EXHIBIT 10.39
[THIS AGREEMENT NOW BETWEEN NATIONALWIDE FINANCE CORPORATION, AS SUCCESSOR TO
DOLPHIN LAKES PARTNERSHIP, AND FIRESTONE PUBLISHING, INC., AS ASSIGNEE OF
DUGENT PUBLISHING CORP.]
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into this 20th day of
July, 1995, by and between Dolphin Lakes Partnership ("Landlord"), whose address
for purposes of this Lease is 0000 Xxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and
Dugent Publishing Corp. ("Tenant"), whose address until the commencement of the
term of this Lease is 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxx, XX 00000 and
after commencement of the term of this Lease shall be the Premises.
In consideration of the payments of rents and other charges provided for in this
Lease, the covenants and conditions set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Landlord
and Tenant hereby covenant and agree as follows:
1. PREMISES: Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, on the terms and conditions set forth below, those certain premises
(the "Premises") consisting of approximately 3,617 square feet (a common area of
factor of 15% was used) of floor space (the "Rentable Area") in the building
known as the "XXXXX BUILDING" (the "Building") located on Xxx 0, Xxxxx 0, Xxxxx
Xxxxx Xxxxxxxxxx Xxxx Section Ten as recorded in Plat Book 118, at Page 33, of
the Public Records of Dade County, Florida, such Premises being more
particularly described in the floor plan attached as Exhibit "A" to this Lease.
The foregoing Rentable Area figure is agreed to by the parties, subject to
verification by the architect/space planner.
2. TERM: This Lease shall be for a term (the "Term") of five years commencing on
September 1,1995, and ending on August 31, 2000, unless sooner terminated or
extended as provided herein.
If the Landlord is unable to deliver possession of the Premises on the
commencement date by reason of the holding over of any prior tenant or for any
other reason, an abatement or diminution of the "Rent" (consisting of the "Base
Rent" and "Additional Rent" as such terms are defined below) shall be allowed
until possession is delivered to Tenant, but nothing here will operate to extend
the initial term of this Lease beyond the agreed expiration date, and such
abatement in Rent shall be the full extent of Landlord's liability to Tenant for
any loss or damage to Tenant on account of any delay in obtaining possession of
the Premises. There will not be any delay in the commencement of the Term of
this Lease or any delay in the payment of Rent if Tenant fails to occupy the
Premises when ready for occupancy, or if Tenant causes delay in preparing the
Premises for occupancy by failing to promptly approve plans, make material or
color selections, or make any other decisions or take actions necessary for the
preparation of the Premises for occupancy. The Premises will be deemed completed
and ready for occupancy by Tenant when Landlord's Supervising Architect
certifies that the work required of Landlord, pursuant to the space plan
attached as Exhibit "A" has been substantially completed in accordance with the
approved plans and specifications and the Landlord's building standard
materials. The Landlord's responsibility for improvements is defined by and
limited to those items specified in Exhibit "A." Any additional improvements
desired by Tenants, not specifically agreed to in writing by the parties, will
be the Tenant's responsibility and effected at the Tenant's expense.
The Tenant's taking possession of the Premises will be conclusive evidence that
the Premises were in good and satisfactory condition when possession was taken.
This Lease does not grant any right to light or air over or about the Premises
or the Building.
If Tenant, with Landlord's prior consent, occupies the Premises before
commencement of the Term, all provisions of this Lease will be in full force and
effect with respect to such occupancy, commencing upon the occupancy, and Rent
for the period must be paid by Tenant at the same rate specified for the Term.
3. RENT: Tenant agrees to pay Landlord a total "Base Rent" of Two Hundred and
Sixty Thousand Four Hundred and Twenty Four Dollars ($260,424) in advance in
monthly installments of Four Thousand Eight Hundred and Twenty Two Dollars and
Sixty Seven Cents ($4,822.67) without any offset or deduction whatsoever, in
lawful money of the United States of America, at Landlord's address above
specified or elsewhere as specified from time to time by Landlord's written
notice to Tenant. Landlord hereby acknowledges payment by Tenant of the sum of
Five Thousand One Hundred and Thirty Six Dollars and Fourteen Cents ($5,136.14)
representing of the first monthly installment of Base Rent, plus sales tax, for
(he first month of the term of the Lease. The balance of the total Base Rent is
payable in equal monthly installments as specified above, in advance, on the
first day beginning on the eighth month of the Term. The Rent for months two
through seven (six months) is abated. If the Term of this Lease commences on any
day other than the first of the month, Tenant will pay Landlord Rent for the
commencement month on a prorated basis (such proration to be based on the actual
number of days in the commencement month), and the first month's installment of
Base Rent paid by Tenant, if any, upon execution of this Lease will be credited
to the next full month's installment of Base Rent due. Rent for any partial
month of occupancy at the end of the Term will be prorated based on the actual
number of days in the partial month.
In addition to Base Rent, Tenant agrees to pay to Landlord, each month, a sum
equal to any sales tax, tax on rentals, and any other charges, taxes and/or
impositions now in existence or subsequently imposed, based upon the rental or
the amount of Rent, and any other charges so levied. Tenant is not required to
pay any part of any federal or state income taxes imposed upon Landlord.
The Landlord acknowledges payment by Tenant of the sum of Twenty Eight Thousand
Two Hundred and Five Dollars ($28,285) for the cost of additional improvements
to the Premises in accordance with the Architect's floor plan (Exhibit "A") and
Building Standards (Exhibit "C").
Tenant must pay Landlord interest at the maximum legal rate on any Rent due that
remains unpaid for five (5) days after its due date.
4. DELETED.
5. ADDITIONAL RENT: In addition to the Base Rent, Tenant shall, during each
lease year, pay to Landlord as "Additional Rent," "Tenant's proportionate share"
of "Operating Expenses," less the "Base Amount". As used here the terms:
(a) "Tenant's proportionate share" means the percentage that the Rentable Area
leased by the Tenant bears to the total Rentable Area contained in the Building,
which share is agreed to be ten and four tenths percent (10.4%).
(b) "Base Amount" means a sum equal to the aggregate Operating Expenses
estimated by the Landlord for the Building's last year of operation,
(c) "Operating Expenses" means all expenses, costs and disbursements of every
kind that the Landlord pays or become obligated to pay because of its ownership,
maintenance or operation of the Building, computed on an accrual basis. By way
of explanation and clarification, but not limitation, Operating Expenses
include:
(i) Wages and salaries of all employees engaged in operation and maintenance of
the Building, social security taxes, unemployment taxes or insurance, and any
other taxes which may be levied on such wages and salaries, the cost of
disability and hospitalization insurance, pension or retirement benefits, or any
other fringe benefits for such employee.
(ii) All supplies and materials used in operation and maintenance of the
Building;
(iii) Cost of all utilities including water, sewer, electricity, gas and fuel
oil used by the Building and not charged directly to another tenant;
(iv) Cost of customary building management, janitorial services, trash and
garbage removal, service and maintenance of all systems and equipment including,
but not limited to, elevators, plumbing, heating, air conditioning, ventilating,
lighting, electrical, telephone, security and fire alarms, fire pumps, fire
extinguishers and devices, guard service, painting, window cleaning and
landscaping and gardening;
(v) Cost of rent abatement, casualty and liability insurance applicable to the
Building and Landlord's personal property used in connection with the Building;
and,
(vi) Taxes, including all impositions, taxes, assessments (special or
otherwise), and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitutes thereof (excepting only income taxes) attributable in any manner
to the Building or the land on which the Building is located and any fixtures or
other facilities located there or used in conjunction therewith.
Landlord will notify Tenant, within a reasonable time after the end of each
calendar year during the Term, of the amount that Landlord estimates (as
evidenced by budgets prepared by or on behalf of Landlord) will be the amount of
Tenant's proportionate share of the Operating Expenses, less the Base Amount,
for the then current calendar year and Tenant will pay that sum in advance to
Landlord in equal monthly installments during that calendar year, on the first
day of each remaining month in that calendar year, commencing on the first day
of the first month following Tenant's receipt of the notification.
Within sixty (60) days following the end of each calendar year during the Term,
Landlord will submit to Tenant a statement showing the actual amount which
should have been paid by Tenant as Additional Rent, for the previous calendar
year, the amount actually paid that year and the amount of the resulting balance
due, or overpayment, as the case may be. Within thirty (30) days after receipt
by Tenant of the statement, Tenant will have the right to inspect Landlord's
books and records pertaining to the Operating Expenses, at Landlord's office,
during normal business hours, after four days prior written notice. The
statement will become final and conclusive between the parties unless Landlord
receives written detailed objections within the thirty (30) day period. Any
balance shown to be due pursuant to the statement will be paid by Tenant to
Landlord within thirty (30) days and any overpayment will be immediately
credited against Tenant's obligation to pay anticipated Additional Rent for the
next year (or, if by reason of any termination of this Lease no such future
obligation exists, refunded to Tenant).
Additional Rent due by reason of this paragraph for the final months of this
Lease is due and payable even though it may not be calculated until subsequent
to the termination date of the Lease; and will be prorated according to that
portion of the calendar year that this Lease was in effect.
Notwithstanding the foregoing, the Additional Rent for the period ending
beginning January 1, 1966 and ending August 31, 1996 is abated.
6. TIME OF PAYMENT: Tenant agrees that Tenant will promptly pay any Rents, at
the times and place stated above; that Tenant will promptly pay charges for work
performed on order of Tenant, and any other charges that accrue under this
Lease; that, if any pall of the Rent or above mentioned charges remain due and
unpaid for ten days after they become due and payable, Landlord will be entitled
(in addition to all other rights and remedies available to it by law and in
equity) to receive a late payment penalty of five percent (5%) of the unpaid
amount.
7. SECURITY DEPOSIT: Deleted
8. USE: The Tenant will use and occupy the premises for general business
purposes consistent with the character and business activities of the building.
In the event that Tenant uses the Premises for purposes not expressly permitted
herein, the Landlord may, in addition to all other remedies available to it,
terminate this Lease or restrain said improper use by injunction.
9. QUIET ENJOYMENT: Upon payment by Tenant of the Rents herein provided, and
upon the observance and performance of all terms and provisions, on Tenant's
part to be observed and performed, Tenant will, subject to all of the terms and
provisions, of this Lease, peaceably and quietly hold and enjoy the Premises for
the Term.
10. INSURANCE PREMIUMS: If the Landlord's insurance premiums exceed the standard
premium rates for similar property because the nature of Tenant's operation
results in extra hazardous exposure, then Tenant will reimburse Land-ford,
immediately upon receipt of appropriate invoices from Landlord, for such
increase in premiums. It is understood and agreed between the parties that any
such increase in premiums will be considered as rent due and will be included in
any lien for rent.
11. RULES AND REGULATIONS: Tenant agrees to comply with all reasonable rules and
regulations Landlord may adopt from time to time for operation of the Building
and parking facilities, and protection and welfare of Building and parking
facilities, its tenants, visitors, and occupants. The current Rules and
Regulations, which Tenant hereby agrees to abide by, are attached as Exhibit
"B". Any future rules and regulations will become a part of this Lease, and
Tenant hereby agrees to comply with them upon delivery of a copy to Tenant,
providing the same do not materially deprive Tenant of any of its rights under
this Lease.
12. GOVERNMENTAL REQUIREMENTS: Tenant will faithfully observe all municipal and
County ordinances and codes, all State and Federal Statutes, rules and
regulations now in force or which may subsequently be in force.
13. SERVICES: Landlord will furnish the following to Tenant.
(a) Electricity for normal lighting and office machines and air conditioning
reasonably required in the Landlord's judgement for the comfortable use and
occupation of the premises between 8:00 a.m. and 6:00 p.m. on Monday through
Friday and Saturdays between 9.00 a.m. and 12:00 p.m. excluding normal business
holidays. If Tenant desires air conditioning for the leased premises outside the
normal Monday through Friday and Saturday hours, Tenant will pay Landlord
fifteen dollars per hour for such use.
(b) Routine maintenance, as deemed by Landlord to be normal and usual and of a
similar quality as other office. buildings located in Miami Lakes, in the common
stairs, common entries and toilet rooms of the building of which the premises
are a part, on Monday through Friday (and excluding weekends and holidays).
(c) Maintenance, as deemed by Landlord to be normal and usual in similar office
buildings, of all exterior landscaping including the replacement of lamps and
ballasts necessary in building standard lighting fixtures.
(d) Maintenance and repair of the roof and all structural portions of the
Building (unless they are damaged by negligent act or omission of Tenant, or
Tenant's agents, employees, guests or invitees, in which event Tenant will be
solely responsible for the cost of repair).
(e) Janitorial service and trash and garbage removal for the areas leased by the
Tenant.
Such services will be provided as long as the Tenant is not in default under any
of the terms and provisions of this Lease, subject to interruption caused by
repairs, renewals, improvements, changes of service, alterations, strikes, lock-
outs, labor controversies, inability to obtain fuel or power, accidents,
breakdowns, catastrophes, national or local emergencies, "Acts of God" and
conditions and causes beyond the control of Landlord; and upon any such or
similar happening, no claim for damages, offset or abatement of rent for failure
to furnish any such services will be made by the Tenant or allowed by Landlord.
No electric current will be used except that furnished or approved by Landlord,
nor will electric cable or wire be brought into the Premises, except upon the
written consent and approval of the Landlord. Tenant will use only office
machines and equipment that operate on the Building's standard electric
circuits, and in no event allow them to overload the Building's standard
electric circuits from which the Tenant obtains electric current.
14. TENANT WORK: It is understood and agreed between the parties hereto that any
charges to Tenant by Landlord for services or for work done on the Leased
Premises by order of Tenant, or otherwise accruing under this Lease, will be
considered as rent due and included in any lien for rent.
15. TENANT MAINTENANCE AND REPAIR OF PREMISES Tenant, at Tenant's own expense,
will keep and maintain the Premises continuously in a neat and attractive
manner, in good repair and in tenantable condition during the Lease term and
will replace (under the direction and to the satisfaction of Landlord), at its
own expense. any and all broken glass caused by Tenant in and about the
Premises.
Tenant will make no alterations, additions or improvements in or to the Premises
without Landlord's prior written consent, which will not be unreasonably
withheld, but May be predicated upon Tenant's use of contractors who are
acceptable to Landlord, and all additions, fixtures, carpet or Improvements,
except only office furniture and fixtures which may be readily removable without
injury to the Premises, will remain part of the Premises at the expiration of
this Lease.
16. CONSTRUCTION LIENS: Tenant does not have any authority to create any
construction liens on Landlord's interest in the Premises and all persons
contracting with the Tenant for the construction or removal of any facilities or
other improvements on or about the Leased Premises, and all material suppliers,
contractors and laborers are charged with notice that they must look only to the
Tenant and to the Tenant's interests in the Premises to secure the payment of
any invoice for work done or material furnished at the request or instruction of
Tenant. Tenant will at all times keep the Premises free of construction liens,
and any other lien for labor, services, supplies, equipment or material
purchased or procured, directly or indirectly, by or for Tenant. Tenant further
agrees that Tenant will promptly pay and satisfy all construction and other
liens (resulting from its order), and will indemnity Landlord against all
expenses, costs and charges, including bond premiums for release of liens and
attorneys' fees and costs reasonably incurred; and in or relating to the defense
of any suit in discharging the Premises, the Building, or any part thereof from
any liens or other encumbrances caused by Tenant. In the event any such lien is
recorded, Tenant will bond against or discharge the same within ten (10) days
after it has been made or recorded. It is understood and agreed between the
parties that such expenses, costs, and charges referred to above will be
considered as rent due and included in any lien for rent.
17. PARKING: So long as Tenant is not in default of the terms and provisions of
this Lease, Landlord assigns to Tenant, for Tenant's exclusive use during the
Term hereof, a total of fourteen parking spaces in the building parking area,
three of which shall be under cover (two compact and one standard sized) and
eleven of which shall be uncovered, (five compact and six standard sized).
Landlord shall have the right, from time to time, to relocate and reassign the
designated parking spaces within the parking area. Landlord will not be liable
for any damage or theft of or from automobiles or other vehicles while in or
about the Building parking areas.
18. SECURITY; LOSS, DAMAGE:
(a) SECURITY: Landlord will not be responsible or liable for the theft, loss or
damage to person or properly in, on or about the Premises, including, without
limitation, any property of Tenant, Tenant's employees, agents and invitees.
Tenant acknowledges and agrees that Landlord is not responsible for the security
of the Premises or the parking area, or the Building in general.
(b) LOSS; DAMAGE: Landlord will not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling building materials
or components, gas, electricity, water, rain or leaks from any part of the
Building or from the pipes, appliances or plumbing works or from the roof,
street or sub-surface or from any other place or by dampness, humidity or by any
other cause of whatsoever, nature, unless directly caused by or due to the
negligence of Landlord, its agents, or employees; nor will Landlord or its
agents be liable for any such damage caused by other tenants or persons in the
Building or caused by construction of any private, public or quasi-public work;
nor will Landlord be liable for any latent defect in the Premises OF in the
Building (though Tenant will give immediate notice to Landlord in case of fire
or accidents in the Premises or in the Building or of any defective conditions
in them or in any fixtures or equipment.
19. ESTOPPEL STATEMENT: Tenant agrees that from time to time, upon not less than
ten (10) days prior request by Landlord, Tenant will deliver to Landlord a
statement in writing certifying: (a) that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the Lease as
modified is in full force and effect and slating the modifications): (b) the
dates to which the rent and other charges have been paid, and, (c) that Landlord
is not in default under any provisions of this Lease, or, if in default,
specifying the nature of the default in detail.
20. SUBORDINATION OF LEASE: This Lease is subject and subordinate to any and all
mortgages now or subsequently encumbering the Building. This provision will be
self-operative without the execution of any further instruments. Notwithstanding
the foregoing, Tenant agrees to execute any instrument(s) which Landlord may
reasonably deem desirable to further evidence the subordination of this Lease to
any and all mortgages. At the option of any of the holder of any mortgage, upon
written notice to Tenant, then in any instance in which Tenant gives notice to
Landlord alleging any default by Landlord, Tenant will also simultaneously give
a copy of such notice to Landlord's mortgagee and such mortgagee will have the
right (but not the obligation) to cure or remedy the default during the period
that is permitted to Landlord, and Tenant will accept such curative or remedial
action (if any) taken by Landlord's mortgagee with the same effect as if the
action had been taken by Landlord. Tenant further agrees to execute any non-
disturbance and attornment agreement reasonably requested by any such mortgagee.
21. ASSIGNMENT OR SUBLETTING: Tenant must obtain the Landlord's prior written
consent, which will not be unreasonably withheld, in order to assign, transfer,
pledge or otherwise encumber or dispose of this Lease or sublet the Premises or
any portion of them or permit the Premises to be occupied by other persons. In
the case of a subletting, Landlord's consent may be predicated, among other
things, on Landlord becoming entitled to collect and retain all rentals payable
under the sublease.
In lieu of consenting or not consenting, Landlord may, at its option, (i) in the
case of the proposed assignment or subletting of Tenant's entire leasehold
interest, terminate this Lease in its entirety, or (ii) in the case of the
proposed assignment or subletting of a portion of the Premises, terminate this
Lease on that portion of the Premises that Tenant has proposed to assign or
sublet. In the event Landlord elects to terminate this Lease pursuant to clause
(ii) of this paragraph, Tenant's obligations as to Base Rental and Additional
Rent will be reduced in the same proportion that the Rentable Area of the
portion of the Premises for which this Lease is being terminated bears to the
total Rentable Area of the Premises.
If Tenant is a corporation (other than one whose shares are regularly and
publicly traded on a recognized stock exchange), trust, partnership or other
business entity, any change in the ownership (legal or equitable) to a third
party, will be deemed an assignment of this Lease.
22. HOLD HARMLESS OF LANDLORD AND PARTNERS: In consideration of the Premises
being leased to Tenant for the above Rent, Tenant agrees that Tenant, at all
times, will indemnify and hold harmless Landlord from all losses, damages,
liabilities and expenses (including reasonable attorneys' fees and costs) that
may arise or be claimed against Landlord for any injuries or damages to the
persons or property that arise from Tenant's use or occupancy of the Premises or
other portions of the Building (including the parking areas) or arising from any
acts or omissions of Tenant, Tenant's agents, employees, or invitees, or arising
from Tenant's failure to comply with the terms and provisions of this Lease or
any applicable laws, ordinances, codes or regulations. Landlord will not be
liable to Tenant for any damage, loss or injury to persons or property, except
when such damage, loss or injury results from negligence of Landlord, its agents
or employees. Tenant will indemnify and hold Landlord harmless from all such
claims, damages, liabilities, injuries and expenses. Any and all personal
property placed or moved into the Premises or Building will be at the risk of
Tenant or the owner thereof, and Landlord will not be liable to Tenant for any
damage to such personal property.
If Landlord is made a party to any litigation relating to any of the matters in
the preceding paragraph, then Tenant will protect and hold Landlord harmless and
pay all costs, expenses and reasonable attorneys' fees incurred or paid by
Landlord in connection with such litigation and any appeal thereof.
In all events, Tenant will look solely to the premises and rents derived
therefrom for enforcement of any obligation of the Landlord under this Lease or
by law assumed or enforceable against Landlord. Tenant agrees that any such
obligations do not constitute personal obligations of Landlord, or any of its
partners, and will not create or involve any claim against or personal liability
on the part of any of them, and that Tenant will look solely to Landlord's
interest in the Premises for satisfaction of any liability of Landlord to
Tenant.
23. CASUALTY LOSS: If the Premises (or a material portion of them) are
rendered untenantable by reason of fire or other casualty loss, a just
proportionate share of the Rent will xxxxx while untenantable. The Landlord in
such case, will have the option either to continue this Lease in effect (in
which event the Landlord will repair the Premises other than any Tenant
improvements) within five (5) months after the date of the loss (subject to any
delay caused by a force majeure), or to cancel this Lease as of the date of the
loss. Landlord will notify Tenant after a loss as to which option Landlord
elects.
24. CONDEMNATION: In the event that the Premises or any material parl thereof
are taken for any public or quasi-public use by condemnation or by right of
eminent domain, or. purchase in avoidance or settlement of a condemnation or
eminent domain proceeding, Landlord and Tenant agree that this Lease will be
canceled, and Rent will xxxxx as of the date of taking. Any and all condemnation
awards will be the properly of the Landlord.
25. DEFAULT: The following are "events of default:"
(a) If Tenant defaults in the payment of any Rent or other charges and such
default continues for a period of thirty (30) days after written notice from
Landlord to Tenant,
(b) If Tenant defaults in the performance of or fails to comply with any of the
agreements, terms, conditions or regulations contained in this Lease (other than
payment of rent) and such default or noncompliance continues for ten (10) days
after written notice from Landlord to Tenant,
(c) If Tenant files a voluntary petition in bankruptcy or is adjudicated
bankrupt or insolvent, or files any petition or answer seeking any creditor
protection, reorganization, liquidation, dissolution or similar relief under the
current or any future federal bankruptcy act or any other current or future
applicable federal, state or other debtor's relief statute or law, or seeks or
consents to the appointment of any trustee, receiver or liquidator of all or any
substantial part of Tenant's properties or of the Premises;
(d) If within ninety (90) days after commencement of any proceeding by or
against Tenant seeking any protection, reorganization, liquidation, dissolution
or similar relief under the current or any future federal bankruptcy act or any
other applicable federal, state or other debtor's relief statute or law, such
proceeding is not dismissed, or stayed on appeal, or if, within ninety (90) days
after the appointment, without the consent of Tenant, of any trustee, receiver
or liquidator of Lessee or of all or any substantial part of Lessee's properties
or of the Premises, such appointment has not been vacated or stayed on appeal or
otherwise, or if, within ninety (90) days after the expiration of any such stay,
such appointment is not vacated:
(e) If the Premises are seized under any execution, levy, attachment or other
legal process and such is not promptly vacated or stayed on appeal or otherwise,
or if the Tenant's interest in the Premises is sold by judicial sale and the
sale is not promptly vacated or stayed on appeal or otherwise; or,
(f) If Tenant fails to take possession and open for business within thirty (30)
days after commencement of the Term, or subsequently vacates, abandons, or
deserts the Premises, or ceases the continual operation of its business.
If there is an event of default, then the Landlord may, at any time thereafter,
terminate this Lease and retake possession, declare the balance of the entire
rent for the entire rental term of this lease to be immediately due and payable
(in which event Landlord may then proceed to collect all of the unpaid rent
called for by this Lease by distress or otherwise), or pursue any other remedy
afforded by law or equity, provided that such default and all other defaults at
the time existing have not been fully cured, and all legal expenses and costs
incurred by the Landlord in connection with enforcing this Lease, have not been
fully paid.
Nothing in this Lease will be construed as precluding the Landlord from having
such remedy as may be and become necessary in order to preserve the Landlord's
right or the interest of the Landlord in the Premises and in this Lease, even
before the expiration of the grace or notice periods, if under particular
circumstances then existing the allowance of such grace or the giving of such
notice would prejudice or endanger the rights and estate of the Landlord in this
Lease or in the Premises. All rights and remedies granted in this Lease to
Landlord or available at law or equity will be cumulative and not exclusive.
26. LIEN FOR PAYMENT OF RENT: Deleted.
27. WAIVER OF DEFAULT: Failure of Landlord to declare any default immediately
upon its occurrence, or delay in taking any action in connection with such
default, is agreed not waive the default, and Landlord will have the right to
declare any default at any time and then take action.
No waiver of any term, provision, condition or covenant of this Lease by
Landlord will be deemed to imply or constitute a further waiver by Landlord of
any other term, condition or regulation of this Lease and no acceptance of Rent
or other payment will be deemed a waiver of any default.
28. RIGHT OF ENTRY: Landlord, or any of its agents, will have the right to enter
the Premises during all reason-able hours to examine them or to make such
repairs, additions or alterations as may be deemed necessary for the safety,
comfort, or preservation, of the Premises or the Building; and to exhibit the
Premises at any time within one hundred and eighty (180) days before the
expiration of this Lease.
29. INSURANCE: Tenant will maintain, at its expense, throughout the Term of
this Lease, the following insurance coverages:
(a) liability insurance for bodily injury and properly damage to protect both
Landlord and Tenant against claims, damage, costs and attorney's fees arising
out of accidents of any kind occurring on or about the Premises, the Building or
the parking area with combined single limit liability coverage of not less than
$1,000,000 and property damage coverage of not less than $200,000;
(b) fire and extended casualty insurance with sufficient coverage to reimburse
the loss of all of Tenant's improvements to the Premises, and all of Tenant's
fixtures, equipment, personal properly and inventory;
(c) the Landlord hereby waives the requirement for plate glass insurance
covering the replacement value of all plate glass in or about the Premises with
the proviso that the Tenant agrees to pay the Landlord for the replacement of
any glass broken by the Tenant's employees and/or invitees; and,
(d) appropriate workers' compensation and any and all other insurance required
by law.
All insurance must be written by insurers qualified to do business in Florida
and reasonably acceptable to Landlord. A certificate or duplicate policies
showing such insurance in force will be delivered to Landlord prior to
commencement of the Lease Term, and such insurance and updated certificate or
renewed policies will be maintained with Landlord throughout the Term of this
Lease.
30. NOTICE: Any notice given to Landlord will be sent to Landlord by United
States certified mail, postage prepaid, return receipt requested, addressed to
Landlord at Landlord's office at the address set forth on page 2. or hand
delivered to Landlord at its office. Any notice given Tenant under the terms of
this Lease, will be in writing and will be sent by United States certified mail,
postage prepaid, return receipt requested, or hand delivered to the Tenant at
the Premises (except that prior to commencement of the Term, notices to the
Tenant will be sent to the address set forth on page 2 hereof). Either party,
from time to time, by such notice, may specify another address to which
subsequent notice will be sent. Any notice given by mail will be deemed given
three (3) days following the date of mailing.
31. COMMON AREAS: All automobile parking or drive areas, walkways, loading
areas, landscaped areas and other areas and improvements provided by Landlord
for the general use, in common, of tenants will be at all times subject to the
Landlord's control and management, and Landlord will have the right to
establish, modify and enforce rules and regulations with respect to all such
facilities.
32. CONDITION OF PREMISES ON TERMINATION OF LEASE AND HOLDING OVER: Tenant
agrees to surrender, at the end of the Term of this Lease or upon any early
termination of this Lease, the Premises in as good condition as the Premises
were at the beginning of the Term, ordinary wear and tear excepted. Tenant
agrees that if it does not surrender the Premises at the end of the Term, then
Tenant will pay one and one half times the amount of the Rent (provided the
Tenant remains in occupancy of the Premises with the Landlord's written
approval) paid by Tenant for the last full month of the Term for each month or
portion that Tenant holds over and any damages that Landlord may suffer because
of Tenant's failure to surrender possession of the Premises including those
resulting from any claim by a succeeding tenant brought because of Landlord's
delay in delivering possession of the Premises to the succeeding Tenant, to the
extent that the delay is occasioned by Tenant. Notwithstanding the foregoing,
the then current rent shall be in effect for the first thirty days of the
holding over period.
No act by Landlord or its agents during the Term will be deemed an acceptance of
a surrender of the Premises, and no agreement to accept a surrender of the
Premises will be valid unless it is in writing signed by Landlord.
33. OCCUPANCY AND PERSONAL PROPERTY TAXES: Tenant will be responsible for and
pay before delinquency all municipal, county or state taxes assessed during the
Term of this Lease on any occupancy interest or personal properly of any kind,
owned by or placed in the Premises.
34. SIGNS: Landlord will have the right to install signs on the Premises. No
signs of any kind will be placed by the Tenant on the exterior of the Building
or any other portions of the Building. All signs to be placed on the Premises
will be of a style, size, lettering and content approved by the Landlord.
35. FLOOR LOADS: Tenant will not overload the floors and will not install any
heavy equipment of any kind, without prior written approval of the Landlord.
36. TRIAL BY JURY: It is mutually agreed by Landlord and Tenant that each waives
trial by jury in any action, proceeding or counterclaim brought by either of the
parties against the other on any matters arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant, and Tenant's use or
occupancy of the Premises.
37. INVALIDITY OF PROVISION: If any term or provision of this Lease or its
application to any person or circumstance is to any extent found to be invalid
or unenforceable, then the remainder of this Lease or the application of such
term or provision to a person or circumstance other than that held invalid or
unenforceable will not be affected and each other term and provision of this
Lease will be valid and be enforceable to the fullest extent permitted by law.
This Lease will be construed in accordance with Florida law.
38. TIME OF ESSENCE: It is understood and agreed that time is of the essence
of all the terms and provisions of this Lease.
39. SUCCESSORS AND ASSIGNS: All terms and provisions of this Lease to be
observed and performed by Tenant will be applicable to and binding upon Tenant's
successors and assigns; subject, however, to the restrictions as to assignment
and subletting by Tenant provided above.
40. ATTORNEY'S FEES: If there is litigation between the parties relating to this
Lease in any way, then the prevailing party will be entitled to recover its
reasonable attorneys' fees and legal expenses and costs relating to remedy of
the default (including costs and fees relating to any appeal and enforcement of
any remedy).
41. MISCELLANEOUS. The terms "Landlord" and "Tenant" include the singular and
plural, masculine, feminine and neuter, heirs, successors, personal
representatives and assigns, wherever the context requires or admits. "Landlord"
will be the owner of the Premises, from time to time, and upon the sale of the
Premises by the current owner, the new owner will be bound and liable as
"Landlord" under all of the terms and provisions under this Lease (including any
obligation to return the Security Deposit) and the former owner will
automatically be released from all obligations to Tenant. The terms and
provisions of this Lease are expressed in the text and body of this Lease and
the paragraph headings are solely for the convenience of the reader, are not
intended to be inclusive and will not be construed to limit or expand any of the
provisions of this Lease. Any formally executed addendum or modification of this
Lease will be deemed expressly incorporated, unless a contrary intention is
clearly stated. Notwithstanding anything here to the contrary, Landlord will not
be or be deemed to be in default unless it has failed to cure its default within
a reasonable time following its receipt of notice of the supposed default.
All exhibits attached to this Lease are hereby incorporated in and made a part
of it. Neither this Lease nor any memorandum or short form of it may be recorded
in the Public Records of Dade County, Florida.
42. EFFECTIVE DATE: Submission of this instrument for examination does not
constitute an offer, right of first refusal, reservation of or option for the
Premises or any other space or premises in, or about the Building. This
instrument becomes effective as a Lease upon execution and delivery by both
Landlord and Tenant.
43. BROKERAGE: Tenant represents and warrants that it has not dealt with any
broker, salesman, agent or other person in connection with this transaction,
other than Xxxxxxx & Xxxxxxxxx of FL, Inc. and Xxxxx Company and that no other
broker, salesman agent or other person brought about this transaction, and
Tenant agrees to indemnify and hold Landlord harmless from and against any
claims by any other broker, salesman, agent or other person now claiming a
commission or other form of compensation by virtue of having dealt with Tenant
with regard to this leasing transaction.
44. FORCE MAJEURE: The term "force majeure" as used in this Lease will mean
"Acts of God", labor disputes (whether lawful or not), material or labor
shortages, restrictions by any governmental authority, civil riots, floods or
other cause beyond a party's control.
45. ENTIRE AGREEMENT: This Lease contains the entire agreement between the
parties and it may be modified only by an agreement in writing signed by the
party to be charged with the modification. Tenant specifically represents that
it has not relied upon any statement(s), representation(s), prior or
contemporaneous oral promise(s) or agreement(s) other than those specifically
set forth in this Lease.
IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered this
Lease in several counterparts each of which will be deemed an original, but all
constituting a single agreement, at Dade County, Florida, as of the day and year
first above written.
Witnesses: Dolphin Lakes Partnership.
EXHIBIT A
FLOOR PLAN
[not reproduced]
EXHIBIT 8
RULES AND REGULATIONS
1 . Sidewalks, doorways, vestibules, halls, stairways and similar areas will not
be obstructed by tenants or used for any purpose other than access to and from
the leased premises and for going from one to another part of the building.
2. Plumbing fixtures and appliances will be used only for purposes constructed,
and no sweeping, rubbish, rags or other unsuitable material will be thrown or
placed within the premises. Any damage resulting from such misuse of the
premises will be paid by Tenant, and Landlord will not in any case be
responsible for such.
3. No signs, advertisements or notices will be painted or affixed on or to any
windows or doors or other part of the building, except of such color, size and
style and in such places as will be first approved in writing by Landlord. No
nails, hooks or screws will be driven or inserted in any part of the building,
after Tenant's Improvements are completed, except by the building maintenance
personnel; nor will any part of the building be defaced by tenants.
4. A directory will be placed by Landlord, at its expense, in a conspicuous
place in the building. No other directories will be permitted, unless previously
authorized by Landlord in writing.
5. Tenants will not do, or permit anything to be done, in or about the building,
or bring or keep anything there, that will in any way increase the rate of fire
or other insurance on the building, or on property kept there, or obstruct or
interfere with the rights of, or otherwise injure or annoy other tenants, or do
anything in conflict with the valid pertinent laws, rules or regulations of
Landlord or any governmental authority.
6. Tenant will notify the building manager when safes or other heavy equipment
are to be taken in or out of the building and the moving will be done under the
supervision of the building manager, after written permission from the Landlord.
Persons employed to move such property must be acceptable to Landlord.
7. Tenants will not make or permit any improper noises in the building, or
otherwise interfere in any way with other tenants, or persons having business
with them.
8. Nothing will be swept or thrown into the corridors, halls, elevator shafts or
stairways. No birds or animals will be brought into or kept in or about the
building.
9. No machinery of any kind (other than normal office equipment) will be
operated on leased premises without the prior written consent of Landlord, who
may condition such consent upon the payment by Tenant of additional rent as
compensation for excess consumption of water or electricity, or both, occasioned
by the operation of the machinery; nor will Tenant use or keep
in the building any inflammable or explosive fluid or substance, or any
illuminating material, except candles.
10. Movement in or out of the building of furniture or office equipment, or
dispatch or receipt by tenant of any merchandise or materials which requires use
of elevators or stairways, or movement through building entrances, such as the
lobby, will be restricted to hours designated by Landlord. All such movement
will be under supervision of the building manager, by prearrangement. Such
prearrangement must be initiated by Tenant and will be by determination of
Landlord and subject to his decision and control, of the time, method and
routing of movement, and limitations imposed by safety or other concerns which
may prohibit any article, equipment or any other item from being brought into
the building. Tenant is to assume all risks of damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord, if damaged or injured as a result
of acts in connection with providing this service to Tenant, from time of the
beginning through the completion of the moving or delivery, and Landlord will
not be liable for acts of any persons engaged in, or any damage or loss to any
of said property or persons resulting from, any act in connections with such.
11. No draperies, shutters, or other window coverings will be installed on
exterior windows, walls or doors facing public corridors without Landlord's
prior written approval. Landlord will have the right to require installation and
use of uniform coverings.
12. No portion of Tenant's area or any other part of the building will at any
time be used or occupied as sleeping or lodging quarters.
13. Landlord will not be responsible for lost or stolen properly, equipment,
money, or jewelry from Tenant's area or public rooms, regardless of whether such
loss occurs when the area is locked against entry.
14. Landlord specifically reserves the right to refuse admittance to the
building from 7 p.m. to 7 a.m. daily, or on Sundays or on legal holidays, to any
person or persons who cannot furnish satisfactory identification, or to any
person or persons who for any other reason, in the Landlord's judgment, should
be denied access to the premises. Landlord, for the protection of the tenants
and their effects, may prescribe hours and intervals during the night on Sundays
and holidays, when all persons entering and departing the building will be
required to enter their names, the offices to which they are going (or from
which they are leaving), and the time of entrance or departure in a register
provided for that purpose by the Landlord.
15. The various levels of the Building will be designated as follows: the
"Lobby" will be the ground floor; and the floors above will be designated as
floors 2, 3 and 4.
16. Landlord reserves the right to rescind any of these Rules and make such
other further reasonable rules and regulations that Landlord will from time to
time believe conducive to the safety, protection, care and cleanliness of the
building, its operation, the preservation of good order, and the protection and
comfort of its tenants, their agents, employees and invitees, which Rules, when
made and notice of them given to Tenant, will be binding upon Tenant as if
originally prescribed.
