Exhibit 10.5
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the
13th day of April, 2004, between THE LAS OLAS COMPANY, INC., ("Landlord") and
Video Without Boundaries, Inc. ("Tenant").
W I T N E S S E T H:
1. DEFINITIONS. The following terms when used with an initial
capitalized letter have the meanings set forth below. All exhibits referred to
are attached to the Lease and made a part hereof.
(a) "The Building" means the building located upon the real
property (the "Property") described in Exhibit "A".
(b) "Premises" means the suite of offices or stores located
within the Building and outlined on the floor plan attached to this Lease as
Exhibit "B". The Premises are stipulated for all purposes to contain
approximately 2,689 square feet of "Rentable Area" (as below defined). The
Usable Area of the Premises is approximately 2,318 square feet.
(c) "Base Rental" means the sum of $59,158.00 (fifty-nine
thousand one hundred fifty-eight dollars) per annum as adjusted pursuant to
Exhibit "C". The Base Rental due for the second month of the Lease Term
(hereafter defined) has been deposited with Landlord by Tenant contemporaneously
with the execution hereof.
(d) "Commencement Date" shall be May 1, 2004, or the date
specified in Paragraph 3a hereof The rent shall commence on June 1, 2004.
(e) "Lease Term": means a term commencing on the Commencement
Date and continuing until the last day of the thirteenth full month after the
Commencement Date.
(f) "Security Deposit" means the sum of Twelve Thousand
Dollars ($12,000.00).
(g) "Common Areas" means those areas devoted to corridors,
atrium, elevator, foyers, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar facilities
provided for the common use or benefit of tenants generally and/or the public.
(h) "Service Areas" means those areas within the outside walls
used for elevator mechanical rooms, building stairs, fire towers, elevator
shafts, flues, vents, stacks, pipe shafts and vertical ducts (but does not
include any such areas for the exclusive use of the particular Tenant).
(i) "Rentable Area"
(a) "Rentable Area" with respect to a floor which is
fully occupied by a single tenant means the total number of square feet of gross
floor area on such floor measured from the interior surface of the exterior wall
reduced by (i) the number of square feet of floor area included within any air
conditioning room or fan room serving more than the floor on which it is
located, and (ii) the areas described in subparagraph (e) of this Paragraph.
Where the exterior wall is glass, the measurement shall be taken from the
interior surface of such glass wall. Columns and projections necessary for the
support of the Building or any part thereof are included within Rentable Area.
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(b) "Rentable Area" with respect to Premises on a
floor occupied by more than one tenant means the number of square feet of gross
floor area within the area measured from the interior surface of the exterior
wall framing any boundary of the Premises and measured to the center line of
interior walls bounding the premises. Rentable Area of such premises shall also
include a proportionate part of all public corridors, public toilets, air
conditioning rooms, fan rooms, air ducts, janitor closets, electrical closets,
telephone equipment closets in the building and their enclosing walls. Where an
exterior glass wall forms a boundary of the premises, the measurement shall be
taken from the interior surface of such glass wall. Columns and the interior
surface of such glass wall. Columns and projections necessary for the support of
the Building or any part thereof are included within the Rentable Area.
(c) Rentable Area shall be increased in such instance
described in subparagraph (a) or subparagraph (b) above by a proportionate part
of the ground floor public lobby area.
(d) Notwithstanding any definition of Rentable Area
above, if an air conditioning room or fan room located on the floor serves more
than a floor on which it is located, the area of such room shall be apportioned
to the several floors served thereby and the proportionate area allocable to
each floor shall in turn be allocated to the Premises located on such floor on a
proportionate basis.
(e) In no instance shall Rentable Area include fire
towers, flues, vents, stacks, pipe shafts, public atriums, public vestibules,
public telephone booths, ramps or loading docks or any public areas located on
the first floor of the Building, except for the proportionate part of the first
floor above included in Rentable Area pursuant to subparagraph (c) above.
(f) The Rentable Area of the Building is 54,873
square feet. The estimate and the set forth estimate of Rentable Area within the
premises may be revised at Landlord's election, if Landlord's architect
determines such estimates to be inaccurate in any material degree after
examination of the final drawings or field measurements of the Premises and the
Building.
(j) "Exterior common Areas" means the portions of the Project
which are not located within the Building and which are provided and maintained
for the common use and benefit of Landlord and tenants of the Building generally
and the employees, invitees and licensees of Landlord and such tenants; and all
plazas, sidewalks and landscaped areas.
(k) "Building Standard Improvements", when used herein, shall
mean those improvements (including the "Shell Improvements" and the "Allowance
Items") to the Premises which Landlord shall agree to provide according to the
Work Letter attached hereto as Exhibit "D" and incorporated herein for all
purposes. "Building Grade" shall mean the type, brand and/or quality of
materials Landlord designates from time to time to be the standard quality to be
used in the Building or the exclusive type, grade or quality of material to be
used in the Building.
(l) "Parking Area" means the paved parking areas serving the
Building contained within the Project.
(m) "Project" means the Building, common areas and Parking
Areas located upon the real property described in Exhibit "A".
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(n) "Work Letter" is a description of Landlord's work set
forth in Exhibit "D".
2. Lease Grant. Subject to and upon the terms herein set forth,
Landlord Leases to Tenant and Tenant leases from Landlord the Premises.
3. Lease Term.
(a) This Lease shall continue in force during a period
beginning on Commencement Date and continuing until the expiration of the Lease
Term, unless this Lease is sooner terminated or extended to a later date under
any other term or provision hereof.
(b) If by the date specified in Paragraph 1(d) the Premises
have not been substantially completed pursuant to the Work Letter, due to
omission, delay or default by Tenant or anyone acting under or for Tenant,
including, but not limited to, Tenant's submission of approved working drawings
per Exhibit "D", or due to any cause other than Landlord's default, Landlord
shall have no liability, and the obligations of this Lease (including without
limitation, the obligation to pay rent) shall nonetheless commence as of the
Commencement Date.
(c) If, however, the Premises are not substantially completed
due to default on the part of Landlord, then, as Tenant's sole remedy for the
delay in Tenant's occupancy of the Premises, the Commencement Date shall be
delayed and the rent herein provided shall not commence until the earlier of
actual occupancy by Tenant or substantial completion of the work which Landlord
has agreed to perform.
(d) Subject to the provisions of the preceding paragraph,
Tenant agrees to accept possession of the Premises when the Premises have been
substantially completed, with all facilities in good operating order. If there
are any finishing touches remaining to be done which will not interfere with the
conduct of Tenant's business on the Premises, Tenant will nevertheless accept
delivery of possession and allow Landlord to complete such finishing touches.
(e) The issuance of a Certificate of Occupancy for the
Premises conditioned only on Completion of Tenant's work will be conclusive
evidence that Landlord has substantially completed Landlord's work.
4. Use. The Premises shall be used for general business office purposes
and for no other purpose. Tenant agrees not to use or permit the use of the
Premises for any purpose which is illegal, or which, in Landlord's reasonable
opinion, creates a nuisance or tends to damage the reputation of the Building as
a first-class office-retail building or which would increase the cost of
insurance coverage with respect to the Building.
5. Base Rental.
(a) Tenant covenants and agrees to pay during the Lease Term,
to Landlord, without any setoff or deduction whatsoever, the Base Rental, and
all other sums of money due hereunder as additional rent, all of which are
sometimes herein collectively called "rent" for the nonpayment of which Landlord
shall be entitled to exercise all rights and remedies as are herein provided in
the case of the nonpayment of Base Rental. The annual Base Rental for each
calendar year or portion thereof during the Lease Term, together with any
adjustments thereto pursuant to Exhibit "C" then in effect, shall be due and
payable in twelve (12) equal installments on the first day of each calendar
month during the initial term of this Lease and any extensions or renewals
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thereof, and Tenant agrees to pay such Base Rental and any adjustments thereto
to Landlord at Landlord's address provided herein (or such other address as may
be designated by Landlord in writing from time to time). Tenant agrees to pay
all such sums in advance, and without demand. If the term of this Lease
commences on a day other than the first day of a month or terminates on a day
other than the last day of a month, then the installments of Base Rental and any
adjustments thereto for such month or months shall be prorated, based on the
number of days in such month.
(b) All installments of rent not paid when due and payable
shall bear interest at the maximum lawful contract rate in the State of Florida
until paid, and in addition, Tenant agrees to pay to Landlord a late charge
equal to six (6%) percent of the amount of any payment due to Landlord which is
not paid within seven (7) days after its due date. After the initial late charge
is assessed, an additional late charge will be assessed on the first day of each
month on all outstanding indebtedness until paid.
(c) Tenant shall pay all sales and use taxes levied or
assessed against all rent payments due under this Lease simultaneously with each
payment required hereunder.
6. Services to be Furnished by Landlord. Landlord agrees to furnish
Tenant the following services.
(a) Water at those points of supply provided for general use
of other tenants in the Building, central heat and air conditioning in season,
at such temperatures and in such amounts as are considered by Landlord to be
reasonably necessary for the comfort of occupants of the Building or as required
by governmental authority; provided, however, heating and air-conditioning
service at times other than for "Normal Business Hours" for the Building (which
are 8:00 a.m. to 6:00 p.m. on Mondays through Fridays and 8:00 a.m. to 1:00 p.m.
on Saturdays, exclusive of normal business holidays), shall be furnished only
upon the written request of Tenant delivered to Landlord prior to 3:00 p.m. at
least one (1) day in advance of the date such usage is requested. Tenant shall
bear the entire cost of such additional service as such costs are determined by
Landlord from time to time.
(b) Routine maintenance and electric lighting service for all
Common Areas and Service Areas of the Building in the manner and to the extent
deemed by Landlord to be standard.
(c) Janitor service, Mondays through Fridays, exclusive of
normal business holidays; provided, however, if Tenant's floor covering or other
improvements require special treatment, Tenant shall pay the additional cleaning
cost attributable thereto as additional rent upon presentation of a statement
therefor by Landlord.
(d) Subject to the provisions of Paragraph 12, facilities to
provide all electrical current required by Tenant in its use and occupancy of
the Premises.
(e) All Building Standard fluorescent bulb replacement in the
Premises and fluorescent and incandescent bulb replacement in the Common Areas
and Service 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 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 Premises and
neither shall Landlord be required to insure against any such losses. Tenant
shall cooperate fully in Landlord's efforts to maintain security in the Building
and shall follow all regulations promulgated by Landlord with respect thereto.
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The failure by Landlord to furnish, or the interruption or termination
of, the defined services noted above in whole or in part, 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 work 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 for any cause cease to function
properly, Tenant shall have no claim for offset or abatement or rent or damages
on account of an interruption in service occasioned thereby or resulting
therefrom.
7. Improvements to be Made by Landlord. Except as otherwise provided in
the Work Letter, all installations and improvements now or hereafter placed on
the Premises other than Building Standard Improvements shall be for Tenant's
account and at Tenant's cost (and Tenant shall pay ad valorem taxes and
increased insurance thereon or attributable thereto), which cost shall be
payable by Tenant to Landlord in advance, as additional rent.
8. Maintenance and Repair of Premises by Landlord. Except as otherwise
expressly provided herein, Landlord shall not be required to make any repairs to
the Premises.
9. Graphics. Landlord shall provide and install, at Tenant's cost, all
letter or numerals on doors in the Premises. All such letters and numerals shall
be in the standard graphics for the Building and no others shall be used or
permitted on the Premises without Landlord's prior written consent.
10. Care of the Premises by Tenant. Tenant agrees not to commit or
allow any waste to be committed on any portion of the Premises, and at the
termination of this Lease to deliver up the Premises to Landlord in as good
condition as at the Commencement Date, ordinary wear and tear accepted.
11. Repairs and Alternations by Tenant. Tenant covenants and agrees
with Landlord, at Tenant's own cost and expense, to promptly repair any damage
done to the Building, or any part thereof, including replacement of damaged
portions or items, caused by Tenant or Tenant's agents, employees, invitees, or
visitors, and Tenant covenants and agrees to make all such repairs as may be
required to restore the Building to as good a condition as it was in prior to
such damages. All such work or repairs by Tenant shall be effected in compliance
with all applicable laws; provided, however, if Tenant fails to make such
repairs or replacements promptly, Landlord may, at its option, make repairs or
replacements, and Tenant shall pay the cost thereof to the Landlord within ten
(10) days of Landlord's demand therefor, as additional rent. Tenant agrees with
Landlord not to make or allow to be made any alternations to the Premises,
install any vending machines on the Premises, or place signs on the Premises
which are visible from outside the Premises, without first obtaining the prior
written consent of Landlord in each such instance, which consent may be given on
such conditions as Landlord may elect. Any and all alterations to the Premises
shall become the property of Landlord upon termination of this Lease (except for
movable equipment or furniture owned by Tenant). Landlord may, nonetheless,
require Tenant to remove any and all fixtures, equipment and other improvements
installed on the Premises. In the event that Landlord so elects, and Tenant
fails to remove such improvements, Landlord may remove such improvements at
Tenant's cost, and Tenant shall pay Landlord on demand the cost of restoring the
Premises to Building Standard.
12. Use of Electrical Services by Tenant. Tenant's use of electrical
services furnished by Landlord shall not exceed ether in voltage rated capacity
or overall load that which Landlord deems to be Building Standard. For the
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purposes of this Lease, the Building Standard shall be 3.5 ▇▇▇▇▇ per square
foot. In the event Tenant shall request that it be allowed to consume electrical
services in excess of that deemed by Landlord to be Building Standard, Landlord
may refuse to consent to such usage or may consent upon such conditions as
Landlord elects (including the installation of submeters or other dedicated
electrical modifications to be installed at Tenant's expense).
13. Use of Air Conditioning Services by Tenant. Tenant's requirement
for air conditioning services furnished by Landlord shall not exceed that which
Landlord deems to be Building Standard. For purposes of this Lease, Building
Standard means 30 BTU's per square foot during Normal Business Hours. In the
event Tenant requests additional air conditioning capacity in excess of that
deemed by Landlord to be Building Standard, Landlord may refuse to consent to
such requirement or may consent upon such conditions as Landlord elects.
14. Parking. The Tenant will be entitled to the use of Ten (10) parking
spaces in the parking area on a month to month basis, with the initial rental
rate for said spaces being at the rate of $90.00 per month for each reserved
space and $70.00 per month for non-reserved spaces. The monthly rental rates on
all parking spaces rented on a month to month basis are subject to increase from
time to time and substitution for other parking spaces to be provided by
Landlord. It is anticipated that the parking spaces within the Parking Area
shall be leased by Landlord on a month to month basis or shall be available on
an hourly pay parking basis with attendant parking. Charges to Tenants for
tickets validated by Landlord in Landlord's Tenant parking lots either in the
Project or in the Las Olas Shops area will be billed by Landlord to Tenant on or
about the tenth (10th) of the following month for prompt payment by Tenant.
15. Laws and Regulations. Tenant agrees to comply with all applicable
laws, ordinances, rules and regulations of any governmental entity, agency or
authority having jurisdiction of the Premises or Tenant's use thereof.
16. Building Rules. Tenant will comply with the rules of the Building
adopted and altered by Landlord from time to time and will cause all of its
agents, employees, invitees and visitors to do so. All changes to such rules
will be sent by Landlord to Tenant in writing.
17. Entry by Landlord. Tenant agrees to permit Landlord or its agent or
representatives to enter into and upon any part of the Premises at all
reasonable hours (and in emergencies at all times) to inspect the condition,
occupancy or use thereof, or to show the Premises to prospective purchasers,
mortgagees, tenants or insurers, or to clean or make repairs, alterations or
additions thereof, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof.
18. Assignment and Subletting.
(a) Tenant shall not assign, sublease, transfer, pledge, or
encumber this Lease or any interest therein without Landlord's prior written
consent. Any attempted assignment, sublease or other transfer or encumbrance by
Tenant in violation of the terms and covenants of this Paragraph shall be void.
(b) In the event that Tenant shall desire Landlord's consent
to the subletting of the Premises or the assignment of the Lease, Tenant shall
give Landlord three (3) months' prior written notice thereof. Such notice shall
be deemed to be an offer by Tenant to sublet the Premises to Landlord for the
balance of the Term upon all the same terms, covenants and conditions as are
contained in this Lease or to assign this Lease to Landlord at Landlord's
option. In the event that Landlord does not accept such offer in writing within
the three (3) month notice period, then Landlord's right to sublease the
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Premises or acquire this Lease by assignment shall be deemed to be waived, but
nothing herein contained shall be deemed to be a consent by Landlord to any
subletting or assignment unless Landlord delivers to Tenant its written consent
thereto. Notwithstanding Landlord's consent on any one occasion, the right to
recapture noted in this subparagraph shall apply to any further subletter or
assignment.
(c) The covenants in this Paragraph concerning assignment
shall run with the land and shall bind Tenant and Tenant's heirs, executors,
administrators, personal representatives, successors and permitted assigns.
(d) If Tenant is a corporation, unincorporated association,
limited liability company, or partnership, the transfer, assignment or
hypothecation of any shares or interest in such corporation association, limited
liability company, or partnership by the person, persons or entities owning
fifty (50%) percent or more therein as of the date of this Lease shall be deemed
an assignment of this Lease. This Paragraph shall not be applicable to Tenant if
it is a corporation whose outstanding voting shares are listed on any national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended). As of the date hereof, the ownership of all of the shares or interest
of the Tenant is as follows:
Tenant is a publicly traded company
19. Mechanic's Liens. Tenant will not permit any mechanic's lien or
liens to be placed upon the Premises or the Building and nothing in this Lease
shall be deemed or construed in any way as constituting the consent or request
of Landlord, express or implied, by inference or otherwise, to any person for
the performance of any labor or the furnishing of any materials to the Premises,
or any part thereof, nor as giving Tenant any right, power, or authority to
contract for or permit the rendering of any services for the furnishing of any
materials that would or might give rise to any mechanic's or other liens against
the Premises. In the event any such lien is claimed against the Premises, the,
in addition to any other right or remedy of Landlord, Landlord may, but shall
not be obligated to, discharge the same. Any amount paid by Landlord for any of
the aforesaid purposes shall be paid by Tenant to Landlord within ten (10) days
of Landlord's demand therefor as additional rent.
Agreeable with the provisions of Florida Statutes (1977) 713.10, all
parties hereto acknowledge that the interest of the Landlord herein, as owner of
the underlying real property, shall not be subject to liens for alterations made
by the Tenant as no such alterations are required by the parties hereunder and
the imposition of such a lien is expressly prohibited.
20. Tenants Insurance. Tenant shall maintain at its expense, in an
amount equal to full replacement cost, fire and extended coverage insurance on
all of its personal property, including removable trade fixtures, located in the
Premises and in such additional amounts as are required to meet Tenant's
obligations pursuant to Paragraph 24 hereof and also agrees to carry and
maintain during the term of this Lease, commercial general liability insurance
covering the Premises and Tenant's use thereof against claims for personal
injury or death and property damage occurring upon, in or about the Premises,
such insurance to afford protection to the limit of not less than One Million
($1,000,000.00) Dollars in respect of injury or death to any number of persons
arising out of any one occurrence and property damage arising out of any one
occurrence, and fire damage legal liability coverage of $50,000.
Prior to the end of every odd numbered year during the Lease Term,
Tenant shall raise the limit of the policy to such increased limit as directed
by Landlord which reflects the prevailing limits required of similar office
space in the East Fort Lauderdale area.
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All policies of insurance provided for herein shall be issued in form
acceptable to Landlord by an insurance company satisfactory to Landlord and
qualified to do business in the State of Florida. Each and every policy:
(i) Shall name the Landlord as an additional insured;
(ii) Shall reflect the address of the Leased Premises;
(iii) Shall (or a certificate thereof shall) be delivered to Landlord
and any such other parties in interest prior to delivery of possession of the
Premises to Tenant, and thereafter, within thirty (30) days prior to the
expiration of each such policy and as often as any such policy shall expire or
terminate. Renewal or additional policies shall be procured and maintained by
Tenant in like manner and to like extent;
(iv) Shall contain a provision that the insurer will give to Landlord
and such other parties in interest at least ten (10) days notice in writing in
advance of any cancellation, termination or lapse, or the effective date of any
reduction in the amounts of insurance; and
(v) Shall be written as a primary policy which does not contribute to
and is not in excess of coverage which Landlord may carry.
Intentionally deleted
Such insurance may include Landlord's interest in the improvements and
betterments installed in the Premises by Tenant (except inventory, trade
fixtures, wall and floor coverings, furniture and other personal property of
Tenant removable by Tenant under the provisions of this Lease), whether the same
have been paid for entirely or partially by Tenant. The policies shall be
written to provide that such coverage shall be primary and that any insurance
maintained by Tenant shall be excess insurance only.
Intentionally Deleted
Tenant shall have no rights in any policy or policies maintained by
Landlord and shall not, by reason of the reimbursement required by this Section,
be entitled to be a named insured thereunder.
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Tenant shall furnish Landlord, within thirty (30) days after the
Commencement Date, a written statement, certified by Tenant or an executive
officer of Tenant, of the actual cost incurred by Tenant in making all
improvements and betterments to the Premises.
Increases in Fire Insurance Premiums Attributable to Tenant. Tenant
shall not keep, use, sell or offer for sale in or upon the Premises any article
which may be prohibited by the standard form of fire insurance policy for office
uses. Tenant agrees to pay one hundred (100%) percent of any increase in
premiums for fire and extended coverage insurance that may be charged during the
Term on the amount of such insurance which may be carried by Landlord on
Landlord's Building resulting from the type of item sold or stored by Tenant in
the Premises, whether or not Landlord has consented to the same. In determining
whether increased premiums are the result of Tenant's use of the Premises, a
schedule, issued by the organization making the insurance rate on the Premises,
showing the various components of such rate, shall be conclusive evidence of the
several items and charges which make up the fire insurance rate on the Premises.
In the event Tenant's occupancy causes any increase of premium for the
fire, and/or casualty rates on Landlord's Building from the rates charged for
customary office uses, Tenant shall pay the additional premium on the fire
and/or casualty insurance policies by reason thereof. The Tenant also shall pay,
in such event, any additional premium on the rent insurance policy that may be
carried by the Landlord for its protection against rent loss through fire. Bills
for such additional premiums shall be rendered by Landlord to Tenant at such
times as Landlord may elect, and shall be due from, and payable by Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid as
Additional Rent.
22. Assumption of Risk. Landlord shall not be liable to Tenant or
Tenant's customers, licensees, agents, guests or employees for any injury or
damages to its, his or their persons or property by any cause whatsoever,
including, but not limited to acts or omissions of any other tenant in the
Building, construction defects, water, rain, sleet, fire, storms, negligence and
accidents, breakage, stoppage, or leaks of gas, water, heating sewer pipes,
boilers, wiring or plumbing or any other defect in, or about the Premises.
Tenant expressly assumes all liability for or on account of any such injury,
loss or damage, and will at all times, indemnify and save Landlord harmless from
and against all liability, damage or expense caused by or arising out of any
such injury, loss or damage to persons or property upon the Premises.
23. Waiver of Subrogation Rights. Anything in this Lease to the
contrary notwithstanding, Landlord and Tenant each hereby waives any and all
rights of recovery, claim, action, or cause of action, against the other, its
agents, officers, or employees, for any loss or damage that may occur to the
Premises, or any improvements thereto, or the Building of which the Premises are
a part, or any improvements thereto, or any personal property of such party
therein, by reason of fire, the elements, or any other cause(s) which are
insured against under the terms of the standard fire and extended coverage
insurance policies referred to in Paragraph 20 hereof, regardless of cause or
origin, including negligence of the other party hereto, its agents, officer, or
employees. This waiver shall be applicable only if the same does not violate the
terms of the insurance policy. Each party agrees to use its best efforts to
obtain a waiver of subrogation endorsement on its insurance policies provided
the same can be obtained without additional premium.
24. Casualty Damage. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
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thereof to Landlord. If the Building shall be so damaged that substantial
alteration or reconstruction of the Building shall, in Landlord's sole opinion,
be required (whether or not the Premises shall have been damaged by such
casualty) or in the event any mortgagee of Landlord's should require that the
insurance proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt or in the event of any material uninsured loss to the
Building, Landlord may, at its option, terminate this Lease by notifying Tenant
in writing of such termination within ninety (90) days after the date of such
damage. If Landlord does not thus elect to terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to restore the Building to
substantially the same condition in which it was immediately prior to the
happening of the casualty, except that Landlord's obligation to restore shall
not exceed the scope of the work required to be done by Landlord in originally
constructing the Building and installing Shell Improvements (as described in the
Work Letter) in the Premises, nor shall Landlord be required to spend for such
work an amount in excess of the insurance proceeds actually received by Landlord
as a result of the casualty. When the Shell Improvements have been restored by
Landlord, Tenant shall complete the restoration with an "allowance" (the
"Reconstruction Allowance") to pay for reconstruction of the Premises to
Building Standard, such Reconstruction Allowance to be in dollar amount equal to
the actual cost to Landlord of providing the Allowance Items provided by
Landlord pursuant to the Work Letter. Except for reconstruction of the Shell
Improvements by Landlord and the Reconstruction Allowance, all cost and expense
of reconstructing the Premises to Building Standard shall be borne by Tenant.
Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from such damage or the
repair thereof, except that, subject to the provisions of the next sentence,
Landlord shall allow Tenant a fair diminution of rent during the time and to the
extent the Premises are unfit for occupancy. If the Premises or any other
portion of the Building be damaged by fire or other casualty resulting from the
fault or negligence of Tenant or any of Tenant's agents, employees or invitees,
the rent hereunder shall not be diminished during the repair of such damage and
Tenant shall be liable to Landlord for the cost of the repair and restoration of
the Building caused thereby to the extent such cost and expense is not covered
by Landlord's insurance proceeds.
25. Condemnation. If the whole or substantially the whole of the
Building or the Premises should be taken for any public or quasi-public use, by
right of eminent domain or otherwise, or if it should be sold in lieu of
condemnation, then this Lease shall terminate as of the date when physical
possession of the Building or the Premises is taken by the condemning authority.
If less than the whole or substantially the whole of the Building or the
Premises is thus taken or sold, Landlord (whether or not the Premises are
affected thereby) may terminate this Lease by giving written notice thereof to
Tenant; in which event this Lease shall terminate as of the date when physical
possession of such portion of the Building or Premises is taken by the
condemning authority. If this Lease is not so terminated upon any such taking or
sale, the Base Rental payable hereunder shall be diminished by an equitable
amount, and Landlord shall, to the extent Landlord deems feasible, restore the
Building and the Premises to substantially their former condition, but such work
shall not exceed the scope of the work done by Landlord in originally
constructing the Building and installing Building Standard Improvements in the
Premises, nor shall Landlord in any event be required to spend for such work an
amount in excess of the amount received by Landlord as compensation for such
damage. All amounts awarded upon a taking of any part or all of the Building or
the Premises shall belong to Landlord and Tenant shall not be entitled to and
expressly waives all claim to any such compensation.
26. Damages From Certain Causes. Landlord shall not be liable to Tenant
for any loss or damage to any property or person occasioned by theft, fire, act
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of God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition, or order of governmental body or authority or by any other cause
beyond the control of Landlord. Nor shall Landlord be liable for any damage or
inconvenience which may arise through repair or alterations of any part of the
Building or Premises.
27. Events of Default/Remedies.
(a) The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fails to pay any rent or
any other sums of money due hereunder and such failure shall continue for a
period of seven (7) days after the date such sum is due; (ii) Tenant shall fail
to comply with any provision of this Lease or any other agreement between
Landlord and Tenant, including the Work Letter, all of which terms, provisions
and covenants shall be deemed material; (iii) the leasehold hereunder demised
shall be taken on execution or other process of law in any action against
Tenant; (iv) Tenant shall fail to promptly move into, take possession of and
operate its business on the Premises when the Premises are ready for occupancy
or shall cease to do business in or abandon any substantial portion of the
Premises; (v) Tenant shall become insolvent or unable to pay its debts as they
become due, or Tenant notifies Landlord that it anticipates either condition;
(vi) Tenant takes any action to, or notifies Landlord that Tenant intends to
file a petition under any section or chapter of the National Bankruptcy Act, as
amended, or under any similar law or statute of the United States or any State
thereof; or a petition shall be filed against Tenant under any such statute or
Tenant or any creditor of Tenant notifies Landlord that it knows such a petition
will be filed or Tenant notifies Landlord that it expects such a petition to be
filed; or (vii) a receiver or trustee shall be appointed for Tenant's leasehold
interest in the Premises or for all or a substantial part of the assets of
Tenant.
(b) Upon the occurrence of any event or events of default by
Tenant, whether enumerated in this Paragraph or not, if Tenant fails to cure any
such default within three (3) days of written notice from Landlord, Landlord
shall have the option to pursue any one or more of the following remedies: (i)
Landlord shall have the right, at its election to cancel and terminate this
Lease and dispossess Tenant; or (ii) Landlord shall have the right without
terminating or canceling this Lease to declare all amounts and rents due under
this Lease for the remainder of the existing term (or any applicable extension
or renewal thereof) to be immediately due and payable, and thereupon all rents
and other charges due hereunder to the end of the initial term or any renewal
term, if applicable, shall be accelerated; (iii) Landlord may elect to enter and
repossess the Premises and relet the Premises for Tenant's account, holding
Tenant liable in damages for all expenses incurred in any such reletting and for
any difference between the amount of rent received from such reletting, and that
due and payable under the terms of this Lease; (iv) Landlord may enter upon the
Premises and do whatever Tenant is obligated to do under the terms of this Lease
(and Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations under this
Lease and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action). All such remedies of Landlord
shall be cumulative, and in addition, Landlord may pursue any other remedies
that may be permitted by law or in equity. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of such default.
(c) Paragraph 27 shall be enforceable to the maximum extent
not prohibited by applicable law, and the unenforceability of any portion hereof
shall not thereby render unenforceable any other portion.
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(d) Landlord shall be in default hereunder in the event
Landlord has not begun and pursued with reasonable diligence the cure of any
failure of Landlord to meet its obligations hereunder within thirty (30) days of
the receipt by Landlord of written notice from Tenant of the alleged failure to
perform. In no event shall Tenant have the right to terminate or rescind this
Lease as a result of Landlord's default as to any covenant or agreement
contained in this Lease or as a result of the breach of any promise or
inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such
remedies of termination and recission and hereby agrees that Tenant's remedies
for default hereunder and for breach of any promise or inducement shall be
limited to a suit for damages and/or injunction. In addition, Tenant hereby
covenants that, prior to the exercise of any such remedies, it will give the
mortgagees holding mortgages on the Building notice and a reasonable time to
cure any default by Landlord.
28. Real Estate Taxes and Assessments. In addition to minimum rental
and other charges set forth in the Lease, Tenant agrees to pay Landlord Tenant's
pro-rata share of all real property taxes and special or other assessments for
public betterments, improvements or services which may be levied or assessed by
any lawful authority against the real property containing the Premises as
defined below, payable as follows:
Commencing on the rent commencement day of the Term, and on the first
day of the calendar month thereafter, Tenant agrees to pay Landlord as
additional rent an amount estimated by Landlord to be Tenants pro-rata share of
the amount of said property taxes and assessments. Tenants pro-rata shares means
the number of square feet of rentable area of the Premises divided by the
rentable area of the building or buildings described in the Tax ▇▇▇▇ or
assessment. Landlord may adjust said amount at the end of any calendar month on
the basis of Landlords experience and reasonably anticipated cost. Within one
hundred twenty (120) days following the end of each calendar year, Landlord
shall furnish Tenant with a statement covering such year just expired, certified
as correct by an authorized representative of Landlord showing taxes and the
amount for such and payments made by Tenant with respect for such year. If the
taxes are less than Tenants payments so made, Tenant shall be entitled to a
credit of the difference, or if such taxes are greater than Tenants payments,
Tenant shall pay to Landlord the difference within thirty (30) days after
receipt of such statement.
Definition of Property Taxes
----------------------------
Catchall Definition. When used in this Lease, the term "Property Taxes"
shall mean all taxes, assessments, excises, levies, and other
charges by any public authority, which are general or special,
ordinary or extraordinary, foreseen or unforeseen, or of any kind
and nature whatsoever, and which shall or may, during or in
respect to the Lease Term, be assessed, levied, charged,
confirmed, or imposed upon, or become due and payable out of, or
become a lien on the Premises, Land, Building, or appurtenances or
facilities used in connection therewith.
Inclusions. Such Taxes shall include, without limitation, all ad
valorem taxes, personal property taxes, transit taxes, taxes or
charges on vaults or vault space, (unless such tax or charge is
payable by tenant directly), special or extraordinary assessments,
governments levies, and all other taxes or other similar charges,
if any which are levied, assessed, or imposed upon, or become due
and payable in connection with the Premises, Land, Building, or
appurtenances or facilities used in connection therewith.
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Exclusions. However, such Taxes shall specifically exclude any rent
tax, gross receipts tax, sales or transactions tax, profits tax,
income tax, franchise tax, excise tax, inheritance tax, gift tax,
transfer tax, any late payment charge or penalty, or any tax
against the Premises that is paid by Tenant as a separate charge
pursuant to this Lease.
Exception to Exclusion. Notwithstanding the foregoing, if at any time
during the Lease Term, the present method of taxation or
assessment shall be changed so that the whole or any part of
taxes, assessments, excises, levies, or other charges so assessed,
levied, charged, confirmed or imposed upon the Premises, Land,
Building, or appurtenances or facilities thereto shall be
discontinued or reduced and as a substitute therefor, or in lieu
thereof, a tax, assessment, excise, levy or other charge shall be
assessed, levied, charged, confirmed, or imposed, whether wholly
or partially as a special assessment or otherwise on rents,
income, profits, sales, or gross receipts derived from the
Building, then the substitute tax, assessment, excise, levy, or
other charge shall be deemed included within the term "Taxes" to
the extent that such substitute tax would be payable if the
Premises were the only property of the Landlord subject to tax.
29. Peaceful Enjoyment. Tenant shall, and may peacefully have, hold,
and enjoy the Premises against all persons claiming by, through or under
Landlord, subject to the other terms hereof, provided that Tenant pays the rent
and other sums herein recited to be paid by Tenant and performs all of Tenant's
covenants and agreements herein contained. This covenant and any and all other
covenants of Landlord shall be binding upon Landlord and its successors only
with respect to breaches occurring during its or their respective periods of
ownership of the Landlord's interest hereunder.
30. Holding Over. In the event of holding over by Tenant without
Landlord's written consent thereto after expiration or other termination of this
Lease or in the event Tenant continues to occupy the Premises after the
termination of Tenant's right of possession pursuant to Paragraph 27(B)(iii)
hereof, Tenant covenants and agrees, throughout the entire holdover period, to
pay rent equal to twice the Base Rental and additional Base Rental which would
have been applicable had the term of this Lease continued through the period of
such holding over by Tenant. No possession by Tenant after the expiration of the
term of this Lease shall be construed to extend the term of this Lease unless
Landlord has consented to such possession in writing. In addition, Tenant shall
be responsible for all damages suffered by Landlord on account of any such
holding over.
31. Subordination to Mortgage. This Lease is and shall be subject and
subordinate to any mortgage, deed of trust or other lien created by Landlord,
whether presently existing or hereafter arising upon the Premises, or upon the
Project and to any renewals, refinancing and extensions thereof, but Tenant
agrees that any such mortgagee shall have the right at any time to subordinate
such mortgage, deed of trust or other lien to this Lease on such terms and
subject to such conditions as such mortgagee may deem appropriate in its
discretion. Landlord is hereby irrevocably vested with full power and authority
to subordinate this Lease to any mortgage, deed of trust or other lien now
existing or hereafter placed upon the Premises, or the Project as a whole or any
part thereof and Tenant agrees upon demand to execute such further instruments
subordinating this Lease or attorning to the holder of any such liens as
Landlord may request. In addition, all leases of portions of the Building will
be subordinate to any lender(s)' mortgage. In the event that Tenant shall fail
to execute any subordination or other agreement required by this paragraph,
13
promptly as requested, Tenant hereby irrevocably constitutes Landlord as its
attorney-in-fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest. Tenant agrees
that it will from time to time upon request by Landlord execute and deliver to
such persons as Landlord shall request a statement in recordable form certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as so modified),
stating the dates to which rent and other charges payable under this Lease have
been paid, stating that Landlord is not in default hereunder (or if Tenant
alleges a default stating the nature of such alleged default) and further
stating such other matters as Landlord or its mortgagee(s) shall reasonably
requires.
32. Landlord's Lien. Tenant hereby grants to Landlord a lien and
security interest on all property of Tenant now or hereafter placed in or upon
the Premises, and such property shall be and remain subject to such lien and
security interest of Landlord for payment of all rent and other sums agreed to
be paid by Tenant herein. The provisions of this Paragraph relating to such lien
and security interest shall constitute a security agreement under and subject to
the Uniform Commercial Code of the State of Florida so that Landlord shall have
and may enforce a security interest on all property of Tenant now or hereafter
placed in or on the Premises, in addition to and cumulative of the Landlord's
liens and rights provided by law or by the other terms and provisions of this
Lease. Tenant agrees to execute as debtor such financing statement or statements
and such other documents as Landlord may now or hereafter request in order to
protect or further perfect Landlord's security interest.
33. Attorney's Fees. Tenant agrees that Tenant will pay, in addition to
the rents and other sums agreed to be paid hereunder, all collection and court
costs incurred by Landlord and Landlord's reasonable attorneys' fees incurred
for the interpretation of Landlord's rights under this Lease, whether such fees
and costs be incurred out of court, at trial, on appeal, or in bankruptcy
proceedings.
34. No Implied Waiver. The failure of Landlord to insist at any time
upon the strict performance of any covenant or agreement or to exercise any
option, right, power or remedy contained in this Lease shall not be construed as
a waiver or a relinquishment thereof for the future. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of rent due
under this Lease shall be deemed to be other than an account of the earliest
rent due hereunder, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed in 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
in this Lease provided.
35. Personal Liability. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to the
interest of Landlord in the Project for the recovery of any judgment from the
Landlord, it being intended that Landlord shall not be personally liable for any
judgment or deficiency.
36. Security Deposit. The Security Deposit shall be held by Landlord
without liability for interest and as security for the performance by Tenant of
Tenant's covenants and obligations under this Lease, it being expressly
understood that the Security Deposit shall not be considered an advance payment
of rental or a measure of Tenant's damages in case of default by Tenant.
Landlord may commingle the Security Deposit with Landlord's other funds.
Landlord may, from time to time, without prejudice to any other remedy, use the
Security Deposit to the extent necessary to make good any arrearages of rent or
to satisfy any other covenant or obligation of Tenant hereunder. Following any
14
such application of the Security Deposit, Tenant shall pay to Landlord on demand
the amount so applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of this Lease, the
balance of the Security Deposit remaining after any such application shall be
returned by Landlord to Tenant. If Landlord transfers its interest in the
Premises during the term of this Lease, Landlord may assign the Security Deposit
to the transferee and thereafter Landlord shall have not further liability for
the return of such Security Deposit.
37. Notice. Any notice in this Lease provided for must, unless
otherwise in this Lease expressly provided, be given or be served by depositing
the same in the United States mail, postpaid and certified and addressed to the
party to be notified, with return receipt requested, or by delivering the same
in person to an officer of such party, or by prepaid telegram, when appropriate,
addressed to the party to be notified at the address stated in this Lease or
such other address, notice of which has been given to the other party. Notice
deposited in the mail in the manner hereinabove described shall be effective
from and after the expiration of three (3) days after it is so deposited.
38. Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
39. Recordation. Tenant agrees not to record this Lease or any
memorandum hereof, but Landlord may record this Lease or a memorandum thereof,
at its sole election.
40. Governing Law. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Florida.
41. Force Majeure. Whenever a period of time is herein prescribed for
the taking of any action by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of such period
of time, any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions, financing, or
any other cause whatsoever beyond the control of Landlord.
42. Time of Performance. Except as expressly otherwise herein provided,
with respect to all required acts of Tenant, time is of the essence of this
Lease.
43. Transfers by Landlord. Landlord shall have the right to transfer
and assign, in whole or in part, all its rights and obligations hereunder and in
the Building and the Premises referred to herein, and in such event and upon
such transfer Landlord shall be released from any further obligations hereunder,
and Tenant agrees to look solely to such successor in interest of Landlord for
the performance of such obligation.
44. Commissions. The parties agree that ▇▇▇ ▇▇▇▇, Galleria Collection
is the broker responsible for this lease. Tenant hereby indemnifies and agrees
to hold Landlord harmless against any loss, claim, expense or liability with
respect to any commissions or brokerage fees claimed on account of the execution
and/or renewal of this Lease due to any action of Tenant. Landlord agrees to pay
any commissions due to the Broker named in this Paragraph.
15
45. Effect of Delivery of this Lease. Landlord has delivered a copy of
this Lease to Tenant for Tenant's review only, and the delivery hereof does not
constitute an offer to Tenant or an option to Lease. This Lease shall not be
effective until a copy executed by both Landlord and Tenant is delivered to and
accepted by Landlord.
46. Marginal Headings. The section headings used herein are for
convenience and reference only.
47. Relationship of Parties. Nothing contained herein shall be deemed
or construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, nor any
acts of the parties herein, shall be deemed to create any relationship between
the parties hereto other than the relationship of Landlord and Tenant.
48. Radon Gas. In 1988, the Florida legislature passed a provision that
requires the following notification to be provided on or at least one document,
form or application executed at the time of or prior to the Contract for Sale
and Purchase of any building or execution of a rental agreement for any
building:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels or
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit."
49. Licenses, Permits. Within ten (10) days of receipt, Tenant is to
provide Landlord with copies of all licenses, agreements, permits, certificates,
or any documents related to the Premises and the business operated therein that
are issued by governmental authorities during the term of the Lease.
50. Exhibits. In addition to ▇▇▇▇▇▇▇▇ "▇", "▇", "▇" and "D", the
following number Exhibits are attached hereto and incorporated herein and made a
part of this Lease for all purposes.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
WITNESS: "LANDLORD"
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------- -------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(As to Landlord)
WITNESS: "TENANT"
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ V. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------- --------------------------
▇▇▇▇ ▇▇▇▇▇▇ V. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President & CEO
-------------------
(As to Tenant)
16
EXHIBIT "C"
Intentionally deleted