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L E A S E A G R E E M E N T
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SOUTH PALM BEACH FINANCIAL CORP.
Landlord
and
FIRST COLONIAL SECURITIES GROUP, INC.
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Tenant
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TABLE OF
CONTENTS
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ARTICLE CAPTION PAGE NO.
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ARTICLE I ..................................................................... 1
DEFINITIONS .............................................................. 1
Section 1.1 "Additional Rent," ................................. 1
Section 1.2 "Annual Factor" .................................... 1
Section 1.3 "Annual Rent" ...................................... 1
Section 1.4 "Applicable Month of Adjustment" ................... 1
Section 1.5 "B.O.M.A." ......................................... 1
Section 1.6 "Base Rent" ........................................ 1
Section 1.7 "Building" ......................................... 1
Section 1.8 "Building Land" .................................... 1
Section 1.9 "Business Days" .................................... 1
Section 1.10 "Commencement Date" ................................ 2
Section 1.11 "Common Areas" ..................................... 2
Section 1.12 "Complex" .......................................... 2
Section 1.13 "Default" .......................................... 2
Section 1.14 "Fiscal Year" ...................................... 2
Section 1.15 "Index" ............................................ 2
Section 1.16 "Landlord" ......................................... 2
Section 1.17 "Lease Year" ....................................... 2
Section 1.18 Notice Addresses .................................. 2
Section 1.19 "Normal Business Hours" ............................ 2
Section 1.20 "Premises" ......................................... 2
Section 1.21 "Rentable AREA" .................................... 2
Section 1.22 "Rent" ............................................. 3
Section 1.23 "Security Deposit" ................................. 3
Section 1.24 "Specific Brokers" ................................. 3
Section 1.25 "Tenant" ........................................... 3
Section 1.26 "Tenant's Proportionate Share" ..................... 3
Section 1.27 "Tender of Possession", "Tenders Possession" or
"Tendered Possession" .............................. 3
Section 1.28 "Term" ............................................. 3
Section 1.29 "Use" .............................................. 3
ARTICLE II .................................................................... 3
PREMISES ................................................................. 3
ARTICLE III ................................................................... 3
BUILDING, PREMISES AND TERM .............................................. 3
Section 3.1 Term ................................................... 3
Section 3.2 Acceptance of Leased Premises .......................... 3
Section 3.3 Quiet Enjoyment ........................................ 4
Section 3.4 Not Completed .......................................... 4
ARTICLE IV .................................................................... 4
RENT AND ADJUSTMENT TO RENT .............................................. 4
Section 4.1 Payment of Annual Rent .............................. 4
Section 4.2 Adjustment of Rent .................................. 4
Section 4.3 Tenant Personal Property ............................ 4
Section 4.4 Tenant Utilities .................................... 5
Section 4.5 Common Areas and Operating Expenses ................. 5
Section 4.5.1 Common Areas ........................................ 5
Section 4.5.2 Operating Expenses .................................. 5
Section 4.6 Left Blank Intentionally ............................ 5
Section 4.7 Sales Tax ........................................... 5
Section 4.8 Place for Payment of Rent ........................... 5
Section 4.9 Gross Rent .......................................... 6
ARTICLE V ..................................................................... 6
CONSTRUCTION OF PREMISES ................................................. 6
ARTICLE VI .................................................................... 6
SIGNS .................................................................... 6
ARTICLE VII ................................................................... 6
SERVICES ................................................................. 6
ARTICLE VIII .................................................................. 8
USE ...................................................................... 8
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ARTICLE IX .................................................................... 8
FINANCING ................................................................. 8
Section 9.1 Subordination ............................................ 8
Section 9.2 Attornment ............................................... 8
Section 9.3 Joinders ................................................. 9
Section 9.4 Lender's Approval ........................................ 9
ARTICLE X ..................................................................... 9
ASSIGNMENT, SUBLETTING, PLEDGING OR ENCUMBERING OF LEASE .................. 9
ARTICLE XI .................................................................... 12
ADDITIONAL COVENANTS ...................................................... 12
Section 11.1 Additional Covenants of Tenant .......................... 12
Section 11.2 Rules and Regulations ................................... 12
Section 11.3 Compliance with Laws and Requirements
Governmental Authorities ................................ 12
ARTICLE XII ................................................................... 12
DEFAULT ................................................................... 12
Section 12.1 Immediate Default-Bankruptcy, Receivership,
Insolvency .............................................. 12
Section 12.2 Monetary Default ........................................ 12
Section 12.3 Other Defaults .......................................... 12
Section 12.4 Abandonment of Premises ................................. 12
Section 12.5 Landlord's Remedies Upon Default ........................ 13
Section 12.6 Notice .................................................. 13
Section 12.7 Attorneys' Fees and Costs ............................... 13
Section 12.8 Interest ................................................ 13
Section 12.9 Late Charge ............................................. 14
ARTICLE XIII .................................................................. 14
LANDLORD'S INTEREST NOT SUBJECT TO ........................................ 14
Section 13.1 Landlord's Interest Not Subject to Liens ................ 14
Section 13.2 Tenant's Obligation to Remove Liens ..................... 14
ARTICLE XIV ................................................................... 15
REPAIRS AND MAINTENANCE ................................................... 15
Section 14.1 Repairs by Landlord ..................................... 15
Section 14.2 Repairs and Maintenance by Tenant ....................... 15
ARTICLE XV .................................................................... 15
ADDITIONS AND ALTERATIONS ................................................. 15
Section 15.1 By Landlord ............................................. 15
Section 15.2 By Tenant ............................................... 15
ARTICLE XVI ................................................................... 16
INSURANCE ................................................................. 16
Section 16.1 Insurance Coverage ...................................... 16
Section 16.2 Policy Standard ......................................... 16
Section 16.3 Named Insured ........................................... 17
Section 16.4 Waiver of Subrogation ................................... 17
Section 16.5 Certificates ............................................ 17
Section 16.6 Re-evaluation of Coverage ............................... 17
Section 16.7 Landlord's Right to Make insurance Payments ............. 17
Section 16.8 Compliance with Policies ................................ 18
ARTICLE XVII .................................................................. 18
INDEMNITY ................................................................. 18
ARTICLE XVIII ................................................................. 19
LIEN FOR RENT AND LANDLORD'S PROPERTY ..................................... 19
Section 18.1 Lien for Rent ............................................ 19
Section 18.2 Landlord's Property ...................................... 19
ARTICLE XIX ................................................................... 19
REMEDIES CUMULATIVE -- WAIVER NOT TO BE INFERRED .......................... 19
ARTICLE XX .................................................................... 20
RIGHT OF INSPECTION ....................................................... 20
Section 20.1 Right of Inspection ...................................... 20
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Section 20.2 Access.................................................... 20
Section 20.3 Ducts .................................................... 20
Section 20.4 Changes to Building ...................................... 20
Section 20.5 Right to Exhibit Premises ................................ 20
ARTICLE XXI ................................................................... 20
SURRENDER UPON TERMINATION ................................................ 20
ARTICLE XXII .................................................................. 21
DURATION OF LIABILITY ..................................................... 21
Section 22.1 Duration of Liability .................................... 21
Section 22.2 Damage to Property or Persons ............................ 21
Section 22.3 Limit of Liability ....................................... 22
ARTICLE XXIII ................................................................. 22
TIME OF ESSENCE ........................................................... 22
ARTICLE XXIV .................................................................. 22
EMINENT DOMAIN ............................................................ 22
Section 24.1 Tenant's Duty ............................................ 22
Section 24.2 Condemnation ............................................. 22
Section 24.3 Governmental Action Short of Physical Taking ............. 23
ARTICLE XXV ................................................................... 23
DAMAGE OR DESTRUCTION OF BUILDING ......................................... 23
Section 25.1 Tenant's Duty ............................................ 23
Section 25.2 Rent Abatement ........................................... 23
Section 25.3 Substantial Destruction .................................. 23
Section 25.4 Repair of Damage ......................................... 23
ARTICLE XXVI .................................................................. 23
NOTICES ............................................................. 23
ARTICLE XXVII ................................................................. 24
ESTOPPEL CERTIFICATE, PROHIBITION OF RECORDING LEASE ...................... 24
Section 27.1 Estoppel Certificate ..................................... 24
Section 27.2 Lease Not to be Recorded ................................. 24
ARTICLE XXVIII ................................................................ 24
REPRESENTATIONS AND AGREEMENTS ............................................ 24
ARTICLE XXIX .................................................................. 24
SECURITY DEPOSIT .......................................................... 24
ARTICLE XXX ................................................................... 25
EXCUSE OF LANDLORD'S PERFORMANCE .......................................... 25
ARTICLE XXXI .................................................................. 25
RELATIONSHIP OF THE PARTIES ............................................... 25
ARTICLE XXXII ................................................................. 25
REQUIREMENT OF EXECUTION .................................................. 25
ARTICLE XXXIII ................................................................ 25
SCOPE OF LEASE ............................................................ 25
ARTICLE XXXIV ................................................................. 25
GOVERNING LAW ............................................................. 25
ARTICLE XXXV .................................................................. 26
ACCORD AND SATISFACTION ................................................... 26
ARTICLE XXXVI ................................................................. 26
PROVISIONS RELATING TO INTERPRETATION ..................................... 26
ARTICLE XXXVII ................................................................ 26
EFFECT OF INVALIDITY OF ANY PROVISION ..................................... 26
ARTICLE XXXVIII ............................................................... 26
BROKERAGE ................................................................. 26
ARTICLE XXXIX ................................................................. 26
JOINT PREPARATION .......................................................... 26
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ARTICLE XL .................................................................... 26
RADON GAS ................................................................. 26
ARTICLE XL .................................................................... 27
PARKING SPACES ............................................................ 27
ARTICLE XLII .................................................................. 27
CONDITION OF PREMISES ..................................................... 27
EXHIBIT "A" ................................................................... 28
LEGAL DESCRIPTION - BUILDING LAND ......................................... 28
EXHIBIT "B" ................................................................... 29
FLOOR PLAN ................................................................ 29
EXHIBIT "C" ................................................................... 30
RULES AND REGULATIONS ..................................................... 30
EXHIBIT "D" ................................................................... 33
JANITORIAL SERVICES ....................................................... 33
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LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("Lease") made by and between South Palm Beach
Financial Corporation, having its principal office at 1499 W. Palmetto Park Rd.,
Suite 400, Boca Raton, Florida 33486 ("Landlord") and First Colonial Securities
Group, Inc. having its principal office at 1499 W. Palmetto Park Road, Suite
312, Boca Raton, Florida 33486 ("Tenant").
WITNESSETH:
In consideration of the respective representations and agreements here
contained, Landlord and Tenant covenant and agree as follows:
ARTICLE I
DEFINITIONS
-----------
In addition to the words and terms elsewhere defined in this Lease, the
following words and terms as used in this Lease shall have the following
meanings unless the context or use indicates another or different meaning
intent:
Section 1.1 "Additional Rent," shall mean including, but not limited to
Florida State Sales and Use Tax and after hours air conditioning.
Section 1.2 "Annual Factor" not applicable.
Section 1.3 "Annual Rent" shall mean an amount which shall initially be
the Base Rent for one year and shall be adjusted upwards on each, Applicable
Month of Adjustment whereby the Base Rent then in effect shall be adjusted
upwards per Section 4.2.
Section 1.4 "Applicable Month of Adjustment" shall be the first day of
the first month following the end of the first Lease Year (i.e. the first day of
the second Lease Year) and the first day of each and every Lease Year
thereafter.
Section 1.5 "B.O.M.A." shall mean the Standard Method of Floor Measure
as published by the Building Owners and Managers Association International
Reprint May 1981 ANSIZ65.1-1980 (Revision of ANSIZ65.1-1972) approved July 31,
1980 by the American National Standards Institutes, Inc. Mutually agree common
areas shall be Fourteen and 76/100 percent (14.76%).
Section 1.6 "Base Rent" for year one of the Lease shall be the sum
$45,780.00 (forty-five thousand seven hundred and eighty dollars plus tax at
$3,815.00 (three thousand eight hundred and fifteen dollars) plus tax each
month. However, the first month, May, shall be rent free. The sum of $9,043.90
is due upon the execution of this Lease. This sum represents the security
deposit and June 1995 rent inclusive of tax.
Section 1.7 "Building" shall mean that structure as is located on the
Building Land.
Section 1.8 "Building Land" shall mean that certain real property more
particularly described on Exhibit "A" annexed hereto and made a part hereof
Section 1. 9 "Business Days" shall mean all days except Saturday,
Sunday and days observed by the Federal or State government as legal holidays.
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Section 1.10 "Commencement Date" shall mean (subject to the provisions
of Article V and Section 3.4) the 1st (first) day of May, 1995.
Section 1.11 "Common Areas" shall mean the following areas as initially
constructed or as the same may by enlarged or reduced at any time hereinafter):
(i) any areas of the Building devoted to lobbies, hallways, elevators,
restrooms, janitorial closets, vending areas and other similar facilities
provided for the common use or benefit of tenants generally and/or for the
public located in the Building; (ii) within the exterior walls of the Building
used for mechanical rooms, electrical facilities, telephone closet, building
stairs, fire towers, elevator shafts, vents, stacks, pipe shafts and vertical
ducts (but shall not include any such areas designated for the exclusive use and
benefit of the Tenant); (iii) those portions of the Building Land which are
provided and maintained for the common use and benefit of Landlord and tenants
of the Building generally and employees and invitees and licensees of Landlord
and such tenants; including, without limitation, all parking areas and all
streets, sidewalks and landscaped areas comprising the Building Land.
Section 1.12 "Complex" shall mean the Building Land as may be increased
or decreased together with all improvements constructed thereon from time to
time including, but not limited to the Building and the Common Areas.
Section 1.13 "Default" shall mean a breach of this Lease by Tenant
which entitles the Landlord to exercise the remedies set forth in this Lease
Section 1.14 "Fiscal Year" shall mean the twelve (12) month period
commencing January 1st and ending on the following December 31st.
Section 1.15 "Index" not applicable.
Section 1.16 "Landlord" shall mean South Palm Beach Financial
Corporation, its grantees, successors and assigns.
Section 1.17 "Lease Year" shall mean each twelve (12) month period
beginning on the Commencement Date and each anniversary thereof, provided the
Commencement is on the first day of a month. If the Commencement Date falls on a
day other than the first day of a month, then the first Lease Year shall begin
on the first day of the calendar month next following the Commencement Date. If
the Commencement Date falls on a day other than the first day of a month, then
the Term shall be extended by the period of time ("Partial Lease Year") from
such Commencement Date through the end of the calendar month in which the
Commencement Date falls.
Section 1.18 Notice Addresses:
To Landlord: Leland M. Morris
South Palm Beach Financial Corporation
1499 W. Palmetto Park Rd.
Suite 400
Boca Raton, Florida 33486
To Tenant: Michael Golden, President
First Colonial Securities Group, Inc.
1499 W. Palmetto Park Road, Suite 312
Boca Raton, Florida 33486
Section 1.19 "Normal Business Hours" shall mean 8:00 a.m. to 5:30 p.m.
during Business Days.
Section 1.20 "Premises" shall mean the portion of the 3rd (third) floor
of the Building being substantially identified by labeling on the floor plan
annexed hereto and made a part hereof as Exhibit "B" to be known as Suite 312.
Section 1.21 "Rentable AREA" shall mean 2,775 square feet. The term
Rentable Area is comprised of rentable area in the Premises based on the
B.O.M.A. method and adding thereto an amount which allocates a portion of
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other Common Areas located in the Building. This is an agreed amount square
footage and actual square footage may vary, but neither party shall be entitled
to any increase or decrease in rent as a result of such difference if any.
Section 1.22 "Rent" shall mean all Annual Rent as total gross rent
inclusive of all "Operating Expenses".
Section 1.23 "Security Deposit" - shall mean the sum of $5,000.00 (five
thousand dollars), which Security Deposit shall be held in accordance with the
terms of the Lease, including, but not limited to, the provisions of Article
XXIX.
Section 1.24 "Specific Brokers" N/A
Section 1.25 "Tenant" shall mean First Colonial Securities Group, Inc.
and its heirs, personal representatives, successors and permitted assigns.
Section 1.26 "Tenant's Proportionate Share" not applicable.
Section 1.27 "Tender of Possession", "Tenders Possession" or "Tendered
Possession" shall mean the point in time in which the Landlord delivers the
Premises to Tenant in such a condition as to complete Tenant's Work in
accordance with Landlord's Work.
Section 1.28 "Term" shall mean 5 (five) year(s) beginning on 1st
(first) day of May 1995 and terminating on the 30th (thirtieth) day April 2000.
Section 1.29 "Use" shall mean General Office.
ARTICLE II
PREMISES
----------
Landlord does hereby demise and lease to Tenant and Tenant hires from
Landlord the Premises within the Building upon the Building Land subject to the
terms provided in this Lease to have and to hold for or the Term unless the Term
shall be sooner terminated as hereinafter provided.
ARTICLE III
BUILDING, PREMISES AND TERM
---------------------------
Section 3.1 Term. The Term shall commence on the Commencement Date. The
Landlord shall permit the Tenant, its agents, employees and contractors to have
the ability to enter the Premises prior to the Commencement Date for the purpose
of taking measurements and performing other work required in connection with
Tenant's prospective occupancy thereof, provided such entry does not interfere
with Landlord's general construction of the Building (or any portion thereof)
and/or Landlord's work to be done, if any, in preparing the Premises for Tenant
and/or other tenant's occupancy. Notwithstanding the foregoing, the Tenant shall
not be permitted access to the Premises until such time as (i) the Tenant has
provided Landlord with the insurance required by Article XVI; (ii) Tenant has
contacted Landlord and coordinated such entry to the Premises with the Landlord
and Landlord's general contractor; and (iii) the Tenant shall provide Landlord
operations of Tenant within the Premises and, except where necessary as
determined by Landlord's architect no pipes, conduits, utility lines or wires
installed by Landlord shall be exposed in the Premises.
Section 3.2 Acceptance of Leased Premises. As often as may be
reasonably requested by Landlord, Tenant shall promptly and without cost to
Landlord, execute, acknowledge and deliver to Landlord and/or Landlord's
mortgagee a written acceptance or estoppel certificate with respect to the
Premises and/or this Lease in form and substance acceptable to Landlord. The
taking of possession by Tenant of the Premises shall be conclusive evidence that
the Premises were in good and satisfactory condition at the time such Premises
were taken; provided, however, that the Tenant will have
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the right to provide Landlord with a written notice of any punch-list items
within fifteen (15) days after the Commencement Date, specifying in detail, any
items, with reasonable particularity, that do not comply with Landlord's
obligations under this Lease.
Section 3.3 Quiet Enjoyment. Tenant, upon paying the rents herein
reserved and performing and observing all of the other terms, covenants and
conditions of this Lease on Tenant's part to be performed and observed, shall
peacefully and quietly have, hold and enjoy the Premises during the Term,
subject, nevertheless, to the terms of this Lease and to any mortgage ground or
underlying leases, agreements and encumbrances to which this Lease is
subordinate.
Section 3.4 Not Completed. If the Landlord is unable to Tender
Possession of the Premises on the Commencement Date, the Landlord shall not be
subject to any liability for said delay and the validity of this Lease shall not
be impaired under such circumstances, nor shall same be construed in any way to
extend the term of this Lease. In fact, Landlord and Tenant mutually agree that
it is anticipated that the Premises will not be ready anytime prior to June 30,
1995 because of the improvements requested by Tenant in Article XLII. Tenant
agrees that full rental payments shall commence June 1, 1995 even if the
Premises are not ready at that time for occupancy as contemplated herein. This
understanding is a material inducement to Landlord to enter into this Lease.
However, in the event the Premises are not ready by July 1, 1995 the Rent
payable hereunder shall be abated (provided Tenant, or anyone acting by, through
or under Tenant, is not responsible for the inability of Landlord to Tender
Possession to Tenant) until Landlord has Tendered Possession of the Premises to
Tenant.
ARTICLE IV
RENT AND ADJUSTMENT TO RENT
---------------------------
Section 4.1 Payment of Annual Rent. Tenant shall pay Landlord without
previous demand therefore and without any setoffs or deductions whatsoever, the
Annual Rent for each Lease Year during the Term, which Annual Rent shall be
payable in equal monthly installments, payable on the first (1st) day of each
month in advance. If the Term commences on a day other than the first day of a
calendar month, Tenant shall additionally pay to Landlord on the first day of
the Term a pro rata amount of such Annual Rent for such Partial Lease year of
the Term calculated on the basis of a thirty (30) day calendar month with the
then next installment of Annual Rent being due on the first day of the next
calendar month following the month of the Commencement Date
Section 4.2 Adjustment of Rent. The Rent for each successive year shall
be as follows:
(a) For the second year $48,069.00 (forty-eight thousand and sixty-nine
dollars) plus tax at $4,005.75 (four thousand and five dollars and seventy-five
cents) plus tax per month;
(b) For the third year $50,472.00 (fifty thousand four hundred and
seventy-two dollars) plus tax at $4,206.00 (four thousand two hundred and six
dollars) plus tax per month;
(c) For the fourth year $52,992.00 (fifty-two thousand nine hundred and
ninety-two dollars) plus tax at $4,416.00 (four thousand four hundred and
sixteen dollars) plus tax per month;
(d) For the fifth year $55,644.00 (fifty-five thousand six hundred and
forty-four dollars) plus tax at $4,637.00 (four thousand six hundred and
thirty-seven dollars) plus tax per month.
Section 4.3 Tenant Personal Property
(a) Tenant shall pay, prior to delinquency, any and all taxes and
assessments levied or assessed during the Term of this Lease, upon or against:
(i) all furniture, fixtures, equipment and any other personal property installed
or located within the Premises; and (ii) the Rent payable hereunder by Tenant to
Landlord (other than Landlord's Federal and State income taxes thereon).
(b) Should any governmental agency require that a tax (including, but
not limited to, a sales or use tax) be remitted by Landlord, for and on behalf
of said governmental authority and from time to time forwarded by the Landlord
to said governmental authority, the same shall be paid by Tenant to Landlord and
be collectible by Landlord and payment thereof enforced in the
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same fashion as provided for the enforcement of payment of Rent hereunder and
for the purpose of enforcing payment thereof, shall be deemed Additional Rent
hereunder, payable monthly.
Section 4.4 Tenant Utilities. not applicable
Section 4.5 Common Areas and Operating Expenses.
Section 4.5.1 Common Areas. All Common Areas, and other common
facilities made available by Landlord to Tenant in or about any portion the
Building shall be subject to the exclusive control and management Landlord,
expressly reserving to Landlord, without limitation, the right, at its option,
to construct additional stories to the Building or to construct other buildings
in the Complex, or otherwise. Landlord hereby expressly reserves the right from
time to time, to construct, maintain and operate lighting and other facilities,
equipment or signs on all or any portion of the Building and/or Building Land;
to change the area, level, location and arrangement of the parking areas and
other facilities forming a part of the Complex; to restrict parking by tenants
or other occupants of the Building and their employees, agents, subtenants
concessionaires and licensees; close temporarily all or any portion of the
Common Areas for the purpose of making repairs or changes thereto; to establish,
modify and enforce reasonable rules and regulations with respect to the Building
and the use to be made thereof. Landlord shall operate, manage, equip, light,
maintain and insure the Building in such manner as Landlord may from time to
time determine, and Landlord shall have the right and exclusive authority to
employ and discharge all personnel with respect thereto. Tenant is hereby given
a nonexclusive license to use, during the Term, the Common Areas as they may now
or at any time during the Term exist; provided, however, that if the size,
location or arrangement of such Common Areas or the type of facilities at any
time forming a part thereof be changed or diminished, Landlord shall not be
subject to any liability therefor, nor shall Tenant be entitled to any
compensation or diminution or abatement of Rent therefor, nor shall such change
or diminution of such areas be deemed a constructive or actual eviction.
Landlord reserves the right to grant to third parties the nonexclusive right to
cross over and use in common with Landlord and all tenants of the Building, the
Common Areas as designated from time to time by Landlord. In order to establish
that the Building and/or the Building Land and any portion thereof is, and will
continue to remain private property and to prevent a dedication thereof or the
accrual of any rights to any persons of the public therein, Landlord hereby
reserves the unrestricted right to close all or any portion of the Building
owned, leased or controlled by the Landlord to the general public for one (1)
day in each calendar year and in connection therewith, to seal off all entrances
to the Building, or any portion thereof. Tenant hereby acknowledges, consents
and agrees that any and/or all services, facilities and access by the public to
the Building may be suspended in whole or in part during such reasonable hours
as Landlord feels necessary on legal holidays, or such other days as may be
declared by local, state or federal authorities as days of observance, and/or
during any periods of actual or threatened civil commotion, insurrection or
other circumstances beyond Landlord's control. The Tenant further understands
that Landlord in its sole and absolute discretion shall have the right to
develop and/or redevelop the Building and/or the Building Land in such manner
Landlord shall desire.
Section 4.5.2 Operating Expenses.- not applicable.
Section 4.6 Left Blank Intentionally.
Section 4.7 Sales Tax. Tenant shall pay all applicable sales and use
taxes, now or hereafter imposed by any and all taxing authorities, on Rent at
the time such rental payments are due to be paid.
Section 4.8 Place for Payment of Rent. Tenant covenants and agrees to
pay Landlord the Rent at the office of the Landlord as set forth in this Lease
or at such other place as Landlord may hereinafter from time to time designate
to Tenant in accordance with the notice provisions of this Lease. All payments
due from Tenant to Landlord pursuant to this Lease shall be paid
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in legal tender of the United States of America without demand or right setoff
or abatement.
Section 4.9 Gross Rent. It is agreed between the parties that this
Lease is a "gross lease" and that the payments of Rent and of all other payments
to be made to the Landlord hereunder are to be net to Landlord.
ARTICLE V
CONSTRUCTION OF PREMISES
------------------------
The Premises shall be constructed by Landlord and Tenant substantially
in accordance with the provisions, annexed hereto and made a part hereof. The
facilities, material and work to be furnished, installed and performed in the
Premises by the Landlord, pursuant to Exhibit "B", are hereinafter referred to
as "Landlord's Work" and all other facilities and work which may be undertaken
by or for the account of Tenant to equip, decorate and furnish the Premises for
Tenant's occupancy including but not limited to that set forth on Exhibit "B"
annexed hereto and made a part hereof are hereinafter referred to as "Tenant's
Work". Landlords work shall be of a standard similar to other Buildings of this
type and in concert with Industry Standards. In the event of any dispute between
Landlord and Tenant as to the quality of materials or construction of the
Premises any determinations shall be at the sole discretion of Landlord.
ARTICLE VI
SIGNS
-----
Tenant shall not construct any signs on the Premises or any other
portion of the Complex. The Landlord will provide and install, at Tenant's sole
expense, all letters or numerals on doors entering the Premises. All such
letters and numerals shall be in the standard graphics as approved in writing by
Landlord for the Building and no others shall be permitted on the Premises
without the Landlord's prior written consent which consent may be arbitrarily
withheld. Tenant shall not display or affix any sign advertising, placard,
insignia, decal, informational material, advertising matter or any other item or
items on the surface of any exterior door, wall or window within five feet (5')
of same or in any other manner as to be clearly visible outside of the Premises.
The Landlord shall have the right without notice to Tenant and without liability
for damage to the Premises, reasonably cause thereby, to remove any item
displayed or affixed in violation of the foregoing provision.
ARTICLE VII
SERVICES
--------
Landlord agrees to furnish Tenant the following services:
(a) During Normal Business Hours for the Building, central air
conditioning at not greater than approximately 78 degrees and central heat is
not less than approximately 68 degrees, or as required by governmental
authority; provided however, air conditioning and heating service at times other
than for Normal Business Hours for the Building shall be furnished only upon the
written request of Tenant delivered to Landlord prior to 12:00 p.m. at least one
(1) business day in advance of the date such additional service is requested.
Tenant shall bear the entire cost of such additional service as such costs are
determined by Landlord from time to time on a reasonable basis based on
estimated usage. The Landlord reserves the right to comply with any energy
conservation measures either suggested or required by governmental agencies
including the possible elimination of heating and cooling on certain days as a
part of a governmental sponsored energy conservation program. In the event, in
the reasonable opinion of the Landlord, Tenant has excessive equipment in use on
the Premises and/or the electricity or other utility source required for the use
of the equipment shall at any time exceed that which is routine usage as a
result of Tenant's activities, then Tenant shall pay the additional costs
attributable thereto as Additional Rent upon presentation of a statement
therefor by Landlord;
(b) Routine maintenance and electric lighting service for all Common
Areas of the Building in the manner and to the extent deemed by Landlord to be
standard;
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(c) Janitor service to the Premises shall be performed in accordance
with the terms of Exhibit "D" annexed hereto and made a part hereof (as same may
be reasonably amended by Landlord from time to time to account for changes with
Landlord's cleaning personnel or contractors); provided however, if Tenant's
floor covering or other improvements to the Premises require special treatment,
or, if in the reasonable opinion of Landlord, such cleaning or maintenance
requirement shall at any time exceed that which is routine cleaning or
maintenance as a result of Tenant's activities, then Tenant shall pay the
additional costs attributable thereto as Additional Rent upon presentation of a
statement therefor by Landlord. General janitorial services to the Premises such
as dusting, sweeping and removal of ordinary office refuse from Tenant's waste
receptacles shall be included as part the services provided Landlord shall not
be responsible for the cleaning of any carpeting in the Premises other than
vacuum sweeping on a periodic basis. In no event shall Landlord have any
Liability for any loss, theft or damage to the property of Tenant by reason of
any activity of Landlord's cleaning personnel;
(d) A building directory that shall include the name of Tenant. The
size and location of the name so listed and the location of the directory shall
be at the sole discretion of Landlord;
(e) All building standard fluorescent bulb replacement in the Premises
and fluorescent and incandescent bulb replacement in the Common Areas;
(f) Security in the form of limited access to the Building during other
than Normal Business Hours shall be provided in such form as Landlord deems
reasonably appropriate. Landlord, however, shall have no liability to Tenant,
its employees, agents, invitees or licensees for losses due to theft or burglary
or for damages done by unauthorized persons on the Complex and neither shall
Landlord be required to insure against any such losses. Tenant shall cooperate
fully in Landlord's efforts to maintain security at the Complex and shall follow
all reasonable regulations promulgated by Landlord with respect thereto. The
Tenant shall be required to pay for all costs and expenses with respect to
security personnel and security systems which Tenant shall require with respect
to its Premises;
(g) Elevator service to each floor of the Building, provided that
Tenant shall be permitted to use such elevators for the purpose of moving bulky
property in and out of the Building only during other than Normal Business Hours
and only after first obtaining Landlord's consent to such use, request for such
use to be submitted not less than two (2) business days in advance of each move.
Tenant shall promptly reimburse Landlord for all costs associated with the
after-hours operation of the elevator service for moving purposes, including,
without limitation, the cost of any operator or security personnel, and Tenant
shall also promptly reimburse Landlord's cost to repair any damage to the
elevator cab(s) or the Building or other portion of the Complex resulting from
Tenant's moving.
The failure by Landlord to any extent to furnish the defined services
as noted above, in whole or in part, or the interruption or termination of same
resulting from causes beyond the reasonable control of Landlord shall not render
Landlord liable in any respect nor be construed as an eviction (constructive or
otherwise) of Tenant, nor cause an abatement of Rent, nor relieve Tenant from
the obligation to fulfill any covenant or agreement hereof. Should any of the
equipment or machinery used in the provision of such services cease for any
reason to function properly, Tenant shall have no claim for offset or abatement
of Rent or damages on account of a interruption in service occasioned thereby or
resulting therefrom.
The Landlord shall have no liability to the Tenant for any stoppages of
any heating, ventilating, air conditioning, electrical, janitorial, elevator or
other service required to be provided by Landlord to Tenant under this Lease
whenever and so long as such stoppage is necessary by reason of accident,
emergency or strike or the making of repairs, maintenance (preventative or
otherwise) installations, or changes which Landlord is required or permitted
under this Lease or by law to make including the preparation of office space in
the Building for other occupants which stoppage Landlord caused in good faith to
be made because of difficulty in
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securing proper supplies of fuel, steam, water, electricity, labor or
supplies for any other cause beyond Landlord's reasonable control.
The Tenant shall not be entitled to any credit or rebate for electing
to forego the use of any of the services and/or Common Areas made available to
Tenant by Landlord.
ARTICLE VIII
USE
---
Tenant shall use and occupy the Premises only for the purposes stated
in Section 1.29 hereof. Throughout the Term of this Lease, the decor and
fixturing of the Premises and the operation of Tenant's business conducted the
Premises shall be consistent with the operation of a first-class, high quality
office. The Use of the Premises must always be in compliance with all laws,
ordinances, rules and regulations of all governmental authorities having
jurisdiction. Tenant further agrees that it shall comply with all reasonable
rules and regulations as may be adopted from time to time hereafter by Landlord.
Tenant's use of electrical services shall not exceed either in voltage, rated
capacity, or over all load that which Landlord reasonably determines necessary
for normal office use. In the event Tenant shall request that it be allowed to
consume electrical service in excess that so determined by Landlord to be
necessary, Landlord may refuse consent to such usage or may consent upon
conditions as Landlord elects.
ARTICLE IX
FINANCING
---------
Section 9.1 Subordination. Landlord and Tenant agree that this Lease be
and the same is hereby made subject and subordinate at all times to all
covenants, declarations of protective covenants, restrictions, liens easements
and encumbrances now or hereafter affecting the fee title of the Complex and to
all ground and underlying leases and mortgages or any other method of financing
or refinancing in any amounts, and all advances thereon which may now or
hereafter be placed against or affect any or all of the Complex, and to all
renewals, modifications, consolidations, participation, replacements and
extensions thereof. The term "mortgages" as used herein shall be deemed to
include trust indentures and deeds of trust. The aforesaid provisions shall be
self-operative and no further instrument of subordination shall be necessary
unless required by Landlord or any such ground or underlying landlords or
mortgagees. Should Landlord or any group or underlying landlords or mortgagees
desire confirmation of such subordination, then Tenant, within ten (10) days
following Landlord's written request therefor, agrees to execute and deliver,
without charge, any and all documents (in form acceptable to Landlord and such
ground or underlying landlords or mortgagees) subordinating this Lease and the
Tenant's rights hereunder. However, should Landlord or any such ground or
underlying landlords or any mortgagees request that this Lease be made superior,
rather than subordinate, to any such ground or underlying lease and/or mortgage
then Tenant, within ten (10) days following Landlord's written request therefor,
agrees to execute and deliver, without charge, any and all documents (in form
acceptable to Landlord and such ground or underlying landlords or mortgagees)
effectuating such priority.
Tenant agrees that if requested by the holder of any mortgage
constituting a first lien on the Premises, it will give to the holder of such
mortgage duplicates of any notices under this Lease given by it to Lessor and
any such mortgage holder, at its option, shall have the same right as Landlord
to cure any default of Landlord.
Section 9.2 Attornment. In the event of the sale, transfer or
assignment of Landlord's interest in all or any portion of the Complex, or in
the event any proceedings are brought for the foreclosure of or for the exercise
of any power of sale under any mortgage on all or any portion of the Complex, at
the option of the mortgagee, the Tenant shall attorn to the Perspective
transferee, assignee or purchaser and recognize such party as Landlord under
this Lease (to the extent applicable).
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Section 9.3 Joinders. The Tenant hereby agree/to join in and execute
any and all documents pertaining to the Complex at no cost to Tenant which are
requested by Landlord, including, but not limited to, land use plan amendments,
zoning applications, development of regional impact applications, and all other
permits, applications and/or documents to be filed with any governmental and/or
quasi-governmental authorities with respect to the development of all or any
portion of the Complex ("Joinders"), provided, that such Joinder shall not
unreasonably or materially affect Tenant's ability to occupy the Premises and
use the Premises for Tenant's Use.
Section 9.4 Lender's Approval. It shall be a condition precedent
Landlord's obligation under this Lease that the lender providing financing with
respect to all or any portion of the Complex ("Lender") shall consent to the
terms and provisions of this Lease. In the event that prior to the Commencement
Date the Lender shall require modifications to any of the terms and provisions
of this Lease, except with respect to the amount of the Rent required to be paid
hereunder, then in the event the Tenant does not agree in writing to such
changes within ten (10) days of written, request by Landlord to Tenant
requesting such changes, the Landlord, at its option, shall have the right to
terminate this Lease whereupon this Lease shall terminate and be null, void, and
of no further force and effect, and the parties shall be released of all further
obligations to each other under this Lease, and any advance payments made by
Tenant shall be equitably prorated and such prorated amount immediately refunded
to Tenant.
ARTICLE X
ASSIGNMENT, SUBLETTING, PLEDGING OR ENCUMBERING OF LEASE
--------------------------------------------------------
Notwithstanding anything to the contrary herein contained and
notwithstanding any reference in this Lease to "subtenant" or "assignee" or
"Concessionaire" or otherwise, Tenant will not assign this Lease in whole or in
part, nor sublet all or any part of the Premises, unless given prior written
consent by Owner which consent may be unreasonably withheld. The consent by
Landlord to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. This
prohibition against assigning or subletting shall be construed to include a
prohibition against any assignment or subletting or transfer by operation of
law. If this Lease be assigned, or if the Premises or any part thereof be
underlet or occupied by anyone other than Tenant, Landlord may collect Rent from
the assignee, under-tenant or occupant, and apply the net amount collected to
the Rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. Notwithstanding any assignment or sublease (even if consented to by
Landlord or permitted by the terms of this Lease), Tenant shall remain fully
liable on this Lease and shall not be released from performing any of the terms,
covenants and conditions of this Lease, and any such assignee or subtenant shall
be bound by all of the terms, covenants and conditions of this Lease, including,
but not limited to, the restrictions as to Use.
If Tenant is a corporation (other than one whose shares are regularly
and publicly traded on a recognized stock exchange) for the purpose of this
Lease, any sale, transfer or assignment of a majority of the issued and
outstanding stock of the Tenant shall be deemed an assignment under this Lease.
Notwithstanding anything to the contrary contained in this Article X, Tenant,
without being subject to the options afforded Landlord herein, shall have the
right to assign this lease to any parent company, subsidiary affiliate or any
resulting company into or with which Tenant is merged or consolidated and to
enter into a sublease of all or part of the Premises to any such parent company,
subsidiary or affiliate, subject, however, the Tenant's compliance with all the
provisions of this Article upon which occurring Landlord shall give its consent
to such assignment or subletting
Any attempted assignment, pledge or encumbrance of this Lease or
subletting of all or a portion of the Premises by Tenant without the prior
written consent of Landlord shall be null and void, and any attempt by Tenant to
assign, pledge or encumber this Lease or sublet a portion or all of the
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Premises without the prior written consent of Landlord shall constitute a
Default by Tenant of this Lease.
In the event Tenant shall desire to sublet the Premises, in whole or in
part, or assign Tenant's interest under this Lease, in whole or in part, Tenant
shall give Landlord not less than thirty (30) days, prior written notice. Such
notice shall set forth all pertinent business terms of the proposed assignment
or subletting as well as the name and address of the proposed assignee or
sublessee, information as to financial condition of such assignee or sublessee,
and proposed use which assignee or sublessee desires to make of the Premises.
Such notice shall bear the signature of the proposed lessee or assignee with
attention to its accuracy. Tenant shall in addition, at Landlord's request
furnish such other further information as Landlord may request concerning such
proposed assignment or subletting. After receipt of such notice from Tenant,
Landlord shall have the following options to be exercised in writing within
thirty (30) days from the later to occur of: the receipt of Tenant's notice of
such assignment or sublease or if Landlord shall request additional information
from Tenant, the receipt of such additional information when furnished by Tenant
to Landlord, to wit: (i) In the event Tenant's notice states Tenant's desire to
make an assignment or a subletting of all or substantially all of the Premises,
Landlord shall have the option to cancel and terminate this Lease as of the date
proposed Tenant by for such assignment or subletting, which option shall be
exercised in writing within the aforesaid thirty (30) day period and on which
date the term of this Lease shall cease and expire with the same force and
effect as if such date were originally provided herein as the expiration of the
term hereof; or (ii) in the event Tenant's notice states Tenant's desire to make
a subletting for less than all or substantially all of the Premises, Landlord
shall have the option to be exercised in writing within said thirty (30) day
period, to cancel and terminate this Lease only as to such portion of the
Premises subject to termination and cancellation, to take effect as of the
proposed effective date thereof as stated in Tenant's notice. In the event
Landlord exercises this option, the Rent and all other charges payable hereunder
shall be equitably adjusted as apportioned.
If Landlord shall not exercise its forgoing options within the time set
forth, Tenant shall still be required to obtain Landlord's prior written consent
to any assignment or sublease. In the event Landlord should withhold or delay
its consent to any proposed assignment or sublease, the sole remedy of Tenant
shall be to institute an action for specific performance if Tenant believes that
such withholding or delaying of consent was wrongful, and Tenant hereby
expressly waives any claim for monetary damages by reason of such withholding or
delaying of consent by Landlord.
Further, Landlord may withhold its consent to any assignment or
subletting if any of the following conditions pertain:
(1) The financial condition and general reputation of the proposed
assignee or subtenant are not consistent with the extent of the
obligation undertaken by the proposed assignment or sublease;
(2) The proposed use of the Premises is not appropriate for the
Building or not in keeping with the character of the existing tenancies
or permitted by the Tenant's Lease;
(3) The nature of the occupancy of the proposed assignee or
subtenant will cause an excessive density or traffic or make excessive
demands on the Building's services or facilities or in any other way
will lessen the character of the Building;
(4) Tenant proposes to assign or sublet to one who at the time is a
tenant or occupant of premises in the Building of which the Premises
are a part (or to a subsidiary or related entity of such tenant or
occupant) or to one with whom Landlord or its agents are actively
negotiating for space in the Building;
(5) Tenant proposes to assign or sublet all or a portion of the
Premises at a rental rate less than the rental rate Landlord is
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then asking for other space in the Building; or currently in effect for
this Lease, whichever is greater;
(6) Tenant at the time of requesting Landlord's consent is in
Default in the payment of any Rent or other sums or charges provided to
be paid by Tenant hereunder, or Tenant is otherwise in Default under
this Lease;
(7) That each assignee of this Lease shall fail or refuse to assume
in writing all of the terms, covenants and conditions of this Lease on
the part of Tenant hereunder to be performed and observed;
(8) That an original or duplicate original of the instrument of
assignment and assumption (the terms of such assumption to be in form
acceptable to Landlord) or of the sublease agreement shall not be
delivered to Landlord within five (5) days following the making
thereof;
(9) That any instrument of sublease shall not specifically state
that each sublease is subject to all of the terms, covenants and
conditions of this Lease.
If Landlord shall consent to such assignment on subletting, Tenant
agrees to pay the Landlord the sum of Two Hundred Fifty ($250.00) Dollars as a
processing fee for each assignment and/or subletting.
Each permitted assignee or transferee shall assume and be deemed to
have assumed this Lease and shall be and remain liable jointly and severally
with Tenant for the payment of the Rent, and for the due performance of all of
the terms, covenants, conditions and agreements herein contained on Tenant's
part to be performed for the term of this Lease and any renewals and
modifications hereof. No assignment shall be binding on Landlord unless, as
hereinabove provided, such assignee or Tenant shall deliver to Landlord a
duplicate original of the instrument of assignment which contains a covenant of
assumption by the assignee of all of the obligations aforesaid and shall obtain
from Landlord the aforesaid written consent prior thereto. Any assignment,
sublease or agreement permitting the use and occupancy of the Premises to which
Landlord shall not have expressly consented in writing shall be deemed null and
void and of no force and effect and shall, at Landlord's option, be deemed a
Default by Tenant under this Lease.
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ARTICLE XI
ADDITIONAL COVENANTS
--------------------
Section 11.1 Additional Covenants of Tenant. Tenant's use of the
Premises and Common Areas shall be subject at all times during the Term to
reasonable rules and regulations adopted by Landlord governing the use thereof.
Tenant agrees to comply with all such rules and regulations upon notice to
Tenant from Landlord. Tenant expressly acknowledges receipt of a copy of the
existing rules and regulations which have been adopted by Landlord as of the
date of this Lease.
Section 11.2 Rules and Regulations. Landlord reserves the right from
time to time to suspend, amend or supplement its rules and regulations
applicable to the Complex. Notice of such rules and regulations and amendments
and supplements thereto, if any, shall be given to Tenant. Tenant agrees to
comply with all additional and supplemental rules and regulations upon notices
of same from Landlord.
Section 11.3 Compliance with Laws and Requirements of Governmental
Authorities. Tenant shall, at its expense, abate any nuisance pertaining to the
use of the Premises and comply with all laws, fire codes and requirements of
applicable governmental authorities with respect to the Premises or the use and
occupancy thereof, including, but not limited to, any order to Landlord or
Tenant arising from any violation thereof by (a) Tenant's use of the Premises;
(b) the manner of conduct of Tenant's business or the installation or the
operation of its property in any portion of the Complex; (c) any cause or
condition created by Tenant; or (d) the breach of any of Tenant's obligations
under this Lease.
ARTICLE XII
DEFAULT
-------
Section 12.1 Immediate Default-Bankruptcy, Receivership, Insolvency.
Any of the following acts shall constitute an immediate Default, without the
necessity of Landlord giving notice to Tenant, to wit: If Tenant shall commit an
act of bankruptcy, receivership, insolvency, reorganizations, dissolution,
liquidation, or if other similar proceedings shall be instituted by Tenant for
all or any part of its property under the Federal Bankruptcy Act or other law of
the United States or of any state or other competent jurisdiction; or if any act
of bankruptcy, receivership, insolvency, reorganizations, dissolution,
liquidation or if other similar proceedings shall be instituted against Tenant
for all or any part of Tenant's property under the Federal Bankruptcy Act or
other law of the United States or of any state of competent jurisdiction, and
Tenant shall either consent thereto or fail to cause the same to be discharged
within sixty (60) days.
Section 12.2 Monetary Default. If Tenant does not timely pay all of the
Rent required to be paid by this Lease, or if Tenant shall fail to pay any of
the other monetary obligations required by this Lease, and such failure to pay
shall continue for three (3) days, then Tenant shall be in default.
Section 12.3 Other Defaults. If Tenant fails to perform any of the
other covenants, duties, agreements, undertakings or terms of this Lease,
Landlord shall give Tenant thirty (30) days' written notice to cure the same or
to commence to cure the same and diligently prosecute to completion if the same
cannot be cured within a thirty (30) day period. If Tenant does not cure the
breach or begin to take such steps and institute and diligently prosecute to
completion such proceedings as will cure such breach (if same cannot be cured)
within thirty (30) days after Landlord gives notice, Tenant shall be in Default.
Section 12.4 Abandonment of Premises. If the Premises are deserted,
vacated, or not used as regularly or consistently as would normally be expected
for similar premises put to the same use or similar purposes as provided in
Article VIII, even though the Tenant continues to pay Rent, and Tenant does not
cure such default within fifteen (15) days after notice from Landlord to Tenant,
Tenant shall be in Default.
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Section 12.5 Landlord's Remedies Upon Default. In the event of any
Default by Tenant, Landlord may take any action which is permitted under law or
in equity for such Default and in addition to all other rights and remedies
which Landlord may have, Landlord shall also have the immediate right of reentry
and may remove all persons and property from the Premises all without service of
notice or resort to legal process and without being guilty of trespass, and
Landlord shall not become liable for any loss or damage which may be occasioned
thereby. If Landlord reenters the Premises, Landlord may make such alterations
and repairs as may be necessary in order to relet the Premises and relet said
Premises or any portion thereof for such term or terms (which may be for a term
extending beyond the Term of this Lease) and for such rental or rentals and upon
such other terms and conditions as Landlord in its sole discretion may deem
advisable. Upon each such reletting all rentals received by Landlord from such
reletting shall be applied as follows: first, to the payment of any costs and
expenses of such reletting or attempted reletting, including brokerage
commissions, attorneys' fees and costs of alterations and repairs; second, to
the payment of any Additional Rent due hereunder from Tenant to Landlord; third,
to the payment of other Rent and adjustments to Rent due and unpaid hereunder;
and the residue, if any, shall be held by Landlord and applied in payment of
future Rent as the same may become due and payable hereunder. If such rental
received from such reletting during any month (including amounts previously due)
be less than the Rent to be paid during that month by Tenant hereunder, Tenant
shall pay any deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. No such reentry 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 to terminate this Lease is given to
Tenant or unless termination hereof is decreed by a court of competent
jurisdiction. Notwithstanding any such reentry or taking of possession, Landlord
may, at any time thereafter, elect to terminate this Lease for any previous
Default. Notwithstanding any termination of this Lease by Landlord pursuant to
any notice given by Landlord to Tenant, Landlord may collect damages from Tenant
equal to all Rent that may have been payable by Tenant pursuant to this Lease
during the remaining portion of the Term had the Lease not been so terminated
(with all such payments to be applied as follows: first, to the payment of any
costs and expenses incurred by Landlord with reletting or attempted reletting
including brokerage commissions, attorneys' fees and costs of alteration,
repairs; second, to the payment of any Additional Rent due hereunder from Tenant
to Landlord; third, to the payment of other Rent and adjustments to Rent due and
unpaid hereunder; and the residue, if any, shall be held by Landlord and applied
in payment of future Rent as same may be due and payable hereunder. In addition
to any other remedies it may have at law or in equity, Landlord may recover from
Tenant all damages Landlord may incur by reason of such breach including the
cost of recovering the Premises, reasonable attorneys' fees through and
including all trial and appellate levels, and the amount of Rent reserved in
this Lease for the remainder of the Term of this Lease, all of which amounts, at
Landlord's option, shall be accelerated and immediately become due and payable
from Tenant to Landlord.
Section 12.6 Notice. Except as specified in Section, 12.3 or 12.4,
Tenant expressly waives any demand for possession of the Premises and other
property of Tenant thereon, or any demand for payment of Rent hereunder, or any
notice of intention of Landlord to terminate this Lease or to reenter the
Premises other than the notices hereinabove provided for in this Article XII,
and Tenant expressly waives any other notice or demand prescribed by the
Statutes of the State of Florida or any other applicable law, and Tenant agrees
that services of the notices provided for herein may be made as set forth in
this Lease.
Section 12.7 Attorneys' Fees and Costs. The prevailing party, Landlord
or Tenant, as the case may be, shall be entitled to attorneys' fees through and
including all trial and appellate levels and all other costs incurred in any and
all actions taken by or against it relating to this Lease.
Section 12.8 Interest. All amount due to Landlord by Tenant shall bear
interest at the rate of three percent (3%) per annum over the prime rate
published from time to time by Chemical Bank, N.A. of New York (or similar
institution if such rate ceases to be published) (which prime rate shall be
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its published prime rate and not necessarily the lowest rate charged to its most
credit worthy customers), from the date any of such monies are due until the
same shall be paid; provided, however, under no circumstances shall the interest
collected by Landlord be in excess of the maximum nonusurious rate of interest
permitted by the laws of the State of Florida. All costs, including attorneys'
fees through and including all trial and appellate levels, incurred by Landlord
because of Tenant's Default or breach of this Lease shall bear interest from the
respective dates when the same have been paid by Landlord or should have been
paid by Tenant, at the rate of three percent (3%) per annum over the prime rate
published from time to time by Chemical Bank, N.A. of New York (or similar
institution if such rate ceases to be published) (which prime rate shall be its
published prime rate and not necessarily the lowest rate charged to its most
credit worthy customers), until the same shall be repaired; provided, however,
under no circumstances shall the interest collected by Landlord be in excess of
the maximum nonusurious rate of interest permitted by the laws of the State of
Florida.
Section 12.9 Late Charge. In the event that any installment of
Rent is not paid within ten (10) days of the date any such sum is due, Tenant
agrees to pay a late charge equal to five percent (5%) of the amount of the
unpaid Rent installment or $200 whichever is greater to defray Landlord's
administrative charges with respect to such late payment.
ARTICLE XIII
LANDLORD'S INTEREST NOT SUBJECT TO
MECHANICS' LIENS AND REMOVAL OF LIENS
-------------------------------------
Section 13.1 Landlord's Interest Not Subject to Lions. All persons to
whom these presents may come are put upon notice of the fact that Tenant shall
never, under any circumstances, have the power to subject the interest of
Landlord in the Premises or any portion of the Complex to any mechanics' or
materialmen's lien or liens of any kind. All persons who may hereafter, during
the continuance of this Lease, furnish work, labor, services or materials to the
Premises, or any portion of the Complex upon the request or order of Tenant, or
any person claiming under, by or through Tenant, are to look wholly to the
interest of Tenant and not to that of Landlord.
Section 13.2 Tenant's Obligation to Remove Liens. Tenant shall not
permit or suffer to be filed or claimed against the Premises or any portion of
the Complex during the continuance of this Lease any lien or liens of any kind
arising out of the action of Tenant, including those filed notwithstanding
Section 13.1 above; and if any such lien be claimed or filed, Tenant covenants,
within the time now about to be limited, to cause the Premises and/or the
Complex to be released from such claim or lien ("Claim"), either through the
deposit into court pursuant to statute of the necessary sums of money, or in any
other way which is competent legally to effect the release ("Release") of the
Premises and/or the Complex from the Claim. The time within which Tenant must
effect such Release of the Premises and/or the Complex, as aforesaid, is as
follows:
(1) If the Claim shall have been evidenced through the giving of a
written notice of lien claim, and if such notice be filed in the Public
Records of Palm Beach County, Florida, then Tenant shall effect such
Release from such Claim within thirty (30) days after the time when
such Claim shall have been filed in the Public Records of Palm Beach
County, Florida.
(2) If the Claim be evidenced, without notice having been given as
aforesaid, through the filing of a suit in a court having jurisdiction
of the subject matter, in which suit the Claim is asserted and sought
to be enforced, then Tenant must effect the Release within 20 (twenty)
days after the time when service of process shall have been completed
against Tenant or Landlord in the suit.
In the event that Tenant shall violate the terms and provisions of
this paragraph, such violation shall constitute an immediate Default by
Tenant under this Lease.
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ARTICLE XIV
REPAIRS AND MAINTENANCE
-----------------------
Section 14.1 Repairs by Landlord. Landlord shall make necessary
structural repairs to the exterior walls (including doors, signs and the
exterior of and the frames surrounding all windows); necessary repairs to the
roof, foundations, load bearing items, plumbing, pipes and conduits located
outside of the Premises and in the Common Areas. Landlord shall maintain the
heating, ventilation and air conditioning systems in the Building. Landlord
shall not be required to make any repairs where the same were made necessary by
any act or omission or negligence of Tenant, any subtenant or concessionaire, or
their respective employees, agents, invitees, licenses, visitors or contractors,
or by fire or other casualty or condemnation, except as provided in Articles
XXIV and XXV. Landlord and Tenant agree that in the event that Landlord begins
to make such repairs within a reasonable period of time, (in light of repair or
damage required to be made) after receiving notice from Tenant that such repairs
are necessary, Landlord shall not be liable for any damage resulting prior to
Landlord making such repairs.
Section 14.2 Repairs and Maintenance by Tenant. Tenant shall make and
pay for all interior repairs to the Premises and all equipment and systems
serving the Premises exclusively and shall repair and/or replace all things
which are necessary to keep the same in a good state of repair and operating
order, such as (but not limited to) all fixtures, furnishings, lighting and
signs of Tenant. Tenant shall also maintain, replace and keep in good repair and
operating order all inside walls, carpeting, floor and ground surfaces serving
the Premises or located within the Premises. Tenant shall at all times keep the
Premises and all exterior entrances, glass and show moldings, partitions, doors,
floors, fixtures, equipment and appurtenances thereof in good order, condition
and repair, and in a reasonably satisfactory condition of cleanliness, including
reasonable periodic painting of the Premises and Tenant shall make such other
necessary repairs in and to the Premises not specified in Section 14.1 hereof as
being the responsibility of Landlord.
ARTICLE XV
ADDITIONS AND ALTERATIONS
-------------------------
Section 15.1 By Landlord. In the event Landlord shall hereafter
determine in its sole and absolute discretion, and without any obligation to do
so, to erect additional structures or to construct improvements on all or any
portion of the Complex, Tenant hereby consents thereto and to the performance of
work necessary to effect the same and attendant inconvenience caused thereby,
provided Landlord agrees to use reasonable efforts to minimize such attendant
inconvenience to Tenant's ability to utilize the Premises. The design, materials
and performance of necessary work therefor shall be in the sole unrestricted
discretion of Landlord.
Section 15.2 By Tenant. Notwithstanding anything contained hereto to
the contrary, Tenant shall not make any changes, alterations or improvements
affecting the Premises or the structure of any portion of the Complex without
the prior written consent of the Landlord. Prior to the commencement of any work
performed by Tenant with respect to the Premises, Tenant shall be required to
obtain Landlord's prior written approval of the plans and specifications
therefor (which approval as to non-structural changes, alterations and
improvements affecting only the interior of the Premises shall not be
unreasonably withheld or delayed provided the same does not affect the HVAC
efficiency, all of Landlord's requirements for bonding, insurance and other
contractor requirements have been satisfied and such plans conform with the
quality of materials and standards of design, motif and decor of the Building).
Any work performed by Tenant shall be performed at Tenant's sole cost and
expense and shall be maintained and repaired at the expense of Tenant and all
such work shall be free of all liens, encumbrances and security interests of any
type. Tenant shall supply paid bills, releases of liens, affidavits and other
evidences which Landlord may reasonably request to demonstrate that all of
Tenant's works are free and clear of all liens and encumbrances. Any work done
by Tenant under the provisions of this Section 15.2 shall not unreasonably
interfere with the use by the other tenants of their premises in the Building,
nor interfere with Landlord's
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ownership, operation and maintenance of the Common Areas. Tenant shall pay to
Landlord a supervision fee (which shall include the cost of review of the
proposed Tenant's changes) equal to ten percent (10%) of the certified cost of
completion of Tenant's changes. Prior to the commencement of Tenant's changes,
Tenant shall pay to Landlord ten percent (10%) of the certified cost of
completion (the "Estimated Payment") as Additional Rent. Within fifteen (15)
days after completion of Tenant's changes, Tenant shall furnish Landlord with a
statement, certified by an officer or principal of Tenant to be accurate and
true of the cost of completion of Tenant's changes (the "Total Cost"). If such
certified statement furnished by Tenant shall indicate that the Estimated
Payment exceeded ten percent (10%) of the Total Cost, Landlord shall forthwith
either (a) pay the amount of excess directly to Tenant concurrently with the
delivery of the certified statement or (b) permit Tenant to credit the amount of
such excess against the subsequent payments of Rent due hereunder. If such
certified statement furnished by Tenant shall indicate that ten percent (10%) of
the Total Cost exceeded Tenant's Estimated Payment, Tenant shall simultaneously
with the delivery to Landlord of the certified statement pay the amount of such
excess to Landlord as Additional Rent.
ARTICLE XVI
INSURANCE
---------
Section 16.1 Insurance Coverage. Tenant shall obtain and keep in full
force and effect during the performance of any work by Tenant and thereafter
throughout the Term, at Tenant's sole cost and expense, (a) Comprehensive
General Liability insurance, to afford protection in such amount as Landlord may
reasonably determine and in event less than Three Hundred Thousand Dollars
($300,000.00) combined single limit for bodily injury and/or property damage;
and which insurance shall include Independent Contractor's Liability,
Products/Completed Operations Liability and Board Form Comprehensive General
Liability endorsements; (c) "all risk" property insurance, including coverage
for flood and earthquake, upon Tenant's property, improvements and betterment,
alterations and property for which Tenant is legally liable, or which was
installed by or on behalf of Tenant and which is a portion of the Premises, in
an amount equal to the full replacement value thereof; (d) during the course of
construction of any alteration, including during performance of Tenant's Work,
and until completion thereof, Builder's Risk insurance on an "all risk" basis on
a completed value form for full replacement value covering the interest of
Landlord and Tenant (and their respective contractors and subcontractors), and
Landlord's mortgagee in all work incorporated in the Complex and all materials
and equipment in or about the Premises; (e) Workers' Compensation insurance, as
required by law; and (f) such other insurance in such amounts as Landlord or
Landlord's mortgagees may reasonably require from time to time. Tenant shall
have the right to insure and maintain the insurance coverage set forth in this
Section under blanket insurance policies covering other premises operated by
Tenant so long as such blanket policies comply as to term and amount with the
insurance provisions set forth in this Lease.
Section 16.2 Policy Standard. All policies of insurance procured by
Tenant shall be issued in form and substance acceptable to Landlord by insurance
companies with general policy holder's ratings of not less than A and in a
Financial Size Category of not less than XIII, as rated in the most current
available Best's Insurance Reports, or the then equivalent thereof, and licensed
to do business in the State of Florida and authorized to issue such policy or
policies. All policies of insurance procured by Tenant shall be written as
primary policies not contributing with, nor in excess of, coverage that Landlord
may carry. Tenant shall not carry separate or additional insurance concurrent in
form or contributing, in the event of any loss or damage with any insurance
required to be obtained by Tenant under this Lease.
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Section 16.3 Named Insured. All insurance required to be procured
pursuant to Section 16.2 hereof shall name Landlord and its managing agent, if
any, any underlying lessor and each of Landlord's mortgagees whose names and
addresses shall previously have been furnished to Tenant by Landlord as
additional insured, and each such policy shall contain an endorsement that each
of Landlord, its managing agent, if any, and Landlord's mortgagees, and any
underlying lessor although named as an additional insured, nevertheless shall be
entitled to recover under said policies for any loss or damage occasioned to it,
its agents, employees, contractors, directors, shareholders, partners and
principals (disclosed and undisclosed) by reason of the negligence or tortious
acts of Tenant, its servants, agents or mortgagees be specifically named as
additional insured in the insurance policy in order to be protected thereby,
Tenant shall not be in default under this Lease for failure to provide the
insurance required by this Section 16.3 with respect to such persons if Landlord
fails, within thirty (30) days after Tenant's written request, to provide Tenant
with the names of such persons; provided, however, Tenant shall be required to
amend such insurance policy within thirty (30) days from the time Landlord
provides Tenant with the names of such persons to be named as additional
insured. All policies of insurance procured by Tenant shall contain endorsements
providing as follows: (a) that such policies may not be materially changed,
amended, reduced, cancelled or allowed to lapse with respect to Landlord or
Landlord's mortgagee or any underlying lessor except after thirty (30) days
prior written notice from the insurance company to each, sent by registered
mail; and (b) that Tenant shall be solely responsible for the payment of all
premiums under such policies and that Landlord shall have no obligation for the
payment thereof notwithstanding that Landlord is or may be named as an
additional insured.
Section 16.4 Waiver of Subrogation. Each party shall include in each of
its insurance policies covering loss, damage or destruction by fire or other
insured casualty a waiver of the insurer's right of subrogation against the
other party, or if such waiver should be unobtainable or unenforceable, (a) an
express agreement by each party's insurance company that such policy shall not
be invalidated if the insured waives or has waived before the casualty or
liability the right of recovery against any party responsible for a casualty or
liability covered by the policy, or (b) any other form of permission by each
party's insurance company for the failure of the other party. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable, the
insured party shall so notify the other party promptly after learning thereof.
During any period while the foregoing waiver of right of recovery is in effect,
Landlord shall look solely to the proceeds of its property insurance policies to
compensate Landlord for any loss occasioned by fire or other insured casualty.
During any period while the foregoing waiver of right of recovery is in effect,
Tenant shall look solely to the proceeds of its policies to compensate Tenant
for any loss occasioned by fire or other insured casualty.
Section 16.5 Certificates. Duly executed certificates of insurance
(including evidence of the waivers of subrogation required pursuant to Section
16.4 hereof) or, if required by Landlord or Landlord's mortgagee, original
policies together with reasonably satisfactory evidence of payment of the
premiums therefor, shall be delivered to Landlord and Landlord's mortgagee on or
before the day Tenant begins Tenant's Work. Any endorsements to any such
policies shall also be so deposited not less than ten (10) days prior to the
expiration of such policy. The minimum limits of any insurance coverage
required herein to be carried by Tenant shall not limit Tenant's liability under
this Lease.
Section 16.6 Re-evaluation of Coverage. Landlord may, from time to
time, (but not more frequently than once in any twelve (12) month period)
reasonably review and modify the insurance requirements contained in this
Article XVI.
Section 16.7 Landlord's Right to Make Insurance Payments. If Tenant
shall at any time neglect to maintain the insurance coverage as herein required,
Landlord may, at its election, procure or renew such insurance and the amount so
paid therefore by Landlord, including reasonable expenses, shall be so much
Additional Rent due to Landlord from Tenant and shall be payable on the next
Rent payment date after such payment.
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Section 16.8 Compliance with Policies. Tenant shall not violate or
permit the violation of any condition imposed by any fire insurance, other
casualty insurance or liability insurance policy carried by Landlord or Tenant
with respect to the Premises, or any portion of the Complex and shall not do or
permit anything to be done, or keep or permit anything to be kept in the
Premises which may; (a) subject Landlord to any liability or responsibility for
the personal injury or death of any person or any property damage; (b) increase
the fire, other casualty or liability insurance rates on the Complex above the
rate which would otherwise then be in effect; or (c) result in insurance
companies of good standing refusing to insure the Complex in amounts reasonably
satisfactory to Landlord. If for any reason Tenant or anyone claiming by,
through or under Tenant fails to comply with the foregoing provision and the
rate of any insurance policy on the Complex shall be higher than it otherwise
would be, Tenant shall reimburse Landlord on demand for that part of the premium
or premiums for insurance coverage paid by Landlord because of such failure to
comply on the part of Tenant in addition to any other remedies which Landlord
may have pursuant to this Lease, such reimbursement shall be deemed Additional
Rent and shall be in addition to Tenant's Proportionate Share of Operating Costs
as provided in Section 4.5.2 hereof. In determining whether any increase in such
rates is the result of anyone claiming by, through or under Tenant, a schedule
or rule book issued by the Insurance Service Organization or any insurance
rating organization having jurisdiction selected by Landlord, or the rating
procedures or rules of Landlord's insurance company(s) shall be conclusive
evidence of the several items and charges which made up the insurance rates and
premiums.
ARTICLE XVII
INDEMNITY
---------
Tenant covenants and agrees that it will protect, save and keep
Landlord forever harmless and indemnified against and from any penalty or damage
or charge claimed or imposed for any violation of any laws, ordinances, rules or
regulations whether occasioned by the neglect of Tenant of those holding under
Tenant; against and from any and all loss, cost, damage or expense, including
attorneys' fees through and including all trial and appellate levels, arising
out of or from any accident or other occurrence, due to the acts or neglect of
Tenant, or its servants or agents, on or about the Premises or any portion of
the Complex, causing injury to any person whomsoever or damage to property
whatsoever; and, against and from any and all claims and against and from any
and all loss, cost, damage or expense arising out of the operation or possession
of the Premises and any failure of Tenant in any respect to duly and timely
comply with and perform all of the requirements and provisions of this Lease.
Tenant further covenants and agrees that it will forever defend and
indemnify Landlord and hold it harmless from any and all claims, suits,
judgments, loss, cost, damage or expense including attorneys' fees through and
including all appellate levels made by or for any contractor, employee of a
contractor or any other person whomsoever arising out of or in any way connected
with any contract with Tenant or its agents or employees in connection with any
work, construction, installation or alterations made or being made or performed
in or about the Premises.
If Landlord shall without any fault on its part be made party to any
litigation commenced by or against Tenant, Tenant shall and will pay all costs
including reasonable attorneys' fees through and including all trial and
appellate levels incurred by or imposed on Landlord by or in connection with
such litigation and all such costs including reasonably attorneys' fees when
paid by Landlord shall become at once a first and valid lien upon Tenant's
leasehold interest and upon all property of Tenant located on the Premises.
Landlord is hereby indemnified by Tenant and Landlord shall not be
liable to Tenant, or to anyone claiming under or through Tenant, for any loss or
damage which may be occasioned by any event occurring as a result of Tenant's
negligence, occupancy or use of the Premises or the Building including fire or
water, deluge or overflow, bursting, leaking or running
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over of water pipes, plumbing or fixtures, gas, steam, sewerage, wiring or other
apparatus or by rain or other water being or coming upon the Premises.
ARTICLE XVXII
LIEN FOR RENT AND LANDLORD'S PROPERTY
-------------------------------------
Section 18.1 Lien for Rent. The entire amount of Rent reserved and
agreed to be paid hereunder and each and every installment thereof, including
but not limited to, the amount of all taxes, assessments, water charges and
insurance herein provided for if paid by Landlord under the provisions of this
Lease, all costs, including reasonable attorneys' fees through and including all
trial and appellate levels, and the amount of all expenses which may be incurred
by Landlord in enforcing the provisions of this Lease or on account of any
delinquency of Tenant in carrying out any of the provisions of this Lease, shall
be and are hereby declared to be a valid lien upon Tenant's leasehold interest
in, the Premises and all of Tenant's improvements and all of Tenant's equipment
located upon the Premises, and all other property as provided pursuant to
Chapter 83, Florida Statutes.
Section 18.2 Landlord's Property. All attached fixtures, partitions and
air conditioning, ventilating and heating equipment, attached in or on to the
Premises at the commencement of or during the Term of this Lease whether or not
by or at the expense of Tenant, shall be and remain a part of the Premises, and
shall become the property of Landlord and shall not be removed by Tenant at the
expiration of the Term of this Lease. Tenant's furniture and equipment including
desks, tables, chairs and other furniture purchased by Tenant which may be
removed without undue damage to the premises may be removed by Tenant at the
expiration of the Term of this Lease; provided, that Tenant is not in Default at
the time of the expiration of the Term and provided that the Premises are left
in good condition resulting from the removal of said property, reasonable wear
and tear excepted.
ARTICLE XIX
REMEDIES CUMULATIVE - WAIVER NOT TO BE INFERRED
-----------------------------------------------
Except to the extent specifically set forth in this Lease, no remedy
herein or otherwise conferred upon or reserved to Landlord and Tenant shall be
considered exclusive to any other remedy but the same shall be cumulative and
shall be in addition to every other remedy given hereunder or hereafter existing
at law or in equity or by statute. Further, all powers or remedies given by this
Lease to Landlord and Tenant may be deemed expedient. No delay or omission of
Landlord or Tenant to exercise any right or power arising from any Default shall
impair any such right or power or shall be considered to be a waiver of any such
Default or an acquiescence therein. Notwithstanding anything contained herein to
the contrary, in no event shall the Tenant have the right to terminate this
Lease as a result of any Default by Landlord.
No waiver of any breach of any covenant, agreement or provision of this
Lease shall be construed or held to be a waiver of any other breach or waiver,
acquiescence or as consent to a further or succeeding breach of the same
covenant, agreement or provision.
Neither the rights herein given to receive, collect, sue for any
Rent(s), monies or payments nor to enforce any of the terms, provisions or
conditions of this Lease nor to prevent the breach or nonobservance thereof nor
the exercise of any such right or of any other right or remedy hereunder or
otherwise granted or arising shall in any way affect or impair the right or
power of Landlord to declare ended the Term hereby granted and to terminate this
Lease in the manner provided in this Lease because of any Default by Tenant.
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ARTICLE XX
RIGHT OF INSPECTION, ACCESS, DUCTS,
CHANGES TO BUILDING AND RIGHT TO EXHIBIT PREMISES
-------------------------------------------------
Section 20.1 Right of Inspection. Landlord or Landlord's duly authorized
representative may at such reasonable times and in such manner as not to
unreasonably interfere with the business of Tenant enter and inspect the
Premises. The Landlord shall have the right to enter the Premises without notice
at any time with respect to any emergency which necessitates Landlord or
Landlord's duly authorized representatives entering the Premises. Tenant shall
provide keys necessary.
Section 20.2 Access. Landlord reserves for itself entry through the
Premises that permits access to any other part of the Complex including, but not
limited to, the lobby, hallways, exterior building walls, windows, core corridor
walls, doors, other entrances, terraces or roofs adjacent to the Premises and to
any space in, under or adjacent to the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other building
facilities, for the purposes of operation, maintenance, decoration or repair
thereof; provided, however, that access will be at reasonably appropriate hours
unless an emergency occurs.
Section 20.3 Ducts. Tenant shall permit Landlord to install, use and
maintain, replace or add additional pipes, lines, utilities, ducts and conduits
within walls, load bearing columns and ceilings located in, under or on the
Premises; provided, however, that access will be at reasonably appropriate hours
unless an emergency occurs and shall be conducted with an effort to minimize
interruption of Tenant's Use of Premises and provided further that Landlord will
indemnify Tenant for any damages to Tenant's Premises or personality, arising
out of Landlord utilizing the provisions of this Section.
Section 20.4 Changes to Building. Landlord reserves the right at any
time before or after completion of the Building to make changes to theBuilding
and/or Complex (including, but not limited to the right to construct additional
buildings on the Complex) without incurring any liabilities to Tenant therefore;
provided, however changes may not be made to the Premises without Tenant's
consent unless such changes will not adversely affect in material manner,
Tenant's access to the Premises as designed, or any affect Tenant's peaceful
enjoyment and Use of the Premises as contemplated by this Lease.
Section 20.5 Right to Exhibit Premises. Any time during the last one
hundred twenty (120) days of the Term of this Lease, Landlord may, during the
normal business hours, and with reasonable notice to Tenant, enter Premises with
a prospective tenant and exhibit the Premises to said prospective tenant.
Landlord shall have the right, upon reasonable notice to Tenant, to enter the
Premises with a prospective purchaser and exhibit the Premises to such
prospective purchaser at any time.
ARTICLE XXI
SURRENDER UPON TERMINATION
--------------------------
Tenant covenants and agrees to and with Landlord that upon the
termination of this Lease by forfeiture or upon expiration of the Term, Tenant
shall at once surrender and deliver up to Landlord the Premises in good
condition, reasonable wear and tear excepted, and Tenant shall surrender all
keys for the Premises to the Landlord at the place then fixed for the payment of
Rent and shall inform Landlord of all combinations on all locks and safes, if
any, in the Premises. Tenant, on the expiration or so0ner termination of this
Lease, shall be required to remove all vaults and safes installed by Tenant in
the Premises. Tenant's obligation to observe and perform this covenant shall
survive the expiration or other termination of the Term of this Lease. If Tenant
shall default in so surrendering the Premises, Tenant's occupancy subsequent to
such expiration, whether or not with the consent or acquiescence of Landlord,
shall be deemed to be that of a tenancy at will and in no event from month to
month or from year to year
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and it shall be subject to all of the terms, covenants and conditions of this
Lease applicable thereto except that Annual Rent then in effect shall be twice
the amount then otherwise payable and no extension or renewal of this Lease
shall be deemed to have occurred by such holding over.
Prior to the expiration or sooner termination of this Lease, Tenant
shall remove any and all trade fixtures, equipment and other unattached items
which Tenant may have installed, stored or left in the Premises or elsewhere in
the Building, including, but not limited to, counters, shelving, show cases,
signs, lettering or advertising material on any glass, chairs, vaults and safes
and unattached movable machinery purchased or provided by Tenant and which are
susceptible of being moved without damage to the Building. Tenant shall repair
any damage to the Premises or other portion of the Complex caused by its removal
of such fixtures, property, signs and moveables. In the event Tenant does not
make such repairs, Tenant shall be liable for and agrees to pay Landlord's costs
and expenses in making such repairs, together with a sum equal to fifteen
percent (15%) of such costs and expenses to cover Landlord's overhead in making
such repairs for Tenant. Except as is specifically permitted hereunder, Tenant
shall not remove any plumbing or electrical fixtures or equipment, floor
coverings (including, but not limited to, wall to wall carpeting) walls or
ceilings, all of which shall be deemed to constitute a part of the freehold
and/or leasehold interest of Landlord, nor shall Tenant remove any fixtures or
machinery that were furnished or said for by Landlord (whether initially
installed or replaced). The Premises shall be left in a broom-clean condition.
If Tenant shall fail to remove its trade fixtures or other property as provided
in this Article XXI, such fixtures and other property not removed by Tenant
shall be deemed abandoned by Tenant and, at the option of Landlord, shall become
the property of Landlord or, at Landlord's option, may be removed by Landlord at
Tenant's expense plus fifteen percent (15%) as hereinabove provided, or place in
storage at Tenant's expense, or sold or otherwise disposed of, in which event
the proceeds of such sale or other disposition shall belong to Landlord
ARTICLE XXII
DURATION OF LIABILITY, NON-LIABILITY, LIMIT
OR LIABILITY AND DAMAGE TO PROPERTY OR PERSONS
----------------------------------------------
Section 22.1 Duration of Liability. The term "Landlord" as use in this
Lease, so far as covenants and obligations on the part of the Landlord are
concerned, shall be limited to the mean and include only the owner or owners at
the time in questions of the Premises, and in the event of any transfer or
transfers of the Premises, Landlord (and in case of any subsequent transfers or
conveyances, the grantor) shall be automatically freed and relieved from and
after the date of such transfer or conveyance of all personal liability as
respects the performance of any covenant or obligation in the part of the
Landlord as contained in this Lease thereafter to be performed, provided that
any such transfer, in which Tenant may hav an interest, shall be turned over to
the grantee and any amount then due and payable to Tenant by Landlord or the
then grantor under any provision of Lease shall be paid to Tenant, and provided
further, that the interest of the successive transferee in the Premises shall at
all times remain subject to and liable for the performance of all covenants on
the part of the Landlord contained in this Lease.
Section 22.2 Damage to Property or Persons. Landlord shall not be liable
for any loss of or damage to property of Tenant or of others located in the
Premises or any portion of the Complex, by theft or otherwise, nor for any loss
or damage whatsoever to any property which Tenant could remove at the end of the
Term as provided in Section XXI hereof irrespective of the cause of such injury,
damage or loss. Landlord shall not be liable for any injury or damage to persons
or property or to the Premises resulting from fire, explosion, falling plaster,
steam, gas electricity, water, rain or leaks from any part of the Complex 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. Landlord shall not be liable for any such injury or damage
caused by other tenants or any person(s) either in the Premises or elsewhere in
the Complex, or by the public, or quasi-public work. In no event shall Landlord
be liable for any interruption or failure in the supply of any utility. Landlord
shall not be liable
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for any latent defect in construction. Landlord shall not be responsible for
damage or loss of property of Tenant kept or stored on the Premises, no matter
how caused. Notwithstanding anything contained herein to the contrary, in no
event shall Landlord ever be liable for any consequential damages.
Section 22.3 Limit of Liability. Tenant shall look soley to Landlord's
interest in the Complex (or the proceeds thereof) of the satisfaction of any of
Tenant's rights or remedies or for the collection of a judgment or other
judicial process requiring the payment of money by Landlord in the event of any
default by Landlord hereunder. Landlord share have no personal liability and no
property or assets of Landlord (other than the Complex) shall be subject to the
levy, execution, judgment or other enforcement procedure for the satisfaction of
Tenant's rights or remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Premises.
ARTICLE XXIII
TIME OF ESSENCE
---------------
Time is of the essence in the performance of this Lease.
ARTICLE XXIV
EMINENT DOMAIN
--------------
Section 24.1 Tenant's Duty. In the event of a partial taking of the
Premises under the power of eminent domain at any time during the Term, Tenant
shall repair or rebuild Tenant's improvements in conformity with the
requirements of this Lease.
Section 24.2 Condemnation. In the event that the whole of the Premises
shall be condemned or taken in any manner for any public or quasi-public use or
less than the whole of the Premises is condemned or taken and it is not
economically feasible to continue to operate the remaining portion of the
Premises, this Lease and the Term and estate hereby granted shall forthwith
cease and terminate as of the date of vesting of title. In the event that a part
of the Complex shall be so condemned or taken (whether or not the Premises are
taken and whether or not it is economically feasible to operate the remaining
portion of the Premises), then: (i) if substantial structural alteration or
reconstruction of the Complex shall, in the reasonable opinion of Landlord, be
necessary or appropriate as a result of such condemnation or taking, Landlord
may, at its option, terminate this Lease and the Term and estate hereby granted
as of the date of such vesting of title by notifying Tenant in writing of such
termination within sixty (60) days following the date on which Landlord shall
have received notice of vesting of title or (ii) if Landlord does not elect to
terminate this Lease as aforesaid, this Lease shall be and remain unaffected by
such condemnation or taking, except that, effective as of the date of vesting of
title, the Annual Rent shall be equitably abated to the extent, if any, the
Premises is taken. In the event that only a part of the Complex shall be so
condemned or taken and this Lease and the Term and estate hereby granted are not
terminated as hereinbefore provided, Landlord will, from the proceeds of the
condemning authority, restore with reasonable diligence the remaining structural
portions of the Premises (to the extent taken) as nearly as practicable to the
same condition as it was prior to such condemnation or taking and Tenant shall
restore the Premises to, as nearly as practical, to the same condition as it was
prior to such condemnation.
In the event of termination in any of the cases hereinabove provided,
this Lease and the Term and estate hereby granted shall expire as of the date of
such termination with the same effect as if that were the date hereinbefore set
for the expiration of the Term of this Lease, and all Rent and other charges
hereunder shall be apportioned as of such date.
In the event of any condemnation or taking hereinabove mentioned of all
or a part of the Premises, Landlord shall be entitled to receive the entire
award in the condemnation proceeding, including any award made for the value of
the estate vested by this Lease in Tenant and Tenant hereby expressly assigns to
Landlord any and all right, title and interest of Tenant now or
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hereafter arising in or to any part thereof, and Tenant shall be entitled to
receive no part of such award. Tenant shall, however, be entitled to claim,
prove and receive in such condemnation proceeding such award as may be allowed
for trade fixtures, alterations and improvements constructed by Tenant at its
sole expense (amortized over the balance of the Term) but only if such award
shall be in addition to the award payable to Landlord as set forth above.
Section 24.3 Governmental Action Short of Physical Taking. In the case
of any governmental action not resulting in the taking of any portion of the
Premises, but creating a right to compensation therefore, such as, without
limitation, a change of the grade of any street, this Lease shall continue in
full force and effect without reduction or abatement of any Rent thereafter due
and payable. Landlord shall be entitled to receive the entire amount of
compensation made with respect to any such governmental action.
ARTICLE XXV
DAMAGE OR DESTRUCTION OF BUILDING
---------------------------------
Section 25.1 Tenant's Duty. In the event of any damage or destruction
to the Premises at any time during the Term (whether by casualty or
condemnation), Tenant shall repair or rebuild Tenant's improvements in
conformity with the requirements of this Lease.
Section 25.2 Rent Abatement. If the Premises are rendered untenantable
as a result of any damage or total destruction by fire or other casualty (unless
caused by Tenant or its employees' or agents' negligence or willful actions),
the Annual Rent shall be equitably adjusted to the extent the Premises are
untenantable for the period from the date of such damage or destruction until
the earlier to occur of: (i) the date the Premises are rendered tenantable for
Tenant to repair Tenant's improvements; or (ii) Tenant opens for business.
Section 25.3 Substantial Destruction. If the Complex, Building and/or
the Premises are substantially damaged or destroyed by fire or other casualty,
then Landlord may terminate this Lease by giving Tenant notice ("Casualty
Termination Notice") to such effect within ninety (90) days after the casualty
causing such damage. The Term of this Lease shall terminate and expire upon the
thirtieth (30th) day after the Casualty Termination Notice is given and Tenant
shall vacate the Premises and surrender the same to Landlord on or before said
date. The Premises and/or the Building (whether or not the Premises are damaged)
shall be deemed substantially damaged or destroyed: (i) if the cost of the
repair or restoration after an insurable casualty occurs is fifty percent (50%)
or more of the then full replacement cost of the Building or the Premises (as
applicable); or (ii) if the cost of repair and restoration after any
non-insurable casualty occurs is fifteen percent (15%) or more of the then full
replacement cost of the Building or the Premises (as applicable). The Complex
(whether or not the Premises are damaged) shall be deemed substantially damaged
or destroyed if: (i) the cost of repair or restoration after an insurable
casualty occurs is fifty percent (50%) or more of the then replacement cost of
the Complex; or (ii) the cost of repair or restoration after any non-insurable
casualty occurs is five percent (5%) or more of the then replacement cost of the
Complex.
Section 25.4 Repair of Damage. If Landlord does not elect to terminate
this Lease after a casualty, Landlord shall proceed with due diligence to repair
or rebuild the Complex, Building and/or the Premises in order to enable Tenant
to occupy the Premises.
ARTICLE XXVI
NOTICES
-------
All notices, demands or other communications made pursuant to this
Lease shall be in writing and shall be deemed to have been duly given, upon the
delivery thereof by hand to the appropriate addresses herein set forth as
evidenced by a signed receipt for same or on the first business day after
mailing by United States registered or certified mail, return receipt requested,
postage pre-paid, or by a reputable overnight express courier,
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addressed as set forth in Article I, or to such other address or to such other
person as any party may designate to the other for such purpose in the manner
hereinabove set forth.
ARTICLE XXVII
ESTOPPEL CERTIFICATE, PROHIBITION OF RECORDING LEASE
----------------------------------------------------
Section 27.1 Estoppel Certificate. Landlord and Tenant each agree, as
reasonably requested by the other party to execute and deliver to the other,
within ten (10) days of receipt of the request therefore, a statement certifying
that this Lease is unmodified and in full force and effect (or if there have
been modification, stating the modification and that the Lease is in full force
and effect as modified), certifying the dates to which the Rent as adjusted has
been paid, and stating whether or not, to the best knowledge of the signer, the
other party is in breach in the performance of any of its obligations under this
Lease, and if so, specifying each such breach of which the signer has knowledge,
it being intended that any such, statement delivered pursuant hereto may be
relied upon by others with whom the party requesting such certificate may be
dealing.
Section 27.2 Lease Not to be Recorded. The Tenant shall not record this
Lease or any memorandum of its terms. In addition to all other rights and
remedies available to Landlord, the parties agree that the recording of this
Lease may create a cloud upon the title of the Complex and the Tenant does
hereby indemnify and hold the Landlord harmless for all loss, expenses,
including but not limited to attorneys' fees and court costs through all trial
and appellate levels which may be incurred by Landlord as a result of Tenant's
breach of the terms and provisions of this paragraph. In addition to any and all
other rights or remedies available at law or in equity, Landlord shall
specifically have the right of injunctive relief to cause any memorandum in
violation of this provision to be vacated of record. Landlord reserves the right
(but not the obligation) to record this Lease or any memorandum of its terms.
Tenant agrees that upon the written request of Landlord, Tenant shall execute a
Memorandum of this Lease in form and content (consistent with the terms hereof)
acceptable to Landlord.
ARTICLE XXVIII
REPRESENTATIONS AND AGREEMENTS
------------------------------
Tenant expressly acknowledges and agrees that Landlord has not made and
is not making, and Tenant, in executing and delivering this Lease, is not
relying upon any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease and any addendum
attached hereto or made a part hereof. It is understood and agreed that this
Lease alone fully and completely expresses the parties' agreement and that this
Lease is entered into after full investigation, neither Party relying upon any
statement or representation not embodied in this Lease or any addendum hereto.
ARTICLE XXIX
SECURITY DEPOSIT
----------------
Tenant has deposited with Landlord the Security Deposit referred to in
Article I, the receipt of which (subject to collection if paid by check) is
hereby acknowledged. The Security Deposit shall be held by Landlord without
interest as security for the faithful performance by Tenant of all the terms of
this Lease including, but not limited to the payment of Rent and the performance
of all obligations of Tenant under this Lease. The Security Deposit may be
commingled with the general funds of the Landlord. The Security Deposit may not
be assigned, transferred or encumbered by the Tenant and any such acts shall be
without force and not binding upon Landlord. If any Rent herein reserved or
other sum or charge payable by Tenant to Landlord hereunder shall be overdue or
unpaid, then Landlord may, at its option without prejudice to any other remedy
therefore, apply the entire Security Deposit or so much thereof, as may be
appropriate to compensate Landlord towards payment of Rent or loss or damage
sustained by Landlord as a result of such breach on the part of Tenant and
Tenant shall forthwith upon demand restore such Security Deposit to the original
sum deposited. Provided Tenant has complied with all terms and provisions of
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this Lease, then Landlord agrees to cause the Security Deposit to be returned to
Tenant within fifteen (15) days after the expiration of the Term and timely and
proper vacation of the Premises by Tenant. In the event Landlord's interest
under this Lease is transferred the Security Deposit shall be transferred to the
successor landlord and the existing Landlord with whom the Security Deposit was
deposited or previously transferred to shall be relieved from any and all
liability hereunder.
ARTICLE XXX
EXCUSE OF LANDLORD'S PERFORMANCE
--------------------------------
Anything in this Lease to the contrary notwithstanding, Landlord shall
not be deemed in default with respect to the performance of any of the terms,
covenants and conditions of this Lease if same shall be due to any strike,
lockout, civil commotion, war-like operation, invasion, rebellion, hostilities,
military or usurped power, sabotage, government regulations or controls,
inability to obtain any material or service or through an act of God or any
other cause reasonably beyond the control of Landlord. Landlord shall not be
liable for failure to give Tenant possession in accordance with the provisions
of this Lease, due to any of the foregoing conditions. The time for Landlord's
performance shall be extended as a result of any of the foregoing.
ARTICLE XXXI
RELATIONSHIP OF THE PARTIES
---------------------------
Nothing contained in this Lease shall be deemed or construed as
creating the relationship of principal and agent or of partnership or joint
venture between the parties hereto, it being understood and agreed that neither
the method of computing Rent nor any other provision contained herein nor any
acts of the parties hereto shall be deemed to create any relationship between
the parties other than that of Landlord and Tenant.
ARTICLE XXXII
REQUIREMENT OF EXECUTION
------------------------
The submission by Landlord to Tenant of this Lease in draft form shall
be deemed submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force and effect, shall not
constitute an option for the leasing of the Premises herein described, nor
confer any right or impose any obligations upon either party. The submission by
Landlord of this Lease for execution by Tenant and the actual execution and
delivery thereof by Tenant to Landlord shall similarly have no binding force and
effect unless and until Landlord shall have executed this Lease and delivered a
copy of this Lease fully executed by Landlord to Tenant.
ARTICLE XXXIII
SCOPE OF LEASE
--------------
This Lease covers all of the covenants, conditions, stipulations and
provisions agreed upon between the parties hereto, and no employee or agent
(other than an authorized officer) of Landlord has authority to change, modify
or alter the terms hereof, and neither party is, nor shall be, bound by any
inducement, statement, representation, promise or agreement not in conformity
herewith. In no event shall this Lease or any provisions hereof be deemed to be
amended, modified or changed in any manner whatsoever, except and unless set
forth and provided for in a writing executed by Landlord and Tenant,
respectively.
ARTICLE XXXIV
GOVERNING LAW
-------------
This Lease shall be governed by the laws of the State of Florida and
venue with respect to any litigation shall be in Palm Beach County, Florida.
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ARTICLE XXXV
ACCORD AND SATISFACTION
-----------------------
No payment by Tenant or receipt by Landlord of a lesser amount than the
Rent herein stipulated shall be deemed to be other than on account of the
earlier Rent nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or pursue any other remedy provided in
this Lease.
ARTICLE XXXVI
PROVISIONS RELATING TO INTERPRETATION
-------------------------------------
Article, Paragraph and Section titles in this Lease are intended only
for convenience and for ease of reference, and in no way do such titled define,
limit or in any way affect this Lease or the meaning or contents of any material
contained herein.
Whenever the context so required, the use of any gender shall be deemed
to include all genders, the use of the plural shall include the singular and the
singular shall include the plural.
ARTICLE XXXVII
EFFECT OF INVALIDITY OF ANY PROVISION
-------------------------------------
If any provision or provisions of this Lease should be held to be
invalid or unenforceable by any court of competent jurisdiction, such ruling
shall not affect the validity or enforceability of the remainder of this Lease
but the Lease (as so modified) shall remain in full force and effect.
ARTICLE XXXVIII
BROKERAGE
---------
Tenant covenants, warrants and represents that except for the Specified
Broker(s), Tenant has not dealt with any real estate brokers, salesmen or
consultants in the finding, negotiation or execution of this Lease and Tenant
hereby indemnifies Landlord for any claims, costs or damages (including, but not
limited to, attorneys' fees and court costs through all trial and appellate
levels) arising from any breach of the foregoing covenants, warranties and
representations.
ARTICLE XXXIX
JOINT PREPARATION
-----------------
The preparation of this Lease has been a joint effort and the resulting
Lease shall not as a matter of judicial construction be construed more severely
against either Landlord or Tenant.
ARTICLE XL
RADON GAS
---------
Radon gas is naturally occurring radioactive gas, that when it has
accumulated in a building in sufficient quantities, may present a health risk 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 health unit.
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ARTICLE XLI
PARKING SPACES
--------------
Tenant is hereby granted 2 (two) parking spaces in the underground
garage of the building for the purpose of parking automobiles (no trucks,
full-size vans or service vehicles), for the term of this Lease. The exact
location of the 2 (two) parking spaces shall be determined within (60) sixty
days by Landlord at the Landlord's sole discretion.
ARTICLE XLII
CONDITION OF PREMISES
---------------------
The Premises shall be leased in essentially "AS IS" condition except as
provided for specifically herein. Landlord shall completely remove the four
offices marked with an "X" on Exhibit B and the cabinet and wall adjacent to the
existing entrance door also marked with an "X". Landlord shall replace the
existing metal entrance door with double solid core wooden doors and shall
create a demising wall along the southern wall of the Premises. The entire
Premises will be repainted and new building standard carpet shall be installed
on all floor surfaces. Finally, the cabinets being removed shall be relocated to
the adjacent office. The foregoing work shall be construed as Landlord's Work
and shall be at Landlord's sole cost and expense. Any other work of any nature
and kind whatsoever shall be deemed Tenant's Work and shall be at Tenant's sole
cost and expense.
ARTICLE XLIII
OVERTIME A/C
------------
Tenant hereby acknowledges that by activating the after hours air
conditioning control unit at any time there will be a charge of $10.00 (ten
dollars) per hour.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed in their respective names by their duly authorized officers on the day
and year for set forth below each party's execution.
Signed, sealed and delivered "LANDLORD"
in the presence of:
South Palm Beach Financial Corp.
1499 W. Palmetto Park Rd., Suite 400
Boca Raton, Florida 33486
/s/ Heather Golden By: /s/ Leland M. Morris
------------------------------ ----------------------------------
Witness Leland M. Morris, President
Dated: 4/4/95
--------------------
"TENANT"
First Colonial Securities Group. Inc.
1499 W. Palmetto Park Road, Suite 312
Boca Raton, Florida 33486
/s/ Heather Golden By: /s/ Michael Golden
------------------------------ -----------------------------------
Witness Michael Golden, President
Dated: 4/4/95
---------------------
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EXHIBIT "A"
LEGAL DESCRIPTION - BUILDING LAND
PARCEL 1:
A parcel of land lying in Boca Raton, Palm Beach County, Florida, said land
bearing a portion of Block 11 of Replat of Country Club Village, Section "A"
Plat Book 25, Pages 149 and 150 of the Public Records of Palm Beach County,
Florida, said land being more particularly described as follows:
Beginning at the Northwest corner of the aforesaid Block 11; thence with a
bearing of Due East along the North line of Block 11, a distance of 213.94 feet
to a point; thence with a bearing of S. 0o 27' 25" E., a distance of 678.12 feet
to the Point of Beginning; thence with a bearing of N. 89o 32' 35" E., a
distance of 75.00 feet to a point; thence with a curve to the right having a
radius of 25.00 feet, an arc length of 39.27 feet to a point; thence with a
bearing of S. 0o 27' 25" E., a distance of 225.00 feet to a point on the North
right-of-way line of Palmetto Park Road; thence with a bearing of S. 89o 32' 35"
W., along said North right-of-way line of Palmetto Park Road being the South
line of Block 11, a distance of 300.00 feet to a point; thence with a bearing of
N. 1o 18' 55" W., along the West line of Block 11, a distance of 250.08 feet to
a point; thence with a bearing of N. 89o 32' 35" E., a distance of 203.75 feet,
more or less, to the Point of Beginning.
Containing 1.730 Acres, more or less and rights-of-way of record.
PARCEL 2: (EASEMENT PARCEL)
Non-exclusive, perpetual easement appurtenant to and for the benefit of Parcel 1
as defined and set forth in the Declaration dated December 29, 1982 and recorded
on January 26, 1983, in Official Records Book 3869, at page 1124, Public Records
of Palm Beach County, Florida for ingress and egress and passage by pedestrians
and vehicular traffic and vehicular parking upon, across and through the
following described property:
A parcel of land lying in Boca Raton, Palm Beach County, Florida, said being a
portion of Block 11 of Replat of Country Club Village, Section "A" Plat Book 25,
Pages 149 and 150 of the Public Records of Palm Beach County, Florida, said land
being more particularly described as follows:
Beginning at the Northwest corner of the aforesaid Block 11; thence with a
bearing of Due East along the North line of Block 11, a distance of 213.94 feet
to a point; thence with a bearing of S. 0o 27' 25" E., a distance of 678.12 feet
to a point; thence with a bearing of S. 89o 32' 35" E., a distance of 203.75
feet to a point on the West line of Block 11; thence with a bearing of N. 0lo
18' 55" W., along the West line of Block M, a distance of 679.90 feet, more or
less, to the Point of Beginning.
Containing 3.255 Acres, more or less.
<PAGE>
EXHIBIT "C"
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
tenant's premises for the tenants and their employees, licensees and invitees,
and no tenant shall use, or permit the use of, the entrances, corridors,
escalators or elevators for any other purpose. No tenant shall invite to the
tenant's premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by other tenants. Fire exits and stairway are for emergency use only and that
shall not be used for any other purpose by tenants, their employees, licensees
or invitees. No tenant shall encumber or obstruct, or permit the encumbrance or
obstruction of any of the sidewalks, plazas, entrances, corridors, escalators,
elevators, fire exits or stairways of the Building. The Landlord reserves the
right to control and operate the public portions of the Building and public
facilities as well as facilities furnished for the common use of the tenants, in
such manner as it deems best for the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building outside of ordinary
business hours to any person not having a security pass card issued by the
Landlord or the tenant whose premises are to be entered and not otherwise
properly identified, and may require all persons admitted to or leaving the
Building outside ordinary business hours to register. Any person whose presence
in the Building at any time shall, in the judgment of Landlord, be prejudicial
to the safety, character, reputation and interests of the Building or of its
tenants may be denied access to the Building or may be ejected therefrom. In
case of invasion, riot, public excitement or other commotion the Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise for the safety of the tenants and protection of
the property of the Building and tenants. The Landlord may require any person
leaving the Building with any package or other object to exhibit a pass from the
tenant from whose premises the package or object is being removed, but the
establishment and enforcement of such requirement shall not impose any
responsibility on the Landlord for the protection of any tenant against the
removal of property from the premises of the tenant. The Landlord shall in no
way be liable to any tenant for damages or loss arising from the admission,
exclusion or ejection of any person to or from the tenant's premises or the
Building under the provision of this rule. Canvassing, soliciting or peddling in
the Building is prohibited and every tenant shall cooperate to prevent the same.
3. No tenant shall obtain or accept for its use in the premises ice,
food for on the premises preparation other than warming, beverage, towel,
barbering, boot blacking, floor polishing, lighting maintenance, cleaning or
other similar services from any persons not authorized by the Landlord in
writing to furnish such services, provided that the charges for such services by
persons authorized by the Landlord are not excessive and where appropriate and
consonant with the security and proper operation of the Building sufficient
persons are so authorized for the same service to provide tenants with a
reasonably competitive selection. Such services shall be furnished only at such
hours and in such places within the tenant's premises and under such reasonable
regulations as may be fixed by the Landlord. Tenant may a coffee service,
subject to Landlord's approval, and a kitchen for the of its employees.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of the
tenant, shall be paid by such tenant.
5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
premises, or at any point inside any tenant's premises where the same might
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be visible outside of such premises, except that the name of the tenant may be
displayed on the entrance door of the tenant's premises, and in the elevator
lobbies of the floors which are occupied entirely by any tenant, subject to the
approval of the Landlord as to the size, color and style of such display. The
inscription of the name of the tenant on the door of the tenant's premises shall
be done by Landlord at the expense of the tenant. Listing of the name of the
tenant on the directory boards in the Building shall be done by the Landlord at
its expense; any other listings shall be at the sole discretion of the Landlord.
6. No awnings or other projections over or around the windows shall be
installed by any tenant, and only such window blinds as are supplied or
permitted by the Landlord shall be used in a tenant's premises. Linoleum tile or
other floor covering shall be laid in a tenant's premises only in a manner
approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it stand
shall be brought into or kept upon a tenant's premises. If, in the judgment of
the Landlord, it is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at the sole expense
of the tenant and in such manner as the Landlord determine. The moving of safes
and other heavy objects shall take place outside of ordinary business hours upon
previous notice to the Landlord, and the persons employed to move the same in
and out of the Building shall be reasonably acceptable to the Landlord and, if
so required by law, shall a Master Rigger's license. Freight, furniture,
business equipment, merchandise and bulky matter of any description shall be
delivered to and removed from the premises only in the freight elevator and
through the service entrances and corridors, and only during the hours and in a
manner approved by the Landlord. Arrangements will be made by the Landlord with
any tenant for moving large quantities of furniture and equipment into or out of
the Building.
8. No machines or mechanical equipment of any kind other than
typewriters and other ordinary portable business machines, may be installed or
operated in any tenant's premises without Landlord's prior written consent, and
in no case (even where the same are of a type so excepted or as so consented to
by Landlord) shall any machines or mechanical equipment be so placed or operated
as to disturb other tenants; but machines and mechanical equipment which may be
permitted to be installed and used in a tenant's premises shall be so equipped,
installed and maintained by such tenants to prevent any disturbing noise,
vibration or electrical or other interference from being transmitted from such
premises to any other area of the Building.
9. No noises, including the playing of any musical instruments, radio or
television, which, in the judgment of the Landlord might disturb the other
tenants in the Building, shall be made or permitted by any tenant, and no
cooking shall be done in the tenant's premises, except as expressly approved by
the Landlord. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises which would
impair or interfere with any of the Building services or the proper and economic
heating, cleaning or other servicing of the Building or the premises, or the use
or enjoyment by any other tenant of any other premises, nor shall there be
installed by any tenant any ventilating, air conditioning, electrical or other
equipment of any kind which, in the judgment of the Landlord, might cause such
impairment or interference. No dangerous, inflammable, combustible or explosive
object or material shall be brought into the Building by any tenant or with the
permission of any tenant. Any cuspidors or similar containers or receptacles
used in any tenant's premises shall be cared for and cleaned by and at the
expense of the tenant.
10. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage the same. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein.
31
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11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows in any tenant's premises and no lock on any door therein
shall be changed or altered in any respect. Additional keys for a tenant's
premises and toilet rooms shall be procured only from the Landlord which may
take a reasonable time to procure. Any costs associated with obtaining
additional keys for tenants shall be borne solely by the tenant. Upon the
termination of a tenant's lease, all keys for the tenant's premises and toilet
rooms shall be delivered to the Landlord.
12. All entrance doors in each tenant's premises shall be left 1ocked
and all windows shall be left closed by the tenant when tenant's premises are
not in use. Entrance doors shall not be left open at any time.
13. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
14. All windows in each tenant's premises shall be kept closed and all
blinds therein above the ground floor shall be lowered when and as reasonably
required because of the position of the sun, during the operation of the
Building air conditioning system to cool or ventilate the tenant's premises.
15. Neither tenant or any of its employees, agents or visitors shall at
any time keep or have at the Building or tenant's premises any kerosene,
camphene, benzine, naptham gasoline or any inflammable or combustible fluid,
chemical or explosive during the term of tenant's lease.
16. Landlord shall in no way be responsible to any tenant for any loss
of property from its premises, however occurring, or for any damage to the
furniture or other effects of any tenant.
17. The Building and/or the tenant's premises shall not be used for
gambling or any immoral or illegal purposes.
18. The parking lot shall be used only for parking and deliveries, and
shall not be used for vehicle repairs or servicing. Disabled vehicles or
vehicles parked for more than two (2) consecutive days may be towed by Landlord
at the vehicle owner's expense. Any damage to the parking lot caused by tenant
or tenant's agents, employees, invitees or guests may be repaired by Landlord at
tenant's expense, and the cost of such repairs shall be payable by tenant as
additional rent.
19. Landscaped areas may not be used for parking or storage. Any damages
to landscaped areas caused by tenant or tenant's agents, employees, invitees or
guests may be repaired by Landlord at tenant's expense, and the cost of such
repairs shall be payable by tenant as additional rent.
20. Landlord shall have the right to prohibit any advertising by tenant
which in Landlord's opinion is harmful to the Building, its reputation or its
desirability as an office building. Tenant shall discontinue such advertising
immediately upon written notification to it from the Landlord.
21. Landlord reserves the right to rescind, alter, waive or modify the
foregoing rules and regulations at any time prescribed for the Building when, in
its judgment, it deems it necessary, desirable or proper for the reputation,
safety, care and cleanliness of the Building and for the preservation of good
order therein, its best interest and for the best interest of the other tenants.
Any such other and further rules and regulations shall be binding upon the
parties hereto with the same force and effect as if they had been inserted at
the time of the execution of the Lease. No alteration or waiver of any rule or
regulation in favor of one tenant shall operate as alteration or waiver in favor
of any other tenant. The Landlord shall not be responsible to any tenant for the
non-observance or violation by any other tenant of any of the rules and
regulations at any time prescribed by the Building.
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EXHIBIT "D"
JANITORIAL SERVICES
DAILY:
1. Empty and damp wipe all ashtrays and sand urns
2. Empty all trash containers and replace all plastic liners which are
soiled and torn
3. Clean, sanitize and polish all water fountains and coolers
4. Remove finger marks and smudges from all glass entrance doors and
partitions
5. All interior surfaces and fixtures in the elevators will be dusted
and wiped daily
6. Damp mop common area hard surfaced floors with an approved cleaner
7. Restrooms:
A. Empty all trash containers and replace all plastic liner for daily
sanitary purposes
B. Wash all mirrors
C. Clean all countertops with commercial cleaner
D. Clean sinks with disinfectant cleaner and polish all hardware
E. Clean urinals inside and out with disinfectant cleaner
F. Clean toilet bowls inside and out, and damp wipe the seat, top and
bottom with disinfectant cleaner
G. Damp mop floor using disinfectant cleaner
H. Damp wipe, clean and disinfect all marble surfaces. Spot wipe and
clean where necessary. Walls and partitions are to be of hand
prints and dust.
I. Replenish hand soap, towels, tissue and sanitary napkins as
necessary.
BI-WEEKLY:
1. Wipe all door plates, kick plates, brass and metal fixtures within the
building
2. Dust all authorized furniture and reachable, horizontal surfaces with
treated cloth or yarn duster
3. Dust mop all stairways and landings with treated yarn dust mop.
Railings, ledges and equipment are to be included
4. Sweep or dust mop all hard surfaced floors in offices with a treated
yard dust mop. Floors will be damp mopped as necessary when dirt
cannot be removed by sweeping or dust mopping. Special attention will
be given to areas under all furniture and equipment to prevent
accumulation of dust and dirt. Floor dusting will be done after
furniture has been dusted
5. Vacuum all carpeted areas. Spot clean as necessary
33
<PAGE>
MONTHLY:
1. Dust all baseboards
QUARTERLY:
1. Damp clean all glass doors and partitions completely
2. Polish all office furniture with an approved furniture polish
SEMI-ANNUALLY:
1. Dust all venetian blinds. Damp wipe as necessary
2. Clean all elevator, bathroom and common area light fixtures
ANNUALLY:
1. All walls will be brushed down with an approved wall duster or
vacuum cleaner
34
<PAGE>
LEASE ADDENDUM
This Lease Addendum entered into this 13th day of January, 1997 between South
Palm Beach Financial Corporation as Landlord and First Colonial Securities
Group, Inc. as Tenant is attached to and forms part of that certain Lease dated
April 4, 1995.
WITNESSETH:
WHEREAS, Landlord and Tenant desire to further modify, amend and supplement the
Lease on the terms, covenants and conditions set forth more particularly herein
below:
1.) The Premises shall be expanded to include the former suite 310 which is
adjacent to the existing Premises. A floor plan of suite 310 in its
current configuration is attached hereto as Exhibit "A". Upon the execution
of this Lease Addendum suite 310 will forever after also be known as suite
312 only. Tenant shall be granted occupancy of the expansion space
immediately upon the execution of this Lease Addendum.
2.) Tenant shall accept the expansion space indicated on Exhibit A, the former
suite 310, in absolutely "AS IS" condition. Landlord shall pay to Tenant
immediately after the execution of this Lease Addendum the sum of $7,500.00
as consideration for Tenant accepting the expansion space in its present
condition and configuration. It is understood Tenant will utilize said
$7,500.00 for improvements to the expansion space. The exact nature of the
improvements shall be determined solely by Tenant, but shall include new
building standard carpet. In no event shall Landlord incur any expense
whatsoever other than the above $7,500 in connection with Tenant's
occupancy of the expansion space.
3.) Section 1.21 of the Lease is hereby amended to (5,960) rentable square
feet.
4.) The Term of the Lease shall be extended two (2) additional years.
Therefore, the Lease shall now terminate on April 30, 2002.
5.) The Base Rent for the period beginning February 1, 1997 and ending April
30, 1997 shall be $8,605.00 plus sales tax per month.
6.) Section 4.2 of the Lease shall be amended to read: Adjustment of Rent. The
Base Rent for each successive year shall be as follows:
(a) for the year beginning May 1, 1997 and ending April 30, 1998,
$108,396.00 plus sales tax payable at $9,033.00 plus tax per month.
(b) for the year beginning May 1, 1998 and ending April 30, 1999,
$113,820.00 plus sales tax payable at $9,485.00 plus tax per month.
(c) for the year beginning May 1, 1999 and ending April 30, 2000,
$119,520.00 plus sales tax payable at $9,960.00 plus tax per month.
(d) for the year beginning May 1, 2000 and ending April 30, 2001,
$125,496.00 plus sales tax payable at $10,458.00 plus tax per month.
(e) for the year beginning May 1, 2001 and ending April 30, 2002
$131,760.00 plus sales tax payable at $10,980.00 plus tax per month.
7.) Article XLI of the Lease shall now provide for five (5) parking spaces.
8.) Tenant shall pay as Additional Rent starting in 1997 and continuing through
tile remainder Term of this Lease, 7.0% of all ad valorem, non-ad valorem
and real estate taxes, in excess of the 1996 taxes, which are then
attributed to the Complex. After the end of each calendar year, Landlord
shall furnish Tenant a statement of the actual taxes and Tenant shall pay
to Landlord 7.0% of the increase, if any, no later than ten days after
notice from Landlord to Tenant.
<PAGE>
9.) The Lease, as further modified by this Lease Addendum, is hereby ratified
and confirmed. All other terms and conditions not expressly modified herein
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Lease Addendum on the date
first set forth above.
WITNESS: LANDLORD:
South Palm Beach Financial Corp.
/s/ Lisa Pallifrone By: /s/ Leland Morris
------------------------ -------------------------------
Leland Morris, President
WITNESS: TENANT:
First Colonial Securities Group, Inc.
/s/ Lisa Pallifrone By: /s/ Michael Golden
------------------------ --------------------------------
Michael Golden, President
Date: 1/13/97
-------------------------------
<PAGE>
2nd LEASE ADDENDUM
This 2nd Lease Addendum entered into this 5th day of June, 1998 between South
Palm Beach Financial Corporation as Landlord and First Colonial Securities
Group, Inc. as Tenant is attached to and forms part of that certain Lease dated
April 4, 1995, which Lease was subsequently amended by Lease Addendum on January
13, 1997.
WITNESSETH:
WHEREAS, Landlord and Tenant desire to further modify, amend and supplement the
Lease on the terms, covenants and conditions set forth more particularly herein
below:
1.) The Premises shall be expanded to include the former suite 300 which is
across the hall from the existing Premises. A floor plan of suite 300 in
its current configuration is attached hereto as Exhibit "A". Upon the
execution of this 2nd Lease Addendum suite 300 will forever after also be
known as suite 312 only. Tenant shall be granted occupancy of suite 300 on
July 1, 1998.
2.) Tenant shall accept the expansion space indicated on Exhibit A, the former
suite 300, in absolutely "AS IS" condition. In no event shall Landlord
incur any expense whatsoever in connection with Tenant's occupancy of the
expansion space.
3.) Section 1.21 of the Lease is hereby amended to (7,400) rentable square
feet.
4.) The Base Rent for the period beginning July 1, 1998 and ending April 30,
1999 shall be $12,120.00 plus sales tax per month.
5.) Section 4.2 of the Lease shall be further amended to read: Adjustment of
Rent. The Base Rent for each successive year shall be as follows:
(a) for the year beginning May 1, 1999 and ending April 30, 2000,
$152,700.00 plus sales tax payable at $12,725.00 plus tax per month.
(b) for the year beginning May 1, 2000 and ending April 30, 2001,
$160,344.00 plus sales tax payable at $13,362.00 plus tax per month,
(c) for the year beginning May 1, 2001 and ending April 30, 2002,
$168,360.00 plus sales tax payable at $14,030.00 plus tax per month.
6.) Article XLI of the Lease shall now provide for six (6) parking spaces.
7.) Effective July 1, 1998 Paragraph 8 of the Lease Addendum dated January 13,
1997 shall be modified to reflect that Tenant's proportionate share of real
estate taxes shall increase to 8.75 percent. However, for the period
January 1, 1998 through June 30, 1998 the proportionate share shall remain
7.0%. There shall be no other changes to said Paragraph
<PAGE>
8.) The Lease and Lease Addendum, as further modified by this 2nd Lease
Addendum, are hereby ratified and confirmed. All other terms and conditions
not expressly modified herein shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this 2nd Lease Addendum on the
date first set forth above.
WITNESS: LANDLORD:
South Palm Beach Financial Corp.
/s/ Karen Williams By: /s/ Leland Morris
------------------------- --------------------------------
/s/ Alan Kane Leland Morris, President
-------------------------
WITNESS: TENANT:
First Colonial Securities Group, Inc.
/s/ [Signature illegible] By: /s/ Michael Golden
------------------------- ---------------------------------
/s/ Alan Kane Michael Golden, President
-------------------------
