EXHIBIT 10.55
OFFICE LEASE AGREEMENT
THIS LEASE is made and entered into as of the 8 day of December, 1999,
by and between UNIVERSITY SCIENCE CENTER, INC. ("Landlord"), having an office at
0000 Xxxxxx Xxx, Xxxxx 000, Xxxxxxx, XX, 00000 ("Landlord's Mailing Address"),
and The Other Phone Company, dba Access One Communications ("Tenant"), having an
office at 0000 Xxxxxxxx Xxxx, Xxxxx X-00, Xxxxxxx, Xxxxxxx 00000 ("Tenant's
Mailing Address").
I. DEMISE OF PREMISES
In consideration of the Base Rent, Additional Rent and the covenants
and agreements made herein, including the General Terms, Covenants and
Conditions attached hereto and made a part hereof, Landlord leases to Tenant and
Tenant accepts from Landlord the Premises (as outlined on the plan attached
hereto as Exhibit "A") located in the Building for the Term beginning on the
Commencement Date.
II. TERMS
As used in this Lease, the following terms shall have the following
meanings:
1. BUILDING: the office facility known as University
Science Center located at 00000 Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000, in Orange County, Florida,
and all improvements now or hereafter constructed by
Landlord including any additional facilities which
may be deemed necessary or desirable by Landlord.
2. PREMISES: that part of the Building outlined on
Exhibit "A", called SUITE 130 (consisting of
approximately 10,247 rentable square feet.
3. COMMENCEMENT DATE: January 1, 2000.
4. TERM: a period commencing on the Commencement Date
and expiring at midnight on the date sixty (60)
months after the Commencement Date, provided,
however, if the Commencement Date is any day other
than the first day of a calendar month, the Term
shall be extended automatically until midnight on the
last day of the calendar month in which the Term
would otherwise expire.
5. LEASE YEAR: each twelve (12) month period of the Term
commencing on the Commencement Date or any
anniversary of the Commencement Date.
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6. BASE RENT: the annual Base Rent is described below
and shall be payable in Monthly Installments of Base
Rent (plus applicable sales tax) during the
applicable Lease Year as follows:
ANNUAL MONTHLY INSTALLMENTS
LEASE YEAR BASE RENT OF BASE RENT
1 $131,469.01 $10,955.75
2 $135,413.08 $11,284.42
3 $139,475.47 $11,622.96
4 $143,659.74 $11,971.64
5 $147,969.53 $12,330.79
IN ADDITION TO BASE RENT, TENANT SHALL PAY IN MONTHLY
INSTALLMENTS TENANT'S PRORATA SHARE OF OPERATING
EXPENSES FOR THE BUILDING. (SEE ARTICLE II, ITEM 15)
7. SECURITY DEPOSIT: $25,000 Landlord will refund
$12,500 of Tenant's Security Deposit within thirty
(30) days of Landlord's receipt of Tenant's audited
financial statements showing positive Net Income.
8. TENANT'S SHARE: .186059 Percent (18.6059%), which is
the ratio of the area of the Premises (10,247
Rentable Square Feet) to the total area of the
Building (55,074 Rentable Square Feet).
9. GUARANTOR: N/A
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10. COMMON AREAS: areas designed and intended to be used
by all tenants of the Building, including walkways,
driveways, parking areas, and landscaped areas.
11. PROPERTY: the Building, including all Common Areas.
12. BROKER: Equity Partners, Inc. and Maitland Realty
Company.
13. PERMITTED USE: Office Use Only.
14. LEASEHOLD IMPROVEMENT ALLOWANCE: Landlord will
construct the space at Landlord's expense in
accordance with the Exhibit "A".
15. OPERATING EXPENSES (IN ADDITION TO BASE RENT): Tenant
shall pay in equal monthly installments Tenant's
prorata share of Operating Expenses (plus applicable
sales tax) for the Building, estimated to be $2.85
per rentable square foot per year. Operating
Expenses, as defined herein, excludes Tenant's
Electricity and Janitorial Services, which are the
sole responsibility of Tenant. With the exception of
Real Estate Taxes, Insurance and Utilities, Landlord
shall cap increases in Operating Expenses at five
percent (5%) per annum.
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IIII. EXHIBITS AND RIDERS
The Exhibits and Riders listed below are incorporated in this Lease and
are to be construed as part hereof:
Exhibits Riders ("x" if applicable):
-------- ------
"A" - Plan showing the Premises. [x ] Construction of Leasehold Improvements
"B" - Rules and Regulations. [ ] Guaranty of Lease
"C" - Sign Criteria. [ ] Landlord Contingencies
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused to be
executed this Lease as of the date first written above.
WITNESSES: TENANT:
THE OTHER PHONE COMPANY, DBA ACCESS ONE COMMUNICATIONS__
By Xxxxx X. Xxxxxx /s/
-------------------------------- -------------------------
Title: President
-------------------------------- -------------------------
LANDLORD:
WITNESSES: UNIVERSITY SCIENCE CENTER, INC.
By: /s/
------------------------------- ------------------------
Cabot X. Xxxxxx, Xx.
------------------------------- President
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GENERAL TERMS, COVENANTS AND CONDITIONS
1. COMMENCEMENT DATE; CONSTRUCTION OF PREMISES
(a) The rights, duties and obligations of the parties under
this Lease shall be effective upon the execution hereof, and Tenant's obligation
to pay Rent hereunder shall commence upon the Commencement Date.
(b) If Landlord is unable to deliver possession of the
Premises to Tenant on the Commencement Date because of the holding-over by any
occupant of the Premises, or because the Premises are not substantially
completed, or for any other reason, this Lease shall continue in effect and
Landlord shall not be liable to Tenant or any third party for such inability. In
such event, Landlord shall act diligently and in good faith to complete the work
that is necessary to allow Landlord to deliver the Premises to Tenant for use
and occupancy by Tenant. If the Premises are not available for Tenant's use and
occupancy by the Commencement Date described above and such delay is not caused
by Tenant, then the Commencement Date shall be adjusted to the date when
Landlord does in fact deliver possession of the Premises to Tenant for Tenant's
use and occupancy. If action or inaction by Tenant causes a delay in preparation
or completion of the Premises for Tenant's use and occupancy, then the
Commencement Date shall be the later of the Commencement Date identified above
or the date the Premises would have been available for Tenant's use and
occupancy but for delays caused by Tenant. Notwithstanding any term or provision
herein to the contrary, if, for any reason other than Tenant's delay, Landlord
cannot deliver possession of the Premises to Tenant for Tenant's use and
occupancy on a date which is ninety (90) days after the Commencement Date
identified above, then Tenant shall be entitled to terminate this Lease by
notifying Landlord in writing within fifteen (15) days following the expiration
of such ninety (90) day period. However, if Landlord delivers the premises
within the fifteen (15) day notice period, the Lease will remain in full force
and effect.
(c) Tenant's taking possession of the Premises shall be
conclusive evidence that the Premises were in good order, condition and repair
when Tenant took possession, except for such matters of which Tenant gives
Landlord notice on or before the Commencement Date. No promise of Landlord to
alter, remodel, repair or improve the Premises or the Building and no
representation, either express or implied, respecting any matter or thing
relating to the Building or this Lease (including the condition of the Premises
or the Building) have been made by Landlord to Tenant, other than as may be
contained herein or in a separate Construction Rider signed by Landlord and
Tenant.
(d) Any and all construction work to be performed upon the
Premises and the designation of the party financially responsible for such work
and the application of the Leasehold Improvement Allowance and the work schedule
and plans for such work shall be described in a Construction Rider attached
hereto and made a part hereof.
2. RENT
(a) Tenant shall pay Monthly Installments of Base Rent,
Operating Expenses and sales tax (sometimes referred to collectively as "Rent")
in advance on the first day of each month of the Term. If the Term shall
commence or end on a day other than the first day of a month, the Monthly
Installments of Base Rent and Operating Expenses for the first or last partial
month shall be prorated on a per diem basis. Upon the execution of this Lease,
Tenant shall pay one Monthly Installment of Base Rent and Operating Expenses for
the first full month of the Term and a prorated Monthly Installment of Base Rent
and Operating Expenses for any partial month which may precede it.
(b) Tenant shall pay to Landlord at the time of paying the
Rent any excise, sales, use, gross receipts or other taxes (other than a net
income or excess profits tax) which may be imposed on or measured by such Rent
or may be imposed on or on account of the letting and which Landlord may be
required to pay or collect under any law now in effect or hereafter enacted.
(c) All costs and expenses which Tenant assumes or agrees to
pay and any other sum payable by Tenant pursuant to this Lease shall be deemed
additional rent (together with Base Rent sometimes referred to as the "Rent").
The Rent shall be paid in lawful money of the Xxxxxx
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Xxxxxx xx Xxxxxxx to Landlord at Landlord's Mailing Address or to such other
person or at such other place as Landlord may from time to time designate in
writing, without any prior notice or demand therefor and without any deduction
or offset whatsoever.
(d) If any part of the Rent is not paid within five (5) days
after it is due, Tenant shall pay Landlord a late charge in the amount of five
percent (5%) of such payment. The payment by Tenant of a late charge or interest
hereunder shall not prevent nor remedy a default under this Lease.
Notwithstanding anything to the contrary contained in this paragraph, Landlord
shall notify Tenant in writing up to two (2) times per year if Tenant's Rent has
not been received within five (5) days after Rent is due. In the event Tenant
pays Tenant's Rent within five (5) days after Tenant receives Landlord's notice
of Tenant's late Rent, Landlord shall waive the aforementioned five percent (5%)
late fee.
3. INCREASES IN BASE RENT
Commencing at the beginning of each Lease Year during the Term of this
Lease, the Base Rent shall be adjusted annually as described in Paragraph 4 of
Article II, Terms, of this Lease.
4. OPERATING EXPENSES
(a) The term "Operating Expenses" as used herein includes all
expenses incurred with respect to the maintenance, management and operation of
the Building of which the Premises are a part, including, but not limited to,
maintenance and repair costs, electricity, fuel, water, sewer, gas and other
utility charges, security, janitorial services for the Building and Common Areas
(Tenant is responsible for Tenant's Janitorial services within Tenant's
Premises), trash removal, landscaping and pest control, wages and fringe
benefits payable to employees of Landlord whose duties are connected with the
operation and maintenance of the Building, amounts paid to contractors or
subcontractors for work or services performed in connection with the operation,
management and maintenance of the Building, all services, supplies, repairs,
replacements or other expenses for maintaining, managing and operating the
Building including maintenance of the Common Areas. The term "Operating
Expenses" also includes all real property taxes and installments of special
assessments, as well as all insurance premiums Landlord is required to pay or
deems necessary to pay, including public liability insurance, rent loss
insurance and casualty insurance with respect to the Building. The term
"Operating Expenses" does not include income and franchise taxes of Landlord,
expenses incurred in leasing to or procuring of tenants, leasing commissions,
advertising expenses, expenses for the renovating of space for new tenants,
capital improvements, interest or principal payments on any mortgage or other
indebtedness of Landlord, nor depreciation allowance or expense.
(b) In the event the Operating Expenses of the Building shall,
in any calendar year during the Term of this Lease, exceed the Operating Expense
estimate per square foot of rentable area, Tenant agrees to pay as additional
rent Tenant's Share of the excess Operating Expenses. Landlord may, within three
(3) months following the close of any calendar year for which such payment is
due under this paragraph, invoice Tenant for the excess Operating Expenses. The
invoice shall include in reasonable detail the computation of the additional
payment, and Tenant agrees to make payment of the excess Operating Expenses to
Landlord within ten (10) days following receipt of the invoice. In the year in
which this Lease terminates, Landlord, in lieu of waiting until the close of the
calendar year in order to determine any excess Operating Expenses, may invoice
Tenant for Tenant's Share based upon an estimate of the year's excess Operating
Expenses. Landlord may invoice Tenant under this provision within thirty (30)
days prior to the termination of the Lease or at any time thereafter. Tenant
shall have the right, at its own expense and at a reasonable time and upon prior
notice to Landlord, to inspect Landlord's books at the Landlord or its manager's
place of business, relevant to the additional payments due under this paragraph.
Tenant's obligation to pay excess Operating Expenses shall survive the
termination of this Lease. Landlord will manage the Building in a manner
generally consistent with other similar single story office buildings in the
area.
(c) Landlord may, at its option, estimate its annual cost of
Operating Expenses and determine whether excess Operating Expenses will be
payable from Tenant. In such case, Tenant shall pay 1/12th of Tenant's Share of
such excess estimated Operating Expenses on the same date monthly rent is due.
Landlord shall thereafter determine its actual Operating Expenses at the end of
each calendar year and shall notify Tenant of any adjustment due, which shall be
paid by or credited to Tenant, as the case may be, within thirty (30) days after
such notice. Tenant shall also pay sales tax due on such excess Operating
Expenses whether paid on a monthly basis or at year-end.
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5. BUILDING SERVICES
Landlord shall furnish the following services to the Building and
Premises, the cost of which shall be included in Operating Expenses and paid by
Tenant to the extent same exceeds the estimated Operating Expenses:
(a) Electrical current for ordinary purposes connected with
the maintenance and parking areas of the Building. Electrical current for
Tenant's Premises is at Tenant's sole expense.
(b) Electrical lighting service in the Building parking areas
to the extent deemed by Landlord to be standard.
(c) Water, sewer and trash removal as determined by Landlord
to be standard. Tenant is responsible for Tenant's Janitorial service at
Tenant's sole expense.
The failure by Landlord to any extent to furnish, or any stoppage of
these services resulting from causes beyond the control of Landlord, shall not
render the Landlord liable in any respect for damages to either person or
property, nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
Should any equipment or machinery breakdown or, for any cause, cease to function
properly, Landlord shall use reasonable diligence to repair the same promptly,
but Tenant shall have no claim for rebate of rent or damages on account of
interruptions in service occasioned thereby or resulting therefrom.
6. REPAIRS, MAINTENANCE AND ALTERATIONS
(a) Tenant shall keep the Premises, including the Leasehold
Improvements and Tenant's Property, neat, clean, and in good order and
condition. Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the Premises, the Leasehold
Improvements, Tenant's Property, or the Building including mechanical,
electrical, plumbing, heating, ventilating, air conditioning and other equipment
facilities and systems located within or serving the Building, (hereinafter the
"Building Systems"). Tenant shall, at Tenant's cost and expense, repair or
replace any damage or injury done to the Building or the Premises caused by
Tenant or by Tenant's agents, employees, invitees or visitors. If Tenant fails
to make such repairs or replacements promptly, or within fifteen (15) days of
Landlord's written notice of occurrence, Landlord may, at its option, make such
repairs or replacement and Tenant shall repay the cost thereof to Landlord upon
demand. Tenant shall not commit or allow any waste or damage to be committed on
any portion of the Premises or the Building and shall, at the termination of
this Lease, by lapse of time or otherwise, deliver the Premises to Landlord
broom-clean and in as good condition as at date of possession by Tenant,
ordinary wear and tear excepted.
(b) The repair and maintenance of the heating, ventilating and
air conditioning systems, equipment and fixtures shall be undertaken pursuant to
an HVAC service contract entered into by Landlord and included in the Operating
Expenses.
(c) Landlord shall, at Landlord's expense, repair, replace and
maintain the roof and the external and structural parts of the Building which do
not constitute a part of the Premises and shall perform such repairs,
replacements and maintenance with reasonable dispatch, in a good and workmanlike
manner. Landlord shall keep and maintain the Common Area (the expense of which
shall be borne in part by Tenant as a Operating Expense described above) in good
order and repair.
(d) Except as provided herein, Landlord shall have no
liability to Tenant nor shall Tenant's covenants and obligations under this
Lease be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease or by any other tenant's lease or required by law to make in or to
any portion of the Premises, the Building or the Building Systems. Landlord
shall nevertheless use its best efforts to minimize any interference with
Tenant's business in the Premises.
(e) Tenant shall not make any alteration in or to the Premises
without the prior written consent of Landlord, which shall not be unreasonably
withheld. If Landlord gives its consent to the making of alterations by Tenant,
all such work shall be done in accordance with such
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requirements and upon such conditions as Landlord, in its sole discretion, may
impose. Any review or approval by Landlord of any plans or specifications with
respect to any alteration is solely for Landlord's benefit, and without any
representation or warranty whatsoever to Tenant with respect to the adequacy,
correctness or efficiency thereof or otherwise.
(f) Tenant shall defend, indemnify and save harmless Landlord
from and against any and all mechanics' and other liens and encumbrances filed
by any person claiming through or under Tenant, including security interests in
any materials, fixtures, equipment or any other improvements or appurtenances
installed in and constituting part of the Premises and against all costs,
expenses and liabilities (including reasonable attorneys' fees) incurred in
connection with any such lien or encumbrance or any action or proceeding brought
thereon. Tenant at its expense shall procure the satisfaction or discharge of
record of all such liens and encumbrances within twenty (20) days after the
filing thereof. Pursuant to the provisions of Section 713.10, Florida Statutes,
under no circumstances shall the interest of Landlord in and to the Property or
the Building be subject to liens for improvements made by Tenant or subject to
any mechanic's, laborer's or materialman's lien or any other lien or charge on
account of or arising from any contract or obligations of Tenant.
7. USE OF THE PREMISES; RULES AND REGULATIONS; SIGNS
(a) Tenant shall use the Premises only for the Permitted Use
and all other uses or purposes are strictly prohibited. Tenant shall not at any
time use or occupy, or suffer or permit anyone to use or occupy, the Premises or
do or permit anything to be done in the Premises which: (i) causes or is liable
to cause injury to persons, to the Building or its equipment, facilities or
systems; (ii) impairs or tends to impair the character, reputation or appearance
of the Building as a first class office building; (iii) impairs or tends to
impair the proper and economic maintenance, operation and repair of the Building
or its equipment, facilities or systems; (iv) increases the rate of fire,
liability or other insurance coverage for the Property; or (v) annoys or
inconveniences or tends to annoy or inconvenience other tenants or occupants of
the Building as determined by Landlord.
(b) Tenant shall comply with any rules and regulations as
Landlord may from time to time make; provided, however, in no event shall such
rules or regulations contradict or abrogate any right or privilege herein
expressly granted to Tenant in this Lease. Landlord shall not be responsible for
the violation by anyone of any of said rules and regulations. The current Rules
and Regulations are attached hereto as Exhibit B.
(c) Only such signage as complies with Landlord's Sign
Criteria, a copy of which is attached hereto as Exhibit C, shall be permitted at
the Premises. Tenant agrees that no other signs or advertising devices of any
nature shall be erected or maintained by Tenant on the Premises or elsewhere
within the Premises so as to be visible from the exterior of the Building or
within the Complex. No exterior lighting, awnings, equipment or other structures
shall be permitted on the Premises, on the exterior walls or extending to the
exterior of the Building or elsewhere in the Complex except as approved in
writing by Landlord.
8. LEASEHOLD IMPROVEMENTS
(a) All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises, whether or not by or at the expense of
Tenant, and any carpeting or other personal property in the Premises on the
Commencement Date installed by Landlord (collectively hereinafter "Leasehold
Improvements"): (i) shall be and remain a part of the Premises; (ii) shall be
deemed the property of Landlord; and (iii) shall not be removed by Tenant.
(b) All movable partitions, other business and trade fixtures,
furnishings, furniture, machinery and equipment, communications equipment, and
other personal property located in the Premises acquired by or for the account
of Tenant, without expense to Landlord, which can be removed without damage to
the Building (collectively sometimes hereinafter called "Tenant's Property"),
shall be and shall remain the property of Tenant and, except as otherwise
prohibited by this Lease, may be removed by it at any time during the Term;
provided that, if any of Tenant's Property is removed, Tenant shall pay the cost
of repairing any damage to the Premises or to the Building resulting from such
removal.
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9. RIGHTS RESERVED TO LANDLORD
Landlord reserves the following rights, exercisable without
liability to Tenant for damage or injury to property, person or business and
without effecting an eviction, constructive or actual, or disturbance of
Tenant's use or possession or giving rise to any claim:
(a) To have passkeys to the Premises and all doors therein,
excluding Tenant's vaults and safes;
(b) On reasonable prior notice to Tenant, to exhibit the
Premises to any prospective purchaser, mortgagee or assignee of any mortgage on
the Building or Complex and to others having an interest therein at any time
during the Term, and to prospective tenants during the last six months of the
Term;
(c) To take any and all measures, with prior written notice,
except in cases of emergency, including entering the Premises for the purpose of
making inspections, repairs, alterations, additions and improvements to the
Premises or to the Building (including for the purpose of checking, calibrating,
adjusting and balancing controls and other parts of the Building Systems), as
may be necessary or desirable for the operation, improvement, safety, protection
or preservation of the Premises or the Building, or in order to comply with all
laws, orders and requirements of governmental or other authority, or as may
otherwise be permitted or required by this Lease; provided, however, that
Landlord shall use its best efforts to minimize interference with Tenant's
business in the Premises.
10. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not assign, mortgage or encumber this Lease,
nor sublet, suffer or permit the Premises or any part thereof to be used by
others, without the prior written consent of Landlord in each instance, which
consent Landlord may not unreasonably withhold. If this Lease be assigned, or if
the Premises or any part thereof be sublet or occupied by anyone other than
Tenant without Landlord's prior written consent, such purported assignment or
subletting shall be null and void; however, Landlord may collect rent from the
assignee, subtenant or occupant, and apply the net amount collected to the Rent,
and no such assignment, subletting, 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 of its
covenants herein contained. The consent by Landlord to an assignment or
subletting shall not be construed to relieve Tenant from obtaining Landlord's
written consent to any further assignment or subletting.
(b) For the purpose of this Lease, an "assignment" prohibited
by this section shall be deemed to include the following: if Tenant is a
partnership, a withdrawal or change (voluntary, involuntary, by operation of law
or otherwise) of any of the partners thereof, or the dissolution of the
partnership; or, if Tenant consists of more than one person, a purported
assignment, transfer, mortgage or encumbrance (voluntary, involuntary, by
operation of law or otherwise) from one thereof unto the other or others
thereof; or, if Tenant is a corporation, any dissolution, merger, consolidation
or other reorganization of Tenant, or any change in the ownership (voluntary,
involuntary, by operation of law, creation of new stock or otherwise) of 50
percent or more of its capital stock from the ownership existing on the date of
execution hereof; or, the sale of fifty percent (50%) or more of the value of
the assets of Tenant.
(c) No assignment or subletting shall affect the continuing
primary liability of Tenant (which, following assignment, shall be joint and
several with the assignee), and Tenant shall not be released from performing any
of the terms, covenants and conditions of this Lease.
11. HOLDING OVER
If Tenant retains possession of the Premises or any part thereof after
the Term has expired, Tenant's occupancy of the Premises shall be as a tenant at
will, terminable at any time by Landlord. Tenant shall pay Landlord rent for
such time as Tenant remains in possession at the rate of one hundred fifty
percent (150%) of the total amount of the Rent payable hereunder for the month
immediately preceding the Termination Date for the first two (2) months, and
thereafter at two hundred percent (200%) of the total amount of the Rent payable
hereunder for the month immediately preceding the Termination Date, and, in
addition thereto, shall pay Landlord for all damages sustained by reason of
Tenant's retention of possession. The provisions of this Section do not exclude
Landlord's rights of re-entry or any other right hereunder.
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12. SURRENDER OF THE PREMISES
(a) At the expiration of the Term or earlier termination,
Tenant shall peaceably surrender the Premises, including the Leasehold
Improvements, in broom-clean condition and otherwise in as good condition as
when Tenant took possession, except for: (i) reasonable wear and tear; (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall, on
Landlord's request, remove Tenant's Property and pay the cost of repairing all
damage to the Premises or the Building caused by such removal.
(b) If Tenant abandons or surrenders the Premises, or is
dispossessed by process of law, or otherwise, any of Tenant's Property (except
money, securities and other like valuables) left on the Premises shall be deemed
abandoned; and title thereto shall automatically pass to Landlord under this
Lease as by a xxxx of sale. Thereafter, Landlord may in its sole and absolute
discretion choose to remove, store or otherwise dispose of such property in any
manner it may deem commercially reasonable. However, the proceeds from the
disposition of such property shall be applied against the balance of any sums
owed to Landlord by Tenant and against the costs of the removal or disposition.
13. DESTRUCTION OR DAMAGE
(a) If the Building or the Premises are damaged or destroyed
by fire or other casualty, and this Lease is not terminated as provided below,
Landlord shall repair the damage and restore or rebuild the Building and the
Premises (as the case may be), at its expense, with reasonable dispatch after
notice to it of the damage or destruction, to the extent that insurance proceeds
are available for such repair, restoration or rebuilding; provided, however,
that Landlord shall not be required to repair or replace any of Tenant's
Property, or any alteration of Leasehold Improvements made by Tenant or
nonstandard building improvements made by Landlord.
(b) If the Premises are damaged or destroyed by fire or other
casualty, the Rent shall equitably xxxxx, to the extent that the Premises are
rendered untenantable, for the period from the date of such damage or
destruction to the date the damage is repaired or restored.
(c) If the Building or the Premises is substantially damaged
or destroyed by fire or other casualty, Landlord may terminate this Lease by
notice to Tenant within ninety (90) days after the date of the casualty, and
this Lease shall terminate upon the thirtieth (30th) day after such notice, by
which date Tenant shall vacate and surrender the Premises to Landlord. The Rent
shall be prorated to the date of the casualty. The Premises or Building (whether
or not the Premises are damaged) shall be deemed substantially damaged or
destroyed if (i) the amount of the damage is more than twenty percent (20%) of
the replacement value of the Building immediately prior to the casualty or (ii)
restoration is not possible in accordance with Landlord's reasonable estimate
within one hundred eighty (180) days following the date the damage occurred. If,
by reason of such casualty, the Premises are rendered untenantable in some
material portion, and the amount of time required to repair the damage is
reasonably determined by Landlord to be in excess of one hundred eighty (180)
days from the date of such casualty, then Tenant shall have the right to
terminate this Lease by giving Landlord written notice of termination within
thirty (30) days after the date Landlord delivers Tenant notice that the amount
of time required to repair the damage has been determined by Landlord to be in
excess of one hundred eighty (180) days.
(d) No damages, compensation or claim shall be payable by
Landlord for any casualty, or any inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the Premises or of the
Building pursuant to this Section. Landlord shall use its best efforts to make
such repair or restoration promptly and in such manner as will not unreasonably
interfere with Tenant's use and occupancy of the Premises.
14. EMINENT DOMAIN
(a) If the whole of the Building is lawfully taken by
condemnation or any other manner for any public or quasi-public purpose, this
Lease shall terminate as of the date of vesting of title in such condemning
authority (which date is hereinafter also referred to as the "date of taking"),
and the Rent shall be prorated to such date. If any part of the Building or
Complex is so taken, this Lease shall be unaffected by such taking, except that
(i) Landlord may terminate this Lease by notice to Tenant within ninety (90)
days after the date of taking, and (ii) if twenty percent (20%) or more of the
Premises shall be taken and the remaining area of the Premises shall not be
reasonably
9
sufficient for Tenant to continue operation of its business, Tenant may
terminate this Lease by notice to the Landlord within 90 days after the date of
taking. This Lease shall terminate on the 30th day after such notice, by which
date Tenant shall vacate and surrender the Premises to Landlord. The Rent shall
be prorated to such date as Tenant is required to vacate the Premises by reason
of the taking. If this Lease continues in force upon such partial taking, the
Rent shall be equitably adjusted according to the rentable area of the Premises
remaining.
(b) In the event of any taking, all of the proceeds of any
award, judgment or settlement payable by the condemning authority shall be and
remain the sole and exclusive property of Landlord, and Tenant hereby assigns
all of its right, title and interest in and to any such award, judgment or
settlement to Landlord. Tenant, however, shall have the right, to the extent
that the same shall not reduce or prejudice Landlord's award, to claim from the
condemning authority, but not from Landlord, such compensation as may be
recoverable by Tenant in its own right for moving expenses and damage to Tenant
's Property.
15. INDEMNIFICATION
(a) Tenant shall indemnify Landlord and save it harmless from
all claims, suits, actions, damages, liabilities and expenses in connection with
loss of life, bodily or personal injury or property damage occurring on or
arising from or out of Tenant's use or occupancy of the Premises or any part
thereof, or occasioned wholly or in part by any act or omission of Tenant,
whether occurring in or about the Premises or in Common Areas or elsewhere
within the Building or on the Complex. The foregoing indemnification shall not
apply to injury, loss or damage proximately caused solely by the negligence of
Landlord or its agents, contractor or employees, unless such injury, loss or
damage is covered by insurance Tenant is required to provide or does provide.
This obligation to indemnify includes reasonable attorneys' fees and
investigation costs and all other reasonable costs, expenses and liabilities.
(b) Landlord shall not be responsible or liable to Tenant or
to those claiming by, through or under Tenant for any injury, loss or damage
that may be occasioned by or through the acts or omissions of persons occupying
other premises in the Building. Unless proximately caused solely by the
negligence of Landlord, its agents, contractors or employees, Landlord shall not
be responsible or liable to Tenant for any defect or failure, latent or
otherwise, in (or any act or omission in the construction of) the Building, the
Premises or any of the Building Systems, nor shall it be responsible or liable
for any injury, loss or damage to any person or property of Tenant or any other
person caused by or resulting from bursting, breakage, leakage, steam, snow or
ice, running, backing up, seepage, or the overflow of water or sewerage in any
part of the Building or for any injury, loss or damage caused by or resulting
from acts of God or the elements, theft, fire, public enemy, injunction, riot,
strike, insurrection, court order, requisition or order of governmental body or
authority, or any other cause beyond Landlord's control. Landlord shall in no
event be liable to Tenant for indirect or consequential damages. Tenant shall
give prompt notice to Landlord in case of fire, casualty, defect or accident in
the Premises or in the Building or of defects therein or in any Building System.
(c) In case any action or proceeding is brought against
Landlord to which this indemnification shall be applicable, Tenant shall pay all
costs, attorneys' fees, expenses and liabilities resulting therefrom and shall
defend such action or proceeding if Landlord shall so request, at Tenant's
expense, by counsel reasonably satisfactory to Landlord.
16. TENANT'S INSURANCE
(a) During the Term of this Lease or any renewal thereof,
Tenant shall obtain and promptly pay all premiums for general public liability
insurance against claims for personal injury, death or property damage occurring
upon, or about the Premises with carriers and in amounts reasonably satisfactory
to Landlord but with minimum limits of not less than One Million Dollars
($1,000,000.00) combined single limit for bodily injury and property damage, and
all such policies and renewals thereof shall name Landlord and Tenant as
insureds. All policies of insurance shall provide (i) that no material change or
cancellation of said policies shall be made without thirty (30) days prior
written notice to Landlord and Tenant, (ii) that any loss shall be payable
notwithstanding any act or negligence of Tenant or Landlord which might
otherwise result in the forfeiture of said insurance, and (iii) that the
insurance company issuing the same shall not have right of subrogation against
Landlord. On or before the Commencement Date, and thereafter not less than
fifteen (15) days prior to the expiration dates of said policy or policies,
Tenant shall
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provide copies of policies of insurance evidencing coverages required by this
Lease. Landlord may reasonably increase the aforesaid insurance limits from time
to time.
(b) If during the Term insurance premiums on any insurance
policy carried by Landlord on the Building or the Premises are increased due to
or resulting from Tenant's occupancy hereunder, Tenant shall pay to Landlord as
additional rent the amount by which Landlord's insurance premiums exceed
standard rates. Any amount payable by Tenant hereunder shall be paid to Landlord
within ten (10) days after notice to Tenant accompanied by the premium notice or
other evidence of the amount due.
(c) If desired by Tenant, Tenant shall at its expense obtain
insurance on Tenant's Property and any nonstandard building improvements within
the Premises.
(d) Neither party shall be liable to the other party or to any
insurance company insuring the other party (by way of subrogation or otherwise)
for any loss or damage to any property, or losses under workmen's compensation
laws and benefits, even though such loss or damage may have been occasioned by
the negligence of such party, its agents or employees, provided that such loss
or damage is insured against under the terms of insurance policies referred to
elsewhere in this Lease.
17. SUBORDINATION AND ATTORNMENT
(a) This Lease and all rights of Tenant hereunder shall be
subordinate to all mortgages (referred to as the "mortgages") which may now or
hereafter affect the Building or Property. The foregoing provision shall be
self-operative and no further instruments of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, or the holder of any mortgage or any
of their respective assigns or successors in interest may reasonably request to
evidence such subordination.
(b) If any mortgagee (or any purchaser at a foreclosure sale)
succeeds to the rights of Landlord under this Lease, whether through foreclosure
action or delivery of a deed, (a "Successor Landlord") Tenant shall attorn to
and recognize such Successor Landlord as Tenant's landlord under this Lease and
shall promptly execute and deliver any instrument that such Successor Landlord
may reasonably request to evidence such attornment. Landlord shall use its best
efforts to obtain from each mortgagee an agreement that if as a result of the
exercise of their rights they acquire Landlord's interest in and to the
Premises, then as Successor Landlord they shall recognize the validity and
continuance of this Lease and shall not disturb Tenant's possession of the
Premises so long as Tenant shall not be in default of this Lease, except that
Successor Landlord shall in no event: (i) be liable for any previous act or
omission of a prior landlord under this Lease; (ii) be subject to any offset for
a claim arising prior to its succession to the rights of Landlord under this
Lease; or, (iii) be bound by any modification of this Lease or by any prepayment
of more than one month's Rent, unless such modification or prepayment shall have
been expressly approved by the Successor Landlord.
18. ESTOPPEL CERTIFICATE BY TENANT
(a) Tenant shall from time to time upon request by Landlord
deliver to Landlord a statement in writing certifying: (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
identifying such modifications and certifying that the Lease, as modified, is in
full force and effect); (ii) the dates to which the Rent has been paid; (iii)
that Landlord is not in default under any provision of this Lease (or if
Landlord is in default, specifying each such default); and, (iv) the address to
which notices to Tenant shall be sent; it being understood that any such
statement so delivered may be relied upon in connection with any lease, mortgage
or transfer of the Building. Tenant's failure to do so within ten (10) days
after request therefore shall, at Landlord's option, be deemed a material
default under this Lease.
(b) Tenant's failure to deliver such statement within such
time shall be conclusive upon Tenant that: (i) this Lease is in full force and
effect and not modified except as Landlord may represent; (ii) not more than one
month's Rent has been paid in advance; (iii) there are no such defaults; and,
(iv) notices to Tenant shall be sent to Tenant's Mailing Address as set forth in
this Lease. Notwithstanding the presumptions of this Section, Tenant shall not
be relieved of its obligations to deliver said statement.
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19. TRANSFER OF LANDLORD'S INTEREST
Landlord may assign, in whole or in part, its rights and obligations
under this Lease and its rights and obligations in and to the Property. The term
"Landlord" as used in this Lease, so far as covenants or agreements on the part
of Landlord are concerned, shall be limited to mean and include only the owner
or owners of Landlord's interest in this Lease at the time in question. Upon any
transfer or transfers of such interest, Landlord herein named (and in case of
any subsequent transfer, the then transferor) shall thereafter be relieved of
all liability for the performance of any subsequent covenants or agreements on
the part of Landlord contained in this Lease.
20. DEFAULT
(a) The following shall be events of default under this Lease:
(i) if Tenant defaults in payment of the Rent for a period of five (5) days
after any payment of the Rent shall become due and payable; (ii) if Tenant
defaults in the performance of any other term, covenant, condition or obligation
of Tenant under this Lease and fails to cure, such default within a period of
fifteen (15) days after written notice from Landlord specifying such default,
provided, however, that if the nature of Tenant's default is such that more than
fifteen (15) days are required to cure such default, then Tenant shall not be
deemed to be in default if it shall commence such cure within such fifteen (15)
day period and thereafter diligently prosecute the same to completion; (iii) if
Tenant abandons or vacates any portion of the Premises, or if the Premises or a
substantial part thereof remain unoccupied for a period of thirty (30) days or
more; (iv) if Tenant makes any transfer, assignment, conveyance, sale, pledge or
disposition of all or a substantial portion of Tenant's Property, or removes a
substantial portion of Tenant's Property from the Premises; (v) if Tenant is a
corporation which is not validly existing and in good standing; (vi) if Tenant
is a partnership which is dissolved or liquidated; or, (vii) if Tenant's
interest herein is sold under execution. Any installment of Rent or any other
sum due by Tenant hereunder not paid within ten (10) days following the date
when due and payable shall bear interest from the date due until paid at the
lesser of (i) 10% per annum or (ii) the maximum lawful contract rate per annum.
(b) Upon any such event of default, Landlord may without
prejudice to its other rights hereunder, do any one or more of the following:
(i) terminate this Lease and re-enter and take possession of the Premises; (ii)
recover possession of the Premises (with or without terminating this Lease, at
Landlord's option) in the manner prescribed by any statute relating to summary
process; (iii) Landlord may relet the Premises as Landlord may see fit without
thereby avoiding or terminating this Lease, and for the purpose of such
reletting, Landlord is authorized to make such repairs to the Premises as may be
necessary in the sole discretion of Landlord for the purpose of such reletting,
and if a sufficient sum is not realized from such reletting (after payment of
all costs and expenses of such repairs and the expense of such reletting and the
collection of rent accruing therefrom) each month to equal the Rent, then Tenant
shall pay such deficiency each month upon demand therefor; and (iv) Landlord may
declare immediately due and payable all the remaining installments of the Rent
and such amount, less the fair rental value of the Premises for the remainder of
the Term, shall be construed as liquidated damages and shall constitute a debt
provable in bankruptcy or receivership. In computing such liquidated damages,
there shall be added to such deficiency any reasonable expenses as Landlord may
incur in connection with reletting, such as court costs, attorneys' fees and
disbursements, brokerage fees, and for putting and keeping the Premises in good
order or for preparing the Premises for reletting. The failure of Landlord to
relet the Premises or any part thereof after recovery of possession shall not
release or affect Tenant's liability for damages. Landlord shall in no event be
liable in any way whatsoever for failure to relet the Premises, or in the event
that the Premises are relet, for failure to collect the Rent under such
reletting. All of the damages, which are specified in this Lease, are in
addition to all other damages and costs to which Landlord may be entitled under
the laws of the State of Florida.
(c) After default, the acceptance of the Rent (or any portion
thereof) or failure to re-enter by Landlord shall not be held to be a waiver of
its rights to terminate this Lease, and Landlord may re-enter and take
possession of the Premises as if no Rent had been accepted after such default.
All of the remedies given to Landlord in this Lease in the event of default by
Tenant are in addition to all other rights or remedies to which Landlord may be
entitled under the laws of the State of Florida; all such remedies shall be
deemed cumulative and the election of one shall not be deemed a waiver of any
other or further rights or remedies.
(d) Landlord shall not be deemed to be in default in the
performance of any
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obligation required to be performed by Landlord hereunder unless and until it
has failed to perform such obligation within thirty (30) days after receipt of
written notice thereof from Tenant to Landlord; provided, however, that if the
nature of Landlord's obligations is such that more than thirty (30) days are
required for its performance, then Landlord shall not be deemed to be in default
if it shall commence such performance within such 30-day period and thereafter
diligently prosecutes the same to completion.
21. BANKRUPTCY
If Tenant shall file a voluntary petition pursuant to the Bankruptcy
Code or any successor thereto, or take the benefit of any insolvency act, or be
dissolved, or if an involuntary petition be filed against Tenant pursuant to the
Bankruptcy Code or any successor thereto, or if a receiver shall be appointed
for its business or its assets and the appointment of such receiver is not
vacated within 30 days after such appointment, or if it shall make an assignment
for the benefit of its creditors, then and forthwith thereafter Landlord shall
have all of the rights provided above in the event of nonpayment of the Rent.
22. BROKERAGE FEES
Tenant warrants and represents that it has not dealt with any Realtor,
broker or agent in connection with this Lease except the Broker. Tenant shall
indemnify and hold Landlord harmless from any cost, expense or liability
(including cost of suit and reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other Realtor, broker, or agent in
connection with this Lease or by reason of any act of Tenant.
23. NOTICES
All notices, demands or other communications ("notices") permitted or
required to be given hereunder shall be in writing and, if mailed postage
prepaid by certified or registered mail, return receipt requested, shall be
deemed given three days after the date of mailing thereof or on the date of
actual receipt, if sooner; all other notice not so mailed shall be deemed given
on the date of actual receipt. Notices shall be addressed as follows: (a) if to
Landlord, to the Landlord's Mailing Address and (b) if to Tenant, to the
Tenant's Mailing Address. Landlord and Tenant may from time to time by notice to
the other designate such other place or places for the receipt of future
notices.
24. SECURITY DEPOSIT
Tenant has deposited with Landlord the Security Deposit as security for
the full and faithful performance of every provision of this Lease to be
performed by Tenant. If Tenant defaults with respect to any provision of this
Lease, including payment of the Rent, Landlord may use, apply or retain all or
any part of the Security Deposit for the payment of any Rent, or to compensate
Landlord for any other loss, cost or damage which Landlord may suffer by reason
of Tenant's default. If any portion of the Security Deposit is so used or
applied, Tenant shall, within five (5) days after notice thereof, deposit cash
with Landlord in an amount sufficient to restore the Security Deposit to its
original amount, and Tenant's failure to do so shall be a breach of this Lease.
Landlord shall not be required to keep the Security Deposit separate from its
general funds, nor pay interest to Tenant. 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 and upon Tenant's vacation of the Premises. If the Building is sold,
the Security Deposit may be transferred to the new owner, and Landlord shall be
discharged from further liability with respect thereto. The Security Deposit
shall in no event be considered an advance rental payment, nor a measure of
Landlord's damages.
25. QUIET ENJOYMENT
Tenant, upon paying the Rent and performing all of the terms on its
part to be performed, shall peaceably and quietly enjoy the Premises subject,
nevertheless, to the terms of this Lease and to any mortgage or other agreement
to which this Lease is subordinated.
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26. OBSERVANCE OF LAW
(a) Tenant shall comply with all provisions of law, including
federal, state, county and city laws, ordinances and regulations, building codes
and any other governmental, quasi-governmental or municipal regulations which
relate to the partitioning, equipment operation, alteration, occupancy and use
of the Premises, and to the making of any repairs, replacements, additions,
changes, substitutions or improvements of or to the Premises. Moreover, Tenant
shall comply with all police, fire and sanitary regulations imposed by any
federal, state, county or municipal authority, or made by insurance
underwriters, and shall observe and obey all other requirements governing the
conduct of any business conducted in the Premises.
(b) Notwithstanding the foregoing, it shall be Landlord's
responsibility to comply with all provisions of law, including federal, state,
county and city laws, ordinances and regulations, building codes, and any other
governmental, quasi-governmental or municipal regulations which relate to the
Building insofar as they may require structural changes in the Building,
provided nevertheless, that such changes shall be the responsibility of Tenant
if they are changes required by reason of a condition which has been created by
or at the instance of Tenant, or are required by reason of a default by Tenant
hereunder.
27. LIMITATION OF LANDLORD'S LIABILITY
(a) Tenant shall be limited for the satisfaction of any money
judgment against Landlord solely to Landlord's interest in the Building or the
Complex or any proceeds arising from the sale thereof and no other property or
assets of Landlord or the individual partners, directors, officers, or
shareholders of Landlord shall be subject to levy, execution or other
enforcement procedure whatsoever for the satisfaction of said money judgment.
(b) Landlord's obligations hereunder shall be binding upon
Landlord only for the period of time that Landlord is in ownership of the
Building; and, upon termination of that ownership, Tenant, except as to any
obligations which have then matured, shall look solely to Landlord's successor
in interest in the Building for the satisfaction of each and every obligation of
Landlord hereunder.
28. PARKING
Parking of motor vehicles shall be limited to five (5) parking spaces
per 1,000 rentable square feet of leased space as delineated in the Common
Areas, on a first come - first serve basis. Landlord reserves the right to
implement and enforce reasonable rules and regulations as to parking.
29. COMMON AREAS
All Common Areas, and other areas, facilities and improvements as may
be provided by Landlord from time to time for the general use, in common, by
Tenant and other tenants of the Building or of other buildings, their employees,
agents, invitees and licenses, shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right from time
to time to establish, modify and enforce reasonable rules and regulations with
respect to all such Common Areas, facilities and improvements.
30. AUTHORITY
If Tenant is a corporation (or partnership), each individual executing
this Lease on behalf of said corporation (or partnership) represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation (or partnership) in accordance with the duly adopted
resolution of the Board of Directors of said corporation or in accordance with
the bylaws of said corporation (or under the pertinent partnership agreements),
that any required consents or approvals of third parties have been obtained, and
that this Lease is binding upon said corporation (or partnership) in accordance
with its terms.
31. WAIVER
The failure of either party to insist in any one or more instances upon
the strict performance of any one or more of the obligations of this Lease, or
to exercise any election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one
14
or more obligations of this Lease or of the right to exercise such.
32. ATTORNEYS' FEES
In any action or proceeding which Landlord or Tenant may be required to
prosecute or enforce its respective rights hereunder, the unsuccessful party
agrees to pay all costs incurred by the prevailing party therein, including
reasonable attorneys' fees (including on any appeal).
33. RADON GAS
The following disclosure is included in accordance with Florida law:
Radon is a naturally occurring radioactive gas that, when it has accumulated in
a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your County Public Health
Unit.
34. HAZARDOUS SUBSTANCES
Tenant represents and warrants to Landlord that the activities Tenant
will conduct on the Premises pose no hazard to human health or the environment,
nor do they violate any applicable federal, state or local laws, ordinances,
rules or regulations pertaining to Hazardous Materials (to be hereinafter
defined) or industrial hygiene or environmental conditions ("Environmental
Laws"). Tenant shall not cause or permit the Premises to be used for the
generation, handling, storage, transportation, disposal or release of any
Hazardous Materials except as exempted or permitted under applicable
Environmental Laws; and Tenant shall not cause or permit the Premises or any
activities conducted thereon to be in violation of any applicable Environmental
Laws. Tenant shall acquire and maintain all permits, approvals, licenses and the
like required by Environmental Laws for Tenant's activities on the Premises; and
Tenant shall keep those permits, approvals, licenses and the like current, and
shall comply with all regulations, rules and restrictions relating thereto.
Tenant agrees to indemnify Landlord and hold the Landlord harmless from all
claims, losses, damages, liabilities, fines, penalties and charges and all costs
and expense incurred in connection therewith (including attorneys' fees and
litigation expenses), directly or indirectly resulting in whole or in part from
Tenant's violation of any Environmental Laws applicable to the Premises or to
any activity conducted thereon, or from any use, generation, handling, storage,
transportation, disposal or release of Hazardous Materials at or in connection
with the Premises, or any clean up or other remedial measures required with
respect to the Premises under any Environmental Laws. Tenant shall reimburse
Landlord immediately upon demand for all sums paid and costs incurred by
Landlord with respect to the foregoing matters. This indemnity shall survive the
full performance and expiration of this Lease and shall inure to the benefit of
any transferee of title to the Land. For purposes of this Lease, the term
"Hazardous Materials" shall include any substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"toxic substances", "contaminants", "regulated substances", or any other
pollution under any applicable federal, state or local laws, ordinances, rules
or regulations now or hereafter in effect.
35. SEVERABILITY
If any clause or provision of this Lease is or becomes illegal or
unenforceable because of present or future laws or any rule or regulation of any
governmental body or entity, effective during the Term, the intention of the
parties hereto is that the remaining parts of this Lease shall not be affected
thereby unless such clause or provision is, in the reasonable determination of
Landlord, essential and material to its rights, in which event Landlord shall
have the right to terminate this Lease by notice to Tenant.
36. PROCEEDINGS
TENANT AND LANDLORD BOTH WAIVE A TRIAL BY JURY OF ANY OR ALL ISSUES
ARISING IN ANY ACTION OR PROCEEDING BETWEEN THE PARTIES HERETO OR THEIR
SUCCESSORS, UNDER OR CONNECTED WITH THIS LEASE, OR ANY OF ITS PROVISIONS.
37. BINDING EFFECT
All the terms and provisions of this Lease shall be binding upon and
inure to the benefit of
15
the parties hereto and their respective heirs, legal representatives, successors
and assigns.
38. APPLICABLE LAW
This Lease shall be deemed to have been made in and shall be construed
in accordance with the laws of the State of Florida.
39. AMENDMENTS
This Lease sets forth all the covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the
Premises, Building and Complex, and there are no covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than as are herein set forth. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed by them.
40. CAPTIONS
The captions appearing within the body of this Lease have been inserted
as a matter of convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of this Lease or of any provision hereof.
41. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than the
Rent payment herein stipulated shall be deemed to be other than on account of
the Rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction
(unless Landlord expressly agrees to an accord and satisfaction in a separate
agreement duly accepted by Landlord's appropriate officer of officers), 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 this
Lease. Landlord may receive and retain, absolutely and for itself, any and all
payments so tendered, notwithstanding any accompanying instructions by Tenant to
the contrary, and any such payment shall be treated by Landlord at its option as
being received solely on account of any amounts due and owing Landlord,
including the Rent, and to such items and in such order as Landlord in its sole
discretion shall determine.
42. MISCELLANEOUS
(a) If any provision contained in an Exhibit, Rider or
Addendum is inconsistent with any other provision of this Lease, the provision
contained in said Exhibit, Rider or Addendum shall supersede said other
provision, unless otherwise provided in said Exhibit, Rider or Addendum.
(b) The use of the neuter singular pronoun to refer to either
party shall be deemed a proper reference even though it may be an individual,
partnership, 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 number 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.
(c) This Lease may be executed in several counterparts, all of
which constitute one and the same instrument.
(d) As used in this Lease, any list of one or more items
preceded by the word "including" shall not be deemed limited to the stated items
but shall be deemed without limitation.
(e) The language of this Lease shall be construed according to
its normal and usual meaning and not strictly for or against either Landlord or
Tenant.
(f) If more than one person or entity executes this Lease as
Tenant, each such person or entity shall be jointly and severally liable for
observing and performing each of the terms, covenants, conditions and provisions
to be observed or performed by Tenant.
16
(g) The voluntary or other surrender of this Lease by Tenant
or a mutual cancellation thereof shall not work a merger and shall, at
Landlord's option, either terminate all or any existing subleases or
subtenancies or operate as an assignment to Landlord of any or all of such
subleases or subtenancies.
(h) Neither this Lease nor any memorandum of this Lease shall
be recorded in the Public Records by Tenant without the express written consent
of Landlord. Any such recording by Tenant without such consent shall be deemed a
default by Tenant hereunder.
43. RIGHT OF FIRST OFFER
Provided Tenant is not in Default of this Lease, Tenant shall have a
one-time Right of First Offer on approximately 18,000 square feet to 22,000
square feet (at Landlord's sole discretion) of space adjacent to Tenant (the
Offer Space). Prior to offering the Offer Space for lease to other prospective
Tenants, Landlord shall first notify Tenant in writing that Landlord is offering
the Offer Space for lease. Tenant shall have ten (10) days to accept Landlord's
notice. If Tenant does not respond in writing to Landlord's notice within the
ten (10) day period, Tenant's rights hereunder shall be null and void and Tenant
shall have no further Right of First Offer. If Tenant notifies Landlord in
writing within the ten (10) day period that Tenant intends to lease the Offer
Space, Landlord shall immediately prepare an Amendment to Lease which shall be
executed by Tenant within two weeks of Tenant's receipt of said Amendment.
Tenant shall Lease the Offer Space under the same terms and conditions as
contained in this Lease, with the exception of the Leasehold Improvements, which
will be prorated over the remaining term of this Lease, provided the Offer Space
has not been previously improved. If the Offer Space has been previously
improved, Tenant shall receive a Leasehold Improvement allowance equal to $3.50
per square foot for the Office Space. The Offer Space is identified, together
with the Premises, on Exhibit "A".
44. EXTENSION OPTION
Provided Tenant is not in Default of this Lease, Tenant shall have the
right to extend this Lease for a period of five (5) years at market rents and
other terms as determined by Landlord, provided Tenant gives Landlord at least
nine (9) months prior written notice of Tenant's intent to negotiate terms to
extend this Lease. Landlord shall, within fifteen (15) days of receipt of
Tenant's notice of Tenant's request for extension terms, prepare a renewal offer
(the Renewal Offer) for Tenant. Tenant and Landlord shall negotiate in good
faith to reach mutually agreeable terms for the extension period. If, for any
reason a Lease Amendment for the Lease Extension is not fully executed after
sixty (60) days after Tenant's receipt of Landlord's Renewal Offer, Tenant's
rights to extend this lease shall expire.
45. RIGHT OF FIRST OFFER - PROPOSED BUILDING, ADJACENT TO THE NORTH
Provided Tenant is not in Default of this Lease and further provided
Landlord constructs an office building on the site adjacent to the Building to
the North (the Proposed Building), Tenant shall have a Right of First Offer to
lease up to 50,000 square feet of space in the Proposed Building. Prior to
offering the Proposed Building for lease to other tenants, Landlord shall first
offer the Proposed Building to Tenant by giving Tenant written notice of
Landlord's intent to lease the Proposed Building. Terms and conditions of the
lease for the Proposed Building shall be contained in Landlord's Right of First
Offer notice for the Proposed Building. Tenant shall have thirty (30) days to
notify Landlord in writing that Tenant accepts Landlords Right of First Offer
for the Proposed Building. If Tenant accepts Landlord's Right of First Offer for
the Proposed Building, Landlord and Tenant shall immediately (in no event later
than thirty (30) days after Landlord receives Tenant's acceptance of Landlord's
offer) enter in to a new lease agreement for the Proposed Building.
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EXHIBIT "A"
PLAN SHOWING THE PREMISES
[To be inserted]
18
EXHIBIT "B"
RULES AND REGULATIONS
The Rules and Regulations set forth in this Exhibit shall be and hereby
are made a part of the Lease to which they refer. Whenever the term "Tenant" is
used in these Rules and Regulations, it shall be deemed to include Tenant, its
employees or agents and any other persons permitted by Tenant to occupy or enter
the Premises. Rules and Regulations may from time to time by modified by
Landlord, as the Landlord deems appropriate. All changes and revisions will be
an integral part of the Lease. The Property Manager is located at . All notices
to the Property Manager shall be given at the above address or by contacting the
Property manager by telephone. The name, address and/or phone number of the
Property Manager may be changed from time to time by written notice form
Landlord to Tenant.
1. ACCIDENTS AND DAMAGES. In the event of damage to the Leased Premises
or the Building or injury on the Property, Tenant shall immediately notify the
Property Manager. After normal operating hours, call the Property Manager and
advise the answering service who will contact the appropriate management
personnel.
2. ADMITTANCE TO LEASED PREMISES. Property Management, maintenance,
security, janitorial and other agents authorized by the Landlord shall be
allowed admittance to the Leased Premises at all times.
3. APPEARANCE. Tenant shall not allow anything to be placed within or
near any partitions, corridors, windows or doors which shall be unsightly or
detrimental to the appearance of the Building in the Landlord's opinion and
shall, upon request, immediately correct such violation.
Except as permitted by Landlord, Tenant shall not xxxx upon, paint
or attach signs upon, cut, drill into, drive nails or screws into, or in any way
deface the walls, ceilings, partitions or floors of the Leased Premises or of
the Building, and the repair of any defacement, damage or injury caused by
Tenant shall be charged to Tenant.
4. BICYCLES/OTHER VEHICLES. Bicycles or other vehicles shall not be
permitted anywhere inside or on the sidewalks outside of the Building, except in
those areas designated by landlord.
5. BUILDING SECURITY. Landlord may restrict access to and from the
Building after normal operating hours for reasons of Building security.
Security, janitorial and maintenance personnel are not permitted to unlock
Tenant's Leased Premises to admit Tenant, its employees, agents or visitors. No
individual security system will be allowed in the Leased Premises without the
written consent of Landlord.
6. CAPTIONS. The caption for each of these Rules and Regulations is
added as a matter of convenience only and shall be considered of no effect in
the construction of any provision or provisions of these Rules and Regulations.
7. CHAIR PADS. During the entire term of this Lease, Tenant shall, at
its expense, install and maintain under all caster chairs a chair pad or carpet
casters to protect the carpeting.
8. COMMON AREA. The sidewalks, entries, passages, corridors, halls,
lobbies, and other common facilities of the Building shall be controlled by
Landlord and shall not be obstructed by Tenant or used for any purpose other
than ingress and egress to and from the Leased Premises. Tenant shall not place
any item in any of such locations, whether or not any such item constitutes an
obstruction, without the prior written consent of Landlord. Landlord shall have
the right to remove any obstruction or any such item without notice to Tenant
and at the expense of Tenant.
9. DELIVERIES. Tenant shall insure that all deliveries of supplies to
the Leased Premises shall be made only through the delivery entrance designated
by during the normal operating hours of the Building. If any person delivering
supplies to Tenant damages any part of the Building, Tenant shall pay to
Landlord, upon demand, the amount required to repair such damage.
19
10. EMERGENCY CONTACT PROCEDURE. Tenant shall provide in a timely
manner to Landlord the name of an employee or agent of Tenant to be contacted by
Landlord in the event of an emergency, whether during or after normal operating
hours. Such information must be at all times kept current and accurate.
Emergency procedures and policies may be developed, issued and
revised by the Landlord at any time and will become an integral part of these
Rules and Regulations and the Lease to which they refer.
11. EMPLOYEES, VISITORS. Tenant shall be responsible for all behavior
and adherence to all Rules and Regulations by any of Tenant's employees,
visitors and agents. Tenant shall require strict adherence to such Rules and
Regulations and shall allow no obnoxious or offensive conduct.
12. EXCESSIVE NOISE, ANIMALS. No animals, except Seeing Eye dogs, shall
be allowed in the Building. No person shall disturb the occupants of the
Building by the use of any radio or musical instrument or by the making of loud
or improper noises.
13. HAZARDOUS OPERATIONS AND ITEMS. tenant shall not install or operate
any steam or gas engine or boiler, or carry on any mechanical business in the
Leased Premises without Landlord's prior written consent, which consent may be
withheld in Landlord's absolute discretion. The use of oil, gas or inflammable
liquids for heating, lighting or any other purpose is expressly prohibited.
Explosives or other articles deemed extra hazardous shall not be brought into
the Building.
14. HEAVY ARTICLES. No safe or article the weight of which may, in the
reasonable opinion of Landlord, constitute a hazard or damage the Building or
its equipment, shall be moved into the Leased Premises. Safes and other heavy
equipment, the weight of which will not constitute a hazard or damage the
Building or its equipment, shall be moved into, from or about the Building only
during such hours and in such manner as shall be prescribed by Landlord, and
Landlord shall have the right to designate the location of such articles in the
Leased Premises.
15. JANITORIAL. Ordinary and customary janitorial services in the
parking and landscaped areas, as determined by landlord, are provided in
accordance with the Lease. Any services required by Tenant in excess of those
provided by Landlord shall be at Tenant's cost. For any specific need or
inquiry, contact the Property Manager. Absolutely no cups or cans containing
liquids are to be placed in any trash receptacles, unless in a special container
so approved by Landlord. Janitors have been instructed not to empty any trash
receptacles containing liquids. Stains and other damage caused by spilled
liquids will be charged to Tenant.
16. KEYS AND LOCKS. No additional lock or locks shall be placed by
Tenant on any door in the Building and no existing lock shall be changed unless
written consent of Landlord shall first have been obtained. A reasonable number
of keys to the Leased Premises will be furnished by landlord. Duplicate keys
shall be made by the Landlord at a reasonable cost to the Tenant. Tenant shall
make all requests to re-key to Landlord, who shall make or cause to have made
said changes within five (5) working days. If Tenant wishes such work performed
on an earlier priority, Landlord may charge for such work on an overtime cost
basis. At the termination of this tenancy, Tenant shall promptly return to
Landlord all keys and lock combinations to offices, restrooms, safes and
cabinets.
Landlord and its agents, including Property Management, security
and the janitorial service, may at all times keep a pass key to the Leased
Premises.
17. MAINTENANCE/REPAIRS AND ALTERATIONS. Contact the Property
management to report all requests for maintenance and repairs. As all work is
pre-scheduled, do not ask maintenance personnel directly to perform work. After
normal operating hours, call the Property Manager and advise the answering
service who will, in turn, contact the appropriate management personnel.
All alterations, improvements, telegraphic or telephonic
connections, installation or electrical wiring, equipment, or other changes in
the configuration of the Leased Premises shall require written approval of
Landlord as provided in the Lease and plans of proposed changes must
20
be presented in writing to Landlord detailing the specifications and layout.
Any repairs, maintenance and alterations required or permitted
to be done by Tenant under the Lease shall be done only during the normal
operating hours of the Building unless Landlord shall have first consented to
such work being done outside of such times. If Tenant desires to have such work
done by Landlord's employees on Saturdays, Sundays, holidays or at other times
outside of normal operating hours, Tenant shall pay the extra cost of such
labor.
18. MAIL DELIVERY/COLLECTION. The mail delivery will be made by the
United States Postal Service by means and at a location acceptable to the United
States Postal Service.
19. MOVING. Furniture and equipment shall be moved in or out of the
Building through the delivery entrance designated by Landlord during such hours
and in such manner as may be prescribed by Landlord. Landlord shall have the
right to approve or disapprove the movers or moving company employed by Tenant
and Tenant shall cause such movers to use only the loading facilities designated
by Landlord. If Tenant's movers damage the Building, Tenant shall pay to
Landlord upon demand, the amount required to repair such damage. All boxes,
refuse and other trash created by the move shall be removed from the Property by
Tenant or the moving company.
20. OPERATING HOURS. The normal hours of the Building are from 8:00
a.m. until 6:00 p.m., Monday through Friday, and from 9:00 am until 1:00 p.m. on
Saturday, excluding the legal holidays of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
21. PARKING. Vehicles shall be parked only in areas and spaces
designated for such purpose. No vehicle shall be parked on lawns, sidewalks,
driveways or any area except within marked parking spaces. There are no assigned
spaces other than those reserved for visitors and handicapped persons. Tenant is
responsible for its employees', agents' and visitors' adherence to Rules and
Regulations governing parking. Landlord reserves the right to assign spaces and
revise parking rules, cost and location in the future.
22. SERVICES. Landlord shall provide those services described in the
Lease. Additional services required by Tenant, such as special air conditioning
for sensitive equipment, shall be provided by Landlord only if compatible with
Building design and only if the entire cost of installation, maintenance and
utility services is paid by Tenant.
23. SIGNAGE. No signs, symbols or identifying marks shall be placed
upon the Building or in the halls, elevators, staircases, entrances, parking
areas or other parts of the Property or upon the doors or walls without prior
written approval of Landlord. Landlord agrees to provide and install, at
Tenant's cost, one Tenant identification sign on the Leased Premises. All
letters and numerals shall be in the Building standard graphics, and no other
shall be used or permitted.
24. SOLICITATION/FOOD AND BEVERAGES. Landlord reserves the right to
restrict, control or prohibit canvassing, soliciting and peddling within the
Building. Tenant shall not grant any concessions, licenses or permission for the
sale or taking of orders for food or services or merchandise in the Leased
Premises. Only persons approved by Landlord shall be permitted to serve,
distribute or deliver food and beverages within the Building, or to use the
elevators or public areas of the Building for that purpose.
25. TRASH. All ordinary trash shall be placed in receptacles provided
by Tenant on the Leased Premises, or in receptacles provided by Landlord for the
Building. Empty boxes that are to be thrown away must be broken down. All trash
must be bagged and compacted as much as possible. Only ordinary types and
quantities of trash shall be removed by the janitorial personnel. Extraordinary
trash, as determined by Landlord, shall be removed from the Leased Premises,
Building and Property by Tenant at Tenant's expense.
21
EXHIBIT "C"
SIGN CRITERIA
Tenant shall have the right, at Tenant's expense (which may be deducted from
Tenant's Leasehold Improvement Allowance), to place Tenant's name in a prominent
location on a monument sign, either at the entrance to the Building or in front
of Tenant's Premises (at Landlord's election).
The size, color and other design characteristics of all exterior signs will be
at Landlord's sole discretion.
[To be inserted]
22
RIDER
CONSTRUCTION OF LEASEHOLD IMPROVEMENTS
1. LANDLORD'S WORK. Landlord shall construct and install
improvements in, on and to the Premises in accordance with the preliminary plans
and specifications set forth on Exhibit A, attached hereto and made a part of
the Lease Agreement, as modified and supplemented by the final plans and
specifications which are to be attached and made a part of the Lease Agreement
in accordance with paragraph 2 hereinbelow (hereinafter referred to as
"Landlord's Work").
2. PREPARATION AND APPROVAL OF FINAL PLANS AND SPECIFICATIONS.
(a) PREPARATION OF FINAL PLANS AND SPECIFICATIONS. Tenant
shall, at Tenant's sole cost and expense, furnish Landlord with all data and
information Landlord requests to prepare final plans and specifications for the
improvements Tenant desires to have constructed and installed on the Premises.
After receipt of such data and information from Tenant, Landlord shall cause
final plans and specifications to be prepared consistent with the preliminary
plans and specifications and submit them to Tenant for Tenant's approval.
(b) APPROVAL OF FINAL PLANS AND SPECIFICATIONS. Tenant shall
have three (3) business days following Tenant's receipt of such final plans and
specifications in which to notify Landlord of any changes or modifications
Tenant desires. If Landlord receives no such notice within said three (3)
business day period, Tenant shall be deemed to have approved the final plans and
specifications without change or modification. Any changes requested by Tenant
during said three (3) business day period shall be made to the plans and
specifications only upon Landlord's consent and approval thereto.
(c) ATTACHMENT AS SCHEDULE. Upon Landlord and Tenant agreeing
on the final plans and specifications, or upon Tenant's failure to notify
Landlord of any changes Tenant desires, each party shall sign each page of two
(2) sets thereof (except that if Tenant fails to notify Landlord of any changes
during said three (3) business day period as provided for hereinabove Landlord
may certify that Tenant so failed to notify Landlord in lieu of Tenant's
signature). One set of said final plans and specifications so signed (or
certified) shall be attached to and made a part of this Lease Agreement.
(d) CHANGES.
(i) If any change to the final plans and
specifications are required by any governmental authority, Landlord shall
promptly notify Tenant in writing of the required changes. If Tenant does not
object to such changes within two (2) business days following Tenant's receipt
of such notice, Tenant's approval thereof shall be conclusively presumed for all
purposes.
(ii) If Tenant requests any changes or modifications
to the final plans and specifications at any time after such final plans and
specifications have been approved as described hereinabove, Landlord must agree
in writing to any such requested changes or modifications before the same shall
become effective. Tenant shall pay Landlord for all costs and expenses related
to such changes (including, without limitation, all architectural and
engineering expenses; the cost of all permits and inspection fees; Landlord's
building and contracting costs in connection with effectuating the requested
changes; and twenty-five percent (25%) of such building and contracting costs as
a management fee) upon approval of such change or modification by Landlord. If
Tenant fails to make payment within three (3) business days following such
approval, Tenant shall be deemed to have withdrawn its request for such change
or modification.
(e) COOPERATION. Throughout the process of preparing final
plans and specifications and of obtaining the necessary governmental permits and
approval, each party shall act diligently and in good faith and shall cooperate
with the other and with governmental agencies in whatever manner may be
reasonably required.
3. CONSTRUCTION AND COMPLETION. Following the approval of the
final plans and specifications Landlord shall apply for and endeavor to obtain
necessary building permits and other governmental permissions for construction
of the improvements. Following issuance of such necessary building permits and
other governmental permissions, Landlord shall commence construction in
accordance with the final plans and specifications. Landlord shall endeavor to
substantially complete Landlord's Work and to tender delivery of the Premises to
Tenant within 90 calendar days after the date construction has commenced.
4. ACCEPTANCE OF PREMISES. By taking possession of the Premises,
Tenant shall be deemed to have acknowledged that Landlord's Work substantially
conforms to the final plans and specifications and that the Premises are in good
condition and repair and are suitable for Tenant's intended use thereof.
5. LEASEHOLD IMPROVEMENTS ALLOWANCE. The Leasehold Improvements
Allowance shall be applied by Landlord against the costs of designing, planning,
managing and constructing Landlord's Work. Landlord shall act as Construction
Manager and shall receive a fee of $.50 per
23
rentable square foot for construction management services, to be paid from the
Leasehold Improvement Allowance. In the event the costs incurred in connection
with the design, planning, managing and construction of Landlord's Work exceeds
the Leasehold Improvements Allowance, Tenant shall be responsible for bearing
and paying such excess costs (the "Excess Costs"), as follows:
(a) Tenant shall pay to Landlord, prior to the commencement of
construction of Landlord's Work, an amount equal to fifty percent (50%) of such
Excess Costs (as then estimated by Landlord).
(b) After substantial completion of Landlord's Work but prior
to occupancy of the Premises by Tenant, Tenant shall pay to Landlord an amount
equal to ninety percent (90%) of the Excess Costs (as then estimated by
Landlord), less payments received by Landlord pursuant to subparagraph (a)
above.
(c) As soon as Landlord prepares its final accounting of
actual costs of designing, planning and constructing the Landlord's Work and
submits same to Tenant, Tenant shall pay to Landlord the entire unpaid balance
of the actual Excess Costs based upon the final costs certified by Landlord. All
Excess Costs payable by Tenant hereunder shall constitute additional Rent due
hereunder at the time specified herein and failure to make such payment when due
shall constitute a default by Tenant under this Lease. Except for the Leasehold
Improvements Allowance provided by Landlord, all installations and improvements
now or hereafter placed in or on the Premises shall be for Tenant's account and
at Tenant's cost and expense.
6. PROPERTY OF LANDLORD. All of the improvements made to the Premises
as a result of Landlord's Work and Tenant's Work, except trade fixtures
installed by Tenant, shall be and become the sole property of Landlord upon
completion thereof and shall be deemed a part of the Premises as of the
Commencement Date.
LANDLORD
UNIVERSITY SCIENCE CENTER, INC.
By: /s/
----------------------------
Name: Cabot X. Xxxxxx, Xx.
--------------------------
Title: President
-----------------------
TENANT
THE OTHER PHONE COMPANY, D/B/A ACCESS ONE COMMUNICATIONS
By: /s/
---------------------
Name: Xxxxx Xxxxxx
---------------------
Title: President
---------------------
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