OFFICE LEASE
THIS LEASE ("Lease") is made as of the 3rd day of November, 1999, by
and between ZENITH PROFESSIONAL CENTER, INC., a Florida limited partnership
("Landlord"), and FIRST COLONIAL SECURITIES GROUP, INC., a New Jersey
corporation authorized to do business in the State of Florida ("Tenant").
WITNESSETH:
1. PREMISES: COMMON AREAS: Landlord leases to Tenant and Tenant leases
from Landlord the premises in the commercial office building located at 0000
Xxxxxxxx Xxxxx, Xxxx xx Xxxx Xxxxx, Xxxxxx of Palm Beach, Florida (together with
the covered and uncovered parking facilities sometimes collectively referred to
herein as the "Building") known by that certain suite number set forth in the
Basic Lease Information Rider (the "BLI Rider") attached to the front of this
Lease and incorporated into this Lease by this reference, which space is more
particularly shown on the floor plan attached hereto as Exhibit "A" and by this
reference incorporated herein (the "Premises"). The parties hereby agree that
the Premises contain the number of net rentable square feet set forth in the BLI
Rider. In addition to the Premises, Tenant has the right to use, in common with
others, the lobby, public entrances, public stairways and public elevators of
the Building if any. The common areas serving the Building, including those
referenced above, the parking facilities, and all others, will at all times be
subject to Landlord's exclusive control and management in accordance with the
terms and provisions of this Lease.
2. LEASE TERM, LEASE DATE: The lease term (the "Lease Term") is for the
period of time set forth in the BLI Rider, commencing on the Lease commencement
date set forth in the BLI Rider (the "Lease Commencement Date") and ending on
the Lease expiration date set forth in the BLI Rider (the "Expiration Date").
Tenant's obligation to pay all rent, including Base Rent, Additional Rent and
Other Rent, (collectively, "Rent"), as such terms are hereafter defined, will
commence on the rent commencement date set forth in the BLI Rider (the "Rent
Commencement Date"). Notwithstanding the foregoing, the parties agree and
acknowledge that the aforesaid Lease Commencement Date and/or the Rent
Commencement Date are subject to change pursuant to the work letter attached
hereto as Exhibit "B" and by this reference incorporated herein (the "Work
Letter"), including, but not limited to, Sections 6 and/or 7 thereof
3. RENT:
(a) Base Rent. During the Lease Term, Tenant will pay as the base
rent for the Premises (the "Base Rent") the amounts set forth in the BLI Rider,
with same being payable without demand, setoff or deduction, in advance, on or
before the first day of each month, in equal monthly installments of the amounts
set forth in the BLI Rider, plus applicable sales and other such taxes as are
now or later enacted.
(b) Escalations to Base Rent. Commencing on the first anniversary of
the Rent Commencement Date, and on each subsequent anniversary of the Rent
Commencement Date (each such date an "Adjustment Date"), the Base Rent shall be
increased annually to an amount equal to the Base Rent in effect during the
first Lease Year, multiplied by a fraction, the numerator of which shall be the
"Index" (as defined below) published for the tenth (10th) calendar month of the
immediately preceding Lease Year, and the denominator of which shall be the
Index published for the calendar month of the Rent Commencement Date provided,
however, that the increased Base Rent for each Lease Year shall not be: (i) less
than the Base Rent for the prior Lease Year multiplied by 103% or (ii) greater
than the Base Rent for the prior Lease Year multiplied by 105%.
The Base Rent, as increased, shall then be payable during the ensuing Lease Year
in the same manner as otherwise provided for the payment of the Base Rent. The
"Index" shall be defined as the "Consumer Price Index for all Urban
Consumers-All Cities (1982-84 = 100)" (the national index). (Such index being
that published by the Bureau of Labor Statistics of the United States Department
of Labor.) If for any reason the Index is not published for any particular month
during the Lease Term as may be required for the foregoing computation of the
increased Base Rental, then the
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Index next published shall be used in its stead; and in the event that the Index
shall no longer be published, or if the method of computing the Index shall be
substantially altered, then another index generally recognized as authoritative
and reflecting data substantially similar to the information used to compute the
Index shall be substituted for the Index as reasonably determined by Landlord.
In the event that for any reason whatsoever (whether due to the lack of an index
or dispute or otherwise), Landlord is unable to notify Tenant of the increased
Base Rent payable during any Lease Year, Tenant shall continue to pay the
monthly installments of the Base Rent payable during the immediately preceding
Lease Year, until such time as notice of the appropriate Base Rent amount is
given, at which time Tenant shall promptly pay the full amount of any deficiency
resulting from the underpayment of Base Rent.
(c) Additional Rent. Tenant shall pay, as Additional Rent
("Additional Rent"), prorated for that part of the Lease Term within the
applicable calendar year, Tenant's Percentage Share ("Tenant's Percentage
Share"), as hereafter defined, of the total amount of (i) the annual operating
expenses ("Operating Expenses"), as hereafter defined, and (ii) the annual taxes
("Taxes"), for the Building. For all years during the Lease Term, Landlord
shall, in advance, reasonably estimate for each such calendar year the total
amount of the Additional Rent. One-twelfth (1/12) of the estimated Additional
Rent (plus all applicable taxes now existing or hereafter enacted) shall be
payable monthly, along with the monthly payment of the Base Rent. Landlord shall
use its best efforts to make such estimate on or before January 1 of each
calendar year. On or before March 31 following a year for which Additional Rent
is payable hereunder, Landlord shall use its best efforts to provide Tenant with
the amount of the actual Additional Rent for the previous year, and a reasonable
breakdown of the items included therein, together with an invoice for any
underpayments of Additional Rent (to be paid within thirty (30) days following
receipt of such invoice, or to be included with the next monthly payment of
Rent, whichever shall first occur) or a check to Tenant to reimburse Tenant for
any overpayment of Additional Rent. For a period of thirty (30) days after
receipt of the aforedescribed reconciliation statements, Tenant shall have the
right, upon advance notice, to visit Landlord's office in the Building during
Business Hours, as hereafter defined, to inspect its books and records
concerning the Additional Rent. The delivery of the aforedescribed projection
statement after January 1 and/or the reconciliation after March 31 shall not be
deemed a waiver of any of Landlord's rights to collect monies and/or a waiver of
any of the duties and obligations of Tenant as described in this section or as
provided elsewhere in this Lease.
(d) Definition of Material Terms.
(i) The term "Operating Expenses" shall mean (1) any and all
costs of ownership, management, operation and maintenance of the Building,
including, without limitation, wages, salaries, professionals' fees, taxes,
insurance, benefits and other payroll burdens of all employees, Building
Management fee not to exceed five percent (5%) of gross receipts, janitorial,
maintenance, guard and other services, building management office rent or rental
value, power, fuel, water, waste disposal, landscaping care, lighting, garbage
removal, pest control, window cleaning, system maintenance, parking area care,
and any and all other utilities, materials, supplies, maintenance, repairs,
insurance applicable to the Building and Landlord's personal property and
depreciation on personal property, and (2) the cost (amortized over such
reasonable period as Landlord shall determine together with interest at the rate
of twelve percent (12%) per annum on the unamortized balance) of any capital
improvements made to the Building by Landlord after the date of this Lease that
reduce other Operating Expenses or made to the Building by Landlord after the
date of this Lease that are required under any governmental law or regulation;
provided, however, that Operating Expenses shall not include real property
taxes, depreciation on the Building other than depreciation on carpeting in
public corridors and common areas, costs of tenants' improvements, real estate
broker's commissions, interest and capital items other than those referred to in
subsection (2) above. Landlord shall maintain accounting books and records in
accordance with sound accounting principles. In determining the amount of
Operating Expenses for any calendar year, (i) if less than one-hundred percent
(100%) of the Building shall have been occupied by tenants and fully used by
them, Operating Expenses shall be increased to an amount equal to the like
operating expenses which would normally be expected to be incurred had such
occupancy been one-hundred percent (100%) and had such full utilization been
made during the entire period or (ii) if Landlord is not furnishing particular
work or services (the cost of which if performed by Landlord would constitute an
Operating Expense) to a tenant who has undertaken to perform such work or
service in lieu of the performance thereof by Landlord, Operating Expenses shall
be deemed to be increased by an amount equal to the additional expense which
would reasonably have been incurred during such period by Landlord had Landlord
furnished
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such work or service to such tenant. Landlord hereby agrees to deduct each year
from the amount of the Operating Expenses the total amount of any and all sums,
amounts or charges paid by Tenant or other tenants of the Building directly to
Landlord or its agent for specific tenant requested services.
(ii) The term "Taxes" shall mean the gross amount of all
impositions, taxes, assessments (special or otherwise), water and sewer
assessments and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitutes therefor, including all taxes whatsoever (except for taxes for
the following categories which shall be excluded from the definition of Taxes:
any inheritance, estate, succession, transfer or gift taxes imposed upon
Landlord or any income taxes specifically payable by Landlord as a separate
tax-paying entity without regard to Landlord's income source as arising from or
out of the Building and/or the land on which it is located) attributable in any
manner to the Building, the land on which the Building is located or the rents
(however the term may be defined) receivable therefrom, or any part thereof, or
any use thereon, or any facility located therein or used in conjunction
therewith or any charge or other amount required to be paid to any governmental
authority, whether or not any of the foregoing shall be designated "real estate
tax", "sales tax", "rental tax", "excise tax", "business tax", or designated in
any other manner.
(iii) The term "Tenant's Percentage Share" shall mean the
percentage set forth in the BLI Rider. Landlord and Tenant acknowledge that
Tenant's Percentage Share has been obtained by taking the net rentable area of
the Premises, which Landlord and Tenant hereby stipulate for all purposes is the
amount set forth in the BLI Rider, and dividing such number by the total net
rentable area of the Building, which Landlord and Tenant hereby stipulate for
all purposes is 30,872 net rentable square feet, and multiplying such quotient
by 100. In the event Tenant's Percentage Share is changed during a calendar year
by reason of a change in the net rentable area of the Premises, Tenant's
Percentage Share shall thereafter mean the result obtained by dividing the new
net rentable area of the Premises by 30,872 net rentable square feet and
multiplying such quotient by 100 and for the purposes of Section 3.(b) Tenant's
Percentage Share shall be determined on the basis of the number of days during
such calendar year applicable to each such Tenant's Percentage Share.
(iv) The term "Rent" shall mean the sum of the Base Rent and the
Additional Rent and the Parking Rent and, in the event of a default hereunder by
Tenant, shall also include Other Rent. The term "Other Rent" is sometimes used
herein to refer to any and all other sums payable by Tenant hereunder,
including, but not limited to, parking charges. Tenant agrees to pay Other Rent
upon demand by Landlord and that Other Rent is to be treated in the same manner
as Rent hereunder, both in terms of the lien for Rent herein provided and in
terms of the default provisions herein contained.
(e) Related Provisions.
(i) Tenant covenants and agrees to pay a late charge for any
payment of Rent not received by Landlord on or before the tenth (10th) day of
each month and for any other payment, such as Other Rent, not received by
Landlord on or before the date when same is due. Said late charge shall be
computed from the first day of the month in the case of Rent and from the date
when same is due in the case of Other Rent. The amount of the late charge shall
be an amount equal to the interest accruing on the sum(s) outstanding, with such
interest commencing on the dates aforesaid, ending on the date of receipt of the
sum(s) by Landlord and having a rate equal to eighteen percent (18%) per annum.
In the event any late charge is due to Landlord, Landlord shall advise Tenant in
writing and Tenant shall pay said late charge to Landlord along with and in
addition to the next payment of Rent.
(ii) Landlord shall notify Tenant in writing of any and all
adjustments to Base Rent. In addition to Base Rent and Additional Rent, Tenant
shall and hereby agrees to pay to Landlord each month a sum equal to any sales
tax, tax on rentals and any other similar charges now existing or hereafter
imposed, based upon the privilege of leasing the space leased hereunder or based
upon the amount of rent collected therefor.
(iii) If Tenant's possession of the Premises commences on any day
other than the first day of the month, Tenant shall occupy the Premises under
the terms of this Lease and the pro rata portion of the Rent
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shall be paid by Tenant; provided, however, that in such an event the Lease
Commencement Date, for the purposes of this Lease, shall be deemed to be the
first day of the month immediately following the month in which possession is
given.
(iv) Additional Rent for the final months of this Lease is due
and payable even though it may not be calculated until subsequent to the
Expiration Date of the Lease. Tenant expressly agrees that Landlord, at
Landlord's sole discretion, may apply the Security Deposit, as hereafter
defined, in full or partial satisfaction of any Additional Rent due for the
final months of this Lease. If said Security Deposit is greater than the amount
of any such Additional Rent and there are no other sums or amounts owed Landlord
by Tenant by reason of any other terms, provisions, covenants or conditions of
this Lease, then Landlord shall refund the balance of said Security Deposit to
Tenant as provided herein. Nothing herein contained shall be construed to
relieve Tenant, or imply that Tenant is relieved, of the liability for or the
obligation to pay any Additional Rent due for the final months of this Lease by
reason of the provisions of this Section, nor shall Landlord be required first
to apply said Security Deposit to such Additional Rent if there are any other
sums or amounts owed Landlord by Tenant by reason of any other terms,
provisions, covenants or conditions of this Lease.
4. SECURITY DEPOSIT: Tenant, concurrently with the execution of this
Lease, has deposited with Landlord the amount set forth in the BLI Rider as the
security deposit ("Security Deposit") hereunder. This sum will be retained by
Landlord as security for the payment by Tenant of the Rent and Other Rent and
for the faithful performance by Tenant of all the other terms and conditions of
this Lease. In the event Tenant fails to faithfully perform the terms and
conditions of this Lease, Landlord, at Landlord's option, may at any time apply
the Security Deposit or any part thereof toward the payment of the Rent and/or
Other Rent and/or toward the performance of Tenant's obligations under this
Lease. In such event, within five (5) days after notice, Tenant will deposit
with Landlord cash sufficient to restore the Security Deposit to its original
amount. Landlord will return the unused portion of the Security Deposit to
Tenant within thirty (30) days after the Expiration Date if Tenant is not in
violation of any of the provisions of this Lease. Landlord may (but is not
obligated to) exhaust any or all rights and remedies against Tenant before
resorting to the Security Deposit. Landlord will not be required to pay Tenant
any interest on the Security Deposit nor hold same in a separate account. If
Landlord sells or otherwise conveys the Building, Landlord will deliver the
Security Deposit or the unapplied portion thereof to the new owner. Tenant
agrees that if Landlord turns over the Security Deposit or the unapplied portion
thereof to the new owner, Tenant will look to the new owner only and not to
Landlord for its return upon expiration of the Lease Term. If Tenant assigns
this Lease with the consent of Landlord (as expressly provided for in this
Lease), the Security Deposit will remain with Landlord for the benefit of the
new tenant and will be returned to such tenant upon the same conditions as would
have entitled Tenant to its return.
5. USE:
(a) General Office Use. Tenant will use and occupy the Premises
solely for general office use and solely for the operation of the business set
forth in the BLI Rider. Tenant acknowledges that its type of business, as above
specified, is a material consideration for Landlord's execution of this Lease.
Tenant will not commit waste upon the Premises nor suffer or permit the Premises
or any part of them to be used in any manner, or suffer or permit anything to be
done in or brought into or kept in the Premises or the Building, which would:
(i) violate any law or requirement of public authorities, (ii) cause injury to
the Building or any part thereof, (iii) annoy or offend other tenants or their
patrons or interfere with the normal operations of HVAC, plumbing or other
mechanical or electrical systems of the Building or the elevators installed
therein, (iv) constitute a public or private nuisance, or (v) alter the
appearance of the exterior of the Building or of any portion of the interior
other than the Premises pursuant to the provisions of this Lease. Tenant agrees
and acknowledges that Tenant shall be responsible for obtaining any special
amendments to the certificate of occupancy for the Premises and/or the Building
and any other governmental permits, authorizations or consents required solely
on account of Tenant's use of the Premises.
(b) Prohibited Uses. Tenant hereby represents, warrants and agrees
that Tenant's business is not and shall not be used, (i) for the business of
photographic, multilith or multigraph reproductions or offset printing; (ii) as
a savings bank, a savings and loan company open to the general public, (iii) as
a restaurant or bar or for the sale of
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confectionery, soda, beverages, sandwiches, ice cream or baked goods or for the
preparation, dispensing or consumption of food or beverages in any manner
whatsoever, (iv) as a news or cigar stand, (v) as an employment agency, labor
union office, or music studio, school (except for the training of employees of
Tenant), or (vi) as a xxxxxx shop or beauty salon, nor shall Tenant's use
conflict with any applicable zoning or land use codes or laws applicable to the
Building
6. DELAY OF POSSESSION:
(a) Holdover of Prior Tenant. If Landlord is unable to deliver
possession of the Premises by reason of the holding over of any prior tenant or
any other reason, the payment of Rent shall not commence until Landlord delivers
possession of the Premises to Tenant. However, nothing set forth herein will
operate to extend the Lease Term and said abatement will be the full extent of
Landlord's liability to Tenant on account of a delay in delivery of possession
of the Premises.
(b) Inability to Deliver Premises. Notwithstanding Section 6.(a)
above, if Landlord is unable to deliver possession of the Premises to Tenant
within ninety (90) days after the Lease Commencement Date, by reason of anything
other than fault on the part of Tenant or any of Tenant's Agents, as hereafter
defined, either Landlord or Tenant will have the right to terminate this Lease
upon written notice delivered to the other party within ten (10) days after the
lapse of said 90-day period. Upon such termination, Landlord and Tenant will
each be released from all further liability under this Lease. The failure to
complete minor or insubstantial details of construction, decoration or
mechanical adjustments shall not be considered a delay in delivery of the
Premises.
7. ACCEPTANCE OF PREMISES: LANDLORD'S WORK: Improvements, if any, to be
made to the Premises by Tenant shall be made in accordance with the Work Letter.
Improvements, if any, to be made to the Premises by Landlord are specifically
set forth in the Work Letter and there are no others. All improvements made to
the Premises, whether by Landlord or Tenant, will become the property of
Landlord when attached to or incorporated into the Premises. Such property will
remain the property of Landlord upon termination of this Lease. The taking of
possession by Tenant (or any permitted assignee or subtenant of Tenant) of all
or any portion of the Premises for the conduct of business will be deemed to
mean that Tenant has found the Premises, and all of their fixtures and
equipment, acceptable.
8. PARKING:
(a) Unassigned Parking. As long as Tenant is not in default under
this Lease, Landlord will provide Tenant during the Lease Term with unassigned,
nonexclusive parking spaces in the parking areas for the number of automobiles
set forth in the BLI Rider in the uncovered parking area of the building (the
"Unassigned Parking Areas"). Such parking spaces may be used only by principals,
employees and the business invitees of Tenant visiting the Premises of Tenant.
(b) Reserved Parking in Covered Parking Areas. Tenant shall be
entitled to use of the number of reserved parking spaces (the "Reserved Parking
Spaces") set forth in the BLI Rider, which Reserved Parking Spaces are located
in the covered parking area of the Building (the "Covered Parking Area"). Tenant
shall pay to Landlord Parking Rent for the Reserved Parking Spaces in the
amounts set forth in the BLI Rider. The Parking Rent charged for the Reserved
Parking Spaces shall commencing on the first month of the fourth (4th) Lease
Year and be increased in the same manner as Base Rent, as set forth in Section
3.(j) above. The parking rates charged hereunder will be in accordance with
prevailing market conditions, consistent with office buildings of similar
quality to and in the immediate geographic area of the Building. Landlord shall
provide Tenant reasonable advance written notice of any increase in Parking
Rent. Tenant will be billed for monthly Parking Rent charges along with normal
Rent billing and Tenant may elect to have guest and visitor parking billed at
the same time. If Tenant fails to pay parking charges when due, Landlord may, by
written notice to Tenant, elect to proceed as provided under the default
provisions of this Lease and/or cease to provide all or any of the foregoing
parking spaces.
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(c) Parking Controls. Landlord has and reserves the right to alter
the methods used to control parking and the right to establish such controls and
rules and regulations (such as parking stickers to be affixed to vehicles)
regarding parking that Landlord may deem desirable. Without liability, Landlord
will have the right to tow or otherwise remove vehicles improperly parked,
blocking ingress or egress lanes, or violating parking rules, at the expense of
the offending tenant and/or owner of the vehicle.
9. BUILDING SERVICES:
(a) General. In general, the services set forth below will be
provided by Landlord at a service level set, defined and regulated by Landlord
consistent with office buildings of similar quality to and in the same immediate
geographic area as the Building. During the Lease Term, the regular business
hours (the "Business Hours") of the Building will be 8:00 a.m. to 6:00 p.m.,
Monday through Friday, and on Saturday, 8:00 a.m. to 6:00 p.m. on a limited
basis so long as Tenant provides Landlord with advance notice of Tenants
requirement for same, except holidays generally recognized by state and federal
governments. The Building will be accessible to Tenant, its subtenants, agents,
servants, employees, contractors, invitees or licensees (collectively, "Tenant's
Agents") at all times during Business Hours.
(b) Specific Services Provided.
(i) Janitorial Service. Landlord agrees to provide during the
Lease Term janitorial services for the Premises customarily provided in office
buildings of similar quality to and in the same immediate geographic area as the
Building, all as more particularly described on Exhibit "D" hereto and by this
reference incorporated herein. Janitorial service will be provided after
Business Hours at the Building, but no janitorial services will be provided on
Saturdays, Sundays and holidays generally recognized by state and federal
government. Should Tenant require additional janitorial services beyond those
customarily provided by Landlord, Tenant may request same in writing from
Landlord and if Landlord agrees to provide such services, Tenant will be billed
for same by Landlord at a reasonable rate and those costs and expenses when
billed will be Other Rent due under this Lease.
(ii) Electricity. During the Lease Term, electric power will be
available for the purposes of lighting and general office equipment use in
amounts consistent with Building standard electrical capacities and will be
separately metered for the Premises. Tenant shall be responsible for all
payments to the utility authority providing electricity. The Building standard
mechanical and electrical systems are designed to accommodate loads generated by
lights and office equipment such as typewriters, dictating equipment, photocopy
equipment, etc., up to the standard maximum capacities as set forth in the Work
Letter attached hereto as Exhibit "B". Tenant acknowledges that Tenant's
intended use of the Premises excludes material use of the Premises beyond
Business Hours. Material use shall be deemed to mean the operation of an
additional "shift", either full or part time, or use of the Premises after
Business Hours in any way that may preclude or interfere with the providing of
janitorial services to the Premises. In the event Tenant's use of the Premises
requires more electrical power than set forth above, whether by intensity of
use, load or type of equipment, Tenant may then be billed for such additional
use and such xxxxxxxx will be billed to Tenant as Other Rent. Landlord will
utilize Landlord's customary method of billing Tenant for excess electrical
power consumption. At Landlord's option, Landlord, at Tenant's expense, may have
an engineer estimate Tenant's usage, and xxxx Tenant at standard utility rates
for the excess usage or install a submeter for the purposes of monitoring
Tenant's excess power consumption. Landlord and Tenant agree that Landlord's
implementation of the electrical monitoring and billing procedures set forth
herein shall in no way be construed so as to deem Landlord a private or public
utility company. Landlord reserves the right, after Business Hours, to turn off
all unnecessary lighting in the unoccupied areas of the Building and the
Premises to minimize the energy consumption of the Building in both the common
areas and the Premises.
(iii) HVAC Services. Landlord agrees to provide, during Business Hours,
heating, ventilating and air conditioning for the purposes of comfort control by
way of an individual HVAC unit for the Premises. Landlord and Tenant agree that
Landlord's HVAC system is not designed to cool machinery and equipment. Tenant
shall obtain and provide to Landlord, at Tenant's sole cost and expense, a
written service and maintenance
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agreement for the HVAC system at the Premises with a service contracting company
reasonably acceptable to Landlord. Landlord shall make available to Tenant from
time to time a list of approved service contractors. Tenant shall provide to
Landlord, on an annual basis, renewals of the service contract for the HVAC
system.
(iv) Water and Sewer. Landlord agrees to provide municipally
supplied cold water and sewer services to the common areas for lavatory
purposes.
(v) Elevator Service. Landlord will provide elevator service
during Business Hours and, at Landlord's sole discretion, Landlord may provide
restricted elevator service during non-Business Hours.
(c) Interruption of Services. It is understood and agreed that
Landlord does not warrant that any of the services referred to above, or any
other services which Landlord may supply, will be free from interruption. Tenant
acknowledges that any one or more of such services may be suspended by reason of
accident or repairs, alterations or improvements necessary to be made, or by
strikes or lockouts, or by reason of operation of law, or other causes beyond
the control of Landlord. No such interruption or discontinuance of service will
be deemed an eviction or a disturbance of Tenant's use and possession of the
Premises or any part thereof, or render Landlord liable to Tenant for damages or
abatement of Rent or relieve Tenant from the responsibility of performing any of
Tenant's obligations under this Lease.
10. SECURITY:
(a) Landlord's Responsibility. Landlord shall: (1) install a system
to reasonably control access to the Building and parking areas, which shall be
monitored by a central monitoring station on a twenty-four (24) hour basis.
(b) Tenant's Responsibility. Tenant shall: (1) abide by all
policies, procedures and rules and regulations for use of the access system, (2)
report promptly the loss or theft of all keys which would permit unauthorized
entrance to the Premises, Building or parking areas, (3) report to Landlord the
employment or discharge of employees and their vehicle's make, model, and
license number, (4) promptly report to Landlord door-to-door solicitation or
other unauthorized activity in the Building or parking areas, and (5) promptly
inform the Landlord's Building manager in the event of a break-in or other
emergency.
(c) Interruption of Security. Tenant acknowledges that the above
security provisions may be suspended or modified at Landlord's sole discretion
or as a result of causes beyond the reasonable control of Landlord. No such
interruption, discontinuance or modification of security service will constitute
an eviction, constructive eviction, or a disturbance of Tenant's use and
possession of the Premises, and further, no interruption, discontinuance or
modification of security service will render Landlord liable to Tenant or
third-parties for damages, abatement of Rent, or otherwise, or relieve Tenant of
the responsibility of performing Tenant's obligations under this Lease.
11. REPAIRS AND MAINTENANCE:
(a) Landlord's Responsibilities. During the Lease Term, Landlord
shall define, set, and maintain the level of repairs and maintenance for the
Building, the common areas, and all other areas serving the Building, in a
manner comparable to office buildings of similar quality to and in the immediate
geographic area of the Building. Landlord's responsibilities with respect to
this paragraph are as follows: (1) the structural and roof systems of the
Building and parking areas, (2) the Building standard electrical and mechanical
systems, (3) the primary water and sewer systems of the Building, (4) the
Building common areas and the common area furniture, fixtures, and equipment,
(5) the landscaped areas in and about the Building, (6) the parking areas and
(7) replacement of Building standard light bulbs in the common areas.
(b) Tenant's Responsibilities. During the Lease Term, Tenant will
repair and maintain the following at Tenant's expense:
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(i) The interior portion of the demising walls, the interior
partition walls of the Premises and their wall-covering, and the entry door to
the Premises.
(ii) The electrical and mechanical systems not considered
Building standard which have been installed by either Landlord or Tenant, for
the exclusive use and benefit of Tenant. The following examples are for
clarification and are not all inclusive: (a) electrical services for computers
or similar items, (b) projection room equipment such as dimmers, curtains, or
similar items, (c) water closet plumbing, kitchen plumbing or similar items, (d)
HVAC for other than comfort cooling in the Premises, (e) security systems for
the Premises, (f) telephone system for the Premises; and (g) other similar
systems.
(iii) Except for the janitorial services, if any, set forth in
Section 11.(a) of this Lease, the repair and maintenance of the floor covering
of the Premises, including VAT flooring, ceramic tiles, marble, wood flooring,
or similar coverings, shall be performed by Landlord upon Tenant's request, at
Tenant's expense, and Tenant will be billed for same as Other Rent. At least
once per year, if necessary, Landlord will clean Tenant's carpeting at Tenant's
expense to be billed to Tenant as Other Rent. Should additional cleaning be
requested by Tenant, such cleaning will be available at Tenant's expense and
will be billed to Tenant as Other Rent.
(iv) All cabinets and millwork (regardless of ownership) so long
as said cabinets and millwork are for the exclusive use and benefit of Tenant.
(v) All other personal property, improvements or fixtures, except
Building standard improvements and those items enumerated in Section 11.(a)
hereof. Those items to be repaired and maintained by Tenant include, but are not
limited to, the following: (a) ceiling tiles and ceiling grid, (b) molding or
other woodwork and paneling, (c) light fixtures and bulbs, (d) draperies, blinds
or wall hangings, (e) glass partition walls, (f) water closets, sinks and
kitchen areas, (g) doors and locksets, and (h) vaults, safes, or secured areas.
For the aforesaid items, Landlord may elect, with Tenant's approval (which
approval will not be unreasonably withheld) to maintain and repair same at
Tenant's expense and Tenant will be billed for same as Other Rent.
(c) Repairs and Maintenance, Miscellaneous; Notwithstanding any of
the provisions of this Section 11 to the contrary, Landlord shall have no
responsibility to repair or maintain the Building, any of its components, the
common areas, the Premises, or any fixture, improvement, trade fixture, or any
item of personal property contained in the Building, the common areas, and/or
the Premises if such repairs or maintenance are required because of the
occurrence of any of the following: (i) the acts, misuse, improper conduct,
omission or neglect of Tenant or Tenant's Agents, or (ii) the conduct of
business in the Premises. Should Landlord elect to make repairs or maintenance
occasioned by the occurrence of any of the foregoing, Tenant shall pay as Other
Rent all such costs and expenses incurred by Landlord. Landlord shall have the
right to approve in advance all work, repair, maintenance or otherwise, to be
performed under this Lease by Tenant and all of Tenant's repairmen, contractors,
subcontractors and suppliers performing work or supplying materials. Tenant
shall be responsible for all permits, inspections and certificates for
accomplishing the above. Tenant shall obtain lien waivers for all work done in
or to the Premises.
12. TENANT'S ALTERATIONS:
(a) General. During the Lease Term, Tenant will make no alterations,
additions or improvements in or to the Premises, of any kind or nature,
including, but not limited to, alterations, additions or improvements in, to, or
on, telephone or computer installations (any and all of such alterations,
additions or improvements offer for those set forth in the work letter attached
hereto are collectively referred to in this Section 12 as the "Alteration(s)"),
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Should Landlord consent to any proposed Alterations by
Tenant, such consent will be conditioned upon Tenant's agreement to comply with
all requirements established by Landlord, including safety requirements and the
matters referenced in Section 20 of this Lease. As stated herein, all
Alterations made hereunder will become Landlord's property when incorporated
into or affixed to the Building. However, at Landlord's option Landlord may, at
the expiration of the Lease Term, require
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Tenant, at Tenant's expense, to remove Alterations made by or on behalf of
Tenant and to restore the Premises to their original condition.
13. LANDLORD'S ADDITIONS AND ALTERATIONS: Landlord has the right to
make changes in and about the Building and parking areas. Such changes may
include, but not be limited to, rehabilitation, redecoration, refurbishment and
refixturing of the Building and expansion of or structural changes to the
Building. The right of Tenant to quiet enjoyment and peaceful possession given
under the Lease will not be deemed breached or interfered with by reason of
Landlord's actions pursuant to this paragraph so long as such actions do not
materially deprive Tenant of its use and enjoyment of the Premises.
14. ASSIGNMENT AND SUBLETTING:
(a) Prohibition on Assignment and Subletting. Neither Tenant nor
Tenant's legal representatives or successors in interest by operation of law or
otherwise shall assign, mortgage, hypothecate or otherwise encumber this Lease
or enter into a sublease or license agreement with respect to any portion of the
Premises or permit all or any portion of the Premises to be used by others,
without the prior written consent of Landlord, which consent may be granted by
Landlord in accordance with the terms and conditions of this Lease. Any issuance
or transfer of stock in any corporate tenant or subtenant or any interest in any
non-corporate entity tenant or subtenant, by sale, exchange, merger,
consolidation, operation of law, or otherwise, or creation of new stock or
interests, by which an aggregate of more than fifty (50%) percent of Tenant's
stock or equity interests shall be vested in one or more parties who are not
stockholders or interest holders as of the date of this Lease, however
accomplished, and whether in a single transaction or in a series of related or
unrelated transactions, shall be deemed an assignment of this Lease. This
subsection shall not apply to sales of stock by persons other than those deemed
"insiders" within the meaning of the Securities Exchange Act of 1934 as amended,
which sales are effected through any recognized securities exchange. Any
modification or amendment to any sublease of any portion of the Premises shall
be deemed a further sublease of this Lease.
(b) Request for Consent. If Tenant requests Landlord's consent to a
specific assignment or sublease (a "Transfer"), it shall submit in writing to
Landlord, not later than thirty (30) days prior to any anticipated Transfer, (i)
the name and address of the proposed assignee or subtenant (the "Proposed
Transferee"), (ii) a duly executed counterpart of the proposed agreement of
assignment or sublease, (iii) reasonably satisfactory information as to the
nature and character of the business of the Proposed Transferee, as to the
nature and character of its proposed use of the Premises or portion thereof to
be sublet, and otherwise responsive to the criteria set forth in Subsection
14.(d) and (iv) banking, financial, or other credit information relating to the
Proposed Transferee reasonably sufficient to enable Landlord to reasonably
determine the financial responsibility, creditworthiness, and character of the
Proposed Transferee.
(c) Landlord's Options. Landlord shall have the following options to
be exercised within fifteen (15) business days from submission of Tenant's
request for Landlord's consent to a specific Transfer:
(i) If Tenant proposes to assign this Lease or sublet all or
substantially all of the Premises, Landlord shall have the option to cancel and
terminate this Lease as of the proposed commencement date for the transfer.
(ii) If any proposed sublease shall be for less than all or
substantially all of the Premises or if it shall be for less than the balance of
the Lease Term, Landlord shall have the option of canceling and terminating this
Lease only as to such portion of the Premises and such portion of the Lease Term
covered by the proposed sublease, effective as of the proposed commencement date
of the sublease. If Landlord exercises this option, all Rent for the Premises
shall be equitably apportioned as of the commencement date of the sublease.
(d) Landlord's Consent. If Landlord does not elect one (1) of the
two (2) options provided in Subsection 14.(c), Landlord shall not unreasonably
withhold or delay its consent to a proposed Transfer. Landlord shall
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be deemed to have reasonably withheld its consent to any proposed transfer
unless all of the following conditions have been established to Landlord's
reasonable satisfaction:
(i) The Proposed Transferee has sufficient financial wherewithal
to discharge its obligations under this Lease and the proposed agreement of
assignment or the sublease, as the case may be and as determined by Landlord's
criteria for selecting Building Project tenants and has a net worth,
experience, and reputation which is not less than the greater of (1) the net
worth, experience, and reputation which Tenant had on the Commencement Date, or
(2) the net worth, experience, and reputation of Tenant immediately prior to the
request for Landlord's consent to the proposed Transfer.
(ii) The Proposed Transfer shall not, in Landlord's reasonable
judgment, cause physical harm to the Building or harm to the reputation of the
Building which would result in an impairment of Landlord's ability to lease
space in the Building or a diminution in the rental value of space in the
Building.
(iii) The proposed use of the Premises by the Proposed Transferee
will be a use permitted under this Lease and will not violate any restrictive
covenants or exclusive use provisions applicable to Landlord.
(iv) The Proposed Transferee shall not be any person or entity
which shall at that time be a tenant, subtenant, or other occupant of any part
of the Building Project, or who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to space in the Building during the
six (6) months immediately preceding Tenant's request for Landlord's consent.
(v) The proposed use of the Premises by the Proposed Transferee
will not require alterations or additions to the Premises or the Building
Project to comply with applicable law or governmental requirements and will not
negatively affect insurance requirements or impose environmental risks.
(vi) Any mortgagee of the Building will consent to the proposed
Transfer.
(vii) There shall be no default by Tenant, beyond any applicable
grace period, under any of the terms, covenants, and conditions of this Lease at
the time that Landlord's consent to any such transfer is requested and on the
date of the commencement of the term of any such proposed transfer.
Tenant acknowledges that the foregoing is not intended to be an exclusive list
of the reasons for which Landlord may reasonably withhold its consent to a
proposed transfer. Tenant expressly, knowingly, and voluntarily waives any
right, claim, or remedy otherwise available to Tenant for money damages (nor
shall Tenant claim any money damages by way of set-off, counterclaim, or
defense) based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld or unreasonably delayed its consent or approval to any
proposed transfer pursuant to this Lease. Tenant's sole remedy in such an event
shall be to institute an action or proceeding seeking specific performance,
injunctive relief, or declaratory judgment.
(e) Overages. If Tenant effects any transfer, then Tenant thereafter
shall pay to Landlord a sum equal to (a) the Base Rent, Additional Rent, Parking
Rent, Other Rent, or other consideration paid to Tenant by any transferee which
is in excess of the rent then being paid by Tenant to Landlord under this Lease
for the portion of the Premises so assigned or sublet (on a pro-rated, square
footage basis), and (b) any other profit or gain (after deducting any necessary
expenses incurred) realized by Tenant from the transfer. The net rent, or other
consideration paid to Tenant shall be calculated by deducting from the gross
rent, or other consideration reasonable and customary real estate brokerage
commissions actually paid by Tenant to third parties, tenant improvement
allowances, rent concessions, the actual cost of improvements to the Premises
made by Tenant for the transferee, and other direct out-of-pocket costs actually
incurred by Tenant in connection with the transfer (so long as the costs are
commercially reasonable and are commonly incurred by landlords in leasing
similar space). All sums payable by Tenant pursuant to this paragraph shall be
payable to Landlord as Other Rent immediately upon receipt by Tenant.
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(f) No Release. Notwithstanding Landlord's consent to any
Transfer, Tenant shall remain liable to Landlord for the prompt and continuing
payment of all forms of Rent, payable under this Lease and the performance of
all other covenants of this Lease. Consent by Landlord to a transfer shall not
relieve Tenant from the obligation to obtain Landlord's written consent to any
further transfer. If Landlord consents to a transfer, in no event shall any
permitted transferee assign or encumber this Lease or its sublease, or further
sublet all or any portion of its sublet space, or otherwise suffer or permit the
sublet space or any part thereof to be used or occupied by others, without
Landlord's prior written consent in each instance. If this Lease is nevertheless
assigned, or the Premises are sublet or occupied by anyone other than Tenant,
Landlord may accept rent from such assignee, subtenant, or occupant and apply
the net amount thereof to the rent reserved in this Lease, but no such
assignment, subletting, occupancy, or acceptance of rent shall be deemed a
waiver of the requirement for Landlord's consent set forth in this section or
constitute a novation or otherwise release Tenant from its obligations under
this Lease.
(g) Permitted Subtenants. Notwithstanding any provision of this
Paragraph 14. to the contrary, Tenant shall be entitled to sublease or license
space within the Premises to the following entities which are either wholly
owned subsidiaries or affiliated entities of Tenant: Certified Tax Returns, USA,
Inc.; KWT Consultants, Inc.; Colonial Direct Insurance Consultants; Colonial
Direct Net Bank; Kopple & Xxxxxxxx LLP; Colonial Direct Access, and Colonial
Direct Capital Management, Inc.
15. TENANT'S INSURANCE COVERAGE:
(a) Required Coverages. Tenant agrees that, at all times during the
Lease Term (as well as prior and subsequent thereto if Tenant or any of Tenant's
Agents should then use or occupy any portion of the Premises), it will keep in
force, with an insurance company licensed to do business in the State of
Florida, and acceptable to Landlord, (i) without deductible, commercial general
liability insurance, including coverage for bodily injury and death, property
damage and personal injury and contractual liability as referred to below, in
the amount of not less than the amount set forth in the BLI Rider, combined
single limit per occurrence for injury (or death) and damages to property, (ii)
with deductible of not more than Five Thousand Dollars ($5,000.00), insurance on
an "All Risk or Physical Loss" basis, including sprinkler leakage, vandalism,
malicious mischief, fire and extended coverage, covering all improvements to the
Premises, fixtures, furnishings, removable floor coverings, equipment, signs and
all other decoration or stock in trade, in the amounts of not less than the full
replacement value thereof, and (iii) workmen's compensation and employer's
liability insurance, if required by statute. Such policies will: (i) include
Landlord and such other parties as Landlord may reasonably designate as
additional insured's, (ii) be considered primary insurance, (iii) include within
the terms of the policy or by contractual liability endorsement coverage
insuring Tenant's indemnity obligations under Section 20, and (v) provide that
it may not be canceled or changed without at least thirty (30) days prior
written notice from the company providing such insurance to each party insured
thereunder. Tenant will also maintain throughout the Lease Term worker's
compensation insurance with not less than the maximum statutory limits of
coverage.
(b) Policy Requirements. The insurance coverages to be provided by
Tenant will be for a period of not less than one year. At least fifteen (15)
days prior to the Lease Commencement Date, Tenant will deliver to Landlord
original certificates of all such paid-up insurance; thereafter, at least
fifteen (15) days prior to the expiration of any policy Tenant will deliver to
Landlord such original certificates as will evidence a paid-up renewal or new
policy to take the place of the one expiring.
16. LANDLORD'S INSURANCE COVERAGE:
(a) Required Coverages. Landlord will at all times during the Lease
Term maintain a policy or policies of insurance insuring the Building against
loss or damage by fire, explosion or other hazards and contingencies typically
covered by insurance for an amount acceptable to the mortgagees encumbering the
Building. Landlord reserves the right to self insure.
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(b) Tenant not to Affect Landlord's Insurance Coverages. Tenant will
not do or permit anything to be done upon or bring or keep or permit anything
to be brought or kept upon the Premises which will increase Landlord's rate of
insurance on the Building. If by reason of the failure of Tenant to comply with
the terms of this Lease, or by reason of Tenant's occupancy (even though
permitted or contemplated by this Lease), the insurance rate shall at any time
be higher than it would otherwise be, Tenant will reimburse Landlord for that
part of all insurance premiums charged because of such violation or occupancy by
Tenant. Tenant agrees to comply with any requests or recommendation made by
Landlord's insurance underwriter inspectors.
17. SUBROGATION:
(a) Mutual Waiver of Subrogation. Each party will look first to any
insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible. To the extent permitted
by law, each of Landlord and Tenant hereby waives and releases all rights of
subrogation under their respective insurance policies required under this Lease.
Each of Landlord and Tenant will cause each such insurance policy to be properly
endorsed to evidence such waiver and release of subrogation in favor of
Landlord.
(b) Tenant's Improvements and Personal Property. Tenant acknowledges
that Landlord will not carry insurance on improvements, furniture, furnishings,
trade fixtures, equipment installed in or made to the Premises by or for Tenant,
and Tenant agrees that Tenant, and not Landlord, will be obligated to promptly
repair any damage thereto or replace the same.
18. DAMAGE OR DESTRUCTION BY CASUALTY:
(a) Termination. If by fire or other casualty the Premises are
totally damaged or destroyed, or the Building is partially damaged or destroyed
to the extent of twenty-five per cent (25%) or more of the replacement cost
thereof (even though the Premises may not be damaged), Landlord will have the
option of terminating this Lease or any renewal or extension thereof by serving
written notice upon Tenant within one hundred and eighty (180) days from the
date of the casualty and any prepaid Rent or Other Rent will be prorated as of
the date of destruction and the unearned portion of such Rent will be refunded
to Tenant without interest.
(b) Election for Restoration. If by fire or other casualty the
Premises are damaged or partially destroyed to the extent of twenty-five per
cent (25%) or more of the replacement cost thereof and the provisions of Section
18.(a) above are not applicable, then (i) if the unexpired Lease Term is less
than two (2) years, excluding any theretofore unexercised renewal option,
Landlord may either terminate this Lease by serving written notice upon Tenant
within twenty (20) days of the date of destruction or Landlord may elect to
restore the Premises, or (ii) if the unexpired Lease Term is more than two
years, including any previously exercised renewal option, Landlord will restore
the Premises.
(c) Less than Major Damage. If by fire or other casualty the
Premises are damaged or partially destroyed to the extent of substantially less
than twenty-five percent (25%) of the replacement cost thereof and the unexpired
Lease Term, including any previously exercised renewal option is more than two
years and the provisions of Section 18.(a) above are not applicable, then
Landlord will restore the Premises.
(d) Appointment of Rent. In the event of restoration by Landlord,
all Base Rent and Other Rent paid in advance shall be apportioned as of the date
of damage or destruction and all such Base Rent and Other Rent as above
described thereafter accruing shall be equitably and proportionately adjusted
according to the nature and extent of the destruction or damage, pending
substantial completion of rebuilding, restoration or repair. In the event the
destruction or damage is so extensive as to make it unfeasible for Tenant to
conduct Tenant's business in the Premises, Rent and Other Rent under this Lease
will be completely abated until the Premises are substantially restored by
Landlord or until Tenant resumes use and occupancy of the Premises, whichever
shall first occur. Landlord will not be liable for
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any damage to or any inconvenience or interruption of business of Tenant or any
of Tenant's Agents occasioned by fire or other casualty.
(e) Restoration. Restoration, rebuilding or repairing will be at
Landlord's sole cost and expense, subject to the availability of applicable
insurance proceeds. Landlord shall have no duty to restore, rebuild or replace
Tenant's personal property and trade fixtures. Notwithstanding anything to the
contrary in this Lease, including, but not limited to this Section 18,
Landlord's obligation(s) to repair, rebuild or restore the Building or the
Premises shall exist only to the extent of insurance proceeds received by
Landlord in connection with the condition or event which gave rise to Landlord's
obligation to repair, rebuild or restore.
19. CONDEMNATION AND EMINENT DOMAIN:
(a) Substantial Taking. If all or a substantial part of the Premises
are taken for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or by purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the Premises for the purpose for which they are then being used, this Lease will
terminate and the Rent and Other Rent will be abated during the unexpired
portion of this Lease effective on the date physical possession is taken by the
condemning authority. Tenant will have no claim to the condemnation award.
(b) Less Than Substantial Taking. In the event a portion of the
Premises is taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain or by purchase in lieu
thereof, and this Lease is not terminated as provided in paragraph A above,
Landlord may, at Landlord's expense, restore the Premises to the extent
necessary to make them reasonably tenantable. The Base Rent and Other Rent
payable under this Lease during the unexpired portion of the Lease Term shall be
adjusted to such an extent as may be fair and reasonable under the
circumstances. Tenant shall have no claim to the condemnation award with respect
to the leasehold estate but, in a subsequent, separate proceeding, may make a
separate claim for trade fixtures installed in the Premises by and at the
expense of Tenant and Tenants moving expense. In no event will Tenant have any
claim for the value of the unexpired Lease Term.
(c) Taking Affecting Building. Notwithstanding the foregoing, even
if the Premises are not affected in whole or in part by a taking, Landlord will
have the right to terminate this Lease upon ten (10) days prior written notice
to Tenant if a material portion of the Building is taken by condemnation or
eminent domain proceedings. Upon any such termination, Landlord and Tenant will
each be released from all further liability under this Lease.
20. LIMITATION OF LANDLORD'S LIABILITY, INDEMNIFICATION:
(a) Tenant's Personal Property. All personal property placed or
moved into the Building will be at the sole risk of Tenant or other owner.
Landlord will not be liable to Tenant or others for any damage to person or
property arising from Environmental Concerns, as hereafter defined, theft,
vandalism, HVAC malfunction, the bursting or leaking of water pipes, any act or
omission of any cotenant or occupant of the Building or of any other person, or
otherwise.
(b) Limitation of Liability. Notwithstanding any contrary provision
of this Lease: (i) Tenant will look solely (to the extent insurance coverage is
not applicable or available) to the interest of Landlord (or its successor as
Landlord hereunder) in the Building for the satisfaction of any judgment or
other judicial process requiring the payment of money as a result of any
negligence or breach of this Lease by Landlord or its successor or of Landlord's
managing agent (including any beneficial owners, partners, corporations and/or
others affiliated or in any way related to Landlord or such successor or
managing agent) and Landlord has no personal liability hereunder of any kind,
and (ii) Tenant's sole right and remedy in any action or proceeding concerning
Landlord's reasonableness (where the same is required under this Lease) will be
an action for declaratory judgment and/or specific performance.
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(c) Indemnity. Tenant agrees to indemnify, defend and hold harmless
Landlord and its agents from and against all claims, causes of actions,
liabilities, judgments, damages, losses, costs and expenses, including
reasonable attorneys' fees and costs through all appeals, incurred or suffered
by Landlord and arising from or in any way connected with the Premises or the
use thereof or any acts, omissions, neglect or fault of Tenant or any of
Tenant's Agents, including, but not limited to, any breach of this Lease or any
death, personal injury or property damage occurring in or about the Premises or
the Building or arising from Environmental Concerns, as hereafter defined.
Tenant will reimburse Landlord upon request for all costs incurred by Landlord
in the interpretation and enforcement of any provisions of this Lease and/or the
collection of any sums due to Landlord under this Lease, including collection
agency fees, and reasonable attorneys' fees and costs, regardless of whether
litigation is commenced, and through all appellate actions and proceedings if
litigation is commenced,
21. COMPLIANCE WITH ENVIRONMENTAL LAWS AND PROCEDURES:
(a) Hazardous Waste. "Hazardous Waste" shall mean toxic or hazardous
waste, pollutants or substances, including, without limitation, bio hazardous
materials, medical waste, asbestos, PCBs, petroleum products and by-products,
substances defined or listed as "hazardous substance", "toxic substance", "toxic
pollutant", or similarly identified substance or mixture, in or pursuant to any
"Environmental Law". "Environmental Law" shall include, but is not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C.ss.9601, et seq., the Hazardous Materials
Transportation Act, 49 X.X.X.xx. 1802, et seq., the Resource Conservation and
Recovery Act, 42 X.X.X.xx. 6901, et. seq., the Toxic Substance Control Act of
1976, as amended, 15 X.X.X.xx. 2601, et seq., and the Clean Water Act, 33
X.X.X.xx. 446 et seq., as amended. The term "Environmental Law" also includes,
but is not limited to, any present and then applicable federal, state and local
laws, statutes, ordinances, rules, regulations and the like, as well as common
law or other approval of a governmental authority relating to compliance with
Environmental Law by the Premises requiring notification or disclosure of
releases of Hazardous Substances to any governmental authority or other person
or entity, imposing environmental conditions or requirements in connection with
permits or other authorization for lawful activity at the Premises.
(b) Tenant's Covenants. Tenant shall not manufacture or dispose of
any Hazardous Substances at the Premises or store or use any Hazardous Substance
at the Premises in such quantities, concentrations, forms or levels, or
otherwise in a manner which is in violation of any applicable Environmental
Laws. Tenant shall comply with all Environmental Laws and other ordinances and
regulations applicable to the Premises, and shall promptly comply with all
governmental orders and directives for the correction prevention and abatement
of any violations or nuisances in or upon, or connected with, the Premises, all
at Tenant's sole cost and expense. To the extent that Tenant generates any
medical or biohazadous waste in conjunction with Tenant's use of the Premises,
Tenant, at Tenant's sole cost and expense, shall obtain and maintain throughout
the Lease Term, a service contract with a duly licensed medical or biohazadous
waste transportation and disposal company. Copies of such service contract shall
be provided to Landlord each year during the Lease Term.
(c) Indemnification by Tenant.
(i) Environmental Contamination. Tenant hereby agrees to
indemnify Landlord and hold Landlord harmless from and against any and all
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees for attorneys of Landlord's choice, costs
of any settlement or judgment and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against Landlord by any person or entity or
governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission or release from the Premises of any Hazardous Waste (including, without
limitation, any losses, liabilities, including strict liability, damages,
injuries, expenses, including reasonable attorneys' fees for attorneys of
Landlord's choice, costs of any settlement or judgment or claims asserted or
arising under any Environmental Law, and any and all other statutes, laws,
ordinances, codes, rules, regulations, orders or decrees regulating, with
respect to or imposing liability, including strict liability, substances or
standards of conduct concerning any Hazardous Waste), regardless of whether
within Tenant's control provided that the foregoing was occasioned by the acts
or negligence of Tenant, its agents, employees or licensees.
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(ii) Continuing Indemnification. The aforesaid indemnification
and hold harmless agreement shall benefit Landlord from the date hereof and
shall continue notwithstanding any termination this Lease and, without limiting
the generality of the foregoing such obligations shall continue for the benefit
of Landlord and any subsidiary of Landlord during and following any possession
of the Premises thereby or any ownership of the Premises thereby, whether
arising by eviction, surrender by Tenant or otherwise, such indemnification and
hold harmless agreement to continue forever.
(iii) Notice of Environmental Complaint. If Tenant shall receive
any notice of: (1) the happening of any material event involving the spill,
release, leak, seepage, discharge or cleanup of any Hazardous Waste at the
Premises or in connection with Tenant's operations thereon; or (2) any
complaint, order, citation or material notice with regard to air emissions,
water discharges or any other environmental, health or safety matter affecting
Tenant (an "Environmental Complaint") from any person or entity, then Tenant
immediately shall notify Landlord orally and in writing of said notice.
(d) Landlord's Reserved Rights. Landlord shall have the right but
not the obligation (and without limitation of Landlord's rights under this
Lease) to enter onto the Premises or to take such other actions as it shall deem
necessary or advisable to clean up, remove, resolve or minimize the impact of,
or otherwise deal with, any such Hazardous Waste or Environmental Complaint
following receipt of any notice from any person or entity having jurisdiction
asserting the existence of any Hazardous Waste or an Environmental Complaint
pertaining to the Premises or any part thereof which, if true, could result in
an order, suit or other action against Tenant and/or which, in Landlord's sole
opinion, could jeopardize its security under this Lease. All reasonable costs
and expenses incurred by Landlord in the exercise of any such rights shall be
payable by Tenant upon demand as Other Rent if same were occasioned by the
activities of Tenant, its employees or licensees.
(e) Environmental Audits. If Landlord shall have good reason to
believe that Hazardous Waste has been discharged on the Premises by Tenant, its
employees or licensees, Landlord shall have the right, in its sole discretion,
to require Tenant to perform periodically to Landlord's satisfaction (but not
more frequently than annually unless an Environmental Complaint shall be then
outstanding), at Tenant's expense, an environmental audit and, if deemed
necessary by Landlord, an environmental risk assessment of: (a) the Premises;
(b) Hazardous Waste management practices and/or (c) Hazardous Waste disposal
sites used by Tenant. Said audit and/or risk assessment must be by an
environmental consultant reasonably satisfactory to Landlord. Should Tenant fail
to perform any such environmental audit or risk assessment within thirty (30)
days after Landlord's request, Landlord shall have the right to retain an
environmental consultant to perform such environmental audit or risk assessment.
All costs and expenses incurred by Landlord in the exercise of such rights shall
be secured by this Lease and shall be payable by Tenant upon demand as Other
Rent.
(f) Breach. Any breach of any warranty, representation or agreement
contained in this Section shall be an Event of Default and shall entitle
Landlord to exercise any and all remedies provided in this Lease or otherwise
permitted by law.
(g) Radon Gas. In accordance with Florida Law, the following
disclosure is hereby made:
RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may
present health risk to persons who are exposed to it over time.
Levels of radon that exceed Federal and State Guidelines have been
found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county public
health unit.
22. COMPLIANCE WITH LAWS AND PROCEDURES: Tenant will promptly comply
with all applicable laws, guidelines, rules, regulations and requirements,
whether of federal, state, or local origin, applicable to the Premises and the
Building, including those for the correction, prevention and abatement of
nuisance, unsafe conditions, or other grievances arising from or pertaining to
the use or occupancy of the Premises. Accordingly, Tenant
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agrees that Tenant and Tenant's Agents shall comply with all operation and
maintenance programs and guidelines implemented or promulgated from time to time
by Landlord or its consultants, including, but not limited to, those matters set
forth in subsections (b) and (c) below, in order to reduce the risk to Tenant,
Tenant's Agents or any other tenants of the Building of injury from
Environmental Concerns.
23. RIGHT OF ENTRY: Landlord and its agents will have the right to
enter the Premises during all reasonable hours to make necessary repairs to the
Premises, provided however that Landlord will provide advanced written or
telephone notice to Tenant, to the extent reasonable and practical under the
circumstances which require Landlord to have reason to enter the Premises. In
the event of an emergency, Landlord or its agents may enter the Premises at any
time, without notice, to appraise and correct the emergency condition. Said
right of entry will, after reasonable notice, likewise exist for the purpose of
removing placards, signs, fixtures, alterations, or additions which do not
conform to this Lease. Landlord or its agents will have the right to exhibit the
Premises at any time to prospective tenants within one hundred and eighty days
(180) before the Expiration Date of the Lease.
24. DEFAULT:
(a) Events of Default. If (1) Tenant vacates or abandons the
Premises prior to the Expiration Date in contravention of the terms and
provisions of this Lease, or (2) Tenant fails to fulfill any of the terms or
conditions of this Lease or any other Lease heretofore made by Tenant for space
in the Building or (3) any execution or attachment is issued against Tenant or
taken or occupied by someone other than Tenant, or (4) Tenant or any of its
successors or assigns or any guarantor of this Lease ("Guarantor") should file
any voluntary petition in bankruptcy, reorganization or arrangement, or an
assignment for the benefit of creditors or for similar relief under any present
or future statute, law or regulation relating to relief of debtors, or (5)
Tenant or any of its successors or assigns or any Guarantor should be
adjudicated bankrupt or have an involuntary petition in bankruptcy filed against
it, or (6) Tenant shall permit, allow or suffer to exist any lien, judgment,
writ, assessment, charge, attachment or execution upon Landlord's or Tenant's
interest in this Lease or to the Premises, and/or the fixtures, improvements and
furnishings located thereon; then, Tenant shall be in default hereunder.
(b) Tenant's Grace Periods. If (1) Tenant fails to pay Rent or Other
Rent on the date due or (2) Tenant fails to cure any other default within ten
(10) days after written notice from Landlord specifying the nature of such
default (unless such default is of a nature that it cannot be completely cured
within said ten (10) day period and steps have been diligently commenced to cure
or remedy it within such ten (10) day period and are thereafter pursued with
reasonable diligence and in good faith), then Landlord shall have such remedies
as are provided under this Lease and/or under the laws of the State of Florida.
(c) Repeated Late Payments. Regardless of the number of times of
Landlord's prior acceptance of late payments and/or late charges, (i) if
Landlord notifies Tenant two (2) times in any 6-month period that Base Rent or
any Other Rent has not been paid when due, then any other late payment within
such 6-month period shall automatically constitute a default hereunder and (ii)
the mere acceptance by Landlord of late payments in the past shall not,
regardless of any applicable laws to the contrary, thereafter be deemed to waive
Landlord's right to strictly enforce this Lease, including Tenant's obligation
to make payment of Rent on the exact day same is due, against Tenant.
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT:
(a) Landlord's Options. If Tenant is in default of this Lease,
Landlord may, at its option, in addition to such other remedies as may be
available under Florida law:
(i) terminate this Lease and Tenant's right of possession; or
(ii) terminate Tenant's right to possession but not the Lease
and/or proceed in accordance with any and all provisions of Section 25.(b)
below.
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(b) Landlord's Remedies.
(i) Landlord may without further notice reenter the Premises
either by force or otherwise and dispossess Tenant by summary proceedings or
otherwise, as well as the legal representative(s) of Tenant and/or other
occupant(s) of the Premises, and remove their effects and hold the Premises as
if this Lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end; and/or
at Landlord's option,
(ii) All Rent and all Other Rent for the balance of the Term
will, at the election of Landlord, be accelerated and the full amount of same
shall become immediately due thereupon and be paid, together with all expenses
of every nature which Landlord may incur such as (by way of illustration and not
limitation) those for attorneys' fees, brokerage, advertising, and refurbishing
the Premises in good order or preparing them for re-rental; and/or at Landlord's
option,
(iii) Landlord may re-let the Premises or any part thereof,
either in the name of Landlord or otherwise, for a term or terms which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the Lease Term, and may grant concessions or free
rent or charge a higher rental than that reserved in this Lease; and/or at
Landlord's option,
(iv) Tenant or its legal representative(s) will also pay to
Landlord as liquidated damages any deficiency between the Rent and all Other
Rent hereby reserved and/or agreed to be paid and the net amount, if any, of the
rents collected on account of the lease or leases of the Premises for each month
of the period which would otherwise have constituted the balance of the Lease
Term.
26. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT: If Tenant fails
to observe or perform any term or condition of this Lease within the grace
period, if any, applicable thereto, then Landlord may immediately or at any time
thereafter perform the same for the account of Tenant. If Landlord makes any
expenditure or incurs any obligation for the payment of money in connection with
such performance for Tenant's account (including reasonable attorneys' fees and
costs in instituting, prosecuting and/or defending any action or proceeding
through appeal), the sums paid or obligations incurred, with interest at
eighteen percent (18%) per annum, will be paid by Tenant to Landlord within ten
(10) days after rendition of a xxxx or statement to Tenant. In the event Tenant
in the performance or non-performance of any term or condition of this Lease
should cause an emergency situation to occur or arise within the Premises or in
the Building, Landlord will have all rights set forth in this paragraph
immediately without the necessity of providing Tenant any advance notice.
27. LIENS:
(a) Statutory Construction Lien Notice. In accordance with the
applicable provisions of the Florida Construction Lien Law and specifically
Florida Statutes, ss. 713.10, no interest of Landlord whether personally or in
the Premises, or in the underlying land or Building of which the Premises are a
part or the leasehold interest aforesaid shall be subject to liens for
improvements made by Tenant or caused to be made by Tenant hereunder including,
without limitation, the Sign, as provided for in Section 40.(r) below. Further,
Tenant acknowledges that Tenant, with respect to improvements or alterations
made by Tenant or caused to be made by Tenant hereunder, shall promptly notify
the contractor making such improvements to the Premises of this provision
exculpating Landlord's liability for such liens.
(b) No Liens. Notwithstanding the foregoing, if any construction
lien or other lien, attachment, judgment, execution, writ, charge or encumbrance
is filed against the Building or the Premises or this leasehold, or any
alterations, fixtures or improvements therein or thereto, as a result of any
work action or inaction done by or at the direction of Tenant or any of Tenant's
Agents, Tenant will discharge same of record within ten (10) days after the
filing thereof, failing which Tenant will be in default under this Lease. In
such event, without waiving Tenant's default, Landlord, in addition to all other
available rights and remedies, without further notice, may discharge the same of
record
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by payment, bonding or otherwise, as Landlord may elect, and upon request Tenant
will reimburse Landlord for all costs and expenses so incurred by Landlord plus
interest thereon at the rate of eighteen percent (18%) per annum.
28. NOTICES: Notices to Tenant under this Lease will be addressed to
Tenant and mailed or delivered to the address set forth for Tenant in the BLI
Rider. Notices to Landlord under this Lease (as well as the required copies
thereof) will be addressed to Landlord (and its agents) and mailed or delivered
to the address set forth in the BLI Rider. Notices will be personally delivered
or given by registered or certified mail, return receipt requested. Notices
delivered personally will be deemed to have been given as of the date of
delivery and notices given by mail will be deemed to have been given forty-eight
(48) hours after the time said properly addressed notice is placed in the mail.
Each party may change its address from time to time by written notice given to
the other as specified above.
29. MORTGAGE, ESTOPPEL CERTIFICATE; SUBORDINATION:
(a) Mortgage of the Building. Landlord has the unrestricted
right to convey, mortgage and refinance the Building, or any part thereof.
Tenant agrees, within seven (7) days after notice, to execute and deliver to
Landlord or its mortgagee or designee such instruments as Landlord or its
mortgagee may require, certifying the amount of the Security Deposit and whether
this Lease is in full force and effect, and listing any modifications. This
estoppel certificate is intended to be for the benefit of Landlord, any
purchaser or mortgagee of Landlord, or any purchaser or assignee of Landlord's
mortgage. The estoppel certificate will also contain such other information as
Landlord or its designee may request.
(b) Subordination. This Lease is and at all times will be
subject and subordinate to all present and future mortgages or ground leases
which may affect the Building and/or the parking areas and to all recastings,
renewals, modifications, consolidations, replacements, and extensions of any
such mortgage(s), and to all increases and voluntary and involuntary advances
made thereunder. The foregoing will be self-operative and no further instrument
of subordination will be required. Landlord hereby agrees that it shall, upon
written request by Tenant, use its commercially reasonable efforts to obtain
and deliver in favor of Tenant a non-disturbance agreement from the first
mortgage holder for the Building. Landlord makes no representation or warranty
that it will actually be able to obtain a non-disturbance agreement in favor of
Tenant and such failure shall not be an event of default on the part of
Landlord under this Lease nor affect the subordination of this Lease contained
in the first sentence of this Section 29.(b). Tenant hereby agrees to give any
holder of any first mortgage on the Building, by registered or certified mail,
a copy of any default notice served upon Landlord by Tenant provided Tenant has
been provided advance written notice of the name and address of such first
mortgage holder.
30. ATTORNMENT AND MORTGAGEE'S REQUEST:
(a) Attornment. If any mortgagee of the Building comes into
possession or ownership of the Premises, or acquires Landlord's interest by
foreclosure of the mortgage or otherwise, upon the mortgagee's request Tenant
will attorn to the mortgagee.
(b) Estoppel Certificate. Tenant agrees that within seven (7) days
after request by any mortgagee of the Building, Tenant will execute, acknowledge
and deliver to the mortgagee a notice in form and substance satisfactory to the
mortgagee, setting forth such information as the mortgagee may require with
respect to this Lease and or the Premises. If for any reason Tenant does not
timely comply with the provisions of this Section, Tenant will be deemed to have
confirmed that this Lease is in full force and effect with no defaults on the
part of either part and without any right of Tenant to offset, deduct or
withhold any Rent or Other Rent.
31. TRANSFER BY LANDLORD: If Landlord's interest in the Building
terminates by reason of a bonafide sale or other transfer, Landlord will, upon
transfer of the Security Deposit to the new owner, thereupon be released from
all further liability to Tenant under this Lease.
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32. SURRENDER OF PREMISES; HOLDING OVER:
(a) Expiration Date. Tenant agrees to surrender the Premises to
Landlord on the Expiration Date (or sooner termination of the Lease Term
pursuant to other applicable provisions hereof) in as good condition as they
were at the commencement of Tenant's occupancy, ordinary wear and tear, and
damage by fire and windstorm excepted.
(b) Restoration. In all events, Tenant will promptly restore all
damage caused in connection with any removal of Tenant's personal property.
Tenant will pay to Landlord, upon request, all damages that Landlord may suffer
on account of Tenant's failure to surrender possession as and when aforesaid and
will indemnify Landlord against all liabilities, costs and expenses (including
all reasonable attorneys' fees and costs if any) arising out of Tenant's delay
in so delivering possession, including claims of any succeeding tenant, provided
however that Tenant's obligation to restore does not include the reasonable wear
and tear to the Premises which would be expected to have occurred to the extent
that Tenant has reasonably maintained the Premises during the Lease Term, as
required under this Lease.
(c) Improvements. Upon expiration of the Lease Term, Tenant will not
be required to remove from the Premises Building standard items, all of such
Building standard items are the property of Landlord. However, should Tenant,
prior to the expiration of the Lease Term or during the Lease Term, install or
cause to be installed fixtures, trade fixtures or any tenant improvements in
excess of Building standard, Landlord shall have the option of retaining same or
requiring Tenant to remove same. Should Landlord elect to cause Tenant to remove
such items, the cost of removal of same, upon Landlord's election and notice to
Tenant, shall be at Tenant's sole cost and expense. Landlord has no obligation
to compensate Tenant for any items which are required hereunder to remain on or
with the Premises.
(d) Holdover Rent. Without limiting Landlord's rights and remedies,
if Tenant holds over in possession of the Premises beyond the end of the Lease
Term, during the holdover period the Rent will be double the amount of the Rent
due and payable for the last month of the Lease Term.
(e) Offer of Surrender. No offer of surrender of the Premises, by
delivery to Landlord or its agent of keys to the Premises or otherwise, will be
binding on Landlord unless accepted by Landlord, in writing, specifying the
effective surrender of the Premises. At the expiration or termination of the
Lease Term, Tenant shall deliver to Landlord all keys to the Premises and make
known to Landlord the location and combinations of all locks, safes and similar
items.
33. NO WAIVER, CUMULATIVE REMEDIES: No waiver of any provision of this
Lease by either party will be deemed to imply or constitute a further waiver by
such party of the same or any other provision hereof. The rights and remedies of
Landlord under this Lease or otherwise are cumulative and are not intended to be
exclusive and the use of one will not be taken to exclude or waive the use of
another, and Landlord will be entitled to pursue all rights and remedies
available to landlords under the laws of the State of Florida. Landlord, in
addition to all other rights which it may have under this Lease, hereby
expressly reserves all rights in connection with the Building or the Premises
not expressly and specifically granted to Tenant under this Lease and Tenant
hereby waives all claims for damages, loss, expense, liability, eviction or
abatement it has or may have against Landlord on account of Landlord's exercise
of its reserved rights, including, but not limited to, Landlord's right to alter
the existing name, address, style or configuration of the Building or the common
areas, signage, suite identifications, parking facilities, lobbies, entrances
and exits, elevators and stairwells.
34. WAIVER OF JURY TRIAL: TO THE EXTENT PERMITTED BY LAW, TENANT HEREBY
WAIVES: (A) JURY TRIAL IN ANY ACTION OR PROCEEDING REGARDING A MONETARY DEFAULT
BY TENANT AND/OR LANDLORD'S RIGHT TO POSSESSION OF THE PREMISES, AND (B) IN ANY
ACTION OR PROCEEDING BY LANDLORD FOR MONIES OWED BY TENANT AND/OR POSSESSION OF
THE PREMISES, THEN TENANT WAIVES THE RIGHT TO INTERPOSE ANY CROSSCLAIM OR
COUNTERCLAIM (EXCEPT A MANDATORY CROSSCLAIM OR COUNTERCLAIM IF THE SAME IS
PROVIDED FOR
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PURSUANT TO FLORIDA LAW). HOWEVER, THE FOREGOING WILL NOT PROHIBIT TENANT FROM
BRINGING A SEPARATE LAWSUIT AGAINST LANDLORD.
35. CONSENTS AND APPROVALS: If Tenant requests Landlord's consent or
approval under this Lease, and if in connection with such requests Landlord
deems it necessary to seek the advice of its attorneys, architects and/or other
experts, then Tenant shall pay the reasonable fee of Landlord's attorneys,
architects and/or other experts in connection with the consideration of such
request and/or the preparation of any documents pertaining thereto.
36. RULES AND REGULATIONS: Tenant agrees to abide by all rules and
regulations attached hereto as Exhibit "C" and incorporated herein by this
reference, as reasonably amended and supplemented from time to time by Landlord.
Landlord will not be liable to Tenant for violation of the same or any other act
or omission by any other tenant.
37. SUCCESSORS AND ASSIGNS: This Lease will be binding upon and inure
to the benefit of the respective heirs, personal and legal representatives,
successors and permitted assigns of the parties hereto.
38. QUIET ENJOYMENT: In accordance with and subject to the terms and
provisions of this Lease, Landlord warrants that it has full right to execute
and to perform under this Lease and to grant the estate demised and that Tenant,
upon Tenant's payment of the required Rent and Other Rent and performing of all
of the terms, conditions, covenants, and agreements contained in this Lease,
shall peaceably and quietly have, hold and enjoy the Premises during the full
Lease Term.
39. ENTIRE AGREEMENT: This Lease, together with the BLI Rider,
exhibits, schedules, addenda and guaranties (as the case may be) fully
incorporated into this Lease by this reference, contains the entire agreement
between the parties hereto regarding the subject matters referenced herein and
supersedes all prior oral and written agreements between them regarding such
matters. This Lease may be modified only by an agreement in writing dated and
signed by Landlord and Tenant after the date hereof.
40. MISCELLANEOUS:
(a) Cross Default. If Tenant has a lease for other space in the
Building, any default by Tenant under such lease will constitute a default
hereunder.
(b) Severability, Choice of Law, Venue. If any term or condition of
this Lease or the application thereof to any person or circumstance is, to any
extent, invalid or unenforceable, the remainder of this Lease, or the
application of such term or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable, is not to be affected
thereby and each term and condition of this Lease is to be valid and enforceable
to the fullest extent permitted by law. This Lease will be construed in
accordance with the laws of the State of Florida. Venue for any action arising
out of this Lease shall be Palm Beach County, Florida.
(c) NO OFFER. SUBMISSION OF THIS LEASE TO TENANT DOES NOT CONSTITUTE
AN OFFER, AND THIS LEASE BECOMES EFFECTIVE ONLY UPON THE MUTUAL EXECUTION AND
DELIVERY BY BOTH LANDLORD AND TENANT AND THE PAYMENT TO LANDLORD OF ANY SECURITY
DEPOSITS OR ADVANCE RENT REQUIRED HEREUNDER.
(d) Integration. Tenant acknowledges that it has not relied upon any
statement, representation, prior or contemporaneous written or oral promises,
agreements or warranties, except such as are expressed herein.
(e) Personal Property Taxes. Tenant will pay before delinquency all
taxes assessed during the Lease Term against any occupancy interest in the
Premises or personal property of any kind owned by or placed in, upon or about
the Premises by Tenant.
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(f) Pre-Lease Commencement Occupancy. If Tenant, with Landlord's
consent, occupies the Premises or any part thereof prior to the beginning of the
Lease Term, all provisions of this Lease will be in full force and effect
commencing upon such occupancy, and Base Rent and Other Rent, where applicable,
for such period will be paid by Tenant at the same rate herein specified.
(g) Brokers. Each party represents and warrants that it has not
dealt with any agent or broker in connection with this transaction except for
the agents or brokers specifically set forth in the BLI Rider with respect to
each Landlord and Tenant. If either parties' representation and warranty proves
to be untrue, such party will indemnify the other party against all resulting
liabilities, costs, expenses, claims, demands and causes of action, including
reasonable attorneys' fees and costs through all appellate actions and
proceedings, if any. The foregoing will survive the end of the Lease Term.
(h) No Recording. Neither this Lease nor any memorandum hereof will
be recorded by Tenant.
(i) Landlord's Consents. Whenever under this Lease Landlord's
consent or approval is expressly or impliedly required, the same may be
arbitrarily withheld except as otherwise specified herein.
(j) No Partnership. Nothing contained in this Lease shall be deemed
by the parties hereto or by any third party to create the relationship of
principal and agent, partnership, joint venturer or any association between
Landlord and Tenant, it being expressly understood and agreed that neither the
method of computation of Rent nor any other provisions contained in this Lease
nor any act of the parties hereto shall be deemed to create any relationship
between Landlord and Tenant other than the relationship of landlord and tenant.
(k) Construction of Certain Terms: Headings. Whenever in this Lease
the context allows, the word "including" will be deemed to mean "including
without limitation". The headings of articles, sections or paragraphs are for
convenience only and shall not be relevant for purposes of interpretation of the
provisions of this Lease.
(1) No-Air Rights. This Lease does not create, nor will Tenant have,
any express or implied easement for or other rights to air, light or view over
or about the Building or any part thereof.
(m) Delegation by Landlord. Any acts to be performed by Landlord
under or in connection with this Lease may be delegated by Landlord to its
managing agent or other authorized person or firm.
(n) Construction. This Lease shall not, be more strictly construed
against either party hereto by reason of the fact that one party may have
drafted or prepared any or all of the terms and provisions hereof. It is
acknowledged that each of the parties hereto has been fully represented by
legal counsel and that each of such legal counsel has contributed substantially
to the content of this Lease.
(o) Confidentiality of Terms. Landlord and Tenant acknowledge that
the terms and provisions of this Lease have been negotiated based upon a variety
of factors, occurring at a coincident point in time, including, but not limited
to: (i) the individual principals involved and the financial strength of Tenant,
(ii) the nature of Tenant's business and use of the Premises, (iii) the current
leasing market place and the economic conditions affecting rental rates, (iv)
the present and projected tenant mix of the Building, and (v) the projected
juxtaposition of tenants on the floor(s) upon which the Premises are located and
the floors within the Building. Therefore, recognizing the totality, uniqueness,
complexity and interrelation of the aforementioned factors, the Tenant agrees to
use its best efforts not to disseminate in any manner whatsoever, (whether by
word of mouth, mechanical reproduction, physical tender or by any manner of
visual or aural transmission or review) the terms and conditions of this Lease
to third parties who could in any way be considered presently or in the future
as prospective tenants for this or any other leasehold property with which
Landlord may be involved.
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(p) Parties Bound. If more than one person or entity is named herein
as Tenant, their liability hereunder will be joint and several. In case Tenant
is a corporation or limited liability company, Tenant (a) represents and
warrants that this Lease has been duly authorized, executed and delivered by and
on behalf of Tenant and constitutes the valid and binding agreement of Tenant in
accordance with the terms hereof, and (b) Tenant shall deliver to Landlord or
its agent, concurrently with the delivery of this Lease, executed by Tenant,
certified resolutions of the board of directors (and shareholders, if required)
or managers (and members, if required) authorizing Tenant's execution and
delivery of this Lease and the performance of Tenant's obligations hereunder. In
case Tenant is a partnership, Tenant represents and warrants that all of the
persons who are general or managing partners in said partnership have executed
this Lease on behalf of Tenant, or that this Lease has been executed and
delivered pursuant to and in conformity with a valid and effective authorization
therefor by all of the general or managing partners of such partnership, and is
and constitutes the valid and binding agreement of the partnership and each and
every partner therein in accordance with its terms. It is agreed that each and
every present and future partner in Tenant shall be and remain at all times
jointly and severally liable hereunder and that neither the death, resignation
or withdrawal of any partner, nor the subsequent modification or waiver of any
of the terms and provisions of this Lease, shall release the liability of such
partner under the terms of this Lease unless and until Landlord shall have
consented in writing to such release.
(q) Proposed Use. Landlord has made no inquiries about and makes no
representations (express or implied) concerning whether Tenant's proposed use of
the Premises is permitted under applicable law, including applicable zoning law;
should Tenant's proposed use be prohibited, Tenant shall be obligated to comply
with applicable law and this Lease shall nevertheless remain in full force and
effect.
(r) Exterior Signage. Landlord grants Tenant the right to place an
illuminated sign on the west side of the Building, facing Military Trail (the
"Sign"). The Sign shall be designed, permitted, fabricated and installed at
Tenant's sole cost and expense, subject to Landlord's reasonable approval.
Tenant shall provide plans and specifications for the Sign to Landlord for
Landlord's reasonable review and approval, which approval will not be
unreasonably withheld or delayed. Tenant shall obtain (i) all required approvals
from Quad Office Park Association and (ii) any and all approvals and building
permits required from any governmental authority having jurisdiction over the
Building. The Sign shall be installed and maintained during the Lease Term in
compliance with all applicable land use, zoning laws and any and all laws
applicable to the Building and/or the Sign. Installation of the Sign shall be
completed in a good and workmanlike manner by licensed Florida contractors
employed by Tenant, free from all liens or claims of lien. Tenant shall be
responsible for removal of the Sign at the end of the Lease Term, as extended or
otherwise terminated, pursuant to this Lease. Tenant shall cause the public
liability insurance provided for under Section 15 of this Lease to include any
and all liabilities or perils arising out of the existence, damage, falling down
of or other casualty associated with the Sign. To the extent that the Sign is
illuminated, Tenant shall, as part of the plans and specifications, cause the
Sign to be separately metered by the electrical utility company providing the
electricity for the Sign. Tenant shall be solely responsible for payment of any
and all electricity charges pursuant to the separate electrical meter for the
Sign. Notwithstanding any provision of this Lease or the Work Letter to the
contrary, Landlord agrees that it will contribute the amount of $5,000 towards
completion of the Sign. Tenant shall provide Landlord with copies of paid
invoices for the installation of the Sign, as contemplated by this Section
40.(r) and Landlord shall promptly reimburse Tenant up to $5,000 for the costs
reflected in such paid invoices.
(s) Tenant's Existing Lease. Tenant shall enter into a sublease
brokerage listing agreement with Landlord's affiliate, Coldwell Banker
Commerical - Xxxxxxx Real Estate Group to offer for sublease Tenant's existing
space located at 0000 Xxxxxxxx Xxxx Xxxx, Xxxx Xxxxx, Xxxxxxx (the "Existing
Space"), which Tenant currently leases (the "Existing Lease"). As a specific
inducement to Tenant entering into this Lease, and so long as Tenant is not in
default under this Lease, Landlord shall pay up to $50,000 (the "Existing Space
Allowance") to Tenant, or on Tenant's behalf, in order to defray certain costs
which Tenant may incur in connection with the sublease of the Existing Space.
Landlord shall be obligated to pay the Existing Space Allowance only when Tenant
shall have entered into a sublease with a subtenant for not less than all of the
Existing Space (the "Sublease"), which Sublease has been approved by the
landlord under the Existing Lease. Upon the occurrence of the foregoing,
Landlord shall disburse the Existing Space Allowance as follows: (i) payment of
any and all real estate brokerage commissions due in connection with the
Sublease (the "Brokerage Commission"), (ii) reimbursement of Tenant for any rent
that Tenant paid under the Existing Lease,
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which accrued under the Existing Lease between the Lease Commencement Date and
the date of the Sublease (the "Accrued Rent"), and (iii) in the event that the
total rental received by Tenant under the Sublease is less than the total rental
due under the Existing Lease (such amount the "Existing Lease Rent Deficiency"),
reimbursement of Tenant, on a monthly basis, for the Existing Lease Rent
Deficiency, until the balance of the Existing Space Allowance has been reduced
to $0.00. Any and all Brokerage Commission, Accrued Rent and/or Existing Lease
Rent Deficiency, in excess of the $50,000 Existing Space Allowance, shall be the
sole and exclusive obligation of Tenant, all of which Tenant shall pay promptly
when due. In addition to any and all remedies which Landlord may have under this
Lease or pursuant to applicable Florida law, in the event of a default by Tenant
under this Lease, Landlord shall immediately cease from making any further
payments of the Existing Space Allowance and, as a component of the damages
which Landlord may seek against Tenant pursuant to this Lease, Landlord shall
also be entitled to seek reimbursement for the full amount of the Existing Space
Allowance which Landlord had disbursed as a component of such damages.
IN WITNESS WHEREOF, the parties have executed and delivered this Lease
as of the day and year first above written.
Witnesses: "LANDLORD"
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ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
By: 3010 HOLDINGS, INC.,
a Florida corporation, general partner
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
----------------------------- ----------------------------------
/s/ Xxxxxx Xxxxx Its: President
----------------------------- ----------------------------------
(As to Landlord)
"TENANT"
--------
FIRST COLONIAL SECURITIES GROUP, INC.,
a New Jersey corporation authorized to do business in the State
of Florida
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- ----------------------------------
/s/ Xxxxx Xxxxxxx Its: CEO
----------------------------- ----------------------------------
(As to Tenant)
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