reason of a breach of any of Tenant's covenants and
agreements under this Lease. Landlord shall not be required to repair
any injury or damage by fire or other cause or to make any repairs or
replacements of any panels, decoration, office fixtures, railing,
ceiling, floor covering, partitions, or any other property installed
in the Premises by Tenant.
(b) RULES AND REGULATIONS. Tenant shall comply with all rules
and regulations for the Building, which current rules and regulations
are attached hereto as Exhibit F and with such reasonable
modifications thereof and additions thereto as Landlord may make
hereafter, from time to time. Notwithstanding anything contained in
this Lease, Landlord shall not be responsible nor liable to Tenant,
its agents, representatives, employees, invitees or licensees, for the
nonobservance by any other tenant of any rules and regulations.
(c) Landlord represents and warrants to Tenant as follows:
(i) Landlord owns good and marketable fee simple title to the
Property, (ii) there are no pending or, to the knowledge of Landlord,
threatened actions or legal proceedings affecting the Property or
Landlord's interest therein, (iii) the Lease and consummation of the
actions contemplated hereby shall be valid and binding upon Landlord
and do not constitute a default (or any event which with notice and/or
the passage of time would constitute a default) under any agreement to
which Landlord is a party or by which it is bound, (iv) with respect
to the Property, Landlord has not received notice nor has Landlord any
knowledge of any violation of any law, regulation, ordinance, order or
other requirements of any governmental authority having jurisdiction
over or affecting any part of the Property, except for notice to
replace the fuel pipe between the generator and diesel fuel tank which
shall be repaired by 10/1/94, (v) Landlord is not obligated on any
agreement to lease, or otherwise grant rights of possession or
occupancy of, any portion of the Premises; (vi) Landlord and its
General Partners are duly organized and existing Florida
partnership/corporation in good standing, and all requisite
partnership/corporation action has been taken by Landlord to authorize
the execution and delivery of this Lease and the performance of
Landlord's obligation hereunder. Notwithstanding the contrary,
Landlord shall be personally liable to Tenant for any loss or damage
(including without limitation, attorney's fees) which incurs by reason
or any inaccuracy of any of the foregoing representations.
19. FIRE AND CASUALTY.
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(a) If the Premises or the Building or any substantial part
of either is damaged or destroyed by fire or other casualty, cause or
condition whatsoever, and such damage or destruction cannot be
repaired within nine (9) months, Landlord or Tenant may terminate this
Lease, by written notice to the other given within thirty (30) days
after such damage. If the Premises are damaged or destroyed or access
thereto or use thereof is affected by the damage, then termination
shall be effective as of the date of such damage; otherwise said
termination shall be effective thirty (30) days after such notice.
(b) If the Common Areas in the Building are damaged or
destroyed by fire or other casualty, cause or condition whatsoever, to
such an extent as to substantially interfere with Tenant's use of the
Premises or if the Premises or a substantial part thereof are made
untenantable, and such damage or destruction cannot be repaired within
one hundred twenty (120) days, then Tenant may terminate this Lease by
giving written notice to Landlord within thirty (30) days after such
damage, said termination to be effective as of the date of such
damage.
(c) If this Lease is not terminated pursuant to SUBSECTION A
OR B, Landlord shall commence and proceed with reasonable diligence to
restore the Building and/or the Premises and/or other common areas
(provided that Landlord shall not be required to restore any unleased
premises in the Building) to substantially the same condition they
were in immediately prior to the happening of the casualty. If such
restoration is not substantially completed within nine (9) months
after such fire or other casualty, then Tenant shall have the right to
terminate this Lease by giving not less than thirty (30) days' prior
written notice of its intention to so terminate to Landlord, which
notice must be sent within thirty (30) days after the expiration of
said nine (9) month period, and this Lease shall terminate as of the
date specified in such notice with the same effect as if such date
were the scheduled expiration date of this Lease. Notwithstanding the
foregoing, if Tenant sends such a notice of termination and Landlord,
prior to the date of termination specified in such notice,
substantially completes such restoration, then Tenant's notice shall
be without force or effect and this Lease shall continue in full force
and effect. When repairs to the Premises have been completed by
Landlord, Tenant shall complete the restoration or replacement of the
Premises and all of Tenant's property necessary to permit Tenant's
reoccupancy of the Premises, and Tenant shall present Landlord with
evidence satisfactory to Landlord of Tenant's ability to pay such cost
(which may include insurance proceeds paid or to be paid to Tenant)
prior to Landlord's commencement of repair and restoration of any
portion of the Premises.
(d) Notwithstanding SUBSECTIONS A AND B AND C, (i) Landlord
shall have no duty to restore, rebuild, or replace Tenant's
alterations, personal property, and trade fixtures; and (ii)
Landlord's and Tenant's obligations to repair, rebuild, or restore the
Building or the Premises or other common areas shall exist only to the
extent that insurance proceeds are actually received by Landlord and
Tenant in connection with the casualty which gave rise to Landlord's
and Tenant's obligations to repair. rebuild, or restore.
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(e) Base Rental shall xxxxx in proportion to the portion of
the Premises not useable by Tenant as a result of any casualty, as of
the date on which the Premises becomes unusable. Landlord shall
retain, at Landlord's sole cost and expense, a licensed Florida
contractor (reasonably accepted to Tenant) who shall undertake an
inspection of the Premises and advise Landlord and Tenant in writing
within sixty (60) days of the subject casualty as to what percentage
of the Premises is not useable by Tenant as a result of damage caused
by such casualty. The opinion of such contractor shall be binding on
all parties. Landlord shall not be liable to Tenant for any delay in
restoring the Premises or any inconvenience or annoyance to Tenant or
injury to Tenant's business resulting in any way from such casualty or
the repair thereof, Tenant's sole remedy being such right to an
abatement of Base Rental.
(f) Landlord and Tenant hereby waive the provisions of any
law in effect during the Lease Term relating to the effect upon leases
of partial or total destruction of leased property, it being the
intention of the parties that their respective rights in the event of
any damage to or destruction of the Premises shall be those
specifically set forth in this section.
20. EMINENT DOMAIN.
(a) If all the Premises or a substantial (50% or more) part
thereof shall be taken for any public or quasi-public use under any
statute or by rights of eminent domain or by private purchase in lieu
thereof, this Lease shall terminate as of the date of vesting of
title. Landlord shall be entitled to receive the entire award paid for
such taking or condemnation, Tenant hereby assigning to Landlord all
Tenant's rights, title and interest therein, if any. Nothing contained
herein shall be deemed to give Landlord any interest in or to require
Tenant to assign to Landlord any award made to Tenant for the taking
of personal property or fixtures belonging to Tenant, for the
interruption of or damage to Tenant's business or for Tenant's moving
expenses but only if such award shall be in addition to the award for
the Property and the Building (or portion thereof) containing the
Premises.
(b) If fifty percent (50%) or more of the Building other than
the Premises or 20% or more of the parking area shall be condemned,
taken or purchased in lieu thereof, then Landlord or Tenant may
terminate this Lease by notifying the other of such termination within
sixty (60) days after the date of vesting of title. This Lease shall
expire on the date specified in such notice of termination, which date
shall be not less than sixty (60) days after the giving of such
notice.
(c) Any such taking, condemnation or temporary requisition
which does not result in a termination of this Lease, as hereinbefore
provided in this Paragraph 20, shall not be cause for any reduction or
diminution of the rental payment hereunder.
21. DEFAULT.
(a) If (i) Tenant fails to pay any rent, or any other sums
required to be paid hereunder by Tenant within seven (7) days after
written notice (the written notice given pursuant to this paragraph
may be combined with the statutory 3 day notice so that only one
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notice is given by Landlord which notice will provide Tenant with a
period of seven (7) days in which to cure the default and will be
deemed to satisfy the requirements of Section 83.20, Florida Statutes)
or (ii) Tenant defaults in the performance or observance of any other
agreement or condition on its part to be performed or observed, and
Tenant shall fail to cure said default within thirty (30) days after
receipt of written notice thereof by Landlord (but if such
non-monetary default cannot be reasonably cured within 30 days, Tenant
shall have such additional time as may be reasonably necessary,
provided Tenant diligently pursues said cure); then in any such event
and at any time thereafter, Landlord may, without further notice to
Tenant, and in addition to and not in lieu of any other rights or
remedies available to Landlord at law or in equity, exercise any one
or more of the following rights:
(x) Landlord may (A) terminate this Lease and the
tenancy created hereby by giving notice of such election to Tenant,
and (B) reenter the Premises, to the extent allowed by law, remove
Tenant and all other persons and property from the premises and store
such property in a public warehouse or elsewhere at the sole cost and
expense of and for the account of Tenant without Landlord being deemed
guilty of trespass or becoming liable for any loss or damage
occasioned thereby.
(y) Landlord may reenter and take possession of the
Premises to the extent allowed by law without terminating this Lease
and without relieving Tenant of its obligations under this Lease, and
divide or subdivide the Premises in any manner Landlord may desire and
lease or let the premises or portions thereof, alone or together with
other premises, for such term or terms (which may be greater or less
than the balance of the remaining portion of the Term of this Lease)
and on such terms and conditions (which may include concessions or
free rent and alterations of the Premises) as Landlord, in its
discretion, may determine.
(b) If this Lease is terminated by Landlord pursuant to this
Paragraph 21, Tenant nevertheless shall remain liable for any Base
Rental, Additional Rental, Other Charges required to be paid hereunder
and damages that may be due or sustained prior to such termination,
and for all reasonable costs, fees and expenses incurred by Landlord
in pursuit of its remedies hereunder, including attorneys', brokers'
and other professional fees (all such rents, damages, costs, fees and
expenses being referred to herein collectively as "Termination
Damages") plus additional damages (the "Liquidated Damages") which are
hereby stipulated to be equal to the present value discounted at the
current 5-year treasury xxxx rate of Base Rental, Additional Rental
and Other Charges required to be paid hereunder that, but for
termination of this Lease, would have become due during the remainder
of the Term, less the fair market rental rate for the remainder of the
Term of this Lease discounted at the current five (5) year treasury
xxxx rate. Termination Damages and Liquidated Damages shall be due and
payable immediately upon demand by Landlord following any termination
of this Lease pursuant to this Paragraph 21.
(c) Landlord shall not, in any event, be required to pay
Tenant any surplus of any sums received by Landlord on a reletting of
the Premises in excess of the rent provided in this Lease. Any entry
or re-entry by Landlord, whether had or taken under summary
proceedings or otherwise, shall not absolve or discharge Tenant from
liability under this
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Lease. "Re-enter" and "re-entry" as used in this Lease are not
restricted to their technical legal meaning. No such re-entry or
taking possession of the Premises by Landlord shall be construed as an
election on Landlord's part to terminate this Lease unless a written
notice of such intention is given to Tenant. Notwithstanding any such
re-letting without termination, Landlord may at all times thereafter
elect to terminate this Lease for such previous default, unless cured
by Tenant.
(d) Upon the termination of this Lease or of Tenant's right
to possession of the Premises by lapse of time or earlier termination
as herein provided, Tenant shall remove its property from the
Premises. Any such property of Tenant not removed from the Premises by
Tenant within thirty (30) days after the end of the term or of
Tenant's right to possession of the Premises, however terminated,
whichever occurs earlier, shall be conclusively deemed to have been
forever abandoned by Tenant and either may be retained by Landlord as
its property or may be disposed of in such manner as Landlord may see
fit.
(e) If Tenant at any time fails to make any payment or
perform any other act on its part to be made or performed under this
Lease after the expiration of any applicable grace period, Landlord
may, but shall not be obligated to, and after reasonable notice or
demand and without waiving or releasing Tenant from any obligation
under this Lease, make such payment or perform such other act to the
extent Landlord may deem desirable, and in connection therewith to pay
expenses and employ counsel. Tenant shall pay upon demand all of
Landlord's reasonable costs, charges and expenses, including the
reasonable fees of counsel, agents and other retained by Landlord,
incurred in enforcing Tenant's obligations hereunder or incurred by
Landlord in any litigation, negotiations or transactions in which
Tenant causes Landlord, without Landlord's fault, to become involved
or concerned, which amount shall be deemed to be rent due and payable
by Tenant, upon demand by Landlord, and Landlord shall have the same
rights and remedies for the nonpayment thereof, as in the case of
default in the payment of rent.
(f) All rights and remedies of Landlord herein enumerated
shall be cumulative, and none shall exclude any other right or remedy
allowed by law. In addition to the other remedies in this Lease
provided, Landlord shall be entitled to the restraint by injunction of
the violation or attempted violation of any of the covenants,
agreements or conditions of this Lease.
Notwithstanding anything in this Section 21 to the contrary, Landlord shall
make good faith reasonable efforts to mitigate its damages in the event of a
default by Tenant.
22. WAIVER OF DEFAULT OR REMEDY. No waiver of any covenant or
condition or of the breach of any covenant or condition of this Lease shall be
taken to constitute a waiver of any subsequent breach of such covenant or
condition nor to justify or authorize the nonobservance on any other occasion
of the same or of any other covenant or condition hereof, nor shall the
acceptance of rent by Landlord at any time when Tenant is in default under any
covenant or condition hereof be construed as a waiver of such default or of
Landlord's right to terminate this Lease on account of such default, nor shall
any waiver of indulgence granted by Landlord to Tenant be taken as an
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estoppel against Landlord, it being expressly understood that if at any time
Tenant shall be in default in any of its covenants or conditions hereunder an
acceptance by Landlord of rental during the continuance of such default or the
failure on the part of Landlord promptly to avail itself of such rights or
remedies as Landlord may have, shall not be construed as a waiver of such
default, but Landlord may at any time thereafter, if such default continues,
terminate this Lease or assert any other rights or remedies available to it on
account of such default in the manner hereinbefore provided.
23. LANDLORD'S LIEN. Landlord shall have all rights granted under
Florida Statute Section 83.08.
24. FORCE MAJEURE. If Landlord or Tenant shall be delayed, hindered in
or prevented from the performance of any act required hereunder (other than the
payment of rent and other charges payable by Tenant) by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
riots, insurrection, the act, failure to act or default of the other party, war
or any other reason beyond the reasonable control of the party who is seeking
additional time for the performance of such act, then performance of such act
shall be excused for the period of the delay and the period for the performance
of any such act shall be extended for a reasonable period, in no event to
exceed a period equivalent to the period of such delay. No such interruption of
any service to be provided by Landlord shall ever be deemed to be an eviction,
actual or constructive, or disturbance of Tenant's use and possession of the
Premises, the Building or the Property.
25. SUBORDINATION OF LEASE.
(a) Upon request and provided Landlord has complied with and
continues to comply with, Section 26(c) hereof, Tenant shall execute
an instrument subordinating this Lease to any and all mortgages, deeds
of trust or land leases now existing upon or that may be hereafter
placed upon the Premises and the Property and to all advances made or
to be made thereon and all renewals, modifications, consolidations,
replacements or extensions thereof and the lien of any such mortgages,
deeds of trust or land leases shall be superior to all rights hereby
or hereunder vested in Tenant, to the full extent of all sums secured
thereby. Tenant shall, on request of Landlord or the holder of any
such mortgages, deed(s) of trust and land leases, execute and deliver
to Landlord within ten (10) days any instrument that Landlord or such
holder may reasonably request.
(b) If the interest of Landlord under this Lease shall be
transferred by reason of foreclosure, deed in lieu of foreclosure, or
other proceedings for enforcement of any first mortgage or deed of
trust on the Premises, Tenant shall be bound to the transferee (the
"Purchaser") under the terms, covenants and conditions of this Lease
for the balance of the Term remaining, and any extensions or renewals,
with the same force and effect as if the Purchaser were the Landlord
under this Lease, and at the option of Purchaser, Tenant shall attorn
to the Purchaser (including the mortgagee under any such mortgage, if
it be the Purchaser), as its landlord, the attornment to be effective
and self-operative without the execution of any further instruments
upon the Purchaser succeeding to the interest of Landlord under this
Lease. The respective rights and obligations of Tenant and the
Purchaser
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upon the attornment, to the extent of the then remaining balance of
the Term of this Lease, and any extensions and renewals, shall be and
are the same as those set forth in this Lease.
(c) NON-DISTURBANCE. Upon written request by Tenant, Landlord
shall obtain a non-disturbance, subordination, and attornment
agreement from any future Holder of an Encumbrance on such Holder's
then current standard form of agreement. Upon request of Landlord,
Tenant will execute the Holder's form of non-disturbance,
subordination, and attornment agreement and return the same to
Landlord for execution by the holder. Tenant's obligation to
subordinate its interest under this Lease is conditioned upon Tenant's
receipt of a Non-Disturbance Agreement from such Holder as provided in
this paragraph.
26. NOTICES AND CONSENTS. All notices, demands, requests, consents and
approvals that may or are required to be given by either party to the other
shall be in writing and shall be deemed given when sent by United States
certified or registered mail, postage prepaid, or by overnight courier (a) if
for Tenant, addressed to Tenant at the Building, or at such other place as
Tenant may from time to time designate by notice to Landlord, or (b) if for
Landlord, addressed to Xxxxxx X. Xxxxxxx, Xxxxxxx & Company, 000 Xxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, or at such other place as Landlord may
from time to time designate by notice to Tenant. All consents and approvals
provided for herein must be in writing to be valid. Notice shall be deemed to
have been given if addressed and mailed as above provided on the date two (2)
business days after deposit in the United States mail or one (1) business day
after deposit with an overnight courier.
27. SECURITY DEPOSIT.
(a) Tenant has deposited with Landlord the sum of Fifty
Thousand Dollars ($50,000.00) upon signing this Lease and will deposit
another Fifty Thousand Dollars ($50,000.00) on or before the
Commencement Date as security for the full and faithful performance of
every provision of this Lease to be performed by Tenant. If Tenant
defaults with respect to any provision of this Lease, including, but
not limited to, the provisions relating to the payment of rent,
Landlord may use, apply or retain all or any part of this security
deposit for the payment of any rent or any other sum in default or for
the payment of any other amount that Landlord may spend or become
obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other loss, cost or damage that Landlord may suffer
by reason of Tenant's default and for which Landlord is entitled to
reimbursement under this Lease. If any portion of said deposit is so
used or applied, Tenant shall, within five (5) days after written
demand therefor, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount and Tenant's
failure to do so shall be a default under this Lease. Landlord shall
not, unless otherwise required by law, be required to keep this
security deposit separate from Landlord's general funds. If Tenant
shall fully and faithfully perform every provision of this Lease to be
performed by it, the security deposit or any balance thereof shall be
returned to Tenant (or, at Landlord's option, to the last transferee
of Tenant's interest hereunder) at the expiration of the Lease Term
and upon Tenant's vacation of the Premises. In the event of bankruptcy
or other debtor-creditor proceedings against Tenant, such security
deposit shall be deemed to be applied first to the payment of rent and
other charges due Landlord for all periods prior to filing of such
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proceedings. At the end of the first Lease Year, and provided that
Tenant is not then in default hereunder, the amount of security
deposit held by Landlord shall be reduced to $50,000.00. Any excess
over the foregoing amount shall be returned to Tenant on or before
January 20, 1996.
(b) Landlord shall deliver the security deposit to the
purchaser of Landlord's interest in the Premises in the event that
such interest be sold and thereupon Landlord shall be discharged from
any further liability with respect to such deposit, and this provision
shall also apply to any subsequent transferees of Landlord.
28. MISCELLANEOUS TAXES. Tenant shall pay, prior to delinquency, all
taxes assessed against or levied upon its occupancy of the Premises, or upon
the fixtures, furnishings, equipment and all other personal property of Tenant
located in the Premises, if nonpayment thereof shall give rise to a lien on the
Premises, and when possible Tenant shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately from
the property of Landlord. In the event any or all of Tenant's fixtures,
furnishings, equipment and other personal property, or upon Tenant's occupancy
of the Premises, shall be assessed and taxed with the property of Landlord,
Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's fixtures, furnishings, equipment or
personal property.
29. BROKERAGE COMMISSION. Except for any broker, agent or other person
named below, Landlord and Tenant represent and warrant each to the other that
each has dealt with no broker, agent or other person in connection with this
transaction and that no broker, agent or other person brought about this
transaction. Landlord hereby agrees to pay to Xxxxxxx Realty Management
Service, Inc. ("Agent") a leasing commission as set forth in that certain
Property Management Agreement between Landlord and Agent, from which Agent
shall pay, according to a Brokerage Agreement mutually agreeable to both
Landlord and Broker, a leasing commission to Xxxxxxx & Xxxxxxxxx of Florida,
Inc. ("Co-op Broker") Landlord and Tenant agree to indemnify and hold each
other harmless from and against any claims by any other broker, agent or other
person (including, without limitation, Co-op Broker) 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
31 shall survive the termination of this Lease.
30. HAZARDOUS DEVICES AND CONTAMINANTS.
(a) PROHIBITION. Except with the prior written consent of
Landlord and except as otherwise set forth in this lease, Tenant shall
not install or operate any steam or internal combustion engine,
boiler, machinery, refrigerating (except for refrigerator for food and
beverage) or heating device or air-conditioning apparatus in or about
the Premises, or carry on any mechanical business therein. Except for
Contaminants (as hereinafter defined) used in the ordinary course of
business and in compliance with Requirements of Law (as hereinafter
defined), Tenant and its agents, employees, contractors and invitees
shall not use, store, release, generate or depose of or permit to be
used, stored, released, generated or disposed of any Contaminants on
or in the Premises.
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(b) INDEMNIFICATION BY TENANT. Tenant shall indemnify and
hold harmless Landlord, its agents, servants, employees, officers and
directors forever from and against any and all liability, claims,
demands and causes of action, including, but not limited to, any and
all liability, claims, demands and causes of action by any
governmental authority, property owner or any other third person and
any and all expenses, including attorneys' fees (including, but not
limited to, attorneys' fees to enforce Tenant's obligation of
indemnification under this Paragraph 32(b)), relating to any
environmental liability resulting from (i) any Release by Tenant (as
hereinafter defined) of any Contaminant at the Premises or emanating
from the Premises to adjacent properties or the surrounding
environment during the Term of this Lease; (ii) during the Term of
this Lease, any generation, transport, storage, disposal, treatment or
other handling of any Contaminant at the Premises, including, but not
limited to, any and all off-site transport, storage, disposal,
treatment or other handling of any Contaminant generated, produced,
used and/or originating in whole or in part from the Premises; and
(iii) any activities at the Premises during the Term of this Lease
that in any way might be alleged to fail to comply with any
Requirements of Law.
(c) DEFINITIONS.
(i) "Contaminant" shall mean any substance or waste
containing hazardous substances, pollutants, and contaminants
as those terms are defined in the Federal Comprehensive
Environmental Response Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. and any substance similarly
defined or identified in any other federal, provincial or
state laws, rules or regulations governing the manufacture,
import, use, handling, storage, processing, release or
disposal of substances or wastes deemed hazardous, toxic,
dangerous or injurious to public health or to the
environment. This definition includes friable asbestos and
petroleum or petroleum-based products.
(ii) "Requirements of Law" shall mean any federal,
state or local law, rule, regulation, permit, agreement,
order or other binding determination of any governmental
authority relating to the environment, health or safety.
(iii) "Release" shall have the same meaning as in
the Federal Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. Section 9601, et seq.
(d) INDEMNIFICATION BY LANDLORD. Notwithstanding anything to
the contrary in the Lease, Landlord shall be solely responsible for,
and Tenant shall have no liability with respect to, any Hazardous
Material (hereinafter defined) presently existing on, under or within
the Premises, the Building or the land on which such improvements are
located. As used herein, "Hazardous Material" means any hazardous,
toxic or radioactive substance, material, matter or waste which is or
becomes regulated by any federal, state or local law, ordinance,
order, rule, regulation. code or any other governmental restriction or
requirement. Landlord hereby indemnifies and holds Tenant free and
harmless of, from and against, any
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and all claims, demands, actions and causes of action by any party
whatsoever (whether or not meritorious), and all costs and expenses
(including without limitation, reasonable attorneys' and paralegal
fees, whether suit is instituted or not, and at all trial and
appellate levels), and all losses, damages and liabilities that are
incurred or suffered by Tenant arising from, or in any way connected
with, existing Hazardous Material on the Property.
(e) LANDLORD'S OBLIGATIONS. On or before the Commencement
Date, Landlord shall have the Premises tested for mold spore, and if
found, Landlord shall immediately remedy such situation, at its sole
cost and expense. Landlord represents and warrants to Tenant that
there is no asbestos in the Building or the Premises, but if asbestos
is discovered, Landlord shall immediately cause such asbestos to be
removed, at its sole cost and expense, and in such case, Landlord
shall use its best efforts to have such removal done with minimum
interference with Tenant's occupancy of the premises.
Notwithstanding anything contained in Paragraphs 32(d) or
32(c), Landlord shall not be required to expend any amounts in excess of
$750,000. Should Landlord fail to discharge its obligations pursuant to
Paragraphs 32(d) and (e) within a reasonable period of time, Tenant shall have
the right to terminate this Lease by giving not less than ninety (90) days'
prior written notice of its intention so to terminate to Landlord, and this
Lease shall terminate as of the date specified in such notice with the same
effect as if such date were the scheduled expiration date of this Lease.
Notwithstanding the foregoing, if Tenant sends such a notice of cancellation
and Landlord, prior to the date of termination specified in such notice,
substantially completes such remediation or begins such remediation and
prosecutes it to completion in good faith and with reasonable diligence, then
Tenant's notice shall be without force or effect and this Lease shall continue
in full force and effect. The foregoing provisions shall also apply to the
Landlord's obligations with respect to Radon Gas as set forth in Rider No. 3
and the Landlord's obligations as to ADA compliance pursuant to Paragraph 48.
31. SIGNS. Tenant shall not display, inscribe, print, paint, maintain
or affix on any place in or about the Building any sign, notice, legend,
direction, figure or advertisement, except on the doors of the Premises, and
then only such name(s) and matter, and in such color, size, place and
materials, as shall first have been approved by Landlord in writing. Landlord
reserves the right to install and maintain a sign or signs on the exterior or
interior of the Building. If Tenant desires, Landlord shall list Tenant an the
Building directory board at Tenant's cost. Notwithstanding the foregoing,
Tenant, at its cost and expense, shall have the right to place its corporate
identification (i.e., name and/or logo) on the Building, and shall have the
non-exclusive right to place its corporate identification on a shared monument
sign. With respect to a monument sign, Tenant's name shall be the top name on
such sign, and no other tenant name on the sign shall have letters that are
larger than Tenant's letters. Tenant shall also have the right to have interior
directional and identifying signage. All signage shall comply with applicable
governmental codes and regulations, and will be subject to Landlord's
reasonable approval.
32. LOCKS. No additional locks or similar devices shall be attached to
any door or window without Landlord's prior written consent. Except for those
keys provided by Landlord, no keys for any door shall be made. If more than two
keys for one lock are desired, Landlord will
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provide the same upon payment by Tenant. All keys must be returned to Landlord
at the expiration or Termination of this Lease. Tenant shall see that the doors
and windows, if operable, of the Premises are closed and securely locked before
leaving the Building. Landlord shall install a "key card" access system for
access to the Building after Normal Business Hours, and Tenant shall receive
from Landlord as many "key cards" as it reasonably requests and Tenant shall
pay for such cards at Landlord's cost. If any of the key cards issued to Tenant
are lost, Landlord may charge Tenant at Landlord cost. Tenant shall have the
right to install additional locks or similar devices on any door or window,
provided that Landlord is provided keys, access codes, etc., to such locks or
similar devices. Tenant shall see that the doors and windows, if operable, of
the Premises, are closed and securely locked before leaving the Building.
33. EMPLOYMENT. Tenant shall not contract for any work or service that
might involve the employment of labor incompatible with the Building employees
or employees of contractors doing work or performing services by or on behalf
of Landlord.
34. PLUMBING. Tenant must observe strict care and caution that all
water faucets and water apparatus are shut off before Tenant or its employees
leave the Building to prevent waste or damage. Plumbing fixtures and appliances
shall be used only for purposes for which constructed, and no sweepings,
rubbish, rags or other unsuitable material shall be thrown or placed therein.
Damage resulting to any such fixtures or appliances from misuse by Tenant shall
be paid by Tenant and Landlord shall not in any case be responsible therefor.
35. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the
following rights:
(a) To name the Building and to change the name of the
Building;
(b) On reasonable prior notice to Tenant and at reasonable
times, to exhibit the Premises to prospective tenants during the last
twelve (12) months of the Term, and to exhibit the Premises to any
prospective purchaser, mortgagee, or assignee of any mortgage on the
Property and to others having a legitimate interest at any time during
the Term; and
(c) To install vending machines of all kinds in the Property,
but not the Premises, and to provide mobile vending service therefor,
and to receive all of the revenue derived therefrom.
36. MISCELLANEOUS.
(a) No receipt of money by Landlord from Tenant after the
termination of this Lease or after the service of any notice or after
the commencement of any suit, or after final judgment for possession
of the Premises shall reinstate, continue or extend the Term of this
Lease or affect any such notice, demand or suit or imply consent for
any action for which Landlord's consent is required.
(b) The term "Landlord" as used in this Lease, so far as
covenants or agreements on the part of Landlord are concerned, shall
be limited to mean and include only the owner
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(or ground lessor, as the ca may be) for the time being of the
Premises. If the Premises or the underlying lease, if any, be sold or
transferred, the seller thereof shall be automatically and entirely
released of all covenants and obligations under this Lease from and
after the date of conveyance or transfer, provided the purchaser on
such sale has assumed and agreed to carry out all covenants and
obligations contained in this Lease to be performed on the part of
Landlord hereunder, in writing and a copy of such assumption shall be
delivered to Tenant upon Tenant's request; it being hereby agreed that
the covenants and obligations, contained in this Lease to be performed
on the part of Landlord shall be binding on Landlord, its successors
and assigns, only during their respective successive period of
ownership.
(c) It is understood that Landlord may occupy portions of the
Building in the conduct of Landlord's business. In such event, all
references herein to other tenants of the Building shall be deemed to
include Landlord as occupant.
(d) This Lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns, provided that this provision shall in no manner enlarge
Tenant's rights of assignment, which right of assignment has been
restricted under the foregoing provisions of this Lease.
37. RELATIONSHIP OF PARTIES. Any intention to create a joint venture,
partnership or principal and agent relationship between the parties hereto is
hereby expressly disclaimed. This Lease shall create the relationship of
landlord and tenant between Landlord and Tenant.
38. GENDER AND NUMBER. Whenever words are used herein in any gender,
they shall be construed as though they were used in the gender appropriate to
the context and the circumstances, and whenever words are used herein in the
singular or plural form, they shall be construed as though they were used in
the form appropriate to the context and the circumstances.
39. TOPIC HEADINGS. Headings and captious in this Lease are inserted
for convenience and reference only and in no way define, limit or describe the
scope or intent of this Lease nor constitute any part of this Lease and are not
to be considered in the construction of this Lease.
40. COUNTERPARTS. Several copies of this Lease may be executed by all
of the parties. All executed copies constitute one and the same Lease, binding
upon all parties.
41. ENTIRE AGREEMENT. This Lease contains the entire understanding
between the parties and supersedes any prior understanding or agreements
between them respecting the subject matter. No representations, arrangement, or
understandings except those fully expressed herein, are or shall be binding
upon the parties. No changes, alterations, modifications, additions or
qualifications to the terms of this Lease shall be made or be binding unless in
writing and signed by each of the parties.
42. RECORDING. The parties agree that this Lease shall not be
recorded, but the Memorandum of Lease attached as Exhibit J hereto shall be
executed and may be recorded by either party in lieu of recordation of this
Lease.
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43. GOVERNING LAW; INVALIDITY OF ANY PROVISIONS. This Lease shall be
subject to and governed by the laws of the state in which the Premises are
located and venue for any action hereunder shall be Palm Beach County, Florida.
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 other
terms 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 be enforced to the fullest extent permitted by law.
44. EXHIBITS; RIDERS. All Exhibits and Riders attached hereto are
hereby made a part of, and incorporated into, this Lease.
45. ADA COMPLIANCE. Landlord represents and warrants that the Building
fully complies with the provisions and requirements of the Americans With
Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq. ("ADA"), and that any
improvements, repairs, replacements, or other changes to the Property in the
future done by or at the request of Landlord shall also comply with the ADA.
Landlord hereby indemnifies and holds Tenant free and harmless of, from and
against, any and all claims, demands, actions and causes of action by any party
whatsoever (whether or not meritorious), and all costs and expenses (including
without limitation, reasonable attorneys' and paralegal fees, whether suit is
instituted or not, and at all trial and appellate levels), and all losses,
damages and liabilities that are incurred or suffered by Tenant arising from,
or in any way connected with, failure of Landlord to comply with the ADA as
aforesaid. Tenant represents and warrants that the Premises shall fully comply
with the provisions and requirements of the ADA and that any improvements,
repairs, replacements, or other changes to the Premises in the future done by
or at the request of Tenant shall also comply with the ADA. Tenant hereby
indemnifies and holds Landlord free and harmless of, from and against, any and
all claims, demands, actions, and causes of action by any party whatsoever
(whether or not meritorious), and all costs and expenses (including without
limitation, reasonable attorney's and paralegal fees, whether suit is
instituted or not, and at all trial and appellate levels), and all losses,
damages, and liabilities that are incurred or suffered by Landlord arising
from, or in any way connected with, failure of Tenant to comply with the ADA as
aforesaid.
46. LANDLORD CONSENTS & APPROVALS. Landlord shall not unreasonably
withhold or delay the granting of consents and approvals under this Lease, and
shall respond to Tenant's request for consent or approval within twenty (20)
days (unless a specific provision of this Lease requires a quicker response),
and the failure of Landlord to timely respond shall be deemed the giving of the
requested consent or approval by Landlord.
47. ATTORNEYS' FEES & COSTS. In the event that either Landlord or
Tenant institutes litigation to enforce its rights under this Lease, the
non-prevailing party shall reimburse the prevailing party for all costs and
reasonable attorneys' and paralegal fees incurred by the prevailing party
through trial, appellate, bankruptcy and post-judgment proceedings.
48. RULES AND REGULATIONS. Notwithstanding anything to the contrary in
this Lease, none of Landlord's rules and regulations shall be effective against
Tenant if, to any extent, they are in
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conflict with this Lease. Further, notwithstanding anything to the contrary in
this Lease, Landlord shall take reasonable efforts to enforce the rules and
regulations against all occupants of the building in a non-discriminatory
manner.
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IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
Witness: LANDLORD:
ARBORS ASSOCIATES, LTD., a Florida limited
partnership
By: BFC/ARBORS ASSOCIATES, LTD., a
Florida limited partnership, as General Partner
of ARBORS ASSOCIATES, LTD.
By: BFC/ARBORS ASSOCIATES, INC., a
Florida corporation, as General Partner of
BFC/ARBORS ASSOCIATES, LTD.
-----------------------
----------------------- By: /s/
-------------------------------------------
Xxxx X. Xxxxxxxxxx
Vice President
Witness: TENANT:
XXXXX-XXXXXXX & ASSOCIATES, INC.
By: /s/ , President
----------------------- ------------------------------------
By:
----------------------- -----------------------------------------------
[NOTARIES]
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