EXHIBIT 10.18
COMMERCIAL LEASE
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THIS COMMERCIAL LEASE is made and entered into this 15 day of February,
1996 by and between Catexor Limited Partnership-I (the "Lessor"), a Florida
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Limited partnership, whose address is 0000 XX 0xx Xxx., Xxxxx Xxxxxxx 00x00-0000
and Hiway Technologies, Inc. (the "Lessee"), a Florida Corporation (state of
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origin/type of entity), whose address is 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000.
WITNESSETH:
1. Lease of Premise. In consideration of the mutual promises, covenants
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and conditions herein contained, and the rent reserved by Lessor, Lessor hereby
leases, lets and demises unto Lessee, and Lessee hereby rents of and from
Lessor, the following premises (the "Premises").
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Suite No. 200 of the commercial building (the "Building") described on
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Exhibit "A" with a street address of 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxx 00000 located within the development known as Amtec Center (the
"Project") described on Exhibit "B",
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together with easements and improvements appurtenant thereto, but subject to
easements, restrictions and other matters of record. The actual locations,
numbers, sizes and dimensions of all improvements, landscaping and parking areas
may deviate from the descriptions thereof shown on the Exhibits hereto.
2. Term. The term of this Lease (the "Term") shall begin on the date this
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Lease is executed and continue until the Second (2nd) anniversary (the
"Termination Date") of the first to occur of the following (the "Commencement
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Date"):
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A. The date upon which Lessee takes possession of the Premises;
B. Five days after a certificate of occupancy is issued for the
improvements described in Exhibit "C" hereof (the "Workletter"); or
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C. _____ days from the date hereof,
D. March 1, 1996.
unless this Lease is sooner terminated, or extended, pursuant to the terms and
conditions hereof. If Lessor is unable to give possession of the Premises on the
Commencement Date by reason of the holding over of any tenant, or because
construction, repairs or improvements not completed, all Rent and other payments
due on the Commencement Date shall xxxxx for the period that possession by Lease
is delayed. If Lessee causes such delay, Rent and such other payments shall not
xxxxx. Notwithstanding the foregoing, Lessor shall not be responsible for direct
or consequential damages because of its inability to furnish possession to
Lessee by any particular date. In the event of any such delay, the Termination
Date shall not be extended.
3. Holding Over. In the event of holding over by Lessee after explanation
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of the Term or the earlier termination of this Lease without the written consent
of Lessor, Lessee shall pay as liquidated damages for the entire holdover
period, on a per diem basis, double (i) the greater of Rent or the then current
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fair market monthly rental of the Premises and (ii) any Additional Rent due
under this Lease (calculated on the basis of Rent with respect to the month
immediately preceding the month in which expiration or termination occurs) for
the entire holdover period. In the event of any unauthorized holding over,
Lessee shall also indemnify Lessor against all claims for damages by any other
tenant to whom Lessor may have leased all or any part of the Premises covered
hereby effective after the termination of this Lease. No payments of money by
Lessee after the expiration of the Term or the earlier termination of this Lease
will reinstate, continue or extend the Term; reduce the liability of Lessee to
Lessor for damages; or affect any termination notice given by Lessor to Lessee.
No extension of the Term will be valid unless and until the same will be reduced
to writing and signed by both Lessor and Lessee.
4. Construction of Improvements. Lessor has completed or will complete
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construction of the Building in which the Premises are located. The Workletter
attached hereto as Exhibit "C" describes the leasehold improvements to be made
in and to the Premises by Lessor and/or Lessee, together with a
/s/ SHA JR
designation of the person(s) or entity(ies) by whom such improvements are to be
constructed and/or installed, Except for completion of any remaining items which
are Lessor's responsibility under the Workletter, and except for defects which
are not observable upon a reasonable inspection and about which Lessee notifies
Lessor in writing within six months after taking possession of the Premise, the
taking of possession of the Premises by Lessee will be conclusive evidence as to
Lessee that: (a) the Building and each and every part and appurtenance thereof
are in good and satisfactory condition; and (b) Lessee waives any defects in the
Premises and all other parts of the Building and the Project.
5. Rent.
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A. Annual Rent. Lessee agrees to pay Lessor, without demand, notice,
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set-off or deduction, rent ("Rent") as adjusted annually for increases in the
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cost of living as set forth in subparagraph B hereof, beginning on the
Commencement Date. Rent shall be initially Seventeen Thousand One Hundred Sixty
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Nine and 60/100 Dollars $17,169.60) annually. Lessee's covenant to pay Rent and
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other sums due hereunder are independent of Lessor's covenants hereunder and
Lessee shall have no right to withhold any such payments on account of any
alleged failure by Lessor to perform or comply with any of the terms of this
Lease.
B. Annual Rent per Paragraph 5.A. of the Lease shall increase on each
anniversary date by (5%).
C. Method of Payment. Rent shall be payable in equal monthly
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installments in advance on the first (1st) day of each calendar month of the
Term to Lessor at the following address:
Catexor Limited Partnership I
Lease No. __________ c/o CB Commercial
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(the "Payment Address"), or at such other place Lessor may from time to time
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designate in writing. Such Rent shall be due automatically and without notice
from Lessor. If the Commencement Date is not on the first (1st) day of a
calendar month, Rent for the period between the Commencement Date and the first
(1st) day of the following month shall be apportioned, on a per diem basis, at
the monthly rental rate hereinabove provided, and shall be payable on the
Commencement Date. Lessee shall not pay more than two monthly installments of
Rent in advance (the current month and one additional month) without the prior
written consent of all mortgagees of the Project.
D. Use, Excise, Sales and Other Taxes. In addition to the Rent and
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other amounts herein reserved, Lessee shall also pay the amount of any use,
excise, sales or other tax on any rental (as defined by the appropriate
governmental entity), including, but not limited to, sales tax on Operating
Costs, and other amounts due hereunder imposed by the State of Florida and any
federal, state or local
/s/ SHA JR
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government or agency. Such taxes and other assessments shall be paid as
Additional Rent at the same time and in the same manner as each payment of Rent.
Lessee shall pay before delinquency any and all taxes and assessments, including
licenses, sales, business corporation or other taxes, fees or charges levied or
imposed upon its business operations in the Premises, including, but not limited
to, taxes or assessments imposed upon trade fixtures, leasehold improvements,
merchandise and other personality in or upon the Premises.
E. Expenditures by Lessor. If Lessor shall make any expenditure for
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which Lessee is liable under this Lease, the amount thereof shall be deemed
Additional Rent due and payable by Lessee with the succeeding installment of
Rent (unless some other date is expressly provided herein for payment of such
amount) together with interest thereon at the rate per annum equal to five
percent plus the prime rate, as the same is announced from time to time by the
Chase Manhattan Bank, N.A., at its principal place of business in New York City
or, if lower, the highest rate permitted by applicable law (the "Applicable
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Interest Rate").
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F. Additional Rent. All amounts payable by Lessee under this Lease in
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addition to Rent or as Additional Rent shall be payable and recoverable in the
same manner as Rent.
6. Security Deposit. Lessee has deposited with Lessor, and Lessor hereby
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acknowledges receipt of, $ One Thousand Four Hundred Thirty and 80/100 Dollars
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($1,430.80) (the "Security Deposit") which shall be held by Lessor,
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without accrual of Interest, as security for the faithful performance by Lessee
of all of the terms of this Lessee and not as an advance rent deposit or a
measure of Lessor's damages in the case of Lessee's default. Such Security
Deposit shall not be mortgaged, assigned, transferred or encumbered by Lessee
without the express prior written consent of Lessor. If Lessee shall fail to
perform any of the terms of this Lease, then Lessor, at its option and without
prejudice to any other remedy which Lessor may have on account thereof, may
appropriate and apply all or any part of the Security Deposit toward the payment
of any Rent or additional sum due hereunder or to any loss or damage sustained
by Lessor due to such breach on the part of Lessee; and Lessee shall forthwith
upon demand restore the Security Deposit to the original sum deposited. Any
funds paid by Lessee to Lessor as part of the Security Deposit or as a deposit
or advance pursuant to the terms of this Lease, or any exhibit, addendum or
modification hereto, may be commingled with other funds of Lessor and need not
be placed in trust, deposited in escrow or otherwise held in a segregated
account. Should Lessee comply with all of the terms hereof and promptly pay all
of the rentals and all other sums payable by Lessee to Lessor as they become
due, the Security Deposit shall be returned in full to Lessee within 30 days
after the end of the Term. In the event of a bankruptcy or other creditor/debtor
proceeding against Lessee, the Security Deposit shall be deemed to be first
applied to the payment of Rent and other charges due Lessor for all periods
prior to the filing of such proceedings. Lessor may deliver the Security Deposit
and any other deposit made hereunder by Lessee to the purchaser of Lessor's
interest in all or any part of the Project and thereupon Lessor shall be
discharged from any further liability with respect to such deposit; and this
provision shall also apply to any subsequent transferee of Lessor.
7. Operating Costs.
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A. Definitions. In addition to Rent described in Article 5 hereof,
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and other amounts due hereunder, beginning on the Commencement Date Lessee shall
pay as Additional Rent its pro rata share of all expenses, costs and
disbursements of every kind and nature which Lessor shall pay or be obligated to
pay because of or in connection with the ownership, operation and maintenance of
the Building, including, but not limited to, the following (the "Operating
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Costs"):
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(1) Services. The cost of providing the services and maintaining,
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repairing and managing the Common Areas (as hereinafter defined),
including, without limitation, supplies; professional fees; service
contracts; employees' wages, taxes, and benefits; reasonable management
fee; utilities not separately metered to the Premises; garbage collection
and waste removal; security expenses; pest control; window cleaning and
landscaping.
(2) Taxes and Assessments. Any real estate taxes, assessments of
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any kind, sewer rents, rates and charges, parking taxes, and other federal,
state or local government charges, general, ordinary or extraordinary,
which may now or hereafter be levied or assessed against the Building and
the Project Common Areas (collectively the "Taxes"). In the event such
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Taxes are not separately assessed, Lessor shall reasonably determine the
amount of the applicable tax attributable to the Building and the Project
Common Areas. If at any time during the Term (or any renewal or extension
thereof) the method of taxation then prevailing is altered to impose taxes
directly upon Lessor in place or partly in place of the Taxes, then all
such new taxes imposed directly upon Lessor shall be included within
Operating Costs.
(3) Insurance. All premiums for public liability, fire and
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extended coverage or all risk, business interruption, and/or any other
insurance coverage which may reasonably be carried by Lessor with respect
to the Building and the Project Common Areas.
/s/ SHA JR
3
(4) Capital Investment Items. Contribution for amortization of
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the cost of all capital investment items which are primarily for the
purposes of increasing the operating efficiency of the Building or the
Project Common Areas, reducing Operating Costs, improving controlled access
to the Building or the Project, or attempting to satisfy what may be
required by any governmental authority. The amount of the annual
contribution shall be determined by using an amortization schedule and
applying the useful life of the item (as determined under I.R.S.
regulations for the applicable year or by any other standard reasonably
adopted by Lessor) and the Applicable Interest rate in accordance with
generally accepted accounting principles.
Lessee's pro rata share of such Operating Costs shall be in the same ratio that
Leasable area of the Premises bears to the Usable Area of the Building. The
"Leasable area of the Premises" is 2336 square feet. The Usable Area of the
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Building is 180,819 square feet. "Building Common Areas" shall include (a)
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automobile parking areas, driveways, courtyards, plazas and footways shown on
Exhibit "A", if any (if not included in Project Common Areas); (b) elevator,
lobby and stairway areas; (c) elevators; (d) all corridors shared by more than
one tenant; (e) all restrooms shared by more than one tenant; (f) all the
exterior walls of the Building; and (g) interior walls and areas shared by all
tenants in the Building. "Project Common Areas" shall mean such portion of the
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Project which Lessor from time to time designate as Project Common Areas and
which benefit of are arguably for the use of tenants, owners and occupants of
the Project. Project Common Areas may include (a) automobile parking areas,
driveways and footways shown on Exhibit "B" which are not maintained by and at
the expense of any tenant or occupant of the Project pursuant to a separate
agreement with Lessor and (b) open or landscaped areas shown on Exhibit "B"; and
(c) any other areas so designated by Lessor. "Common Areas" shall collectively
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mean the Building Common Areas and the Project Common Areas. Lessee's prorata
share is 1.29% (2336 sf/180,819 sf).
B. Annual Budget. Lessor shall, prior to January 1st of each year,
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provide Lessee with an estimate of the Operating Costs for the next calendar
year, which estimate shall be prepared by Lessor using the latest information
available. Lessee shall pay to Lessor with each monthly installment of rent
Additional Rent equal to one twelfth (1/12th) of Lessee's annual pro rata share
of the estimated Operating Costs based upon the budget for that calendar year.
Lessor shall within ninety (90) days after the close of each calendar year
during the Term give Lessee a statement of such year's actual Operating Costs
with a comparison of the estimated Operating Costs for the previous year (the
"Actual Costs Statement"). Within thirty (30) days after the delivery of the
Actual Costs Statement, Lessee shall be entitled to take a credit in the same
amount of any overpayment against the next installment of Rent due or, if
appropriate, Lessee shall pay Lessor, a lump sum payment of the difference
between Lessee's pro rata share of estimated Operating Costs for the previous
calendar year and Lessee's pro rata share of the actual Operating Costs for such
year. Should this Lease commence or terminate any other time than the first day
of a calendar year, the lump sum payment adjustment shall be calculated by using
a fraction, the numerator of which is the number of days of the Term during the
commencement or termination year, as the case may be, and the denominator of
365. During the last full or partial calendar year during the Term, Lessee's pro
rata share of Operating Costs shall be based solely upon the estimate of
Operating Costs prepared by Lessor for such calendar year. Lessee's Operating
Costs shall be fixed at $3.25 psf for the first year of the lease term.
8. Use.
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A. General Use Restrictions. Lessee shall use the Premises only for
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General office use (the "Permitted Uses") and shall not leave the Premises
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vacant or suffer or permit any waste or mistreatment thereof. Throughout the
Term, Lessee shall, at its own expense, comply with all laws, ordinances,
orders, rules and regulations of any municipal, county, state or federal
governmental authority or other governmental authority having or claiming
jurisdiction over the Project, Lessee or Lessor (a "Governmental Authority"),
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and shall obtain all licenses and permits required with respect to the Permitted
Uses. Lessor, at its sole option, may cancel this Lease if Lessee fails to
provide the applicable municipality's (and/or, if applicable, county's) written
approval (i.e. occupational license) of Lessee's intended use of the Premises.
If during the Term, any law, regulation or rule requires that an alteration,
repair, addition or other change be made to the Premises, such work is to be
done at Lessee's expense. Lessee also agrees to abide by, and cause its agents,
employees, licensees and invitees to abide by, the rules and regulations
promulgated by Lessor, from time to time as amended. Lessor shall not be liable
to Lessee for the violation of any rules and regulations by any other tenant or
person, and the failure to enforce any such rules and regulations against Lessee
or any other tenant shall not constitute a waiver thereof by Lessor. A copy of
the existing rules and regulations is attached hereto and made a part hereof as
Exhibit "D". In the event of any conflict between the provisions of this Lease
and the rules and regulations, the provisions of this Lease shall control.
B. Park Covenants. If the Project is located in, is part of, or
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subsequent to the date hereof is incorporated into any office park, industrial
park, business park or similar entity (the "Park"), this Lease shall be subject
to all of the terms, covenants, restrictions, development criteria or other such
regulations for the Park (the "Covenants"). Lessee hereby accepts its leasehold
estate subject to such Covenants and agrees to conform and comply with all
provisions contained therein or to allow Lessor or the declarant of the
Covenants to fulfill all obligations imposed pursuant thereto. Lessee
/s/ SHA JR
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shall pay, as part of its pro rata share of Operating Costs (as hereinafter
defined), its proportionate share of any costs imposed upon the Project as a
result of the Project's association with the Park including, but not limited to,
owner's association fees, maintenance costs and real estate taxes associated
with any common areas of the Park.
9. Lessor's Duty to Maintain and Repair.
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A. Services to Lessee. Lessor agrees to use reasonable efforts to
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cause public utilities to furnish electricity and water necessary for operation
of the Premises and the Building. Lessor also agrees to use all reasonable
efforts to provide (as a part of Operating Costs) the following services (the
"Services") to Lessee while Lessee is occupying the Premises (a) routine
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maintenance and electrical lighting service for all Common Areas; (b) central
heat and air conditioning for all interior Building Common Areas from 8:00 A.M.
to 6:00 P.M. Monday through Friday (the "Building Hours"); (c) cold water at
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points of supply provided for general use of tenants of the Building; (d)
routine maintenance to the roof, structure and exterior walls of the Building,
reasonable wear and tear expected by both parties, including exterior painting
of the Building and resurfacing of parking lots as necessary (Lessor is not
responsible for maintaining windows, plate glass, doors, special storefronts or
office entries); and (e) elevator service to the Premises, if applicable,
twenty-four (24) hours a day, every day of the year, except during periods of
servicing and repair. If Lessor shall fail to any extent to furnish any services
described in this Lease, Lessor shall not be liable for damages to either person
or property, nor shall such failure be construed as an eviction of Lessee nor
relieve Lessee from any covenant or agreement hereof, including but not limited
to the payment of Rent, Additional Rent and Operating Costs. If any Building
machinery or equipment breaks down or otherwise ceases to function properly,
Lessee shall have no claim for rebate of rents or damages on account of an
interruption in service occasioned or resulting therefrom.
B. Repairs. Lessor shall not be obligated to repair the roof or any
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other part of the Premises until notice of the need for such repairs is given to
Lessor by Lessee. Lessor shall have a reasonable opportunity to repair the roof
or other part of the Premises after receiving notice from Lessee. Lessor shall
not be liable to Lessee or to any third parties for damages or injuries
occurring by reason of the need for such repairs. Further, Lessor shall not be
liable for or required to make any repairs, or perform any maintenance, to or
upon the Premises which are required by, related to or which arise out of
negligence, fault, misfeasance or malfeasance of and by Lessee, its employees,
agents, invitees, licensees or customers, in which event Lessee shall be
responsible therefor. Subject to additional limitations set forth elsewhere in
this Lease, Lessor's liability with respect to any defects, repair or
maintenance for which Lessor is responsible under this Lease shall be limited to
the cost of such repairs or maintenance or the curing of such defect.
10. Lessee's Repair and Maintenance Obligations.
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A. Duty to Repair. Lessee shall be liable for and required to make
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any repairs, perform any maintenance, and satisfy any claims with respect to the
Project, including the Premises, that are required by, related to, or which
arise from or grow out of negligence, fault, misfeasance or malfeasance of
Lessee, its employees, agents, invitees, licensees or customers, unless Lessor
shall elect by written notice to Lessee to make such repairs, perform such
maintenance or satisfy such claims, in which event Lessee shall repay to Lessor
the cost thereof (plus an additional charge of 15%) within three days of Lessors
written demand.
B. Duty to Maintain. Lessee shall, at its own expense, service, keep
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and maintain the interior of the Premises, including all plumbing, wiring,
piping, heating and cooling equipment and fixtures and equipment on the interior
of the Premises in good and substantial repair during the entire term of this
Lease; but, such agreement of Lessee shall not apply to any damage covered by
fire and extended coverage insurance. Without limiting the foregoing, Lessee is
responsible for repairing, maintaining and/or replacing windows, glass and plate
glass, light bulbs, florescent tubes, doors, fire sprinklers, plumbing
(including toilet), and sewage lines, interior walls and finish work, floors,
floor coverings, ceilings, dock lifts, dock conveyors, truck doors, and
appliances lying within the perimetrical boundaries of the Premises. Lessee
shall keep the sidewalks and loading areas adjacent to the Premises clean and
free of all dirt and refuse. Lessee shall provide at its own expense custodial
services, insect and pest control service, rubbish removal and all other
services and supplies necessary to maintain or repair the Premises as set forth
herein. Lessee agrees to make repairs promptly as they may be needed at its own
expense. All repairs shall be at least equal in quality to the original work.
C. Surrender of the Premises. At the end of the Term or upon the
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earlier termination of this Lease, Lessee shall surrender the Premises in good
condition and repair, reasonable wear and tear excepted, and in a broom-clean
condition with all glass, walls, windows and doors intact. In the event of
Lessee's failure to surrender the Premises in the condition required, Lessor may
restore the Premises to such condition, and Lessee shall pay the cost thereof on
demand. Any deposit held pursuant to Article 6 hereof may be credited against
any amount payable by Lessee under this paragraph.
/s/ SHA JR
5
D. Fire Safety. Lessee, at its own expense, shall install and
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maintain fire extinguishers within the Premises and other fire protective
devices as may be required from time to time by Lessor, any agency having
jurisdiction and/or the insurance underwriters insuring the Premises. Lessor may
install a fire sprinkler system which Lessor shall maintain unless modified by
Lessee. Lessee may not modify any fire sprinkler system without the prior
written consent of Lessor, which may be withheld for any reason. If Lessee
modifies the sprinkler system, Lessee assumes complete responsibility for such
system, including all maintenance obligations.
E. HVAC. The Premises shall be serviced with its own air conditioning
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and heating by a heating, air conditioning and ventilating system (the "HVAC
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System"). If the HVAC System is under warranty on the Commencement date, Lessor
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will furnish Lessee with a copy of such warranty. At all times during this
Lease, Lessee shall have a full service maintenance contract for the care and
repair of the HVAC System with a contractor approved by Lessor (the "Approved
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Air Conditioning Contractor"). Lessee shall hold Lessor harmless from any and
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all costs incurred by Lessor as a result of Lessee's failure to keep the
maintenance contract in effect. Lessee shall pay all costs, including service
calls, incurred pursuant to such maintenance contract. In addition, Lessee shall
be responsible for all maintenance and repair costs incurred in connection with
the HVAC System not covered by the maintenance contract. Lessor, at Lessor's
sole option, may contract directly with the Approved Contractor with respect to
the maintenance contract and xxxx Lessee not less than quarterly for the same.
Lessee will pay all invoices for the maintenance contract within 15 days of
Lessee's receipt of same. Any required replacement of the HVAC system and/or any
major parts such as the compressor, condenser, coils or dryer will be the
Lessor's responsibility. Lessor will not be responsible for replacement if the
cause of the replacement is due to Lessee's negligence.
11. Right of Entry. Lessor, its agents and representatives shall
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have the right to enter into and upon any part of the Premises at any time
either in the event of an emergency and otherwise upon reasonable notice at
reasonable times for the purposes of inspecting, cleaning or making repairs,
alterations or additions thereto; Lessee shall not be entitled to any abatement
or reduction of rent by reason thereof. The right of Lessor to enter, repair or
do anything else to protect its interest, or the exercise or failure to exercise
the right, shall in no way diminish Lessee's obligations or enlarge Lessor's
obligations under this Lease, or affect any right of Lessor, or create any duty
or liability by Lessor to Lessee or any third party.
12. Utilities. In addition to Rent, Additional Rent and Lessee's pro rata
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share of Operating Costs, Lessee shall pay all costs and expenses for heat,
cooling, telephone service, sewer service and any and all other utilities
separately metered and furnished to or used in connection with the Premises for
any purpose whatsoever during the Term, promptly as each thereof shall become
due and payable. In addition, Lessee shall pay all charges (whether or not
separately metered) for utility services, including electricity for parking lot
lighting, which are required by Lessee over and above the normal utility service
provided by Lessor to the remainder of the tenants of the Building. Lessor may
provide electricity or other utilities to Lessee metered by tab meters or
metered in common for the whole Building (and allocated proportionately to
Lessee on a square footage basis). Lessor shall xxxx Lessee, as Additional Rent,
not less than quarterly for all utilities provided by Lessor, based on Lessor's
actual costs for such utilities (including reasonable billing costs). Payment
for such utilities shall be due within ten days of Lessee's receipt of the xxxx
for such utilities. Lessor shall not be liable for any interruption or failure
of utility services furnished through Lessor to the Premises.
13. Access Control. Lessee is responsible for access control to the
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Premises. Lessor shall not be liable to Lessee, and Lessee shall not make any
claim against Lessor, for any loss Lessee may incur by reason of break-ins,
burglaries, acts of vandalism, personal injury or death. Lessor agrees to
furnish Lessee two (2) keys for each door entering the Premises. Additional keys
will be furnished at a reasonable charge by Lessor on an order signed by Lessee
or Lessee's authorized representative. All such keys shall remain the property
of Lessor. No additional locks or changes to existing locks shall be allowed on
any door of the Premises without Lessor's written permission, and Lessee shall
not make, or permit to be made, any duplicate keys, except those furnished by
Lessor, exclusive of keys to Lessee's safes and vaults. At the end of the Term
or upon the earlier termination of this Lease, Lessee shall surrender to Lessor
all keys of the Premises and give to Lessor the explanation of the combination
of all locks for safes, safe cabinets and vault doors, if any, that will remain
in the Premises after the termination of this Lease. In the event Lessee loses
or misplaces key(s) prior to or at termination of this Lease provided to Lessee
by Lessor, Lessee shall be solely liable for all costs incurred by Lessor in
changing lock(s) requiring such keys.
14. Quiet Enjoyment. Lessor covenants that so long as Lessee pays the Rent
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and the other amounts reserved in this Lease and performs its agreements
hereunder, Lessee shall have the right to quietly enjoy and use the Premises
during the Term, subject only to the provisions of this Lease.
15. Assignment-Subletting. Lessee shall not assign this Lease nor any
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rights hereunder, nor let or sublet all or any part of the Premises, nor suffer
or permit any person of corporation to use any part of the Premises, without
first obtaining the express prior written consent of Lessor, which consent shall
not be unreasonably withheld. The transfer of fifty percent (50%) or more of the
stock of Lessee if Lessee is a corporation, the transfer of any partnership
interest if Lessee is a partnership, or the transfer of a beneficial interest in
a land trust if Lessee is a land trust, shall not be unreasonably withheld.
/s/ SHA JR
6
deemed an assignment requiring the consent of Lessor if any such transfer will
effectively vest control of Lessee in an entity or person other than the entity
or person then having such control. Should Lessor consent to such assignment of
this Lease or to a sublease of all or any part of the Premises, Lessee does
hereby guarantee payment of all Rent herein reserved and all other obligations
hereunder until the expiration of the Term. No failure of Lessor to promptly
collect from any assignee or sublessee, or any extension of the time for the
payment of such rents, shall release or relieve Lessee or any guarantor from its
guaranty or obligation of payment of such rents or performance of other
obligations. Should Lessor consent to such assignment or sublease, all amounts
received by Lessee as consideration for the same, including, without limitation,
amounts received from a sublessee in excess of amounts to be remitted by Lessee
to Lessor hereunder, shall be the property of Lessor and delivered to Lessor by
Lessee immediately upon receipt. Any consent by Lessor to an assignment or
sublease of Lessee's rights hereunder shall be effective for that transaction
only. Lessor hereby expressly reserves the right to approve or disapprove of all
future assignments or subleases by Lessee or its assignee or sublessee, which
approval.* Notwithstanding the foregoing, Lessee may, upon thirty (30) days
prior written notice to Lessor, assign this Lease without Lessor's consent, to
a corporation with which Lessee may merge or consolidate, to any parent or
subsidiary of Lessee or to a subsidiary of Lessee's parent; provided, however,
that such assignment shall not affect or reduce any of the obligations of
Lessee under this Lease and that Lessee shall remain primarily liable
hereunder.
*shall not be unreasonably withheld
16. Signs. Without first obtaining Lessor's express prior written consent,
-----
which may be withheld for any or no reason, Lessee shall not place or permit to
be placed or maintained upon any exterior door, roof, wall or window of the
Premises or upon any portion of the interior of the Premises visible from the
exterior of the Building any sign, awning, canopy, interior graphics advertising
matter or other item of any kind; will not place or maintain any decoration,
lettering or advertising matter on the glass of any window or door of the
Premises; and will not place or maintain any freestanding structure within or
upon the Common Areas or the Premises immediately adjacent thereto. Lessee
agrees to maintain such items as may be approved by Lessor in good condition and
repair at all times and to remove the same at the expiration of the Term or the
earlier termination of this Lease as and if requested by Lessor. Upon removal
thereof, Lessee agrees to repair any damage to the Premises or Building Common
Areas caused by such installation and/or removal.
17. Parking and Common Areas. In addition to the Premises, but subject to
------------------------
Lessor's reservation of rights in Article 30 hereof, Lessee shall have the right
to non-exclusive use, in common with Lessor, other tenants, and the guests,
employees and invitees of same, of the Common Areas for their intended purposes.
The Common Areas shall be subject to the exclusive control and management of
Lessor. Lessee further agrees that it and its officers and employees will park
their automobiles only in the areas as Lessor may from time to time designate
for employee parking, which areas may be within or without the Project. Lessee
agrees that it will, within five (5) days after written request therefor by
Lessor, furnish to Lessor the state automobile license numbers assigned to its
cars and the cars of all of its employees. Lessee shall not park any truck nor
delivery vehicle in the parking areas, nor permit delivery of supplies and
equipment at any place or during any time period other than as designated by
Lessor. In the event that Lessor deems it necessary to prevent the acquisition
of public rights in and to the Building or the Project, Lessor may from time to
time temporarily close portions of the Common Areas and may erect private
boundary markers or take such steps as deemed appropriate for that purpose. Such
action shall not constitute or be considered an eviction or disturbance of
Lessee's quiet possession of the Premises. Lessee shall have eight (8)
--------
unassigned parking spaces within the Common Areas.
18. Alteration to the Premises and Removal of Equipment.
---------------------------------------------------
A. Approval Required. Lessee shall not make any alteration,
-----------------
installation, improvement or addition to the Premises, including, but not
limited to, roof and wall penetrations, the installation of heating, air
conditioning or ventilating equipment or the construction of a mezzanine, or
increase or decrease the Usable Area of the Premises, without first obtaining
the express prior written consent of Lessor. Unless Lessor has waived such
requirement in writing, Lessee's request for approval of any alteration,
improvement, addition or installation must be accompanied by details with
respect to the proposed source of funds for payment of the cost of the item,
design concept, plans and specifications, names of proposed contractors, hours
of construction, proposed construction methods, and evidence of security for
jobs whose cost exceeds $1000 (such as payment and performance bonds).
B. Complex Alterations. If the nature, volume or complexity of any
-------------------
proposed alteration, addition, improvement or installation causes Lessor to
consult with an independent architect, engineer or other consultant, Lessee will
reimburse Lessor for the fees and expenses incurred by Lessor. If any
improvements will affect the Building Common Areas, Lessor may require that such
work be designed by consultants designated by Lessor and be performed by Lessor
or Lessor's contractors at Lessee's expense.
C. Standard of Work. All work to be performed by or for Lessee
----------------
pursuant hereto will be performed diligently and in a first-class, workmanlike
manner, in compliance with all applicable laws, ordinances, regulations and
rules of any public authority having jurisdiction over the Building and/or
/s/ SHA
7
Lessee and Lessee's insurance carriers. Lessor will have the right, but not the
obligation, to inspect periodically the work on the Premises and may require
reasonable changes in the method or quality of the work. Lessee's work shall not
interfere with the progress of any other work on the Building or the Project
being performed by or on account of Lessor. Lessee's work shall be performed as
quietly as possible and not unreasonably interfere or interrupt other tenant's
business in the Building. In addition, Lessor reserves the right to require that
all or part of Lessee's work be performed after the Building Hours or on the
weekends if Lessor, in Lessor's sole discretion, determines that Lessee's work
will disturb Lessor's other tenants in the Building.
D. Ownership of Alterations. Upon the expiration of the Term or the
------------------------
earlier termination of this Lease, all additions, installations, decorations,
improvements (whether temporary or permanent), fixtures (except Lessee's trade
fixtures which can be removed without defacing the Premises or the Building) and
alterations, whether placed there by Lessee or Lessor, shall remain a part of
the Premises as the property of Lessor without compensation or allowance or
credit to the Lessee. Lessee shall, however, remove such items at its expense
upon Lessor's written request. If Lessee does not remove such items after
Lessor's request, Lessor may remove and sell or dispose of the same at the
expense of Lessee in a manner Lessor deems advisable, or place such property in
storage at Lessee's expense. Carpeting, emergency lights, fire extinguishers,
alarm systems, shelving and cabinetry will be deemed improvements of the
Premises and not movable trade fixtures, regardless of how or where affixed.
Such alterations will not be removed by Lessee from the Premises either during
or at the expiration of the Term or earlier termination of this Lease and will
be surrendered as a part of the Premises unless such alteration is not Building
standard and Lessor has requested that Lessee remove same. Notwithstanding the
foregoing, Lessee shall not be liable for removal of standard improvements to
the Building made by Lessor. Any of Lessee's property remaining in the Premises
ten (10) days after the expiration of the Term or earlier termination of this
Lease will be deemed to have been abandoned by Lessee, and in such case such
items may be retained by Lessor as Lessor's property or disposed of by Lessor
without accountability to Lessee, in such manner as Lessor determines, at
Lessee's expense.
19. Liens. Lessee agrees that it will make full and prompt payment of all
-----
sums necessary to pay for the cost of repairs, alterations, improvements,
changes or other work done by Lessee to the Premises, and further agrees to
indemnify and hold harmless Lessor from and against any and all such costs and
liabilities incurred by Lessee, and against any and all mechanic's,
materialman's or laborer's liens arising out of or from such work which may be
asserted, claimed or charged against the Premises, the Building or the Project.
Notwithstanding anything to the contrary in this Lease, Lessor shall not be
liable for, and the interest of Lessor in the Premises and the Project shall not
be subject to, any mechanic's, materialman's or laborer's liens for improvements
or work made, by or for Lessee, whether or not the same shall be made or done in
accordance with an agreement between Lessor and Lessee. It is specifically
understood and agreed that in no event shall Lessor or the interest of Lessor in
the Premises be liable for or subject to any mechanic's, materialman's or
laborer's liens for improvements or work made by or for Lessee; and this Lease
specifically prohibits the subjecting of Lessor's Interest in the Premises to
any mechanic's, materialman's or laborer's liens for improvements made by Lessee
or for which Lessee is responsible for payment under the terms of this Lease.
All persons dealing with Lessee are hereunder placed upon notice of these
provisions. In the event any notice or claim of lien shall be asserted of record
against the interest of Lessor in the Premise or the Project on account of or
growing out of any improvement or work done by or for Lessee or any person
claiming by, through or under Lessee, or for improvements or work the cost of
which is the responsibility of Lessee, Lessee agrees to have such notice or
claim of lien cancelled and discharged of record (either by payment and
satisfaction or by removal by transfer to bond or deposit as permitted by law)
within thirty (30) days after notice to Lessee by Lessor. Lessee may contest any
such lien after discharging the same by transfer to a bond or deposit pursuant
to Florida law. Lessee shall have the right to grant a security interest to any
bank or other lending institution in Lessee's trade fixtures and equipment
provided that such security interest does not attach to any part of the
Premises. Upon execution of this Lease, Lessor and Lessee shall execute a
Memorandum of this Lease in the form attached as Exhibit "E" hereto, which may
be recorded among the Public Records of the County in which the Project is
located at Lessor's sole option.
20. Casualty. In the event the Premises are damaged or destroyed by fire
--------
or other casualty, Lessee shall notify Lessor immediately. In the event the
Premises are rendered untenantable by fire or other casualty, Lessor shall have
the option of terminating this Lease or rebuilding the Premises and/or Building,
and in such event written notice of the election by Lessor shall be given to
Lessee not later than thirty (30) days after settlement of any of Lessor's
insurance claims. In the event Lessor elects to rebuild the Premises, the
Premises shall be restored to its former condition within a reasonable time,
during which time Rent and Lessee's pro rata share of Operating Costs shall be
abated in proportion to the part of the Premises which are untenantable.
Notwithstanding the foregoing, if such damage or destruction resulted from or
was contributed to by the act, omission, fault or neglect of Lessee, or Lessee's
employees, invitees or agents, then there shall be no abatement of Rent and
Lessee's pro rata share of Operating Costs. In the case of such restoration,
Lessor and Lessee shall have the same respective obligations to construct or
install improvements as are designated in the Workletter. Notwithstanding
anything to the contrary contained in this Article, Lessor shall only be
obligated to restore or rebuild the Premises to a building standard condition,
and nothing herein shall be construed
/s/ SHA
8
to obligate Lessor under any circumstances to repair or restore improvements
made by Lessee or specially constructed by Lessor for Lessee. In the event
Lessor elects to terminate this Lease, the Rent, Additional Rent and Lessee's
pro rata share of Operating Costs shall be paid to and adjusted as of the date
of such casualty, the Term of this Lease shall then expire and this Lease shall
be of no further force or effect. Thereafter, Lessor shall be entitled to sole
possession of the Premises. In the event the Premises are not repaired and
tenantable within 150 days after the damage or casualty, Lessee shall have the
option to terminate this Lease by written notice to Lessor at any time
thereafter but at least thirty (30) days prior to the Premises being repaired
and made tenantable.
21. Indemnification. Lessor shall not be liable for injury caused to any
---------------
person or property by reason of the failure of Lessee to perform any of its
covenants or agreements hereunder, nor for such damages or injury caused by
reason of any present or future defect in the Premises now or in the future
existing. Lessee agrees to indemnify and hold harmless Lessor, and its managing
agent, representatives, agents, servants and employees, from and against any and
all loss, damage, claim, demand, liability, cost or expense, including, but not
limited to, attorneys' fees and expenses, by reason of any damage or injury to
persons (including loss of life or illness) or property which may arise or be
claimed to have arisen as a result of or in connection with the occupancy or use
of the Premises or the Project by Lessee, its agents, employees, guests,
contractors, licensees or invitees, or in connection with any construction of
any improvements by Lessee, including, without limitation, any modification by
Lessee of the sprinkler system in the Premises.* In the event that any claim is
alleged against Lessor and/or its successors or assigns by anyone arising out of
the use or occupancy of the Premises and/or the Project by Lessee or by its
representatives, agents, servants, employees, licenses, invitees or guests, it
is expressly understood and agreed that at Lessor's written direction, Lessee
shall take over the defense of each and every claim promptly and pay all
attorney's fees, verdicts, judgments, settlement payments and all other costs
and expenses whatsoever incurred in connection with the defense of all such
claims, without exception, it being expressly understood that Lessee shall be
and remain fully responsible for all such claims and will hold Lessor and its
managing agent, representatives, agents, servants, and employees completely
harmless from and against any cost or expense whatsoever in connection herewith
regardless of whether Lessee or Lessor defends such claims.*
* unless due to the negligence or willful misconduct of Lessor.
22. Insurance.
---------
A. Lessor's Property. Except as noted below, Lessor shall bear all
-----------------
risks of loss or physical damage on the portion of the Building constructed by
Lessor (excluding any improvements made by Lessee) which is caused by fire or
other casualty. Lessor shall maintain (1) standard fire and extended coverage
insurance on the portion of the Building constructed by Lessor (excluding any
improvements made by Lessee) and Lessor's personal property used in connection
with the Building, insuring against loss or damage by fire and against loss or
damage by other risks now or hereinafter embraced by "all-risk coverage", in
amounts equal to the full replacement cost of the Building; and (2) rent or
rental value insurance against loss of rent or rental value due to any risk
insured above, including an extended coverage endorsement, in an amount equal
to the annual total Rent for the Building. Such insurance shall be maintained
with an insurance company authorized to do business in Florida (and the cost
thereof shall be included in Operating Costs), and payments for losses
thereunder shall be made solely to Lessor. Notwithstanding the foregoing, if any
loss sustained by Lessor is caused by the negligence of Lessee, its agents,
servants, employees, licensees, invitees or guests, then Lessee shall be liable
to Lessor for the amount of the deductible under Lessor's insurance, up to a
maximum of $1,000. Further Lessor shall not be responsible for loss or damage to
items for which Lessee is responsible as is more fully set forth below.
X. Xxxxxx'x Public Liability Insurance. Lessor shall maintain
-----------------------------------
comprehensive liability insurance on the entire Building and the Project in
amounts desired by Lessor.
C. Lessee's Public Liability Insurance. Lessee shall, at its expense,
-----------------------------------
provide and maintain in force during the entire Term of this Lease, and any
extension or renewal hereof, public liability insurance against the liability of
Lessee and its authorized representatives arising out of or in connection with
Lessee's use or occupancy of the Premises with limits of coverage of not less
than $250,000.00 for any property damage or loss from any one accident, and not
less than $1,000,000.00 for injury to any one person from any one accident (such
insurance may be procured under a combined single limit of $1,000,000.00),
covering Lessee, and naming Lessor and Lessor's managing agent, as additional
insured, as their interests may appear. Lessor may require Lessee to increase
the foregoing limits of liability insurance from time to time to new levels
reasonably required by Lessor. Each policy of such insurance shall name as the
insured thereunder Lessor, Lessor's managing agent and Lessee and shall be of
the type commonly known as owner's, landlord's and tenant's insurance. Such
policies shall be with a company or companies reasonably acceptable to Lessor
and admitted to do business in Florida.
D. Lessee's Other Insurance. In addition to the foregoing insurance,
------------------------
Lessee shall provide, at its expense: (a) plate glass insurance providing full
coverage for replacement of destroyed or damaged glass in or upon the Premises,
including but not limited to destroyed or damaged laminated glass; (b) Workmen's
Compensation Insurance for the benefit of all employees entering upon the
/s/ SHA JR
9
Building as a result of or in connection with their employment by Lessee; (c)
all other insurance required of Lessee, as an employer, pursuant to any law,
rule or ordinance of any governmental authority having jurisdiction; and (d)
fire casualty and extended coverage insurance on Lessee's fixtures, improvements
and finishings, which policies of insurance shall be in such amounts, in such
forms and issued by such companies as shall name Lessor and Lessee, Lessor's
managing agent as their interests may appear. At all times during construction
upon the Premises, including initial construction of the Premises prior to the
Commencement Date and during any alteration of the Premises, Lessee shall obtain
builder's risk insurance with such limits as Lessor shall from time to time
require, and any such policy of insurance shall name as the insured thereunder
Lessor, Lessor's managing agent and Lessee, as their interests may appear.
E. Form of Lessee's Insurance Policies. The original of each policy of
-----------------------------------
insurance obtained by Lessee or certified duplicates thereof issued by the
insurance or insuring organization shall be delivered by Lessee to Lessor on or
before ten (10) days prior to occupancy of the Premises by Lessee and proof of
renewal shall be delivered to Lessor not less than fifteen (15) days prior to
the expiration of any such policy. Each policy shall provide that the insurer
will not cancel or change the coverage provided by such policy without first
giving Lessor ten (10) days prior written notice. Each insurance policy required
by this Lease shall state the expiration of the policy and also state that
Lessor's coverage thereunder is primary whether or not Lessor has other
collectible insurance. In addition to any other remedies that Lessor may have
under this Lease, Lessor shall have the right to obtain the insurance Lessee is
required to carry hereunder if Lessee should fail to carry such insurance and
furnish Lessor with the required insurance certificates after notification from
Lessor to do so. Lessee shall pay the cost thereof to Lessor on demand.
F. Extraordinary Insurance. In addition to and together with Lessee's
-----------------------
pro rata share of Operating Costs, Lessee shall pay to Lessor within ten (10)
business day's of its receipt of Lessor's written request, the entire amount of
any extraordinary or additional premium for insurance upon or for the Building
occasioned by or resulting from Lessee's use of the Premises.
G. Waiver of Subrogation. Anything in this Lease to the contrary
---------------------
notwithstanding, to the extent permissible under the insurance policies required
by this Lease and/or maintained by Lessee or Lessor with respect to the
Premises, the Building or the Project and without invalidation of the same, and
except as provided above with respect to deductibles under their respective
insurance policies, (i) Lessor and Lessee each hereby waives any and all rights
of recovery, claim, action or cause of action, against the other, its agents,
officers or employees, for any loss or damage that occurs to the Premises, the
Building or the Project, or any improvements thereto, or any personal property
of such party therein, by reason of fire, the elements, or any other cause which
could be insured against under the terms of standard fire and extended coverage
insurance policies, regardless of cause or origin, including negligence of the
other party hereto, its agents, officers, or employees, and (ii) each covenants
that no insurer shall hold any right of subrogation against such other party.
H. Lessee's Property. All personal property belonging to Lessee or to
-----------------
Lessee's agents, servants, employees, licensees, invitees or guests which is
located in or about the Building or the Premises shall be there at the sole risk
of Lessee or such other person. Neither Lessor nor its agents shall be liable
for any damage to either the person or the property of Lessee, or for the loss
of or interruption to business, or for the loss of or damage to any property of
Lessee, by theft or from any other cause whatsoever including, but not limited
to, loss or damage caused in whole or in part by the Building becoming out of
repair, or resulting from fire, explosion, failing plaster, steam, gas,
electricity, water, rain or snow, or leaks from any part of the 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 whatsoever
nature, including the negligence of Lessor, its agents, servants, employees,
licensees, invitees or guests. Neither Lessor nor its agents shall be liable for
any loss or damage caused by other tenants, if any, or persons in the Premises,
or caused by operations in the construction of any private, public or quasi-
public work. Notwithstanding the foregoing, if any such loss sustained by Lessee
is caused by the negligence of Lessor, its agents, servants, employees,
licensees, invitees or guests, then Lessor shall be liable to Lessee for the
amount of the deductible under Lessee's insurance, up to a maximum of $1,000. It
is expressly agreed that it shall be the sole obligation of Lessee to insure, at
its expense, any and all property of any nature whatsoever of Lessee's located
on the Premises.
23. Default.
-------
A. Events of Default and Remedies. In the event Lessee or any
------------------------------
guarantor of Lessee's obligation under this Lease shall (a) fail to make any
rental or other payment due hereunder within ten days after the same shall
become due, or (b) admit its inability to pay its debts, or (c) make an
assignment for the benefit of its creditors, or (d) have its leasehold estate
taken upon execution or other process of law against Lessee, except eminent
domain, or (e) abandon the Premises during the Term hereof, or (f) have any
receiver appointed in any proceeding commenced against it based upon its
insolvency and if such receiver is not discharged within ninety (90) days after
appointment, or (g) breach or fail to perform any of the agreements, covenants
and/or provisions herein or comply with any applicable rule or regulation
pertaining to the Building or the Project, other than the agreement to pay
/s/ SHA JR
10
rental or any other payment due hereunder, and Lessee fails to use its best
efforts to cure such breach or failure within fifteen days after written notice
from Lessor or (h) any proceedings are flied against Lessee or any guarantor of
this Lease under the Bankruptcy code or any similar provisions of any future
federal bankruptcy law, or (i) fail to vacate the Premises immediately upon the
expiration of the Term or the earlier termination of this Lease, by lapse of
time or otherwise; then Lessor, in any such event(s), shall have the option to:
(I) Xxx for rents as they become due;
(II) Terminate this Lease, resume possession of the Premises (together
with all additions, alterations, fixtures and improvements
thereto) for its own account and recover immediately from Lessee
any and all sums and damages for violation of Lessee's
obligations hereunder in existence or due at the time of
termination and damages for Lessee's default in an amount equal
to the difference between the Rent for which provision is made in
this Lease and fair rental value of the Premises for the
remainder of the Lease term, together with all other charges,
rental payments, costs and expenses herein agreed to be paid by
Lessee, all costs and expenses of Lessor in connection with any
attempts to re-lease or relet the Premises (including, but not
limited to, broker's fees, advertising costs and cleaning
expenses), the costs of recovering the Premises, and the costs of
repairs and renovations reasonably necessary in connection with
any re-leasing or reletting;
(III) Resume possession and re-lease or re-rent the Premises for the
remainder of the Lease term for the account of Lessee and recover
from Lessee at the end of the Lease term or at the time each
payment of rent becomes due under this Lease (adjusted to present
value), as the Lessor may elect, the difference between the rent
for which provision is made in this Lease and the rent received
on the re-leasing or re-renting, together with all costs and
expenses of Lessor in connection with such re-leasing or re-
rental and collection of rent and the cost of all repairs or
renovations reasonably necessary in connection with the releasing
or re-rental, and if this option is exercised, Lessor shall, in
addition, be entitled to recover from Lessee immediately any
other damages occasioned by or resulting from the abandonment or
a breach or default other than a default in the payment of rent;
(IV) Accelerate the whole or any part of Rent, Additional Rent and
Operating Costs for the entire unexpired balance of the Term, as
well as all other charges, payments, costs and expenses to be
paid by Lessee hereunder, including but not limited to damages
for violation of Lessee's obligations hereunder in existence at
the time of acceleration, so that all sums due and payable under
this Lease will be treated as payable in advance on the date of
acceleration and this Lease will remain in effect. For the
purposes of determining the amounts due upon acceleration, Rent,
Additional Rent and Lessee's pro rata share of Operating Costs
shall be treated as fixed at the levels in effect on the date of
acceleration for the remaining term of this Lease; but to the
extent required by law, the total amount so accelerated will be
reduced to present value; or
(V) Without terminating this Lease, enter upon the Premises, without
being liable for prosecution or any claim for damages therefor
(whether caused by the negligence of Lessor or otherwise), and do
whatever Lessee is obligated to do under the terms of this Lease,
in which event Lessee shall reimburse Lessor on demand for any
expenses which Lessor may incur in thus effecting compliance with
the terms of this Lease.
Notwithstanding the foregoing, with respect to re-lease or re-renting the
Premises, Lessor and Lessee agree that Lessor shall only be required to use the
same efforts Lessor then uses to lease other properties Lessor owns or manages
(or if the Premises is then managed for Lessor, then Lessor shall instruct such
manager to use the same efforts such manager then uses to lease other space or
properties which it owns or manages); provided, however, that Lessor (or its
manager) shall not be required to give any preference or priority to the showing
or leasing of the Premises over any other space that Lessor (or its manager) may
be leasing or have available and may place a suitable prospective tenant in any
such available space regardless of when such alternative space becomes
available; provided, further, that Lessor shall not be required to observe any
instruction given by Lessee about such re-letting or accept any tenant unless
such offered tenant has a creditworthiness acceptable to Lessor, leases the
entire Premises, agrees to use the Premises in a manner consistent with the
Lease, and leases the Premises at the same or greater rent, for no more than the
current term and on the same terms and conditions of this Lease without the
expenditure by Lessor for tenant improvements or broker's commissions.
/s/ SHA JR
11
The remedies for which provision is made in this Article shall not be
exclusive and in addition thereto Lessor may pursue such other remedies as are
now or hereinafter provided by law, equity or statute in the event of any
breach, default or abandonment by Lessee.
X. Xxxxxx'x Damages. In any event, and irrespective of any option
----------------
exercised by Lessor, Lessee agrees to pay and the Lessor shall be entitled to
recover all costs and expenses incurred by Lessor, including reasonable
attorneys' fees, paralegal fees and expenses, in connection with collection of
Rent or damages or enforcing other rights of Lessor in the event of a breach,
default or abandonment by Lessee irrespective of whether or not Lessor elects to
terminate this Lease by reason of such a breach, default or abandonment.
Lessor's damages hereunder shall include, without limitation, any loss of Rent
prior to or after reletting of the Premises; broker's commissions; advertising
costs; reasonable costs of repairing, cleaning, repainting and remodeling the
Premises for reletting; and moving and storage charges incurred by Lessor in
moving Lessee's property and effects from the Premises after termination of this
Lease. In the event that any court or governmental authority shall limit any
amount which Lessor may be entitled to recover under this paragraph, Lessor
shall be entitled to recover the maximum amount permitted under law. Nothing in
this Article shall be interpreted to limit Lessor's recovery from Lessee of the
maximum amount permitted under law or of any other sums or damages which Lessor
may be entitled to so recover in addition to the damages set forth herein.
Lessee hereby expressly waives any and all rights of redemption, if any, granted
by or under any present or future law in the event Lessee shall be evicted or
dispossessed for any cause, or in the event Lessor shall obtain possession of
the Premises by virtue of the provisions of this Lease, or otherwise.
C. Additional Costs. All past due installments of Rent and other sums
----------------
of money due and payable from Lessee to Lessor under this Lease shall bear
interest at the Applicable Interest Rate from the date due until paid. In
addition to the foregoing, if any payment of rent is not received within ten
(10) days after the date due, Lessee shall pay Lessor an additional $10.00 per
day for each day of delinquency after the due date to the date paid, which
amount represents an estimate of Lessor's administrative costs reasonably
related to collecting and accounting for such late payment.
E. Survival. All of Lessee's obligations under this Article shall
--------
survive the termination of this Lease.
F. Any remedies that the Lessor chooses to exercise under Paragraph
23 of this Lease must be done through the legal process.
24. Waiver or Estoppel - Remedies are Cumulative. The failure of Lessor to
--------------------------------------------
insist, in any one of more instances, upon strict performance of any covenants
or agreements of this Lease, or exercise any option of Lessor herein contained,
shall not be construed as a waiver or relinquishment for the future of such
covenant, agreement or option, but the same shall continue and remain in full
force and effect, and Lessor shall have the right to require strict performance
or to declare a default at any time and take such action as might be lawful or
authorized hereunder, either in law or in equity. Receipt of Rent or other
payments due hereunder by Lessor, with knowledge of the breach of any covenant
or agreement hereof, shall not be deemed a waiver of such breach and no waiver
by Lessor of any provision hereof shall be deemed to have been made unless
expressed in writing and signed by Lessor. Lessor's receipt of less than the
full amount due from Lessee shall not be construed to be other than a payment on
the account of the amounts then due, nor shall any statement on Lessee's check
or letter accompanying Lessee's payment be deemed an accord and satisfaction,
and Lessor may accept such payment as a partial payment only. Any and all rights
and remedies which are available to Lessor and which are either set forth herein
or are generally available to Lessor under applicable law are cumulative in
nature and none shall exclude any other rights or remedies allowed by law or
equity.
25. Subordination and Attornment.
----------------------------
A. Subordination. All rights and interests of Lessee hereunder are
-------------
and shall be and remain subject, subordinate and inferior to all mortgages,
heretofore or hereafter encumbering the Premises or the Project, or any part
thereof, and to all renewals, modifications, consolidations, replacements and
extensions of any such mortgage. The right of the holder of any such mortgage
shall at all times be and remain prior and superior to all rights and interest
of Lessee. This provision shall
/s/ SHA JR
12
constitute a self-operative subordination agreement with respect to all such
mortgages and all renewals, modifications, consolidations, replacements and
extensions thereof.
B. Attornment. Lessee further covenants and agrees that if the lessor
----------
of any ground lease acquires title to the Project through termination or
assignment of such ground lease or if the holder of any mortgage acquires the
Premises by foreclosure or deed in lieu of foreclosure, or if any other party
acquires the Premises as a purchaser at any foreclosure sale (any such lessor of
any ground lease, holder of any mortgage or purchaser at a foreclosure sale
being each hereinafter referred to as the "Purchaser"), Lessee will thereafter,
but only at the option of the Purchaser, as evidence by the written notice of
the purchaser's election given to Lessee within a reasonable time after the
Purchaser's acquisition of title, remain bound by novation or otherwise to the
same effect as if a new and identical lease containing the terms of this Lease
between the Purchaser, as lessor, and Lessee, as lessee, had been entered into
for the remainder of the Term of this Lease effective on the date of the
Purchaser's acquisition of title.
C. Further Documentation. If the holder of any such mortgage or any
---------------------
person, firm or corporation agreeing to make a loan secured by a mortgage on the
Building, the Premises or the Project shall require confirmation of any
subordination for which provision is herein made or a separate subordination
agreement with respect to any mortgage transaction, Lessee shall execute such
confirmation or subordination agreement, within ten (10) days of Lessor's
request for the same, in the form required by such mortgage holder or other
person, firm or corporation agreeing to make a loan secured by a mortgage on the
Building, the Premises or the Project, and the execution of the same shall not
diminish or affect the liability of Lessee hereunder or of any other party
responsible for or guaranteeing the obligations of Lessee under this Lease.
26. Estoppel Certificates. Lessee will, at any time and from time to time,
---------------------
within five days after the request of Lessor, execute, acknowledge and deliver
to Lessor a certificate executed by Lessee certifying: (a) whether or not this
Lease is unmodified and is in full force and effect (or, if there have been
modifications, the extent to which this Lease is in full force and effect as
modified and stating the modifications), (b) whether or not there are then
existing any defaults on the part of Lessor or any offsets or defenses against
the enforcement of any provisions of this Lease by Lessor (and if so, specifying
the same), (c) the dates, if any, to which Rent, Operating Costs and Additional
Rental and other charges have been paid, (d) the address to which notices to
Lessee should be sent, (e) that Lessor has completed the improvements to the
Premises Lessor is responsible for completing under the Workletter and that
Lessee has accepted the same; (f) that Lessee is in possession of the Premises
and (g) such other matters as Lessor shall request.
27. Condemnation. Should the Premises or the Building be taken
------------
appropriated or condemned for public purposes, or voluntarily transferred in
lieu of condemnation, in whole or in such substantial part as to render the
Building unsuitable for Lessor's purposes, materially adversely affect the value
of the Building or the Project, or the Premises unsuitable for Lessee's
purposes, then the Term shall, at the option of Lessor in the first and second
instances and at the option of Lessee in the third instance, terminate when
Lessee's right to possession is terminated. If neither party exercises this
option to terminate by notice to the other party within ten days after the date
of such taking, or if the portion of the Premises or the Building taken,
appropriated, condemned or voluntarily transferred in lieu of condemnation does
not render the Building unsuitable for Lessor's purposes or the Premises
unsuitable for Lessee's purposes, then this Lease shall terminate only as to the
part taken or conveyed on the date Lessee shall yield possession, and Lessor
shall make such repairs and alterations as may be necessary to make the part not
taken usable, and the rental payable hereunder shall be reduced in proportion to
the part of the Premises taken. The Premises shall be deemed unsuitable for
Lessee's purposes only if the portion of the Premises taken is so great that
Lessee cannot continue to conduct business in a manner comparable to the manner
in which Lessee conducted its business prior to the taking. Lessor reserves unto
itself, and Lessee assigns to Lessor, all right to damages or compensation
accruing on account of any taking, appropriation, transfer in lieu of
condemnation, or condemnation of any part of the Premises, the Building or the
Project, or by reason of any act of any public or quasi-public authority for
which damages are payable, including, without limitation, any award for the
value of the unexpired portion of the Term. Lessee agrees to execute such
instruments of assignment as may be required by Lessor, to join with Lessor in
any petition for the recovery of damages if requested by Lessor, and to turn
over to Lessor any such damages that may be recovered in any such proceeding.
Lessor does not reserve to itself, and Lessee does not assign to Lessor, any
damages payable for on account of interruption in Lessee's business, for moving
and relocation expenses and for depreciation to, removal of and/or loss of trade
fixtures installed by Lessee at its cost and expense which are not part of the
Premises. Notwithstanding the foregoing, no temporary taking of the Premises,
and/or Lessee's rights therein, by a public or quasi-public agency under the
right of eminent domain will terminate this Lease or give Lessee any right to
any abatement of Rent, Additional Rent or any other payment to be made by Lessee
under this Lease. Any award made to Lessee by reason of any temporary taking
will belong entirely to Lessee and Lessor will not be entitled to share in such
award.
28. Lessor's Right of Performance. In the event that Lessee fails to
-----------------------------
completely fulfill or perform any of its monetary or non-monetary duties and
obligations set forth herein, Lessor may, in its
/s/ SHA JR
13
sole discretion, perform or cause to be performed any and all such duties and
obligations. If Lessor expends any sums of money in the performance of any of
the monetary or non-monetary duties and obligations of the Lessee set forth
herein, any such sums of money expended by Lessor shall become additional
amounts of rental due under this Lease and shall be paid by Lessee immediately
upon demand.
29. Liability of Lessor. In the event of any sale, transfer or conveyance
-------------------
by Lessor of the Premises, the seller shall be and hereby is entirely freed and
relieved, released and discharged of all liabilities and obligations of Lessor
hereunder which accrue from or after the date of such sale. It shall be deemed
and construed, without further agreement between the parties or between the
parties and the purchaser of the Premises, that such purchaser has assumed and
agreed to carry out any and all covenants and obligations of Lessor hereunder
from and after such date. Lessor shall not be liable for or responsible to
Lessee for any loss or damage to any property or person occasioned by theft,
fire, act of God, public enemy, injunction, riot, strike, insurrection, war,
court order, requisition or order of governmental body or authority, or for any
damage or inconvenience which may arise through repair or alteration of any part
of the Premises, the Building or the Project, or failure to make any such
repairs. Lessee will not hold Lessor liable for injury or damage to person or
property caused by other tenants or persons in the Building or the Project or
resulting from the operation of the elevator, heating, ventilating or air-
conditioning systems, or lighting apparatus, or from falling plaster or other
materials or fixtures, or from steam, gas, electricity, water, rain or dampness
which may leak or flow from any part of the Building, or from the pipes,
appliances, or plumbing work of the same, or from any other place. All goods or
property or personal effects stored or placed by the Lessee in or about the
Building shall be at the sole risk of the Lessee. Notwithstanding anything to
the contrary contained in this Lease, in the event of a breach by Lessor of any
of the terms, covenants and conditions of this Lease to be performed by Lessor,
or if Lessor otherwise shall be liable to Lessee with respect to any matter
related to or arising out of this Lease, it is specifically understood and
agreed that the monetary liability of any Lessor hereunder shall be limited to
the equity of Lessor in the Building. In the furtherance of the foregoing,
Lessee hereby agrees that any judgment it may obtain against Lessor (and any
officers, shareholders or employees of Lessor) as a result of a breach of any of
the terms, covenants or conditions hereof shall be enforceable solely against
Lessor's fee interest in the Project, and Lessor (and any trustees, officers,
shareholders or employees of Lessor) shall never be personally liable for such
judgment. This Article shall not limit any right that Lessee may otherwise have
to obtain injunctive relief against Lessor or Lessor's successor in interest, or
to bring any other action not involving Lessor's personal liability for monetary
damages.
30. Reservation of Rights by Lessor. Lessor shall have the following
-------------------------------
rights, exercisable without notice or restriction (except as provided to the
contrary in subsections (a) and (e) below), without any liability to Lessee for
damage or injury to person, property or business, without being deemed an
eviction or disturbance of any manner of Lessee's use or possession of the
Premises and without relieving Lessee from its obligation to pay all Rent when
due or from any other obligation under this Lease: (a) to change the Building's
and/or the Project's name or to change the Building's and/or the Project's
street address upon sixty (60) days' prior notice; (b) to install, affix and
maintain any and all signs on the exterior and/or interior of the Building
(excluding the Interior of the Premises); (c) to designate all sources,
furnishings, signs, sign painting and lettering to Lessee and to designate or
approve prior to installation all types and configurations of signs, window
shades, blinds, window treatments, drapes, awnings or other similar items, and
all internal lighting, fixtures or equipment that may be visible from the
exterior of the Premises or the Building; (d) to display the Premises to
prospective mortgagees and purchasers at reasonable hours, upon reasonable
notification to Lessee, and, during the last 12 months of the Term, to display
the Premises at reasonable hours to prospective tenants; (e) to display on the
exterior of the Premises "for rent" or "for sale" signs provided that no such
signs shall be placed or maintained on the Premises prior to the ninetieth
(90th) day before the expiration or termination of this Lease; (f) to change the
arrangement and/or location of entrances, parking areas, doors, corridors,
elevators, stairs, toilets or other public parts of the Building and the
Project; (g) to grant to any person the exclusive right to conduct any business
or render any service in or to the Building or the Project, provided such
exclusive right shall not operate to prohibit Lessee from using the Premises for
such purposes as are permitted under this Lease; (h) to prohibit the placing of
vending or dispensing machines of any kind in or about the Premises, except such
machines which are for the exclusive use of Lessee, its employees and invitees;
(i) to have access for Lessor and other tenants of the Building of which the
Premises are a part to any mail chutes and mail boxes located in the Premises
and/or Building according to the rules of the United States Post Office; (j) to
close the Building of which the Premises are a part after the Building Hours and
on Saturdays (except as provided otherwise herein), Sundays and national
holidays except that Lessee and its employees and invitees shall be entitled to
admission at all times under such regulations as Lessor prescribes for access
control purposes; (k) to take any and all reasonable measures, including
inspections, repairs, alterations, decorations, additions and improvements to
the Premises, the Building or the Project, as may be necessary or desirable in
the operation thereof or for the safety, protection or preservation thereof or
Lessor's interest therein; (l) to retain at all times master keys or passkeys to
the Premises; (m) to increase or decrease the size of the Project by adding
additional real property to the Building or the Project or by expanding the
improvements (i.e. additional stories) thereon or adding additional improvements
thereto or by taking away real property from the Project; (n) to change Lessee's
pro rata
/s/ SHA JR
14
share of Operating Costs by recomputing the Usable Area of the Building or the
Project as a result of (i) expansion or reduction of the size of the Building or
the Project; (ii) casualty; (iii) eminent domain or (iv) any provision(s) of
this Lease; (o) to change or modify the design and layout of Building Common
Areas and Project Common Areas, including, but not limited to, the parking
area(s) shown on Exhibit "B" attached hereto; (p) to grant any tenant of the
Building or the Project exclusive use of a portion of the parking areas serving
the Building or the Project (by roping off that portion of the parking areas or
otherwise); (q) establish a parking validation system and charge all users a fee
for participation (including Lessee's employees, agents, invitees and licensees)
or treat the costs of operation of the system as part of the Operating Costs of
the Building; (r) to enter onto the Premises for repair or expansion of the
Building or the Project or to use the exterior walls of the Premises and the
area between the finished ceiling of the Premises and the slab of the Building
floor thereabove and the area between the finished floor of the Premises floor
and the finished ceiling of the portion of the Building therebelow, together
with the right to locate or relocate (both vertically and horizontally),
install, maintain, use, repair and replace pipes, utility lines, cables, ducts,
conduits, flues, refrigerant lines, drains, sprinkler mains and valves, access
panels, wires and appurtenant meters or equipment, and structural elements
leading through, under or above the Premises, when deemed necessary by the
Lessor for improvement of other premises in the Building or the Project;
provided, however, such construction, installation and maintenance shall not
materially diminish the Usable Area of the Premises or materially interfere with
Lessee's intended use of the Premises; (s) to change the Building Hours; (t) to
relocate Lessee to other space in the Building approximately the same size or
greater than the Premises at Lessor's cost and expense; (u) to change Lessee's
pro rata share of Operating Costs by replacing the applicable ratio used to
compute Lessee's share with a ratio based on all allocated parking spaces or a
combination of allocated parking spaces and square footage of certain areas; and
(v) to close any skylights or windows in the Building not within the Premises.
This Article shall not be construed to alter or create any obligations of Lessor
or Lessee with respect to repairs or improvements or other obligations provided
herein. Anything in this Lease to the contrary notwithstanding, the term
"Lessor" shall be limited to mean and include only the then owner of the
Project, or the tenant under any underlying ground lease of the Building, and
not any predecessor owner or tenant.
31. Hazardous Waste. Without limiting the foregoing, Lessee agrees to
---------------
comply strictly and in all respects with the requirements of any and all
federal, state and local statutes, rules and regulations now or hereinafter
existing relating to the discharge, spillage, storage, uncontrolled loss,
seepage, filtration, disposal, removal or use of hazardous materials, including
but not limited to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Superfund Amendments and Reauthorization Act, the
Resource Conversation and Recovery Act, the Hazardous Materials Transportation
Act and the Florida Hazardous Substances Law (collectively the "Hazardous Waste
---------------
Law") and with all similar applicable laws and regulations and shall notify
---
Lessor promptly in the event of any discharge, spillage, uncontrolled loss,
seepage or filtration of oil, petroleum, chemical liquids or solids, liquid or
gaseous products or any other Hazardous Materials (a "Spill") or the presence of
-----
any substance or material presently or hereafter identified to be toxic or
hazardous according to any Hazardous Waste Law, including, without limitation,
any asbestos, PCBs, radioactive substance, methane, volatile hydrocarbons,
acids, pesticides, paints, petroleum based products, lead, cyanide, DDT,
printing inks, industrial solvents or any other material or substance which has
in the past or could presently or at any time in the future cause or constitute
a health, safety or other environmental hazard to any person or property
(collectively "Hazardous Materials") upon the Premises or the Project, and shall
-------------------
promptly forward to Lessor copies of all orders, notices, permits, applications
or other communications and reports in connection with any such Spill or
Hazardous Materials. Lessee shall not handle, use, generate, manufacture, store
or dispose of Hazardous Materials in, upon, under or about the Premises and
Project. Lessee shall indemnify Lessor and hold Lessor harmless from and against
all loss, penalty, liability, damage and expense suffered or incurred by Lessor
related to or arising out of (i) the presence of Hazardous Materials on the
Premises; (ii) any Spill or Hazardous Material affecting the Project, including
any loss of value of the Project as a result of a Spill or the presence of
Hazardous Material; or (iii) any other matter affecting the Project as a result
of Lessee's action or inaction within the jurisdiction of any Governmental
Authority; which loss, damage, penalty, liability, damage and expense shall
include, but not be limited to, (a) court costs, attorney's fees and expenses,
and disbursements through and including any appellate proceedings; (b) all
foreseeable and unforeseeable consequential damages, directly or indirectly,
arising out of the use, generation, storage or disposal of Hazardous Materials
by Lessee; (c) the cost of any required or necessary repair, clean-up or
detoxification of the Project; and (d) the cost of preparation of any closure or
other plans required under the Hazardous Waste Law, necessary to sell or lease
the Premises or the Project.
32. Invalidity of Particular Provisions. If any term or provisions 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 or provision to person or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
33. Notices. All notices required or contemplated by this Lease shall be
-------
in writing and shall be delivered in person by Lessor or Lessee or their
representatives, by professional courier or by United States Certified Mail,
Return Receipt Requested, addressed to the party to whom such notices is
15
directed at the address initially set forth in this Lease, with copies to Lessor
at the Payment Address, and to Lessee at the following address:
0000 Xxxxxxxx Xxxxxx
--------------------
Suite 200
---------
Xxxx Xxxxx, Xxxxxxx 00000
-------------------------
By giving at least two (2) days prior written notice to the other party, either
party may change its address for notices hereunder.
34. Building Hours. The Building shall be open for regular business during
--------------
the Building Hours. Access shall be accommodated by the Building access control
system, if any, at all other times.
35. Entire Agreement. Lessee agrees that Lessor has not made any
----------------
statement, promise or agreement, or taken upon itself any engagement whatsoever,
verbally or in writing, in conflict with the terms of this Lease, or which in
any way modifies, varies, alters, enlarges or invalidates any of its provisions.
This Lease sets forth the entire understanding between Lessor and Lessee, and
shall not be changed, modified or amended except by an instrument in writing
signed by the party against whom the enforcement of any such change,
modification, or amendment is sought.
36. Representations. The taking possession of the Premises by Lessee shall
---------------
be conclusive evidence that the Premises were in good and satisfactory condition
at the time such possession was taken. No representations, except those
contained herein, have been made on the part of Lessor with respect to the
order, repair or condition of the Premises or the Building. Lessee will make no
claim on account of any representations whatsoever, whether made by any renting
agent, broker, officer or other representative of Lessor or which may be
contained in any circular, prospectus or advertisement relating to the Premises,
the Building or the Project, or otherwise, unless the same is specifically set
forth in this Lease.
37. Interpretation. The covenants and agreements herein contained shall
--------------
bind, and the benefit and advantages hereof shall inure to, the respective
heirs, legal representatives, successors and assigns of Lessor and Lessee.
Whenever used, the singular number shall include the plural, the plural shall
include the singular, and the use of any gender shall include all genders. The
headings set forth in this Lease are for ease of reference only, and shall not
be interpreted to modify or limit the provisions hereof. All of Lessee's
obligations hereunder not fully performed as of the expiration of the Term or
the earlier termination of this Lease shall survive the expiration or earlier
termination of the Term hereof.
38. Governing Law and Venue. This Lease shall be construed in accordance
-----------------------
with the laws of the State of Florida. Lessor and Lessee (and any and all
guarantors of this Lease) irrevocably agree that their respective agreements and
obligations hereunder (and under any Guaranty of Rent Payment) will be
performable in the County where the Premises are located and that venue for any
action arising under or related to this Lease (or arising under or related to
any Guaranty of Rent Payment) shall be in the County where the Premises are
located.
39. Attorney's Fees. In any litigation involving the interpretation of
---------------
this Lease or the enforcement of any provisions hereof, the prevailing party
shall be entitled to attorney's fees, paralegal fees, expenses and costs. When
any party is entitled to attorney's fees, paralegal fees, expenses and costs
hereunder, the term attorney's fees and costs shall be construed to include the
payment of attorney's fees, paralegal fees, expenses and costs on appeal.
40. No Partnership or Joint Venture. It is understood and agreed that
-------------------------------
nothing contained in this Lease shall be deemed or construed as creating a
partnership or joint venture between Lessor and Lessee or between Lessor and any
other party, or cause either party to be characterized as a "warehouseman" or a
"bailee" or to be responsible in any way for the debts and obligations of the
other party.
41. Nondisclosure of Lease Terms. Lessee acknowledges and agrees that the
----------------------------
terms of this Lease and all addenda, exhibits and amendments hereto are
confidential and constitute proprietary information of the Lessor. Lessee agrees
that it and its partners, officers, directors, employees and attorneys shall not
disclose the terms and conditions of this Lease or the exhibits, addenda, and
amendments hereto to any other person; provided, however, that Lessee may
disclose such terms to its independent accountants with respect to the
preparation of financial statements. Lessee shall not record this Lease.
42. Waiver of Jury Trial. Lessor and Lessee each acknowledges that it is
--------------------
aware of and has had the advice of counsel of its choice with respect to its
rights to trial by jury under the Constitutions of the United States and the
State of Florida, and each party does hereby expressly and knowingly waive and
release all such rights to trial by jury in any action, proceeding or
counterclaim brought by either
/s/ SHA JR
16
party hereto against the other on any matters whatsoever arising out of or in
any way connected with this Lease, Lessee's use or occupancy of the Premises,
and/or any claim of injury or damage.
43. No offer. Submission of this Lease by Lessor to Lessee for examination
--------
and signature does not constitute an offer or option for lease. This Lease will
be effective only upon execution and delivery by both Lessee and Lessor.
44. Counterparts. This Lease may be executed in several counterparts, each
------------
of which shall be deemed an original, and all of which shall constitute but one
and the same instrument.
45. Lessee's Authority. Lessee makes the following representations to
------------------
Lessor, on which Lessor is entitled to rely in executing this Lease. (i) Lessee
has the power to enter into this Lease and the transactions contemplated hereby
and to perform its obligations hereunder, and by proper resolution the signatory
hereto has been duly authorized to execute and deliver this Lease; and (ii) the
execution, delivery and performance of this Lease and the consummation of the
transactions herein contemplated shall not conflict with or result in a
violation or breach of, or a default under Lessee's Articles of incorporation or
bylaws or partnership agreements, as amended, or any indenture, mortgage, deed
of trust note, security agreement or other agreement or instrument to which
Lessee is a party or by which it is bound or to which any of its properties is
subject. Lessor may cancel this Lease if (1) Lessee is a Florida Corporation
-------------------
(state of origin/type of entity) and Lessee fails to provide adequate
documentation of Lessee's existence and the authority of the individual
executing this Lease on behalf of Lessee within ten business days of the date of
execution of this Lease; or (2) Lessee fails to deliver a financial statement
satisfactory to Lender at or prior to the date of execution of this Lease.
46. Joint and Several Liability. If more than one party is defined as
---------------------------
Xxxxx in this Lease, all of the duties, obligations, promises, covenants and
agreements contained in this Lease to be paid and performed by Lessee will be
the joint and several obligation of all parties defined as Lessee. Each party
defined as Lessee agrees that Lessor in Lessor's sole discretion may (i)
institute or bring suit against each such party, jointly and severally, or
against any one or more of such parties, (ii) compromise or settle with any one
or more of such parties for such consideration as lessor may deem proper, and
(iii) release one or more of such parties from liability hereunder, and that no
such action by Lessor will impair or affect Lessor's right to collect costs,
expenses, losses or damages incurred or suffered by Lessor from the other
parties defined as Lessee, or any of such parties, not so sued, compromised,
settled with or released.
47. Brokerage. Lessee warrants and represents that it has not dealt,
---------
consulted or negotiated with any real estate broker or agent in connection with
this Lease other than CB Commercial Real Estate Group, Inc. (the "Designated
------------------------------------- ----------
Broker"). In the event of any breach of the foregoing, Lessee hereby agrees to
------
indemnify and hold harmless Lessor from and against any and all loss and
liability resulting from or arising out of (a) all claims of any real estate
broker or agent for a commission ion other than claims by the Designated Broker;
and (b) all attorney's fees and costs incurred by the Lessor as a result of any
such claims.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be executed
as required by law on this, the day and year first above written.
Signed, Sealed and delivered
in the presence of:
WITNESS: LESSOR: CATEXOR LIMITED PARTNERSHIP I
/s/ Xxxxx X. Xxxxxx 2/19/96 By: /s/ Xxxx Xxxxxxxxxxx 2/19/96
----------------------------- ------------------------------- -------
Date Catexor, Inc. - General Partner Date
Print Name Xxxxx X. Xxxxxx Xxxx Xxxxxxxxxxx - President
----------------
------------------- -------
Date
Print Name Xxxxx Xxxxxx
----------------
WITNESS: LESSEE: HIWAY TECHNOLOGIES, INC.
/s/ Xxxxxx Xxxxxx 2/15/96 By: /s/ Xxxxx X. Xxxxx 2/15/96
----------------- ------- -------------------------- -------
Xxxxx X. Xxxxx - President Date
Print Name Xxxxxx X. Xxxxxx
----------------
(Corporate Seal)
/s/ Xxxxx X. Xxxxxxx 2/15/96
-------------------- -------
Date
Print Name Xxxxx X. Xxxxxxx
----------------
[SEAL OF NOTARY PUBLIC] /s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
FIRST ADDENDUM TO LEASE
This FIRST ADDENDUM TO LEASE is made and entered into this 24 day of June,
1996, by and between CATEXOR LIMITED PARTNERSHIP-I ("Lessor") and Hiway
Technologies, Inc. ("Lessee").
WITNESSETH
WHEREAS, Lessor leases to Lessee, pursuant to that certain Lease dated
February 15, 1996 (the "Lease") between Catexor Limited Partnership-I and Hiway
Technologies, Inc. for that certain Demised Premises located at 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 within the 6401 Building of that
certain development known as Amtec Center.
WHEREAS, Lessor and Lessee desire to amend the lease as hereinafter set
forth:
NOW THEREFORE for and in consideration of the covenants herein contained
and other valuable consideration; the receipt and sufficience of which is hereby
acknowledged, Lessor and Lessee agree as follows:
1. Any terms used herein which are defined in the Lease shall have the same
meaning herein as therein.
2. The lease term shall be extended until February 28, 2001.
Except as amended by this Lease Amendment, all of the terms, conditions,
and provisions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day, month and year first above written:
/s/ Xxxxx X. Xxxxxx LESSOR: CATEXOR LIMITED PARTNERSHIP - I
-------------------
Witness
Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxxxx
------------------- --------------------------------
(Print Name) Catexor, Inc - General Partner
Xxxx Xxxxxxxxxxx - President
/s/ Xxxxxx Xxxxx
-------------------
Witness
Xxxxxx Xxxxx
-------------------
(Print Name)
/s/ Xxxx Xxxxxxxxxx LESSEE: HIWAY TECHNOLOGIES, INC.
-------------------
Witness
Xxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------- -----------------------------
(Print Name) Xxxxx X. Xxxxx - President
/s/ Xxxxxxx Xxxxxxxxx
-------------------
Witness
Xxxxxxx Xxxxxxxxx
-------------------
(Print Name)
SECOND ADDENDUM TO LEASE AGREEMENT
This SECOND ADDENDUM TO LEASE AGREEMENT is made and entered into this 2nd
---
day of October, 1996, by and between CATEXOR LIMITED PARTNERSHIP-I, a Florida
-------
Limited Partnership ("Lessor") and Hiway Technologies, Inc., a Florida
Corporation ("Lessee").
WITNESSETH
WHEREAS, Lessor leases to Lessee, pursuant to that certain Lease dated
February 15, 1996, and as further amended by that certain First Addendum to
Lease Agreement dated June 24, 1996 (as so amended the "Lease"), the premises
located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the
"Existing Premises") within the 0000 Xxxxxxxx Xxxxxx building of that certain
development known as Amtec Center (the "Building").
WHEREAS, Lessee desires to lease from Lessor and Lessor desires to lease to
Lessee Suite 110, containing 2,643 square feet, as shown on the site plan of the
6401 Building attached hereto and made a part hereof as Exhibit "Al" (the
"Additional Premises").
NOW THEREFORE for and in consideration of the covenants herein contained
and other valuable consideration; the receipt and sufficience of which is hereby
acknowledged, Lessor and Lessee agree as follows:
1. Any terms used herein which are defined in the Lease shall have the
same meaning herein as therein.
2. Lessee hereby leases from Lessor and Lessor hereby leases to Lessee
the Additional Premises, effective the earlier of (a) the date upon
which Lessee takes occupancy of the Additional Premises or (b) the day
a certificate of occupancy is issued for the improvements described in
the attached Exhibit "Cl". The lease term for the Additional Premises
shall be for a period of five (5) years. A Certificate of Rent and
Lease Commencement has been attached as Exhibit "B1" and will be
executed once the lease commencement date is determined.
3. Prior to the Lease Commencement date, the subject premises will be
finished substantially in accordance with the architectural plans
provided by Xxxxxx Xxxxxxxxxx & Associates, dated September 4, 1996.
The architectural plans have been attached and made part of this Lease
Addendum as Exhibit "C2". The scope of work, cost of the improvements
and related qualifications have been outlined in the Corporex
Builders, Inc. proposal dated September 26, 1996 and has been attached
and made part of this Lease Addendum as Exhibit "Cl". The total cost
of the improvements, less any change orders or building department
revisions, is $45,043.00. Lessor will enter into the construction
contract and will be responsible for the direct payment of all work to
be completed in the premises per Exhibit "Cl". However, it is agreed
that Lessee will reimburse Lessor for one-third the cost of the
improvements plus 100% the cost of any change orders or building
department revisions. Lessor must receive Lessee's check for the
reimbursement of the improvements prior to the date the lease term
commences.
4. Annual Rent for the Additional Premises shall accrue and be due and
payable upon the lease commencement date which will be finalized per
Exhibit "B1". The Annual Rent for the Additional Premises payable
pursuant to Section 5 (A) of the Lease shall equal $9.40 per square
foot, or Twenty Four Thousand Eight Hundred Forty Four and 20/100
Dollars ($24,844.20), in equal monthly installments of Two Thousand
Seventy and 35/100 Dollars ($2,070.35).
Notwithstanding the provisions of Section 5 (B) of the Lease,
effective on each anniversary of the Commencement Date for the
Additional Premises until the expiration of the Lease, Lessee's Annual
Rent payable under the Lease with respect to the Additional Premises
shall be adjusted upward by an amount equal to four (4%) percent of
the prior year's Annual Rent (i.e., a fixed amount of 4%).
5. Effective on the Commencement Date for the Additional Premises,
Lessee's proportionate share with respect to the Additional Premises,
as set forth in Section 7 (A) of the Lease is hereby agreed to equal
1.46% (2643/180,819).
6. Pursuant to Section 6 of the Lease, due upon execution of this Second
Addendum to Lease Agreement shall be an additional security deposit
equal to two month's base rent or Four Thousand One Hundred Forty and
70/100 Dollars ($4,140.70) to be held as security for the Additional
Premises.
7. Except as specifically amended hereby, the terms, provisions,
representations, covenants and conditions of the Lease shall remain in
full force and effect and where appropriate, the provisions of the
Lease, as amended hereby, applicable to the Existing Premises shall
also apply to the Additional Premises.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed as of the day, month and year first above written:
/s/ Xxxxx X. Xxxxxx LESSOR: CATEXOR LIMITED PARTNERSHIP - I,
------------------- A FLORIDA LIMITED PARTNERSHIP
Witness
Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxxxx
------------------- ---------------------------------
(Print Name) Catexor, Inc - General Partner
Xxxx Xxxxxxxxxxx - President
/s/ Xxxxxx Xxxxx
-------------------
Witness
Xxxxxx Xxxxx
-------------------
(Print Name)
/s/ Xxxx Xxxxxxxxxx LESSEE: HIWAY TECHNOLOGIES, INC.,
-------------------- A FLORIDA CORPORATION
Witness
Xxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxx
-------------------- --------------------------
(Print Name) Xxxxx X. Xxxxx - President
/s/ Xxxxxxx Xxxxxxx
--------------------
Witness
Xxxxxxx Xxxxxxx
--------------------
(Print Name)
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