Exhibit 10.3
BUILDING LEASE
THIS BUILDING LEASE is made on 28 day of May, 1999, by G.S. FUNDING GROUP,
L.C., ("Landlord"), and XXXXXXXXX.XXX, a Florida Corporation ("Tenant").
1. AGREEMENT
Landlord Leases the premises (as that term is defined in paragraph 2) to
Tenant, and Tenant Leases the premises from Landlord, according to this Lease.
2. PREMISES
The premises are the land and building commonly known as: 0000 XXXXX
XXXXXXX XXXXXXX, XXXX XXXXX, XXXXXXX, 00000, PALM BEACH COUNTY, STATE OF
FLORIDA, and more particularly described as: 0xx Xxxxx of said building
consisting of approximately 4600 s.f.+\-
The premises include the heating, ventilating, and air conditioning
systems and the mechanical, electrical, and plumbing systems serving the
premises. Tenant accepts the Premises in its' "As-Is" condition.
Landlord shall also provide Tenant with the use of 20 workstations for use
by Tenant throughout the Term of this Lease. The workstations shall be
installed by Tenant at Tenant's own cost. Tenant shall pay Landlord the sum of
One Dollar ($1.00) per month for the use of the workstations. Tenant shall
maintain the workstations and return same to Landlord in its current condition,
reasonable wear and tear excepted.
3. TERM
(a) Initial Term. The term of this Lease will be two years (2),
beginning on June 1, 1999, and expiring on May 31, 2001.
(b) Option to Extend. Tenant may extend the term for an additional two
year (2) period by written notice of its election to do so given to Landlord at
least ninety days (90) prior to the expiration date. The terms and conditions
of the Lease applicable at the expiration date will govern the extended term;
however, Tenant will have no further right to extend the term after the renewal
period. The renewal rate beginning on June 1, 2001 shall be $22.00 per square
foot annually during the two year (2) period. Tenant will not have any rights
under this paragraph 3(b) if (1) an event of default exists on the expiration
date or on the date on which the Tenant gives its notice.
(c) Option to Terminate. Tenant shall have the right to terminate
this Lease at any time after the first twelve months provide
that Tenant is not in default under the terms of this Lease as
described herein and upon first giving Landlord ninety (90)
days written notice of its intent to terminate and upon
payment of a twenty thousand ($20,000.00) dollar termination
fee.
4. RENT
Tenant will pay Landlord the sum of $16.00 per square foot during the
first year of the Lease and $20.00 per square foot during the second year
(the "Monthly Rent") in equal consecutive monthly installments on or before
the first day of each month during the term of this Lease. The Monthly Rent
will be paid in advance at the address specified for Landlord in paragraph
23(f) or such other place as Landlord designates, without prior demand and
without any abatement, deduction or set off. If the commencement date occurs
on a day other than the first day of a calendar month, or if the expiration
date occurs on a day other than the last day of a calendar month, then the
monthly rent for the fractional month will be prorated on a daily basis.
5. TAXES
Obligation for Payment. Landlord will pay all real estate taxes and
assessments assessed, levied, confirmed, or imposed during the term of this
Lease, against the Premises. Tenant shall be obligated to pay all personal
property taxes. Tenant shall be responsible for paying any state sales tax.
6. UTILITIES
Tenant will pay one half of Landlords' expenses for all, electricity,
light, heat, power used by Tenant to the premises during the term, whether or
not the services are billed directly to Tenant. Landlord will furnish to Tenant
a copy of the prior monthly utility xxxx for payment. Payment shall be made
within ten days (10) of presentment. Tenant will also procure, or cause to be
procured, without cost to Landlord, any and all necessary permits, licenses, or
other authorizations required for the lawful and proper use of the premises by
Tenant. Landlord, upon request of Tenant, and at the sole expense and liability
of Tenant, will join with Tenant in any application required for obtaining or
continuing any of the services. All other services necessary or required by
Tenant, including but not limited to janitorial service to the Premises, office
maintenance, shall be the responsibility of Tenant. Landlord shall incur the
cost of all common area maintenance expenses.
7. INSURANCE
(a) "All-Risk" Coverage. Tenant will, at its sole expense, obtain and
keep in force, during the term of this Lease, "all-risk" coverage insurance
(including wind and flood insurance) naming Landlord and Tenant as their
interests may appear and other parties that Landlord or Tenant may designate
as additional insures in the customary form in the City of Boca Raton for
buildings and improvements of similar character, on all buildings and
improvements now or after this date located on the premises. Landlord and
Tenant agree that the value of the existing building on the premises is Five
Hundred Thousand and No\100 Dollars ($500,000.00).
(b) General Liability. Tenant will, at its sole expense, obtain and
keep in force during the term of this Lease commercial general liability
insurance with a combined single limit of not less than Five Hundred Thousand
Dollars ($500,000.00) for injury to or death of any one person, for injury to
or death of any number of persons in one occurrence, and for damage to
property, insuring
against any and all liability of Landlord and Tenant, including without
limitation coverage for contractual liability, broad form property damage, and
non-owned automobile liability, with respect to the premises or arising out of
the maintenance, use, or occupancy of the premises. The insurance will insure
the performance by Tenant of the indemnity agreement as to liability for injury
to or death of persons and damage to property set forth in paragraph 18. The
insurance will be noncontributing with any insurance that may be carried by
Landlord and will contain a provision that Landlord, although named as an
insured, will nevertheless be entitled to recover under the policy for any
loss, injury, or damage to Landlord, its agents, and employees, or the property
of such persons.
(c) Other Matters. All insurance required in this paragraph and all
renewals of it will be issued by companies authorized to transact business in
the State of Florida, and rated at least A+ Class X by Best's Insurance Reports
(property liability) or approved by Landlord. All insurance policies will be
subject to approval by Landlord and any lender as to form and substance; will
expressly provide that the policies will not be canceled or altered without
(30) days' prior written notice to Landlord and any Lender, in the case of
"all-risk" coverage insurance, and to Landlord, in the case of general
liability insurance; and will, to the extent obtainable, provide that no act or
omission of Tenant which would otherwise result in forfeiture or reduction or
the insurance will affect or limit the obligation of the insurance company to
pay the amount of any loss sustained. Tenant may satisfy its obligation under
this paragraph by appropriate endorsements of its blanket insurance policies.
(d) Additional Insures. All policies of liability insurance that
Tenant is obligated to maintain according to this Lease (other than any
policy of workmen's compensation insurance) will name Landlord and such other
persons or firms as Landlord specifies from time to time as additional
insures. Original or copies of original policies (together with copies of the
endorsements naming Landlord, and any others specified by Landlord, as
additional insures) and evidence of the payment of all premiums of such
policies will be delivered to Landlord prior to Tenant's occupancy of the
premises and from time to time at least thirty (30) days prior to the
expiration of the term of each policy. All public liability, property damage
liability, and casualty policies maintained by Tenant will be written as
primary policies, not contributing with and not in excess of coverage that
Landlord may carry. No insurance required to be maintained by tenant by this
paragraph will be subject to any deductible without Landlord's prior written
consent.
8. USE
The premises will be used only for GENERAL OFFICE and no other purpose.
Any other use of the premises without Landlord's consent shall be deem a
default under this lease and Landlord shall avail itself to the default
remedies of paragraph 22 herein.
9. COMPLIANCE WITH LAWS
(a) Tenant's Obligations. Tenant will not use or occupy, or permit
any portion of the premises to be used or occupied:
(1) in violation of any law, ordinance, order, rule,
regulation, certificate of
occupancy, or other governmental requirement;
(2) for any disreputable business or purpose; or
(3) in any manner or for any business or purpose that creates
risk of fire or other hazards, or that would in any way violate, suspend,
void, or increase the rate of fire or liability or any other insurance of any
kind at any time carried by Landlord upon all or any part of the building
in which the premises are located or its contents.
Tenant will comply with all laws, ordinances, orders, rules, regulations, and
other governmental requirements relating to the use, condition, or occupancy
of the premises, and all rules, orders, regulations, and requirements of the
board of fire underwriters or insurance service office, or any other similar
body, having jurisdiction over the building in which the premises are located.
Landlord represents that to the best of Landlord's knowledge no current
environmental problems exist.
(b) Tenant's Obligations with Respect to Environmental Laws.
(1) Tenant and the premises will remain in compliance with all
applicable laws, ordinances, and regulations (including consent decrees and
administrative orders) relating to public health and safety and protection of
the environment, including those statutes, laws, regulations, and ordinances
identified in subparagraph (7), all as amended and modified from time to time
(collectively, "environmental laws"). All governmental permits relating to
the use or operation of the premises required by applicable environmental
laws are and will remain in effect, and tenant will comply with them.
(2) Tenant will not permit to occur any release, generation,
manufacture, storage, treatment, transportation, or disposal of "hazardous
material," as that term is defined in subparagraph (7), on, in, under, or from
the premises. Tenant will promptly notify Landlord, in writing, if Tenant has
or acquires notice or knowledge that any hazardous material has been or is
threatened to be released, discharged, disposed or, transported, or stored on,
in, under, or from the premises; and if any hazardous material is found on the
premises, Tenant, at its own cost and expense, will immediately take such
action as is necessary to detain the spread of and remove the hazardous
material to the complete satisfaction of Landlord and the appropriate
governmental authorities.
(3) Tenant will immediately notify Landlord and provide copies
upon receipt of all written complaints, claims, citations, demands, inquiries,
reports, or notices relating to the condition of the premises or compliance
with environmental laws. Tenant will promptly cure and have dismissed with
prejudice any of those actions and proceedings to the satisfaction of Landlord.
Tenant will keep the premises free of any lien imposed pursuant to any
environmental laws.
(4) Landlord will have the right at all reasonable times and
from time to time to conduct environmental audits of the premises, and Tenant
will cooperate in the conduct of those audits. The audits will be conducted
by a consultant of Landlord's choosing, and if any hazardous
material is detected or if a violation of any of the warranties,
representations, or covenants contained in this paragraph is discovered, the
fees and expenses of such consultant will be borne by Tenant and will be paid
as additional rent under this Lease on demand by Landlord.
(5) If Tenant fails to comply with any of the foregoing
warranties, representations, and covenants, Landlord may cause the removal
(or other cleanup acceptable to Landlord) of any hazardous material from the
premises. The costs of hazardous material removal and any other cleanup
(including transportation and storage costs) will be additional rent under
this Lease, whether or not a court has ordered the cleanup, and those costs
will become due and payable on demand by Landlord. Tenant will give Landlord,
its agents, and employees access to the premises to remove or otherwise clean
up any hazardous material. Landlord, however, has no affirmative obligation
to remove or otherwise clean up any hazardous material, and this Lease will
not be construed as creating any such obligation.
(6) Tenant agrees to indemnify, defend (with counsel reasonably
acceptable to Landlord and at Tenant's sole cost), and hold Landlord and
Landlord's affiliates, shareholders, directors, officers, employees, and agents
free and harmless from and against all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits,
proceedings, damages (including consequential damages), disbursements, or
expenses of any kind (including attorneys' and experts' fees and expenses and
fees and expenses incurred in investigating, defending, or prosecuting any
litigation, claim, or proceeding) that may at any time be imposed upon,
incurred by, or asserted or awarded against Landlord or any of them in
connection with or arising from or out of:
(A) any hazardous material on, in, or affecting all or any
portion of the premises;
(B) any misrepresentation, inaccuracy, or breach or any
warranty, covenant, or agreement contained or referred to in this paragraph;
(C) any violation or claim of violation by Tenant of any
environmental law; or
(D) the imposition of any lien for the recovery of any costs
for environmental cleanup or other response costs relating to the release or
threatened release of hazardous material.
This indemnification is the personal obligation of Tenant and will survive
termination of this Lease. Tenant, its successors, and assigns waive,
release, and agree not to make any claim or bring any cost recovery action
against Landlord under CERCLA, as that term is defined in subparagraph (7), or
any state equivalent or any similar law now existing or enacted after this
date. To the extent that Landlord is strictly liable under any such law,
regulation, ordinance, or requirement, Tenant's obligation to Landlord under
this indemnity will also be without regard to fault on the part of Tenant
with respect to the violation or condition that results in liability to
Landlord.
(7) For purposes of this Lease, "hazardous material" means:
(A) "hazardous substances" or "toxic substances" as those
terms are defined by
the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. # 9601, et seq., or the Hazardous Materials Transportation
Act, 49 U.S.C. # 1802, both as amended to this date and as amended after this
date;
(B) "hazardous wastes," as that term is defined by the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. # 6902, et seq., as
amended to this date and as amended after this date;
(C) any pollutant, contaminant, or hazardous, dangerous, or
toxic chemical, material, or substance within the meaning of any other
applicable federal, state, or local law, regulation, ordinance, or
requirement (including consent decrees and administrative orders) relating to
or imposing liability or standards of conduct concerning any hazardous,
toxic, or dangerous waste substance or material, all as amended to this date
or as amended after this date;
(D) crude oil or any fraction of it that is liquid at standard
conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds
per square inch absolute);
(E) any radioactive material, including any source, special
nuclear, or by-product material as defined at 42 U.S.C. # 2011, et seq., as
amended to this date or as amended after this date;
(F) asbestos in any form or condition; and
(G) polychlorinated biphenyls (PCB's) or substances or
compounds containing PCB's.
10. ASSIGNMENTS AND SUBLEASES
Without Landlord's prior written consent, which Landlord agrees will not
be unreasonably withheld or delayed, Tenant will neither assign this Lease in
whole or in part nor sublease all or part of the premises.
11. REPAIRS AND MAINTENANCE
Tenant will, at is sole cost and expense, maintain the premises and make
repairs, restorations, replacements and build out to the Lease Space, to suit
Tenant's use under this Lease and to preserve them in good working order and
condition and regardless of whether the repairs, restorations, and
replacements are ordinary or extraordinary, foreseeable or unforeseeable, or
the fault or not the fault of Tenant, its agents, employees, invitees,
visitors, or contractors. All repairs, restorations, and replacements will be
in quality and class equal to the original work or installations. If Tenant
fails to make repairs, restorations, or replacements, Landlord may make them
at the expense of Tenant and the expense will be collectible as additional
rent to be paid by Tenant within fifteen (15) days after delivery of a
statement for the expense. In the event any repair is required pursuant to
this paragraph 11, and said repair inures to the benefit of Landlord as well
as Tenant, Tenant shall only be liable for Tenant's prorata share of said
expense. Landlord shall contribute its
prorata share as may be necessary.
12. ALTERATIONS
Tenant will not make any alterations, additions, or improvements to the
premises without Landlord's prior written consent; however, Landlord's prior
written consent will not be necessary for any alteration, addition, or
improvement which:
(a) costs less than Five Thousand Dollars ($5,000.00)
including labor and materials;
(b) does not change the general character of the premises, or
reduce the fair market value of the premises below its fair market value
prior to the alteration, addition, or improvement;
(c) is made with due diligence, in a good and workmanlike
manner, and in compliance with the laws, ordinances, orders, rules,
regulations, certificates of occupancy, or other governmental requirements
described in paragraph 9;
(d) is promptly and fully paid for by Tenant; and
(e) is made under the supervision of an architect or engineer
reasonably satisfactory to Landlord and in accordance with plans and
specifications and cost estimates approved by Landlord.
Landlord may designate a supervising architect to assure compliance with
the provisions of this paragraph, and if it does, Tenant will pay the
supervising architect's charges. Subject to Tenant's rights in paragraph 13,
all alterations, additions, fixtures, and improvements, whether temporary or
permanent in character, made in or upon the premises by Tenant, will
immediately become Landlord's property and at the end of the term of this
Lease will remain on the premises without compensation to Tenant. By notice
given to Tenant no less than ninety (90) days prior to the end of this Lease,
Landlord may require that any alterations, additions, fixtures, and
improvements made in or upon the premises be removed by Tenant. In that
event, Tenant will remove the alterations, additions, fixtures, and
improvements at Tenant's sole cost and will restore the premises to the
condition in which they were before the alterations, additions, improvements,
and additions were made, reasonable wear and tear excepted.
13. END OF TERM
At the end of this Lease, Tenant will surrender the premises in good
order and condition, ordinary wear and tear excepted. If Tenant is not then
in default, Tenant may remove from the premises any trade fixtures, equipment,
and movable furniture placed in the premises by Tenant, whether or not the
trade fixtures or equipment are fastened to the building. Tenant will not
remove any trade fixtures or equipment without Landlord's prior written
consent if the trade fixtures or equipment are used in the operation of the
building, provided by Landlord to Tenant under this lease
or if the removal of the fixtures or equipment will impair the structure of
the building. Whether or not Tenant is then in default, Tenant will remove
alterations, additions, improvements, trade fixtures, equipment, and
furniture that Landlord has requested to be removed in accordance with
paragraph 12. Tenant will fully repair any damage occasioned by the removal
of any trade fixtures, equipment, furniture, alterations, additions, and
improvements. All trade fixtures, equipment, furniture, alterations,
additions, and improvements not so removed will conclusively be deemed to
have been abandoned by Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without notice to Tenant or
to any other person and without obligation to account for them. Tenant will
pay Landlord all expenses incurred in connection with Landlord's disposition
of such property, including without limitation the cost of repairing any
damage to the building or premises caused by removal of the property.
Tenant's obligation to observe and perform this covenant will survive the end
of this Lease.
14. DAMAGE AND DESTRUCTION
(a) General. If the premises are damaged or destroyed by reason of fire
or any other Tenant related cause, Tenant will immediately notify Landlord
and will promptly repair or rebuild the building at Tenant's expense, so as
to make the building at least equal in value to the building existing
immediately prior to the occurrence and as nearly similar to it in character as
is practicable and reasonable. Landlord will apply and make available to pay
to Tenant the net proceeds of any fire or other casualty insurance paid to
Landlord, after deduction of any costs of collection, including attorneys'
fees, for repairing or rebuilding as the same progresses. Payments will be
made against properly certified vouchers of a competent architect in charge
of the work and approved by Landlord. Landlord will contribute, out of the
insurance proceeds, towards each payment to be made by or on behalf of Tenant
for the repairing or rebuilding of the building, under a schedule of payments
to be made by Tenant and not unreasonably objected to by Landlord, an amount
in the proportion to the payment by Tenant as the total net amount received
by Landlord from insurers bears to the total estimated cost of the rebuilding
or repairing. Landlord, however, may withhold from each amount so to be paid by
Landlord fifteen percent (15%) of the amount until the work of repairing or
rebuilding is completed and proof has been furnished to Landlord that no lien
or liability has attached or will attach to the premises or to Landlord in
connection with the repairing or rebuilding. Upon the completion of rebuilding
and the furnishing of that proof, the balance of the net proceeds of the
insurance will be paid to Tenant. If the proceeds of insurance are paid to
the holder of any mortgage on Landlord's interest in the premises, Landlord
will make available net proceeds of the insurance in accordance with the
provisions of this paragraph. Before beginning repairs or rebuilding, or
letting any contracts in connection with repairs or rebuilding, Tenant will
submit for Landlord's approval, which approval Landlord will not unreasonably
withhold or delay, complete and detailed plans and specifications for the
repairs or rebuilding. Promptly after receiving Landlord's approval of those
plans and specifications, Tenant will begin the repairs or rebuilding and will
prosecute the repairs or rebuilding to completion with diligence, subject,
however, to strikes, lockouts, acts of God, embargoes, governmental
restrictions, and other causes beyond Tenant's reasonable control. Tenant
will obtain and deliver to Landlord a temporary or final certificate of
occupancy before the premises are reoccupied for any purpose. The repairs or
rebuilding will be completed free and clear of mechanics' or other liens, and
in accordance with the building codes and all applicable laws, ordinances,
regulations, or orders of any state, municipal, or other public
authority affecting the repairs or rebuilding, and also in accordance with all
requirements of the insurance rating organization, or similar body, and of
any liability insurance company insuring Landlord against liability for
accidents related to the premises. Any remaining proceeds of insurance after
the restoration will be Tenant's property.
In the event that Tenant's Leases Space is damaged due to the actions of
Landlord, its agent, licenses, invitees or guest, Tenant shall be entitled to
a rent abatement for the period of time in which Tenant is prevented for the
use of the Lease Space. In addition, Landlord shall restore the Lease Space
to the condition in which Tenant occupied prior to the damage, reasonable wear
and tear excepted.
(b) Landlord's Inspection. During the progress of repairs or
rebuilding, Landlord and its architects and engineers may from time to time
inspect the building and will be furnished, if required by them, with copies
of all plans, shop drawings, and specifications relating to the repairs or
rebuilding. Tenant will keep all plans, shop drawings, and specifications at
the building, and Landlord and its architects and engineers may examine them
at all reasonable times. If, during repairs or rebuilding, Landlord and its
architects and engineers may examine them at all reasonable times. If, during
repairs or rebuilding, Landlord and its architects and engineers determine
that the repairs or rebuilding are not being done in accordance with the
approved plans and specifications, Landlord will give prompt notice in
writing to Tenant, specifying in detail the particular deficiency, omission,
or other respect in which Landlord claims the repairs or rebuilding do not
accord with the approved plans and specifications. Upon the receipt of that
notice, Tenant will cause corrections to be made to any deficiencies,
omissions, or such other respect. Tenant's obligations to supply insurance
according to paragraph 7 will be applicable to any repairs or building under
this paragraph.
(c) Landlord's Costs. The charges of any architect or engineer of
Landlord employed to pass upon any plans and specifications and to supervise
and approve any construction, or for any services rendered by the architect
or engineer to Landlord as contemplated by any of the provisions of this
Lease, will be paid by Tenant as a cost of the repair or rebuilding. The fees
of such architect or engineer will be those customarily paid for comparable
services.
(d) No Rent Abatement. Monthly rent and additional rent will not xxxxx
pending the repairs or rebuilding except to the extent to which Landlord
receives a net sum as proceeds of any rent insurance.
15. CONDEMNATION
(a) Total Taking. If, by exercise of the right of eminent domain or by
conveyance made in response to the threat of the exercise of such right (in
either case a "taking"), all of the premises are taken, or if so much of the
premises are taken that the premises (even if the restorations described in
paragraph 15(b) were to be made) cannot be used by Tenant for the purposes
for which they were used immediately before the taking, this Lease will end
on the earlier of the vesting of title to the premises in the condemning
authority or the taking of possession of the premises by the condemning
authority (in either case the "ending date"). If this Lease ends according to
this paragraph 15(a), prepaid rent will be appropriately prorated to the
ending date. The award in a taking subject to this paragraph 15(a) will be
allocated according to paragraph 15(d).
(b) Partial Taking. If, after a taking, so much of the premises remains
that the premises can be used for substantially the same purposes for which
they were used immediately before the taking:
(1) this Lease will end on the ending date as to the part of the
premises which is taken;
(2) prepaid rent will be appropriately allocated to the part of
the premises which is taken and prorated to the ending date;
(3) beginning on the day after the ending date, rent for so much
of the premises as remains will be reduced in the proportion of the floor
area of the building remaining after the taking to the floor area of the
building before the taking;
(4) at its cost, Tenant will restore so much of the premises as
remains to a sound architectural unit substantially suitable for the purposes
for which it was used immediately before the taking, using good workmanship
and new first class materials, all according to paragraph 12;
(5) upon the completion of restoration according to clause (6),
Landlord will pay Tenant the lesser of the net award made to Landlord on
account of the taking (after deducting from the total award attorneys',
appraisers', and other costs incurred in connection with obtaining the award,
and amounts paid to the holders of mortgages affecting the premises), or
Tenant's actual out-of-pocket cost of restoring the premises; and
(6) Landlord will keep the balance of the net award.
(c) Tenant's Award. In connection with any taking subject to paragraph
15(a) or 15(b), Tenant may prosecute its own claim by separate proceedings
against the condemning authority for damages legally due to it (such as the
loss of fixtures which Tenant was entitled to remove and moving expenses)
only so long as Tenant's award does not diminish or otherwise adversely
affect Landlord's award.
(d) Allocation of an Award for a Total Taking. If this Lease ends
according to paragraph 15(a), the condemnation award will be paid in the
order in this paragraph 15(d) to the extent it is sufficient:
(1) First, Landlord will be reimbursed for its attorneys' fees,
appraisal fees, and other costs incurred in prosecuting the claim for the
award.
(2) Second, any lender whose loan is secured by the premises will
be paid the principal balance of its loan, plus accrued and unpaid interest,
and any other charges due on payment.
(3) Third, Landlord will be paid the value at the time of the award
of lost rent and the reversion to the extent they exceed the amount paid to
Landlord's lender.
(4) Fourth, Tenant will be paid its adjusted book value as of the
date of the taking of its improvements (excluding trade fixtures) made to the
premises. In computing its adjusted book value, improvements will be
conclusively presumed to have been depreciated or amortized for federal income
tax purposes over their useful lives with a reasonable salvage value.
(5) Fifth, the balance will be divided equally between Landlord and
Tenant.
16. SUBORDINATION
(a) General. This Lease and Tenant's rights under this Lease are
subject and subordinate to any ground Lease or underlying Lease, first
mortgage, first deed of trust, or other first lien encumbrance or indenture,
together with any renewals, extensions, modifications, consolidations, and
replacements of them, which now or at any subsequent time affect the
premises, any interest of Landlord in the premises, or Landlord's interest in
this Lease and the estate created by this Lease (except to the extent that any
such instrument expressly provides that this Lease is superior to it). This
provision will be self-operative and no further instrument of subordination
will be required in order to effect it. Nevertheless, Tenant will execute,
acknowledge and deliver to Landlord, at any time and from time to time, upon
demand by Landlord, any documents as may be requested by Landlord, any ground
Landlord or underlying lessor, or any mortgagee, or any holder of a deed of
trust or other instrument described in this paragraph, to confirm or effect
the subordination. If Tenant fails or refuses to execute, acknowledge, and
deliver any such document within twenty (20) days after written demand,
Landlord, its successors, and assigns will be entitled to execute,
acknowledge, and deliver the document on behalf of Tenant as Tenant's as
attorney-in-fact. Tenant constitutes and irrevocably appoints Landlord, its
successors, and assigns, as Tenant's attorney-in-fact to execute,
acknowledge, and deliver on behalf of Tenant any documents described in this
paragraph.
(b) Attornment. If any holder of any mortgage, indenture, deed of
trust, or other similar instrument described in subparagraph (a) succeeds to
Landlord's interest in the premises, Tenant will pay to it all rents
subsequently payable under this Lease. Tenant will, upon request of anyone so
succeeding to the interest of Landlord, automatically become the Tenant of,
and attorn to, the successor in interest without change in this Lease. The
successor in interest will not be bound by (1) any payment of rent for more
than one month in advance, (2) any amendment or modification of this Lease
made without its written consent, (3) any claim against Landlord arising
prior to the date on which the successor succeeded to Landlord's interest, or
(4) any claim or offset of rent against the Landlord. Upon request by the
successor in interest and without cost to Landlord or the successor in
interest, Tenant will execute, acknowledge, and deliver an instrument or
instruments confirming the attornment. The instrument to attornment will also
provide that the successor in interest will not disturb Tenant in its use of
the premises in accordance with this Lease. If Tenant fails or refuses to
execute, acknowledge, and deliver the instrument within twenty (20) days
after written demand, the successor in interest will be entitled to execute,
acknowledge, and deliver the document on behalf of Tenant as Tenant's as
attorney-in-fact. Tenant constitutes and irrevocably appoints the successor
in interest as Tenant's attorney-in-fact to execute, acknowledge, and deliver
on behalf of Tenant any document described in this paragraph.
17. LANDLORD'S ACCESS
Landlord, its agents, employees, and contractors may enter the premises
at any time in response to an emergency, and at reasonable hours with notice,
to (a) inspect the premises, (b) exhibit the premises to prospective
purchasers, lenders, or Tenants within the last 90 days of the Lease, (c)
determine whether Tenant is complying with its obligations in this Lease, (d)
supply any other service which this Lease requires Landlord to provide, (e)
post notices of nonresponsibility or similar notices, or (f) make repairs
which this Lease requires Landlord to make; however, all work will be done as
promptly as reasonably possible and so as to cause as little interference to
Tenant as reasonably possible. Tenant waives any claim on account of any
injury or inconvenience to Tenant's business, interference with Tenant's
business, loss of occupancy or quiet enjoyment of the premises, or any other
loss occasioned by the entry. Landlord will at all times have a key with
which to unlock all of the doors in the premises (excluding Tenant's vaults,
safes, and similar areas designed in writing by Tenant in advance). Landlord
will have the right to use any means Landlord may deem proper to open doors
in the premises and to the premises in an emergency in order to enter the
premises. No entry to the premises by Landlord by any means will be a
forcible or unlawful entry into the premises or a detainer of the premises or
an eviction, actual or constructive, of Tenant from the premises, or any part
of the premises, nor will any entry entitle Tenant to damages or an abatement
of rent or other charges which this Lease requires Tenant to pay. Landlord
agrees to provide to Tenant 24 hour, 7 days a week access to the Premises,
unless prohibited by an emergency, act of God or other such circumstances
beyond Landlord's control.
18. INDEMNIFICATION, WAIVER AND RELEASE
(a) Indemnification. Tenant will indemnify Landlord, its agents, and
employees against, and hold Landlord, its agents, and employees harmless from,
any and all demands, claims, causes of action, fines, penalties, damages
(including consequential damages), losses, liabilities, judgments, and
expenses (including without limitation attorneys' fees and court costs)
incurred in connection with or arising from:
(1) the use or occupancy of the premises by Tenant or any person
claiming under Tenant;
(2) any activity, work, or thing done or permitted or suffered by
Tenant in or about the premises;
(3) any acts, omissions, or negligence of Tenant, any person
claiming under Tenant, or the employees, agents, contractors, invitees, or
visitors of Tenant or any person;
(4) any breach, violation, or nonperformance by Tenant, any person
claiming under Tenant, or the employees, agents, contractors, invitees, or
visitors of Tenant, or any person of any term, covenant, or provision of this
Lease or any law, ordinance, or governmental requirement of any kind; or
(5) except for loss of use of all or any portion of the premises
or Tenant's property
located within the premises that is proximately caused by or results
proximately from the negligence of Landlord, any injury or damage to the
person, property, or business of Tenant or its employees, agents,
contractors, invitees, visitors, or any other person entering upon the
premises under the express or implied invitation of Tenant.
If any action or proceeding is brought against Landlord, its employees, or
agents by reason of any claim, Tenant, upon notice from Landlord, will
defend the claim at Tenant's expense with counsel reasonably
satisfactory to Landlord.
(b) Waiver and Release. Tenant waives and releases all claims against
Landlord, its employees, and agents with respect to all matters for which
Landlord has disclaimed liability pursuant to the provisions of this Lease.
In addition, Tenant agrees that Landlord, its agents, and employees will not
be liable for any loss, injury, death, or damage (including consequential
damages) to persons, property, or Tenant's business occasioned by theft; act
of God; public enemy; injunction; riot; strike; insurrection; war; court
order; requisition; order of governmental body or authority; fire; explosion;
falling objects; steam, water, rain or snow; leak or flow of water (including
water from the elevator system), rain or snow from the premises or into the
premises or from the roof, street, subsurface, or from any other place, or
by dampness, or from the breakage, leakage, obstruction, or other defects of
the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or
lighting fixtures of the building; or from construction, repair, or
alteration of the premises or from any acts or omissions of any visitor of
the premises; or from any cause beyond Landlord's control.
(c) Indemnification. Landlord will indemnify Tenant against, and hold
Tenant harmless from, any and all demands, claims, causes of action, fines,
penalties, damages, losses, liabilities, judgments, and expenses (including
without limitation attorneys' fees and court costs) incurred in connection
with or arising from:
(1) any acts, omissions, or negligence of Landlord, any person
claiming under Landlord, or the employees, agents, contractors, invitees, or
visitors of Landlord or any person;
(2) any breach, violation, or nonperformance by Landlord, any
person claiming under Landlord, or the employees, agents, contractors,
invitees, or visitors of Landlord, or any person of any term, covenant, or
provision of this Lease or any law, ordinance, or governmental requirement of
any kind; or
(3) except for loss of use of all or any portion of the premises
or Tenant's property located within the premises that is proximately caused
by or results proximately from the negligence of Landlord, any injury or
damage to the person, property, or business of Tenant or its employees,
agents, contractors, invitees, visitors, or any other person entering upon
the premises under the express or implied invitation of Tenant.
19. SECURITY DEPOSIT
Tenant has deposited the sum of Twenty-Four Thousand Five Hundred Thirty
Three Dollars and 33/100, ($24,533.33) with Landlord as advance rent and for
the first four months (4) of this
Lease, the sum of Seven Thousand Six Hundred Sixty-Six Dollars and 66/100
($7,666.66) as security deposit for Tenant's performance of rent and other
obligations under this Lease, and any renewals or extensions of this Lease.
If Tenant defaults in its payment of rent or performance of its other
obligations under this Lease, Landlord may use all or part of the advance
rent or security deposit for the payment of rent or any other amount in
default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default, or for the payment
to Landlord of any other loss or damage which Landlord may suffer by reason
of Tenant's default. If Landlord so uses any portion of the security deposit,
Tenant will restore the security deposit to its original amount within five
(5) days after written demand from Landlord. Landlord will not be required to
keep the security deposit separate from its general funds, and Tenant will
not be entitled to interest on the security deposit. The security deposit
will not be a limitation on Landlord's damages or other rights under this
Lease, or a payment of liquidated damages, or an advance payment of the rent.
If Tenant pays the rent and performs all of its other obligations under this
Lease, Landlord will return the unused portion of the security deposit to
Tenant within sixty (60) days after the end of the term; however, if Landlord
has evidence that the security deposit has been assigned to an assignee of
the Lease, Landlord will return the security deposit to the assignee.
Landlord may deliver the security deposit to the purchaser of the premises
and be discharged from further liability with respect to it.
20. COVENANT OF QUIET ENJOYMENT
So long as Tenant pays the rent and performs all of its obligations in
this Lease, Tenant's possession of the premises will not be disturbed by
Landlord, or anyone claiming by, through or under Landlord, or by the holders
of the mortgages described in paragraph 16.
21. LIMITATION ON TENANT'S RECOURSE
Tenant's sole recourse against Landlord, and any successor to the
interest of Landlord in the premises, is to the interest of Landlord, and any
successor, in the premises. Tenant will not have any right to satisfy any
judgment which it may have against Landlord, or any successor, from any other
assets of Landlord, or any successor.
In this paragraph the terms "Landlord" and "successor" include the
shareholders, venturers, and partners of Landlord and successor and the
officers, directors, and employees of Landlord and successor. The provisions
of this paragraph are not intended to limit Tenant's right to seek injunctive
relief or specific performance, or Tenant's right to claim the proceeds of
insurance (if any) specifically maintained by Landlord for Tenant's benefit.
22. DEFAULT
(a) Cure. If Tenant fails to pay when due amounts payable under this
Lease or to perform any of its other obligations under this Lease within the
time permitted for its performance, then Landlord, after ten (10) days'
written notice to Tenant (or, in case of any emergency, upon notice or
without notice as may be reasonable under the circumstances) and without
waiving any of its rights under this Lease, may (but will not be required to)
pay the amount or perform the obligation.
All amounts so paid by Landlord and all costs and expenses incurred by
Landlord in connection with the performance of any obligations (together with
interest at the prime rate from the date of Landlord's payment of the amount
or incurring of each cost or expense until the date of full repayment by
Tenant) will be payable by Tenant to Landlord on demand. In the proof of any
damages that Landlord may claim against Tenant arising out of Tenant's
failure to maintain insurance, Landlord will not be limited to the amount of
the unpaid insurance premium but will also be entitled to recover as damages
for the breach the amount of any uninsured loss (to the extent of any
deficiency in the insurance required by the provisions of this Lease),
damages, costs and expenses of suit, including attorneys' fees, arising out of
damage to, or destruction of, the premises occurring during any period for
which Tenant has failed to provide the insurance.
(b) Events of Default. The following occurrences are "events of default":
(1) Tenant defaults in the due and punctual payment of rent, and
the default continues for five (5) days after written notice from Landlord;
however, Tenant will not be entitled to more than two (2) notices for default
in payment of rent during any twelve-month period, and if, within twelve (12)
months after any notice, any rent is not paid when due, an event of default
will have occurred without further notice;
(2) Tenant vacates or abandons the premises and has failed to pay
rent;
(3) This Lease or the premises or any part of the premises is taken
upon execution or by other process of law directed against Tenant, or is
taken upon or subjected to any attachments by any creditor of Tenant or
claimant against Tenant, and the attachment is not discharged within fifteen
(15) days after its levy;
(4) Tenant files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States
or under any insolvency act of any state, or is dissolved, or makes an
assignment for the benefit of creditors;
(5) Involuntary proceedings under any bankruptcy laws or insolvency
act or for the dissolution of Tenant are instituted against Tenant, or a
receiver or trustee is appointed for all or substantially all of Tenant's
property, and the proceeding is not dismissed or the receivership or
trusteeship is not vacated within sixty (60) days after institution or
appointment;
(6) Tenant fails to take possession of the premises on the
commencement date of the term; or
(7) Tenant breaches any of the other agreements, terms, covenants,
or conditions that this Lease requires Tenant to perform, and the breach
continues for a period of thirty (30) days after written notice by Landlord
to Tenant.
(c) Remedies. If any one or more events of default set forth in
paragraph 22(b) occurs, then Landlord may, at its election, either:
(1) give Tenant written notice of its intention to terminate this
Lease on the date of the notice or on any later date specified in the notice,
and, on the date specified in the notice, Tenant's right to possession of the
premises will cease and the Lease will be terminated, except as to Tenant's
liability set forth in this paragraph 22(c)(1), as if the date fixed in the
notice were the end of the term of this Lease. If this Lease is terminated
pursuant to the provisions of this subparagraph (1), Tenant will remain liable
to Landlord for damages in an amount equal to the rent and other sums that would
have been owing by Tenant under this Lease for the balance of the term if this
Lease had not been terminated, less the net proceeds, if any, of any reletting
of the premises by Landlord subsequent to the termination, after deducting all
Landlord's expenses in connection with reletting, including without limitation
the expenses set forth in paragraph 22(c)(2). Landlord will be entitled to
collect damages from Tenant monthly on the days on which the rent and other
amounts would have been payable under this Lease if this Lease had not been
terminated, and Landlord will be entitled to receive damages from Tenant on each
day. Alternatively, at the option of Landlord, if this Lease is terminated,
Landlord will be entitled to recover from Tenant: or;
(2) without demand or notice, re-enter and take possession of the
premises or any part of the premises; repossess the premises as of the
Landlord's former estate; expel the Tenant from the premises and those
claiming through or under Tenant; and remove the effects of both or either,
without being deemed guilty of any manner of trespass and without prejudice
to any remedies for arrears of rent or preceding breach of covenants or
conditions. If Landlord elects to re-enter as provided in this paragraph
22(c)(2), or if Landlord takes possession of the premises pursuant to legal
proceedings or pursuant to any notice provided by law, Landlord may, from
time to time, without terminating this Lease, relet the premises or any part
of the premises, either alone or in conjunction with other portions of the
building of which the premises are a part, in Landlord's or Tenant's name but
for the account of Tenant, for the term or terms (which may be greater or
less than the period which would otherwise have constituted the balance of
term of this Lease) and on such terms and conditions (which may include
concessions of free rent, and the alteration and repair of the premises) as
Landlord, in its uncontrolled discretion, may determine. Landlord may collect
and receive the rents for the premises. Landlord will not be responsible or
liable for any failure to relet the premises, or any part of the premises, or
for any failure to collect any rent due upon reletting. No re-entry or taking
possession of the premises by Landlord will be construed as an election on
Landlord's part to terminate this Lease unless a written notice of the
intention is given to Tenant. No notice from Landlord under this Lease or
under a forcible entry and detainer statute or similar law will constitute an
election by Landlord to terminate this Lease unless the notice specifically
says so. Landlord reserves the right following any re-entry or reletting, or
both, to exercise its right to terminate this Lease by giving Tenant written
notice, and in that event the Lease will terminate as specified in the
notice. If Landlord elects to take possession of the premises according to
this paragraph 22(c)(2) without terminating the Lease, Tenant will pay
Landlord the rent and other sums which would be payable under this Lease if
the repossession had not occurred, less the net proceeds, if any, of any
reletting of the premises after deducting all of Landlord's expenses incurred
in connection with the reletting, including without limitation all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration, remodeling and repair costs, and expenses
of preparation for the reletting. If, in connection with any reletting, the
new Lease term extends beyond the existing term, or the premises covered by
the reletting include areas that are not part of the premises, a fair
apportionment of the rent received from the reletting and the expenses
incurred in
connection with the reletting will be made in determining the net proceeds
received from reletting. In addition, in determining the net proceeds from
reletting, any rent concessions will be apportioned over the term of the new
Lease. Tenant will pay the amounts to Landlord monthly on the days on which
the rent and all other amounts owing under this Lease would have been payable
if possession had not retaken, and Landlord will be entitled to receive the
rent and other amounts from Tenant on each day.
(a) The decision of the arbitrators will be final and
non-appealable, and may be enforced according to the laws of the State of
Florida.
23. MISCELLANEOUS
(a) Recordation. Tenant's recordation of this Lease or any
memorandum or short form of it will be void and a default under this Lease.
(b) Holding Over. If Tenant remains in possession of the premises
after the end of this Lease, Tenant will occupy the premises as a Tenant from
month to month, subject to all conditions, provisions, and obligations of
this Lease in effect on the last day of the term.
(c) Estoppel Certificates. Within no more than Thirty (30) days
after written request by Landlord, Tenant will execute, acknowledge, and
deliver to Landlord a certificate stating:
(1) that this Lease is unmodified and in full force and
effect, or, if the Lease is modified, the way in which it is modified
accompanied by a copy of the modification agreement;
(2) the date to which rental and other sums payable under
this Lease have been paid;
(3) that no notice has been received by Tenant of any
default which has not been cured, or, if the default has not been cured, what
Tenant intends to do in order to effect the cure, and when it will do so;
(4) that Tenant has accepted and occupied the premises;
(5) that Tenant has no claim or offset against Landlord, or,
if it does, stating the date of the assignment and assignee (if known to
Tenant); and
(6) other matters as may be reasonably requested by Landlord.
Any certificate may be relied upon by any prospective purchaser of the
premises and any prospective mortgagee or beneficiary under any deed of trust
or mortgage encumbering the premises. If Landlord submits a completed
certificate to Tenant, and if Tenant fails to object to its contents within
ten (10) days after its receipt of the completed certificate, the matters
stated in the certificate will conclusively be deemed to be correct.
Furthermore, Tenant irrevocably appoints Landlord as Tenant's
attorney-in-fact to execute and deliver on Tenant's behalf any completed
certificate to which
Tenant does not object within ten (10) days after its receipt.
(d) No Waiver. No waiver of any condition or agreement in this
Lease by either Landlord or Tenant will imply or constitute a further waiver
by such party of the same or any other condition or agreement. No act or
thing done by Landlord or Landlord's agents during the term of this Lease
will be deemed an acceptance of a surrender of the premises, and no agreement
to accept the surrender will be valid unless in writing signed by Landlord.
The delivery of Tenant's keys to any employee or agent of Landlord will not
constitute a termination of this Lease unless Landlord has entered into a
written agreement to that effect. No payment by Tenant, or receipt from
Landlord, of a lesser amount than the rent or other charges stipulated in
this Lease will be deemed to be anything other than a payment on account of
the earliest stipulated rent. No endorsement or statement on any check or any
letter accompanying any check or payment as rent will be deemed an accord and
satisfaction. Landlord will accept the check for payment without prejudice to
Landlord's right to recover the balance of the rent or to pursue any other
remedy available to Landlord. If this Lease is assigned, or if the premises
or any part of the premises are sublet or occupied by anyone other than
Tenant, Landlord may collect rent from the assignee, Subtenant, or occupant
and apply the net amount collected to the rent reserved in this Lease. No
collection will be deemed a waiver of the covenant in this Lease against
assignment and subletting; the acceptance of the assignee, Subtenant, or
occupant as Tenant; or a release of Tenant from the complete performance by
Tenant of its covenants in this Lease.
(e) Authority. If Tenant signs this Lease as a corporation, each
of the persons executing this Lease on behalf of Tenant warrants to Landlord
that Tenant is a duly authorized and existing corporation, that Tenant is
qualified to do business in the state in which the premises are located, that
Tenant has full right and authority to enter into this Lease, and that each
and every person signing on behalf of Tenant is authorized to do so. Upon
Landlord's request, Tenant will provide evidence satisfactory to Landlord
confirming these representations.
(f) Notices. Any notice, request, demand, consent, approval, or
other communication required or permitted under this Lease will be written
and will be deemed to have been given (1) when personally mailed, addressed
to:
Landlord: Xxxxxx X. Xxxxxxxxx
G.S. Funding Group, L.C.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
with a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxx & Mucci, LLP
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Tenant Xxxxxxxxx.Xxx
0000 X. Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
with a copy at the same to: Xxxxxx Xxxxxxx
Either Landlord or Tenant may change its address or addressee for purposes of
this paragraph by giving ten (10) days' prior notice according to this
paragraph. Any notice from Landlord to Tenant will be deemed to have been given
if delivered to the premises, addressed to Tenant, whether or not Tenant has
vacated or abandoned the premises.
(g) Attorneys' Fees. If Landlord and Tenant litigate any provision of
this Lease or the subject matter of this Lease, the unsuccessful litigant will
pay to the successful litigant all costs and expenses, including reasonable
attorneys' fees and court costs, incurred by the successful litigation at trial
and on any appeal. If, without fault, either Landlord or Tenant is made a party
to any litigation instituted by or against the other, the other will indemnify
the faultless one against all loss, liability, and expense, including
reasonable attorneys' fees and court costs, incurred by it in connection with
the litigation.
(h) Waiver of Jury Trial. Landlord and Tenant waive trial by jury in any
action, proceeding, or counterclaim brought by either of them against the other
on all matters arising out of this Lease or the use and occupancy of the
premises (except claims for personal injury or property damage). If Landlord
commences any summary proceeding for nonpayment of rent, Tenant will not
interpose (and waives the right to interpose) any counterclaim in any
proceeding.
(i) Binding Effect. This Lease will inure to the benefit of, and will be
binding upon, Landlord's successors and assigns. This Lease will inure to the
benefit of, and will be binding upon, the Tenant's successors and assigns so
long as the succession or assignment is permitted by paragraph 10.
(j) Radon Gas Disclosure
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from the county
public health unit.
(k) Broker's Representation
The parties hereto acknowledge the CB Xxxxxxx Xxxxx, Inc. was the
procuring broker in the transaction respectfully representing the Tenant and
Mr. Xxxxx Xxxxxx represented the Landlord.
Landlord and Tenant have executed this Lease as of the first date in this
Lease.
Landlord:
G. S. FUNDING GROUP, L.C.
ATTEST
By: /s/ [illegible]
[corporate seal] Its: [illegible]
Date: 7/1/99
Tenant:
ATTEST:
XXXXXXXXX.XXX
By: /s/ Xxxxxx X. Xxxxxxx
[corporate seal] Its: President
Date: 07/06/99
STATE OF FLORIDA )
)ss.
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me on 07.06, 1999, by
Xxxxxx X. Xxxxxxx Pres. of Xxxxxxxxx.xxx, a Florida Corporation.
Witness my hand and official seal.
------------------------------------------
[seal] XXXXXXXX X. XXXXXXX
MY COMMISSION # CC 811823 /s/ Xxxxxxxx X. Xxxxxxx
EXPIRES: February 23, 2003 -------------------------------
Banded Thru Notary Public Underwriters NOTARY PUBLIC
------------------------------------------ Xxxxxxxx X. Xxxxxxx
My commission expires:
