EXHIBIT 10.15
LEASE
1. BASIC LEASE PROVISIONS.
1.1 PARTIES. This Lease (the "Lease"), dated as of this 21 day of July,
1997, is made by and between New Town Commerce Center, Ltd., a Florida
Limited Partnership (hereinafter referred to as "Landlord"), and Galacticomm,
Inc., a Florida Corporation (hereinafter referred to as "Tenant").
1.2 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord a portion of real property commonly known as Suites 101, 102, 103
and 104 at 0000 X.X. 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, located at New
Town Commerce Center (hereinafter referred to as the "Center"), consisting of
approximately 11,129 square feet (the "Leased Premises"). The location of the
Leased Premises is generally de1inated on EXHIBIT "A" which is attached hereto
and made a part hereof. All of the real property underlying the Center and
adjacent thereto, with all improvements thereon, including the Center and the
Common Areas (as defined below), and used in connection with the operation of
the Center, shall hereinafter be referred to as the "Project".
1.2.1 Notwithstanding the description of the Leased Premises in
paragraph 1.2, for the first month of this Lease, Landlord leases to Tenant and
Tenant leases from landlord only Suites 101, 102 and 103 at 0000 X.X 00xx
Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
1.3 USE OF ADDITIONAL AREAS. The use and occupation by the Tenant of
the Leased Premises shall include the non-exclusive use, in common with others
entitled thereto, of the common areas, employees' parking areas, service roads,
malls, loading facilities, sidewalks and customer car parking areas as such
common areas now exist or as such common areas may hereafter be constructed, and
other facilities as may be designated from time to time by the Landlord, subject
to the terms and conditions of this Lease and to reasonable rules and
regulations for the use thereof as prescribed from time to time by the Landlord.
1.4 USE OF LEASED PREMISES. Tenant will use and occupy the Leased
Premises only for the purposes of general office and warehouse use and for no
other use and purpose. In the event that Tenant uses the Leased Premises for
purposes not expressly permitted herein, Landlord may seek damages without
terminating Lease, in addition to all other remedies available to it, terminate
this Lease or restrain said improper use by injunction. Tenant shall not perform
any acts or carry on any practices which may damage the Project, building or
improvements or be a nuisance or menace to other tenants in the Project or their
customers, employees or invitees or which will result in the increase of
casualty insurance premiums. Tenant agrees to conduct its business in the Leased
Premises under the name or trade name as set forth in the Lease Agreement and
under no other name or trade name except such as may be first approved by
Landlord in writing. Tenant shall be solely responsible to determine if the
intended use complies with all governmental regulations. Landlord, by execution
of this Lease or otherwise, makes no representations that the intended use
complies with governmental regulations.
1.5 TERM. The Lease term shall commence on August 17, 1997 (hereinafter
referred to as the "Commencement Date") and shall terminate on October 31, 2001
unless earlier terminated pursuant to the terms hereof (hereinafter referred to
as the "Term"). The "Lease Year"
hereunder shall be defined as a period of twelve (12) consecutive months, with
first Lease Year commencing on the Commencement Date and each subsequent Lease
Year commencing on the expiration of the immediately preceeding Lease Year,
provided, however, the first Lease Year shall include that period of time from
the Commencement Date through October 31, 1997 and the twelve (12) month period
commencing on November 1, 1997. The expiration of every, Lease Year shall be
referred to as the "Anniversary".
1.6 FAILURE OF TENANT TO TAKE POSSESSION. In the event that Tenant
fails to take possession or, if applicable, to occupy the Leased Premises and to
commence to do business on the Commencement Date, then Tenant shall be in
default hereafter and Landlord shall have the right, at its option to cancel
this Lease by giving Tenant written notice of intent to cancel thereof and this
Lease will terminate ten (10) days after the giving of such notice and Landlord
will retain all prepaid rentals and security deposits as liquidated and agreed
damages.
1.7 OBLIGATIONS OF TENANT BEFORE RENT COMMENCEMENT DATE. In the event
the Commencement Dates precedes the time for payment of rent, Tenant shall
observe and perform all of its obligations under this Lease (except its
obligations to pay Base Rent) beginning on the Commencement Date.
1.8 OBLIGATIONS OF LANDLORD BEFORE LEASED PREMISES BECOME VACANT. If
this Lease is executed before the Leased Premises become vacant, or if any
present Tenant or occupant of the Leased Premises holds over, and Landlord
cannot acquire possession of the Leased Premises prior to the Commencement Date
of this Lease, Landlord shall not be deemed to be in default hereunder, and
Tenant agrees to accept possession of the Leased Premises and rent shall
commence at such time as Landlord is able to deliver the same; provided,
however, Tenant shall not be obligated hereunder unless Landlord is able to
deliver the Leased Premises within ninety (90) days of the Commencement Date.
1.9 CONTROL OF COMMON AREAS BY LANDLORD. All areas within the exterior
boundaries of the Project which are not now or hereafter held for lease or
occupation by the Landlord, or used by other persons entitled to occupy floor
space in the Project, including, without limitation, all automobile parking
areas, driveways, entrance and exists thereto, and other facilities furnished by
Landlord in or near the Project, including employee parking areas, the through
way or ways, loading docks, pedestrian sidewalks and ramps, landscaped areas,
exterior stairways and other areas and improvements provided by Landlord for the
general use, in common, of tenants, their officers, agents, employees and
customers ("Common Areas") shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right, but not
the obligation, to construct, maintain and operate lighting facilities on all
said areas and improvements, to patrol the same, from time to time to change the
area, level, location and arrangement of parking areas and other facilities
herein above referred to; to restrict parking by tenants, their officers, agents
and employees to employee parking areas.
Landlord shall have the right to close all or any portion of said areas or
facilities to such extent as may, in the opinion of Landlord's counsel, be
legally sufficient to prevent a dedication thereof or the accrual of any rights
of any person or the public therein to close temporarily all or any portion of
the parking areas or facilities, to discourage non-customer parking; and to do
and perform such other acts in and to said areas and improvements as, in the use
of good business judgment, the Landlord shall determine to be advisable with a
view to the improvement of the convenience and use thereof by tenants, their
officers, agents, employees and customers. Landlord shall keep said Common Areas
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clean and in good repair and available for the purposes for which they are
intended. Landlord shall have the full right and authority to employ all
personnel and to make al1 rules and regulations pertaining to and necessary for
the proper operation and maintenance of the Common Areas and facilities.
Notwithstanding any language contained herein to the contrary, Landlord shall
not perform any acts or improvements in or to the common areas which would
materially or permanently prohibit ingress or egress to Tenant's Leased Premises
or Tenant's use of parking.
1.10 LICENSE. All Common Areas and facilities not within the Leased
Premises, which Tenant may be permitted to use and occupy, are hereby
authorized to be used and occupied under a revocable license, and if any such
license be revoked, or if the amount of such areas be diminished, Landlord shall
not be subject to any liability nor shall Tenant be entitled to any compensation
or diminution or abatement of rent, nor shall such revocation or diminution of
such areas be deemed constructive or actual eviction.
2. PAYMENT OF RENT AND OTHER CHARGES.
2.1 BASE RENT. Tenant agrees to pay to Landlord throughout the Term of
this Lease, monthly payments of base rent ("Base Rent") as set forth below,
which amounts shall be paid to Landlord in advance in United States currency on
or before the first day of each month, without any offset or deduction
whatsoever, plus applicable Florida sales and use tax for each of said monthly
payments:
ANNUAL RENT PER TOTAL ANNUAL MONTHLY
PERIOD RENTABLE SQUARE FOOT BASE RENT BASE RENT
------ -------------------- ------------ ---------
8-1-1997 to 10-31-1977 N/A N/A $6,959.25
11-1-1997 to 10-31-1998 $9.00 $100,161.00 $8,346.75
11-1-1998 to 10-31-1999 $9.36 $104,167.44 $8,680.62
1l-1-1999 to 10-31-2000 $9.73 $108,285.17 $9,023.76
11-1-2000 to 10-31-2001 $10.12 $112,625.48 $9,385.46
Tenant will promptly pay all rentals and other charges and render all
statements herein prescribed. Any rental payment not received by Landlord within
five (5) business days of its due date shall incur a "late charge" equal to five
percent (5%) of such payment to compensate Landlord for its administrative
expenses in connection with such late payment. When rental payments are
delivered by Tenant through the mails, Tenant shall mail such payments
sufficiently in advance so that the Landlord will receive the payments on or
before the first day of the calendar month or on or before the due date in the
event the due date is other than the first day of a calendar month. If Landlord
shall pay any moneys, or incur any expenses in correction of any violation of
any covenant or of any other obligation of Tenant herein set forth or implied
herein, the amounts so paid or incurred shall, at Landlord's option and on
notice to Tenant, be considered additional rentals payable by Tenant, with the
first installment of rental thereafter to become due and payable, and may be
collected or enforced as by law provided in respect to rentals.
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2.1.1 Services Provided. The following services at minimum are
provided with the Base Rent for the Initial Term:
2.1.1.1 gardening, landscaping and irrigation, exterior repairs and
painting:
2.1.1.2 sanitary control, removal of trash, rubbish, garbage and
other refuse from the Common Areas but not from any Leased Premises;
2.1.1.3 utilities for Common Areas;
2.1.1.4 maintenance and repair of air conditioning; and
2.1 1.5 a dumpster(s) will be provided for refuse collection.
Dumpsters are for office and incidental waste only. Those tenants determined by
Landlord to produce excessive and/or refuse that we do not allow to be disposed
of in our dumpster(s) will be required to provide their own dumpster at their
expense.
In the event any payment of Rent, whether Base rent or Additional Rent,
is made by check and the check is returned to Landlord due to insufficient funds
Landlord shall have the right, upon written notice to Tenant, to require al1
future rent payments to be made by cashier's check. If this right is exercised
by Landlord, attempted payment by means other than cashier's check shall not be
deemed a payment pursuant to this Lease, unless the Landlord, in writing,
revokes the requirement of a cashiers check.
2.2 SALES OR USE TAX OR EXCISE TAX. Tenant shall also pay, as
Additional Rent, all sales or use or excise tax imposed, levied or assessed
against the rent or any other charge or payment required herein by any
governmental authority having jurisdiction there over, even though the taxing
statute or ordinance may purport to impose such sales tax against the Landlord.
The payment of sales tax shall be made by Tenant on a monthly basis,
concurrently with payment of the Base Rent.
2.3 PRO RATA SHARE OF PROJECT AREA EXPENSES. For each Lease Year or
partial Lease Year if Project Area Expenses are calculated by calendar year of
any option period only, Tenant will pay to Landlord, in addition to the Base
Rent specified above, as further additional rent, "Tenant's proportionate share"
of "Project Area Operating Expenses", less the "Base Amount". This paragraph 2.3
shall not apply to the initial Term set out in paragraph 1-5. For each Lease
Year after the first Lease Year of the first option period, any increase in pro
rata share of project area expenses shall be capped at four (4%) percent over
that of the prior Lease Year
2.3.1 "Tenant's proportionate share" shall mean a proportion of the
Project Area Operating Expenses, calculated by multiplying the total Project
Area Operating Expenses by a fraction, the numerator of which shall be the
number of square feet contained in the Leased Premises and the denominator of
which shall be the aggregate number of square feet of leasable building space in
the Project, which Tenant's proportionate share is hereby agreed to be .0381
(3.81%).
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2.3.2 "Base Amount" shall mean a sum equal to the aggregate Project
Area Operating Expenses estimated by Landlord for the Base Year.
2.3.3 "Project Area Operating Expenses" as used herein means the total
cost and expense incurred in operating and repairing the Project buildings and
improvements and common facilities, hereinafter defined, excluding only items of
expense commonly known and designated as debt service, plus an administrative
fee of fifteen percent (15%) of actual expenses. Project Area Operating Expenses
shall specifically include, without limitation:
2.3.3.1 gardening, landscaping and irrigation, repairs, painting;
2.3.3.2 management fees;
2.3.3.3 sanitary control, removal of trash, rubbish, garbage and
other refuse from the Common Areas but not from any Leased Premises;
2.3.3.4 depreciation of machinery and equipment,
2.3.3.5 the cost of maintenance and support personnel, including but
not limited to payroll and applicable payroll taxes, worker's compensation
insurance and fringe benefits;
2.3.3.6 utilities charges for the common areas;
2.3.3.7 water and sanitary sewer charged not billed directly to
tenants;
2.3.3.8 Association fees or dues; and
2 3 3 9 any and all other charges, costs or expenses which may be
associated with Landlord's operation of the Project (excluding Real Estate Taxes
and Insurance).
2.3.4 "Common Facilities" means all areas, space, equipment and special
services provided by Landlord for the common or joint use and benefit of the
occupants or operations of the Project, their employees, agents, servants,
customers and other invitees, including without limitation, parking areas,
access roads, driveways, retaining walls, landscaped areas, pedestrian malls,
courts, stairs, ramps and sidewalks, public rest rooms, washrooms, community
hall or auditorium (if any) and signs, wherever located, identifying the
Project, or providing instructions thereto.
2.3.5 Landlord may estimate the Project Area Operating Expenses and
Tenant shall pay one-twelfth (l/l2) of Tenant's proportionate share of said
estimated amount monthly in advance, together with the next due payment of Base
Rent. After the end of each Lease Year, Landlord shall furnish Tenant a
statement of the actual Project Area Operating Expenses. Within thirty (30) days
after receipt by Tenant of said statement, Tenant shall have the right in person
to inspect Landlord's books and records as pertain to said Project Area
Operating Expenses, at Landlord's office, during normal business hours, upon
four (4) days prior written notice. The
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statement shall become final and conclusive between the parties unless Landlord
receives written detailed objections with respect thereto within said thirty,
(30) day period. Any balance shown to be due pursuant to said statement shall be
paid by Tenant to Landlord within thirty (30) days following Tenant's receipt
thereof and any overpayment shall be immediately credited against Tenant's
obligation to pay Additional Rent in connection with anticipated Project Area
Operating Expenses for the next year, or, if by reason of any termination of
this Lease no such future obligation exists, refunded to Tenant. Anything herein
to the contrary notwithstanding, Tenant shall not delay or withhold payment of
any balance shown be due pursuant to a statement rendered by Landlord to Tenant
because of any objection which Tenant may raise with respect thereto and
Landlord shall immediately credit or refund any overpayment found to be owing to
Tenant as aforesaid upon the resolution of said objection.
Additional Rent due by reason of this section 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 shall be prorated according to that portion
of said calendar year that this Lease was actually in effect. Tenant expressly
agrees that Landlord, at Landlord's sole discretion, may apply the Security
Deposit, in full or partial satisfaction of any Additional Rent due for the
final months of this Lease, but nothing herein contained shall be construed to
relieve Tenant of the obligation to pay any Additional Rent due for the final
months of this Lease, nor shall Landlord be required to first 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 or provisions of this
Lease.
2.4 ADDITIONAL RENT. In order to give Landlord a lien of equal priority
with Landlord's lien of rent, and for no other purpose, including tax
determination any and all sums of money or charges required to be paid by Tenant
under this Lease, whether or not the same be so designated, shall be considered
"Additional Rent". If such amounts or charges are not paid at the time provided
in this Lease they shall nevertheless, if not paid when due, be collectible as
Additional Rent with the next installment of rent thereafter falling due
hereunder, but nothing herein contained shall be deemed to suspend or delay the
payment of any amount of money or charges as the same becomes due and payable
hereunder, or limit any other remedy of Landlord.
2.5 SPECIAL ASSESSMENTS. For each Lease Year in any option period,
Tenant will pay to Landlord, in addition to Base Rent as further Additional
Rent, Tenant's proportionate share of any special assessments assessed against
the Project, with applicable tax, if any. The payment of any such special
assessments shall be made by Tenant on a monthly basis, concurrently with Base
Rent. Tenant's proportionate share of any such special assessment shall be the
percentage share stated in Section 2.3.1. This paragraph shall not apply to the
initial Term set out in paragraph 1.5.
2.6 REAL ESTATE TAXES. For each Lease Year or partial Lease Year, if
real estate taxes are computed for a calendar year of any option period only,
Tenant will pay to Landlord, in addition to Base Rent as further Additional
Rent, a proportionate share of all ad valorem and real estate taxes levied by
any lawful authority against the Project less a proportionate share of said ad
valorem and real estate taxes of the Project for the base year. Tenant's
proportionate share shall be .1357 (13.57%). Landlord may estimate the amount in
the manner set out in Section 2.3.4. This paragraph 2.6 shall not apply to the
initial Term set out in paragraph 1.5.
2.7 INSURANCE. For each Lease Year or partial Lease Year, if insurance
is paid per calendar year of any option period only, Tenant will pay to
Landlord, in addition to Base Rent as further Additional Rent, Tenant's
proportionate share of Landlord's insurance premiums on or in
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respect of the Project, including but not limited to public liability,
property damage, all risk perils, rent and flood insurance, if carried by
Landlord less Tenant's proportionate share of said insurance premiums for the
base year. Tenant's proportionate share shall be the proportionate share stated
in Section 2.3.1. Landlord may estimate the amount in the manner set out in
Section 2.3.4. This paragraph 2.7 shall not apply to the initial Term set out in
paragraph 1 5.
2.8 The base year for computation of proportionate share applicable to
option periods only is 2001.
2.9 GUARD/PATROL SERVICES. Landlord, in its sole discretion,
determination and option may, but is not required to enter into a contract or
contracts or otherwise provide or make arrangement for the providing of guard,
patrol and/or security, separate from the association, which may include
security guards and/or electronic devices and/or a guard gate and/or gate house.
For option years only, Tenant shall pay its proportionate share for the expense
of the services. Landlord shall in no way be responsible for the performance or
non-performance of the obligations of guard/patrol/security personnel or
service, including but not limited to negligent or intentional acts, and Tenant
hereby releases Landlord from any claims of any nature whatsoever in connection
therewith. Any increase in this expense over the first applicable Lease Year
shall be capped at four (4%) percent over that charged for the prior year.
3. DELIVERY OF LEASED PREMISES.
3.1 CONSTRUCTION OF PREMISES BY LANDLORD.
3.1.1 Landlord has constructed the Leased Premises prior to the
execution of this Lease. Tenant certifies that it has inspected the Leased
Premises and accepts the Leased Premises existing "as is" condition.
3.2 TENANT'S WORK. Tenant agrees, at its own cost and expense, to
perform all work and comply with all conditions, more particularly described in
EXHIBIT "D" annexed hereto, which is necessary to make the Leased Premises
conform with Tenant's plans to be approved by Landlord. No later than thirty,
(30) days a after the execution of this Lease, Tenant shall furnish Landlord, in
advance of Tenant's commencement of work, for Landlord's written approval, plans
and specifications showing a layout, interior finish, and any work or equipment
to be done or installed by Tenant affecting any structural, mechanical or
electrical part of the Leased Premises or the building containing same. Landlord
agrees it will not unreasonably withhold such approval, it being the only
purpose of this requirement that Tenant's work shall not be detrimental to the
other tenants in the Project or to Landlord's building. To the extent not
inconsistent with this section, Section 6 of this Lease shall apply to this
Section 3.2. Tenant shall be responsible for all costs and expenses for
architectural fees, plans and Tenant improvements.
3.3 CHANGES AND ADDITIONS TO BUILDING. Landlord hereby reserves the
right at any time to perform maintenance operations and to make repairs,
alterations or additions, and to build additional stories on the building in
which the Leased Premises are contained and to build adjoining the same.
Landlord also reserves the right to construct other buildings or improvements,
including, but not limited to, structures for motor vehicle parking and the
enclosing and air conditioning of sidewalks in the Project from time to time and
to make alterations thereof or additions thereto. Any changes or additions to
the building shall not affect Tenant's business or use of the Leased Premises.
Tenant agrees to cooperate with Landlord permitting Landlord to accomplish any
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such maintenance, repairs, alterations, additions or construction. Partial
temporary obstruction of access to Tenant's premises caused by such construction
shall not be a default of Landlord. Any changes shall be at Landlords sole cost
and expense unless (a) Tenant agrees to the contrary or (b) the change is caused
by or results from the use of the Tenant.
4. CONDUCT OF BUSINESS BY TENANT.
4.1 TAKING POSSESSION OF PREMISES. Tenant shall occupy the Leased
Premises without delay upon the Commencement Date, and shall conduct his
business continuously in the Leased Premises.
4.2 OBJECTIONABLE USE OF PREMISES. Without limiting application of any
other provision in this Lease, the following actions and activities shall not be
allowed in on or upon the Leased Premises, the Common Areas or the Project
without the prior written consent of Landlord.
4.2.1 Employment of any mechanical apparatus causing noises or
vibration which may be transmitted beyond the Leased Premises.
4.2.2 objectionable odors emanating or dispelled from the leased
premises.
4.2.3 conducting any auction, fire, bankruptcy selling out or
similar sales of any kind on or about the Leased Premises; display merchandise
on the exterior of the Leased Premises either for sale or for promotion
purposes.
4.2.4 use or operate any machinery, which in Landlord's reasonable
opinion, may harm the building of which the Leased Premises is a part.
4.2.5 Store, keep or permit the storage of any merchandise
equipment, machinery or any other item on the walkways, loading docks, parking
areas, roof or grounds surrounding the Leased Premises or Common Areas not
specifically referenced herein.
4.2.6 Store or dump on or about the Demised Premises trash, rubbish,
pallets, chemicals, hazardous, toxic or other such substances or dispose or
attempt to dispose of such items in the sewers or stone drains of the Demised
Premises.
4.2.7 Wash and/or wax and/or repair vehicles. Store or keep any
boats, recreational vehicles, trailers or inoperable or unregistered vehicles
outside Demised Premises or in parking areas, leave vehicles in any parking
areas on the property for an extended period of time.
4.2.8 residing in the Leased Premises, the Common Area or the
Project.
4.2.9 abandon or dispose of personal property by leaving same in the
Leased Premises, Common Areas or Project.
4.2.10 Allowing animals or pets on the Leased Premises, Common Areas
or Project.
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4.3 REMEDIES IN CASE OF VIOLATION. In the event Tenant vio1ates any
provision of Section 4.2, Landlord shal1 provide Tenant written notice of the
violation. Tenant shall have three (3) days from date of delivery of notice to
cease and/or cure the objectionable use, providing, however, in the event Tenant
violates the terms of this Section more than twice during the Term, Landlord
shall not be required to provide written notice or a cure period to invoke the
remedies authorized herein.
4.4 In the event Tenant fails to cure and/or cease objectionable
activities Landlord may (1) declare the lease materially breached; (2) cure the
violation as the Landlord in its sole discretion deems appropriate with costs
and fees for doing so charged to the Tenant as Additional Rent; (3) take such
legal or equitable action as is appropriate, including but not limited to
seeking injunctive relief; (4) take such other action as is authorized by law.
These remedies shall be deemed cumulative. Nothing herein shall prohibit
Landlord from taking emergency action in the event any violation threatens the
life, health and/or safety of any person or threatens property on or of the
project.
5. SECURITY DEPOSIT.
5.1 AMOUNT OF DEPOSIT. Landlord and Tenant acknowledge transfer of a
prior security deposit in the sum of -0- to be security deposit for this Lease.
Said deposit shall be held by Landlord, without liabi1ity for interest, and may
be commingled with other funds of Landlord as security for the faithful
performance by Tenant of all the terms, covenants, and conditions of this Lease
by Tenant to be kept and performed during the term hereof.
5.2 USE AND RETURN OF DEPOSIT. If at any time during the term of this
Lease any of the rent herein reserved shall be overdue and unpaid, or any other
sum payable by Tenant to Landlord hereunder shall be overdue and unpaid or in
the event of the failure of Tenant to keep and perform any of the terms,
covenants and conditions of this Lease to be kept and performed by Tenant, then
Landlord may after five (5) days written notice to tenant of the reason and
Tenant failing to cure same, at its option (but Landlord shall not be required
to) appropriate and apply all or any portion of said deposit to the payment of
any such overdue rent or other sum or so much thereof as shall be necessary to
compensate the Landlord for all loss or damage sustained or suffered by Landlord
due to the breach of Tenant. Should the entire deposit, or any portion thereof,
be appropriated and applied by Landlord for the payment of overdue rent or other
sums due and payable by Tenant hereunder, then Tenant shall, upon the written
demand of Landlord forthwith remit to Landlord a sufficient amount in cash to
restore said security to the original sum deposited, and Tenant's failure to do
so within five (5) days after receipt of such demand shall constitute a breach
of this Lease. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant at the expiration of the term of this Lease. The
security deposit shall not be deemed last month's rent.
5.3 TRANSFER OF DEPOSIT. Landlord may deliver the funds deposited
hereunder by Tenant to the purchaser or transferee of Landlord's interest in the
Leased Premises, in the event that such interest be sold or transferred, and
thereupon Landlord shall be discharged from any further liability with respect
to such deposit, providing purchaser or transferee assumes the obligations
regarding Tenant's security deposit.
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6. FIXTURES AND ALTERATIONS.
6.1 INSTALLATION BY TENANT.
6.1.1 All improvements installed by Tenant shall be new or in good
working order. Tenant shall not make or cause to be made any alterations,
additions or improvements or install or cause to be installed any exterior
signs, exterior lighting, plumbing fixtures, fences, gates, shades or awnings or
make any changes to the common areas or the exterior of the building in which
the Leased Premises are located without first obtaining Landlord's written
approva1 and consent which approval or consent shall not be unreasonably
withheld. Tenant shall present to the Landlord plans and specifications for such
work at the time approval is sought, and simultaneously demonstrate to Landlord
that the proposed alterations comply with local zoning and building codes.
Tenant may perform minor alterations to the interior of the Leased Premises not
requiring a building permit without the consent of the Landlord. Upon Tenant's
breach of this provision, Landlord may take such action as is necessary to
remove the unauthorized installation with all cost and expense to be charged to
Tenant as additional rent. In addition, Landlord may take such legal action at
law or equity as a result of the breach, including but not limited to injunctive
relief.
6.1.2 All construction work done by Tenant within the Leased
Premises and otherwise shall be performed in a good and workmanlike manner, in
compliance with all governmental requirements, and in such manner as to cause a
minimum of interference with other construction in progress (if any) and with
the transaction of business in the Project. Without limitation on the generality
of the foregoing, Landlord shall have the right to require that such work be
performed outside of general business hours, and in accordance with other rules
and regulations which Landlord may, from time to time prescribe. Tenant agrees
to indemnify Landlord and hold it harmless against any loss, liability or
damage, resulting from such work excluding that caused by the gross negligence,
intentional acts or willful misconduct of the Landlord, its officers, directors,
agents or employees. Tenant shall be liable to Landlord for any damages
resulting from labor disputes, strikes or demonstrations resulting from Tenant's
construction or alteration work with the employment of non-union workers.
6.2 RESPONSIBILITY OF TENANT. All alterations, decorations, additions
and improvements made by the Tenant, or made by the Landlord on the Tenant's
behalf by agreement under this Lease, shall remain the property of the Tenant
for the term of this Lease, or any extension of renewal thereof. Such
alterations, decorations, additions and improvements shall not be removed from
the premises without prior consent in writing from the Landlord. Upon expiration
of this Lease, or any renewal term thereof, the Landlord shall have the option
of requiring the Tenant to remove all such alterations, decorations, additions
and improvements, and restore the Leased Premises as provided in Section 7.2
hereof. If the Tenant fails to remove such alterations, decorations, additions
and improvements and restore the Leased Premises, then such alterations,
decorations, additions and improvements shall become the property of the
Landlord and in such event, should Landlord so elect, Landlord may restore the
premises to its original condition for which cost, with allowance for ordinary
wear and tear, Tenant shall be responsible and shall pay promptly upon demand.
6.3 TENANT SHALL DISCHARGE ALL LIENS. Nothing contained in this Lease
shall be construed as a consent on the part of the Landlord to subject the
estate of the Landlord to liability under the Mechanic's Lien Law of the State
of Florida, it being expressly understood that Landlord's estate shall not be
subject to liens for improvements made by the Tenant. Tenant shall strictly
comply with the Mechanic's Lien Law of the State of Florida as set forth in
Florida Statutes Section 713. In
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the event that a mechanic's claim of lien is filed against the property in
connection with any work performed by or on behalf of the Tenant, the Tenant
shall satisfy such claim or shall transfer same to security, within twenty (20)
days from the date of filing. In the event that the Tenant fails to satisfy or
transfer such claim within said twenty (20) day period, the Landlord may do so
and thereafter charge the Tenant, as additional rent, all costs incurred by the
Landlord in connection with satisfaction or transfer of such claim, including
attorneys' fees. Further, the Tenant agrees to indemnify, defend and save the
Landlord harmless from and against any damage or loss incurred by the Landlord
as a result of such mechanics' claim of lien. If so requested by the Landlord,
the Tenant shall execute a short form or memorandum of this Lease, which may, in
the Landlord's discretion be recorded in the Public Records for the purpose of
protecting the Landlord's estate from mechanics' claims of lien, as provided in
Florida Statutes Section 713.10. In the event such short form or memorandum of
lease is executed, the Tenant shall simultaneously execute and deliver to the
Landlord an instrument terminating the Tenant's interest in the real property
upon which the Leased Premises are located, which instrument may be recorded by
the Landlord only at the expiration of the term of this Lease, or such earlier
termination hereof. Landlord only has the right to record the memorandum without
execution by Tenant in the event Tenant fails to execute the memorandum within
seven (7) days of request. The security deposit paid by the Tenant may be used
by the Landlord for the satisfaction or transfer of any mechanics' claim of
lien, as provided in this Section. This Section shall survive the termination of
the Lease.
6.4 SIGNS. Tenant shall not exhibit, inscribe, paint or affix any sign,
advertisement, notice or other lettering on any part of the outside of the
Demised Premises or of the building of which the Demised Premises are a part,
or inside the Demised Premises if visible from the outside, without the written
consent of Landlord. If consent is given, Tenant further agrees to maintain such
sign, lettering, etc. as may be approved in accordance with all city, county,
and state laws, ordinance or requirements and in good condition and repair at
all times.
7. REPAIRS AND MAINTENANCE OF LEASED PREMISES.
7.1 RESPONSIBILITY OF LANDLORD. Provided Tenant is not in default
according to the terms of this Lease and subject to interruption caused by
repairs, renewals, improvements, changes of service and alterations to the
Leased Premises, and further, subject to interruption caused by strikes,
lockouts, 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, Landlord will furnish the
following services to Tenant:
7.1.1 Landlord agrees to repair and maintain in good order and
condition the roof, roof drains, outside walls, foundations and structural
portions, both interior and exterior, of the Leased Premises. Landlord shall
initiate repairs of applicable problems within a reasonable period of time after
receipt of written notice of needed repairs or maintenance with completion as
soon as reasonably possible. Unless caused by the gross negligence, intentional
acts or willful misconduct of the Landlord, its officers, directors, agents or
employees, there is excepted from this provision, however:
7.1.1.1 repair or replacement of broken plate or window glass
(except in case of damage by fire or other casualty covered by Landlord's fire
and extended coverage policy);
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7.1.1.2 interior and exterior doors, door closure devices, window
and door frames, moldings, locks and hardware;
7.1.1.3 repair of damage caused directly or indirectly by the
negligence or intentional acts of Tenant, its employees, agents, contractors,
customers, invitees; and
7.1.1.4 interior repainting and redecoration.
7.1.2 Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain, or leaks from any part of the Leased Premises or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatever nature,
excluding that caused by the gross negligence, intentional acts or willful
misconduct of the Landlord, its officers, directors, agents or employees.
Landlord shall not be liable for any such damage caused by other tenants or
persons in the Leased Premises, occupants of adjacent property, of the Project,
or the public, or caused by operations in construction of any private, public or
quasi-public work. Landlord shall not be liable in damages or otherwise for any
latent defect in the Leased Premises or in the building of which they form a
part.
7.1.3 In no event, however, shall Landlord be liable for incidental
or consequential damages arising from (i) the failure to make said repairs, or
(ii) making repairs in a untimely manner, nor shall Landlord be liable for
incidental or consequential damages arising from defective workmanship or
materials in making any such repairs.
7.1.4 Except as hereinabove provided in Subparagraphs (a) and (b),
Landlord shall not be obligated or required to make any other repairs, and all
other portions of the Leased Premises shall be kept in good repair and condition
by Tenant.
7.2 RESPONSIBILITIES OF TENANT.
7.2.1 Tenant agrees to maintain the Leased Premises in good order
and condition.
7.2.2 Tenant will not install any equipment which exceeds the
capacity of the utility lines leading into the Leased Premises or the building
of which the Leased Premises constitute a portion.
7.2.3 Tenant covenants and agrees to keep and maintain in good
order, condition and repair (which repair shall mean replace if necessary) the
Leased Premises and every part thereof, except as hereinbefore provided,
including but without limitation to the exterior and interior portions of all
doors, equipment, security gates, windows, glass utility facilities, plumbing
and sewage facilities within the Leased Premises or under the floor slab
including free flow up to the main sewage line fixtures, heating equipment,
exterior utility facilities and exterior electrical equipment serving the Leased
Premises and interior walls, floors and ceilings, including compliance with all
applicable building codes including but not limited to those relative to fire
extinguishers, excluding that caused by the gross negligence, intentional acts
or willful misconduct of the Landlord, its officers, directors, agents or
employees. Tenant will use at Tenants cost a pest exterminating
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contractor at such intervals as may be necessary to keep the Leased Premises
free of rodents and vermin. If Tenant refuses or neglects to commence or
complete repairs promptly and adequately Landlord may, but shall not be required
to do so, make or complete said repairs and Tenant shall pay the cost thereof to
Landlord upon demand.
7.2.4 Tenant, its employees, or agents, shall not deface any walls,
ceilings, partitions, floors, wood, stone or ironwork without Landlord's written
consent.
7.2.5 Tenant shall comply with the requirements of all laws, orders,
ordinances and regulations of all governmental authorities and will not permit
any waste of property or same to be done and will take good care of the Lease
Premises.
7.2.6 If Tenant refuses or neglects to maintain the Leased Premises
properly as required and does not correct an identified problem(s) to the
reasonable satisfaction of Landlord as soon as reasonably possible after written
demand, Landlord may take such remedial action as Landlord may reasonably
determine, without liability to Tenant, for any loss or damage that may accrue
to Tenant's equipment, fixtures, or other property, or to Tenant's business by
reason thereof and upon completion thereof Tenant shall pay Landlord's cost for
the taking of such action, plus ten (10%) percent for overhead, upon
presentation of xxxx therefor, as additional rent. Said xxxx shall include
interest at ten (10%) percent of said cost from the date of completion by
Landlord. In the event the Landlord shall undertake any maintenance or repair in
the course of which it shall be determined that such maintenance or repair work
was made necessary by the negligence or willful act of Tenant or any of its
employees or agents or that the maintenance or repair is, under the terms of
this Lease, the responsibility of Tenant, Tenant shall pay Landlord's costs
therefore plus overhead and interest as above provided in this Section.
7.2.7 Unless requested in writing by the Landlord to the contrary,
at the expiration of the tenancy hereby created, Tenant shall surrender the
Leased Premises in the same condition as the Leased Premises were in upon the
Commencement Date or following completion of Tenant's Work, whichever is later,
reasonable wear and tear excepted, and damage by unavoidable casualty excepted,
and shall surrender all keys for the Leased Premises to Landlord. Tenant shall
remove all its trade fixtures, leased equipment and such part of the said
Tenant's Work and any subsequent alterations or improvements which Landlord
requests to be removed before surrender of the Leased Premises as aforesaid and
shall repair any damage to the Leased Premises caused thereby. Tenant's
obligation and liability under this covenant shall survive the expiration or
other termination of this Lease. In the event that Tenant shall vacate the
Leased Premises in unsatisfactory condition, in addition to the cost of repairs,
Tenant shall:
7.2.7.1 pay to Landlord a sum equal to 110% of the Base Rent and
Additiona1 Rent for the time period required to effect such repairs;
7.2.7.2 pay all damages that Landlord may suffer on account of
Tenant's vacating the Leased Premises in unsatisfactory condition; and
7.2.7.3 indemnify and save Landlord harmless from and against any
and all claims made by succeeding tenant of the Leased Premises against Landlord
on account of delay of Landlord in delivering possession of the Leased Premises
to said succeeding tenant to the extent that such delay is occasioned by
Tenant's vacating the Leased Premises in unsatisfactory condition.
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7.2.8 Tenant shall at its own expense perform all janitorial and
cleaning services within the Leased Premises in order to keep same in a neat,
clean and orderly condition.
7.2.9 Tenant shall give Landlord prompt written notice (and
telephonic notice in the case of an emergency) of any fire or damage occurring
on or to the Leased Premises, any defects in the Leased Premises, and any
defects in any fixtures or equipment for which Landlord is responsible under the
Lease.
8. UTILITIES. Tenant shall be solely responsible for and shall promptly pay
all charges for gas, electricity, telephone or any other separately metered
utility used or consumed in the Leased Premises. Landlord shall not be liable
for an interruption or failure in the supply of any such utilities to the Leased
Premises unless caused by the gross negligence or intentional act of the
Landlord.
9. INSURANCE AND INDEMNITY.
9.1 Tenant shall carry and maintain, at its sole cost and expense, the
following types of insurance, in the amounts specified and in the form
hereinafter provided for:
9.1.1 Public liability and property damage. Tenant shall, during the
Term, maintain insurance against public liability, including that from personal
injury or property damage in or about the Premises resulting from the
occupation, use, or operation of the Premises, insuring both Landlord,
Landlord's managing agent and Tenant and naming the Landlord and Landlord's
managing agent as an additional insured therein, in amounts of not less than One
Million Dollars ($1,000,000.00) against liability for bodily injury including
death and personal injury for any one (1) occurrence and not less than One
Million Dollars ($1,000,000.00) for property damage; or combined single limit
insurance in the amount of not less than One Million Dollars ($1,000,000.00).
9.1.2 Plate glass insurance providing full coverage for replacement
of damaged or destroyed glass in or upon the Premises;
9.1.3 Xxxxxxx'x compensation insurance for the benefit of all
employees entering upon the Premises as a result of or in connection with their
employment by Tenant;
9.1.4 All other insurance required of Tenant, as an employer,
pursuant to any law, rule, or ordinance of any governmental authority having
jurisdiction;
9.1.5 Fire, casualty, and extended coverage insurance on Lessee's
fixtures, improvements and finishings, which policies of insurance shall be in
amounts, in such forms and issued by such companies are as approved by Landlord
and shall name Landlord and Tenant as their interests may appear; and
9.1.6 Such other forms of insurance which are not available as of
the date hereof, but which may become available in the future and are typically
required by landlords of properties similar in character to the Center, if in
the Landlord's sole discretion, the same is
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necessary to adequately insure the Premises and underlying property and such
other forms of insurance which may become necessary as the result of any changes
in applicable laws.
9.2 The original of each policy of insurance, certified duplicates
thereof, and certificates of insurance issued by the insurance or insuring
organization shall be delivered to Landlord on or before the Commencement Date
and proof of renewal shall be provided to Landlord not less than thirty (30)
calendar days prior to the expiration of any policy. In addition to and together
with Tenant's pro rata share of operating costs, Tenant shall pay to Landlord
within ten (10) calendar days of its receipt of Landlord's written request, the
entire amount of any extraordinary or additional premium for insurance upon or
for the Premises and/or Center occasioned by or resulting from Tenant's use of
the Premises.
9.3 The aforementioned insurance shall be in companies authorized to
engage in the business of insurance in the State of Florida with a minimum
rating of "A" by A.M. BEST, and shall be in form, substance, and amount (where
not stated above) satisfactory to Landlord. The insurance shall not be subject
to cancellation except after at least thirty (30) calendar days prior written
notice to Landlord. If any of the aforementioned insurance shall not be procured
or maintained by Tenant, Landlord may, at its option, procure such insurance or
any portion thereof, and Tenant shall pay to Landlord any sums expended by
Landlord therefore upon demand; or, Landlord may, at its option terminate this
Lease.
9.4 Increase in Fire Insurance Premium. Tenant agrees that it will not
keep, use, sell or offer for sale in or upon the Leased Premises any article
which may be prohibited by the standard form of fire and extended risk insurance
policy. Tenant agrees to pay any increase in premiums for fire and extended
coverage insurance that may be charged during the term of this Lease on the
amount of such insurance which may be carried by Landlord on said premises or
the building of which they are a part, resulting from the type of merchandise
used or sold by Tenant in the Leased Premises, whether or not Landlord has
consented to the same.
9.5 INDEMNIFICATION OF LANDLORD. Tenant shall indemnify Landlord and
save it harmless from and against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury and/or
damage to property (a) arising from or out of any occurrence in, upon or at the
Leased Premises (b) arising from or out of the occupancy or use by Tenant or
concessionaires of the Leased Premises, whether occurring in or about the Leased
Premises, excluding that caused by the gross negligence, intentional acts or
willful misconduct of the Landlord, its officers, directors, agents or
employees. In the event Landlord shall be made a party to any litigation
commenced by or against Tenant, then the Tenant shall protect and hold the
Landlord harmless and shall pay all reasonable costs, expenses and reasonable
attorney's fees incurred or paid by the Landlord in connection with such
litigation.
9.6 WAIVER OF SUBROGATION. Tenant waives (unless said waiver should
invalidate any such insurance) its right to recover damages against Landlord for
any reason whatsoever to the extent Tenant recovers indemnity from its insurance
carrier. Any insurance policy procured by Tenant which does not name Landlord
as a named insured shall, if obtainable, contain an express waiver of any right
of subrogation by the insurance company against the Landlord. All public
liability and property damage policies shall contain an endorsement that
Landlord, although named as an insured, shall nevertheless be entitled to
recover damages caused by the negligence of Tenant.
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10. ATTORNMENT AND SUBORDINATION.
10.1 ATTORNMENT. In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under any
mortgage made by the Landlord covering the Leased Premises or in the event a
deed is given in lieu of foreclosure of any such mortgage, if requested to do
so, Tenant shall attorn to the purchaser or grantee in lieu of foreclosure upon
any such foreclosure or sale and recognize such purchaser or grantee in lieu of
foreclosure as the Landlord under this Lease
10.2 SUBORDINATION. Tenant agrees that this Lease and the interest of
Tenant therein shall be, and the same hereby is made subject and subordinate at
al1 times to all covenants, restrictions, easements and other encumbrances now
or hereafter affecting the fee title of the Project and to all ground and
underlying leases and to any mortgage of any amounts and all advances made and
to be made thereon, which may now or hereafter be placed against or affect any
or all of the land and/or any or all of the buildings and improvements,
including the Leased Premises, now or at any time hereafter constituting a part
of the Project, and/or any ground or underlying leases covering the same, and to
al1 renewals, modifications, consolidations, participations, replacements and
extensions thereof. The term "Mortgages" as used herein shall be deemed to
include trust indentures and deeds of trust. The aforesaid provisions shall be
self-operative and no further instrument of subordination shall be necessary
unless required by any such ground or underlying lessors or mortgages. Should
the Landlord, any ground or underlying lessors or mortgagees desire confirmation
of such subordination, Tenant, within ten (l0) days following written request
therefor, shall execute and deliver, without charge, any and all documents (in
form acceptable to Landlord and such ground or underlying lessors or mortgagees)
subordinating the Lease and the Tenant's rights hereunder. However, should any
such ground or underlying lessors or any mortgagees request that Lease be made
superior, rather than subordinate, to any such ground or underlying lease
and/or mortgage, then Tenant, within ten (10) days following Landlord's written
request therefor, agrees to execute and deliver, without charge, any and all
documents (in form acceptable to Landlord and such ground or underlying lessors
or mortgagees) effectuating such priority.
11 ASSIGNMENT AND SUBLETTING.
11.1 Consent Required.
11.1.1 Tenant may not assign or in any manner transfer, or grant or
suffer any encumbrance of Tenant's interest in this Lease in whole or in part,
nor sublet all or any portion of the Leased Premises, or grant a license,
concession or other right of occupancy of any portion of the Leased Premises,
without the prior written consent of Landlord in each instance. Tenant may
assign the Lease to an affiliate providing it can be demonstrated to the
reasonable satisfaction of the Landlord that the affiliate has financial
strength equal to or greater than that of the Tenant. The consent by Landlord to
any assignment or subletting shall not constitute a waive of the necessity for
such consent to any subsequent assignment or subletting. Consent shall not be
unreasonably withheld. If this Lease be assigned, or if the Leased Premises or
any part thereof be underlet or occupied by any party other than Tenant,
Landlord may collect rent from the assignee, subtenant or occupant, and apply
the net amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, subtenant or occupant as Tenant, or a release
of Tenant from the further performance by Tenant of the covenants on the part of
Tenant herein contained. This prohibition against assignment or subletting
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shall be construed to include prohibition against any assignment or subleasing
by operation of law, legal process, receivership, bankruptcy or otherwise,
whether voluntary or involuntary. Notwithstanding any assignment or sublease,
Tenant shall remain fully liable on this Lease and shall not be released from
performing any of the terms, covenants and conditions of this Lease.
An attempt by Tenant to sublease the Leased Premises, in whole or in part, a
renta1 rate greater than that charged under this Lease shall be deemed a valid
reason for withholding consent for the sublease.
11.1.2 The Tenant shall pay an administrative fee of $350 in
connection with any assignment or sublease.
11.2 SIGNIFICANT CHANGE OF OWNERSHIP. If the Tenant is a corporation
(other than one whose shares are regularly and publicly traded either on a
recognized stock exchange or the over-the-counter market), Tenant represents
that the Ownership and power to vote its entire outstanding capital stock
belongs to and is vested in the officer or officers executing this Lease or
members of his or their immediate family. If there shall occur any change in the
ownership of and/or power to vote the majority of the outstanding capital stock
of Tenant, whether such change of ownership is by sale, assignment, request,
inheritance, operation, of law or otherwise, without the prior written consent
of Landlord, then Landlord shall have the option to terminate this Lease upon
thirty (30) days notice to Tenant. If Tenant is a partnership, Tenant
represents that the general partner executing this Lease is duly authorized to
execute the same on behalf of said partnership. If there shall occur any change
in the ownership of the Interest of the general partners of the partnership,
whether such change results from a sale, assignment, request, inheritance,
operation of law or otherwise, or if the partnership is dissolved, without the
prior written consent of Landlord, then Landlord shall have the option to
terminate this Lease upon thirty (30) days notice to Tenant.
11.3 ASSIGNMENT BY LANDLORD. In the event of the transfer and
assignment by Landlord of its interest in this Lease and/or in the building
containing the Leased Premises to a person expressly assuming Landlord's
obligations under this Lease, Landlord shall thereby be released from any
further obligations thereunder, and Tenant agrees to look solely to such
successor in interest of the Landlord for performance of such obligations. Any
security given by Tenant to secure performance of Tenant's obligations hereunder
may be assigned and transferred by Landlord to such successor in interest, and
Landlord shall thereby be discharged of any further obligation relating thereto.
12. WASTE, GOVERNMENTAL REGULATIONS.
12.1 WASTE OR NUISANCE. Tenant shall not commit or suffer to be
committed any waste upon the Leased Premises or any nuisance or other act or
thing which may disturb the quiet enjoyment of any other tenant in the Project,
or which may adversely affect Landlord's interest in the Leased Premises or the
Project.
12.2 GOVERNMENT REGULATIONS. Tenant shall, at Tenant's sole cost and
expense, comply with all county, municipal, state, federal laws, orders,
ordinances and other applicable requirements of all governmental authorities,
now in force, or which may hereafter be in force, pertaining, or affecting the
condition, use or occupancy of the Leased Premises, and shall faithfully observe
in the use and occupancy of the Leased Premises all municipal and county
ordinances and state and federal statutes now in force or which may hereafter be
in force. Tenant shall indemnify,
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defend and save Landlord harmless from all costs, losses, expenses or damages
resulting from Tenant's failure to perform its obligations under this Section.
13. RULES AND REGULATIONS. Tenant agrees to comply with all reasonable
rules and regulations Landlord may adopt from time to time for operation of the
Project, and protection and welfare of Project, its tenants, visitors, and
occupants. The present rules and regulations, which Tenant hereby agrees to
comply with, entitled "Rules and Regulations" are attached hereto as EXHIBIT
"B". Landlord may amend the rules from time to time and any future rules and
regulations shall become a part of this Lease, and Tenant hereby agrees to
comply with the same upon delivery of a copy thereof to Tenant, providing the
same do not materially deprive Tenant of its rights established under this
Lease.
14. ADVERTISING, ETC.
14.1 SOLICITATION OF BUSINESS. Tenant and Tenant's employees and agents
shall not solicit business in the parking or other common areas, nor shall
Tenant distribute any handbills or other advertising matter on automobiles
parked in the parking area or in other common areas.
14.2 ADVERTISED NAME AND ADDRESS. Tenant may use as its advertised
business address the name of the Project. Tenant shall not use the name of the
Project for any purpose other than as the address of the business to be
conducted by Tenant in the Leased Premises, and Tenant shall not acquire any
property right in or to any name which contains the name of the Project as a
part thereof. Any permitted use by Tenant of the name of the Project during the
term of the Lease shall not permit Tenant to use, and Tenant shall not use, such
name of the Project either after the termination of this Lease or at any other
location. Tenant shall not use the name of the Landlord in any advertisement, or
otherwise.
15. DESTRUCTION OF LEASED PREMISES.
15.1 TOTAL OR PARTIAL DESTRUCTION. If the Leased Premises shall be
damaged by fire, the elements, unavoidable accident or other casualty, without
the fault of Tenant, but are not thereby rendered untenantable in whole or in
part, Landlord shall at its own expense cause such damage, except to Tenant's
equipment and trade fixtures, to be repaired, and the rent and other charges
shall not be abated. Repairs shall commence within a reasonable period of time.
If by reason of such occurrence, the Leased Premises shall be rendered
untenantable only in part, Landlord shall at its own expense cause the damage,
except to Tenant's equipment and trade fixtures, to be repaired within a
reasonable period of time, but only to the condition in which the Leased
Premises were originally delivered to Tenant, and the Base Rent meanwhile shall
be abated proportionately as to the portion of the Leased Premises rendered
untenantable. If such damage shall occur during the last two (2) years of the
term of this Lease (or of any renewal term), Landlord shall have the right, to
be exercised by notice to Tenant within sixty (60) days after said occurrence,
to elect not to repair such damage and to cancel and terminate this Lease
effective as of a date stipulated in Landlord's notice, which shall not be
earlier than thirty (30) days nor later than sixty (60) days after the giving of
such notice. If the Leased Premises shall be rendered wholly untenantable by
reason of such occurrence, the Landlord shall at its own expense cause such
damage, except to Tenant's equipment and trade fixtures, to be repaired, but
only to the condition in which the Leased Premises were originally delivered to
Tenant, and the Base Rent meanwhile shall be abated in whole except that
Landlord shall have the right, to be exercised by notice to Tenant within sixty
(60) days after said occurrence, to
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elect not to reconstruct the destroyed Leased Premises, and in such event this
Lease and the tenancy hereby created shall cease as of the date of the said
occurrence. There shall be no abatement of the Base Rent if such damage is
caused by the fault of Tenant. Whenever the Base Rent shall be abated pursuant
to this Section l5.1, such abatement shall continue until the date which shall
be the sooner to occur of; (i) fifteen (15) days after notice by Landlord to
Tenant that the Leased Premises have been substantially repaired and restored;
or (ii) the date Tenant's business operations are restored in the entire Leased
Premises.
15.2 PARTIAL DESTRUCTION OF BUILDING. In the event that fifty (50%)
percent or more of the rentable area of the building in which the Leased
Premises are located shall be damaged or destroyed by fire or other cause,
notwithstanding any other provisions contained herein and that the Leased
Premises may be unaffected by such fire or other cause, Landlord shall have the
right, to be exercised by notice in writing delivered to Tenant within sixty
(60) days after said occurrence, to elect to cancel and terminate this Lease.
Upon the giving of such notice to Tenant, the term of this Lease shall expire by
lapse of time upon the thirtieth day after such notice is given, and Tenant
shall vacate the Leased Premises and surrender the same to Landlord; provided,
however, in the event the building is deemed to be a hazard or danger by any
governmental agency, the Lease shall expire upon the third day after notice is
given.
15.3 RECONSTRUCTION OF IMPROVEMENT. In the event of any reconstruction
of the Leased Premises under this Section, said reconstruction shall be in
substantial conformity of the Leased Premises on the Commencement Date. Tenant,
at its sole cost and expense, shall be responsible for the repair and
restoration of all items that was Tenant's Work, and the replacement of its
stock in trade fixtures, furniture, finishings and equipment. Tenant shall
commence the installation of fixtures, equipment, and merchandise hereof
promptly upon delivery to it of possession of the Leased Premises and shall
diligently prosecute such installation to completion.
15.4 Under no circumstances shall Landlord be responsible or liable to
Tenant for lost income, revenue or profits.
16. EMINENT DOMAIN.
16.1 TOTAL CONDEMNATION. If the whole of the Leased Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, then the term of this Lease shall cease and terminate as of the date of
title vesting in such proceeding and all rentals and other charges shall be paid
up to that date and Tenant shall have no claim against Landlord for the value of
any unexpired term of this Lease.
16.2 PARTIAL CONDEMNATION.
16.2.1 If any part of the Leased Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, and
in the event that such partial taking or condemnation shall, in the opinion of
Landlord and Tenant, render the Leased Premises unsuitable for the business of
the Tenant, then Landlord and Tenant shall each have the right to terminate this
Lease by notice given to the other within sixty (60) days after the date of
title vesting in such proceeding and Tenant shall have no claim against Landlord
for the value of any unexpired term of this Lease. A taking or condemnation in
excess of 50% of the square footage of the Leased Premises shall be presumed to
render the Leased Premises unsuitable for the business of the tenant.
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16.2.2 If more than fifty (50%) percent of the floor area of the
buildings in the Project shall be taken as aforesaid (whether or not the Leased
Premises shall be affected by the taking), Landlord shall have the right to
terminate this Lease by notice to Tenant given within sixty (60) days after the
date of title vesting in such proceeding and Tenant shall have no claim against
Landlord for the value of the unexpired term of this Lease.
16.3 LANDLORD'S DAMAGES. In the event of any condemnation or taking as
hereinabove provided, whether whole or partial, the Tenant shall not be entitled
to any part of the award, as damages or otherwise, for such condemnation and
Landlord is to receive the full amount of such award, the Tenant hereby
expressly waiving any right or claim to any part thereof.
16.4 TENANT'S DAMAGES. Although all damages in the event of any
condemnation are to belong to the Landlord, whether such damages are awarded as
compensation for diminution in value of the Leasehold or the fee of the Leased
Premises, Tenant shall have the right to claim and recover from the condemning
authority, but not from Landlord, such compensation as may be separately awarded
or recoverable by Tenant in Tenant's own right on account of any damage to
Tenant's business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures, leasehold improvements and equipment, provided no such
claim shall diminish or otherwise adversely affect Landlord's award. Each party
agrees to execute and deliver to the other all instruments that may be required
to effectuate the provisions of Section 16.3 and this Section 16.4.
16.5 SALE UNDER THREAT OF CONDEMNATION. A sale by Landlord to any
authority having the power of eminent domain, either under threat of
condemnation or while condemnation proceedings are pending, shall be deemed a
taking under the power of eminent domain for all purposes under this Section.
17. DEFAULT OF TENANT.
17.1 EVENTS OF DEFAULT. Upon the happening of one or more of the events
as expressed below, inclusive (individually and collectively, "Events of
Default"), the Landlord shall have any and all rights and remedies hereinafter
set forth:
17.1.1 In the event Tenant should fail to pay any monthly
installment of rent or any other sums required to be paid hereunder, within ten
(10) days from when same become due.
17.1.2 To the extent not contrary to Bankruptcy Law, in the event a
petition in bankruptcy (including Chapter 11 bankruptcy proceeding or any other
reorganization proceedings under Bankruptcy Law) is filed by the Tenant, or is
filed against Tenant, and such petition is not dismissed within ninety (90) days
from the filing thereof, or in the event Tenant is adjudicated a bankrupt.
17.1.3 In the event an assignment for the benefit of creditors is
made by Tenant.
17.1.4 In the event of an appointment by any court of a receiver or
other court officer of Tenant's property and such receivership is not dismissed
within sixty (60) days from such appointment.
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17.1.5 In the event Tenant removes, attempts to remove, or permits
to be removed from the Leased Premises, except in the usual course of trade, the
equipment, furniture, effects or other property of the Tenant brought thereon.
17.1.6 In the event Tenant, before the expiration of the term hereof
and without the written consent of the Landlord, vacates the Leased Premises or
abandons the possession thereof, or uses the Leased Premises or property of the
Project for a purpose other than identified in the Lease.
17 1.7 In the event an execution or other legal process is levied
upon the equipment, furniture, effects or other property of Tenant brought on
the Leased Premises, or upon the interest of Tenant in this Lease, and the same
is not satisfied or dismissed within thirty (30) days from the levy, providing
that during the thirty day period, rent is paid when due, excluding any grace
period otherwise granted in other provisions of this Lease.
17.1.8 In the event Tenant fails to keep, observe or perform any of
the other terms, conditions or covenants on the part of Tenant herein to be
kept, observed and performed for more than ten (10) days after written notice
thereof is given by Landlord to Tenant specifying the nature of such default, or
if the default so specified shall be of such a nature that the same cannot
reasonably be cured or remedied within said ten (10) day period, if Tenant shall
not in good faith have commenced the curing or remedying of such default within
such ten (10) day period and shall not thereafter continuously and diligently
proceed therewith to completion; provided, however, nothing herein shall
prohibit Landlord from taking immediate legal action, with or without notice, to
protect the health, safety or welfare of the Landlord, the Project, tenants of
the Project, other persons or entities in or about the Project or the general
public.
17.1.9 Notwithstanding anything contained herein to the contrary, in
the event of a monetary default on the part of Tenant, Landlord shall give and
shall only be required to give Tenant five (5) days written notice within which
Tenant must cure the monetary default.
17.2 REMEDIES OF LANDLORD.
17.2.1 In the event of any such default or breach, Landlord shall
have the immediate right to re-enter the Leased Premises, either by summary
proceedings, by force or otherwise, and to dispossess Tenant and all other
occupants therefrom and remove and dispose of all property therein in the manner
provided in subdivision (c) of this Section, all without service of any notice
of intention to re-enter and with or without resort to legal process and
without Landlord being deemed guilty of trespass or becoming liable for any
loss or damage which may be occasioned thereby. In the event of any such default
or breach, Landlord shall have the right, at its option, from time to time,
without terminating this Lease, to re-enter and re-let the premises, or any part
thereof, as the agent and for the account of Tenant upon such terms and
conditions as Landlord may deem advisable or satisfactory, in which event the
rents received on such re-letting shall be applied first to the expenses of such
re-letting and collection including but not limited to, necessary renovation and
alterations of the Leased Premises, reasonable attorney's fees, any real estate
commissions paid, and thereafter toward payment of all sums due or which become
due Landlord hereunder, and if a sufficient sum shall not be thus realized or
secured to pay such sums and other charges, (i) at Landlord's option, Tenant
shall pay Landlord any deficiency monthly, notwithstanding Landlord may
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have received rental in excess of the rental stipulated in this Lease in
previous or subsequent months, and Landlord may bring an action therefor as such
monthly deficiency shall arise or (ii) at Landlord's option, the entire
deficiency, which is subject to ascertainment for the remaining term of this
Lease, shall be immediately due and payable by Tenant. Nothing herein, however,
shall be construed to require Landlord to re-enter in any event. The Landlord
shall not, in any event, be required to pay Tenant any surplus of any sums
received by Landlord on a re-letting of said premises in excess of the rent
provided in this Lease.
17.2 2 In the event of any such default or breach, the Landlord
shall have the right, at its option, to declare the rents for the entire
remaining term and other indebtedness, if any, immediately due and payable
without regard to whether or not possession shall have been surrendered to or
taken by Landlord, and may commence action immediately thereupon and recover
judgment therefor.
17.2.3 The Landlord in addition to other rights and remedies it may
have, shall have the right to remove all or any part of the Tenant's property
from said premises and any property removed may be stored in any public
warehouse or elsewhere at the cost of, and for the account of Tenant and the
Landlord shall not be responsible for the care or safekeeping thereof, and the
Tenant hereby waives any and all loss, destruction and/or damage or injury which
may be occasioned by any of the aforesaid acts unless removal was done
illegally.
17.2.4 No such re-entry or taking possession of said Leased Premises
by Landlord shall be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such intention is given to Tenant.
Notwithstanding any such re-letting without termination, Landlord may at all
times hereafter, elect to terminate this Lease for such previous default or
breach. Any such re-entry shall be allowed by Tenant without hindrance, and
Landlord shall not be liable in damages for any such re-entry, or guilty of
trespass or forcible entry.
17.2.5 Any and all rights, remedies and options given in this Lease
to Landlord shall be cumulative and in addition to and without waiver of or in
derogation of any right or remedy given to it under any law now or hereafter in
effect.
17.3 WAIVER. The waiver by Landlord of any breach of any term,
condition or covenant herein contained shall not be waiver of such term,
condition or covenant, or any subsequent breach of the same or any other term,
condition or covenant herein contained. The consent or approval by Landlord to
or of any act by Tenant requiring Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent to or approval of any
subsequent similar act by Tenant. No re-entry hereunder shall bar the recovery
of rents or damages for the breach of any of the terms, conditions or covenants
on the part of Tenant herein continued. The receipt of rent after breach or
condition broken, or delay, on the part of Landlord to enforce any right
hereunder, shall not be deemed a waiver or forfeiture, or a waiver of the right
of Landlord to terminate this Lease or to re-enter said Leased Premises or to
re-let same.
17.4 EXPENSES OF ENFORCEMENT. In the event any payment due Landlord
under this Lease shall not be paid on the due date, Tenant agrees to pay
interest on the amount which is delinquent at the highest rate permitted under
the laws of the state in which the Project is located, for such delinquent
payment until made. In the event any check, bank draft, order for payment or
negotiable instrument given to Landlord for any payment under this Lease shall
be dishonored for any reason whatsoever not attributable to Landlord, Landlord
shall be entitled to make an administrative
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charge to Tenant of One Hundred ($100.00) Dollars. Tenant recognizes and agrees
that the charges which Landlord is entitled to make upon the conditions stated
in this Section 17.4 represents, at the time this Lease is made, a fair and
reasonable estimate and liquidation of the costs of Landlord in the
administration of the Project resulting to landlord from the events described
which costs are not contemplated or included in any other rental or charges
provided to be paid by Tenant to Landlord in this Lease. Any charges becoming
due under this Section of this Lease shall be added and become due with the next
ensuing monthly payment of Base Rent and shall be collectible as a part thereof.
17.5 LEGAL EXPENSES. In the event that it shall become necessary for
Landlord to employ the services of an attorney to enforce any of its rights or
to protect its interest under this Lease or to collect any sums due to it under
this Lease or to remedy the breach of any covenant of this Lease on the part of
this Tenant to be kept or performed, regardless of whether suit be brought,
Tenant shall pay to Landlord such fee as shall be charged by Landlord's attorney
for such services. Should suit be brought for the recovery of possession of the
Leased Premises, or for rent or any other sum due Landlord under this Lease, or
because of the breach of any of Tenant's covenants under this Lease, or to
protect any interest or right under the lease, the prevailing party shall be
entitled to received from the non-prevailing party all expenses of such suit and
any appeal thereof, including reasonable attorney's fee.
18. ACCESS BY LANDLORD.
18.1 RIGHT OF ENTRY. Landlord and Landlord's agents shall have the
right to enter the Leased Premises at all reasonable times upon twenty-four (24)
hours notice, to examine the same, and to show them to prospective purchasers or
lessees of the building, and to make such repairs, or alterations, improvements
or additions as Landlord may deem necessary or desirable, and Landlord shall be
allowed to take all materials into and upon said premises that may be required
therefor without the same constituting an eviction of Tenant in whole or in part
and the rent reserved shall in no way xxxxx while said repairs, alterations,
improvements or additions are being made unless Tenant is prevented from
operating in the Leased Premises in whole or in part, in which event rent shall
be proportionately abated during said period. During the six (6) months prior to
the expiration of the term of this Lease or any renewal term, Landlord may
exhibit the premises to prospective tenants or purchasers. If tenant shall not
be personally present to open and permit an entry into said premises, at any
time, when for any reason an entry therein shall be necessary or permissible,
Landlord or Landlord's agents may enter the same without in any manner affecting
the obligations and covenants of this Lease. Nothing herein contained, however,
shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, maintenance or repair of
the building or any part thereof, except as otherwise herein specifically
provided.
18.2 ROOF. Use of the roof and air space above the Leased Premises is
reserved exclusively to the Landlord.
l9. TENANT'S PROPERTY.
19.1 TAXES ON LEASEHOLD OR PERSONALTY. Tenant shall be responsible for
and shall pay before delinquent all municipal, county or state taxes assessed
during the term of this Lease against any leasehold interest or personal
property or any kind, owned by or placed in, upon or about the Leased Premises
by the Tenant.
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19.2 LOSS AND DAMAGE. Landlord shall not be responsible for any damage
to property of Tenant or of others located on the Leased Premises nor for the
loss of or damage to any property of Tenant or of others by theft or otherwise.
All property of Tenant kept or stored on the Leased Premises shall be so kept or
stored at the risk of Tenant only and Tenant shall hold Landlord harmless from
any and all claims arising out of damage to same, including subrogation claims
by Tenant's insurance carriers.
20. HOLDING 0VER, SUCCESSORS.
20.1 HOLDING OVER. On the last day of the term of this Lease, or upon
any earlier termination of this Lease, or upon re-entry by Landlord upon the
Leased Premises, Tenant shall peaceably and without notice of any sort, quit
and surrender the Leased Premises to Landlord in accordance with the
requirements of this Lease. Tenant specifically agrees that in the event Tenant
retains possession and does not so quit and surrender the Leased Premises to
Landlord, then Tenant shall pay to Landlord:
20.1.1 all damages that Landlord may suffer on account of Tenant's
failure to so surrender and quit the Leased Premises, and Tenant will indemnify
and save Landlord harmless from and against any and all claims made by
succeeding tenant of the Leased Premises against Landlord on account of delay of
Landlord in delivering possession of the Leased Premises to said succeeding
tenant to the extent that such delay is occasioned by the failure of tenant to
so quit and surrender said Leased Premises.
20.1.2 rent for each month or any applicable portion of a month of
such holding over at one and one-half the amount payable for the month
immediately preceding the termination of this Lease, during the time Tenant
thus remains in possession. The additional one-half of rent may be applied as a
setoff against any damages incurred under paragraph 20.1.1.
The provisions of this paragraph do not waive any of Landlord's rights of
re-entry or any other right under the terms of this Lease, If Tenant shall fail
to surrender the Leased Premises as herein provided, no new tenancy shall be
created and Tenant shall be guilty of unlawful detainer.
20.2 SUCCESSORS. All rights and liabilities herein given to, or imposed
upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and permitted assigns
of the said parties; and if there shall be more than one Tenant, they shall be
bound jointly and severally by the terms, covenants and agreements herein. No
rights, however, shall inure to the benefits of any assignee of Tenant unless
the assignment to such assignee has been approved by Landlord in writing.
Nothing contained in this Lease shall in any manner restrict Landlord's right to
assign or encumber this Lease and, in the event Landlord sells or transfers its
Interest in the Project and the purchaser or transferee assumes Landlord's
obligation and covenants, Landlord shall thereupon be relieved of all further
obligations hereunder.
21. ENVIRONMENTAL ACTIONS AND INDEMNIFICATION.
21.1 Tenant agrees not to store in, on or outside of the Leased
Premises any hazardous materials of any type, as defined by any local, state or
federal agency or any other toxic,
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corrosive, reactive or ignitable material without first obtaining in each case
all governmental approvals and permits required for such storage.
21.2 Tenant shall indemnify and hold Landlord harmless for any and all
damages, potential damages, losses, liabilities, costs and expenses of
corrective work, obligations, penalties, fines, impositions, fees, levies, lien
removal or bonding costs, claims litigator, demands, defenses, judgments,
disbursements, or expenses (including without limitation attorneys fees and
expert's fees) related to, concerning or arising out of Tenant causing or
permitting, knowingly or unknowingly, directly or indirectly, hazardous material
to pollute or contaminate the Leased Premises, the Project or any part thereof,
or any person or property in, on, under, above or outside of the Project,
excluding that caused by the gross negligence, intentional acts or willful
misconduct of the Landlord, its officers, directors, agents or employees. The
terms of this paragraph shall survive the expiration or earlier termination of
the term of this Lease.
22. QUIET ENJOYMENT. Upon payment by the Tenant of the rents herein
provided, and upon the observance and performance of all the covenants, terms
and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under the Landlord,
subject, nevertheless, to the terms and conditions of this Lease.
23. MISCELLANEOUS.
23.1 ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying the check
or payment as rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other remedy provided in the Lease or by
law.
23.2 NO PARTNERSHIP. Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of its business, or otherwise, or
Joint venturer or a member of a joint enterprise with Tenant.
23.3 FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of the
delay and the period for the performance of any such act shall be extended for
a period of such delay. The provisions of this Section 23.3 shall not operate to
excuse Tenant from the prompt payment of rent, additional rent or any other
payments required by the terms of this Lease.
23.4 NOTICES. Except as otherwise required by statute, any notice,
demand, request or other communication required or permitted be given under this
Lease shall be in writing, signed by the party giving it and conclusively deemed
to have been properly given to and received and to be effective (a) if sent by
tested telex or cable, or hand-delivered against receipt therefor, or by
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telecopy or other facsimile transmission, or by express mail service, on the
day on which delivered, as the case may be, at the respective addresses
hereafter set forth, or if such day of delivery is not a business day, on the
first business day thereafter, or (b) if sent by registered or certified mail,
return receipt requested, postage prepaid, on the third business day after the
day on which deposited in any post office station or letter box, addressed at
the respective addresses hereafter set forth:
If to Landlord: New Town Commerce Center, Ltd.
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Attorney, New Town Commerce Center, Ltd.
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to Tenant: Xxxxxxx Xxxxxxx, President
Galacticomm, Inc.
0000 X.X. 00 Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx Xxxxxxxxx, Esq.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Any party hereto may, by giving five (5) days written notice to the other party
hereto, designate any other address in substitution of the foregoing address to
which notice shall be given.
23.5 CAPTIONS AND SECTION NUMBERS. The captions, section numbers,
article numbers and index appearing in this Lease are inserted only as a matter
of convenience and in no way define, limit, construe, or described the scope or
intent of such sections or articles of this Lease nor in any way affect this
Lease.
23.6 TENANT DEFINED, USE OF PRONOUN. The word "Tenant" shall be deemed
and taken to mean each and every person mentioned as a Tenant herein be the
same, one or more and if there shall be more than one Tenant. Any notice
required or permitted by the terms of this Lease may be given by or to any one
thereof, and shall have the same force and effect as if given or to all thereof.
The use of the neuter singular pronoun to refer to Landlord or Tenant shall be
deemed a proper reference even though Landlord or Tenant may be an individual, a
partnership, a corporation, or a group of two or more individuals or
corporations. The necessary grammatical changes required to make the provisions
of this Lease apply in the plural sense where there is more than one Landlord
or Tenant and to either corporations, associations, partnerships, or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
23.7 BROKER'S COMMISSION. Each of the parties represents and warrants
that it has dealt with no broker or brokers in connection with the execution of
this Lease, except Colliers Xxxxxx Xxxxx, and each of the parties agrees to
indemnify the other against, and hold it harmless from, all liabilities arising
from any claim for brokerage commissions or finder's fee resulting from the
indemnitor's acts (including, without limitation, the cost of counsel fees in
connection therewith) except for the persons or entities set forth above.
Landlord shall pay any fees or commissions due Colliers, Xxxxxx, Xxxxx as a
result of this Lease.
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23.8 PARTIAL INVALIDITY. In any term, covenant or condition of this
Lease or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby and each term, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
23.9 EFFECTIVENESS OF LEASE. The submission of this Lease for
examination does not constitute a reservation of or option for the Leased
Premises and this Lease becomes effective as a lease only upon execution and
delivery thereof by Landlord to Tenant, and the receipt of the full security
deposit, and if paid by check, subject to clearance.
23.10 RECORDING. Tenant shall not record this Lease or any memorandum
thereof without the written consent and joinder of Landlord.
23.11 LIABILITY OF LANDLORD. Anything contained in this Lease, at law
or in equity to the contrary notwithstanding, Tenant expressly acknowledges and
agrees that there shall at no time be or be construed as being any personal
liability by or on the part of Landlord under or in respect of this Lease or in
any way related hereto or the Leased Premises; it being further acknowledged and
agreed that Tenant is accepting this Lease and the estate created hereby upon
and subject to the understanding that it shall not enforce or seek to enforce
any claim or judgment or any other matter, for money or otherwise, personally or
directly against any officer, director, stockholder, partner, principal
(disclosed or undisclosed), representative or agent of Landlord, but will look
solely to the Landlord's interest in the Project for the satisfaction of any and
all claims, remedies or judgements (or other judicial process) in favor of
Tenant requiring the payment of money by Landlord in the event of any breach by
Landlord of any of the terms, covenants or agreements to be performed by
Landlord under this Lease or otherwise, subject, however, to the prior rights of
any ground or underlying lessors or the holders of the mortgages covering the
Project, and no other assets of Landlord or owners of Landlord shall be subject
to levy, execution or other judicial process for the satisfaction of Tenant's
claims; such exculpation of personal liability as herein set forth to be
absolute, unconditional and without exception of any kind.
23.12 TIME OF THE ESSENCE. Time is of the essence of this Lease and
each and all of its provisions in which performance is a factor.
23.13 ESTOPPEL INFORMATION. When the commencement date is determined,
Tenant agrees, upon request of Landlord, to execute and deliver to Landlord,
without charge and within ten (10) days following request therefor, a written
declaration in form satisfactory to Landlord: (i) ratifying this Lease; (ii)
confirming the commencement and expiration dates of the term of this Lease;
(iii) certifying that Tenant is in occupancy of the Leased Premises, the date
Tenant commenced operating Tenant's business therein and that this Lease is in
full force and effect and has not been assigned, modified, supplemented or
amended, except by such writings as shall be stated; (iv) that all conditions
under this Lease to be performed by Landlord have been satisfied; except such
as shall be stated; (v) that there are no defenses or offsets against the
enforcement of this Lease by Landlord, or stating those claimed by Tenant; (vi)
reciting the amount of advance rental, if any, paid by Tenant and the date to
which rental has been paid; (vii) reciting the amount of security deposited with
Landlord, if any, and (viii) certifying the status of any other matter
reasonably requested by Landlord or its lender. Tenant agrees to execute and
deliver similar declarations at any time and from time to time and within ten
(10) days following request therefor by Landlord or by any mortgage holder or
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ground or underlying lessor and or purchaser of the Project, and each of such
parties shall be entitled to rely upon such written declaration made by Tenant.
Tenant's failure or refusal to execute the declaration required hereunder within
ten (10) days following the request therefor will constitute a default hereunder
and Landlord shall have such rights and remedies against Tenant as is available
to Landlord for Tenant's default.
Landlord agrees to provide Tenant with an estoppel letter of similar form and
substance within ten (10) days of written request.
23.14 CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
23.15 CHOICE OF LAW. This Lease shall be governed by the laws of the
State of Florida. The venue for any action filed in connection herewith by
either party shall be the county in which the Leased Premises are located.
23.16 WAIVER OF TRIAL BY JURY. THE PARTIES HERETO SHALL AND THEY HEREBY
DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD
AND TENANT, TENANT'S USE OR OCCUPANCY OF THE LEASED PREMISES, AND/OR ANY CLAIM
OF INJURY OR DAMAGE.
23.17 COUNTERPARTS. This Lease may be executed in multiple copies, each
of which shall be deemed an original, and all of such copies shall together
constitute one and the same instrument.
23.18 ACCEPTANCE OF FUNDS BY LANDLORD. No receipt of money by the
Landlord from the Tenant after the termination of this Lease or after the
service of any notice or after the commencement of any suit, or after final
judgment for possession of the Leased Premises shall reinstate, continue or
extend the term of this Lease or affect any such notice, demand or suit.
23.19 RADON GAS. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present a
health risk to persons who are
[ENTIRE TWO LINES ARE ILLEGIBLE]
from your county public health unit.
23.20 ATTACHMENTS. Any Exhibits as well as any Amendments which are
attached to this Lease are a part of this Lease and are incorporated herein as
if fully set forth herein.
23.21 INSERTIONS. No insertion, whether handwritten or otherwise, which
attempts or purports to change or modify the standard type written provisions of
this Lease and/or attachments or amendments thereto shall be effective or
binding unless and until each party to this Lease initials the change(s) or
modification(s) in the margin immediately adjacent thereto. A general initialing
by the parties of a page, at the top or bottom thereof, shall not be deemed
compliance with the above-referenced requirement and shall not bind either party
to the terms or conditions of the insertion.
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23.22 RENEWAL OPTIONS. The terms of options to renew, if any, are
subject to the following conditions:
23.22.1 Any right to renew is conditioned upon Tenant not being in
default under any terms of the Lease at the time of election to exercise the
option and at the time the extended period is to begin.
23.12.2 If Tenant shal1 elect to exercise any option, it shall do
so by giving Landlord written notice at least one hundred eighty (180) days
prior to the expiration of the primary term of the Lease, or the then current
extension thereof. Failure to provide proper notice within the time required
shall terminate the pending or remaining option rights of the Tenant.
23.22.3 Option Terms: Tenant shall have two (2) options for
additional three (3) year terms. For each year of any option period exercised,
the base rent shall increase four percent (4%) over the prior year. Base year
for the option periods shall be 2001.
23.23 RIGHT OF FIRST OFFER. Tenant shall have the right of first offer
on suites 105 and 106 at 0000 X.X. 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx. This
right of first offer is conditioned on the space offered being contiguous with
space currently occupied by Tenant; it being the intent that the offer for suite
106 is not available unless suite 105 is leased by Tenant pursuant to this
paragraph or otherwise. Further, no right of first offer may be exercised by
Tenant unless at least two years remain in the initial Term or exercised option
period. When availability of each suite is determined by Landlord, Landlord
shall notice Tenant in writing of that fact. Such notice shall occur at least
ninety (90) days before the space is available. Tenant shall have five (5)
business days after receiving notice to exercise its right to lease the space.
If accepted, the base rental rate shall be the then applicable rate charged per
square foot for suites 101-104, with a term to run consecutively with suites
101-104, including options and the proportionate share in paragraph 2.3.1 shall
be adjusted accordingly. Suites 105 and 106 shall be delivered "as is" and
Tenant shall be responsible for cost and expense of all fees, plans and tenant
improvements. In that regard the concept of paragraph 3.2 of the Lease shall
apply.
23.24 REMOVAL OF EXISTING TENANT. Suite 104 is currently occupied by
Equipment and Parts. Tenant shall pay Landlord the sum of twenty-two thousand
dollars ($22,000) for the expense of removing Equipment and Parts from Suite
104, $10,000 to be paid upon execution of this Lease and the remaining $12,000
on the date Suite 104 is vacated by Equipment and Parts. The anticipated date
for Equipment and Parts vacating Suite 104 is on or before September l, 1997.
In the event Equipment and Parts has not vacated Suite 104 by September 1, l997,
the following times shall be extended and/or adjusted by adding the period of
time between September l, 1997 and date Suite 104 is vacated:
23.24.1 the one (1) month period in paragraph 1.2.l
23.24.2 the Term of the Lease in paragraph 1.5
23.24.3 each "Period" set out in the schedule of paragraph 2.1; the
additional time shall be added to the first Period referenced and the remaining
Periods to be adjusted accordingly to reflect one year increments thereafter.
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23.25 ENTIRE AGREEMENT. This Lease and the Exhibits, and Amendments,
if any, attached hereto and forming a part hereof, set forth all covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Leased Premises and there are no covenants, promises, conditions
or understandings, either oral or written, between them other than are herein
set forth. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this
Lease of the day and year first above written.
WITNESSES: LANDLORD: NEW TOWN COMMERCE CENTER, LTD.
BY: Colliers Xxxxxx Xxxxx, as Manager
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxx
-------------------------------- ---------------------------------------
Xxxxx Xxxxxx,
Managing Director of Asset Services
[ILLEGIBLE]
--------------------------------
TENANT: Galacticomm, Inc.
/s/ Xxxxxxx Xxxxxxx
---------------------------------------
/s/ Xxxxx X. Xxxxxxx
-------------------------------- Xxxxxxx Xxxxxxx,
President
[ILLEGIBLE]
--------------------------------
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