LEASE
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the
31st day of January, 1998 by and between Highwoods/Florida Holdings, L.P.
("Landlord"), whose address for purposes hereof is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Technisource, Inc., a Florida
corporation ("Tenant"), whose addresses for purposes hereof is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. Subject to and upon the terms, provisions,
covenants and conditions set forth in this Lease, and each in
consideration of the duties, covenants and obligations of the
other hereunder, Landlord leases, demises and lets to Tenant
and Tenant leases, demises and lets from Landlord those
certain premises (the "Premises" or "Leased Premises") in the
building known as GULF-ATLANTIC CENTER (the "Building")
located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ such Premises being more particularly described
as follows:
Suites 200, 202, 401 and 403, which is agreed by
Landlord and Tenant to consist of 16,191 square feet of Net
Rentable Area (defined below) located on the second (2nd) and
fourth (4th) floors of the Building as approximately reflected
on the floor plan attached as Exhibit "A".
The term "Net Rentable Area", as used herein, shall
refer to (i) in the case of a single tenancy floor, all space
measured from the inside surface of the outer glass of the
Building to the inside surface of the opposite outer wall,
excluding only the areas ("Service Areas") within the outside
walls used for building stairs, fire towers, elevator shafts,
flues, vents, pipe shafts and vertical ducts, but including
any such areas which are for the specific use of the
particular tenant such as special stairs or elevators, and
(ii) in the case of a multi-tenancy floor, all space within
the inside surface of the outer glass enclosing the tenant
occupied portion of the floor and measured to the midpoint of
the walls separating areas leased by or held for lease to
other tenants or from areas devoted to corridors, elevators
foyers, rest rooms and other similar facilities for the use of
all tenants on the particular floor ("Common Areas"), but
including a proportionate part of the Common Areas located on
such floor and in the Building, as described in the Standard
Method for Measuring Floor Area in Office Buildings, ANSI
Z65.1-1996, as promulgated by the Building Owners and Managers
Association (BOMA) International.
No deductions from Net Rentable Areas are made for
columns necessary to the Building. The Net Rentable Areas in
the Premises and in the Building have been calculated on the
basis of the foregoing definition, include a common area
factor, and are hereby stipulated above as to the Premises,
whether the same should be more or less as a result of minor
variations resulting from actual construction and completion
of the Premises for occupancy so long as such work is done
substantially in accordance with the approved plans.
TERM
2. This Lease shall be for the term of sixty (60)
calendar months (the "Lease Term" or "Term"), commencing on
May 1, 1998 (Commencement Date") unless sooner terminated or
extended as provided herein.
If Tenant, with Landlord's consent, shall occupy the
Premises prior to the beginning of the term as specified
above, all provisions of this Lease shall be in full force and
effect commencing upon such occupancy, and rent for such
period shall be paid by Tenant at the same rate herein
specified.
BASE RENT
3. Tenant shall pay Landlord a total "Base rent" of
One Million Thirty-Three Thousand Seven Hundred Ninety-Five
and 35/100 Dollars ($1,033,795.35) in monthly installments of,
and computed at, Base Rent Rates as follows:
RATE PER AGREED
NET RENTABLE MONTHLY
LEASE MONTHS SQUARE FOOT INSTALLMENT TOTAL BASE RENT
------------ ----------- ----------- ---------------
1 - 12 $11.79 $15,907.66 $190,891.89
13 - 24 $12.26 $16,541.81 $198,501.66
25 - 36 $12.75 $17,202.94 $206,435.25
37 - 48 $13.26 $17,891.06 $214,692.66
49 - 60 $13.79 $18,606.16 $223,273.89
Each payment shall be without any offset or deduction
whatever, on or before the first day of the month, in lawful
(legal tender for public or private debts) money of the United
States of America, at the Management Office of the Building or
elsewhere as designated from time to time by Landlord's
written notice to Tenant.
In addition to Base Rent, Tenant shall pay to
Landlord each month a sum equal to any sales tax, tax on
rentals, and any other charges, taxes and/or impositions now
in existence or hereafter imposed based upon the privilege of
renting the space leased hereunder or upon the amount of
rentals collected therefor. Nothing herein shall, however, be
taken to
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Landlord/Tenant
require Tenant to pay any part of any Federal and State Taxes
on income imposed upon Landlord.
If a Rent payment is not received within five (5)
business days after its due date, Landlord shall be entitled,
in addition to any other remedy that may be available, to an
administrative fee and late charge of five percent (5%) of the
rent payment or Two Hundred Dollars ($200.00), whichever
amount is greater.
ADDITIONAL RENT
3.A. In addition to the Base Rent, Tenant shall pay
to Landlord as "Additional Rent" "Tenant's proportionate
share" of the "Operating Expenses" and "Taxes". As used herein
the term:
(1) "Tenant's proportionate share" shall
mean the percentage which the Net Rentable Area then leased by
Tenant in the Building bears to the total Net Rentable Area
contained in the Building; Tenant's proportionate share is
specified to be 11.0%.
(2) "Operating Expenses" shall mean all
expenses, costs and disbursements, of every kind and nature
which Landlord shall pay or become obligated to pay because of
or in connection with the ownership, leasing, maintenance
and/or operation of the Building and Common Areas and land on
which they are located, (which shall not include cost of
individual tenant improvements or management cost associated
with leasing activities). By way of explanation and
clarification, but not by way of limitation, these Operating
Expenses will include the following:
(a) Wages and salaries of all
employees engaged in operation and maintenance of the
Building, employer's social security taxes, unemployment taxes
or insurance, and any other taxes which may be levied on such
wages and salaries, the cost of disability and hospitalization
insurance, pension or retirement benefits, and any other
fringe benefits for such employees.
(b) All supplies and materials used
in operation and maintenance of the Building.
(c) Cost of all utilities,
including water, sewer, electricity, gas and fuel oil used by
the Building and not charged directly to another tenant.
(d) Cost of Building management,
janitorial services, accounting and legal services, ground
lease payments, trash and garbage removal, servicing and
maintenance of all systems and equipment including, but not
limited to, elevators, plumbing, heating, air conditioning,
ventilating, lighting, electrical, security and fire alarms,
fire pumps, fire extinguishers and hose cabinets, mail chutes,
guard service, alarm system, painting, window cleaning,
landscaping and gardening.
(e) Cost of casualty and liability
insurance applicable to the Building and Landlord's personal
property used in connection therewith.
(f) Cost of capital improvements,
provided said capital improvements are intended to reduce
other Operating Expenses or are a result of government
requirements, excluding any such capital improvements required
to cure existing violations of law as of the date hereof. Said
capital improvements shall be amortized over their deemed
useful life.
(g) Costs arising from
implementation of Legal Requirements of Legal Authorities
(defined below).
Landlord agrees to maintain
accounting books and records reflecting Operating Expenses of
the Building in accordance with generally accepted accounting
principles.
(3) "Taxes" shall mean all impositions,
taxes, assessments (special or otherwise), water and sewer
charges and rents, and other governmental liens or charges of
any and every kind, nature and sort whatsoever, ordinary and
extraordinary, foreseen and unforeseen, and substitutes
therefor, including all taxes whatsoever (except only those
taxes of the following categories: any inheritance, estate
succession, transfer or gift taxes imposed upon Landlord or
any income taxes specifically payable by Landlord as a
separate tax paying entity without regard to Landlord's income
source as arising from or out of the Building and/or the land
on which it is located) attributable in any manner to the
Building, the land on which the Building is located, the
ground leasehold interest of Landlord, or the rents (however
the term may be defined) receivable therefrom or any part
thereof, or any use thereof, or any facility located therein
or thereon or used in conjunction therewith or any charge or
other payment required to be paid to any governmental
authority, whether or not any of the foregoing shall be
designated "real estate tax", "sales tax", "rental tax",
"excise tax", "business tax", or designated in any other
manner.
(4) Landlord shall notify Tenant within
thirty (30) days of the date hereof and within thirty (30)
days after the end of each calendar year hereafter ensuing
during the Term, of the amount which Landlord estimates (as
evidenced by budgets prepared by or on behalf of Landlord)
will be the amount of Tenant's proportionate share of
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Landlord/Tenant
-2-
Operating Expenses and Taxes for the then current calendar
year and Tenant shall pay such sum in advance to Landlord in
equal monthly installments, during the balance of said
calendar year, on the first day of each remaining month in
said calendar year commencing on the first day of the first
month following Tenant's receipt of such notification. Within
ninety (90) days following the end of each calendar year
during the Term hereof, Landlord shall submit to Tenant a
statement showing the actual amount which should have been
paid by Tenant with respect to Operating Expenses and Taxes
for the past calendar year, the amount thereof actually paid
during that year by Tenant and the amount of the resulting
balance due thereon, or overpayment thereof, as the case may
be. Within thirty (30) days after receipt by Tenant of said
statement, Tenant shall have the right in person to inspect
Landlord's books and records, at Landlord's office, during
normal business hours, after four days' prior written notice,
showing the Operating Expenses and Taxes for the Building for
the calendar year covered by said statement. Said statement
shall become final and conclusive between the parties, their
successors and assigns as to the matters set forth therein
unless Landlord receives written objections with respect
thereto within said thirty (30) day period. Any balance shown
to be due pursuant to said statement shall be paid by Tenant
to Landlord within thirty (30) days following Tenant's receipt
thereof and any overpayment shall be immediately credited
against Tenant's obligation to pay expected additional rent in
connection with anticipated increases in Operating Expenses
and Taxes or, if by reason of any termination of the Lease no
such future obligation exists, refunded to Tenant. Anything
herein to the contrary notwithstanding, Tenant shall not delay
or withhold payment of any balance shown to be due pursuant to
a statement rendered by Landlord to Tenant, pursuant to the
terms hereof, because of any objection which Tenant may raise
with respect thereto and Landlord shall immediately credit any
overpayment found to be owing to Tenant against Tenant's
proportionate share of Operating Expenses and Taxes for the
then current calendar year (and future calendar years, if
necessary) upon the resolution of said objection or, if at the
time of the resolution of said objection the Term has expired,
immediately refund to Tenant any overpayment found to be owing
to Tenant.
With respect to calendar year 1998, Landlord estimates the
Operating Expenses and Taxes to be $6.80 per rentable square
foot. Tenant's monthly payment for its proportionate share of
estimated Operating Expenses and Taxes shall be $9,174.90
("Additional Rent") exclusive of sales or other required
taxes.
B. Additional Rent due by reason of the provisions of
subsection 3A and this subsection 3B for the final months of
this Lease is due and payable even though it may not be
calculated until subsequent to the termination date of the
Lease; the Operating Expenses and Taxes for the calendar year
during which the Lease terminates shall be prorated according
to that portion of said calendar year that this Lease was
actually in effect. Tenant expressly agrees that Landlord, at
Landlord's sole discretion, may apply the security deposit
specified in section 5 hereof, if any, in full or partial
satisfaction of any additional rent due for the final month of
this Lease by reason of the provisions of subsection 3A and
this subsection 3B. If said security deposit is greater than
the amount of any such additional rent and there are no other
sums or amounts owed Landlord by Tenant by reason of any other
terms, provisions, covenants or conditions of this Lease, then
Landlord shall refund the balance of said security deposit to
Tenant as provided in section 5. Nothing herein contained
shall be construed to relieve Tenant, or imply that Tenant is
relieved, of the liability for or the obligation to pay any
Additional Rent due for the final month of this Lease by
reason of the provisions of subsection 3A and this subsection
3B if said security deposit is less than such Additional Rent,
nor shall Landlord be required to first apply said security
deposit to such Additional Rent if there are any other sums or
amounts owed Landlord by Tenant by reason of any other terms,
provisions, covenants or conditions of this Lease.
C. Any reference in this Lease to "Rent" or "rent"
includes Base Rent and Additional Rent.
TIME OF PAYMENT
4. Tenant shall promptly pay Base Rent, as the same
may be adjusted from time to time, and Additional Rent and
Charges for work performed on order of Tenant, and any other
charges that accrue under this Lease, at the times and place
stated in this Lease.
SECURITY DEPOSIT
5. Tenant, concurrently with the execution of this
Lease, has deposited with Landlord the sum of One Thousand
Eight Hundred Seventy-six and 75/100 Dollars ($1,876.75), the
receipt of which is acknowledged by Landlord, which sum shall
be retained by Landlord as security for the payment by Tenant
of the rents and all other payments herein agreed to be paid
by Tenant, and for the faithful performance by Tenant of the
terms, provisions, covenants and conditions of this Lease. It
is agreed that Landlord, at Landlord's option, may at the time
of any default by Tenant under any of the terms, provisions,
covenants or conditions of the Lease apply said sum or any
part thereof toward the payment of the rents and all other
sums payable by Tenant under this Lease, and towards the
performance of each and every one of Tenant's covenants under
this Lease, but such covenants and Tenant's liability under
this Lease shall thereby be discharged only pro tanto; that
Tenant shall remain liable for any amounts that such sum shall
be insufficient to pay; that Landlord does utilize any of the
security deposit during the Term, Tenant shall immediately
repay such amount so that the security deposit shall remain in
the total amount described above; that Landlord may exhaust
any and all rights and remedies against Tenant before
resorting to said sum, but nothing herein contained shall
require or be deemed to require Landlord to do so; that, in
the event this deposit shall not be utilized for any such
purposes, then such deposit shall be returned by Landlord to
Tenant within thirty (30) days next after the expiration of
the Term or the determination and
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Landlord/Tenant
-3-
payment of the amount due under section 4 of this Lease, if
any, whichever later occurs. Landlord shall not be required to
pay Tenant any interest on said security deposit.
USE
6. Tenant will use and occupy the Premises for the
following use or purpose and for no other use or purpose:
GENERAL OFFICE.
QUIET ENJOYMENT
7. Upon payment by Tenant of the rents herein
provided, and upon the observance and performance of all
terms, provisions, covenants and conditions on Tenant's part
to be observed and performed, Tenant shall, subject to all of
the terms, provisions, covenants and conditions of this Lease,
peaceably and quietly hold and enjoy the Premises for the
Term.
INSURANCE PREMIUMS
8. If Landlord's insurance premiums exceed the
standard premium rates because the nature of Tenant's
operation results in extra hazardous exposure, then Tenant
shall, upon receipt of appropriate invoices from Landlord,
reimburse Landlord for such increase in premiums. It is
understood and agreed between the parties hereto that any such
increase in premiums shall be considered as rent due and shall
be included in any lien for rent.
RULES AND REGULATIONS
9. Tenant agrees to comply with all rules and
regulations Landlord may adopt from time to time for operation
of the Building and parking facilities and protection and
welfare of Building and Parking facilities, its tenants,
visitors and occupants. The present rules and regulations,
which Tenant hereby agrees to comply with, entitled "Rules and
Regulations" are attached to this Lease. Any future rules and
regulations shall become a part of this Lease, and Tenant
hereby agrees to comply with the same upon delivery of a copy
thereof to Tenant providing the same do not materially deprive
Tenant of its rights established under this Lease.
GOVERNMENTAL REQUIREMENTS
10. Tenant shall faithfully observe in the use of the
Premises all Legal Requirements of all Legal Authorities. For
the purposes of this Lease, "Legal Requirements" means any
law, statute, code, rule, regulation, ordinance, order,
judgment, decree, writ, injunction, franchise, permit,
certificate, license (including any beer, wine, or liquor
license), authorization, registration, or other direction or
requirement of any Legal Authority, which is now or in the
future applicable to the Premises, including those not within
the present contemplation of the parties and "Legal Authority"
means any domestic or foreign federal, state, county,
municipal, or other government or governmental or
quasi-governmental department, commission, board, bureau,
court, agency, or instrumentality having jurisdiction or
authority over Landlord, Tenant and/or all or any part of the
Premises.
Tenant shall:
A. neither cause nor permit the Premises to
be used to generate, manufacture, refine, transport, treat,
store, handle, dispose, transfer, produce, or process
Hazardous Materials, except in compliance with all Legal
Requirements;
B. neither cause nor permit a release or
threatened release of Hazardous Materials onto the Premises or
any other property as a result of any intentional or
unintentional act or omission on the part of Tenant;
C. comply with all applicable Legal
Requirements related to Hazardous Materials;
D. conduct and complete all investigations,
studies, sampling, and testing, and all remedial, removal, and
other actions on, from, or affecting the Premises in
accordance with such applicable Legal Requirements and to the
satisfaction of Landlord;
E. upon the expiration or termination of
this Lease, deliver the Premises to Landlord free of all
Hazardous Materials; and
F. defend, indemnify, and hold harmless
Landlord and Landlord's employees and other agents and other
agents from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses of any
kind or nature, known or unknown, contingent or otherwise
(including, without limitation, accountants' and attorneys'
fees (including fees for the services of paralegals and
similar persons), consultant fees, investigation and
laboratory fees, court costs, and litigation expenses at the
trial and all appellate levels), arising out of, or in any way
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Landlord/Tenant
-4-
related to (a) the presence, disposal, release, or threatened
release, by or caused by Tenant or its agents, of any
Hazardous Materials which are on, from, or affecting the soil,
water, vegetation, buildings, personal property, persons,
animals or otherwise; (b) any personal injury, including
wrongful death, or damage to property, real or personal,
arising out of or related to such Hazardous Materials; (c) any
lawsuit brought, threatened, or settled by Legal Authorities
or other parties, or order by Legal Authorities, related to
such Hazardous Materials; and/or (d) any violation of Legal
Requirements related in any way to such Hazardous Materials.
The provisions of this Section shall survive the expiration or
termination of this Lease. Hazardous materials are any oil and
petroleum products and their byproducts, asbestos,
polychlorobiphenols, flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or
toxic substances, or related materials as defined under any
Legal Requirements, including, without limitation, the
following statutes and the regulations promulgated under their
authority: (a) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C.
▇▇.▇▇. 9601 et seq.); (b) the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ▇▇.▇▇. 1801 et
seq.); (c) the Resource Conservation and Recovery Act of 1976,
as amended (42 U.S.C. ▇▇.▇▇. 6901 et seq.); and (d) the Water
Pollution and Control Act, as amended (33 U.S.C. 1317 et
seq.).
SERVICES
11. Landlord will furnish the following services to
Tenant:
A. Cleaning services, deemed by Landlord to be
normal and usual in comparable office buildings, on Monday
through Friday, except that shampooing and replacement of
carpet as required by Tenant shall be Tenant's expense.
B. Automatically operated elevator service, public
stairs, electrical current for lighting, incidentals and
normal office use, and water at those points of supply
provided for general use of its tenants at all times and on
all days throughout the year.
C. Air conditioning on Monday through Friday from
8:00 a.m. to 6:00 p.m. and Saturday 9:00 a.m. to 1:00 p.m.
except ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇.'s Birthday, Memorial Day, Fourth
of July, Labor Day, Thanksgiving Day, Christmas Day and New
Year's Day. Landlord shall also furnish air conditioning at
such other times as are not provided for herein, provided
Tenant gives written request to Landlord before 2 p.m. of the
business day preceding the extra usage and if Tenant requires
heat and air conditioning during such hours. Tenant shall be
billed for such service at the rate of $25.00 per hour (per
floor) and said rate may be changed with thirty (30) days'
prior written notice. Tenant's monthly ▇▇▇▇ shall include a
detailed calculation of any such charges.
No electric current shall be used except that
furnished or approved by Landlord, nor shall electric cable or
wire be brought into the Premises, except upon the written
consent and approval of Landlord. Tenant shall use only office
machines and equipment that operate on the Building's standard
electric circuits, but which in no event shall overload the
Building's standard electric circuits from which Tenant
obtains electric current. Any consumption of electric current
in excess of 4.0 ▇▇▇▇▇ per square foot or in excess of that
considered by Landlord to be usual, normal and customary for
all Tenants, or which require special circuits or equipment
(the installation of which shall be at Tenant's expense after
approval in writing by Landlord) shall be paid for by Tenant
as Additional Rent paid to Landlord in an amount to be
determined by Landlord based upon Landlord's estimated cost of
such excess electric current consumption or based upon the
actual cost thereof if such excess electric current
consumption is separately metered.
Such services shall be provided as long as Tenant
is not in default under any of the terms, provisions,
covenants and conditions of this Lease, subject to
interruption caused by repairs, renewals, improvements,
changes to service, alterations, strikes, lockouts, labor
controversies, inability to obtain fuel or power, accidents,
breakdowns, catastrophes, national or local emergencies,
hurricanes, natural disasters, windstorms, acts of God and
conditions and cause beyond the control of Landlord, and upon
such happening, no claim for damages or abatement of rent for
failure to furnish any such services shall be made by Tenant
or allowed by Landlord.
TENANT IMPROVEMENTS
12. Improvements, if any, to be
made to the Premises by Landlord are specifically set forth in
the Work Letter attached as Exhibit "B" and thereto are no
others. All leasehold improvements (as distinguished from
trade fixtures and apparatus) installed in the Premises at any
time, whether by or on behalf of Tenant or by or on behalf of
Landlord, shall not be removed from the Premises at any time,
unless such removal is consented to in advance by Landlord;
and at the expiration of this Lease (either on the Termination
Date or upon such earlier termination as provided in this
Lease), all such leasehold improvements shall be deemed to be
part of the Premises, and title thereto shall vest solely in
Landlord without payment of any nature to Tenant. All trade
fixtures and apparatus (as distinguished from leasehold
improvements) owned by Tenant and installed in the Premises
shall remain the property of Tenant and shall be removable at
any time, including upon the expiration of the Term; provided
Tenant shall not at such time be in default of any terms or
covenants of this Lease, and provided further, that Tenant
shall repair any damage to the Premises caused by the removal
of said trade fixtures and apparatus and shall restore the
Premises to
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Landlord/Tenant
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substantially the same condition as existed prior to the
installation of said trade fixtures and apparatus. The taking
of possession by Tenant (or any permitted assignee or
subtenant of Tenant) of all or any portion of the Premises for
the conduct of business will be deemed conclusive evidence
that Tenant has found the Premises, and all of their fixtures
and equipment, acceptable.
TENANT WORK
12A. Any charges against Tenant by Landlord for
services or for work done on the Premises by order of Tenant,
or otherwise accruing under this Lease, shall be considered as
rent due and shall be included in any lien for rent.
REPAIR OF LEASED PREMISES
13. Tenant shall, at Tenant's own expense, keep the
Premises in good repair and tenantable condition during the
Term and shall replace at its own expense any and all broken
glass caused by Tenant in and about the Premises. Tenant shall
make no alterations, additions or improvements in or to the
Premises without the written consent of Landlord, which shall
not be unreasonably withheld, but may be predicated upon but
not limited to Tenant's use of contractors who are acceptable
to Landlord; and all additions, fixtures, carpet or
improvements, except only movable office furniture, shall be
the property of Landlord from date of location in the Premises
and shall remain a part of the Premises at the expiration of
this Lease.
It is further agreed that this Lease is made by
Landlord and accepted by Tenant with the distinct
understanding and agreement that Landlord shall have the right
and privilege to make and build additions to the Building of
which the Premises are a part, and make such alterations and
repairs to said Building as it may deem wise and advisable
without any liability to the Tenant therefor.
INDEMNIFICATION
14. Tenant further agrees that Tenant will pay all
liens of contractors, subcontractors, mechanics, laborers,
materialmen, and other items of like character, and will
indemnify Landlord against all expenses, costs, and charges,
including bond premiums for release of liens and attorneys'
fees and costs reasonably incurred in and about the defense of
any suit in discharging the said Premises or any part thereof
from any liens, judgments, or encumbrances caused or suffered
by Tenant. In the event any such lien shall be made or filed,
Tenant shall bond against or discharge the same within ten
(10) days after the same has been made or filed. It is
understood and agreed between the parties hereto that the
expenses, costs and charges above referred to shall be
considered as rent due and shall be included in any lien for
rent.
Tenant herein shall not have any authority to create
any liens for labor or materials on Landlord's interest in the
Premises and all persons contracting with Tenant for the
destruction or removal of any facilities or other improvements
or for the erection, installation, alteration, or repair of
any facilities or other improvements on or about the Premises,
and all materialmen, contractors, subcontractors, mechanics,
and laborers are hereby charged with notice that they must
look only to Tenant and to Tenant's interests in the Premises
to secure the payment of any ▇▇▇▇ for work done or material
furnished at the request or instruction of Tenant.
PARKING
15. Landlord shall provide Tenant sixty-four (64)
unassigned parking spaces at Zero Dollars ($0.00) per space
per month. Landlord reserves the right to increase the charge
for parking at any time by giving Tenant written notice.
Tenant shall comply with Landlord's procedures and policies in
operating the Building parking areas. Landlord shall not be
liable for any damage of any nature whatsoever to, or any
theft of, automobiles or other vehicles or the contents of
them, while in or about Building parking areas.
ESTOPPEL STATEMENT
16. From time to time, upon not less than ten (10)
days prior request by Landlord, Tenant shall deliver to
Landlord a statement in writing certifying (a) that this Lease
is unmodified and in full force and effect (or, if there have
been modifications, that the Lease as modified is in full
force and effect and stating the modifications); (b) the dates
to which the rent and other charges have been paid; (c) that
Landlord is not in default under any provisions of this Lease
or, if in default, the nature thereof in detail; and (d) such
other matters pertaining to the Lease as Landlord may request.
It is intended that any such statement delivered pursuant to
this section may be relied upon by any prospective purchaser
or mortgagee and their respective successors and assigns and
Tenant shall be liable for all loss, cost or expense resulting
from the failure of any sale or funding of any loan caused by
any failure to furnish the estoppel statement or misstatement
contained in such estoppel statement. Tenant hereby
irrevocably appoints Landlord as attorney-in-fact for Tenant
with full power and authority to execute and deliver in the
name of Tenant such estoppel certificate if Tenant fails to
deliver the same within ten (10) days of Landlord's request
therefor. This appointment is a power coupled with interest
and is a material inducement to Landlord to enter into this
Lease.
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SUBORDINATION
17. If the Building and/or Premises are at any time
subject to a mortgage and/or deed of trust or ground lease,
and Tenant has received written notice from Mortgagee or
ground lessor of same, then in any instance in which Tenant
gives notice to Landlord alleging default by Landlord
hereunder, Tenant will also simultaneously give a copy of such
notice to each Landlord's Mortgagee and/or ground lessor and
each Landlord's Mortgagee and/or ground lessor shall have the
right (but not the obligation) to cure or remedy such default
during the period that is permitted to Landlord hereunder,
plus an additional period of thirty (30) days, and Tenant will
accept such curative or remedial action (if any) taken by
Landlord's Mortgagee and/or ground lessor with the same effect
as if such action had been taken by Landlord.
This Lease shall be subject and subordinate to any
mortgage and/or ground lease now or hereafter encumbering the
Building. This provision shall be self-operative without the
execution of any further instruments. Notwithstanding the
foregoing, however, Tenant hereby agrees to execute any
instrument(s) which Landlord may deem desirable to evidence
the subordination of this Lease to any and all such mortgages
and/or ground lease.
ATTORNMENT
18. If the interests of Landlord under this Lease
shall be transferred voluntarily or by reason of foreclosure
or other proceedings for enforcement of any mortgage and/or
ground lease on the Premises, Tenant shall be bound to such
transferee (herein sometimes called the "Purchaser") for the
remaining balance of the Term, and any extensions or renewals
thereof which may be effective in accordance with the terms
and provisions hereof with the same force and effect as if the
Purchaser were Landlord under this Lease, and Tenant does
hereby agree to attorn to the Purchaser, including the
Mortgagee under any such mortgage and/or lessor under any such
ground lease if it be the Purchaser, as its Landlord, said
attornment to be effective and self-operative without the
execution of any further instruments upon the Purchaser
succeeding to the interest of Landlord under this Lease. The
respective rights and obligations of Tenant and the Purchaser
upon such attornment, to the extent of the then remaining
balance of the Term of this Lease and any such extensions and
renewals, shall be and are the same as those set forth herein.
In the event of such transfer of Landlord's interests,
Landlord shall be released and relieved from all liability and
responsibility thereafter accruing to Tenant under this Lease
or otherwise and Landlord's successor by acceptance of rent
from Tenant hereunder shall become liable and responsible to
Tenant in respect in all obligations of the Landlord under
this Lease.
ASSIGNMENT
19. Without the written consent of Landlord first
obtained in each case, Tenant shall not sublease, assign,
transfer, mortgage, pledge, or otherwise encumber or dispose
of this Lease or underlet the Premises or any part thereof or
permit the Premises to be occupied by other persons. Transfer
of ownership interests in Tenant shall be deemed an assignment
for purposes of this section. In the case of a subletting,
Landlord's consent may be predicated, among other things, upon
Landlord becoming entitled to collect and retain all rentals
payable under the sublease. If this Lease be assigned, or if
the Premises or any part thereof be underlet or occupied by
anybody other than Tenant, Landlord may, after default by
Tenant, collect or accept rent from the assignee, undertenant,
or occupant and apply the net amount collected or accepted to
the rent herein reserved, but no such collection or acceptance
shall be deemed a waiver of this covenant or the acceptance of
the assignee, undertenant, or occupant as Tenant, nor shall it
be construed as or implied to be a release of Tenant from the
further observance and performance by Tenant of the terms,
provisions, covenants and conditions herein contained.
In lieu of consenting or not consenting, Landlord may
at its option (i) in the case of the proposed assignment or
subletting of Tenant's entire leasehold interest, terminate
this lease in its entirety, or (ii) in the case of the
proposed assignment or subletting of a portion of the
Premises, terminate this Lease as to that portion of the
Premises which Tenant has proposed to assign or sublet. In the
event Landlord elects to terminate this Lease pursuant to
Clause (ii) of this section, Tenant's obligations as to Base
Rent and Additional Rent shall be reduced in the same
proportion that the Net Rentable Area of the portion of the
Premises taken by the proposed assignee or subtenant bears to
the total Net Rentable Area of the Premises.
SUCCESSORS AND ASSIGNS
20. All terms, provisions, covenants and conditions
to be observed and performed by Tenant shall be applicable to
and binding upon Tenant's respective heirs, administrators,
executors, successors and assigns, subject, however, to the
restrictions as to assignment or subletting by Tenant as
provided herein. All expressed covenants of this Lease shall
be deemed to be covenants running with the land.
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HOLD HARMLESS OF LANDLORD
21. In consideration of said Premises being leased to
Tenant for the above rent, Tenant agrees that Tenant, at all
times, shall indemnify and keep Landlord harmless from all
losses, damages, liabilities and expenses, which may arise or
be claimed against Landlord and be in favor of any persons,
firms or corporations, consequent upon or arising from the use
of occupancy of the Premises by Tenant, or consequent upon or
arising from any acts, omissions, neglect or fault of Tenant,
his agents, servants, employees, licensees, visitors,
customers, patrons or invitees, or consequent upon or arising
from Tenant's failure to comply with any laws, statutes,
ordinances, codes or regulations as herein provided; that
Landlord shall not be liable to Tenant for any damages, losses
or injuries to the persons or property of Tenant which may be
caused by the acts, neglect, omissions or faults of any
persons, firms or corporations, except when such injury, loss
or damage results from gross negligence of Landlord, his
agents or employees, and that Tenant will indemnify and keep
harmless Landlord from all damages, liabilities, losses,
injuries, or expenses which may arise or be claimed against
Landlord and be in favor of any persons, firms or
corporations, for any injuries or damages to the person or
property of any persons, firms or corporations, where said
injuries or damages arose about or upon said Premises as a
result of the negligence of Tenant, his agents, employees,
servants, licensees, visitors, customers, patrons, and
invitees. All personal property placed or moved into the
Premises or Building shall be at the risk of Tenant or the
owner thereof, and Landlord shall not be liable to Tenant for
any damage to said personal property. Tenant shall maintain at
all times during the Term an insurance policy or policies in
an amount or amounts sufficient, in Landlord's opinion, to
indemnify Landlord or pay Landlord's damages, if any,
resulting from any matters set forth in this section.
In case Landlord shall be made a party to any
litigation commenced against Tenant, then Tenant shall protect
and hold Landlord harmless and shall pay all costs, expenses
and reasonable attorneys' fees incurred or paid by Landlord in
connection with such litigation and any appeal thereof.
ATTORNEYS' FEES
22. If either party defaults in the performance of
any of the terms, provisions, covenants and conditions of this
Lease and by reason thereof the other party employees the
services of an attorney to enforce performance of the
covenants, or to perform any service based upon defaults, then
in any of said events the prevailing party shall be entitled
to reasonable attorneys' fees and all expenses and costs
incurred by the prevailing party pertaining thereto (including
costs and fees relating to any appeal) and in enforcement of
any remedy. Tenant shall be responsible to pay Landlord's
attorneys' fees for enforcement of Tenant's obligations under
this Lease, whether suit be brought or not.
DAMAGE OR DESTRUCTION
23. In the event all or part of the Premises shall be
destroyed or so damaged or injured by fire, windstorm,
hurricane, natural disaster, or other casualty, during the
Term, whereby the same shall be rendered untenantable, then
Landlord shall have the right, but not the obligation, to
render such Premises tenantable by repairs within 360 days
therefrom; Landlord shall have the further right, at its
election, to cancel this Lease as to all or the untenantable
portion of the Premises.
Landlord agrees that, within 60 days following damage
or destruction, it shall notify Tenant with respect to whether
or not Landlord intends to restore the Premises. If said
Premises are not rendered tenantable within the aforesaid 360
days it shall be optional with either party hereto, no later
than the date that Premises are in fact rendered tenantable,
to cancel this Lease as to the tenantable portion, and in the
event of such cancellation the rent shall be paid only to the
date of such fire or casualty. The cancellation herein
mentioned shall be evidenced in writing. During any time that
all or a portion of the Premises are untenantable due to
causes set forth in this Section, the Base Rent or a just and
fair proportion thereof shall be abated.
Notwithstanding the foregoing, (a) should damage or
destruction occur during the last twelve months of the Term,
either Landlord or Tenant shall have the option to terminate
this Lease as to the untenantable portion of the Premises,
effective on the date of damage or destruction, provided
notice to terminate is given within 30 days of the date of
such damage or destruction; (b) should damage, destruction or
injury occur by reason of Tenant's negligence, Landlord shall
have the right, but not the obligation, to render the Premises
tenantable within 360 days of the date of damage, destruction
or injury and no abatement of Rent shall occur and Tenant
shall not have such option to terminate.
INSURANCE
23A. The Landlord assumes no
liability or responsibility whatsoever with respect to the
conduct and operation of the business to be conducted in the
Premises. The Landlord shall not be liable for any accident to
or injury to any person or persons or property in or about the
Premises or the Project which are caused by the conduct and
operation of said business or by virtue of equipment or
property of the Tenant in said Premises. The Tenant agrees to
hold the Landlord harmless against all such claims.
(1) Tenant shall, at
Tenant's sole expense, obtain and keep in force
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Landlord/Tenant
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during the Term and any extension or renewal hereof: (i) fire
and extended coverage insurance with vandalism and malicious
mischief endorsements and a sprinkler leakage endorsement
(where applicable), on all of its personal property, including
removable trade fixtures, located in the Premises, and on all
leasehold improvements and any future additions and
improvements made by Tenant; and (ii) comprehensive general
liability insurance, including contractual liability coverage,
insuring Landlord (as an additional insured) and Tenant
against any liability arising out of the ownership, use,
occupancy or maintenance of the Premises and all areas
appurtenant thereto.
(2) Said insurance shall be
with insurance companies approved by Landlord, which approval
shall not be unreasonably withheld. Such companies shall be
responsible insurance carriers authorized to issue the
relevant insurance, authorized to do business in Florida and
at least A-rated in the most current edition of BEST'S
INSURANCE Reports. Comprehensive general liability insurance,
including contractual liability coverage, shall have minimum
limits of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) for
any loss of or damage to property from any one accident, and
ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) for death of or
injury to any one person from any one accident. Fire and
extended coverage insurance with vandalism and malicious
mischief endorsements and a sprinkler leakage endorsement
shall have limits not less than the replacement cost of all
property (personal or otherwise) and capital improvements in
the premises. The limits of said insurance shall not, however,
limit the liability of the Tenant hereunder. The policies
cannot contain provisions which deny coverage because the loss
is due to the fault of Landlord or Tenant. If Tenant shall
fail to procure and maintain said insurance, Landlord may, but
shall not be required to, procure and maintain same, but at
the expense of Tenant. Tenant shall deliver to Landlord, prior
to occupancy of the Premises, copies of policies of liability
insurance required herein, or certificates evidencing the
existence and amounts of such insurance, with loss payable
clauses satisfactory to Landlord. No policy shall be
cancelable or subject to reduction of coverage except after
thirty (30) days prior written notice to Landlord.
Notwithstanding anything herein to the contrary, Landlord
shall have the right to review the Tenant's insurance once
every year and to reasonably require Tenant to alter its
insurance coverage to cover the effects of inflation and to
include or eliminate certain provisions in the Tenant's
insurance policy which reflect the then-current industry
standards for this type of insurance coverage.
EMINENT DOMAIN
24. If there shall be taken during the Term any part
of the Premises, parking facilities or Building, other than a
part not interfering with maintenance, operations, or use of
the Building, Landlord may elect to terminate this Lease or to
continue same in effect. If Landlord elects to continue the
Lease, the rent shall be reduced in proportion to the area of
the Premises so taken and Landlord shall repair any damage to
the Premises, resulting from such taking. If any part of the
Premises is taken by condemnation or Eminent Domain which
renders the Premises unsuitable for its intended use, the
Tenant may elect to terminate this Lease, or if any part of
the Premises is so taken which does not render the Premises
unsuitable for its intended use, this Lease shall continue in
effect and the rental shall be reduced in proportion to the
area of the Premises so taken and Landlord shall repair any
damage to the Premises resulting from such taking. If all of
the Premises is taken by condemnation or Eminent Domain, this
Lease shall terminate on the date of the taking. All sums
awarded (or agreed upon between Landlord and the condemning
authority) for the taking of the interest of Landlord and/or
Tenant, whether as damages or as compensation, and whether for
partial or total condemnation, will be the property of
Landlord. If this Lease should be terminated under any
provisions of this section, Rent shall be payable up to the
date that possession is taken by the authority, and Landlord
will refund to Tenant any prepaid unaccrued Rent less any sum
or amount then owing by Tenant to Landlord.
ABANDONMENT
25. If, during the Term, Tenant shall abandon, vacate
or remove from the Premises the major portion of the goods,
wares, equipment or furnishings usually kept on said Premises,
or shall cease doing business in the Premises, or shall suffer
the rent to be in arrears, Landlord may, at its option,
declare a default of this Lease and seek remedies in the
manner stated in Section 27 hereof, or Landlord may enter the
Premises as the agent of Tenant by force or otherwise, without
being liable in any way therefor and relet the Premises with
or without any furniture that may be therein, as the agent of
Tenant, at such price and upon such terms and for such
duration of time as Landlord may determine, and receive the
rent therefor, applying the same to the payment of Rent, and
if the full Rent shall not be realized by Landlord over the
expenses to Landlord of such reletting, Tenant shall pay any
deficiency.
DEFAULT
26. The occurrence of any of the following during the
Term shall constitute an Event of Default by Tenant:
A. Tenant shall fail to pay when due Base Rent,
Additional Rent or any under charges that accrue under this
Lease;
B. Tenant shall fail to pay when due any other sums,
fees, charges, costs, or expenses which are payable under this
Lease;
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C. Tenant shall, other than in the manner permitted
under this Lease, make or permit or suffer to occur any
assignment (including any transfer of interest in Tenant which
is deemed to be an assignment under this Lease), sublease or
occupancy arrangement, conveyance, transfer, conditional or
collateral assignment, pledge, hypothecation, or other
encumbrance, whether by operation of law or otherwise, of this
Lease or any interest in this Lease;
D. Tenant shall fail in any other way in the
performance or observance of any of the non-material terms and
conditions of this Lease and within ten (10) days shall not
have cured such default or, if impossible of cure within such
time but possible of cure within sixty (60) days, begun and
diligently pursued such cure to completion;
E. There shall be filed by or against Tenant or any
Guarantor of this Lease in any court or other tribunal a
petition in bankruptcy or insolvency proceedings or for
reorganization or for the appointment of a receiver or trustee
of all or substantially all of Tenant's, or any Guarantor's,
property, unless such petition shall be filed against Tenant
or any Guarantor of this Lease and Tenant or such Guarantor
shall in good faith promptly thereafter commence and
diligently prosecute any and all proceedings appropriate to
secure the dismissal of such petition and shall secure such
dismissal within thirty (30) days of its filing;
F. Tenant or any Guarantor of this Lease shall be
adjudicated a bankrupt or an insolvent or take the benefit of
any federal reorganization or composition proceeding, make an
assignment for the benefit of creditors, or take the benefit
of an insolvency law;
G. A trustee in bankruptcy or a receiver shall be
appointed or elected or had for Tenant or any Guarantor of
this Lease, whether under federal or state laws;
H. Tenant's interest under this Lease shall be sold
under any execution or process of law;
I. The Premises shall be abandoned or deserted or
Tenant shall fail to make continuous use of the Premises for
one (1) month for the Use; or
J. Tenant shall fail to maintain current, duly issued
occupational licenses, or any other permit or license required
by an applicable legal authority for its operations at the
Premises or Tenant shall fail to meet the insurance
requirements of this Lease and provide Certificates of
Insurance (and policies if requested) evidencing such
compliance.
REMEDIES
27. A. In the event of the occurrence of an Event of
Default by Tenant, Landlord, at Landlord's option, may elect
to do one or more of the following:
(1) Accelerate all of the remaining
Rent for the Term, in which event all Rent shall become
immediately due and payable;
(2) Terminate this Lease as
provided by this Section and re-enter the Premises and remove
all persons and property from the Premises, either by summary
proceedings or by any other suitable action or proceeding at
law, or otherwise; or
(3) Without terminating this Lease,
re-enter the Premises and remove all persons and property from
the Premises, either by summary proceedings or by any other
suitable action or proceeding at law, or otherwise, and relet
all or any part of the Premises.
B. If Landlord elects to terminate this
Lease:
(1) Landlord shall give notice of
such termination, which shall take effect ten (10) days after
such notice is given, or such greater number of days as is set
forth in such notice, fully and completely as if the effective
date of such termination were the date originally set forth in
this Lease for the expiration of the Term;
(2) Tenant shall quit and
peacefully surrender the Premises to Landlord, without any
payment by Landlord for doing so, on or before the effective
date of termination; and
(3) All Rent, including all Base
Rent and Additional Rent (including arrearages), shall become
due and shall be paid up to the effective date of termination,
together with such expenses, including attorneys' fees, as
Landlord shall incur in connection with such termination.
C. No receipts of monies by Landlord from
Tenant after termination of this Lease shall reinstate,
continue, or extend the Term, affect any Notice previously
given by Landlord to Tenant, or operate as a waiver of the
right of Landlord to enforce the payment of Rent.
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D. If Landlord shall terminate this Lease,
Landlord shall be entitled to retain, free of trust, all sums
then held by Landlord pursuant to any of the provisions of
this Lease. In the interim following such termination until
the retention of such sums by Landlord free of trust, such
sums shall be available to Landlord, but not to Tenant,
pursuant to and for the purposes provided by the terms and
conditions of this Lease.
E. In the event of any re-entry and/or
dispossession by summary proceedings or otherwise without
termination of this Lease:
(1) All Rent shall become due and
shall be paid up to the time of such re-entry and/or
dispossession, together with such expenses, including
attorneys' fees, as Landlord shall incur in connection with
such re-entry and/or dispossession by summary proceedings or
otherwise; and
(2) All Rent for the remainder of
the Term may be accelerated and due in full, the collection of
such sums being subject to the provisions of Subsection F,
below; and
(3) Landlord may relet all or any
part of the Premises, either in the name of Landlord or
otherwise, for a term or terms which may, at Landlord's
option, be equal to, less than, or greater than the period
which would otherwise have constituted the balance of the
Term. In connection with such reletting:
(a) Tenant or Tenant's
representative shall pay, as Additional Rent, to Landlord, as
they are incurred by Landlord, such reasonable expenses as
Landlord may incur in connection with reletting, including,
without limitation, legal expenses, attorneys' fees, brokerage
commissions, and expenses incurred in altering, repairing, and
putting the Premises in good order and condition and in
preparing the Premises for reletting;
(b) Tenant or Tenant's
representative shall pay to Landlord, in monthly installments
on the due dates for Rent payments for each month of the
balance of the Term, the amount by which any Rent payment
exceeds the net amount, if any, of the rents for such period
collected on account of the reletting of the Premises; any
suit brought to collect such amount for any month or months
shall not prejudice in any way the rights of Landlord to
collect the deficiency for any subsequent month or months by a
similar action or proceeding;
(c) At Landlord's option
exercised at any time, Landlord shall be entitled to recover
immediately from Tenant, in addition to any other proper
claims, but in lieu of and not in addition to any amount which
would thereafter become payable under the preceding
subsection, a sum equal to the amount by which the sum of the
Rent for the balance of the Term, compound discounted at a
reasonable rate selected by Landlord to its then-present
worth, exceeds the net rental value of the Premises, compound
discounted at the same annual rate to its then-present worth,
for the balance of the Term. In determining such net rental
value of the Premises, the rent realized by any reletting of
the Premises, if such reletting is upon terms (other than
rental amounts) generally comparable to the terms of this
Lease, shall be deemed to be such net rental value; and
(d) At Landlord's option,
Landlord may make such alterations and/or decorations in or
upon the Premises as Landlord, in Landlord's sole judgment,
considers advisable and necessary for the purpose of reletting
the Premises; the making of such alterations and/or
decorations shall not operate or be construed to release
Tenant from liability under this Section; the cost of all such
alterations and/or decorations shall be paid by Tenant to
Landlord as Additional Rent.
F. Landlord shall have, receive, and enjoy
as Landlord's sole and absolute property, any and all sums
collected by Landlord as rent or otherwise upon reletting the
Premises after Landlord shall resume possession of the
Premises as provided by this Lease, including, without
limitation, any amounts by which the sum or sums so collected
shall exceed the continuing liability of Tenant under this
Lease. If Landlord shall have accelerated Rent payments and
collected same from Tenant, and subsequently shall have relet
the Premises, then Landlord, after deducting all costs related
to reletting, including, but not limited to, those described
or anticipated in this Section, shall pay to Tenant the amount
remaining which is collected as Rent for each month, to the
extent Landlord shall have previously received the Rent for
such month from Tenant.
G. Landlord and Tenant agree that after the
commencement of suit for possession of the Premises or after
final order or judgment for the possession of the Premises,
Landlord may demand, receive, and collect any monies due or
coming due without in any manner affecting such suit, order,
or judgment. All such monies collected shall be deemed to be
payments on account of the use and occupation of the Premises,
or, at the election of Landlord, on account of Tenant's
liability under this Lease.
H. The words "re-enter" and "re-entry", as
used in this Section, are not and shall not be restricted to
their technical legal meaning, but are used in the broadest
sense.
I. Tenant waives all rights of redemption
which may otherwise be provided by any legal
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requirement in the event that Landlord shall, because of the
occurrence of an Event of Default by Tenant, obtain possession
of the Premises under legal proceedings, or pursuant to
present or future law or to the terms and conditions of this
Lease.
J. Landlord, in addition to other rights and
remedies it may have, shall have the right to (a) keep in
place and use all of the furniture, fixtures, and equipment in
the Premises, including that which is owned by or leased to
Tenant, and (b) to remove all or any part of Tenant's property
from the Premises and any property removed may be sold,
disposed of, or stored in any public warehouse or elsewhere at
the cost of and for the account of Tenant. Landlord shall not
be responsible for the care or safekeeping of such property,
whether in transport, storage or otherwise. Tenant waives any
and all claim against Landlord for loss, destruction and/or
damage or injury which may be occasioned by any of the
aforesaid acts; Tenant shall be liable to Landlord for costs
incurred by Landlord in connection with any storage, transport
or other acts anticipated in this Section and shall hold
harmless and indemnify Landlord from all loss, damage, cost,
expense and liability in connection therewith. No re-entry or
taking possession of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this
Lease unless a written notice of such intention is given to
Tenant. Notwithstanding any such re-letting without
termination, Landlord may at all times thereafter elect to
terminate this Lease for such previous default. Any such
re-entry shall be allowed by Tenant without hindrance, and
Landlord shall not be liable in damages for any such re-entry,
or guilty of trespass or forcible entry.
K. Landlord shall be entitled, without
notice or bond, to the issuance of pre-judgment writs of
replevin, pre-judgment distress writs, attachment writs, break
open orders, orders authorizing the locking of the Premises to
protect Landlord's lien on personal property, fixtures and
equipment, and such other orders as may be issued by a court
of law or equity. Landlord shall have the right to take
possession as allowed under Chapter 78, Florida Statutes. The
remedies described in this Section are cumulative and in
addition to and without waiver of all remedies allowed
Landlord by this Lease or by case law, common law and statute
now or hereinafter in effect. Tenant agrees that the rights
and remedies granted Landlord in this Section are commercially
reasonable.
ADMINISTRATIVE CHARGES
28. In the event a Rent payment is not received
within five (5) business days after its due date, interest
shall be due thereon at the rate of 18% per annum, on the then
total Rent due and unpaid. This interest shall accrue on the
amount unpaid, including prior interest and administrative
fees and late charges, and shall become immediately due and
payable from Tenant to Landlord, without notice or demand, at
the place of payment. In the event any check, bank draft or
negotiable instrument given for any payment under this Lease
shall be dishonored at any time for any reason whatsoever not
attributable to Landlord, Landlord shall be entitled, in
addition to any other remedy that may be available, to an
administrative charge of Two Hundred Dollars ($200.00). These
provisions for administrative fees and late charges are not,
and shall not be deemed, grace periods. Such administrative
fees and late charges are not penalties, but liquidated
damages to defray administrative, collection, and related
expenses due to Tenant's failure to make such Rent payment
when due or failure to process the dishonored instrument. An
additional administrative fee and late charge shall become
immediately due and payable on the first day of each month for
which all or a portion of a Rent payment (together with any
administrative fee and late charge) remains unpaid, and for
each dishonored instrument.
LIEN FOR PAYMENT OF RENT
29. Landlord shall have, and Tenant grants to
Landlord, a security interest in any furnishings, equipment,
fixtures, inventory, accounts receivable, licenses and other
personal property of any kind belonging to Tenant, or the
equity of Tenant in such items, on the Premises or elsewhere.
Such security interest is granted for the purposes of securing
the payment of Rent and other charges, assessments, penalties,
and damages required under this Lease to be paid by Tenant,
and of securing the performance of all other obligations of
Tenant under this Lease. Upon Tenant's default or breach of
any terms and conditions of this Lease, Landlord shall have
all remedies available under applicable law, equity or as
provided in this Lease including without limitation, the right
to take possession of any or all of the items referred to in
this Section and dispose of them by public or private sale in
a commercially reasonable manner. Landlord shall also have the
right to relinquish possession of all or any portion of such
furniture, fixtures, equipment and other property to any
person ("Claimant") claiming to be entitled to possession
thereof who presents to Landlord a copy of any instruments
represented to Landlord by Claimant to have been executed by
Tenant (or any predecessor of Tenant) granting Claimant the
right under various circumstances to take possession of such
furniture, fixtures, equipment or other property, without the
necessity on the part of Landlord to inquire into the
authenticity of said instrument's copy of Tenant's or Tenant's
predecessor's signature thereon and without the necessity of
Landlord making any nature of investigation or inquiry as to
the validity of the factual or legal basis upon which Claimant
purports to act; and Tenant agrees to indemnify and hold
Landlord harmless from all cost, expense, loss, damage and
liability incident to Landlord's relinquishment of possession
of all or any portion of such furniture, fixtures, equipment
or other property to Claimant. The provision for a landlord's
lien as described in this Article shall be in addition to, and
not in substitution for, any landlord's lien and similar
remedies otherwise provided by statutory or common law.
To the extent, if any, that this Lease
grants Landlord any lien or lien rights greater than provided
by the laws of the State of Florida pertaining to landlords'
liens, this Lease is intended as and constitutes a security
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Landlord/Tenant
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agreement within the meaning of the Uniform Commercial Code.
Landlord, in addition to the rights prescribed in this Lease,
shall have a Security Interest, as that term is defined under
this state's Uniform Commercial Code, in the items referred to
in this Section to secure the payment to Landlord of the
various amounts provided for in this Lease. Tenant agrees to
and shall execute and deliver to Landlord such financing
statements and such further assurances as Landlord may, from
time to time, consider necessary to create, perfect, and
preserve the lien described and all additional substitutions,
replacements, and accessions thereto, and all proceeds of its
or their sale or the disposition (under the Uniform Commercial
Code, other statutory provisions, or otherwise). Landlord, at
the expense of Tenant, may cause such financing statements and
assurances to be recorded and re-recorded, filed and re-filed,
and renewed or continued, at such times and places as may be
required or permitted by law to create, perfect, and preserve
such items. In the event Tenant fails to promptly execute and
return to Landlord such financing statements and other
instruments as Landlord may require to create, preserve, and
perfect its lien, Tenant shall and does hereby designate
Landlord to act as Tenant's agent and attorney in fact for the
sole and limited purpose of executing such financing
statements and other instruments and any such execution by
Landlord pursuant to this Lease shall be effective and binding
upon Tenant as though executed originally by Tenant, such
designation being a power coupled with an interest which gives
full power and authority to execute and deliver the designated
documentation on behalf of Landlord and which is a material
inducement to Landlord to enter into this Lease. Tenant's
designation of Landlord as agent and attorney-in-fact
hereunder shall not be subject to revocation until this Lease
is terminated.
WAIVER OF DEFAULT
30. Failure of Landlord to declare any default
immediately upon occurrence thereof, or delay in taking any
action in connection therewith, shall not waive such default,
but Landlord shall have the right to declare any such default
at any time and take such action as might be lawful or
authorized hereunder, in law and/or in equity. No waiver by
Landlord of a default by Tenant shall be implied, and no
express waiver by Landlord shall affect any default other than
the default specified in such waiver and that only for the
time and extension therein stated.
No waiver of any term, provision, condition or
covenant of this Lease by Landlord shall be deemed to imply or
constitute a further waiver by Landlord of any other term,
provision, condition or covenant of this Lease. In addition to
any rights and remedies specifically granted Landlord herein,
Landlord shall be entitled to all rights and remedies
available at law and in equity, whether existing at time of
execution or of enforcement of this Lease, in the event that
Tenant shall fail to perform any of the terms, provisions,
covenants or conditions of this Lease on Tenant's part to be
performed or fails to pay Base Rent, Additional Rent or any
other sums due Landlord when due. All rights and remedies
specifically granted to Landlord herein, by law and in equity
shall be cumulative and not mutually exclusive.
RIGHT OF ENTRY
31. Landlord, or any of its agents, shall have the
right to enter the Premises during all reasonable hours to
examine the same or to make such repairs, additions or
alterations as may be deemed necessary for the safety,
comfort, or preservation thereof, or to said Building, or to
exhibit said Premises at any time within one hundred fifty
(150) days before the expiration of this Lease. Said right of
entry shall likewise exist for the purpose of removing
placards, signs, fixtures, alterations, or additions which do
not conform to this Lease.
NOTICE
32. Any notice given Landlord as provided for in this
Lease shall be sent to Landlord by registered mail addressed
to Landlord at Landlord's Management Office. Any notice to be
given Tenant under the terms of this Lease, unless otherwise
stated herein, shall be in writing and shall be personally
delivered or sent by registered mail or by nationally (U.S.)
recognized overnight delivery service to the office of Tenant
in the Building. Either party, from time to time, by such
notice, may specify another address in the continental United
States to which subsequent notice shall be sent.
LANDLORD CONTROLLED AREAS
33. All automobile parking areas, driveways,
entrances and exits thereto, Common Areas, and other
facilities furnished by Landlord, including all parking areas,
truck way or ways, loading areas, pedestrian walkways and
ramps, landscaped areas, stairways, corridors, and other areas
and improvements provided by Landlord for the general use, in
common, of tenants, their officers, agents, employees,
servants, invitees, licensees, visitors, patrons and
customers, shall be at all times subject to the exclusive
control and management of Landlord, and Landlord shall have
the right from time to time to establish, modify and enforce
rules and regulations with respect to all facilities and areas
and improvements; to police same; from time to time to change
the area, level and location and arrangement of parking areas
and other facilities hereinabove referred to; to restrict
parking by and enforce parking charges (by operation of meters
or otherwise) to tenants, their officers, agents, invitees,
employees, servants, licensees, visitors, patrons and
customers; to close all or any portion of said areas or
facilities to such extent as may in the opinion of Landlord's
counsel be legally sufficient to prevent a dedication thereof
or the accrual of any rights to any person or the public
therein; to close temporarily all or any portion of the public
areas, Common Areas or facilities; to discourage non-tenant
parking; and to
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Landlord/Tenant
-13-
do and perform such other acts in and to said areas and
improvements as, in the sole judgment of Landlord, Landlord
shall determine to be advisable with a view to the improvement
of the convenience and use thereof by tenants, their officers,
agents, employees, servants, invitees, visitors, patrons,
licensees and customers. Landlord will operate and maintain
the Common Areas and other facilities referred to in such
reasonable manner as Landlord shall determine from time to
time. Without limiting the scope of such discretion, Landlord
shall have the full right and authority to designate a manager
of the parking facilities and/or Common Areas and other
facilities who shall have full authority to make and enforce
rules and regulations regarding the use of the same or to
employ all personnel and to make and enforce all rules and
regulations pertaining to and necessary for the proper
operation and maintenance of the parking areas and/or Common
Areas and other facilities. Reference in this section to
parking areas and/or facilities shall in no way be construed
as giving Tenant hereunder any rights and/or privileges in
connection with such parking areas and/or facilities unless
such rights and/or privileges are expressly set forth in this
Lease.
CONDITION OF PREMISES
ON TERMINATION OF LEASE
AND HOLDING OVER
34. Tenant agrees to surrender to Landlord, at the
end of the Term and/or upon any cancellation of this Lease,
said Premises in as good condition as said Premises were at
the beginning of the Term of this Lease, ordinary wear and
tear and damage by fire or other casualty not caused by
Tenant's negligence excepted. Tenant agrees that if Tenant
does not surrender said Premises to Landlord at the end of the
Term then Tenant will pay to Landlord double the amount of the
current rental for each month or portion thereof that Tenant
holds over plus all damages that Landlord may suffer on
account of Tenant's failure to so surrender to Landlord
possession of said Premises, and will indemnify and hold
Landlord harmless from and against all claims made by any
succeeding Tenant of said Premises against Landlord on account
of delay of Landlord in delivering possession of said Premises
to said succeeding tenant so far as such delay is caused by
failure of Tenant to so surrender the Premises.
No receipt of money by Landlord from Tenant after
termination of this Lease or the service of any notice of
commencement of any suit or final judgment for possession
shall reinstate, continue or extend the Term or affect any
such notice, demand, suit or judgment.
No act or thing done by Landlord or its agents during
the Term shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it be made in writing and
subscribed by a duly authorized officer or agent of Landlord.
OCCUPANCY TAX
35. Tenant shall be responsible for and shall pay
before delinquency all municipal, county or state taxes
assessed during the Term of this Lease against any occupancy
interest or personal property of any kind, owned by or placed
in, upon or about the Premises by Tenant.
SIGNS
36. Landlord shall have the right to install signs on
the interior or exterior of the Building and Premises and/or
change the Building's name or street address. Landlord shall
provide space on the Building tenant directory for the name of
Tenant.
TRIAL BY JURY
37. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THEM
AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, AND TENANT'S USE OR OCCUPANCY OF THE PREMISES. Tenant
further agrees that it shall not interpose any counterclaim or
counterclaims, except compulsory counterclaims, in a summary
proceeding or in any action based upon nonpayment of rent or
any other payment required of Tenant hereunder. Upon
Landlord's request, Tenant shall participate in mediation of a
dispute between Landlord and Tenant; the cost of a mediator
shall be borne equally by Landlord and Tenant.
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Landlord/Tenant
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RELOCATION OF TENANT
38. Landlord expressly reserves the right at
Landlord's sole cost and expense, to remove Tenant from the
Premises and to relocate Tenant in some other space within the
Building, which other space shall be decorated by Landlord at
Landlord's expense. Landlord shall have the right, in
Landlord's sole discretion, to use such decorations and
materials as may have been used in the original Premises.
Nothing herein contained shall be construed to relieve Tenant
or imply that Tenant is relieved of the liability for or
obligation to pay any Additional Rent due by reason of the
provisions of Section 3A of this Lease, the provisions of
which section shall be applied to the space in which Tenant is
relocated on the same basis as said provisions were applied to
the Premises from which Tenant is removed. Tenant agrees that
Landlord's exercise of its election to remove and relocate
Tenant shall not terminate this Lease or release Tenant, in
whole or in part, from Tenant's obligation to pay the rents
and perform the covenants and agreements hereunder for the
full Term.
CROSS DEFAULT
39. If the term of any lease, other than this Lease,
made by Tenant for any other space in the Building shall be
terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such
default shall, ipso facto, constitute a default hereunder and
empower Landlord, at Landlord's sole option, to terminate this
Lease as herein provided in the event of default.
INVALIDITY OF PROVISION
40. If any term, provision, covenant or condition of
this Lease or the application thereof to any person or
circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application
of such term, provision, covenant or condition to persons or
circumstances other than those as to which it is held invalid
or unenforceable shall not be affected thereby and each term,
provision, covenant or condition of this Lease shall be valid
and be enforceable to the fullest extent permitted by law.
This Lease shall be construed in accordance with the laws of
the State of Florida.
TIME OF ESSENCE
41. Time is of the essence of all the terms,
provisions, covenants and conditions of this Lease.
MISCELLANEOUS
42. The terms Landlord and Tenant as herein contained
shall include singular and/or plural, masculine, feminine
and/or neuter, heirs, successors, executors, administrators,
personal representatives and/or assigns wherever the context
so requires or admits. The terms, provisions, covenants and
conditions of this Lease are expressed in the total language
of this Lease Agreement and the section headings are solely
for the convenience of the reader and are not intended to be
all inclusive. Any exhibit or attachment or formally executed
addendum to or modification of this Lease shall be expressly
deemed incorporated by reference herein unless a contrary
intention is clearly stated therein.
EFFECTIVE DATE
43. Submission of this instrument for examination
does not constitute an offer, right of first refusal,
reservation of or option for the Premises or any other space
or premises in, on or about the Building. This instrument
becomes effective as a lease only upon execution and delivery
by both Landlord and Tenant.
ENTIRE AGREEMENT
44. This Lease contains the sole and entire agreement
between the parties hereto and supersedes all previous written
or oral negotiations or agreements between the parties with
respect to the subject matter of this Lease, and it may be
modified only by an agreement in writing signed by Landlord
and Tenant. No surrender of the Premises, or of the remainder
of the term of this Lease, shall be valid unless accepted by
Landlord in writing. Tenant acknowledges and agrees that
Tenant has not relied upon any statement, representation,
prior written or contemporaneous oral promises, agreements or
warranties except such as are expressed herein. All of the
parties to this Lease have participated in its negotiations
and preparation; accordingly, this Lease shall not be more
strictly construed against any one of the parties.
BROKERAGE
45. Tenant represents and warrants that it has dealt
with no broker, agent or other person other than Landlord and
Landlord's broker Highwoods Properties, Inc. (which entity is
related to Landlord) in connection with this transaction and
that no broker, agent or other person, other than Tenant,
Landlord or Landlord's broker Highwoods Properties, Inc.,
brought about this transaction. Tenant agrees to indemnify and
hold harmless Landlord from and against any claims by any
other broker, agent or other person claiming a commission or
other form of compensation by virtue or
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Landlord/Tenant
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having dealt with Tenant with regard to this leasing
transaction. The provisions of this section shall survive the
termination of this Lease.
FORCE MAJEURE
46. Landlord shall not be required to perform any
term, condition, or covenant in this Lease so long as such
performance is delayed or prevented by force majeure, which
shall mean acts of God, labor disputes (whether lawful or
not), material or labor shortages, restrictions by any
governmental authority, civil riots, floods, and any other
cause not reasonably within the control of Landlord and which
by the exercise of due diligence Landlord is unable, wholly or
in part, to prevent or overcome. Lack of money shall not be
deemed force majeure.
STATUTORY RADON GAS NOTICE
47. Radon Gas: Radon is a naturally occurring
radioactive gas that when it has accumulated in a building in
sufficient quantity, may present health risks to persons who
are exposed to it over time. Levels of Radon that exceed
Federal and State guidelines have been found in buildings in
Florida. Additional information regarding Radon and Radon
testing may be obtained from your County Public Health Unit.
NO WAIVER
48. No waiver by Landlord of any breach by Tenant of
any term or condition of this Lease, and no failure by
Landlord to exercise any right or remedy in respect of any
such breach, shall constitute a waiver or relinquishment for
the future, or bar any right or remedy of Landlord, in respect
of any other breach of such term or condition or any breach of
any other term or condition of this Lease. No payment by
Tenant or receipt of payment by Landlord of an amount less
than the full amount then due Landlord under this Lease shall
be construed as anything other than a partial payment of such
sum then due and owing. No endorsement or statement on any
check or letter or any form of payment of accompanying
document shall be deemed to be an accord or satisfaction or
other form of settlement; Landlord may accept any such payment
without prejudice to its rights to recover the balance of sums
due and owing under this Lease or to pursue any other remedy
permitted under this Lease.
SURVIVAL
49. All obligations of Tenant which are or may be
intended by their nature to be performed and/or complied with
after the expiration or earlier termination of this Lease
shall survive such expiration or termination. Express
provisions in this Lease which require or permit survival in
specific instances, or as to specific obligations, shall not
be deemed a limitation upon the generality of this survival
clause.
PROVISIONS SEVERABLE
50. Every provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law. If any
provision of this Lease, or the application of such provision
to any person or circumstance, shall be determined by
appropriate judicial authority to be illegal, invalid, or
unenforceable to any extent, such provision shall, only to
such extent, be deemed stricken from this Lease as if never
included. The remainder of this Lease, and the application of
such provision to persons or circumstances other than those as
to which such provision is held illegal, invalid, or
unenforceable, shall not be affected.
BINDING EFFECT
51. The terms and conditions of this Lease shall bind
the parties and their respective successors and assigns, and
shall inure to the benefit of the parties and their respective
permitted successors and assigns. Any waiver of rights by
either party shall be deemed not only to be a waiver of such
rights by such party but also a waiver of such rights for and
on behalf of such party's successors and assigns. This Lease
may be changed, amended, or modified only by an agreement in
writing signed by the party against whom such change,
amendment, or modification is sought to be enforced. If
Tenant, with Landlord's consent, shall occupy the Premises
prior to the beginning of the Term as specified above, all
provisions of this Lease shall be in full force and effect
connecting upon such occupancy, and rent for such period shall
be paid by Tenant at the same rate herein specified. Tenant
recognizes and acknowledges that the provisions of this
paragraph are material inducements to Landlord to enter into
this Lease.
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Landlord/Tenant
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RIGHT OF FIRST OFFER
52. Provided Tenant is not in default as of the date
of exercise of its right of first offer, Tenant shall have a
one-time right of first offer on available space on the second
(2nd) floor of the Building (subject to the existing rights of
any other tenant). Between the date space becomes available in
the Building (or Landlord learns space will become available)
and the date Landlord leases such vacant space to a tenant,
Landlord will advise Tenant in writing of the vacancy. Tenant
will have 5 business days from receipt of Landlord's notice to
notify Landlord in writing that Tenant desires to lease the
vacant space. Landlord will notify Tenant of the proposed
rental terms for such space to Tenant. The proposed rental
terms for such additional space will be for a minimum term of
five years, will not include any tenant improvements and will
be at market rental rates as determined by Landlord in good
faith. Tenant shall have five business days to accept or
reject the subject space on the terms proposed by Landlord. If
Tenant rejects Landlord's proposal (a failure of Tenant to
respond within the five business day period will be deemed a
rejection), Landlord shall be free to lease the space to a
third party on terms not materially more favorable than those
proposed to Tenant within 30 days of Tenant's rejection of the
right of first offer, and on any terms whatsoever thereafter.
If Tenant accepts Landlord's proposal, Tenant will enter a
lease for the space, furnished by Landlord and consistent with
Landlord's offer within 15 days. The Right of First Offer
shall become null and void should Tenant reduce its square
footage pursuant to Paragraph 53 of the Lease or for any
reason during the term of the Lease.
FOURTH FLOOR CANDELLATION
53. Provided Tenant is not in default as of the date
of exercise of this provision, Tenant shall have the right to
terminate its occupancy of Suite 401 and 403 (identified on
Exhibit A) by providing Landlord with at least 6 months prior
written notice.
IN WITNESS WHEREOF, the parties hereto, have signed, sealed and delivered this
Lease in quadruplicate at Broward County, Florida, on the date and year first
above written.
WITNESSES: LANDLORD: HIGHWOODS/FLORIDA HOLDINGS, L.P.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________ By: Highwoods Properties, Inc.
Name: its Agent
/s/ ILLEGIBLE
___________________________________
Name: By: /S/ ILLEGIBLE
-------------------------------
Its: Vice President
WITNESSES: TENANT: TECHNISOURCE, INC.
/s/ ILLEGIBLE
___________________________________ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Its: Vice President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
Name:
EXHIBITS:
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