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EXHIBIT 10.5
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter referred to as the "Lease") is made and
entered into this 9 day of September, 1997, by and between INTERVEST-ONE OCEAN
PLAZA, LTD. (hereinafter referred to as "Landlord") and REGISTRY MAGIC INC. (a
Florida Corporation) (hereinafter referred to as "Tenant").
WITNESSETH:
THAT LANDLORD, in consideration of the rents, covenants and agreements
hereafter promised and agreed by Tenant to be paid and performed, does hereby
lease, demise and let to Tenant, and Tenant does hereby lease of and from
Landlord, the real property hereinafter described, subject to the following
terms and conditions.
ARTICLE I
Description of Property; Term
Section 1.1 Description of Property. Landlord leases to Tenant a portion of the
real property known as ONE OCEAN PLAZA, located at Xxx X. Xxxxx Xxxxxxxxx, Xxxx
Xxxxx, XX (hereinafter referred to as the "Premises") in the subdivision known
as Por La Mar, Lots 118-121, and indicated on the floor plan attached as
Exhibit 1. The Premises consist of 1,009 rentable square feet of the real
property known as One Ocean Plaza (hereinafter referred to as the "Building"),
Suite(s) #205 and constitutes 2% of the rentable square feet of the Building.
Section 1.2 Term. Tenant shall have and hold the Premises for a term of two (2)
years & three (3) months commencing on October 1, 1997 and shall terminate
December 31, 1999 after the commencement date, except as otherwise provided for
in this Lease. If the term of this Lease commences on any day of the month
other than the first day, Rent from such date to the end of such month shall be
prorated according to the number of days in such month and paid on a per diem
basis, in advance, on the date the term commences.
Section 1.3 Holdover. Should Tenant hold over and remain in possession of the
Premises at the expiration of any Term hereby created, Tenant shall, by virtue
of this Section, become a tenant by the month at twice the Rent per month of
the last monthly installment of Rent above provided to be paid, which said
monthly tenancy shall be subject to all the terms, conditions and covenants of
this Lease as though the same had been a monthly tenancy instead of a tenancy
as provided herein, and Tenant shall give to Landlord at least thirty (30)
days' written notice of any intention to vacate the Premises, and shall be
entitled to ten (10) days notice from Landlord in the event Landlord desires
possession of the Premises; provided, however, that said Tenant by the month
shall not be entitled to ten (10) days notice in the event the said Rent is not
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paid in advance without demand, the usual ten (10) days written notice being
hereby expressly waived.
ARTICLE II
Monthly Base Rent and Use of Premises
Section 2.1 Monthly Base Rent; Late Charge: Sales Tax. Subject always to the
provisions of Section 2.2 of this Lease, Tenant agrees to and shall pay
Landlord an aggregate sum for the initial year of this Lease of $13,177.00,
payable in equal consecutive monthly installment payments of $1,093.08, in
advance, upon the first day of each calendar month of the term of this Lease
(hereinafter referred to as the "Monthly Base Rent". In addition to the Monthly
Base Rent as aforesaid, Tenant agrees to and shall pay Landlord Additional
Rent. For purposes of this Lease the term "Additional Rent" means the Tenant's
proportionate share of Taxes and Operating Expenses, as provided in Article
III, in monthly installment payments for the term of this Lease. (The Monthly
Base Rent and Additional Rent is sometimes hereinafter collectively referred to
as the "Rent"). In the event any monthly payment of Rent is not paid within
five (5) days after it is due, Tenant agrees to and shall pay Landlord a late
charge of TEN PERCENT (10%) of the amount of Rent payment. In addition to the
Rent, Tenant shall also pay to Landlord all Florida sales or use taxes
pertaining to the Rent and Additional Rent.
Section 2.2 Rental Adjustment. The Monthly Base Rent, as set forth in Section
2.l shall be adjusted as of the first day of each Lease year of the term and
any renewal term commencing with the first (l) Lease Year. The term "Lease
Year" shall mean consecutive twelve (12) month periods commencing on the
Commencement Date and each anniversary thereof. In the event the Commencement
Date does not fall on the first day of the month, for purposes of the
definition of Lease Year only, the Commencement Date shall be deemed to fall on
the first day of the following month. The Monthly Base Rent shall be adjusted
in accordance with changes in the Consumer Price Index (hereinafter referred to
as the "C.P.I.") The C.P.I. shall mean the average for "all items" shown on the
"U.S. City Average for Urban Wage Earners and Clerical Workers (including
Single Workers), all items, groups, subgroups and special groups of items" as
promulgated by the Bureau of Labor Statistics of the U.S. Department of Labor,
using the year 1982-84 as a base of 100. The Monthly Base Rent shall be
adjusted in accordance with the following provisions.
(a) The C.P.I. as of the month in which the Commencement date be
designated the Base C.P.I.
(b) After the end of the first Lease Year and of each Lease Year
thereafter, the Monthly Base Rent shall be determined as follows:
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The Monthly Base The C.P.I. for the month
Rent for the x two months prior to the
first Lease Year month ending the Lease
Year then Ended
The Base C.P.I.
(c) No adjustment shall reduce the Monthly Base Rent below the Monthly
Base Rent for the prior Lease Year.
(d) If, during the Term of this Lease or any renewal thereof, the U.S.
Department of Labor Statistics ceases to maintain the C.P.I., such other index
or standard as will most nearly accomplish the aim and purpose of the C.P.I.
(as determined by Landlord) shall be used to determine the amount of rental
adjustments hereunder.
(e) In the event of any delay in computing the rental adjustment for a
subsequent Lease Year, such delay being a maximum 180 days, Tenant shall
continue payment of the most recent Monthly Base Rent as has been computed, and
at such time as an accounting is made and notice is given to Tenant, an
accounting will be made retroactive to the beginning of the subsequent Lease
Year for which adjustment is made, and the amount then due Landlord shall be
paid by Tenant within ten (10) days of receipt of said notice of accounting.
Section 2.3 Payment Without Notice or Demand. Except as otherwise provided in
this Lease, the Monthly Base Rent and Additional Rent called for hereunder
shall be paid to Landlord without notice or demand, and without counterclaim,
offset, deduction, except as specified in Section 3.4, abatement, suspension,
deferment, diminution or reduction, by reason of, and the obligations of Tenant
under this Lease shall not be affected by any circumstance or occurrence
whatsoever, and except as set forth herein, Tenant hereby waives all rights now
or hereafter conferred by statute or otherwise to quit, terminate or surrender
this Lease of the Premises or any part thereof, or to any abatement,
suspensions, deferment, diminution or reduction of the Rent on account of any
such circumstances or occurrence.
Section 2.4 Place of Payment. All payments of Rent shall be made and paid by
Tenant to Landlord at the General Manager's 00 X. Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxx, XX 00000, or at such other place as Landlord may, from time to time,
designate in writing, as such Rent shall come due. All Rent shall be payable in
the current legal tender of the United States, as the same is then by law
constituted. Any extension, indulgence, or waiver granted or permitted by
Landlord in the time, manner or mode of payment of Rent, upon any occasion,
shall not be construed as a continuing extension of waiver and shall not
preclude Landlord from demanding strict compliance herewith.
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Section 2.5 Use Premises. Tenant shall use the Premises for general office and
for no other purpose without first obtaining the written consent of Landlord.
The written consent of Landlord shall not be unreasonably withheld. Tenant will
not use or permit the use of the Premises or any part thereof for any unlawful
purpose and will not do or permit any act or thing which would materially
impair the value or usefulness of the Premises or any part thereof; or which
would constitute a public or private nuisance or waste, or which would be a
nuisance or annoyance or damage to Landlord or Landlord's other tenants, or
which would invalidate any policies of insurance or increase the premiums
thereof, now or hereafter written on the building and/or Premises.
Section 2.6 Parking. There shall be available at the building N/A parking
spaces for the nonexclusive use of the Tenant.
Section 2.7 Damage Deposit. Simultaneously with the execution of this Lease,
Tenant has paid the sum of $0.00 which shall continue to be held by Landlord as
a damage deposit as security for the performance by the Tenant of all of the
terms' covenants and conditions hereof, including, but not limited to Tenant's
default in payment of rent or any other sum due the Landlord, whereupon
Landlord shall have the right to apply all or any part of the security deposit
for such payment, and as indemnity against: (a) unreasonable wear and tear on
the Premises; (b) loss or damage to the Premises or other property of the
Landlord caused by the Tenant, Tenant's employees, agents, invitees, or
licensees; (c) the cost of cleaning the Premises to the extent that the
Landlord shall determine is necessary to restore the Premises, except for
reasonable wear and tear, to the same condition it was in at the time Tenant
began occupancy thereof. If the Tenant complies with all such terms, covenants
and conditions, then within thirty (30) days after such termination of this
Lease or any renewal or extension thereof, the Landlord shall return said sum
to the Tenant, less any deductions made by the Landlord therefrom to pay or
reimburse the Landlord for the costs, losses or damages to the Premises or to
any other property of the Landlord, including the building of which the
Premises is a part, for any such costs, losses or damages which, in the
judgment of the Landlord, are in excess of such cash indemnity. Such money
shall bear no interest and may be commingled with other security deposits or
funds of the Landlord.
ARTICLE III
Additional Rent
Section 3.1 Definitions. For the purposes of this Article and other provision
of the Lease:
(a) The term "Additional Rent" shall mean Tenant's Proportionate Share
of Taxes and Operating Expenses.
(b) The term "Common Area" shall mean all real or personal property
owned by the Landlord for the common (nonexclusive) use of the Landlord and
Tenant and their
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employees, guests and invitees including, but not limited to, sidewalks,
landscaping areas, lighting, delivery areas, parking areas, entrance ways,
lobby areas, building security, elevators, stairways, hallways shared by more
than one tenant and all lavatories shared by more than one tenant.
(c) The term "Operating Expenses" shall mean all expenses paid or
incurred by Landlord or on Landlord's behalf in respect to the repair,
maintenance and operation of the Property and/or Building, except for those
expenses directly attributable to one (1) tenant or where tenant is separately
metered due to a special use, and include, but are not limited to, the
following: (i) salaries, wages, medical, surgical, union and general welfare
benefits (including, without limitation, group life insurance) and pension
payments of employees of Landlord engaged in the repair, operation, and
maintenance of the Property and/or the Building; (ii) payroll taxes, worker's
compensation, uniforms and related expenses for employees; (iii) the cost of
all charges for gas, electricity, heat, ventilation, air conditioning, water,
sewer, garbage collection, and other utilities furnished to the Building
(including, without limitation, the Common Area), and to the property, together
with any taxes on such utilities; (iv) the cost of painting; (v) the cost of
all charges for Rent, casualty and liability insurance with regard to the
Property and/or Building and maintenance and/or operation thereof; (vi) the
cost or rental of all supplies (including, without limitation, cleaning
supplies), tools, materials and equipment, and sales and other taxes thereon;
(vii) depreciation of hand tools and other moveable equipment used in repair,
maintenance or operation of the Building; (viii) the cost of all charges for
window and other cleaning and janitorial and security services; (ix) amounts
charged to Landlord by contractors for services, materials and supplies
furnished in connection with the operation, maintenance or repair of any part
of the Building or the heating, air conditioning, ventilating, plumbing,
electrical, elevator and other systems of the Building; (x) repairs and
replacements made by Landlord at his expense; (xi) alterations and improvements
to the Building and/or the Property made by reason of laws and requirements of
any public authorities or the requirements of insurance bodies; (xii)
management fees; (xiii) the cost of any capital improvements to the Building
and/or of any machinery or equipment installed in the Building which is made or
becomes operational, as the case may be, after the Base Operating Year, and
which has the effect of reducing the expenses which otherwise would be included
in the operating expenses, to the extent of the lesser of; (A) such cost,
amortized over the useful life of the improvement, machinery and/or equipment
(as reasonably estimated by Landlord), or (B) the amount of such reduction in
the operating expenses; (xiv) reasonable legal, accounting and other
professional fees incurred in connection with the operation, maintenance and
management of the Property and/or Building; (xv) painting, refurbishing,
re-carpeting, redecorating or landscaping any portion of the Property and/or
Building exclusive of any work done in any Tenant's space, and which shall
include: a) roof maintenance, which shall include the replacement of the roof
once every ten (10) years or sooner, should the Landlord deem it necessary; b)
repainting of the Building, which shall include the painting of the building
once every five (5) years or earlier should the Landlord deem it necessary; and
c) maintenance of the parking lot, which shall
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include the resealing of the parking lot every three (3) years or at such other
time that the Landlord deems it necessary; and in the case of the Property,
Landscaping shall entail the replacement of dead trees, dead grass, and dead
miscellaneous vegetation; (xvi) all amounts collected and held by Landlord with
respect to reserve accounts for those items to which Landlord has designated;
(xvii) real property Taxes; (xviii) all other charges properly allocable to the
repair, operation and maintenance of the Building in accordance with generally
accepted accounting principles; (xvix) all amounts collected and held by the
Landlord with respect to reserve accounts for items which the Landlord has
designated.
Notwithstanding the above, the following are excluded from the definition of
Operating Expenses: (1) Depreciation (except as provided above); (2) Interest
on and amortization of debts; (3) Leasehold improvements made for new tenants
of the Building; (4) Taxes; (5) Refinancing costs; (6) The cost of any work or
services performed for any tenant(s) of the Building (including Tenant), to the
extent that such work or service is separately reimbursed; (7) The cost of any
repair or replacement (other than those described in (xi) and (xiii) above
which would be required to be capitalized under generally accepted accounting
principles, unless such costs may be, under said principles, amortized over a
period of not more than ten (10) years, in which event a proportionate part of
such costs may be included each year in Operating Expenses over the useful life
(as reasonably estimated by Landlord) of such repair and replacement.
(d) The term "Taxes" shall mean: (i) the aggregate amount for which
the Building, and all land or real property owned or leased by Landlord
underlying the Building or adjacent thereto and used in connection with the
operation of the Building (collectively hereinafter sometimes referred to as
the "Property") are assessed by Palm Beach County or any city or municipal body
having jurisdiction for the purpose of imposition of real estate taxes; and
(ii) any expenses incurred by Landlord in contesting such taxes or assessments
and/or the assessed value of the Building and/or the Property, which expenses
shall be allocated to the Tax Year to which such expenses relate. Any special
or other assessment or levy for any Tax Year which is imposed upon the Property
and/or the Building shall be added to the amount so determined and shall be
deemed to be included within the term "Taxes" for the purposes hereof. If, at
any time during the term of this Lease, the methods of taxation prevailing on
the date hereof shall be altered, such additional or substitute tax,
assessment, levy, imposition, or charge, shall be deemed to be included within
the term "Taxes" for the purposes hereof.
(e) The term "Tenant's Proportionate Share" is 2%, which was
determined by dividing the gross rentable square footage of the Building into
the Tenant's rentable square footage.
Section 3.2 Interim Additional Rent. During the period from the commencement
date of this Lease until January, 1998 , Tenant shall pay an interim Additional
Rent of $5.35 per square foot per year and any adjustment thereof to reflect
the interim Additional Rent
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charge for 1998, which is merely an estimate of actual Taxes and Operating
Expenses for such period. In early January of each year of the lease term,
Landlord shall compute actual Taxes and Operating Expenses incurred during such
period. Tenant shall receive a refund or be assessed an additional sum based on
the difference between Tenant's Proportionate Share of actual expenses and
Additional Rent payments made by Tenant. Any additional sums owed by Tenant to
Landlord or Landlord to Tenant shall be paid within ten (10) days of receipt of
assessment.
Section 3.3 Budget; Future Additional Rent. Landlord shall furnish to Tenant
prior to January 31 of each year, a budget setting forth Landlord's estimate of
Taxes and Operating Expenses for the coming year. The Budget shall be
determined as though the Building were occupied at an actual occupancy rate or
at an occupancy rate of 90%, whichever is higher. Tenant shall pay to Landlord,
on the first day of each month as Additional Rent, an amount equal to
one-twelfth (1/12th) of Tenant's Proportionate Share of Landlord's estimate of
the same. If, however, Landlord shall furnish any such estimate subsequent to
the commencement of any year during the term of this Lease, then until the
first day of the month following the month in which such estimate is furnished
to Tenant, Tenant shall pay to Landlord, on the first day of each month, an
amount equal to the monthly sum payable under this Section. If there shall be
any increase or decrease in the Taxes or Operating Expenses for any year,
whether during or after such year, Landlord shall furnish to Tenant a revised
Budget and the Additional Rent shall be adjusted and paid or refunded, as the
case may be. If a Tax Year or Operating Year ends after the expiration or
termination of this Lease, the Additional Rent payable hereunder shall be
prorated to correspond to that portion of the Tax Year occurring within the
term of this Lease.
Section 3.4 Statement of Actual Costs. Within One Hundred Twenty (120) days
after the end of each year, Landlord shall furnish to tenant an Operating
Statement showing actual Taxes paid and Operating Costs incurred or reserved
for the preceding year. If the Operating Statement shows that the sums paid by
Tenant under this Article minus any amounts collected and held in the reserve
account exceed Tenant's Proportionate Share of the Additional Rent allocated to
Operating Expenses, Landlord shall promptly either refund to Tenant the amount
of such excess or permit Tenant to credit the amount thereof against subsequent
payments of Additional Rent under this Article; and if the Operating Statement
shows that the sums paid by Tenant were less than Tenant's Proportionate Share
of the same, Tenant shall pay the amount of such deficiency within ten (10)
days after demand therefore. Each Operating Statement given by Landlord shall
be conclusive and binding upon Tenant (a) unless within thirty (30) days after
the receipt thereof, Tenant shall notify Landlord that it disputes the accuracy
of said Operating Statement, specifying the particular respects in which the
Operating Statement is claimed to be incorrect. Failure of Landlord to submit
the written statement referred to herein shall not waive any rights of
Landlord. Notwithstanding the foregoing, the Base Rent shall never be decreased
below that amount set forth in Section 2.1 of this Lease.
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ARTICLE IV
Preparation of Premises
Section 4.1 Leasehold Improvements. The Premises shall be completed and
prepared for Tenant's occupancy in the manner, and subject to the provisions of
a separate agreement between Landlord and Tenant. The facilities, materials and
work to be furnished, installed and performed in the Premises by Landlord, at
its expense, are hereinafter referred to as "Landlord's Work". In addition,
such other facilities, materials and work which may be undertaken by or for the
account of Tenant to equip, decorate and furnish the Premises for Tenant's
occupancy are hereinafter referred to as "Tenant's Work".
Section 4.2 Completion by Landlord. The Premises shall be deemed ready for
occupancy on the date on which Landlord's Work shall have been substantially
completed; the same shall be deemed substantially completed notwithstanding the
fact that minor or insubstantial details of construction, mechanical adjustment
or decoration remain to be performed, the non-completion of which does not
materially interfere with Tenant's use of the Premises. Landlord shall give
Tenant at least ten (10) days notice of the date on which Landlord estimates
Landlord's Work will be substantially completed. Any variance between the date
so estimated and the date on which Landlord's Work shall have been
substantially completed shall be of no consequence. Tenant shall occupy the
Premises promptly after the same are ready for occupancy.
Section 4.3 Delay by Tenant. If the substantial completion of the Landlord's
Work shall be delayed due to: (a) any act or omission of the Tenant or any of
its employees, agents or contractors (including, but no limited to, (i) any
delays due to changes in or additions to Landlord's Work, or (ii) any delays by
Tenant in the submission of plans, drawings, specifications, or other
information or in approving any work, drawings, or estimates or in giving any
authorizations or approvals); or (b) any additional time needed for the
completion of Landlord's Work by the inclusion on Landlord's Work of any
special work, then the Premises shall be deemed ready for occupancy on the date
they would have been ready but for such delay and Rent shall commence as of
such earlier date.
Section 4.4 Time Not of the Essence. If Landlord is unable to give possession
of the Premises on the Commencement Date, for any reason whatsoever, Landlord
shall not be subject to any liability for said failure and the validity of this
Lease shall not be impaired under such circumstances, nor shall the same be
construed in any way to extend the term of this Lease. If the Premises are
delivered after the Commencement Date, the Base Rent and Additional Rent
payable hereunder shall be abated (provided Tenant is not responsible for the
inability to obtain possession) until Landlord has given a second notice to
Tenant that the Premises are ready for Tenant's occupancy. If Landlord shall
give Tenant permission to enter into the possession of the Premises prior to
the Commencement Date, such possession or occupancy shall be deemed to be upon
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all the terms, covenants, conditions, and provisions of this Lease including
the execution of an estoppel certificate.
Section 4.4 Acceptance of Premises. Tenant acknowledges that Landlord has not
made any representations or warranties with respect to the condition of the
Premises and neither Landlord or any assignee of Landlord shall be liable for
any latent defect therein. The taking of possession of the Premises by Tenant
shall be conclusive evidence that the Premises were in good and satisfactory
condition at the time such possession was taken, except for the minor or
insubstantial details referred to in this Section of which Tenant gives
Landlord notice, within thirty (30) days after the Commencement Date,
specifying such details with reasonable particularity.
ARTICLE V
Insurance - Destruction of Premises
Section 5.1 Tenant's Insurance.
(a) Tenant will carry and maintain, at its sole cost and expense, the
following types of insurance, in the amounts specified and in the form
hereinafter provided for:
(i) Public Liability and Property Damage. Tenant shall, during
the Term of this Lease, maintain insurance against public liability, including
that from personal injury or property damage in or about the Premises resulting
from the occupation, use or operation of the Tenant's business in the Premises,
insuring both Landlord and Tenant, in amounts of not less than One Million
Dollars ($1,000,000.00) in respect to bodily injury or death to any one person,
of not less than One Million Dollars ($1,000,000.00) Combined Single Limit for
both bodily injury and property damage.
(ii) Tenant Leasehold Improvements and Property. Insurance
covering all of the items included in Tenant's Work, Tenant's leasehold
improvements, interior heating, ventilating and air conditioning equipment,
trade fixtures, merchandise and personal property from time to time in, on or
upon the Premises, and alterations, additions or changes made by Tenant in an
amount not less than on hundred percent (100%) of their full replacement cost
from time to time during the Term, providing protection against perils included
within the standard Florida form of fire and extended coverage insurance
policy, together with insurance against sprinkler damage, vandalism and
malicious mischief. Any policy proceeds from such insurance shall be held in
trust by Tenant's insurance company for the repair, reconstruction and
restoration or replacement of the property damaged or destroyed unless this
Lease shall cease and terminate.
(b) All policies of insurance provided for in Section 5.1(a) shall be
issued in form acceptable to Landlord by insurance companies with general
policyholder's rating
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of not less than XI and a financial rating of AAA as rated in the most current
available "Best's Insurance Reports, and qualified to do business in Florida.
Each and every such policy:
(i) shall be issued in the names of Landlord and Tenant and
any other parties in interest from time to time designated in writing by notice
from Landlord to Tenant;
(ii) shall be for the mutual and joint benefit and
protection of Landlord and Tenant and any such other parties in interest;
(iii) shall (or a certificate thereof shall) be delivered to
Landlord and any such other parties in interest within ten (10) days after
delivery of possession of the Premises to Tenant and thereafter within thirty
(30) days prior to the expiration of each policy, and, as often as any such
policy shall expire or terminate, renewal or additional policies shall be
procured and maintained in like manner and to like extent;
(iv) shall contain a provision that the insurer will give to
Landlord and such other parties in writing in advance of any cancellation,
termination or lapse, or the effective date of any reduction, in the amounts,
of insurance;
(v) shall be written as a primary policy which does not
contribute to and is not in excess of coverage which Landlord may carry; and
(vi) shall contain a provision that Landlord and any such
other parties in interest, although named as an insured, shall nevertheless be
entitled to recover under said policies for any loss occasioned to it, his
servants, agents and employees by reason of the negligence of Tenant.
(c) Any insurance provided for in Section 5.1(a) may be
maintained by means of a policy or policies of blanket insurance, covering
additional items or locations or insureds, provided, however, that: (i)
Landlord and any other parties in interest from time to time designated by
Landlord to Tenant shall be named as an additional insured thereunder as his
interest may appear; (ii) the coverage afforded Landlord and any such other
parties in interest will not be reduced or diminished by reason of the use of
such blanket policy of insurance; and (iii) the requirements set forth in this
Article V are otherwise satisfied.
(d) Tenant agrees to permit Landlord at all reasonable times to
inspect the policies of insurance of Tenant with respect to the Premises for
which policies or copies thereof are not delivered to Landlord.
(e) The Tenant's insured property shall be subject to an annual
review or appraisal at Tenant's expense by someone acceptable to both Tenant
and Landlord to
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determine one hundred percent (100%) replacement cost so adequate insurance
coverage can be maintained.
(f) These insurance requirements are subject to modification in the
event any mortgagee of Landlord requires the different insurance. In such
event, the requirements of such mortgagee shall control.
Section 5.2 Destruction of Premises. If, during the Term hereof, the Premises
be damaged by reason of fire or other casualty, Tenant shall give immediate
notice thereof to Landlord. Landlord shall promptly repair or rebuild the same,
so as to make the Premises at least equal in value to those existing
immediately prior to such occurrence and as nearly similar to it in character
as shall be practicable and reasonable. If the Premises are damaged, the Rent
shall be reduced in the same proportion as the percentage area of the Premises
which is rendered untenantable due to such damage until such damage is
repaired. If the Premises shall be so damaged by fire or otherwise that the
cost of restoration shall exceed Fifty Percent (50%) of the replacement value
thereof, exclusive of foundations, immediately prior to such damage, Landlord
may, within thirty (30) days of such damage, give notice to Tenant of his
election to terminate this Lease and, subject to the further provisions of this
Article, this Lease shall cease and come to an end on the date of the
expiration of ten (10) days from the delivery of such notice with the same
force and effect as if such date were the date hereinbefore fixed for the
expiration of the term herein demised, and the Rent shall be apportioned and
paid to the time of such termination. In such event, the entire insurance
proceeds, except proceeds pertaining to Tenant's property, shall be and remain
the outright property of Landlord.
Section 5.3 Substitute Premises. At any time during the Term of this Lease,
Landlord shall have the right to request in writing that the Tenant move to a
mutually agreed upon Substitute Premises situated within the Building. The
Substitute Premises shall contain the same appropriate square footage as the
Premises. Tenant shall have thirty (30) days from the date of Landlord's
request to accept the Substitute Premises. Except for the change in designation
of Premises, all provisions of this Lease shall remain the same. Exclusive of
the cost of address changes for supplies, Landlord shall pay the cost of
relocating Tenant in the Substitute Premises. If Tenant refuses to accept the
Substitute Premises, or if Tenant fails to reply to Landlord's request within
the time states, this Lease shall terminate upon Tenant vacating the Premises
or three (3) months from the date of Landlord's request to Tenant, whichever
first occurs.
ARTICLE VI
Maintenance and Repair
Section 6.1 Tenant's Obligations. Tenant shall, at his expense, throughout the
term of this Lease, take good care of the Premises, the fixtures and
appurtenances therein and Tenant's Property. Tenant shall be responsible for
all repairs, interior and exterior,
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structural and non-structural, ordinary and extraordinary, in and to the
Premises and the Building and the facilities and systems thereof, the need for
which arises out of: (a) the performance or existence of Tenant's Work or
alterations; (b) the installation, use or operation of Tenant's Property in the
Premises; (c) the moving of Tenant's Property in or out of the Building; or (d)
the act, omission, misuse or neglect of Tenant or any of its subtenants or its
or their employees, agents, contractors, or invitees. Tenant, at its expense,
shall promptly replace all scratched, damaged or broken doors and glass in and
about the Premises and shall be responsible for all repairs, maintenance and
replacement of wall and floor coverings in the Premises and for the repair and
maintenance of all sanitary and electrical fixtures therein. Tenant shall
promptly make, at Tenant's expense, all repairs in or to the Premises for which
Tenant is responsible pursuant to this Section, and any repairs required to be
made by Tenant to the mechanical, electrical, sanitary, heating, ventilating,
air conditioning, or other systems of the Building and the use of the Building
by other occupants. All such repairs shall be subject to the supervision and
control by Landlord for which Landlord may charge Tenant a reasonable fee. Any
other repairs in or to the Building and the facilities and systems thereof for
which Tenant is responsible shall be performed by Landlord at Tenant's expense.
Section 6.2 Landlord's Obligations for Common Area. Landlord shall keep and
maintain the Common Area of the Building and its systems and facilities serving
the Premises in good working order, condition and repair, and shall make all
repairs, structural and otherwise, interior and exterior, as and when needed in
or about the Common Area, except for those repairs for which Tenant is
responsible pursuant to any of the provisions of this Lease. Landlord shall
have no liability to Tenant, nor shall Tenant's covenants and obligations
hereunder be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease, or required by law, to make in or to any portion of
the Building or the Premises, such repairs to be completed within a reasonable
time. Landlord shall not be liable for any damage to Tenant's property caused
by water from bursting or leaking pipes, waste water about the rented property,
or otherwise; or from an intentional or negligent act of any co-tenant or
occupant of the property surrounding the rented property, or other person, or
by fire, hurricane or other acts of God; or by riots or vandals; or from any
other cause; all such risks shall be assumed by the Tenant. Landlord shall not
be required to furnish any services or facilities to, or to make any repairs to
or replacements or alteration of, the Premises where necessitated due to the
fault of Tenant, its agents and employees, or other tenants, their agents or
employees. Additionally, Tenant waives any and all claims of any kind, nature
or description against Landlord arising out of the failure of the Landlord from
time to time to furnish any of the services requested to be furnished hereunder
including, without limitation, air conditioning, heat, electricity, elevator
service, and toilet facilities.
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Section 6.3 Floor Loads; Noise and Vibration. Tenant shall not place a load
upon any floor of the Premises which exceeds the load per square foot which is
allowed by law. Business machines and mechanical equipment belonging to Tenant
which cause noise or vibrations that may be transmitted to the structure of the
Building or to the Premises to such a degree as to be objectionable to Landlord
shall, at the Tenant's expense, be placed and maintained by Tenant in settings
of cork, rubber or spring-type vibration eliminators sufficient to eliminate
such noise or vibration.
ARTICLE V
Alterations by Tenant
Section 7.1 Alterations by Tenant. Tenant shall have the right at any time and
from time to time during the term of this Lease to make, at its sole cost and
expense, and without any right to receive reimbursement from Landlord in
respect thereof, any alterations or improvements to the Premises or any part
thereof, excluding structural changes (the "Alterations"), subject, however, to
the following conditions:
(a) All such alterations or improvements shall be performed by
Landlord or an approved contractor at Tenant's expense.
(b) No alterations shall be undertaken until Tenant shall have
procured all permits, licenses and other authorizations, if any, required for
the lawful and proper undertaking thereof.
(c) All alterations, when completed, shall be of a nature as not to
reduce or otherwise adversely affect the value of the Premises, nor to diminish
the general utility or change the general character thereof.
ARTICLE VIII
Landlord's and Tenant's Property
Section 8.1 Landlord's Property. All fixtures, equipment, improvements and
appurtenances attached to or built into the Premises at the commencement of or
during the term of this Lease, whether or not by or at the expense of Tenant,
shall be and remain a part of the Premises, shall be deemed the property of
Landlord and shall not be removed by Tenant except as set forth therein.
Further, any carpeting or other personal property in the Premises on the
Commencement Date, unless installed and paid for by Tenant, shall be and shall
remain Landlord's property and shall not be removed by Tenant.
Section 8.2 Tenant's Property. All moveable partitions, business and trade
fixtures, machinery and equipment, communications equipment and office
equipment, whether
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or not attached to or built into the Premises, which are installed in the
Premises by or for the account of Tenant without expense to Landlord and which
can be removed without structural damage to the Building, and all furniture,
furnishings and other articles of moveable personal property owned by Tenant
and located in the Premises (hereinafter collectively referred to as "Tenant's
Property") shall be and shall remain the property of Tenant and may be removed
by Tenant at any time during the term of this Lease. In the event Tenant's
Property is so removed, Tenant shall repair or pay the cost of repairing any
damage to the Premises or to the Building resulting from the installation
and/or removal thereof and restore the Premises to the same physical condition
and layout as they existed at the Tenant was given possession of the Premises.
Any equipment or other property for which Landlord shall have granted any
allowance or credit to Tenant shall not be deemed to have been installed by or
for the account of Tenant without expense to Landlord, shall not be considered
Tenant's Property and shall be deemed the property of Landlord.
Section 8.3 Removal of Tenant's Property. At or before the expiration date of
this Lease, or the date of any earlier termination hereof, or within five (5)
days after such an earlier termination date, Tenant, at its expense, shall
remove from the Premises all of Tenant's Property (except such items thereof as
Landlord shall expressly permitted to remain, which property shall become the
property of Landlord), and Tenant shall repair any damage to the Premises or
the Building resulting from any installation and/or removal of Tenant's
Property and restore Premises to the same physical condition and layout as they
existed at the time Tenant was given possession of Premises, reasonable wear
and tear excepted. Any other items of Tenant's Property which shall remain in
the Premises after the expiration date of this Lease, or after a period of five
(5) days following an earlier termination date, may, at the option of Landlord,
be deemed to have been abandoned, and in such case, such items may be retained
by Landlord as his property or disposed of by Landlord, without accountability,
in such manner as Landlord shall determine, at Tenant's expense.
ARTICLE IX
Compliance with Law
Section 9.1 Obligations of Tenant. Tenant shall, during the Term of this Lease,
at its sole cost and expense, comply with all valid laws, ordinances,
regulations, orders and requirements of any governmental authority which may be
applicable to the Premises or to the use, manner of use or occupancy thereof,
whether or not the same shall interfere with the use or occupancy of the
Premises arising from: (a) Tenant's use of the Premises; (b) the manner or
conduct of Tenant's business or operation of its installations, equipment or
other property therein; (c) any cause or condition created by or at the
instance of Tenant; or (d) breach of any of Tenant's obligations hereunder,
whether or not such compliance requires work which is structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen; and Tenant
shall pay all of the costs,
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expenses, fines, penalties and damages which may be imposed upon Landlord by
reason or arising out of Tenant's failure to fully and promptly comply with and
observe the provisions of this Section. Tenant shall give prompt notice to
Landlord of any notice it receives of the violation of any law or requirement
of any public authority with respect to the Premises or the use or occupation
thereof.
Section 9.2 Right to Contest. Tenant shall have the right, by appropriate
legal proceedings in the name of Tenant or Landlord or both, but at Tenant's
sole cost and expense, to contest the validity of any law, ordinance, order,
regulation or requirement. If compliance therewith may legally be held in
abeyance, Tenant may postpone compliance until final determination under any
such proceedings.
Section 9.3 Rules and Regulation. Tenant shall also comply with all rules and
regulation attached hereto as Exhibit 2 and as may be subsequently applied by
Landlord to all tenants of the Building. Tenant shall also comply with any
rules and regulations hereafter imposed by the One Ocean Plaza Condominium
Association, should the conversion of One Ocean Plaza to a condominium take
place in the future.
ARTICLE X
Encumbrances by Tenant
Section 10.1 No Liens. Tenant agrees that it will not create, permit or suffer
the imposition of any lien, charge or encumbrance upon the Premises or any part
thereof.
Section 10.2 Mechanic's, Materialmen's and Laborer's Liens. Tenant agrees that
it will make full and prompt payment of all sums necessary to pay for the cost
of repairs, alterations, improvements, changes or other work done by Tenant to
the Premises and further agrees to indemnify and hold harmless Landlord from
and against any and all mechanic's, materialman's or laborer's liens arising
out of or from such work or the cost thereof which may be asserted, claimed or
charged against the Premises or the Building or site on which it is located.
Notwithstanding anything to the contrary in this Lease, the interest of
Landlord in the Premises shall not be subject to liens for improvements made by
or for Tenant, whether or not the same shall be made or done in accordance with
any agreement between Landlord and Tenant, and it is specifically understood
and agreed that in no event shall Landlord or the interest of Landlord in the
Premises be liable for or subjected to any mechanic's, materialmen's or
laborer's liens for improvements or work made by or for Tenant; and this Lease
specifically prohibits the subjecting of Landlord's interest in the Premises to
any mechanic's, materialmen's or laborer's liens for improvements made by
Tenant or for which Tenant is responsible for payment under the terms of this
Lease. All persons dealing with Tenant are hereby placed upon notice of this
provision. In the event any notice or claim of lien shall be asserted of record
against the interest of Landlord in the Premises or Building or the site on
which it is located on account of or growing out of any improvement or work
done by or for Tenant,
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or any person claiming by, through or under Tenant, for improvements or work,
the cost of which is the responsibility of Tenant, Tenant agrees to have such
notice of claim of lien canceled and discharged of record as a claim against
the interest of Landlord in the Premises or the Building or the site on which
it is located (either by payment or bond as permitted by law within ten (10)
days after notice to Tenant by Landlord, and in the event Tenant shall fail to
do so, Tenant shall be considered in default under this Lease.
ARTICLE XI
Right of Landlord to Perform Tenant's Covenants
Section 11.1 Payment or Performance. Landlord shall have the right at any time,
upon ten (10) days notice to the Tenant (or without notice in case of emergency
or in case any fine, penalty, interest or cost may otherwise be imposed or
incurred) given following expiration of any applicable cure period, to make any
payment or perform any act required of Tenant under any provision in this
Lease, and in exercising such right, to incur necessary and incidental costs
and expenses, including reasonable counsel fees. Nothing herein shall imply any
obligation on the part of Landlord to make any payment or perform any act
required of Tenant, and the exercise of the right to so do shall not constitute
a release of any obligation or a waiver of any default.
Section 11.2 Reimbursement. All payments made and all costs and expenses
incurred in connection with any exercise of the right set forth in Section 11.1
shall be reimbursed by the Tenant to the Landlord within ten (10) days after
receipt of a xxxx setting forth the amounts so expended, together with interest
at the annual rate of Eighteen Percent (18%) from the respective dates of the
making of such payments or the incurring of such costs and expenses, to the
Landlord making and paying the same. Any payment so made by Landlord shall be
treated as Additional Rent owed by Tenant.
ARTICLE XII
Availability of Public Utilities and Other Services
Section 12.1 Heat, Ventilation and A Conditioning. Except as otherwise provided
herein, Tenant shall maintain the heating, ventilating and air conditioning
systems serving the Premises. Landlord shall furnish heat, ventilating and air
conditioning in the building common areas as may be required for reasonably
comfortable occupancy during business hours of business days. "Business Hours"
shall mean all days except Saturdays (after 1:00 p.m.), Sundays and days
observed by the Federal or the State of Florida as legal holidays, and such
other days as shall be designated as holidays.
Section 12.2 Electricity and Telephone. Tenant's use of electrical energy in
the Premises shall not, at any time, exceed the capacity of any of the
electrical conductors and equipment in or otherwise serving the Premises. In
order to ensure that such
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capacity is not exceeded and to avert possible adverse effects upon the
Building's electric service, Tenant shall not, without Landlord's prior written
consent in each instance, connect major equipment to the Building, electric
distribution system, telephone system or make any alteration or addition to the
electric system of the Premises existing on the Commencement Date. Tenant's
electrical usage under this Lease contemplates only the use of normal and
customary office equipment. In the event Tenant installs any office equipment
which uses substantial additional amounts of electricity, then Tenant agrees
that Landlord's consent is required before the installation of such additional
office equipment. Tenant shall be solely liable for electricity and telephone
expenses relating to the Premises. Tenant's electrical service shall be
separately metered.
Section 12.3 Elevator, Water, Directory. Landlord shall provide elevator
service to the Premises during business hours of business days, and Landlord
shall have the elevator subject to call at all other times. The use of the
elevators shall be subject to the rules and regulations promulgated by the
Landlord. Provided that Landlord, his cleaning contractor and their employees
shall have access to the Premises at all reasonable times and shall have the
right to use, without charge therefore, all light, power, and water in the
Premises reasonably required to clean the Premises, Landlord shall furnish
adequate hot and cold water to the Premises for drinking, lavatory and cleaning
purposes. Landlord shall maintain listings on the Building directory of the
name of Tenant, provided that the name so listed shall not use more than
Tenant's Proportionate Share of the space on the Building directory.
Section 12.4 Janitorial. Landlord shall not be responsible for the interior
cleaning of the suites. Rule and Regulation number 22 states the policy with
regard to interior cleaning.
Section 12.5 Right to Stop Services. Landlord reserves the right, without any
liability to Tenant and without affecting Tenant's covenants and obligations
hereunder, to stop service of the heating, air conditioning, electric,
sanitary, elevator, or other Building systems serving the Premises, or to stop
any other services required by Landlord under this Lease, whenever and for so
long as may be necessary, by reason of accidents, emergencies, strikes, or the
making of repairs or changes which Landlord is required by this Lease or by law
to make or in good xxxxx xxxxx necessary, by reason of difficulty in securing
proper supplies of fuel, steam, water, electricity, labor, or supplies, or by
reason of any other cause beyond Landlord's control.
ARTICLE XIII
Assignment a Subletting
Section 13.1 Tenant's Transfer.
(a) Tenant shall not, whether voluntarily, involuntarily, or by
operation of law, or otherwise: (a) assign or otherwise transfer this Lease or
the term and estate hereby
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granted, or offer to advertise to do so; or (b) mortgage, encumber, or
otherwise hypothecate this Lease or the Premises or any part thereof in any
manner whatsoever, without in each instance obtaining the prior written consent
of Landlord.
(b) The provisions of Section 13.1(a) shall apply to a transfer of a
majority of the stock of Tenant as if such transfer were an assignment of this
Lease; but said provisions shall not apply to transactions with a corporation
into or with which Tenant is merged or consolidated or to which substantially
all of Tenant's assets are transferred, or to any corporation which controls or
which is controlled by Tenant, or is under common control of Tenant, provided
in any of such events: (a) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (i) the net worth of Tenant immediately prior to such merger,
consolidation or transfer or (ii) the net worth of Tenant herein named on the
date of this Lease; and (b) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of such transaction.
(c) Further, the Landlord may consent to the sublease of all or any
part of the Premises provided the Tenant enters into a sublease containing the
same terms and conditions contained herein (exclusive of rent) and the Landlord
shall receive one-half (1/2) of any increased Rent paid by a sublessee.
(d) Any assignment agreed to by Landlord shall be evidenced by a
validly executed assignment and assumption of lease. Any attempted transfer,
assignment, subletting, mortgaging or encumbering of this Lease in violation of
this Section shall be void and confer no rights upon any third person. Such
attempt shall constitute a material breach of this Lease and entitle Landlord
to the remedies provided for default.
(e) If, without such prior written consent, this Lease is transferred
or assigned by Tenant, or if the Premises, or any part thereof, are sublet or
occupied by anybody other than Tenant, whether as a result of any act or
omission by Tenant, or by operation of law or otherwise, Landlord, whether
before or after the occurrence of an event of default, may, in addition to, and
not in diminution of or substitution for, any other rights and remedies under
this Lease or pursuant to law to which Landlord may be entitled as a result
thereof, collect Rent from the transferee, assignee, subtenant or occupant and
apply the net amount collected to the Rent herein reserved.
Section 13.2 Tenant's Liability. Tenant shall always, and notwithstanding any
such assignment or subleasing, and notwithstanding the acceptance of Rent by
Landlord from any such assignees or sublessee, remain liable for the payment of
Rent hereunder and for the performance of all of the agreements, conditions,
covenants and terms herein contained, on the part of Tenant herein to be kept,
observed, or performed, Tenant's liability to always be that of principal and
not of surety, nor shall the giving of such consent to an assignment or
sublease, be deemed a complete performance of the said
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covenants contained in this Article so as to permit any subsequent assignment
or subleasing without the like written consent.
Section 13.3 Landlord's Right of First Refusal. Notwithstanding the foregoing
other than Section 13.1(b), where Tenant desires to assign or sublease, the
Landlord shall have the right, but not the obligation, to cancel and terminate
the Lease and deal with Tenant's prospective assignees or subtenant directly
without any obligation to Tenant.
Section 13.4 Landlord's Transfer. The Landlord shall have the right to sell,
mortgage or otherwise encumber or dispose of Landlord's interest in the
Building and Premises and this Lease.
ARTICLE XIV
Subordination and Attornment
Section 14.1 Subordination. This Lease, and all rights of Tenant hereunder, are
and shall be subject and subordinate to all ground leases, overriding leases
and underlying leases of the Property and/or the Building now or hereafter
existing and to all first mortgages which may now or hereafter affect the
Property and/or the Building and/or any of such leases (whether or not such
first mortgages shall also cover other lands and/or buildings and/or leases).
This subordination shall likewise apply to each and every advance made or
hereafter to be made under such first mortgages, to all renewals,
modifications, replacements and extensions of such leases and such mortgages
and to spreaders and consolidations of such first mortgages. This Section shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall promptly execute,
acknowledge and deliver any instrument that Landlord, the lessor under any such
lease or the holder of any such mortgage (or their respective
successors-in-interest) may reasonably request to evidence such subordination.
If Tenant fails to execute, acknowledge or deliver any such instrument within
ten (10) days after request therefore, Tenant hereby irrevocably constitutes
and appoints Landlord as Tenant's attorney-in-fact, coupled with an interest,
to execute and deliver any such instruments for and on behalf of Tenant. Any
lease to which this Lease is subject and subordinate is hereinafter referred to
as a "Superior Lease" and the lessor of a Superior Lease is hereinafter
referred to as a "Superior Lessor"; and any first mortgage to which this Lease
is subject and subordinate is hereinafter referred to as a "Superior Mortgage"
and the holder of a Superior Mortgage is hereinafter referred to as a "Superior
Mortgagee".
Section 14.2 Notice of Superior Lessors and Mortgagee. If any act or omission
of Landlord would give Tenant the right, immediately or after the lapse of a
period of time, to cancel this Lease or to claim a partial or total eviction,
Tenant shall not exercise such right: (a) until it has given written notice of
such act or omission of Landlord and each Superior Mortgagee and Superior
Lessor whose name and address shall previously have
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been furnished to Tenant; and (b) until a reasonable period of time for
remedying such act or omission shall have elapsed following the giving of such
notice and following the time when such Superior Mortgagee and Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same (which reasonable period shall in no event
be less than the period to which Landlord would be entitled under this Lease or
otherwise, after similar notice to effect such remedy), provided such Superior
Mortgagee or Superior Lessor shall, with due diligence, give Tenant notice of
intention to, and commence and continue to, remedy such act or omission.
Section 14.3 Attornment. If any Superior Lessor or Superior Mortgagee shall
succeed to the rights of Landlord hereunder, whether through possession or
foreclosure action or delivery of a new lease or deed, then, at the request of
such party (hereinafter referred to as "Successor Landlord"), Tenant shall
attorn to and recognize each Successor Landlord as Tenant's landlord under this
Lease and shall promptly execute and deliver any instrument such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment, this Lease shall continue in full force and effect as a direct
lease between Successor Landlord and Tenant upon all the terms, conditions, and
covenants as set forth in this Lease except that the Successor Landlord shall
not: (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; or (c) be
bound by any previous modification of this Lease or by any previous prepayment,
unless such modification or prepayment shall have been previously approved in
writing by such successor Landlord.
ARTICLE XV
Non-Liability and Indemnification
Section 15.1 Non-Liability of Landlord. Neither Landlord nor any beneficiary,
agent, servant, or employee of Landlord, nor any Superior Lessor or any
Superior Mortgagee, shall be liable to Tenant for any loss, injury, or damage,
to Tenant or to any other person, or to its or their property, irrespective of
the cause of such injury, damage or loss, unless caused by or resulting from
the negligence of Landlord, Landlord's agents, servants or employees in the
operation or maintenance of the Premises or the Building, subject to the
doctrine of comparative negligence in the event of contributory negligence on
the part of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors. Tenant recognizes that any Superior Mortgagee
will not be liable to Tenant for injury, damage or loss caused by or resulting
from the negligence of the Landlord. Further, neither Landlord, any Superior
Lessor or Superior Mortgage, nor any partner, director, officer, agent,
servant, or employee of Landlord shall be liable: (a) for any such damage
caused by other tenants or persons in, upon or about the Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
except when negligent, for consequential damages arising out of any loss of use
of the
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Premises or any equipment or facilities therein by Tenant or any person
claiming through or under Tenant.
Section 15.2 Indemnification by Tenant. Tenant shall indemnify and hold
Landlord and all Superior Lessors and Superior Mortgagees and their respective
partners, directors, officers, agents, employees and beneficiaries harmless
from and against any and all claims from or in connection with: (a) the conduct
or management of the Premises or any business therein, or any work or thing
whatsoever done, or any condition created (other than by Landlord) in or about
the Premises during the term of this Lease or during the period of time, if
any, prior to the Commencement Date that Tenant may have been given access to
the Premises; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, officers, agents,
employees or contractors; (c) any accident, injury or damage whatsoever (unless
caused solely by Landlord's negligence) occurring in, at or upon the Premises;
and (d) any breach or default by Tenant in the full and prompt payment and
performance of Tenant's obligations under this Lease; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses. In case any action or proceeding be
brought against Landlord and/or Superior Lessor or Superior Mortgagee and/or
his or their partners, directors, officers, agents and/or employees by reason
of any such claim, Tenant, upon notice from Landlord or such Superior Lessor or
Superior Mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord or such Superior Lessor or Superior
Mortgagee).
Section 15.3 Independent Obligations; Force Majeure. The obligations of Tenant
hereunder shall not be affected, impaired or excused, nor shall Landlord have
any liability whatsoever to Tenant, because: (a) Landlord is unable to fulfill,
or is delayed in fulfilling any of his obligations under this Lease by reason
of strike, other labor trouble, governmental pre-emption of priorities or other
controls in connection with a national or other public emergency or shortages
of fuel, supplies, labor and materials, Acts of God or any other cause, whether
similar or dissimilar, beyond Landlord's reasonable control; or (b) of any
failure or defect in the supply, quantity or character of electricity or water
furnished to the Premises, by reason of any requirement, act or omission of the
public utility or others serving the Building with electric energy, steam, oil,
gas or water, or for any other reason whether similar or dissimilar, beyond
Landlord's reasonable control. Tenant shall not hold Landlord liable for any
latent defect in the Premises or the Building nor shall Landlord be liable for
injury or damage to person or property caused by fire, theft, or resulting from
the operation of elevators, heating or air conditioning or lighting apparatus,
or from falling plaster, or from steam, gas, electricity, water, rain, or
dampness, which may leak or flow from any part of the Building, or from the
pipes, appliances or plumbing work of the same.
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ARTICLE XVI
Default; Landlord's Remedies
Section 16.1 Events of Default. The Tenant shall be in default under this Lease
if any one or more of the following events shall occur:
(i) Tenant shall fail to pay any installment of the Rent and/or any
Additional Rent called for hereunder as and when the same shall become due and
payable, and such default shall continue for a period of five (5) days after
the same is due;
(ii) Tenant shall default in the performance of or compliance with
any of the other terms or provisions of this Lease, and such default shall
continue for a period of ten (10) days after the giving of written notice
thereof from Landlord to Tenant, or, in the case of any such default which
cannot, with bona fide due diligence, be cured within ten (10) days, Tenant
shall fail to proceed promptly after the giving of such notice with bona fide
due diligence to cure such default and thereafter to prosecute the curing
thereof with said due diligence within such period of ten (10) days (it being
intended that as to a default not susceptible of being cured with due diligence
within ten (10) days, the time within which such default may be cured shall be
extended for such period as may be necessary to permit the same to be cured
with due diligence);
(iii) Tenant shall assign, transfer, mortgage or encumber this Lease
or sublet the Premises in a manner not permitted by Section 13.1;
(iv) Tenant shall file a voluntary petition in bankruptcy or an Order
for Relief be entered against it, or shall file any petition or answer seeking
any arrangement, reorganization, composition, readjustment or similar relief
under any present or future bankruptcy or other applicable law, or shall seek
or consent to acquiesce in the appointment of any trustee, receiver, or
liquidator of Tenant of all or any substantial part of Tenant's properties;
(v) If, within ninety (90) days after the filing of an involuntary
petition to bankruptcy against Tenant or the commencement of any proceeding
against Tenant seeking any arrangement, reorganization, composition,
readjustment or similar relief under any law, such proceeding shall not have
been dismissed, or if, within ninety (90) days after the appointment, without
the consent or acquiescence of Tenant, or any substantial part of its
properties, such appointment shall not have been vacated or stayed on appeal or
otherwise, or if, within ninety (90) days after the expiration of any such
stay, such appointment shall not have been vacated; or
(vi) Tenant shall vacate or abandon the Premises; then, and in any
such event, or during the continuance thereof, Landlord may, at his option, by
written notice to Tenant, designate a date not less than five (5) days from the
giving of such notice on
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which this Lease shall end; and thereupon, on such date, subject to the
provisions of Section 16.4, this Lease and all rights of Tenant hereunder shall
be deemed ended and terminated.
Section 16.2 Surrender of Premises. Upon any such termination of this Lease,
Tenant shall quit and peacefully surrender the Premises to Landlord, and
Landlord, upon and at any time after such termination may, without further
notice, re-enter and repossess the Premises, either by force, summary
proceedings or otherwise, without being liable to any prosecution or damages
therefore, and no person claiming through or under Tenant or by virtue of any
order of any court shall be entitled to possession of the Premises.
Section 16.3 Reletting. At any time or from time to time after such termination
of this Lease, Landlord may relet the Premises or part thereof, in the name of
Landlord or otherwise, for such terms and on such conditions as Landlord in his
discretion may determine, and may collect and receive the Rents therefore.
Landlord will in no way be responsible or liable for any failure to relet the
Premises or any part thereof or for any failure to collect any Rent due from
any such reletting.
Section 16.4 Survival of Obligations. No termination, pursuant to Article XVI
of this Lease, shall relieve Tenant of its liability or obligations under this
Lease, and such liability and obligations shall survive any such termination.
Section 16.5 Tenant's Liability after Default. If Tenant shall default in the
performance of any of its obligations under this Lease, the Landlord, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account and at the expense of Tenant, without notice in a case of
emergency, and in any other case if such default continues after the expiration
of five (5) days from the date Landlord gives Tenant notice of the default. Any
expenses incurred by Landlord ln connection with any such performance, and all
costs, expenses, and disbursements of every kind and nature whatsoever,
including reasonable attorneys' fees including appellate, bankruptcy and
post-judgment proceedings involved in collecting or endeavoring to collect the
Base Rent of Additional Rent or any part thereof or enforcing or endeavoring to
enforce any rights against Tenant or Tenant's obligations hereunder, shall be
due and payable upon Landlord's submission of an invoice therefore. All sums
advanced by Landlord on account of Tenant under this Article, or pursuant to
any other provision of this Lease, and all Base Rent and Additional Rent,
delinquent or not paid by Tenant and not received by Landlord when due
hereunder, shall bear interest at the maximum rate permitted by Law, from the
due date thereof until paid and the same shall be and constitute Additional
Rent and be due and payable upon Landlord's submission of an invoice therefore.
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ARTICLE XVII
Damages
Section 17.1 Landlord's Damages. In the event this Lease is terminated under
the provisions of this Lease or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall pay to Landlord, as damages, at
the election of Landlord either:
(a) A sum which at the time of such termination of this Lease, or at
the time of any re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of: (1) the aggregate amount of the Monthly Base
Rent and Additional Rent which would have been payable by Tenant (conclusively
presuming the average monthly Additional Rent to be the same as were payable
for the year, or, if less than 365 days have then elapsed since the
Commencement Date, the partial year, immediately preceding such termination or
re-entry) for the period commencing with such earlier termination of this Lease
or the date of any such re-entry, as the case may be, and ending with the date
contemplated as the expiration date hereof if this Lease had not so terminated
or if Landlord had not so re-entered the Premises; over (ii) the aggregate
rental value of the Premises for the same period; or
(b) Sums equal to the Monthly Base Rent and the Additional Rent which
would have been payable by Tenant had this Lease not so terminated or had
Landlord not so re-entered the Premises, payable upon the due dates therefore
specified herein following such termination or such re-entry and until the date
contemplated and the expiration date if this Lease had not so terminated or if
Landlord had not so re-entered the Premises.
If Landlord, at his option, shall relet the Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the gross
rents, as and when received by Landlord, the expenses incurred or paid by
Landlord in terminating this Lease and/or re-entering the Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, the alteration and preparation of the Premises for new
Tenants, brokers' commissions, attorneys' fees, and all other expenses properly
chargeable against the Premises and the rental therefrom. It is hereby
understood that any such reletting may be for a period shorter or longer than
the remaining term of this Lease but in no event shall Tenant be entitled in
any suit for the collection of damages pursuant hereto to a credit in respect
of any net rents from a re-letting, except to the extent that such net rents
are actually received by Landlord.
(c) A lump sum equal to the Monthly Base Rent then in effect plus the
estimated Additional Rent to become due for the remainder of the term of this
Lease.
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Section 17.2 Remedies Cumulative. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time to
time at his election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the term of this Lease would have
expired nor limit or preclude recovery by Landlord against Tenant of any sums
or damages which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the
part of Tenant. All the remedies hereinbefore given to Landlord and all rights
and remedies given to it at law and in equity shall be cumulative and
concurrent.
ARTICLE XVIII
Eminent Domain
Section 18.1 Taking. If the whole of the Building or the Premises or if more
than twenty percent (20%) of the Building which materially affects Tenant's use
and occupancy of the Premises shall be taken by condemnation or in any other
manner for any public or quasi-public use or purpose, this Lease and the term
and estate hereby granted shall terminate as of the date of vesting of title on
such taking (herein called "Date of Taking"), and the Base Rent and Additional
Rent shall be prorated and adjusted as of such date.
Section 18.2 Award. Landlord shall be entitled to receive the entire award or
payment in connection with any taking without deduction therefrom except to the
extent that the Tenant shall be entitled to compensation based upon the damages
sustained to its property.
Section 18.3 Temporary Taking. If the temporary use or occupancy of all or any
part of the Premises shall be taken by condemnation or in any other manner for
any public or quasi-public use or purpose during the term of this Lease, Tenant
shall be entitled, except as hereinafter set forth to receive that portion of
the award or payment for such taking which represents compensation for the use
and occupancy of the Premises, for the taking of Tenant's Property and for
moving expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Premises. This
Lease shall be and remain unaffected by such taking and Tenant shall continue
to pay in full the Base Rent and Additional Rent when due. If the period of
temporary use or occupancy shall beyond the expiration date of this Lease, that
part of the award which represents compensation for the use and occupancy of
the Premises (or a part thereof) shall be divided between Landlord and Tenant
so that Tenant shall receive so much thereof as represents the period up to and
including such expiration date and Landlord shall receive so much as represents
the period after such expiration date. All monies paid as, or as part of, an
award for temporary use and occupancy for a period beyond the date to which the
Base Rent and Additional Rent have been paid shall be received, held and
applied by Landlord as a trust fund for payment of the Base Rent and Additional
Rent becoming due hereunder.
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Section 18.4 Partial Taking. In the event of any taking of less than the whole
of the Building and/or the Property upon which the Building is situated which
does not result in termination of this Lease, or in the event of a taking for a
temporary use or occupancy of all or any part of the Premises which does not
result in a termination of this Lease: (a) Landlord, at his expense, and
whether or not any award or awards shall be sufficient for the purpose, shall
proceed with reasonable diligence to repair the remaining parts of the Premises
which are Landlord's Property and Tenant's Property). to substantially their
former condition to the extent that the same be feasible (subject to reasonable
changes which Landlord shall deem desirable) and so as to constitute a complete
and tenantable Building and Premises; and tb) Tenant, at its expense, and
whether or not any award or awards shall be sufficient for the purpose, shall
proceed with reasonable diligence to repair the remaining parts of the Premises
which are deemed Landlord's property pursuant hereto and Tenant's Property to
substantially their former condition to the extent that the same may be
feasible, subject to reasonable changes which Tenant shall deem desirable. Such
work by Tenant shall be deemed Alterations as hereinabove defined.
ARTICLE XIX
Quiet Enjoyment
Landlord agrees that Tenant, upon paying all Rent and all other charges herein
provided for and observing and keeping the covenants, agreements, terms and
conditions of this Lease and rules and regulations of the Landlord affecting
the Premises on its part to be performed, shall lawfully and quietly hold,
occupy and enjoy the Premises during the term of this Lease, subject to its
terms, without hindrance or molestation by Landlord or any party claiming by,
under or through Landlord.
ARTICLE XX
Landlord's Right of Access
Section 20.1 Access for Maintenance and Repair. Except for the space within the
inside surfaces of all walls, hung ceilings, floors, windows and doors bounding
the Premises, all of the Building, including, without limitation, exterior
Building walls, core corridor walls and doors and any core corridor entrance,
and terraces or roofs adjacent to the Premises, and any space in or adjacent to
the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other Building facilities, and the use
thereof, as well as access thereto throughout the Premises for the purposes of
operation, maintenance, decoration and repair, are reserved to Landlord.
Landlord reserves the right, and Tenant shall permit Landlord, to install,
erect, use and maintain pipes, ducts and conduits in and through the Premises.
Landlord shall be allowed to take all materials into and upon the Premises that
may be required in connection therewith,
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without any liability to Tenant and without any reduction of Tenant/s covenants
and obligations hereunder.
Section 20.2 Access for Inspection and Showing. Upon reasonable notice to
Tenant and during normal business hours Landlord and its agents shall have the
right to enter and/or pass through the Premises at any time or times to examine
the Premises and to show them to actual and prospective Superior Lessor's,
Superior Mortgagees, or prospective purchasers, mortgagors or lessors of the
Building. During the period of 18 months prior to the expiration date of this
Lease, Landlord and its agents may exhibit the Premises to prospective tenants.
Section 20.3 Landlord's Alterations and Improvements. If at any time any
windows of the Premises are temporarily darkened or obstructed by reason of any
repairs, improvements, maintenance and/or cleaning in or about the Building, or
if any part of the Building, other than the Premises, is temporarily or
permanently closed or inoperable, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this Lease. Landlord reserves the right, at any time, without incurring any
liability to Tenant therefore, and without affecting or reducing any of
Tenant's covenants and obligations hereunder, to make such changes,
alterations, additions, and improvements in or to the Building and the fixtures
and equipment thereof, as well as in or to the street entrances, doors, halls,
passages, elevators, escalators and stairways thereof, and other public parts
of the Building, as Landlord shall deem necessary or desirable.
ARTICLE XXI
Signs; Obstruction
Section 21.1 Signs. Tenant shall not place or suffer to be placed or maintained
upon any exterior door, roof, wall or window of the Premises any sign, awning,
canopy or advertising matter or other thing of any kind, and will not place or
maintain any decoration, lettering or advertising matter on the glass of any
window or door of the Premises and will not place or maintain any freestanding
standard within or upon the Common Area of the Premises or immediately adjacent
thereto without first obtaining Landlord's express prior written consent.
Landlord agrees to grant approval of any sign located within the Premises or
entry to the Premises on glass or panel which is in conformity with the sign
criteria to be developed for the building. No exterior sign visible from the
exterior of the Building shall be permitted. Tenant further agrees to maintain
such sign, lettering, or other thing as may be approved by Landlord in good
condition and repair at all times and to remove the same at the end of the term
of this Lease as and if requested by Landlord. Upon removal thereof, Tenant
agrees to repair any damage to the Premises caused by such installation and/or
removal.
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Section 21.2 Obstruction. Tenant shall neither obstruct the sidewalks or
parking lots in front of the Building or the Premises or the area around the
Building or Premises in any manner whatsoever.
ARTICLE XXII
Notices
Any notices under this Lease shall be given in writing by mailing the same by
certified mail, return receipt requested, first-class postage prepaid, from a
post office station or letter box in the continental United States, to Landlord
or Tenant, as the case may be, addressed as follows:
As to Landlord: Intervest-One Ocean Plaza,Ltd.
00 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
As to Tenant: Registry Magic, Inc.
Xxx X. Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
or to such address as either party may from time to time direct by notice in
writing. Except as herein otherwise provided, any such notice shall be deemed
to be given or delivered at the time of mailing. The failure by Tenant to give
proper and timely notice to Landlord shall preclude Tenant from all rights to
which the notice relates.
ARTICLE XXIII
Miscellaneous
Section 23.1 Financial Statements. Throughout the Term of this Lease, Landlord
may periodically request from Tenant its most current and complete financial
statement including, but not limited to, its balance sheet and profit and loss
statement.
Section 23.2 Estoppel Certificates. Each party agrees, at any time and from
time to time, as requested by the other party to execute and deliver to the
other a statement certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), certifying the dates to
which the Monthly Base Rent and Additional Rent have been paid, stating whether
or not, the other party is in default in performance of any of its obligations
under this Lease, and, if so, specifying each such default and stating whether
or not any event has occurred which with the giving of notice or passage
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of time, or both, would constitute such a default, and, if so, specifying each
such event. Any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such statements
such other information concerning this Lease as Landlord may reasonably
request. It shall be a condition precedent to the Landlord's obligation to
deliver possession of the Premises to the Tenant, that Tenant execute an
estoppel certificate accepting the Premises and acknowledging the Lease. In the
event Tenant fails to comply with this Section, such failure shall constitute a
material breach of the Lease. If Tenant fails to execute the initial estoppel
certificate, Rent shall continue to accrue but Landlord shall be under no
obligation to deliver possession of the Premises.
Section 23.3 Approval by Superior Mortgagee. This Lease shall become binding
upon Landlord upon Landlord's execution and approval of the Lease by Landlord's
Superior Mortgagee for the building. Tenant agrees that Landlord may make
modifications to this Lease, if required by Landlord's Superior Mortgagee,
which modifications shall be binding upon Tenant without further signature,
provided such modifications do not materially impair Tenant's rights hereunder
or materially increase Tenant's obligations hereunder.
Section 23.4 Recordation. This Lease shall not be recorded in the Public
Records of Palm Beach County, Florida, or in any other place, by Tenant without
the prior written consent of Landlord. Tenant shall execute, acknowledge and
deliver to Landlord for purposes of recording, such memorandum of this Lease as
Landlord may request for the purpose of obtaining the benefits of Section
713.10 of the Florida Statutes (or any successor legislative provision) which
applies to mechanics liens. In no event shall such memorandum set forth the
rent or other charges payable by the Tenant under this Lease; and any such
memorandum shall state expressly that it is executed pursuant to the provisions
contained in this Lease, and that it is not intended to and shall not be deemed
to change, vary or otherwise affect any of the terms, covenants, conditions
and/or provisions of this Lease.
If such memorandum is recorded, Tenant, upon request of Landlord, shall
forthwith execute, acknowledge and deliver any and all documents which Landlord
may require so as to release such memorandum from record. Furthermore, such
memorandum shall provide that Tenant, for itself and its heirs, personal
representatives, successors and assigns, does hereby make, constitute and
appoint any person coming within the definition of Landlord herein, and any
officer of any entity coming within such definition, as its, his, her or their
attorney-in-fact and in its, his, her or their name, place and xxxxx, to
execute and acknowledge, whenever desired by Landlord, any instrument which
Landlord may deem appropriate to release such memorandum from record and shall
further provide that such appointment is coupled with an interest and is not
revocable by Tenant, or any heir, personal representative, successor or assign
of Tenant.
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Section 23.5 Entire Agreement, etc. This Lease and the writing referred to
herein constitute the entire understanding between the parties and shall bind
the parties, their successors and assigns. No representations, except as herein
expressly set forth, have been made by any party to the other, and this Lease
cannot be amended, modified or canceled, except by a writing, signed by
Landlord and Tenant during the term of this Lease. The headings and captions
contained in this Lease are inserted for convenience only and shall not be
deemed part of or be used in construing this Lease.
Section 23.6 Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Florida. If any provision of this
Lease or the application thereof to any person or circumstance shall, for any
reason and to any extent be invalid or unenforceable, the remainder of this
Lease and the application of that provision to other persons or circumstances
permitted by law shall apply. The table of contents, captions, headings and
titles in this Lease are solely for convenience of reference and shall not
affect its interpretation. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. Each covenant, agreement, obligation, or other provision
of this Lease on Tenant's part to be performed, shall be deemed and construed
as a separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year first
hereinabove written.
LANDLORD:
INTERVEST-ONE OCEAN PLAZA, LTD.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
I.P., Ltd., its General Partner
Xxxx X. Xxxxxxxx, President
TENANT:
REGISTRY MAGIC INC.
(a Florida corporation)
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
CEO and President
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Exhibit 2
RULES AND REGULATIONS
FOR THE OCEAN PLAZA BUILDING
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the demised premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space, or in the public
hall of the building, either by any tenant or by jobbers, or others in the
delivery or receipt of merchandise, any hand trucks except those equipped by
rubber tires and safeguards.
2. Freight, furniture, business equipment, merchandise and bulky
matter of any description shall be delivered to and removed from the premises
only on the freight elevators and through the service entrances and corridors,
and only during hours and ln a manner approved by Landlord. Landlord reserves
the right to inspect all freight to be brought into the building and to exclude
from the building all freight which violates any of the Rules and Regulations
or the lease of which these Rules and Regulations are a part.
3. Tenant and Tenant's employees and agents shall not solicit business
in the parking or other common areas, nor shall Tenant distribute any handbills
or other advertising matter in automobiles parked in the parking area or in
other common areas.
4. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
5. The Tenant may not change (whether by alteration, replacement,
rebuilding or otherwise) the exterior color and/or architectural treatment of
the demised premises or of the building in which the same relocated, or any
part thereof.
6. Tenant will not place or suffer to placed or maintained on any
exterior door, wall or window of the leased premises any sign, awning or canopy
or advertising matter or other thing of any kind, and will not place thereon or
maintain any decoration, lettering, advertising matter or other thing except as
may be approved by the Landlord.
7. Tenant shall not place anything or allow anything to be place near
the glass or any window, door, partition or wall which may appear unsightly for
outside premises.
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8. Tenant shall maintain the show windows in a clean, neat and
orderly condition.
9. No Tenant shall xxxx, paint, drill into, or ln any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of the Landlord, and as Landlord may direct. No Tenant shall
lay linoleum or other similar floor covering, so that the same shall come in
direct contact with the floor of the demised premises and, if linoleum or other
similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste or other
material, soluble in water, the use of cement or other similar adhesive
material being expressly prohibited.
10. No wires or cable, or lines shall be brought into the leased
premises, nor shall there be permitted to operate any electrical device from
which may emanate electrical waves which may interfere with or impair radio or
television broadcasting or reception from or in the building.
11. Tenant shall not install any radio or television antenna on the
roof, or on, or in any part of the inside or the outside of the building other
than inside the leased premises.
12. Tenants shall not use any illumination or power for the operation
of any equipment or device other than electricity which shall be provided by
the Landlord through its wiring installations into Tenant's meter.
13. The Landlord may retain a pass key to the premises and be allowed
admittance thereto at all times to enable its representatives to examine or
exhibit said premises from time to time. No additional locks or bolts of any
kind shall be placed upon any of the doors or windows by any Tenant, nor shall
any changes be made in existing locks or mechanism thereof. Each Tenant must,
upon the termination of this Tenancy, restore to the Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise procured
by, such Tenant, and in the event of the loss of any keys so furnished, such
Tenant shall pay to Landlord the cost thereof.
14. Tenant agrees that Landlord shall have the right to prohibit the
continued use by Tenant of any unethical or unfair method of business
operation, advertising or interior display, if, in Landlord's opinion, the
continued use thereof would impair the reputation of the premises as a
desirable place to shop or is otherwise out of harmony with the general
character thereof, and upon notice from Landlord, Tenant shall forthwith
refrain from or discontinue such activities.
15. Tenant shall not bring or permit to be brought or kept in or on
the demised premises, any inflammable, combustible or explosive fluid,
material, chemical or
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substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the demised
premises.
16. Tenant shall at all times maintain an adequate number of suitable
fire extinguisher on its premises for use in case of local fires, including
electrical or chemical fires.
17. Tenant shall not operate, or permit to be operated, any musical or
sound producing instrument or device inside or outside the leased premises
which may be heard outside the leased premises.
18. The Tenant must obtain and maintain in effect all permits and
licenses necessary for the operation of Tenant's business as herein provided.
19. Except for passenger automobiles parked in designated areas of the
garage, the Tenant shall not bring or permit to be brought into the building
any bicycle, or any vehicle, or dog, (except in the company of a blind person)
or other animal or bird.
20. Tenant shall use, at Tenant's cost, pest extermination on a
regular basis.
21. Tenant shall not burn any trash or garbage of any kind in or about
the leased premises.
22. Tenants shall have the option of cleaning their own suites or of
individually contracting with the janitorial firm selected by the Landlord as
having the exclusive right to clean in the building. Tenants shall be
responsible for the cleaning of their own spaces and the removal of rubbish and
debris.
23. Tenant hereby acknowledges that ownership of the Real Estate may
be converted to that of a condominium at some date in the future. If and when
the Landlord makes the leased premises available for condominium ownership,
subject in all respects to the prior written approval of the owner and holders
of the first mortgage now or hereafter affecting the property, Landlord agrees
that Tenant shall have the "right of first refusal" with respect to acquiring
ownership of the leased premises.
24. Tenant acknowledges and agrees that the business hours are from
8:00 a.m. to 6:00 p.m. Monday through Friday; 8:00 a.m. to 1:00 p.m. on
Saturday, and excludes Sundays and all days observed by the state or federal
government as legal holidays.
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EXHIBIT 3
SPECIAL PROVISIONS
1.) Tenant hereby accepts the Leased Premises in its current "as-is"
condition.
2.) Tenant hereby agrees that acceptance of this Lease Agreement by
Landlord is contingent upon the execution of leases by Landlord for
Suites 202, 204, and 208 located in the One Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx Xxxxx, Xxxxxxx, by no later than September 1, 1997.
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LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter referred to as the "Lease") is made and
entered into this _____ day of December, 1996, by and between INTERVEST-ONE
OCEAN PLAZA, LTD. (hereinafter referred to as "Landlord") and REGISTRY MAGIC
INC. (a Florida Corporation) (hereinafter referred to as "Tenant").
WITNESSETH:
THAT LANDLORD, in consideration of the rents, covenants and agreements
hereafter promised and agreed by Tenant to be paid and performed, does hereby
lease, demise and let to Tenant, and Tenant does hereby lease of and from
Landlord, the real property hereinafter described, subject to the following
terms and conditions.
ARTICLE I
Description of Property; Term
Section 1.1 Description of Property. Landlord leases to Tenant a portion of the
real property known as ONE OCEAN PLAZA, located at Xxx X. Xxxxx Xxxxxxxxx, Xxxx
Xxxxx, XX (hereinafter referred to as the "Premises") in the subdivision known
as Por La Mar, Lots 118-121, and indicated on the floor plan attached as
Exhibit 1. The Premises consist of 1,594 rentable square feet of the real
property known as One Ocean Plaza (hereinafter referred to as the "Building"),
Suite(s) #206 and constitutes 3.43% of the rentable square feet of the
Building.
Section 1.2 Term. Tenant shall have and hold the Premises for a term of
thirty-six (36) months commencing on January 1, 1997 and shall terminate
December 31, 1999 after the commencement date, except as otherwise provided for
in this Lease. If the term of this Lease commences on any day of the month
other than the first day, Rent from such date to the end of such month shall be
prorated according to the number of days in such month and paid on a per diem
basis, in advance, on the date the term commences.
Section 1.3 Holdover. Should Tenant hold over and remain in possession of the
Premises at the expiration of any Term hereby created, Tenant shall, by virtue
of this Section, become a tenant by the month at twice the Rent per month of
the last monthly installment of Rent above provided to be paid, which said
monthly tenancy shall be subject to all the terms, conditions and covenants of
this Lease as though the same had been a monthly tenancy instead of a tenancy
as provided herein, and Tenant shall give to Landlord at least thirty (30)
days' written notice of any intention to vacate the Premises, and shall be
entitled to ten (10) days notice from Landlord in the event Landlord desires
possession of the Premises; provided, however, that said Tenant by the month
shall not be entitled to ten (10) days notice in the event the said Rent is not
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paid in advance without demand, the usual ten (10) days written notice being
hereby expressly waived.
ARTICLE II
Monthly Base Rent and Use of Premises
Section 2.1 Monthly Base Rent; Late Charge: Sales Tax. Subject always to the
provisions of Section 2.2 of this Lease, Tenant agrees to and shall pay
Landlord an aggregate sum for the initial year of this Lease of $20,721.96
payable in equal consecutive monthly installment payments of $1,726.83, in
advance, upon the first day of each calendar month of the term of this Lease
(hereinafter referred to as the "Monthly Base Rent". In addition to the Monthly
Base Rent as aforesaid, Tenant agrees to and shall pay Landlord Additional
Rent. For purposes of this Lease the term "Additional Rent" means the Tenant's
proportionate share of Taxes and Operating Expenses, as provided in Article
III, in monthly installment payments for the term of this Lease. (The Monthly
Base Rent and Additional Rent is sometimes hereinafter collectively referred to
as the "Rent"). In the event any monthly payment of Rent is not paid within
five (5) days after it is due, Tenant agrees to and shall pay Landlord a late
charge of TEN PERCENT (10%) of the amount of Rent payment. In addition to the
Rent, Tenant shall also pay to Landlord all Florida sales or use taxes
pertaining to the Rent and Additional Rent.
Section 2.2 Rental Adjustment. The Monthly Base Rent, as set forth in Section
2.l shall be adjusted as of the first day of each Lease year of the term and
any renewal term commencing with the first (l) Lease Year. The term "Lease
Year" shall mean consecutive twelve (12) month periods commencing on the
Commencement Date and each anniversary thereof. In the event the Commencement
Date does not fall on the first day of the month, for purposes of the
definition of Lease Year only, the Commencement Date shall be deemed to fall on
the first day of the following month. The Monthly Base Rent shall be adjusted
in accordance with changes in the Consumer Price Index (hereinafter referred to
as the "C.P.I.") The C.P.I. shall mean the average for "all items" shown on the
"U.S. City Average for Urban Wage Earners and Clerical Workers (including
Single Workers), all items, groups, subgroups and special groups of items" as
promulgated by the Bureau of Labor Statistics of the U.S. Department of Labor,
using the year 1982-84 as a base of 100. The Monthly Base Rent shall be
adjusted in accordance with the following provisions.
(a) The C.P.I. as of the month in which the Commencement date be
designated the Base C.P.I.
(b) After the end of the first Lease Year and of each Lease Year
thereafter, the Monthly Base Rent shall be determined as follows:
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The Monthly Base The C.P.I. for the month
Rent for the x two months prior to the
first Lease Year month ending the Lease
Year then Ended
The Base C.P.I.
(c) No adjustment shall reduce the Monthly Base Rent below the Monthly
Base Rent for the prior Lease Year.
(d) If, during the Term of this Lease or any renewal thereof, the U.S.
Department of Labor Statistics ceases to maintain the C.P.I., such other index
or standard as will most nearly accomplish the aim and purpose of the C.P.I.
(as determined by Landlord) shall be used to determine the amount of rental
adjustments hereunder.
(e) In the event of any delay in computing the rental adjustment for a
subsequent Lease Year, such delay being a maximum 180 days, Tenant shall
continue payment of the most recent Monthly Base Rent as has been computed, and
at such time as an accounting is made and notice is given to Tenant, an
accounting will be made retroactive to the beginning of the subsequent Lease
Year for which adjustment is made, and the amount then due Landlord shall be
paid by Tenant within ten (10) days of receipt of said notice of accounting.
Section 2.3 Payment Without Notice or Demand. Except as otherwise provided in
this Lease, the Monthly Base Rent and Additional Rent called for hereunder
shall be paid to Landlord without notice or demand, and without counterclaim,
offset, deduction, except as specified in Section 3.4, abatement, suspension,
deferment, diminution or reduction, by reason of, and the obligations of Tenant
under this Lease shall not be affected by any circumstance or occurrence
whatsoever, and except as set forth herein, Tenant hereby waives all rights now
or hereafter conferred by statute or otherwise to quit, terminate or surrender
this Lease of the Premises or any part thereof, or to any abatement,
suspensions, deferment, diminution or reduction of the Rent on account of any
such circumstances or occurrence.
Section 2.4 Place of Payment. All payments of Rent shall be made and paid by
Tenant to Landlord at the General Manager's 00 X. Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxx, XX 00000, or at such other place as Landlord may, from time to time,
designate in writing, as such Rent shall come due. All Rent shall be payable in
the current legal tender of the United States, as the same is then by law
constituted. Any extension, indulgence, or waiver granted or permitted by
Landlord in the time, manner or mode of payment of Rent, upon any occasion,
shall not be construed as a continuing extension of waiver and shall not
preclude Landlord from demanding strict compliance herewith.
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Section 2.5 Use Premises. Tenant shall use the Premises for general office and
for no other purpose without first obtaining the written consent of Landlord.
The written consent of Landlord shall not be unreasonably withheld. Tenant will
not use or permit the use of the Premises or any part thereof for any unlawful
purpose and will not do or permit any act or thing which would materially
impair the value or usefulness of the Premises or any part thereof; or which
would constitute a public or private nuisance or waste, or which would be a
nuisance or annoyance or damage to Landlord or Landlord's other tenants, or
which would invalidate any policies of insurance or increase the premiums
thereof, now or hereafter written on the building and/or Premises.
Section 2.6 Parking. There shall be available at the building 200 parking
spaces for the nonexclusive use of the Tenant, at no charge to tenant.
Section 2.7 Damage Deposit. Simultaneously with the execution of this Lease,
Tenant has paid the sum of $2,396.00 which shall continue to be held by
Landlord as a damage deposit as security for the performance by the Tenant of
all of the terms' covenants and conditions hereof, including, but not limited
to Tenant's default in payment of rent or any other sum due the Landlord,
whereupon Landlord shall have the right to apply all or any part of the
security deposit for such payment, and as indemnity against: (a) unreasonable
wear and tear on the Premises; (b) loss or damage to the Premises or other
property of the Landlord caused by the Tenant, Tenant's employees, agents,
invitees, or licensees; (c) the cost of cleaning the Premises to the extent
that the Landlord shall determine is necessary to restore the Premises, except
for reasonable wear and tear, to the same condition it was in at the time
Tenant began occupancy thereof. If the Tenant complies with all such terms,
covenants and conditions, then within thirty (30) days after such termination
of this Lease or any renewal or extension thereof, the Landlord shall return
said sum to the Tenant, less any deductions made by the Landlord therefrom to
pay or reimburse the Landlord for the costs, losses or damages to the Premises
or to any other property of the Landlord, including the building of which the
Premises is a part, for any such costs, losses or damages which, in the
judgment of the Landlord, are in excess of such cash indemnity. Such money
shall bear no interest and may be commingled with other security deposits or
funds of the Landlord.
ARTICLE III
Additional Rent
Section 3.1 Definitions. For the purposes of this Article and other provision
of the Lease:
(a) The term "Additional Rent" shall mean Tenant's Proportionate Share
of Taxes and Operating Expenses.
(b) The term "Common Area" shall mean all real or personal property
owned by the Landlord for the common (nonexclusive) use of the Landlord and
Tenant and their
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employees, guests and invitees including, but not limited to, sidewalks,
landscaping areas, lighting, delivery areas, parking areas, entrance ways,
lobby areas, building security, elevators, stairways, hallways shared by more
than one tenant and all lavatories shared by more than one tenant.
(c) The term "Operating Expenses" shall mean all expenses paid or
incurred by Landlord or on Landlord's behalf in respect to the repair,
maintenance and operation of the Property and/or Building, except for those
expenses directly attributable to one (1) tenant or where tenant is separately
metered due to a special use, and include, but are not limited to, the
following: (i) salaries, wages, medical, surgical, union and general welfare
benefits (including, without limitation, group life insurance) and pension
payments of employees of Landlord engaged in the repair, operation, and
maintenance of the Property and/or the Building; (ii) payroll taxes, worker's
compensation, uniforms and related expenses for employees; (iii) the cost of
all charges for gas, electricity, heat, ventilation, air conditioning, water,
sewer, garbage collection, and other utilities furnished to the Building
(including, without limitation, the Common Area), and to the property, together
with any taxes on such utilities; (iv) the cost of painting; (v) the cost of
all charges for Rent, casualty and liability insurance with regard to the
Property and/or Building and maintenance and/or operation thereof; (vi) the
cost or rental of all supplies (including, without limitation, cleaning
supplies), tools, materials and equipment, and sales and other taxes thereon;
(vii) depreciation of hand tools and other moveable equipment used in repair,
maintenance or operation of the Building; (viii) the cost of all charges for
window and other cleaning and janitorial and security services; (ix) amounts
charged to Landlord by contractors for services, materials and supplies
furnished in connection with the operation, maintenance or repair of any part
of the Building or the heating, air conditioning, ventilating, plumbing,
electrical, elevator and other systems of the Building; (x) repairs and
replacements made by Landlord at his expense; (xi) alterations and improvements
to the Building and/or the Property made by reason of laws and requirements of
any public authorities or the requirements of insurance bodies; (xii)
management fees; (xiii) the cost of any capital improvements to the Building
and/or of any machinery or equipment installed in the Building which is made or
becomes operational, as the case may be, after the Base Operating Year, and
which has the effect of reducing the expenses which otherwise would be included
in the operating expenses, to the extent of the lesser of; (A) such cost,
amortized over the useful life of the improvement, machinery and/or equipment
(as reasonably estimated by Landlord), or (B) the amount of such reduction in
the operating expenses; (xiv) reasonable legal, accounting and other
professional fees incurred in connection with the operation, maintenance and
management of the Property and/or Building; (xv) painting, refurbishing,
re-carpeting, redecorating or landscaping any portion of the Property and/or
Building exclusive of any work done in any Tenant's space, and which shall
include: a) roof maintenance, which shall include the replacement of the roof
once every ten (10) years or sooner, should the Landlord deem it necessary; b)
repainting of the Building, which shall include the painting of the building
once every five (5) years or earlier should the Landlord deem it necessary; and
c) maintenance of the parking lot, which shall
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include the resealing of the parking lot every three (3) years or at such other
time that the Landlord deems it necessary; and in the case of the Property,
Landscaping shall entail the replacement of dead trees, dead grass, and dead
miscellaneous vegetation; (xvi) all amounts collected and held by Landlord with
respect to reserve accounts for those items to which Landlord has designated;
(xvii) real property Taxes; (xviii) all other charges properly allocable to the
repair, operation and maintenance of the Building in accordance with generally
accepted accounting principles; (xvix) all amounts collected and held by the
Landlord with respect to reserve accounts for items which the Landlord has
designated.
Notwithstanding the above, the following are excluded from the definition of
Operating Expenses: (1) Depreciation (except as provided above); (2) Interest
on and amortization of debts; (3) Leasehold improvements made for new tenants
of the Building; (4) Taxes; (5) Refinancing costs; (6) The cost of any work or
services performed for any tenant(s) of the Building (including Tenant), to the
extent that such work or service is separately reimbursed; (7) The cost of any
repair or replacement (other than those described in (xi) and (xiii) above
which would be required to be capitalized under generally accepted accounting
principles, unless such costs may be, under said principles, amortized over a
period of not more than ten (10) years, in which event a proportionate part of
such costs may be included each year in Operating Expenses over the useful life
(as reasonably estimated by Landlord) of such repair and replacement.
(d) The term "Taxes" shall mean: (i) the aggregate amount for which
the Building, and all land or real property owned or leased by Landlord
underlying the Building or adjacent thereto and used in connection with the
operation of the Building (collectively hereinafter sometimes referred to as
the "Property") are assessed by Palm Beach County or any city or municipal body
having jurisdiction for the purpose of imposition of real estate taxes; and
(ii) any expenses incurred by Landlord in contesting such taxes or assessments
and/or the assessed value of the Building and/or the Property, which expenses
shall be allocated to the Tax Year to which such expenses relate. Any special
or other assessment or levy for any Tax Year which is imposed upon the Property
and/or the Building shall be added to the amount so determined and shall be
deemed to be included within the term "Taxes" for the purposes hereof. If, at
any time during the term of this Lease, the methods of taxation prevailing on
the date hereof shall be altered, such additional or substitute tax,
assessment, levy, imposition, or charge, shall be deemed to be included within
the term "Taxes" for the purposes hereof.
(e) The term "Tenant's Proportionate Share" is 3.43%, which was
determined by dividing the gross rentable square footage of the Building into
the Tenant's rentable square footage.
Section 3.2 Interim Additional Rent. During the period from the commencement
date of this Lease until January, 1998 , Tenant shall pay an interim Additional
Rent of $5.00 per square foot per year and any adjustment thereof to reflect
the interim Additional Rent
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charge for 1997, which is merely an estimate of actual Taxes and Operating
Expenses for such period. In early January of each year of the lease term,
Landlord shall compute actual Taxes and Operating Expenses incurred during such
period. Tenant shall receive a refund or be assessed an additional sum based on
the difference between Tenant's Proportionate Share of actual expenses and
Additional Rent payments made by Tenant. Any additional sums owed by Tenant to
Landlord or Landlord to Tenant shall be paid within ten (10) days of receipt of
assessment.
Section 3.3 Budget; Future Additional Rent. Landlord shall furnish to Tenant
prior to January 31 of each year, a budget setting forth Landlord's estimate of
Taxes and Operating Expenses for the coming year. The Budget shall be
determined as though the Building were occupied at an actual occupancy rate or
at an occupancy rate of 90%, whichever is higher. Tenant shall pay to Landlord,
on the first day of each month as Additional Rent, an amount equal to
one-twelfth (1/12th) of Tenant's Proportionate Share of Landlord's estimate of
the same. If, however, Landlord shall furnish any such estimate subsequent to
the commencement of any year during the term of this Lease, then until the
first day of the month following the month in which such estimate is furnished
to Tenant, Tenant shall pay to Landlord, on the first day of each month, an
amount equal to the monthly sum payable under this Section. If there shall be
any increase or decrease in the Taxes or Operating Expenses for any year,
whether during or after such year, Landlord shall furnish to Tenant a revised
Budget and the Additional Rent shall be adjusted and paid or refunded, as the
case may be. If a Tax Year or Operating Year ends after the expiration or
termination of this Lease, the Additional Rent payable hereunder shall be
prorated to correspond to that portion of the Tax Year occurring within the
term of this Lease.
Section 3.4 Statement of Actual Costs. Within One Hundred Twenty (120) days
after the end of each year, Landlord shall furnish to tenant an Operating
Statement showing actual Taxes paid and Operating Costs incurred or reserved
for the preceding year. If the Operating Statement shows that the sums paid by
Tenant under this Article minus any amounts collected and held in the reserve
account exceed Tenant's Proportionate Share of the Additional Rent allocated to
Operating Expenses, Landlord shall promptly either refund to Tenant the amount
of such excess or permit Tenant to credit the amount thereof against subsequent
payments of Additional Rent under this Article; and if the Operating Statement
shows that the sums paid by Tenant were less than Tenant's Proportionate Share
of the same, Tenant shall pay the amount of such deficiency within ten (10)
days after demand therefore. Each Operating Statement given by Landlord shall
be conclusive and binding upon Tenant (a) unless within thirty (30) days after
the receipt thereof, Tenant shall notify Landlord that it disputes the accuracy
of said Operating Statement, specifying the particular respects in which the
Operating Statement is claimed to be incorrect. Failure of Landlord to submit
the written statement referred to herein shall not waive any rights of
Landlord. Notwithstanding the foregoing, the Base Rent shall never be decreased
below that amount set forth in Section 2.1 of this Lease.
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ARTICLE IV
Preparation of Premises
Section 4.1 Leasehold Improvements. The Premises shall be completed and
prepared for Tenant's occupancy in the manner, and subject to the provisions of
a separate agreement between Landlord and Tenant. The facilities, materials and
work to be furnished, installed and performed in the Premises by Landlord, at
its expense, are hereinafter referred to as "Landlord's Work". In addition,
such other facilities, materials and work which may be undertaken by or for the
account of Tenant to equip, decorate and furnish the Premises for Tenant's
occupancy are hereinafter referred to as "Tenant's Work".
Section 4.2 Completion by Landlord. The Premises shall be deemed ready for
occupancy on the date on which Landlord's Work shall have been substantially
completed; the same shall be deemed substantially completed notwithstanding the
fact that minor or insubstantial details of construction, mechanical adjustment
or decoration remain to be performed, the non-completion of which does not
materially interfere with Tenant's use of the Premises. Landlord shall give
Tenant at least ten (10) days notice of the date on which Landlord estimates
Landlord's Work will be substantially completed. Any variance between the date
so estimated and the date on which Landlord's Work shall have been
substantially completed shall be of no consequence. Tenant shall occupy the
Premises promptly after the same are ready for occupancy.
Section 4.3 Delay by Tenant. If the substantial completion of the Landlord's
Work shall be delayed due to: (a) any act or omission of the Tenant or any of
its employees, agents or contractors (including, but no limited to, (i) any
delays due to changes in or additions to Landlord's Work, or (ii) any delays by
Tenant in the submission of plans, drawings, specifications, or other
information or in approving any work, drawings, or estimates or in giving any
authorizations or approvals); or (b) any additional time needed for the
completion of Landlord's Work by the inclusion on Landlord's Work of any
special work, then the Premises shall be deemed ready for occupancy on the date
they would have been ready but for such delay and Rent shall commence as of
such earlier date.
Section 4.4 Time Not of the Essence. If Landlord is unable to give possession
of the Premises on the Commencement Date, for any reason whatsoever, Landlord
shall not be subject to any liability for said failure and the validity of this
Lease shall not be impaired under such circumstances, nor shall the same be
construed in any way to extend the term of this Lease. If the Premises are
delivered after the Commencement Date, the Base Rent and Additional Rent
payable hereunder shall be abated (provided Tenant is not responsible for the
inability to obtain possession) until Landlord has given a second notice to
Tenant that the Premises are ready for Tenant's occupancy. If Landlord shall
give Tenant permission to enter into the possession of the Premises prior to
the Commencement Date, such possession or occupancy shall be deemed to be upon
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all the terms, covenants, conditions, and provisions of this Lease including
the execution of an estoppel certificate.
Section 4.4 Acceptance of Premises. Tenant acknowledges that Landlord has not
made any representations or warranties with respect to the condition of the
Premises and neither Landlord or any assignee of Landlord shall be liable for
any latent defect therein. The taking of possession of the Premises by Tenant
shall be conclusive evidence that the Premises were in good and satisfactory
condition at the time such possession was taken, except for the minor or
insubstantial details referred to in this Section of which Tenant gives
Landlord notice, within thirty (30) days after the Commencement Date,
specifying such details with reasonable particularity.
ARTICLE V
Insurance - Destruction of Premises
Section 5.1 Tenant's Insurance.
(a) Tenant will carry and maintain, at its sole cost and expense, the
following types of insurance, in the amounts specified and in the form
hereinafter provided for:
(i) Public Liability and Property Damage. Tenant shall, during
the Term of this Lease, maintain insurance against public liability, including
that from personal injury or property damage in or about the Premises resulting
from the occupation, use or operation of the Tenant's business in the Premises,
insuring both Landlord and Tenant, in amounts of not less than One Million
Dollars ($1,000,000.00) in respect to bodily injury or death to any one person,
of not less than One Million Dollars ($1,000,000.00) Combined Single Limit for
both bodily injury and property damage.
(ii) Tenant Leasehold Improvements and Property. Insurance
covering all of the items included in Tenant's Work, Tenant's leasehold
improvements, interior heating, ventilating and air conditioning equipment,
trade fixtures, merchandise and personal property from time to time in, on or
upon the Premises, and alterations, additions or changes made by Tenant in an
amount not less than on hundred percent (100%) of their full replacement cost
from time to time during the Term, providing protection against perils included
within the standard Florida form of fire and extended coverage insurance
policy, together with insurance against sprinkler damage, vandalism and
malicious mischief. Any policy proceeds from such insurance shall be held in
trust by Tenant's insurance company for the repair, reconstruction and
restoration or replacement of the property damaged or destroyed unless this
Lease shall cease and terminate.
(b) All policies of insurance provided for in Section 5.1(a) shall be
issued in form acceptable to Landlord by insurance companies with general
policyholder's rating
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of not less than XI and a financial rating of AAA as rated in the most current
available "Best's Insurance Reports, and qualified to do business in Florida.
Each and every such policy:
(i) shall be issued in the names of Landlord and Tenant and
any other parties in interest from time to time designated in writing by notice
from Landlord to Tenant;
(ii) shall be for the mutual and joint benefit and protection
of Landlord and Tenant and any such other parties in interest;
(iii) shall (or a certificate thereof shall) be delivered to
Landlord and any such other parties in interest within ten (10) days after
delivery of possession of the Premises to Tenant and thereafter within thirty
(30) days prior to the expiration of each policy, and, as often as any such
policy shall expire or terminate, renewal or additional policies shall be
procured and maintained in like manner and to like extent;
(iv) shall contain a provision that the insurer will give to
Landlord and such other parties in writing in advance of any cancellation,
termination or lapse, or the effective date of any reduction, in the amounts,
of insurance;
(v) shall be written as a primary policy which does not
contribute to and is not in excess of coverage which Landlord may carry; and
(vi) shall contain a provision that Landlord and any such
other parties in interest, although named as an insured, shall nevertheless be
entitled to recover under said policies for any loss occasioned to it, his
servants, agents and employees by reason of the negligence of Tenant.
(c) Any insurance provided for in Section 5.1(a) may be
maintained by means of a policy or policies of blanket insurance, covering
additional items or locations or insureds, provided, however, that: (i)
Landlord and any other parties in interest from time to time designated by
Landlord to Tenant shall be named as an additional insured thereunder as his
interest may appear; (ii) the coverage afforded Landlord and any such other
parties in interest will not be reduced or diminished by reason of the use of
such blanket policy of insurance; and (iii) the requirements set forth in this
Article V are otherwise satisfied.
(d) Tenant agrees to permit Landlord at all reasonable times to
inspect the policies of insurance of Tenant with respect to the Premises for
which policies or copies thereof are not delivered to Landlord.
(e) The Tenant's insured property shall be subject to an annual
review or appraisal at Tenant's expense by someone acceptable to both Tenant
and Landlord to
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determine one hundred percent (100%) replacement cost so adequate insurance
coverage can be maintained.
(f) These insurance requirements are subject to modification in the
event any mortgagee of Landlord requires the different insurance. In such
event, the requirements of such mortgagee shall control.
Section 5.2 Destruction of Premises. If, during the Term hereof, the Premises
be damaged by reason of fire or other casualty, Tenant shall give immediate
notice thereof to Landlord. Landlord shall promptly repair or rebuild the same,
so as to make the Premises at least equal in value to those existing
immediately prior to such occurrence and as nearly similar to it in character
as shall be practicable and reasonable. If the Premises are damaged, the Rent
shall be reduced in the same proportion as the percentage area of the Premises
which is rendered untenantable due to such damage until such damage is
repaired. If the Premises shall be so damaged by fire or otherwise that the
cost of restoration shall exceed Fifty Percent (50%) of the replacement value
thereof, exclusive of foundations, immediately prior to such damage, Landlord
may, within thirty (30) days of such damage, give notice to Tenant of his
election to terminate this Lease and, subject to the further provisions of this
Article, this Lease shall cease and come to an end on the date of the
expiration of ten (10) days from the delivery of such notice with the same
force and effect as if such date were the date hereinbefore fixed for the
expiration of the term herein demised, and the Rent shall be apportioned and
paid to the time of such termination. In such event, the entire insurance
proceeds, except proceeds pertaining to Tenant's property, shall be and remain
the outright property of Landlord.
Section 5.3 Substitute Premises. At any time during the Term of this Lease,
Landlord shall have the right to request in writing that the Tenant move to a
mutually agreed upon Substitute Premises situated within the Building. The
Substitute Premises shall contain the same appropriate square footage as the
Premises. Tenant shall have thirty (30) days from the date of Landlord's
request to accept the Substitute Premises. Except for the change in designation
of Premises, all provisions of this Lease shall remain the same. Exclusive of
the cost of address changes for supplies, Landlord shall pay the cost of
relocating Tenant in the Substitute Premises. If Tenant refuses to accept the
Substitute Premises, or if Tenant fails to reply to Landlord's request within
the time states, this Lease shall terminate upon Tenant vacating the Premises
or three (3) months from the date of Landlord's request to Tenant, whichever
first occurs.
ARTICLE VI
Maintenance and Repair
Section 6.1 Tenant's Obligations. Tenant shall, at his expense, throughout the
term of this Lease, take good care of the Premises, the fixtures and
appurtenances therein and Tenant's Property. Tenant shall be responsible for
all repairs, interior and exterior,
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structural and non-structural, ordinary and extraordinary, in and to the
Premises and the Building and the facilities and systems thereof, the need for
which arises out of: (a) the performance or existence of Tenant's Work or
alterations; (b) the installation, use or operation of Tenant's Property in the
Premises; (c) the moving of Tenant's Property in or out of the Building; or (d)
the act, omission, misuse or neglect of Tenant or any of its subtenants or its
or their employees, agents, contractors, or invitees. Tenant, at its expense,
shall promptly replace all scratched, damaged or broken doors and glass in and
about the Premises and shall be responsible for all repairs, maintenance and
replacement of wall and floor coverings in the Premises and for the repair and
maintenance of all sanitary and electrical fixtures therein. Tenant shall
promptly make, at Tenant's expense, all repairs in or to the Premises for which
Tenant is responsible pursuant to this Section, and any repairs required to be
made by Tenant to the mechanical, electrical, sanitary, heating, ventilating,
air conditioning, or other systems of the Building and the use of the Building
by other occupants. All such repairs shall be subject to the supervision and
control by Landlord for which Landlord may charge Tenant a reasonable fee. Any
other repairs in or to the Building and the facilities and systems thereof for
which Tenant is responsible shall be performed by Landlord at Tenant's expense.
Section 6.2 Landlord's Obligations for Common Area. Landlord shall keep and
maintain the Common Area of the Building and its systems and facilities serving
the Premises in good working order, condition and repair, and shall make all
repairs, structural and otherwise, interior and exterior, as and when needed in
or about the Common Area, except for those repairs for which Tenant is
responsible pursuant to any of the provisions of this Lease. Landlord shall
have no liability to Tenant, nor shall Tenant's covenants and obligations
hereunder be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease, or required by law, to make in or to any portion of
the Building or the Premises, such repairs to be completed within a reasonable
time. Landlord shall not be liable for any damage to Tenant's property caused
by water from bursting or leaking pipes, waste water about the rented property,
or otherwise; or from an intentional or negligent act of any co-tenant or
occupant of the property surrounding the rented property, or other person, or
by fire, hurricane or other acts of God; or by riots or vandals; or from any
other cause; all such risks shall be assumed by the Tenant. Landlord shall not
be required to furnish any services or facilities to, or to make any repairs to
or replacements or alteration of, the Premises where necessitated due to the
fault of Tenant, its agents and employees, or other tenants, their agents or
employees. Additionally, Tenant waives any and all claims of any kind, nature
or description against Landlord arising out of the failure of the Landlord from
time to time to furnish any of the services requested to be furnished hereunder
including, without limitation, air conditioning, heat, electricity, elevator
service, and toilet facilities.
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Section 6.3 Floor Loads; Noise and Vibration. Tenant shall not place a load
upon any floor of the Premises which exceeds the load per square foot which is
allowed by law. Business machines and mechanical equipment belonging to Tenant
which cause noise or vibrations that may be transmitted to the structure of the
Building or to the Premises to such a degree as to be objectionable to Landlord
shall, at the Tenant's expense, be placed and maintained by Tenant in settings
of cork, rubber or spring-type vibration eliminators sufficient to eliminate
such noise or vibration.
ARTICLE V
Alterations by Tenant
Section 7.1 Alterations by Tenant. Tenant shall have the right at any time and
from time to time during the term of this Lease to make, at its sole cost and
expense, and without any right to receive reimbursement from Landlord in
respect thereof, any alterations or improvements to the Premises or any part
thereof, excluding structural changes (the "Alterations"), subject, however, to
the following conditions:
(a) All such alterations or improvements shall be performed by
Landlord or an approved contractor at Tenant's expense.
(b) No alterations shall be undertaken until Tenant shall have
procured all permits, licenses and other authorizations, if any, required for
the lawful and proper undertaking thereof.
(c) All alterations, when completed, shall be of a nature as not to
reduce or otherwise adversely affect the value of the Premises, nor to diminish
the general utility or change the general character thereof.
ARTICLE VIII
Landlord's and Tenant's Property
Section 8.1 Landlord's Property. All fixtures, equipment, improvements and
appurtenances attached to or built into the Premises at the commencement of or
during the term of this Lease, whether or not by or at the expense of Tenant,
shall be and remain a part of the Premises, shall be deemed the property of
Landlord and shall not be removed by Tenant except as set forth therein.
Further, any carpeting or other personal property in the Premises on the
Commencement Date, unless installed and paid for by Tenant, shall be and shall
remain Landlord's property and shall not be removed by Tenant.
Section 8.2 Tenant's Property. All moveable partitions, business and trade
fixtures, machinery and equipment, communications equipment and office
equipment, whether
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or not attached to or built into the Premises, which are installed in the
Premises by or for the account of Tenant without expense to Landlord and which
can be removed without structural damage to the Building, and all furniture,
furnishings and other articles of moveable personal property owned by Tenant
and located in the Premises (hereinafter collectively referred to as "Tenant's
Property") shall be and shall remain the property of Tenant and may be removed
by Tenant at any time during the term of this Lease. In the event Tenant's
Property is so removed, Tenant shall repair or pay the cost of repairing any
damage to the Premises or to the Building resulting from the installation
and/or removal thereof and restore the Premises to the same physical condition
and layout as they existed at the Tenant was given possession of the Premises.
Any equipment or other property for which Landlord shall have granted any
allowance or credit to Tenant shall not be deemed to have been installed by or
for the account of Tenant without expense to Landlord, shall not be considered
Tenant's Property and shall be deemed the property of Landlord.
Section 8.3 Removal of Tenant's Property. At or before the expiration date of
this Lease, or the date of any earlier termination hereof, or within five (5)
days after such an earlier termination date, Tenant, at its expense, shall
remove from the Premises all of Tenant's Property (except such items thereof as
Landlord shall expressly permitted to remain, which property shall become the
property of Landlord), and Tenant shall repair any damage to the Premises or
the Building resulting from any installation and/or removal of Tenant's
Property and restore Premises to the same physical condition and layout as they
existed at the time Tenant was given possession of Premises, reasonable wear
and tear excepted. Any other items of Tenant's Property which shall remain in
the Premises after the expiration date of this Lease, or after a period of five
(5) days following an earlier termination date, may, at the option of Landlord,
be deemed to have been abandoned, and in such case, such items may be retained
by Landlord as his property or disposed of by Landlord, without accountability,
in such manner as Landlord shall determine, at Tenant's expense.
ARTICLE IX
Compliance with Law
Section 9.1 Obligations of Tenant. Tenant shall, during the Term of this Lease,
at its sole cost and expense, comply with all valid laws, ordinances,
regulations, orders and requirements of any governmental authority which may be
applicable to the Premises or to the use, manner of use or occupancy thereof,
whether or not the same shall interfere with the use or occupancy of the
Premises arising from: (a) Tenant's use of the Premises; (b) the manner or
conduct of Tenant's business or operation of its installations, equipment or
other property therein; (c) any cause or condition created by or at the
instance of Tenant; or (d) breach of any of Tenant's obligations hereunder,
whether or not such compliance requires work which is structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen; and Tenant
shall pay all of the costs,
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expenses, fines, penalties and damages which may be imposed upon Landlord by
reason or arising out of Tenant's failure to fully and promptly comply with and
observe the provisions of this Section. Tenant shall give prompt notice to
Landlord of any notice it receives of the violation of any law or requirement
of any public authority with respect to the Premises or the use or occupation
thereof.
Section 9.2 Right to Contest. Tenant shall have the right, by appropriate legal
proceedings in the name of Tenant or Landlord or both, but at Tenant's sole
cost and expense, to contest the validity of any law, ordinance, order,
regulation or requirement. If compliance therewith may legally be held in
abeyance, Tenant may postpone compliance until final determination under any
such proceedings.
Section 9.3 Rules and Regulation. Tenant shall also comply with all rules and
regulation attached hereto as Exhibit 2 and as may be subsequently applied by
Landlord to all tenants of the Building. Tenant shall also comply with any
rules and regulations hereafter imposed by the One Ocean Plaza Condominium
Association, should the conversion of One Ocean Plaza to a condominium take
place in the future.
ARTICLE X
Encumbrances by Tenant
Section 10.1 No Liens. Tenant agrees that it will not create, permit or suffer
the imposition of any lien, charge or encumbrance upon the Premises or any part
thereof.
Section 10.2 Mechanic's, Materialmen's and Laborer's Liens. Tenant agrees that
it will make full and prompt payment of all sums necessary to pay for the cost
of repairs, alterations, improvements, changes or other work done by Tenant to
the Premises and further agrees to indemnify and hold harmless Landlord from
and against any and all mechanic's, materialman's or laborer's liens arising
out of or from such work or the cost thereof which may be asserted, claimed or
charged against the Premises or the Building or site on which it is located.
Notwithstanding anything to the contrary in this Lease, the interest of
Landlord in the Premises shall not be subject to liens for improvements made by
or for Tenant, whether or not the same shall be made or done in accordance with
any agreement between Landlord and Tenant, and it is specifically understood
and agreed that in no event shall Landlord or the interest of Landlord in the
Premises be liable for or subjected to any mechanic's, materialmen's or
laborer's liens for improvements or work made by or for Tenant; and this Lease
specifically prohibits the subjecting of Landlord's interest in the Premises to
any mechanic's, materialmen's or laborer's liens for improvements made by
Tenant or for which Tenant is responsible for payment under the terms of this
Lease. All persons dealing with Tenant are hereby placed upon notice of this
provision. In the event any notice or claim of lien shall be asserted of record
against the interest of Landlord in the Premises or Building or the site on
which it is located on account of or growing out of any improvement or work
done by or for Tenant,
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or any person claiming by, through or under Tenant, for improvements or work,
the cost of which is the responsibility of Tenant, Tenant agrees to have such
notice of claim of lien canceled and discharged of record as a claim against
the interest of Landlord in the Premises or the Building or the site on which
it is located (either by payment or bond as permitted by law within ten (10)
days after notice to Tenant by Landlord, and in the event Tenant shall fail to
do so, Tenant shall be considered in default under this Lease.
ARTICLE XI
Right of Landlord to Perform Tenant's Covenants
Section 11.1 Payment or Performance. Landlord shall have the right at any time,
upon ten (10) days notice to the Tenant (or without notice in case of emergency
or in case any fine, penalty, interest or cost may otherwise be imposed or
incurred) given following expiration of any applicable cure period, to make any
payment or perform any act required of Tenant under any provision in this
Lease, and in exercising such right, to incur necessary and incidental costs
and expenses, including reasonable counsel fees. Nothing herein shall imply any
obligation on the part of Landlord to make any payment or perform any act
required of Tenant, and the exercise of the right to so do shall not constitute
a release of any obligation or a waiver of any default.
Section 11.2 Reimbursement. All payments made and all costs and expenses
incurred in connection with any exercise of the right set forth in Section 11.1
shall be reimbursed by the Tenant to the Landlord within ten (10) days after
receipt of a xxxx setting forth the amounts so expended, together with interest
at the annual rate of Eighteen Percent (18%) from the respective dates of the
making of such payments or the incurring of such costs and expenses, to the
Landlord making and paying the same. Any payment so made by Landlord shall be
treated as Additional Rent owed by Tenant.
ARTICLE XII
Availability of Public Utilities and Other Services
Section 12.1 Heat, Ventilation and A Conditioning. Except as otherwise provided
herein, Tenant shall maintain the heating, ventilating and air conditioning
systems serving the Premises. Landlord shall furnish heat, ventilating and air
conditioning in the building common areas as may be required for reasonably
comfortable occupancy during business hours of business days. "Business Hours"
shall mean all days except Saturdays (after 1:00 p.m.), Sundays and days
observed by the Federal or the State of Florida as legal holidays, and such
other days as shall be designated as holidays.
Section 12.2 Electricity and Telephone. Tenant's use of electrical energy in
the Premises shall not, at any time, exceed the capacity of any of the
electrical conductors and equipment in or otherwise serving the Premises. In
order to ensure that such
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capacity is not exceeded and to avert possible adverse effects upon the
Building's electric service, Tenant shall not, without Landlord's prior written
consent in each instance, connect major equipment to the Building, electric
distribution system, telephone system or make any alteration or addition to the
electric system of the Premises existing on the Commencement Date. Tenant's
electrical usage under this Lease contemplates only the use of normal and
customary office equipment. In the event Tenant installs any office equipment
which uses substantial additional amounts of electricity, then Tenant agrees
that Landlord's consent is required before the installation of such additional
office equipment. Tenant shall be solely liable for electricity and telephone
expenses relating to the Premises. Tenant's electrical service shall be
separately metered.
Section 12.3 Elevator, Water, Directory. Landlord shall provide elevator
service to the Premises during business hours of business days, and Landlord
shall have the elevator subject to call at all other times. The use of the
elevators shall be subject to the rules and regulations promulgated by the
Landlord. Provided that Landlord, his cleaning contractor and their employees
shall have access to the Premises at all reasonable times and shall have the
right to use, without charge therefore, all light, power, and water in the
Premises reasonably required to clean the Premises, Landlord shall furnish
adequate hot and cold water to the Premises for drinking, lavatory and cleaning
purposes. Landlord shall maintain listings on the Building directory of the
name of Tenant, provided that the name so listed shall not use more than
Tenant's Proportionate Share of the space on the Building directory.
Section 12.4 Janitorial. Landlord shall not be responsible for the interior
cleaning of the suites. Rule and Regulation number 22 states the policy with
regard to interior cleaning.
Section 12.5 Right to Stop Services. Landlord reserves the right, without any
liability to Tenant and without affecting Tenant's covenants and obligations
hereunder, to stop service of the heating, air conditioning, electric,
sanitary, elevator, or other Building systems serving the Premises, or to stop
any other services required by Landlord under this Lease, whenever and for so
long as may be necessary, by reason of accidents, emergencies, strikes, or the
making of repairs or changes which Landlord is required by this Lease or by law
to make or in good xxxxx xxxxx necessary, by reason of difficulty in securing
proper supplies of fuel, steam, water, electricity, labor, or supplies, or by
reason of any other cause beyond Landlord's control.
ARTICLE XIII
Assignment a Subletting
Section 13.1 Tenant's Transfer.
(a) Tenant shall not, whether voluntarily, involuntarily, or by
operation of law, or otherwise: (a) assign or otherwise transfer this Lease or
the term and estate hereby
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granted, or offer to advertise to do so; or (b) mortgage, encumber, or
otherwise hypothecate this Lease or the Premises or any part thereof in any
manner whatsoever, without in each instance obtaining the prior written consent
of Landlord.
(b) The provisions of Section 13.1(a) shall apply to a transfer of a
majority of the stock of Tenant as if such transfer were an assignment of this
Lease; but said provisions shall not apply to transactions with a corporation
into or with which Tenant is merged or consolidated or to which substantially
all of Tenant's assets are transferred, or to any corporation which controls or
which is controlled by Tenant, or is under common control of Tenant, provided
in any of such events: (a) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (i) the net worth of Tenant immediately prior to such merger,
consolidation or transfer or (ii) the net worth of Tenant herein named on the
date of this Lease; and (b) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of such transaction.
(c) Further, the Landlord may consent to the sublease of all or any
part of the Premises provided the Tenant enters into a sublease containing the
same terms and conditions contained herein (exclusive of rent) and the Landlord
shall receive one-half (1/2) of any increased Rent paid by a sublessee.
(d) Any assignment agreed to by Landlord shall be evidenced by a
validly executed assignment and assumption of lease. Any attempted transfer,
assignment, subletting, mortgaging or encumbering of this Lease in violation of
this Section shall be void and confer no rights upon any third person. Such
attempt shall constitute a material breach of this Lease and entitle Landlord
to the remedies provided for default.
(e) If, without such prior written consent, this Lease is transferred
or assigned by Tenant, or if the Premises, or any part thereof, are sublet or
occupied by anybody other than Tenant, whether as a result of any act or
omission by Tenant, or by operation of law or otherwise, Landlord, whether
before or after the occurrence of an event of default, may, in addition to, and
not in diminution of or substitution for, any other rights and remedies under
this Lease or pursuant to law to which Landlord may be entitled as a result
thereof, collect Rent from the transferee, assignee, subtenant or occupant and
apply the net amount collected to the Rent herein reserved.
Section 13.2 Tenant's Liability. Tenant shall always, and notwithstanding any
such assignment or subleasing, and notwithstanding the acceptance of Rent by
Landlord from any such assignees or sublessee, remain liable for the payment of
Rent hereunder and for the performance of all of the agreements, conditions,
covenants and terms herein contained, on the part of Tenant herein to be kept,
observed, or performed, Tenant's liability to always be that of principal and
not of surety, nor shall the giving of such consent to an assignment or
sublease, be deemed a complete performance of the said
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covenants contained in this Article so as to permit any subsequent assignment
or subleasing without the like written consent.
Section 13.3 Landlord's Right of First Refusal. Notwithstanding the foregoing
other than Section 13.1(b), where Tenant desires to assign or sublease, the
Landlord shall have the right, but not the obligation, to cancel and terminate
the Lease and deal with Tenant's prospective assignees or subtenant directly
without any obligation to Tenant.
Section 13.4 Landlord's Transfer. The Landlord shall have the right to sell,
mortgage or otherwise encumber or dispose of Landlord's interest in the
Building and Premises and this Lease.
ARTICLE XIV
Subordination and Attornment
Section 14.1 Subordination. This Lease, and all rights of Tenant hereunder, are
and shall be subject and subordinate to all ground leases, overriding leases
and underlying leases of the Property and/or the Building now or hereafter
existing and to all first mortgages which may now or hereafter affect the
Property and/or the Building and/or any of such leases (whether or not such
first mortgages shall also cover other lands and/or buildings and/or leases).
This subordination shall likewise apply to each and every advance made or
hereafter to be made under such first mortgages, to all renewals,
modifications, replacements and extensions of such leases and such mortgages
and to spreaders and consolidations of such first mortgages. This Section shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall promptly execute,
acknowledge and deliver any instrument that Landlord, the lessor under any such
lease or the holder of any such mortgage (or their respective
successors-in-interest) may reasonably request to evidence such subordination.
If Tenant fails to execute, acknowledge or deliver any such instrument within
ten (10) days after request therefore, Tenant hereby irrevocably constitutes
and appoints Landlord as Tenant's attorney-in-fact, coupled with an interest,
to execute and deliver any such instruments for and on behalf of Tenant. Any
lease to which this Lease is subject and subordinate is hereinafter referred to
as a "Superior Lease" and the lessor of a Superior Lease is hereinafter
referred to as a "Superior Lessor"; and any first mortgage to which this Lease
is subject and subordinate is hereinafter referred to as a "Superior Mortgage"
and the holder of a Superior Mortgage is hereinafter referred to as a "Superior
Mortgagee".
Section 14.2 Notice of Superior Lessors and Mortgagee. If any act or omission
of Landlord would give Tenant the right, immediately or after the lapse of a
period of time, to cancel this Lease or to claim a partial or total eviction,
Tenant shall not exercise such right: (a) until it has given written notice of
such act or omission of Landlord and each Superior Mortgagee and Superior
Lessor whose name and address shall previously have
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been furnished to Tenant; and (b) until a reasonable period of time for
remedying such act or omission shall have elapsed following the giving of such
notice and following the time when such Superior Mortgagee and Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same (which reasonable period shall in no event
be less than the period to which Landlord would be entitled under this Lease or
otherwise, after similar notice to effect such remedy), provided such Superior
Mortgagee or Superior Lessor shall, with due diligence, give Tenant notice of
intention to, and commence and continue to, remedy such act or omission.
Section 14.3 Attornment. If any Superior Lessor or Superior Mortgagee shall
succeed to the rights of Landlord hereunder, whether through possession or
foreclosure action or delivery of a new lease or deed, then, at the request of
such party (hereinafter referred to as "Successor Landlord"), Tenant shall
attorn to and recognize each Successor Landlord as Tenant's landlord under this
Lease and shall promptly execute and deliver any instrument such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment, this Lease shall continue in full force and effect as a direct
lease between Successor Landlord and Tenant upon all the terms, conditions, and
covenants as set forth in this Lease except that the Successor Landlord shall
not: (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; or (c) be
bound by any previous modification of this Lease or by any previous prepayment,
unless such modification or prepayment shall have been previously approved in
writing by such successor Landlord.
ARTICLE XV
Non-Liability and Indemnification
Section 15.1 Non-Liability of Landlord. Neither Landlord nor any beneficiary,
agent, servant, or employee of Landlord, nor any Superior Lessor or any
Superior Mortgagee, shall be liable to Tenant for any loss, injury, or damage,
to Tenant or to any other person, or to its or their property, irrespective of
the cause of such injury, damage or loss, unless caused by or resulting from
the negligence of Landlord, Landlord's agents, servants or employees in the
operation or maintenance of the Premises or the Building, subject to the
doctrine of comparative negligence in the event of contributory negligence on
the part of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors. Tenant recognizes that any Superior Mortgagee
will not be liable to Tenant for injury, damage or loss caused by or resulting
from the negligence of the Landlord. Further, neither Landlord, any Superior
Lessor or Superior Mortgage, nor any partner, director, officer, agent,
servant, or employee of Landlord shall be liable: (a) for any such damage
caused by other tenants or persons in, upon or about the Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
except when negligent, for consequential damages arising out of any loss of use
of the
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Premises or any equipment or facilities therein by Tenant or any person
claiming through or under Tenant.
Section 15.2 Indemnification by Tenant. Tenant shall indemnify and hold
Landlord and all Superior Lessors and Superior Mortgagees and their respective
partners, directors, officers, agents, employees and beneficiaries harmless
from and against any and all claims from or in connection with: (a) the conduct
or management of the Premises or any business therein, or any work or thing
whatsoever done, or any condition created (other than by Landlord) in or about
the Premises during the term of this Lease or during the period of time, if
any, prior to the Commencement Date that Tenant may have been given access to
the Premises; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, officers, agents,
employees or contractors; (c) any accident, injury or damage whatsoever (unless
caused solely by Landlord's negligence) occurring in, at or upon the Premises;
and (d) any breach or default by Tenant in the full and prompt payment and
performance of Tenant's obligations under this Lease; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses. In case any action or proceeding be
brought against Landlord and/or Superior Lessor or Superior Mortgagee and/or
his or their partners, directors, officers, agents and/or employees by reason
of any such claim, Tenant, upon notice from Landlord or such Superior Lessor or
Superior Mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord or such Superior Lessor or Superior
Mortgagee).
Section 15.3 Independent Obligations; Force Majeure. The obligations of Tenant
hereunder shall not be affected, impaired or excused, nor shall Landlord have
any liability whatsoever to Tenant, because: (a) Landlord is unable to fulfill,
or is delayed in fulfilling any of his obligations under this Lease by reason
of strike, other labor trouble, governmental pre-emption of priorities or other
controls in connection with a national or other public emergency or shortages
of fuel, supplies, labor and materials, Acts of God or any other cause, whether
similar or dissimilar, beyond Landlord's reasonable control; or (b) of any
failure or defect in the supply, quantity or character of electricity or water
furnished to the Premises, by reason of any requirement, act or omission of the
public utility or others serving the Building with electric energy, steam, oil,
gas or water, or for any other reason whether similar or dissimilar, beyond
Landlord's reasonable control. Tenant shall not hold Landlord liable for any
latent defect in the Premises or the Building nor shall Landlord be liable for
injury or damage to person or property caused by fire, theft, or resulting from
the operation of elevators, heating or air conditioning or lighting apparatus,
or from falling plaster, or from steam, gas, electricity, water, rain, or
dampness, which may leak or flow from any part of the Building, or from the
pipes, appliances or plumbing work of the same.
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ARTICLE XVI
Default; Landlord's Remedies
Section 16.1 Events of Default. The Tenant shall be in default under this Lease
if any one or more of the following events shall occur:
(i) Tenant shall fail to pay any installment of the Rent and/or any
Additional Rent called for hereunder as and when the same shall become due and
payable, and such default shall continue for a period of five (5) days after
the same is due;
(ii) Tenant shall default in the performance of or compliance with
any of the other terms or provisions of this Lease, and such default shall
continue for a period of ten (10) days after the giving of written notice
thereof from Landlord to Tenant, or, in the case of any such default which
cannot, with bona fide due diligence, be cured within ten (10) days, Tenant
shall fail to proceed promptly after the giving of such notice with bona fide
due diligence to cure such default and thereafter to prosecute the curing
thereof with said due diligence within such period of ten (10) days (it being
intended that as to a default not susceptible of being cured with due diligence
within ten (10) days, the time within which such default may be cured shall be
extended for such period as may be necessary to permit the same to be cured
with due diligence);
(iii) Tenant shall assign, transfer, mortgage or encumber this Lease
or sublet the Premises in a manner not permitted by Section 13.1;
(iv) Tenant shall file a voluntary petition in bankruptcy or an
Order for Relief be entered against it, or shall file any petition or answer
seeking any arrangement, reorganization, composition, readjustment or similar
relief under any present or future bankruptcy or other applicable law, or shall
seek or consent to acquiesce in the appointment of any trustee, receiver, or
liquidator of Tenant of all or any substantial part of Tenant's properties;
(v) If, within ninety (90) days after the filing of an involuntary
petition to bankruptcy against Tenant or the commencement of any proceeding
against Tenant seeking any arrangement, reorganization, composition,
readjustment or similar relief under any law, such proceeding shall not have
been dismissed, or if, within ninety (90) days after the appointment, without
the consent or acquiescence of Tenant, or any substantial part of its
properties, such appointment shall not have been vacated or stayed on appeal or
otherwise, or if, within ninety (90) days after the expiration of any such
stay, such appointment shall not have been vacated; or
(vi) Tenant shall vacate or abandon the Premises; then, and in any
such event, or during the continuance thereof, Landlord may, at his option, by
written notice to Tenant, designate a date not less than five (5) days from the
giving of such notice on
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which this Lease shall end; and thereupon, on such date, subject to the
provisions of Section 16.4, this Lease and all rights of Tenant hereunder shall
be deemed ended and terminated.
Section 16.2 Surrender of Premises. Upon any such termination of this Lease,
Tenant shall quit and peacefully surrender the Premises to Landlord, and
Landlord, upon and at any time after such termination may, without further
notice, re-enter and repossess the Premises, either by force, summary
proceedings or otherwise, without being liable to any prosecution or damages
therefore, and no person claiming through or under Tenant or by virtue of any
order of any court shall be entitled to possession of the Premises.
Section 16.3 Reletting. At any time or from time to time after such termination
of this Lease, Landlord may relet the Premises or part thereof, in the name of
Landlord or otherwise, for such terms and on such conditions as Landlord in his
discretion may determine, and may collect and receive the Rents therefore.
Landlord will in no way be responsible or liable for any failure to relet the
Premises or any part thereof or for any failure to collect any Rent due from
any such reletting.
Section 16.4 Survival of Obligations. No termination, pursuant to Article XVI
of this Lease, shall relieve Tenant of its liability or obligations under this
Lease, and such liability and obligations shall survive any such termination.
Section 16.5 Tenant's Liability after Default. If Tenant shall default in the
performance of any of its obligations under this Lease, the Landlord, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account and at the expense of Tenant, without notice in a case of
emergency, and in any other case if such default continues after the expiration
of five (5) days from the date Landlord gives Tenant notice of the default. Any
expenses incurred by Landlord ln connection with any such performance, and all
costs, expenses, and disbursements of every kind and nature whatsoever,
including reasonable attorneys' fees including appellate, bankruptcy and
post-judgment proceedings involved in collecting or endeavoring to collect the
Base Rent of Additional Rent or any part thereof or enforcing or endeavoring to
enforce any rights against Tenant or Tenant's obligations hereunder, shall be
due and payable upon Landlord's submission of an invoice therefore. All sums
advanced by Landlord on account of Tenant under this Article, or pursuant to
any other provision of this Lease, and all Base Rent and Additional Rent,
delinquent or not paid by Tenant and not received by Landlord when due
hereunder, shall bear interest at the maximum rate permitted by Law, from the
due date thereof until paid and the same shall be and constitute Additional
Rent and be due and payable upon Landlord's submission of an invoice therefore.
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ARTICLE XVII
Damages
Section 17.1 Landlord's Damages. In the event this Lease is terminated under
the provisions of this Lease or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall pay to Landlord, as damages, at
the election of Landlord either:
(a) A sum which at the time of such termination of this Lease, or at
the time of any re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of: (1) the aggregate amount of the Monthly Base
Rent and Additional Rent which would have been payable by Tenant (conclusively
presuming the average monthly Additional Rent to be the same as were payable
for the year, or, if less than 365 days have then elapsed since the
Commencement Date, the partial year, immediately preceding such termination or
re-entry) for the period commencing with such earlier termination of this Lease
or the date of any such re-entry, as the case may be, and ending with the date
contemplated as the expiration date hereof if this Lease had not so terminated
or if Landlord had not so re-entered the Premises; over (ii) the aggregate
rental value of the Premises for the same period; or
(b) Sums equal to the Monthly Base Rent and the Additional Rent which
would have been payable by Tenant had this Lease not so terminated or had
Landlord not so re-entered the Premises, payable upon the due dates therefore
specified herein following such termination or such re-entry and until the date
contemplated and the expiration date if this Lease had not so terminated or if
Landlord had not so re-entered the Premises.
If Landlord, at his option, shall relet the Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the gross
rents, as and when received by Landlord, the expenses incurred or paid by
Landlord in terminating this Lease and/or re-entering the Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, the alteration and preparation of the Premises for new
Tenants, brokers' commissions, attorneys' fees, and all other expenses properly
chargeable against the Premises and the rental therefrom. It is hereby
understood that any such reletting may be for a period shorter or longer than
the remaining term of this Lease but in no event shall Tenant be entitled in
any suit for the collection of damages pursuant hereto to a credit in respect
of any net rents from a re-letting, except to the extent that such net rents
are actually received by Landlord.
(c) A lump sum equal to the Monthly Base Rent then in effect plus the
estimated Additional Rent to become due for the remainder of the term of this
Lease.
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Section 17.2 Remedies Cumulative. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time to
time at his election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the term of this Lease would have
expired nor limit or preclude recovery by Landlord against Tenant of any sums
or damages which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the
part of Tenant. All the remedies hereinbefore given to Landlord and all rights
and remedies given to it at law and in equity shall be cumulative and
concurrent.
ARTICLE XVIII
Eminent Domain
Section 18.1 Taking. If the whole of the Building or the Premises or if more
than twenty percent (20%) of the Building which materially affects Tenant's use
and occupancy of the Premises shall be taken by condemnation or in any other
manner for any public or quasi-public use or purpose, this Lease and the term
and estate hereby granted shall terminate as of the date of vesting of title on
such taking (herein called "Date of Taking"), and the Base Rent and Additional
Rent shall be prorated and adjusted as of such date.
Section 18.2 Award. Landlord shall be entitled to receive the entire award or
payment in connection with any taking without deduction therefrom except to the
extent that the Tenant shall be entitled to compensation based upon the damages
sustained to its property.
Section 18.3 Temporary Taking. If the temporary use or occupancy of all or any
part of the Premises shall be taken by condemnation or in any other manner for
any public or quasi-public use or purpose during the term of this Lease, Tenant
shall be entitled, except as hereinafter set forth to receive that portion of
the award or payment for such taking which represents compensation for the use
and occupancy of the Premises, for the taking of Tenant's Property and for
moving expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Premises. This
Lease shall be and remain unaffected by such taking and Tenant shall continue
to pay in full the Base Rent and Additional Rent when due. If the period of
temporary use or occupancy shall beyond the expiration date of this Lease, that
part of the award which represents compensation for the use and occupancy of
the Premises (or a part thereof) shall be divided between Landlord and Tenant
so that Tenant shall receive so much thereof as represents the period up to and
including such expiration date and Landlord shall receive so much as represents
the period after such expiration date. All monies paid as, or as part of, an
award for temporary use and occupancy for a period beyond the date to which the
Base Rent and Additional Rent have been paid shall be received, held and
applied by Landlord as a trust fund for payment of the Base Rent and Additional
Rent becoming due hereunder.
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Section 18.4 Partial Taking. In the event of any taking of less than the whole
of the Building and/or the Property upon which the Building is situated which
does not result in termination of this Lease, or in the event of a taking for a
temporary use or occupancy of all or any part of the Premises which does not
result in a termination of this Lease: (a) Landlord, at his expense, and
whether or not any award or awards shall be sufficient for the purpose, shall
proceed with reasonable diligence to repair the remaining parts of the Premises
which are Landlord's Property and Tenant's Property). to substantially their
former condition to the extent that the same be feasible (subject to reasonable
changes which Landlord shall deem desirable) and so as to constitute a complete
and tenantable Building and Premises; and tb) Tenant, at its expense, and
whether or not any award or awards shall be sufficient for the purpose, shall
proceed with reasonable diligence to repair the remaining parts of the Premises
which are deemed Landlord's property pursuant hereto and Tenant's Property to
substantially their former condition to the extent that the same may be
feasible, subject to reasonable changes which Tenant shall deem desirable. Such
work by Tenant shall be deemed Alterations as hereinabove defined.
ARTICLE XIX
Quiet Enjoyment
Landlord agrees that Tenant, upon paying all Rent and all other charges herein
provided for and observing and keeping the covenants, agreements, terms and
conditions of this Lease and rules and regulations of the Landlord affecting
the Premises on its part to be performed, shall lawfully and quietly hold,
occupy and enjoy the Premises during the term of this Lease, subject to its
terms, without hindrance or molestation by Landlord or any party claiming by,
under or through Landlord.
ARTICLE XX
Landlord's Right of Access
Section 20.1 Access for Maintenance and Repair. Except for the space within the
inside surfaces of all walls, hung ceilings, floors, windows and doors bounding
the Premises, all of the Building, including, without limitation, exterior
Building walls, core corridor walls and doors and any core corridor entrance,
and terraces or roofs adjacent to the Premises, and any space in or adjacent to
the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other Building facilities, and the use
thereof, as well as access thereto throughout the Premises for the purposes of
operation, maintenance, decoration and repair, are reserved to Landlord.
Landlord reserves the right, and Tenant shall permit Landlord, to install,
erect, use and maintain pipes, ducts and conduits in and through the Premises.
Landlord shall be allowed to take all materials into and upon the Premises that
may be required in connection therewith,
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without any liability to Tenant and without any reduction of Tenant/s covenants
and obligations hereunder.
Section 20.2 Access for Inspection and Showing. Upon reasonable notice to
Tenant and during normal business hours Landlord and its agents shall have the
right to enter and/or pass through the Premises at any time or times to examine
the Premises and to show them to actual and prospective Superior Lessor's,
Superior Mortgagees, or prospective purchasers, mortgagors or lessors of the
Building. During the period of 18 months prior to the expiration date of this
Lease, Landlord and its agents may exhibit the Premises to prospective tenants.
Section 20.3 Landlord's Alterations and Improvements. If at any time any
windows of the Premises are temporarily darkened or obstructed by reason of any
repairs, improvements, maintenance and/or cleaning in or about the Building, or
if any part of the Building, other than the Premises, is temporarily or
permanently closed or inoperable, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this Lease. Landlord reserves the right, at any time, without incurring any
liability to Tenant therefore, and without affecting or reducing any of
Tenant's covenants and obligations hereunder, to make such changes,
alterations, additions, and improvements in or to the Building and the fixtures
and equipment thereof, as well as in or to the street entrances, doors, halls,
passages, elevators, escalators and stairways thereof, and other public parts
of the Building, as Landlord shall deem necessary or desirable.
ARTICLE XXI
Signs; Obstruction
Section 21.1 Signs. Tenant shall not place or suffer to be placed or maintained
upon any exterior door, roof, wall or window of the Premises any sign, awning,
canopy or advertising matter or other thing of any kind, and will not place or
maintain any decoration, lettering or advertising matter on the glass of any
window or door of the Premises and will not place or maintain any freestanding
standard within or upon the Common Area of the Premises or immediately adjacent
thereto without first obtaining Landlord's express prior written consent.
Landlord agrees to grant approval of any sign located within the Premises or
entry to the Premises on glass or panel which is in conformity with the sign
criteria to be developed for the building. No exterior sign visible from the
exterior of the Building shall be permitted. Tenant further agrees to maintain
such sign, lettering, or other thing as may be approved by Landlord in good
condition and repair at all times and to remove the same at the end of the term
of this Lease as and if requested by Landlord. Upon removal thereof, Tenant
agrees to repair any damage to the Premises caused by such installation and/or
removal.
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Section 21.2 Obstruction. Tenant shall neither obstruct the sidewalks or
parking lots in front of the Building or the Premises or the area around the
Building or Premises in any manner whatsoever.
ARTICLE XXII
Notices
Any notices under this Lease shall be given in writing by mailing the same by
certified mail, return receipt requested, first-class postage prepaid, from a
post office station or letter box in the continental United States, to Landlord
or Tenant, as the case may be, addressed as follows:
As to Landlord: Intervest-One Ocean Plaza,Ltd.
00 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
As to Tenant: Registry Magic, Inc.
Xxx X. Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
or to such address as either party may from time to time direct by notice in
writing. Except as herein otherwise provided, any such notice shall be deemed
to be given or delivered at the time of mailing. The failure by Tenant to give
proper and timely notice to Landlord shall preclude Tenant from all rights to
which the notice relates.
ARTICLE XXIII
Miscellaneous
Section 23.1 Financial Statements. Throughout the Term of this Lease, Landlord
may periodically request from Tenant its most current and complete financial
statement including, but not limited to, its balance sheet and profit and loss
statement.
Section 23.2 Estoppel Certificates. Each party agrees, at any time and from
time to time, as requested by the other party to execute and deliver to the
other a statement certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), certifying the dates to
which the Monthly Base Rent and Additional Rent have been paid, stating whether
or not, the other party is in default in performance of any of its obligations
under this Lease, and, if so, specifying each such default and stating whether
or not any event has occurred which with the giving of notice or passage
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of time, or both, would constitute such a default, and, if so, specifying each
such event. Any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such statements
such other information concerning this Lease as Landlord may reasonably
request. It shall be a condition precedent to the Landlord's obligation to
deliver possession of the Premises to the Tenant, that Tenant execute an
estoppel certificate accepting the Premises and acknowledging the Lease. In the
event Tenant fails to comply with this Section, such failure shall constitute a
material breach of the Lease. If Tenant fails to execute the initial estoppel
certificate, Rent shall continue to accrue but Landlord shall be under no
obligation to deliver possession of the Premises.
Section 23.3 Approval by Superior Mortgagee. This Lease shall become binding
upon Landlord upon Landlord's execution and approval of the Lease by Landlord's
Superior Mortgagee for the building. Tenant agrees that Landlord may make
modifications to this Lease, if required by Landlord's Superior Mortgagee,
which modifications shall be binding upon Tenant without further signature,
provided such modifications do not materially impair Tenant's rights hereunder
or materially increase Tenant's obligations hereunder.
Section 23.4 Recordation. This Lease shall not be recorded in the Public
Records of Palm Beach County, Florida, or in any other place, by Tenant without
the prior written consent of Landlord. Tenant shall execute, acknowledge and
deliver to Landlord for purposes of recording, such memorandum of this Lease as
Landlord may request for the purpose of obtaining the benefits of Section
713.10 of the Florida Statutes (or any successor legislative provision) which
applies to mechanics liens. In no event shall such memorandum set forth the
rent or other charges payable by the Tenant under this Lease; and any such
memorandum shall state expressly that it is executed pursuant to the provisions
contained in this Lease, and that it is not intended to and shall not be deemed
to change, vary or otherwise affect any of the terms, covenants, conditions
and/or provisions of this Lease.
If such memorandum is recorded, Tenant, upon request of Landlord, shall
forthwith execute, acknowledge and deliver any and all documents which Landlord
may require so as to release such memorandum from record. Furthermore, such
memorandum shall provide that Tenant, for itself and its heirs, personal
representatives, successors and assigns, does hereby make, constitute and
appoint any person coming within the definition of Landlord herein, and any
officer of any entity coming within such definition, as its, his, her or their
attorney-in-fact and in its, his, her or their name, place and xxxxx, to
execute and acknowledge, whenever desired by Landlord, any instrument which
Landlord may deem appropriate to release such memorandum from record and shall
further provide that such appointment is coupled with an interest and is not
revocable by Tenant, or any heir, personal representative, successor or assign
of Tenant.
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Section 23.5 Entire Agreement, etc. This Lease and the writing referred to
herein constitute the entire understanding between the parties and shall bind
the parties, their successors and assigns. No representations, except as herein
expressly set forth, have been made by any party to the other, and this Lease
cannot be amended, modified or canceled, except by a writing, signed by
Landlord and Tenant during the term of this Lease. The headings and captions
contained in this Lease are inserted for convenience only and shall not be
deemed part of or be used in construing this Lease.
Section 23.6 Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Florida. If any provision of this
Lease or the application thereof to any person or circumstance shall, for any
reason and to any extent be invalid or unenforceable, the remainder of this
Lease and the application of that provision to other persons or circumstances
permitted by law shall apply. The table of contents, captions, headings and
titles in this Lease are solely for convenience of reference and shall not
affect its interpretation. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. Each covenant, agreement, obligation, or other provision
of this Lease on Tenant's part to be performed, shall be deemed and construed
as a separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year first
hereinabove written.
LANDLORD:
INTERVEST-ONE OCEAN PLAZA, LTD.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
I.P., Ltd., its General Partner
Xxxx X. Xxxxxxxx, President
TENANT:
REGISTRY MAGIC INC.
(a Florida corporation)
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
CEO and President
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Exhibit 2
RULES AND REGULATIONS
FOR THE OCEAN PLAZA BUILDING
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the demised premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space, or in the public
hall of the building, either by any tenant or by jobbers, or others in the
delivery or receipt of merchandise, any hand trucks except those equipped by
rubber tires and safeguards.
2. Freight, furniture, business equipment, merchandise and bulky
matter of any description shall be delivered to and removed from the premises
only on the freight elevators and through the service entrances and corridors,
and only during hours and ln a manner approved by Landlord. Landlord reserves
the right to inspect all freight to be brought into the building and to exclude
from the building all freight which violates any of the Rules and Regulations
or the lease of which these Rules and Regulations are a part.
3. Tenant and Tenant's employees and agents shall not solicit business
in the parking or other common areas, nor shall Tenant distribute any handbills
or other advertising matter in automobiles parked in the parking area or in
other common areas.
4. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from
the violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
5. The Tenant may not change (whether by alteration, replacement,
rebuilding or otherwise) the exterior color and/or architectural treatment of
the demised premises or of the building in which the same relocated, or any
part thereof.
6. Tenant will not place or suffer to placed or maintained on any
exterior door, wall or window of the leased premises any sign, awning or canopy
or advertising matter or other thing of any kind, and will not place thereon or
maintain any decoration, lettering, advertising matter or other thing except as
may be approved by the Landlord.
7. Tenant shall not place anything or allow anything to be place near
the glass or any window, door, partition or wall which may appear unsightly for
outside premises.
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8. Tenant shall maintain the show windows in a clean, neat and
orderly condition.
9. No Tenant shall xxxx, paint, drill into, or ln any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of the Landlord, and as Landlord may direct. No Tenant shall
lay linoleum or other similar floor covering, so that the same shall come in
direct contact with the floor of the demised premises and, if linoleum or other
similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste or other
material, soluble in water, the use of cement or other similar adhesive
material being expressly prohibited.
10. No wires or cable, or lines shall be brought into the leased
premises, nor shall there be permitted to operate any electrical device from
which may emanate electrical waves which may interfere with or impair radio or
television broadcasting or reception from or in the building.
11. Tenant shall not install any radio or television antenna on the
roof, or on, or in any part of the inside or the outside of the building other
than inside the leased premises.
12. Tenants shall not use any illumination or power for the operation
of any equipment or device other than electricity which shall be provided by
the Landlord through its wiring installations into Tenant's meter.
13. The Landlord may retain a pass key to the premises and be allowed
admittance thereto at all times to enable its representatives to examine or
exhibit said premises from time to time. No additional locks or bolts of any
kind shall be placed upon any of the doors or windows by any Tenant, nor shall
any changes be made in existing locks or mechanism thereof. Each Tenant must,
upon the termination of this Tenancy, restore to the Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise procured
by, such Tenant, and in the event of the loss of any keys so furnished, such
Tenant shall pay to Landlord the cost thereof.
14. Tenant agrees that Landlord shall have the right to prohibit the
continued use by Tenant of any unethical or unfair method of business
operation, advertising or interior display, if, in Landlord's opinion, the
continued use thereof would impair the reputation of the premises as a
desirable place to shop or is otherwise out of harmony with the general
character thereof, and upon notice from Landlord, Tenant shall forthwith
refrain from or discontinue such activities.
15. Tenant shall not bring or permit to be brought or kept in or on
the demised premises, any inflammable, combustible or explosive fluid,
material, chemical or
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substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the demised
premises.
16. Tenant shall at all times maintain an adequate number of suitable
fire extinguisher on its premises for use in case of local fires, including
electrical or chemical fires.
17. Tenant shall not operate, or permit to be operated, any musical or
sound producing instrument or device inside or outside the leased premises
which may be heard outside the leased premises.
18. The Tenant must obtain and maintain in effect all permits and
licenses necessary for the operation of Tenant's business as herein provided.
19. Except for passenger automobiles parked in designated areas of the
garage, the Tenant shall not bring or permit to be brought into the building
any bicycle, or any vehicle, or dog, (except in the company of a blind person)
or other animal or bird.
20. Tenant shall use, at Tenant's cost, pest extermination on a
regular basis.
21. Tenant shall not burn any trash or garbage of any kind in or about
the leased premises.
22. Tenants shall have the option of cleaning their own suites or of
individually contracting with the janitorial firm selected by the Landlord as
having the exclusive right to clean in the building. Tenants shall be
responsible for the cleaning of their own spaces and the removal of rubbish and
debris.
23. Tenant hereby acknowledges that ownership of the Real Estate may
be converted to that of a condominium at some date in the future. If and when
the Landlord makes the leased premises available for condominium ownership,
subject in all respects to the prior written approval of the owner and holders
of the first mortgage now or hereafter affecting the property, Landlord agrees
that Tenant shall have the "right of first refusal" with respect to acquiring
ownership of the leased premises.
24. Tenant acknowledges and agrees that the business hours are from
8:00 a.m. to 6:00 p.m. Monday through Friday; 8:00 a.m. to 1:00 p.m. on
Saturday, and excludes Sundays and all days observed by the state or federal
government as legal holidays.
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EXHIBIT 3
SPECIAL PROVISIONS
1.) Tenant hereby accepts the Leased Premises in its current "as-is"
condition.
2.) Tenant hereby agrees that acceptance of this Lease Agreement by
Landlord is contingent upon the execution of leases by Landlord for
Suites 202, 204, and 208 located in the One Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx Xxxxx, Xxxxxxx, by no later than September 1, 1997.
