Florida-Miami-2335 NW 107th Avenue Lease - Anglers Office Park Inc. and Take to Auction.com Inc.
OFFICE BUILDING NET LEASE
This Lease Agreement (sometimes hereinafter referred to as the "Lease")
is made and entered into this____ day of December,1999 by and between ANGLERS
OFFICE PARK, INC., a Florida corporation doing business as Anglers Corporate
Center (hereinafter called "LANDLORD"), whose address for purposes hereof is
2860 Pershing Street, Hollywood, Florida 33020 and TAKE TO AUCTION.COM, INC., a
Florida corporation (hereinafter called "TENANT" ), whose address for purposes
hereof is 2335 NW 107th Avenue, Suite 2M-23, Miami, Florida 33172.
WITNESSETH:
LANDLORD and TENANT agree to the following definitions for the defined terms
contained herein:
DEFINITIONS
a) Premises or Leased Premises is hereby defined as: Suite Number 16 located in
the Building and such Leased Premises being more particularly described as
approximately 10,545 square feet of office space.
b) Building is hereby defined as Anglers Corporate Center located at 5555
Anglers Avenue, Ft. Lauderdale, Broward County, Florida.
c) Base Rental is hereby defined as follows:
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<CAPTION>
Year Per Square Foot Monthly Annually
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<S> <C> <C> <C> <C>
1 13.00 $11,423.75 $137,085.00
2 13.65 $11,994.94 $143,939.25
3 14.33 $12,592.49 $151,109.85
4 15.05 $13,225.19 $158,702.25
5 15.80 $13,884.25 $166,611.00
Total Base Rental: $757,447.35
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Base Rental plus applicable sales/use tax is payable in equal monthly
installments on the first day of each month of the Lease Term (hereinafter
defined).
d) Lease Term or Term is hereby defined as being for a period of Five (5) years
commencing on that date which is the earlier of occupancy or five days after
written notice from LANDLORD to TENANT that any improvements to the Premises to
be effected by LANDLORD as described in Exhibit "A" hereto have been certified
for occupancy by all applicable authorities (the "Commencement Date").
e) TENANT's Proportionate Share to be paid by the TENANT for Operating Expenses
and Impositions (as hereinafter defined) is hereby defined to be the percentage
which the area leased by the TENANT in the Building bears to the total area
contained in the Building which is approximately 43,925 square feet. This
percentage is 24%.
f) Operating Expenses, including Impositions, are hereby estimated as of the
inception of the Lease at $3.50 per square foot. Notwithstanding, Operating
Expenses and Impositions shall be fixed during year 1 of the Lease Term at $2.50
per square foot. Operating Expenses and Impositions are subject to change during
the remainder of the Lease Term and any renewal term.
g) Security Deposit is hereby defined to be $0 which TENANT has deposited
concurrently with LANDLORD upon the execution of the Lease by TENANT.
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h) Use or Purpose for which the TENANT will use and occupy the Leased Premises
shall be for the sole purpose of general office use only.
i) Parking Spaces shall consist of 40 non-designated, non-reserved parking
spaces in the Building's parking areas which shall be made available for use by
the TENANT and its employees, agents and invitees.
j) Upon execution and delivery of this Lease to LANDLORD, LANDLORD hereby
acknowledges payment by TENANT as follows:
First Month's Base Rental $11,423.75
First Month's Estimated Operating Expenses and Impositions $2,196.88
Sales/Use Tax $817.24
Security Deposit $0
Other $0
Total $14,437.87
With the submission of this Lease for LANDLORD's consideration, TENANT also
includes proof of insurance as described in Paragraph 15.
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TERMS
The terms and conditions of the Office Building Net Lease attached hereto are
incorporated by reference and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have signed, sealed and
delivered this Lease in quadruplicate at Broward County, Florida on the date and
year first written above.
LANDLORD:
ANGLERS OFFICE PARK, INC.
Witnesses: a Florida corporation
By: /s/ Marvin Mandel
-------------------------------- ---------------------
Marvin Mandel, President
TENANT:
TAKE TO AUCTION.COM, INC.
Witnesses: a Florida corporation
By: /s/ Albert Friedman
-------------------------------- --------------------
Albert Friedman, President
Attachments: Office Building Net Lease
Rules and Regulations
Exhibit "A" - Floor and Site Plans & LANDLORD's Work
Addendum to Office Building Net Lease
Guaranty of Lease
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OFFICE BUILDING NET LEASE
1. LEASED PREMISES: Subject to and upon the terms, provisions, covenants and
conditions hereinafter stated, and each in consideration of the duties,
covenant, and obligations of the other hereunder, LANDLORD does hereby lease,
demise and let to TENANT; and TENANT does hereby lease, demise and let from
LANDLORD those Leased Premises as reflected on the floor and site plans attached
hereto as Exhibit "A" and made a part hereof.
The size of the Leased Premises and of the Building as set forth in the
Definitions are hereby stipulated and agreed to whether the same should be more
or less as a result of variations resulting from actual construction and
completion of the Leased Premises and of the Building. The TENANT acknowledges
that the LANDLORD has made no representations with regard to the actual square
footage.
Additionally, by its acceptance of possession of the Premises, and the
commencement of rent payments by TENANT, TENANT hereby confirms that it has had
a full and adequate opportunity to inspect, examine and measure the Leased
Premises and the Building. As a result, TENANT hereby irrevocably stipulates to
the square footage of the Leased Premises set forth in paragraph (a) of the
Definitions herein. TENANT also stipulates to the square footage of the Building
set forth in paragraph (e) of the Definitions. TENANT further stipulates that
such square footage calculations shall not be subject to question,
interpretation, or modification either during or after the Term hereof, or any
extensions or renewals of this Lease, notwithstanding any subsequently
discovered discrepancy, regardless of kind or amount, between the actual square
footage and the square footage calculations set forth in paragraphs (a) and (e)
of the Definitions.
By occupying the Premises, TENANT shall be conclusively deemed to have
accepted the same as complying fully with LANDLORD'S covenants and obligations
to deliver the Premises as required hereby, subject to LANDLORD punch list items
which shall be completed within a reasonable period subject to availability of
materials and labor.
2. TERM: This Lease shall be for the Term herein previously defined unless
sooner terminated or extended as provided herein. If LANDLORD is unable to give
possession of the Leased Premises on the date of the commencement of the
aforesaid Lease Term by reason of the holding over of any prior tenant or
tenants or for any other reason, an abatement or diminution of the rent to be
paid hereunder shall be allowed TENANT under such circumstances until possession
is given to TENANT; but nothing herein shall operate to extend the initial Lease
Term beyond the agreed expiration date, and said abatement in rent shall be the
full extent of LANDLORD's liability to TENANT for any loss or damage to TENANT
because of said delay in obtaining possession of the Premises. There shall be no
delay in the commencement of the Term of this Lease nor shall there be any
abatement or diminution of the rent to be paid hereunder where TENANT fails to
occupy the Premises upon the Commencement Date, or in the event that LANDLORD
shall be delayed in substantially completing such work within the Leased
Premises as a result of:
a. TENANT's failure to promptly furnish working drawings and
plans as may be required to be provided by TENANT; or
b. TENANT's failure to approve cost estimates or other items
requiring TENANT's approval within one (1) week of receipt
from LANDLORD; or
c. TENANT's failure to promptly select materials, finishes, or
installation; or
d. TENANT's changes in plans (notwithstanding LANDLORD's approval
of any such changes); or
e. Any other act of omission by TENANT or its agents, or failure
to promptly make other decisions
necessary to the preparation of the Leased Premises for
occupancy; or
f. TENANT's failure to obtain any permits and inspections
required to be obtained by TENANT; or
g. TENANT's failure to obtain an occupational license.
The commencement of the Term and the payment of rent shall not be
affected, delayed or deferred on account of any of the foregoing. For the
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purposes of this paragraph, the Leased Premises shall be deemed substantially
completed and ready for occupancy by TENANT (subject to the issuance of any
required certificate of occupancy) when LANDLORD's supervising architect
certifies that the work required of LANDLORD, if any, has been substantially
completed in accordance with the approved plans and specifications.
Taking possession of the Leased Premises by TENANT shall be conclusive
evidence as against TENANT that the Leased Premises were in good and
satisfactory condition, completed in accordance with the approved plans, when
possession was so taken. If TENANT, with LANDLORD's consent, shall occupy the
Leased Premises prior to the beginning of the Lease Term as specified
hereinabove, all provisions of this Lease shall be in full force and effect
commencing upon such occupancy; and rent for such period shall be paid by TENANT
at the same rate herein specified unless otherwise provided herein.
Provided that TENANT is not then in default in the performance
of any provision of this Lease, nor has it been in default during the previous
six months, the TENANT shall have the option to renew this Lease for one
additional term of Five (5) years commencing at the expiration of the initial
Lease Term. All of the terms and conditions of this Lease shall apply during the
renewal term. Base Rental during the first year of the renewal term of this
Lease shall be calculated based upon the rate of $15.07 per square foot.
Thereafter, the Base Rental shall increase at the rate of three (3%) percent
annually during the renewal term. This option to renew shall be exercised by
written notice given to LANDLORD not less than 120 days prior to the expiration
of the initial Lease Term. If notice is not given in the manner provided herein
within the time specified, this option shall expire.
3. BASE RENTAL: TENANT agrees to pay LANDLORD the Base Rental in advance,
without prior demand or any abatement, deduction or set-off, in monthly
installments on the first day of each and every month during the Term. If the
Lease Term commences on any day of a month except for the first day, TENANT
shall pay LANDLORD Base Rental as provided for herein for such commencement
month on a prorated basis (such proration to be based on the actual number days
in the commencement month); and the first month's rent paid by TENANT, if any,
upon execution of this Lease shall apply and be credited to the next full
month's rent due hereunder. Base Rental for any partial month of occupancy at
the end of the Term of this Lease shall be prorated, such proration to be based
on the actual number of days in the partial month. Rent is payable at LANDLORD's
office at 2860 Pershing Street, Hollywood, Florida 33020 unless LANDLORD
notifies TENANT otherwise.
The Base Rental does not include electricity, telephone service or any
utilities (other than water and sewer) which serve the Premises or accommodate
the use of the Premises by TENANT. Telephone service, janitorial service to the
Leased Premises and interior maintenance shall be the TENANT's separate
responsibility.
In addition to Base Rental, TENANT shall and hereby agrees to pay to
LANDLORD each month a sum equal to any sales tax, tax on rentals, and any other
charges, taxes and/or impositions now in existence or hereafter imposed based
upon the privilege of renting the space leased hereunder or upon the amount of
rentals collected therefor. However, nothing herein shall be taken to require
TENANT to pay any part of any federal and state taxes on income imposed upon
LANDLORD.
If TENANT shall fail to pay any installment of Base Rental, or any item
of additional rent within ten (10) days after its due date, such unpaid amounts
shall bear interest from the due date thereof to the date of payment at a rate
which shall be eighteen percent (18%) per annum, or the maximum rate permitted
by applicable usury laws if such rate is different from eighteen (18%) percent
per annum. In addition thereto, if TENANT shall fail to pay any installment of
Base Rental, or any item of additional rent within five (5) days of written
notice from LANDLORD of non-payment, then TENANT shall also pay to LANDLORD a
late payment service charge ("Late Charge") contributing to administrative and
overhead expenses equal to five cents (5(cent)) per each dollar so overdue. In
addition thereto, if any check tendered by TENANT to LANDLORD is returned unpaid
for any reason, then TENANT shall also pay to LANDLORD a Returned Check Charge
of $50.00 contributing to administrative and overhead expenses and bank charges.
The failure of TENANT to pay such Returned Check Charge within five (5) days
after being notified of the returned check shall constitute a default under this
Lease. The provisions herein for the payment of the Late or Returned Check
Charge shall not be construed to represent interest but are intended to
reimburse LANDLORD for its overhead and expense so incurred and shall not be
construed to extend the date for payment of any sums required to be paid by
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TENANT hereunder or to relieve TENANT of its obligation to pay all such sums at
the time or time herein stipulated. Interest, Late Charges and Returned Check
Charges are considered additional rent.
4. ADDITIONAL RENT:
A. TENANT shall pay to LANDLORD as additional rent TENANT's
Proportionate Share of the Operating Expenses of the Building as provided
hereinafter. The term "Operating Expenses" as used herein shall mean all
expenses, costs and disbursements of every kind and nature which LANDLORD shall
pay or become obligated to pay because of or in connection with the ownership,
maintenance and/or operation of the Building, computed on the accrual basis, but
shall not include new capital improvements. By way of explanation and
clarification, these Operating Expenses shall include, without limitation, the
following:
1. Wages and salaries of all employees and management
engaged in operation and maintenance of the Building,
employer's social security taxes, unemployment taxes
or insurance, and any other taxes which may be levied
on such wages and salaries, the cost of disability,
hospitalization and workers compensation insurance,
pension or retirement benefits, or any other fringe
benefits for such employees.
2. All supplies and materials used in operation and
maintenance of the Building.
3. Cost of all utilities including water and sewer for
the entire Building and electricity used by the
Building and not charged directly to any tenant.
4. Cost of customary building management, trash and
garbage removal from dumpsters, water and sewer,
painting, window cleaning, landscaping and gardening,
lawn sprinklers, parking lot maintenance, servicing
and maintenance of all systems and equipment serving
the common areas exclusively, including but not
limited to, plumbing, lighting, electrical, fire
pumps, fire extinguishers and hose repair, cabinets,
and staging; and damage caused by fire or other
casualty not otherwise recovered including the
deductibles applicable to any insurance policies.
5. Cost of insurance for property, loss of rents, flood,
casualty and other liability applicable to the
Building and LANDLORD's personal property used in
connection therewith.
Notwithstanding any other terms of this Lease, the term "Operating
Costs" shall not include the following items:
(i) Any payments under a ground lease or master lease relating to the
Building;
(ii) Costs of a capital nature (including amortization payments and
depreciation of any type), including but not limited to capital improvements,
alterations and repairs;
(iii) Rentals for items which if purchased, rather than rented, would
constitute a capital improvement or equipment;
(iv) The cost of any item to the extent LANDLORD receives reimbursement
from insurance or condemnation proceeds;
(v) Costs, including permit, license and inspection costs, incurred
with respect to the installation of tenants' or other occupants' improvements
made for tenants or other occupants in the Building or incurred in renovating or
otherwise improving, decorating, painting or redecorating space for tenants or
other occupants of the Building;
(vi) Marketing and promotional costs, including but not limited to
leasing commissions, real estate brokerage commissions, and attorneys' fees in
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connection with the negotiation and preparation of letters, deal memos, letters
of intent, leases, subleases and/or assignments, space planning costs, and other
costs and expenses incurred in connection with lease, sublease and/or assignment
negotiations and transactions with present or prospective tenants or other
occupants of the Building;
(vii) Costs of services, utilities, or other benefits which are not
offered to TENANT or for which TENANT is charged for directly but which are
provided to another tenant or occupant of the Building, including, but not
limited to, above Building standard heating, ventilation and air conditioning,
janitorial services and exclusive use Common Areas;
(viii) Costs incurred by LANDLORD due to any violation of the terms and
conditions of any lease of space or occupancy agreement in the Building;
(ix) Costs and the overhead and profit increment paid to LANDLORD, to
affiliates or partners of LANDLORD, partners or affiliates of such partners, or
affiliates of LANDLORD for goods and/or services in the Building to the extent
the same exceeds the costs or the overhead profit increment, as the case may be,
of such goods and/or services rendered by unaffiliated third parties on a
competitive basis in comparable buildings;
(x) Interest, principal, attorneys' fees, environmental investigations
or reports, points, fees and other lender costs and closing costs on debts or
amortization on any mortgage or mortgages or any other debt instrument
encumbering the Building or any part thereof or on any unsecured debt.
(xi) LANDLORD's general overhead and general and administrative
expense, other than the management fee being paid and included in Operating
Costs, including costs relating to accounting, payroll, legal and computer
services which are partially or totally rendered in locations outside the
Building;
(xii) Salaries of officers, executives or other employees of LANDLORD,
any affiliate of LANDLORD, or partners or affiliates of such partners or
affiliates, other than any personnel engaged exclusively in the management,
operation, maintenance, and repair of the Building (but not leasing or
marketing), and working in the Building management office and not typically
included in the management fee being paid and included in Operating Costs;
provided such individuals do hold a position which is generally considered to be
higher in rank than the position of the manager of the Building or the chief
engineer of the Building.
(xiii) All items and services for which TENANT or any other tenant in
the Building is required to reimburse LANDLORD (other than through TENANT's
Share or any other tenant's share of Operating Costs);
(xiv) Advertising and promotional expenditures, including but not
limited to tenant newsletters, other than Building's tenant newsletter received
by the tenants of the Building or Building promotional gifts, events or parties
for existing or future occupants, and the costs of signs (other than the
Building directory) in or on the Building identifying the owner of the Building
or other tenants' signs and any costs related to the celebration or
acknowledgment of Holidays, other than reasonable costs for refreshments and
food served to all tenants of the Building for such Holiday celebrations or
acknowledgments;
(xv) Electric power or other utility costs for which any tenant
directly contracts with the local public service company;
(xvi) All management fees and costs, and the wages, salaries, employees
benefits and taxes for personnel working in connection with the ownership,
operation and management of the parking areas of the Building, including any
adjacent parking structure and any off-site parking areas used by tenants of the
Building (collectively, the "Parking Facility");
(xvii) Costs incurred in connection with any governmental laws and
regulations applicable to the Building which were enacted prior to the
Commencement Date, including, but not limited to life, fire and safety codes,
environmental and hazardous materials laws and federal, state, or local laws or
regulations relating to disabled access, including, but not limited to, the
Americans with Disabilities Act;
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(xviii) Costs, penalties, fines or awards and interest incurred as a
result of LANDLORD's negligence in LANDLORD's operation of the Building,
violations of law, negligence or inability or unwillingness to make payments
and/or to file any income tax, or other tax or informational returns when due.
(xix) Costs which are covered by and reimbursable under any contractor,
manufacturer or supplier warranty or service contract;
(xx) Costs arising from the negligence, or intentional acts of LANDLORD
or its agents, or any other tenant, or any vendors, contractor, subcontractors
or providers of materials or services selected, hired or engaged by LANDLORD or
its agents to the extent LANDLORD receives reimbursement therefrom;
(xxi) Costs arising from the presence or removal which removal is
required in compliance with any governmental laws, ordinances, regulations or
orders which are enacted prior to the Commencement Date) of Hazardous Materials
located in the Building, including, without limitation, any costs incurred
pursuant to the requirements of any governmental laws, ordinances, regulations
or orders relating to health safety or environmental conditions, including but
not limited to regulations concerning asbestos, soil and ground water conditions
or contamination regarding Hazardous Materials or substances;
(xxii) Costs arising from LANDLORD's charitable or political
contributions;
(xxiii) Costs arising from any type of insurance maintained by LANDLORD
which is not required or allowed to be maintained by LANDLORD pursuant to this
Lease;
(xxiv) Costs for the maintenance or repair of the objects of art
located in the Building if serviced by the original artist thereof or its agent
or employee and costs for sculpture; paintings or other objects of art which are
not, as of the date of this Lease, located in the Building;
(xxv) Costs (including in connection therewith all attorneys' fees and
costs of settlement judgments and payments in lieu thereof) arising from claims,
disputes or potential disputes in connection with potential or actual claims,
litigation or arbitration pertaining to LANDLORD and/or the Building;
(xxvi) Costs, including but not limited to attorneys' fees associated
with the operation of the business of the partnership or entity which
constitutes LANDLORD as the same are distinguished from the costs or operation
of the Building, including partnership accounting and legal matters, costs of
defending any lawsuits with any mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of LANDLORD's interest in the
Building or any part thereof, costs of any disputes between LANDLORD and its
employees, disputes of LANDLORD with Building management or personnel, or
outside fee paid in connection with disputes with other tenants;
(xxvii) Costs incurred in removing and storing the property of former
tenants or occupants of the Building;
(xxviii) The cost of any work or services performed for any tenant
(including TENANT) at such tenant's cost;
(xxix) The cost of correcting major and/or latent defects in the
design, construction or equipping of the Building or in the Building equipment;
(xxx) Intentionally Deleted;
(xxxi) The cost of any work or service performed for any tenant of the
Building (other than TENANT) to a materially greater extent or in materially
more favorable manner than that offered to TENANT;
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(xxxii) Premiums for insurance to the extent LANDLORD is reimbursed
therefore (such proceeds to be excluded from Operating Costs in the year in
which received, except any reasonable deductible amount under any insurance
policy);
(xxxiii) The cost of furnishing and installing non-Building Standard
replacement bulbs and ballasts in tenant spaces;
(xxxiv) The cost of any labor, service, materials, supplies or
equipment, which is not comparable to the prevailing market rate for such labor,
service, materials, supplies or equipment at the time in the comparable
buildings;
(xxxv) The entertainment expenses and travel expenses of LANDLORD, its
employees, agents, partners and affiliates;
(xxxvi) Any improvement installed or work performed or any other cost
or expense incurred by LANDLORD after the Commencement Date in order to comply
with requirements for obtaining or renewing a certificate of occupancy for the
Building or any space therein;
(xxxvii) Intentionally Deleted;
(xxxiii) Any costs recovered by LANDLORD to the extent such cost
recovery allows LANDLORD to recover more than 100% of Operating Costs for any
Fiscal Year from tenants of the Building;
(xxxix) Any profit made by LANDLORD in connection with LANDLORD's
collections of Operating Costs; and,
(xl) Any costs for which LANDLORD has been reimbursed or receives a
credit, refund or discount, provided if LANDLORD receives the same in connection
with any costs or expenditures previously included in Operating Costs for a
Fiscal Year, LANDLORD shall immediately credit against Base Rent any overpayment
for such previous Fiscal Year.
LANDLORD shall notify TENANT at the inception of the Lease and after
the end of each calendar year during the Term hereof, of the amount which
LANDLORD estimates (as evidenced by budgets prepared by or on behalf of
LANDLORD) shall be the amount of TENANT"s Proportionate Share of Operating
Expenses for the then current calendar year and TENANT shall pay such sum in
advance to LANDLORD in equal monthly installments, during the balance of said
calendar year, commencing on the first day of the first month following TENANT's
receipt of such notification. Following the end of each calendar year, LANDLORD
shall submit to TENANT a statement showing the actual amount which should have
been paid by TENANT with respect to Operating Expenses for the past calendar
year, the amount thereof actually paid during that year by TENANT and the amount
of the resulting balance due thereon, or overpayment thereof, as the case may
be. Within thirty (30) days after receipt by TENANT of said statement, TENANT
shall have the right in person to inspect LANDLORD's books and records showing
the Operating Expenses for the Building for the calendar year covered by said
statement. Said statement shall become final and conclusive between the parties,
their successors and assigns as to the matters set forth therein unless LANDLORD
receives written objections with respect thereto within said thirty (30) days of
TENANTS receipt of said statement. Any balance shown to be due pursuant to said
statement shall be paid by TENANT to LANDLORD within thirty (30) days following
TENANT's receipt thereof and any overpayment shall be immediately credited
against TENANT's obligation to pay expected additional rent in connection with
anticipated increases in Operating Expenses or, if by reason of any termination
of the Lease no such future obligation exists, refunded to TENANT. Anything
herein to the contrary notwithstanding, TENANT shall not delay or withhold
payment of any balance shown to be due pursuant to a statement rendered by
LANDLORD to TENANT, pursuant to the terms hereof, because of any objection which
TENANT may raise with respect thereto. LANDLORD shall immediately credit any
overpayment found to be owing to TENANT against TENANT's Proportionate Share of
increases in Operating Expenses for the then current calendar year (and future
calendar years, if necessary) upon the resolution of said objection or, if at
the time of the resolution of said objection, the Lease Term has expired,
immediately refund to TENANT any overpayment found to be owing to TENANT.
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LANDLORD agrees to maintain accounting books and records reflecting Operating
Expenses of the Building in accordance with generally accepted accounting
principles.
Additional rent, due by reason of the provisions of this Subparagraph
4A for the final months of this Lease, is due and payable even though it may not
be calculated until subsequent to the termination date of the Lease; the
Operating Expenses for the calendar year during which the Lease terminates shall
be prorated according to that portion of said calendar year that this Lease was
actually in effect. TENANT expressly agrees that LANDLORD, at LANDLORD's sole
discretion, may apply the Security Deposit specified in Paragraph 7 hereof, if
any, in full or partial satisfaction of any additional rent due for the final
months of this Lease by reason of the provisions of this Subparagraph 4A. If
said Security Deposit is greater than the amount of any such additional rent,
and there are no other sums or amount owed LANDLORD by TENANT by reason of any
other terms, provisions, covenants or conditions of this Lease, then LANDLORD
shall refund the balance of said Security Deposit to TENANT as provided in
Paragraph 7 hereof. Nothing herein contained shall be construed to relieve
TENANT, or imply that TENANT is relieved of the liability for or the obligation
to pay any additional rent due for the final months of this Lease by reason of
the provisions of this Paragraph 4A if said Security Deposit is less than such
additional rent; nor shall LANDLORD be required to first apply said Security
Deposit to such additional rent if there are any other sums or amounts owed
LANDLORD by TENANT by reason of any other terms, provisions, covenants or
conditions of this Lease.
B. TENANT shall pay to LANDLORD, as additional rent, TENANT's
Proportionate Share of the Impositions for each calendar year, if any.
The term "Impositions" as used herein shall mean all impositions, tax
assessments (special or otherwise), water and sewer assessments and other
governmental liens or charges of any and every kind, nature and sort whatsoever,
ordinary and extraordinary, foreseen and unforeseen, and substitutes therefore,
including all taxes whatsoever (except only those taxes of the following
categories: any inheritance, estate, succession, transfer, gift or income taxes
imposed upon the LANDLORD) attributable in any manner to the Building, the land
on which the Building is located or the rents (however the term may be defined)
receivable therefrom, or any part thereof, or any use thereon, or any facility
located therein or used in conjunction therewith or any charge of other payment
required to be paid to any governmental authority, whether or not any of the
foregoing shall be designated "real estate tax", "sales tax", "rental tax",
"excise tax", "business tax", or designated in any other manner.
LANDLORD shall notify TENANT at the inception of the Lease and after
the end of each calendar year during the Term hereof of the amount which
LANDLORD estimates (as evidenced by budgets prepared by or on behalf of
LANDLORD) shall be the amount of TENANT's Proportionate Share of Impositions for
the then current calendar year; and TENANT shall pay such sum to LANDLORD in
equal monthly installments during the balance of said calendar year, in advance
on the first day of each month commencing on the first day of the first month
following TENANT's receipt of such notification. Following the date on which
LANDLORD receives a tax bill or statement showing what the actual Impositions
are with respect to each calendar year, LANDLORD may submit to TENANT a
statement showing the actual amount to be paid by TENANT in the year in question
with respect to Impositions for such year, the amount thereof actually paid by
TENANT and the amount of the resulting balance due thereon, or overpayment
thereof, as the case may be. Any balance shown to be due pursuant to said
statement shall be paid by TENANT to LANDLORD within ten (10) days following
TENANT's receipt thereof and any overpayment shall be immediately credited
against TENANT's obligation to pay such additional rent in connection with
increased Impositions in later years, or, if no such future obligation exists,
be immediately refunded to TENANT.
Additional rent, due by reason of the provisions of this Subparagraph
4B for the final months of this Lease, shall be payable even though the amount
thereof is not determinable until subsequent to the termination of the Lease;
the Impositions for the calendar year during which the Lease terminates shall be
prorated according to that portion of said calendar year that this Lease was
actually in effect. TENANT expressly agrees that LANDLORD at LANDLORD's sole
discretion, may apply the Security Deposit specified in Paragraph 5 hereof, if
any, in full or partial satisfaction of any additional rent due for the final
months of this Lease by reason of the provisions of this Paragraph 4B. If said
Security Deposit is greater than the amount of such additional rent and there
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are no other sums or amounts owed LANDLORD by TENANT by reason of any other
terms, provisions, covenants or conditions of this Lease, then LANDLORD shall
refund the balance of said Security Deposit to TENANT as provided in Paragraph 5
hereof. Nothing herein contained shall be construed to relieve TENANT, or imply
that TENANT is relieved of the liability for or the obligation to pay any
additional rent due for the final months of this Lease by reason of the
provisions of this Paragraph 4B if said Security Deposit is less than such
additional rent; nor shall LANDLORD be required to first apply said Security
Deposit to such additional rent if there are any other sums or amounts owed
LANDLORD by TENANT by reason of any of the terms, provisions, covenants, or
conditions of this Lease.
C. It is the intention of the parties hereto to provide that TENANT
shall pay in advance of their due date TENANT's Proportionate Share of Operating
Expenses and Impositions and to share in reduction only by category to the end
that an increase in Operating Expenses shall not be offset by a decrease in
Impositions and vice versa. In no event shall the Base Rental be reduced by
reason of decreases in Operating Expenses and/or Impositions. This Paragraph
shall survive the termination of the Lease.
5. SECURITY DEPOSIT: The Security Deposit shall be retained by LANDLORD as
security for the payment by TENANT of the rents and all other payments herein
agreed to be paid by TENANT and for the faithful performance by TENANT of the
terms, provisions, covenant and conditions of this Lease. It is agreed that
LANDLORD, at LANDLORD's option may, at the time of any default by TENANT under
any of the terms, provisions, covenants or conditions of the Lease, apply said
sum or any part thereof toward the payment of the rents and all other sums
payable by TENANT under this Lease, and towards the performance of and every one
of TENANT's covenants under this Lease, but such covenants and TENANT's
liability under this Lease shall thereby be discharged only pro tanto, that
TENANT shall remain liable for and shall pay within ten (10) days after demand
by LANDLORD any amounts that such sum shall be insufficient to pay; that
LANDLORD may exhaust any and all rights and remedies against TENANT before
resorting to said sum, but nothing herein contained shall require or be deemed
to require LANDLORD to do so; that, in the event this deposit shall not be
utilized for any such purposes, then such deposit shall be returned by LANDLORD
to TENANT within fifteen (15) days after the expiration of the Term of this
Lease (and the return of the keys to the LANDLORD)or the determination and
payment of the amount due under Paragraph 4 of this Lease, if any, whichever
occurs later. The TENANT shall not attempt to apply the security deposit to
rent. Any attempt to hold back rent payments or any other payments due to
LANDLORD under this Lease by directing the LANDLORD to apply all or part of the
security deposit to rent shall be deemed, at the option of LANDLORD, a default
in this Lease. The LANDLORD shall not be required to pay TENANT any interest on
said Security Deposit. The LANDLORD may commingle the security deposit with its
own funds.
6. USE: TENANT shall use and occupy the Leased Premises for the use or purpose
as hereinbefore stated and for no other use or purpose. The use of the premises
shall be further limited to office and/or showroom use only. No manufacturing,
warehousing or distribution shall be permitted upon or from the Leased Premises.
The TENANT's use of the Leased Premises is subject to all applicable zoning and
use regulations and it shall be TENANT's responsibility to obtain an
occupational license for its business at the Leased Premises prior to the
commencement date of the Lease.
TENANT shall not do or permit to be done in or about the Premises, nor
bring or keep or permit to be brought or kept therein, anything which is
prohibited by or will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated, or which is prohibited by any standard form of fire insurance
policy. TENANT shall not use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose; nor shall TENANT cause, maintain, or
permit any nuisance in, on, or about the Premises or commit or suffer to be
committed any waste in, on, or about the Premises. TENANT shall not do or permit
anything to be done in or about the Premises which will, in any way, obstruct or
interfere with the rights of other tenants of the LANDLORD in the Building, or
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injure or annoy them; nor shall TENANT cause, maintain, or permit any nuisance
in, on, or about the Premises. No outside storage of any kind shall be
permitted. TENANT shall at all times keep the outside of the Premises, the
common areas of the Building and the parking areas free from all refuse, packing
materials, crates, pallets and similar materials. TENANT shall not overload the
dumpsters. TENANT shall at no time block access, ingress or egress to the
Building, the parking areas or the property upon which the Building is located
or any portion of it.
TENANT shall promptly execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements of the Federal, State, county and
city governments, and of any and all their departments, bureaus or agencies
applicable to the Leased Premises for the correction, prevention and abatement
of nuisance or other grievances, in, upon or connected with said Premises,
during the Lease Term. TENANT shall comply with all applicable fire regulations
enforced by the City of Dania Beach or any other governmental agency having
jurisdiction over the Leased Premises or TENANT's use thereof.
TENANT covenants that no nuisance or hazardous trade or occupation
shall be permitted or carried on, in or upon the Leased Premises; no act or
thing shall be done or permitted; and nothing shall be kept in or about the
Leased Premises which will cause cancellation of the risk or hazard insurance in
effect for the Leased Premises. The TENANT agrees to pay to the LANDLORD upon
demand, damages for injury to the Leased Premises or to the Building of which
the Leased Premises are a part, which injury shall be caused or suffered by the
TENANT or its agents, employees or invitees. The TENANT further covenants not to
conduct any business or permit any act or thing contrary to or in violation of
the laws of the United States of America, or the State of Florida, or of the
Ordinances of the City of Dania Beach, County of Broward, in or about said
Leased Premises. The TENANT shall promptly after discovery of any unlawful,
disreputable, or extra-hazardous use of the Premises, take all necessary steps,
legal and equitable, to compel the discontinuance of such use and to oust and
remove any subtenants, occupants or other persons guilty of such unlawful
disreputable, or extra-hazardous use. The TENANT shall indemnify the LANDLORD
against all costs, expenses, liabilities, losses, damages, injunctions, suits,
fines, penalties, claims and demands, including reasonable attorney's fees,
arising out of any violation of, or default in, these covenants.
The TENANT, at its sole expense, shall comply with all laws, orders,
and regulations of Federal, State and municipal authorities, and with any
direction of any public officer, pursuant to law, which shall impose any duty
upon the LANDLORD or the TENANT with respect to the Leased Premises. The TENANT,
at its sole expense, shall obtain all licenses or permits which may be required
for the conduct of its business within the terms of this Lease, or for the
making of repairs, alterations, improvements, or additions.
7. GOVERNMENTAL REQUIREMENTS: TENANT, at TENANT's sole expense, shall comply
with all laws, rules, orders, ordinances, directions, regulations and
requirements of federal, state, county and municipal authorities pertaining to
TENANT's use of the Premises and with the recorded covenants, conditions and
restrictions, regardless of when they become effective, including, without
limitation, all applicable federal, state and local laws, regulations or
ordinances pertaining to fire and safety, persons with disabilities, air and
water quality, Hazardous Materials (as hereinafter defined), waste disposal, air
emissions and other environmental matters, all zoning and other land use
matters, utility availability, and with any duty imposed upon LANDLORD or TENANT
with respect to the use or occupation of the Premises. TENANT shall comply at
TENANT's sole cost and expense with all provisions of the Americans with
Disabilities Act (ADA) in connection with any alterations or improvements
undertaken by TENANT upon the Premises and TENANT agrees to indemnify and hold
LANDLORD harmless from and against any and all fines, penalties, suits, actions,
damages, claims, demands, liabilities, expenses (including attorneys fees) and
losses arising out of TENANT's failure to comply with the Americans with
Disabilities Act with respect to TENANT's use of the Premises or any
alterations, additions or modifications to the Premises by TENANT
notwithstanding LANDLORD's approval of same. TENANT shall obtain all licenses
and permits from time to time required to enable TENANT to conduct its business
under this Lease. No failure of TENANT to obtain or maintain licenses or
permits, or extensions or renewals shall release TENANT from the performance or
observance of its obligations under this Lease.
LANDLORD represents and warrants to TENANT that as of the date of the
execution of this Lease the Building complies with the provisions of the ADA.
Each party (the " Indemnifying Party") shall and hereby agrees to indemnify and
hold harmless the other party (the "Indemnified Party") and its agents and their
respective affiliates, agents, officers, and employees, from and against all
costs, liabilities and causes of action occurring or arising as a result of the
Indemnifying Party's failure to comply with any of the Disability Acts or as a
result of any violation of any of the Disability Acts by the Indemnifying Party
or its agents, and, at the Indemnified Party's option, the Indemnifying Party
will defend the Indemnified Party and its agents and their respective
affiliates, agents, officers, and employees against all such costs, liabilities
and causes of action.
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8. LANDLORD CONTROLLED AREAS: All automobile parking areas, driveways, entrances
and exits thereto, common areas, truck ways, loading areas, pedestrian walkways
and ramps, landscaped areas, corridors, and other areas and improvements
provided by LANDLORD for the general use, in common, of tenants, their officers,
agents, employees, servants, invitees, licensees, visitors, patrons and
customers shall be at all times subject to the exclusive control and management
of LANDLORD; and LANDLORD shall have the right from time to time to establish,
modify and enforce rules and regulations with respect to all facilities and
areas and improvements; from time to time to change the area, level and location
and arrangement of parking areas and other facilities hereinabove referred to;
to restrict parking by and to tenants, their officers, agents, invitees,
employees, servants, licensees, visitors, patrons and customers, to temporarily
close all or any portion of said areas or facilities to discourage non-tenant
parking, and to do and perform such other acts in and to said areas and
improvements as, in the sole judgement of LANDLORD, LANDLORD shall determine to
be advisable with a view to the improvement of the convenience and use thereof
by tenants, their officers, agents, employees, servants, invitees, visitors,
patrons, licensees and customers. LANDLORD shall operate and maintain the common
areas and other facilities referred to in such reasonable manner as LANDLORD
shall determine from time to time. Without limiting the scope of such
discretion, LANDLORD shall have the full right and authority to make and enforce
all rules and regulations pertaining to and necessary for the proper operation
and maintenance of the parking area and/or common areas and other facilities.
Reference in this paragraph to parking area and/or facilities shall in no way be
construed as giving TENANT hereunder any rights and/or privileges in connection
with such parking areas and/or facilities unless such rights and/or privileges
are expressly set forth in this Lease.
9. RULES AND REGULATIONS: TENANT agrees to comply with all rules and regulations
the LANDLORD may adopt from time to time for operation of the Building and
parking facilities and for the protection and welfare of the Building and
parking facilities, and the tenants, visitors and occupants of the Building. The
present rules and regulations, which TENANT hereby agrees to comply with,
entitled "Rules and Regulations" are attached hereto and are by this reference
incorporated herein. Any future rules and regulations adopted from time to time
by LANDLORD shall become a part of the Lease, and TENANT hereby agrees to comply
with the same upon delivery of a copy thereof to TENANT providing the same do
not materially deprive TENANT of its rights established under this Lease.
10. INSPECTION OF PREMISES: Prior to the TENANT'S taking possession of the
Leased Premises, the TENANT shall have fully inspected the Leased Premises and
accepted the Leased Premises in their then existing "AS-IS" condition. Such
inspection shall encompass all physical facts which are deemed by the TENANT to
be relevant and material, and the taking of possession shall be an acceptance of
the Leased Premises.
11. MAINTENANCE AND REPAIR: LANDLORD shall maintain in good order and repair the
Building (excluding repairs to be made by TENANT hereunder), including the
public areas, parking areas, landscape areas, and the structure itself,
including the roof, foundations, exterior walls of the Premises and the
Building, all structural members of the Building and all underground utility
lines serving the Building. Provided, however, the cost of any repairs or
maintenance to the foregoing necessitated by the gross negligence or intentional
act of TENANT or its agents, contractors, employees or invitees shall be
reimbursed by TENANT to LANDLORD upon demand as additional rent.
At its sole cost, TENANT shall maintain in good repair and clean and
orderly condition, that portion of the Premises within the demising walls
thereof, including all interior and exterior walls, floors, ceiling, all doors,
windows, glass, electrical, plumbing, mechanical and HVAC systems and including
any systems or other equipment below the floor or above the ceiling that was
installed for or by TENANT. TENANT's maintenance obligation shall extend to all
improvements and contents within the Premises. LANDLORD shall assign to TENANT
any warranty rights it may have as to the HVAC and other systems serving the
Premises. TENANT shall contract for, in its own name, and shall pay for a
qualified service contractor to inspect, adjust, clean and repair heating,
ventilating and air conditioning equipment, including changing filters on a
quarterly basis.
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12. INITIAL IMPROVEMENTS AND SUBSEQUENT ALTERATIONS AND IMPROVEMENTS:
At the commencement of the Term of this Lease LANDLORD shall deliver
the Premises to the TENANT with the improvements described in Exhibit "A" which
shall be constructed, unless otherwise noted on Exhibit "A", by LANDLORD at
LANDLORD'S expense and such expense shall not be charged, in any manner, to
TENANT as an Operating Expense. LANDLORD shall not be responsible for any costs
or allowances towards the cost of any improvements that TENANT makes to the
Leased Premises unless specifically provided for in this Lease.
TENANT shall obtain LANDLORD'S prior written consent before making any
structural alterations, improvements or modifications to or which affect the
Leased Premises and TENANT shall furnish copies of the plans to LANDLORD for
LANDLORD'S consideration and approval prior to commencing any work for any
structural improvements, alterations or modifications. All improvements,
alterations and modifications to the Premises by TENANT shall be undertaken in
accordance with all applicable building codes and the requirements of the
Americans with Disabilities Act. The approval by LANDLORD of the plans and
specifications shall not constitute the assumption of any liability on the part
of LANDLORD for their compliance or conformity with applicable building codes
and the requirements of this Lease or for their accuracy, and TENANT shall be
solely responsible for such plans and specifications. Such alterations,
improvements and additions to the Premises by TENANT shall be done in a good
workmanlike manner using first-quality materials. Any structural alterations,
improvements or modifications made by TENANT, shall, at LANDLORD's option and
upon written notice to TENANT, be removed by TENANT at the termination of the
Lease at TENANT's expense and the Premises shall be restored by TENANT to their
original structural condition as of the commencement of the Lease.
TENANT shall conduct any work done to the Leased Premises in such a
manner as to maintain harmonious labor relations and not to adversely affect any
warranties pertaining to the existing premises. Prior to commencement of any
structural work, TENANT shall submit to LANDLORD copies of all necessary permits
and approved plans. LANDLORD reserves the right to have final approval of the
contractors and plans used by TENANT to effect any structural modifications,
alterations or improvements to the Leased Premises.
TENANT, at its sole cost, may make non-structural alterations or
non-structural modifications or additions within the Premises subject to the
following conditions:
a. TENANT shall give LANDLORD prior written notice of its intention to
make such alterations or additions or modifications; and
b. LANDLORD reserves the right to approve the plans and specifications
for such alterations, additions or modifications in advance and such approval
shall not be unreasonably withheld or delayed; and
c. TENANT shall only use licensed contractors who are approved by
LANDLORD in advance, and such contractors shall be first required to furnish
evidence of insurance coverage, including public liability, workers
compensation, and automobile liability coverage, as well as any other coverage
reasonably required by LANDLORD. The limits of such coverage shall be no less
than those required of TENANT. TENANT shall obtain any required permits before
commencing the work and shall cause such work to be performed in accordance with
all applicable building codes and other governmental regulations and to be
completed and paid for in full and shall discharge any and all liens or claims
of lien arising therefrom, or if TENANT disputes any such lien or claim of lien,
TENANT shall post a bond in accordance with applicable law to remove the lien
from the Premises within ten (10) days.
All alterations, additions, modifications or improvements, whether
temporary or permanent in character, made in or upon the Premises by LANDLORD or
TENANT shall be LANDLORD'S property and at the end of the Term hereof shall
remain in or upon the Premises without compensation to TENANT. All of TENANT'S
furniture, movable trade fixtures, and equipment not attached to the Premises
may be removed by TENANT at the termination of this Lease, if TENANT so elects,
and shall be so removed, if required by LANDLORD, and, if not so removed, shall,
at the option of LANDLORD, become the property of LANDLORD. TENANT shall repair
any damage to the Premises occasioned by the removal of its furniture and
movable fixtures and equipment.
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13. MECHANIC'S LIENS: TENANT further agrees that TENANT shall pay all liens of
contractors, subcontractors, mechanics, laborers, materialmen, and other items
of like character, and shall indemnify LANDLORD against all expenses, costs, and
charges, including bond premiums for release or transfer of liens and attorney's
fees and costs reasonably incurred in and about the defense of any suit in
discharging the said Premises or any part thereof from any liens, judgements, or
encumbrances caused or suffered by TENANT. In the event any such lien shall be
made or filed, TENANT shall bond against or discharge the same within ten (10)
days after the same has been made or filed. It is understood and agreed between
the parties hereto that the expenses, costs and charges above referred to shall
be considered as rent due and shall be included in any lien for rent.
TENANT shall not have any authority to create any liens for labor,
materials or improvements on LANDLORD's interest in the Leased Premises, and
TENANT shall place all persons contracting with TENANT for the destruction or
removal of any facilities or other improvements or for the erection,
installation, alteration, or repair of any facilities or other improvements on
or about the Leased Premises, and all materialmen, suppliers, contractors,
subcontractors, mechanics, and laborers on notice that they must look only to
TENANT and to TENANT's interest in the Leased Premises to secure the payment of
any charges for work done or material furnished at the request or instruction of
TENANT or any party contracting with or through the TENANT. The TENANT shall not
be deemed to be the agent of the LANDLORD, so as to confer upon a laborer
bestowing labor upon the Leased Premises, or upon a materialman who furnishes
material incorporated in the construction of improvements upon the Leased
Premises, a mechanics' lien upon the LANDLORD'S estate under the provisions of
Chapter 713, Florida Statutes, and subsequent revisions thereof.
14. INDEMNITY AND DISCLAIMER: LANDLORD shall not be liable for and TENANT hereby
agrees to indemnify and hold LANDLORD, its officers, directors, agents and
employees harmless from any and all fines, suits, actions, damages, claims,
demands, liabilities, expenses, losses and causes of action arising out of (i)
the use or occupancy of the Leased Premises by TENANT, its agents, contractors
or employees or invitees; or (ii) TENANT's performance or nonperformance of any
term or condition of this Lease; or (iii) the use by TENANT of LANDLORD's
roadways and parking areas and utilities; or (iv) the violation by TENANT of any
ordinance, permit, order, law, regulation, statute, legislation, judgement or
decree including, but not limited to, the requirements of any law or regulation
on the environmental condition or hazardous materials on the Premises; or (v)
any other use by TENANT of the Premises or any common area or adjacent property,
including TENANT's presence, occupancy or use of the Premises prior to the
commencement date and after the termination of this Lease. The foregoing
indemnification by the TENANT of the LANDLORD shall be applicable regardless of
whether the claim is based upon TENANT's negligence, intentional tort, or
omissions arising during or after the term of this Lease or with respect to any
personal injury, loss of life, and damage to any property or to any person that
occurs on or about the Leased Premises, or the appurtenances thereto, or upon
the adjacent parking areas, sidewalks or streets caused by the negligence,
misconduct, error or omission or breach of this Lease by TENANT, its agents,
subtenants, contractors or employees or invitees or by any other person entering
the Premises under express or implied invitation of TENANT. This indemnification
shall also include any claims based upon the alleged negligence or fault of the
LANDLORD. The indemnities herein provided by TENANT to LANDLORD shall include an
indemnity against all costs, attorneys fees, expenses and liabilities incurred
in and about any such claim, the investigation thereof, or the defense of any
action, or proceeding, brought thereon, and from and against any orders,
judgments and decrees, which may be entered therein, which is caused by the acts
or neglect of the TENANT, its agents, subtenants, contractors or employees or
invitees.
LANDLORD shall not be liable or responsible for any loss or damage to
property or death or injury to any person occasioned by theft, fire, act of God,
public enemy, injunction, riot, strike, insurrection, war, court order,
requisition of other governmental body or authority, or of any matter beyond the
control of LANDLORD, or for any injury or damage or inconvenience which may
arise through repair or alteration of any part of the Leased Premises, or
failure to make repairs, or from water damage to the Premises or its contents,
or from any cause whatever. LANDLORD shall not be responsible to TENANT for any
damage, loss or injury suffered or incurred by TENANT with respect to or arising
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out of any defects in the Premises or Building; defects in the cooling, heating,
electric, plumbing, or other applicable apparatus or systems or water discharge
in the Building; theft, mysterious disappearance or loss of any property of
TENANT, or water damage to the Leased Premises or its contents. Notwithstanding
any contrary provision of this Lease, TENANT shall look solely (to the extent
insurance coverage is not applicable or available) to the interest of LANDLORD
in the Building for the satisfaction of any judgement or the judicial process
requiring the payment of money as a result of any negligence or breach of this
Lease by LANDLORD and LANDLORD shall have no personal liability hereunder of any
kind.
LANDLORD shall have no obligation to make an investigation of any
tenant, employee or proprietor thereof, or of any guest or any other person
entering the Leased Premises.
It is expressly acknowledged by TENANT that this indemnification and
the provisions of this section of the Lease shall survive and continue to be
effective beyond the expiration or other termination of this Lease and shall
inure to the benefit of LANDLORD, its successors and assigns.
For purposes of this section of the Lease the term "TENANT" includes
but is not limited to any act or omission of TENANT's agents, employees,
managers, visitors, contractors, subcontractors, TENANT's, subtenants, invitees,
licensees, customer, concessionaires or assignees.
15. INSURANCE:
A. TENANT shall on or before the date upon which TENANT first enters
the Premises for any purpose, obtain and keep in full force and effect at all
times thereafter while it is in possession or occupancy of the Leased Premises
the following insurance coverages in the stated amounts:
(i) Commercial General Liability Insurance insuring against
loss or liability in connection with bodily injury, death, or property damage or
destruction, occurring on or about the Premises, its appurtenances and adjoining
areas. Each policy shall be written on an occurrence basis and shall contain
coverage at least as broad as that provided under ISO CGL Form CG 0001. The
insurance coverage shall be in an initial amount of not less than $1,000,000 per
occurrence, $2,000,000 general aggregate, Personal and Advertising and
Products/Completed Operations. Each policy shall also include the broad form
comprehensive general liability endorsement or equivalent. The aforesaid
insurance policies shall name the LANDLORD as an additional insured and shall
provide that they may not be terminated or modified in any way that would
materially decrease the protection afforded LANDLORD under this Lease without 30
days advance notice to LANDLORD.
(ii) All risk property insurance, including but not limited to
fire and lightning, extended coverage (all risk of physical loss), theft,
vandalism and malicious mischief and flood (if required by LANDLORD, any
mortgagee or governmental authority) in an amount adequate to cover the full
replacement cost of TENANT's personal property, the property of others in the
care, custody or control of TENANT, and any improvements and betterments
installed by TENANT and loss of use (business interruption).
(iii) Workers compensation insurance in the amount required by
law and employer's liability coverage of a minimum of $500,000 per occurrence
and covering all persons employed, directly or indirectly by TENANT, in
connection with TENANT's business and TENANT's improvements and any repairs,
improvements, modifications or alterations made to the Premises by TENANT.
(iv) Business income and extra expense income covering those
risks referred to in subsection A(ii) on an actual loss sustained basis, but in
all events in an amount sufficient to prevent TENANT from being a co-insurer of
any loss covered under the applicable policy or policies.
(v) Automobile liability insurance to cover owned, non-owned,
and hired vehicles with a combined single limit of not less than $1,000,000.
(vi) Such other insurance as may be carried on the Leased
Premises and TENANT's operation thereof as may be reasonably required by
LANDLORD from time to time.
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B. Except for work to be performed by LANDLORD, before undertaking any
alterations, additions, modifications or improvements to the Premises, TENANT
shall obtain and maintain at its expense, or TENANT shall require any contractor
performing work on the Premises to obtain and maintain at no expense to
LANDLORD, in addition to workers compensation insurance required by law,
commercial general liability insurance (including contractor's liability
coverage, contractual liability coverage, completed operations coverage, broad
form property damage coverage and contractor's protective liability) written on
an occurrence basis with limits of not less than $1,000,000. The contractor's
general liability insurance shall cover claims arising out of (i) the general
contractor's operations; (ii) acts of independent contractors; (iii)
products/completed operations; (iv) liability assumed under contract; (v)
explosion, collapse and underground damage hazards, when applicable; and (vi)
owned/non-owned/hired vehicles.
C. All insurance policies shall be in a form reasonably satisfactory to
LANDLORD and written with insurance companies reasonably satisfactory to
LANDLORD having a "Best's" rating of at least "A-X" and authorized to engage in
business in Florida. The coverage afforded by such insurance shall in no way
limit or diminish TENANT's liability hereunder. If TENANT fails to obtain and
provide any or all of the aforesaid insurance, then LANDLORD may, (but shall not
be required to) purchase such insurance on behalf of TENANT and TENANT shall, on
demand, reimburse LANDLORD for the cost of such insurance together with interest
thereof (from the date on which LANDLORD paid such cost to the date on which
TENANT reimburses LANDLORD therefore) at the maximum rate permitted by law and
same shall constitute additional rent.
D. The TENANT shall deliver to the LANDLORD an insurance certificate as
set forth above showing the LANDLORD as a named additional insured prior to its
entry onto the Leased Premises and shall, on each anniversary date of this
Lease, give evidence of the existence of the insurance required by this Lease
and that same is in effect. The certificates shall include an acknowledgment
that the policies have been amended to provide thirty (30) days prior notice of
termination or material modification to LANDLORD.
E. LANDLORD and TENANT each expressly, knowingly, and voluntarily waive
and release any claims that they may have against the other or the other's
employees, agents, or contractors and against every other tenant in the Building
who shall have executed a waiver similar to this one for damage to its
properties and loss of business (specifically including loss of rent by LANDLORD
and business interruption by TENANT) as a result of the acts or omissions of the
other party or the other party's employees, agents, or contractors (specifically
including the negligence of either party or its employees, agents, or
contractors and the intentional misconduct of the employees, agents, or
contractors of either party), which claims are covered by the standard property
insurance coverages described in subsection A(ii) or other property insurance
that either party may carry at the time of an occurrence. LANDLORD and TENANT
shall each, on or before the date on which TENANT first enters the Premises for
any purpose, obtain and keep in full force and effect at all times thereafter a
waiver of subrogation from its insurer concerning the property, rent loss, and
business interruption insurance maintained by it for the Building and the
property located in the Building. This subsection shall not apply to claims for
personal injury or wrongful death.
F. LANDLORD shall maintain fire and extended coverage insurance on the
Building and on the improvements and betterments to the Premises which were
either constructed or paid for by LANDLORD and are identified in Exhibit "A" to
this Lease, in an amount not less than 80% of the replacement cost of the
Building and such improvements and betterments and LANDLORD shall also maintain
commercial general liability insurance relating to the Building and its
appurtenances in an amount not less than $3 million per occurrence. In addition,
Landlord may, at its option, maintain coverages in excess of the limits set
forth in this subsection and additional coverages as specified in the definition
of Operating Expenses. The total cost of all insurance maintained by LANDLORD
under this subsection shall be included in Operating Expenses.
16. TENANT CHARGES: It is understood and agreed between the parties hereto that
any charges against TENANT by LANDLORD for services or for work done on the
Leased Premises by order of TENANT, or otherwise accruing under this Lease,
shall be considered as rent due and shall be included in any lien for rent.
17. PARKING: Pursuant to all of the terms, provisions, covenants and conditions
contained herein, during the Term of this Lease, TENANT shall be entitled to use
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of the Parking Spaces, as defined. No commercial vehicles, trucks or
recreational vehicles shall be permitted to park in the parking areas. No
trailers or boats shall be permitted in the parking areas.
TENANT agrees to hold LANDLORD harmless for damage to the vehicles or
personal property in vehicles that may occur while the vehicles are parked in
the parking areas of the Building.
18. SIGNS: LANDLORD shall have the sole right to install signs on the exterior
of the Leased Premises and on the Building. The LANDLORD shall, at TENANT's
expense, place TENANT's name on the exterior of the fixed glass door side panel
of the Leased Premises in a manner uniform with that of all other tenants. There
will be no directory of tenants. Subject to LANDLORD's prior written consent
which may be withheld in its sole discretion, no signs, door plaques,
advertisements, notices or information may be painted, posted, displayed, placed
or affixed in any manner to the exterior of the Leased Premises or on the
Building or on the property on which the Building is located by or for the
TENANT. TENANT may not place any signs, logos, advertisements, notices or other
information on the interior of the Leased Premises where the same is visible
from the outside of the Leased Premises through the glass. LANDLORD may at its
discretion change the Building's name or street address.
19. ESTOPPEL AGREEMENT: TENANT agrees that from time to time, upon not less than
seven (7) days prior request by LANDLORD, TENANT shall deliver to LANDLORD a
statement in writing certifying (a) that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the Lease as
modified is in full force and effect and stating the modifications); (b) the
dates to which the rent and other charges have been paid; and (c) that LANDLORD
is not in default under any provisions of this Lease, or, if in default, the
nature thereof in detail.
20. SUBORDINATION: If the Building and/or Leased Premises are any time subject
to a mortgage and/or deed of trust, and TENANT has received written notice from
the mortgagee of same, then in any instance in which TENANT gives notice to
LANDLORD alleging a default by LANDLORD hereunder, TENANT shall also
simultaneously give a copy of such notice to each LANDLORD's mortgagee; and each
LANDLORD's mortgagee shall have the right (but not the obligation) to cure or
remedy such default during the period that is permitted to LANDLORD hereunder,
plus an additional period of thirty (30) days, and TENANT shall accept such
curative or remedial action (if any) taken by LANDLORD's mortgagee with the same
effect as if such action had been taken by LANDLORD.
This Lease shall at LANDLORD's option, which option may be exercised at
any time during the Lease Term, be subject and subordinate to any mortgage now
or hereafter encumbering the Building. This provision shall be self-operative
without the execution of any further instruments. Notwithstanding the foregoing,
however, TENANT hereby agrees to execute any instruments which LANDLORD may deem
desirable to evidence the subordination of this Lease to any and all such
mortgages. Failure to execute a subordination agreement within seven (7) days
after request from LANDLORD shall be deemed a default hereunder. LANDLORD agrees
to provide TENANT with a non-disturbance agreement from LANDLORD's lender in the
form attached to this Lease as Exhibit "C".
21. ATTORNMENT: If the interest of LANDLORD under this Lease shall be
transferred voluntarily or by reason of foreclosure or other proceedings for
enforcement of any mortgage on the Leased Premises; TENANT shall be bound to
such transferee (herein sometimes called the "Purchaser") for the balance of the
Term hereof remaining, and any extensions or renewals thereof which may be
effective in accordance with the terms and provisions hereof with the same force
and effect as if the Purchaser were LANDLORD under this Lease, and TENANT does
hereby agree to attorn to the Purchaser, including the mortgagee under any such
mortgage if it be the Purchaser, as its said attornment to be effective and
self-operative without the execution of any further instruments upon the
Purchaser succeeding to the interest of the this Lease. The respective rights
and obligations of TENANT and the Purchaser upon such attornment, to the extent
of the then remaining balance of the Term of this Lease and any such extensions
and renewals, shall be and are the same as those set forth herein. In the event
of such transfer of LANDLORD's interests, LANDLORD shall be released and
relieved from all liability and responsibility thereafter accruing to TENANT
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under the Lease or otherwise and LANDLORD's successor by acceptance of rent from
TENANT hereunder shall become liable and responsible to TENANT in respect to all
obligations of LANDLORD under this Lease thereafter accruing.
22. MORTGAGE, TRANSFER, ETC. BY LANDLORD: The LANDLORD reserves the right to
sell, purchase, mortgage, hypothecate and convey in any form the Leased
Premises, the Building and the real property upon which it is situate without
the permission of the TENANT. It is further agreed that the LANDLORD shall have
the right to assign this Lease and all rentals accruing hereunder without the
permission of the TENANT.
23. ASSIGNMENT: Without the written consent of LANDLORD first obtained in each
case, which consent shall not be unreasonably withheld, TENANT shall not,
voluntarily or involuntarily, whether by operation of law or otherwise, assign,
transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or
sublease the Leased Premises or any part thereof or permit the Leased Premises
or any part thereof to be occupied by other persons.
In lieu of consenting or not consenting, LANDLORD may, at its option,
(i) in the case of a proposed assignment of this Lease or a proposed subletting
of all of the Leased Premises, terminate this Lease in its entirety, or (ii) in
the case of a proposed subletting of a portion of the Leased Premises, terminate
this Lease as to that portion of the Premises which TENANT has proposed to
sublet. In the event LANDLORD elects to terminate this Lease pursuant to clause
(ii) of this paragraph, TENANT's obligation as to Base Rental and additional
rent shall be reduced in the same proportion that the Net Rentable Area of the
portion of the Premises which TENANT proposed to sublet bears to the total Net
Rentable Area of the Premises. If without LANDLORD's written consent having been
first obtained, this Lease is assigned or if the Leased Premises or any part
thereof is sublet or occupied by anybody other than TENANT, voluntarily or
involuntarily, whether by operation of law or otherwise, LANDLORD may (whether
or not there is a default under this Lease) collect or accept rent from the
assignee, subtenant or occupant and apply the net amount collected or accepted
to the rent herein reserved; but such collection or acceptance of rent shall not
be deemed a waiver of the foregoing covenants or the acceptance of the assignee,
subtenant or occupant as TENANT hereunder; nor shall it be construed as or
implied to be a release of TENANT from the further observance and performance by
TENANT of the terms, provisions, covenants and conditions herein contained.
In the event TENANT is a partnership, corporation or other firm or
entity, any transfer to one transferee of fifty (50%) percent or more of the
equity, right, title or interest herein, existing as of the date hereof, shall,
for the purposes hereof, be deemed to be an assignment. Fifty percent (50%) of
any sums or other economic considerations received by TENANT as a result of a
subletting, whether denominated rentals under the sublease or otherwise, which
exceed, in the aggregate, the total sums which TENANT is obligated to pay
LANDLORD under this Lease (prorated to reflect obligations applicable to that
portion of the Leased Premises subject to such sublease) shall be payable to
LANDLORD, immediately following TENANT's receipt of the same, under this Lease
without affecting or reducing any other obligations of TENANT hereunder and
shall constitute additional rent. Fifty percent (50%) of any sums or other
economic considerations received by TENANT as a result of an assignment of this
Lease, whether denominated rentals under the assignment or otherwise, shall be
payable to LANDLORD, immediately following TENANT's receipt of the same under
this Lease without affecting or reducing any other obligations of TENANT
hereunder and shall constitute additional rent.
TENANT shall have no right of assignment or subletting if it is in
default under any of the terms or conditions of this Lease. Notwithstanding any
assignment of the Lease, or the subletting of the Premises, or any portion
thereof, TENANT shall continue to be liable for the performance of the terms,
conditions and covenants of this Lease including, but not limited to, the
payment of rent and any other charges imposed hereunder. Consent by LANDLORD to
one or more assignments or sublettings shall not operate as a waiver of
LANDLORD'S rights as to any subsequent assignments and sublettings. At
LANDLORD's option, in the event of default by any assignee or subtenant under
the terms, conditions or covenants of this Lease, LANDLORD may, at its option,
seek enforcement of any of its available remedies solely against the TENANT.
If there are one or more assignments or sublettings by TENANT to which
LANDLORD consents, the parties understand and agree, anything to the contrary
notwithstanding that any and all renewal options to be exercised subsequent to
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the date of such assignment or subletting are absolutely waived and terminated
at LANDLORD's sole option. Any request by TENANT to LANDLORD to permit a
subletting or assignment shall contain or be accompanied by a financial
statement of the proposed subtenant or assignee and such other information and
references as LANDLORD deems necessary to reasonably evaluate the acceptability
of such prospective subtenant or assignee. LANDLORD may deny an assignment or
subletting based strictly upon type of business or tenant mix.
In the event of the transfer and assignment by LANDLORD of its interest
in this Lease and/or sale of the Building containing the Premises, LANDLORD
shall thereby be released from any further obligations hereunder, and TENANT
agrees to look solely to such successor in interest of the LANDLORD for
performance of such obligations.
24. DESTRUCTION OR DAMAGE:
A. If: (i) the Building shall be so damaged that substantial alteration
or reconstruction of the Building shall, in the LANDLORD's opinion, be required
(whether or not the Premises shall have been damaged by the casualty); or (ii)
any mortgagee of the Building should require that the insurance proceeds payable
as a result of a casualty be applied to the payment of the mortgage debt; or
(iii) there is any material loss to the Building that is not covered by
insurance required to be maintained by LANDLORD under this Lease; or (iv) the
Premises shall be partially damaged by casualty during the last two years of the
Lease Term, and the estimated cost of repair exceeds 10% of the Base Rental then
remaining to be paid by TENANT for the balance of the Lease Term; LANDLORD may,
within 120 days after the casualty, give notice to TENANT of LANDLORD's election
to terminate this Lease, and the balance of the Lease Term shall automatically
expire on the fifth day after the notice is delivered.
B. If LANDLORD does not have the right to terminate this Lease under
Subsection A, or if LANDLORD has the right to terminate and does not elect to do
so, LANDLORD shall proceed with reasonable diligence to restore the Building and
the Premises to substantially the same condition they were in immediately before
the happening of the casualty. However, LANDLORD shall not be required to
restore any unleased Premises in the Building or any portion of TENANT's
property or the improvements made by TENANT and LANDLORD's restoration
obligations shall exist only to the extent that LANDLORD actually receives
insurance proceeds in the amount of the estimated cost of the restoration. When
repairs to the Premises that are LANDLORD's obligation under this section, if
any, have been completed by LANDLORD, TENANT shall complete the restoration or
replacement of the Premises, the improvements made by TENANT and all of TENANT's
property necessary to permit TENANT's re-occupancy of the Premises.
C. Rent shall abate in proportion to the portion of the Premises not
useable by TENANT as a result of any casualty, as of the date on which the
Premises becomes unusable. LANDLORD shall not be liable to TENANT for any delay
in restoring the Premises or any inconvenience or annoyance to TENANT or injury
to TENANT's business resulting in any way from the damage or the repairs,
TENANT's sole remedy being the right to an abatement of rent.
D. The rights provided to TENANT under this section are in lieu of and
override any rights that TENANT may have by statute.
25. EMINENT DOMAIN: If there shall be taken during the Term of this Lease, any
portion of the Leased Premises other than a part not interfering with
maintenance, operation or use of the Leased Premises, LANDLORD may elect to
terminate this Lease or to continue same in effect. If LANDLORD elects to
continue the Lease, the rental shall be reduced in proportion to the area of the
Leased Premises so taken and LANDLORD shall repair any damage to the Leased
Premises resulting from such taking. If any part of the Leased Premises is taken
by condemnation or eminent domain which renders the Premises unsuitable for its
intended use, TENANT may elect to terminate this Lease; or if any part of the
Leased Premises is so taken which does not render the Premises unsuitable for
its intended use, this Lease shall continue in effect; and the rental shall be
reduced in proportion to the area of the Leased Premises so taken and LANDLORD
shall repair any damage to the Leased Premises resulting from such taking. If
all of the Leased Premises is taken by condemnation or eminent domain, this
Lease shall terminate on the date possession is taken by the authority. All sums
awarded or agreed upon between LANDLORD and the condemning authority for the
taking of the interest of LANDLORD whether as damages or as compensation, and
whether for partial or total condemnation, shall be the sole property of
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LANDLORD and TENANT shall not be entitled to any apportionment. If this Lease
should be terminated under any provisions of this paragraph, rental shall be
payable up to the date that possession is taken by the authority, and LANDLORD
shall refund to TENANT any prepaid unaccrued rent less any sum or amount then
owing by TENANT to LANDLORD.
26. NON-RECORDING OF LEASE: TENANT shall not record this Lease nor any
memorandum thereof in the Public Records of Broward County, Florida, and should
the same be recorded by the TENANT it shall constitute an irrevocable and
immediate default in the terms of this Lease permitting the LANDLORD to pursue
all of the remedies contained in this Lease or provided by statute. In addition
thereto, the LANDLORD shall be entitled to all consequential damages which may
occur as a result of having to remove the Lease from the public records of
Broward County, Florida, together with any and all consequential damages which
may occur to the title of the fee owner of the property. These expenses shall
include, but shall not be limited to, attorneys fees, accountants' fees,
surveying fees, recording fees, and any and all damages which may occur to
LANDLORD or the fee simple owner as a result of any cloud cast upon title to the
property affected by the recording of this Lease.
27. DEFAULT:
A. Events of Default. LANDLORD at its election may exercise any one or
more of the options referred to below upon the happening or at any time after
the happening of any one or more of the following events of default, to-wit:
(1) TENANT'S failure to pay the rents, or any other sums
payable hereunder for a period of three (3) days after written notice by
LANDLORD;
(2) TENANT'S failure to abide by any of the non-monetary terms
of this Lease and failing to cure any non-compliance noticed by LANDLORD which
specifies the TENANT'S failure to observe, keep, or perform any of the
non-monetary covenants, agreements or conditions of this Lease within ten (10)
days of said notice, unless the non-compliance is of such a nature that in
LANDLORD's sole determination it must be cued within a shorter period to avoid
substantial interference with the rights of LANDLORD or any other tenant(s) in
connection with the Leased Premises or the Building.
(3) Should the TENANT, at any time during the term of this
Lease, suffer or permit an involuntary or voluntary petition in bankruptcy to be
filed against it, or should a receiver or trustee be appointed for the TENANT's
property because of TENANT's insolvency, and the said appointment is not vacated
within thirty (30) days thereafter, or should the TENANT's leasehold interest be
levied on and the lien thereof not discharged within thirty (30) days after said
levy has been made, or should the TENANT fail to promptly make the necessary
returns and reports required of it by the State and Federal law, or should the
TENANT fail to promptly comply with all governmental regulations, local, State
and Federal;
(4) TENANT making an assignment for the benefit of creditors;
(5) A receiver or trustee being appointed for TENANT or a
substantial portion of TENANT's assets;
(6) TENANT's attempting to mortgage or pledge its interest
hereunder;
(7) TENANT's vacating or abandoning the Premises or ceasing
doing business therein;
(8) TENANT's interest under this Lease being sold without
LANDLORD's consent under execution, other legal process or by operation of law;
(9) TENANT's interest under this Lease being assigned, the
Premises or a portion thereof being sublet or transferred by operation of law
without LANDLORD's prior written consent;
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(10) Should the TENANT, at any time, fail to abide by the
provisions of this Lease and should the TENANT suffer by way of legal remedy or
equitable remedy an injunction, either of a civil or criminal nature, or should
the TENANT fail to comply with safety regulations or fail to comply with any
governmental regulations so that it is necessary by process of law to terminate
or shut down TENANT's activities, then, subject to the provision of subparagraph
(2) above, the TENANT shall be in default of this Lease.
B. Remedies upon Default. In the event of any of the foregoing
happenings, or any other default by TENANT, the LANDLORD, at its election, may
without further notice to the TENANT exercise any one or more of the following
options, the exercise of any of which shall not be deemed to preclude the
exercise of any others herein listed or otherwise provided by statute or general
law or in equity at the same time or in subsequent times or actions.
(1) Declare this Lease to be terminated and retake possession
of the Premises by eviction or otherwise for LANDLORD's own account and purposes
whereupon all right, title and interest of the TENANT in the Premises shall end;
(2) Terminate TENANT's right to possession under the Lease by
eviction or otherwise and retake possession of the Premises for the account of
TENANT and relet or attempt to relet the Premises on behalf of TENANT. LANDLORD
shall not be deemed to have thereby accepted a surrender of the Premises and
TENANT shall remain liable for all sums due under this Lease for the balance of
the Lease Term and for all damages suffered or costs incurred by LANDLORD
including agents or brokers fees to find a new tenant, damages to the Premises,
renovation and alteration expense and reasonable attorney's fees and costs in
recovering possession of the Premises and advising and protecting LANDLORD's
interests under the circumstances less the amount in good faith the LANDLORD may
recover from reletting the Premises;
(3) Accelerate and declare all remaining sums due from TENANT
for rent under this Lease through the end of the Lease Term to be immediately
due payable. LANDLORD may collect all remaining sums due by distress or
otherwise. In any judgment entered against the TENANT for accelerated rent, the
amount of accelerated rent shall be reduced to present money value based upon an
interest rate at the then "Prime Rate" less two (2%) percent. In the event
LANDLORD subsequently re-lets the Leased Premises for any portion of the Lease
Term, then TENANT shall be credited with the amount of any rent received by
LANDLORD through the end of the Lease Term against the sums owed by TENANT to
LANDLORD under any judgment for accelerated rent. Any judgment entered against
TENANT for accelerated rent shall include a provision for a future accounting in
the event of subsequently received rents.
C. No re-entry or retaking of the Premises by LANDLORD shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to TENANT. Nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of sums due to LANDLORD
hereunder or any damages accruing to LANDLORD by reason of the violations of any
of the terms, provisions and covenants herein contained. LANDLORD's acceptance
of any rent or other sums following any event of default hereunder shall not be
construed as LANDLORD's waiver of such event of default. No forbearance by
LANDLORD of action upon any violation or breach of any of the terms, provisions,
and covenants herein contained shall be deemed or construed to constitute a
waiver of the terms, provisions, and covenants herein contained. 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 any other
violation or default. Legal actions to recover for loss or damage that LANDLORD
may suffer by reason of termination of this Lease, recovery of possession or the
deficiency from any reletting as provided for above shall include the expenses
of repossession and any repairs or remodeling undertaken by LANDLORD following
repossession.
D. The parties hereto agree that any and all suits for any and every
breach of this Lease shall be instituted and maintained only in State Courts for
Broward County, Florida and TENANT, whether or not a resident or doing business
in the State of Florida hereby submits itself to the jurisdiction of the State
of Florida and the courts of Broward County where venue shall lie, and LANDLORD
may effect service of process by any lawful means in order to confer in personam
jurisdiction in the courts of this state over TENANT.
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E. Time is of the essence in this Lease and in case TENANT shall fail
to perform the covenants on its part to be performed at the time fixed for the
performance of such respective covenants by the provisions of this Lease,
LANDLORD may declare TENANT to be in default of this Lease.
28. WAIVER OF DEFAULT: Failure of the LANDLORD to declare any default
immediately upon occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such default; but LANDLORD shall have the right to
declare any such default at any time and take such action as might be lawful or
authorized hereunder, in law and/or in equity. Failure of the LANDLORD to insist
upon the strict performance of any of the covenants, conditions and agreements
of this Lease in any one or more instances, shall not be construed as a waiver
or relinquishment in the future of any such covenants, conditions and
agreements. No waiver by LANDLORD of a default by TENANT shall be implied, and
no express waiver by LANDLORD shall affect any default other than the default
specified in such waiver and that only for the time and extension therein
stated. No waiver of any term, provision, condition or covenant of this Lease by
LANDLORD shall be deemed to imply or constitute, a further waiver by LANDLORD of
any other term, provision, condition or covenant of this Lease.
LANDLORD may, at its option, accept partial payments of Base Rental or
Additional Rent without waiving any rights concerning the existence of any
monetary or non-monetary default under this Lease, which default shall serve and
continue unaffected by the receipt of any such partial payment.
29. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS: If TENANT shall at any time
fail to pay any sums due under this Lease in accordance with the provisions of
this Lease, or to take out, pay for or maintain any insurance required by this
Lease to be maintained, or shall fail to make any other payment or perform any
other act on its part to be made or performed, then, LANDLORD, after ten (10)
days written notice to TENANT (or without notice in case of an emergency) and
without waiving or releasing TENANT from any obligation of TENANT contained in
this Lease, may (but shall be under no obligation to):
A. Pay any sum payable by TENANT pursuant to the provisions of
this Lease; or
B. Take out, pay for and maintain any insurance policy
required to be maintained by TENANT under this Lease; or
C. Make any other payment or perform any other act on TENANT'S
part to be made or performed as provided for in this Lease. LANDLORD may enter
upon the Leased Premises for such purpose and take all such action thereon as
may be reasonably necessary therefor without notice to the TENANT.
All sums so paid by LANDLORD and all costs and expenses incurred by
LANDLORD in connection with the performance of any such act, together with
interest thereon at the rate of eighteen (18%) percent per annum from the date
of LANDLORD'S making of such payment shall constitute additional rent payable by
TENANT under this Lease and shall be paid by TENANT to LANDLORD on demand.
LANDLORD shall not be limited in the proof of any damages which LANDLORD may
claim against TENANT arising out of, or by reason of, TENANT'S failure to
provide and keep in force insurance as aforesaid to the amount of the insurance
premium or premiums not paid or incurred by TENANT and which would have been
payable upon such insurance, but LANDLORD shall also be entitled to recover as
damages for such breach, the uninsured amount of any loss.
30. RIGHT OF ENTRY: LANDLORD, or any of its agents, shall have the right to
enter the Leased Premises during all reasonable hours to examine the same,
prevent waste, or to make such repairs, additions or alterations as may be
deemed necessary for the safety, comfort, or preservation thereof, or to said
Building, or to exhibit said Leased Premises at any time within one hundred
eighty (180) days before the expiration of this Lease. Said right of entry shall
likewise exist for the purpose of removing placards, signs, fixtures,
alterations, or additions which do not conform to this Lease. All inspections
except for those required by an emergency shall be subject to reasonable prior
notice and conducted during normal business hours of TENANT.
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31. CONDITION OF PREMISES ON TERMINATION OF LEASE AND HOLDING OVER:
TENANT agrees to surrender to LANDLORD, at the end of the Term of this
Lease and/or upon any cancellation of this Lease, said Leased Premises in as
good condition as said Leased Premises were at the beginning of the Term of this
Lease, ordinary wear and tear excepted. TENANT agrees that if TENANT does not
surrender said Leased Premises to LANDLORD at the end of the Term of this Lease,
then TENANT shall pay to LANDLORD double the amount of the current rental for
each month or portion thereof that TENANT holds over plus all damages that
LANDLORD may suffer on account of TENANT's failure to so surrender to LANDLORD
possession of said Leased Premises and shall indemnify and save LANDLORD
harmless from and against all claims made by any succeeding tenant of said
Leased Premises against LANDLORD on account of delay of LANDLORD in delivering
possession of said Leased Premises to said succeeding tenant so far as such
delay is occasioned by failure to so surrender said Leased Premises in
accordance herewith or otherwise.
No receipt of money and acceptance by LANDLORD from TENANT after
termination of this Lease or the service of any notice of commencement of any
suit or final judgement for possession shall reinstate, continue or extend the
Term of this Lease or affect any such notice, demand, suit or judgement. No act
or thing done by LANDLORD or its agents during the Term hereby granted shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept a surrender of the Leased Premises shall be valid unless it be made in
writing and subscribed by a duly authorized officer or agent of LANDLORD.
32. OCCUPANCY TAX: TENANT shall be responsible for and shall pay before
delinquency all municipal, county or state taxes assessed during the Term of
this Lease against any occupancy interest or personal property of any kind,
owned by or placed in, upon or about the Leased Premises by TENANT.
33. INTEREST ON PAST DUE SUMS: All sums of money required to be paid by the
TENANT to the LANDLORD shall bear interest from due date, or maturity thereof,
at the highest rate allowed by law until paid.
34. ATTORNEYS' FEES: If either party defaults in the performance of any of the
terms, provisions, covenants and conditions and by reason thereof and the other
party employs the services of an attorney to enforce performance of the
covenants, or to perform any service based upon a default under the Lease,
regardless of the initiation of court proceedings, then in any of said events,
the prevailing party shall be entitled to reasonable attorneys' fees and all
expenses and costs incurred by the prevailing party pertaining thereto and in
enforcement of any remedy (including costs and fees relating to any appeal and
in bankruptcy proceedings).
35. LITIGATION VENUE: All litigation between the parties hereto relating to this
Lease shall be instituted, maintained and prosecuted in the State Courts of
Broward County, Florida, having jurisdiction over the subject matter.
36. NO TRIAL BY JURY: It is mutually agreed by and between LANDLORD and TENANT
that the respective parties hereto shall, and they hereby do WAIVE TRIAL BY JURY
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters arising out of or in any way connected
with this Lease, the relationship of LANDLORD and TENANT, and TENANT's use or
occupancy of the Premises. TENANT further agrees that it shall not interpose any
counterclaims in a summary proceeding or in any action based upon non-payment of
rent or any other payment required of TENANT hereunder.
37. CROSS DEFAULT: If the term of any lease, other than this Lease, made by
TENANT for any other space in the Building shall be terminated or terminable
after the making of this Lease because of any default by TENANT under such other
lease, such default shall, ipso facto, constitute a default hereunder and
empower LANDLORD at LANDLORD's sole option, to any remedies with respect to this
Lease as herein provided in the event of default.
38. INVALIDITY OF PROVISION: If any term, provision, covenant or condition of
this Lease or the application thereof to any person or circumstances shall, to
any extent, be invalid or unenforceable, the remainder of this Lease or the
21
<PAGE>
application of such term, provision, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each term, provision, covenant or condition of
this Lease shall be valid and be enforceable to the fullest extent permitted by
law. This Lease shall be construed in accordance with the laws of the State of
Florida.
39. TIME OF ESSENCE: It is understood and agreed between the parties hereto that
time is of the essence of all the terms provisions, covenants and conditions of
this Lease.
40. QUIET ENJOYMENT: Upon payment by TENANT of the rents herein provided, and
upon the observance and performance of all terms, provisions, covenants and
conditions on TENANT's part to be observed and performed, TENANT shall, subject
to all of the terms, provisions, covenants and conditions of this Lease,
peaceably and quietly hold and enjoy the Leased Premises for the Term hereby
demised.
41. EFFECTIVE DATE: Submission of this instrument for examination does not
constitute an offer, right of first refusal, reservation of or option for the
Leased Premises or any other space or premises in, on or about the Building.
This instrument becomes effective as a Lease only upon execution and delivery by
both LANDLORD and TENANT.
42. NOTICE: Any notice given LANDLORD as provided for in this Lease or otherwise
shall be in writing and be addressed to LANDLORD at the address where rent is
paid and sent by certified mail-return receipt requested or hand delivered or
sent by overnight courier. Any notice to be given TENANT under the terms of this
Lease shall be in writing and shall be sent by certified mail return receipt
requested to the office of TENANT in the Building or shall be hand delivered to
TENANT or sent by overnight courier. Notice shall be deemed to have been served
on the day given, if personally delivered; or upon receipt if by overnight
courier or by certified, first class, postage prepaid, return receipt requested
mail. Either party, from time to time, by written notice, may specify another
address to which subsequent notice shall be sent.
43. MISCELLANEOUS: The terms "LANDLORD" and "TENANT" as herein contained shall
include singular and/or plural, masculine, feminine and/or neuter, heirs,
successors, executors, administrators, personal representatives and/or assigns
wherever the context so requires or admits. The terms, provisions, covenants and
conditions of this Lease are expressed in the total language of this Lease
Agreement and the paragraph headings are solely for the convenience of the
reader and are not intended to be all inclusive. Any formally executed addendum
to or modification of this Lease shall be expressly deemed incorporated by
reference herein unless a contrary intention is clearly stated therein. The
terms, provisions, covenants, and conditions contained in this Lease shall apply
to, inure to the benefit of, and be binding upon the parties hereto, and upon
their respective successors in interest and legal representatives, except as
otherwise herein expressly provided. This Lease shall be deemed to have been
mutually drafted by the parties. Therefore, neither this Lease nor any section
hereof, amendment or addendum hereto shall be construed against any party due to
the fact that this Lease or any section hereof, amendment or addendum hereto may
have been primarily drafted by said party.
44. AGENCY DISCLOSURE: TENANT represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction other than
LANDLORD's broker, Properties Group, Inc., for which LANDLORD shall be
responsible for any commission or fee. TENANT agrees to indemnify and hold
LANDLORD harmless from and against any claims by any other broker, agent or
other person claiming a commission or other form of compensation by virtue of
having dealt with TENANT with regard to this leasing transaction. The provisions
of this paragraph shall survive the termination of this Lease.
45. FORCE MAJEURE: Neither LANDLORD nor TENANT shall be required to perform any
term, condition, or covenant in this Lease so long as such performance is
delayed or prevented by force majeure, which shall mean acts of God, labor
disputes (whether lawful or not), material or labor shortages, restrictions by
any governmental authority, civil riots, floods, and any other cause not
reasonably within the control of LANDLORD or TENANT and which by the exercise of
due diligence LANDLORD or TENANT is unable, wholly or in part, to prevent or
overcome. Lack of money shall not be deemed force majeure.
22
<PAGE>
Notwithstanding any other term herein contained, if the Commencement
date has not occurred on or before January 1, 2001 for any reason not
attributable to the fault of the TENANT, including by reason of any force
majeure described in this Section, then TENANT, upon written notice to LANDLORD
shall, at its option, be entitled to terminate this Lease and receive a refund
of all monies paid by it to LANDLORD, by way of deposit or otherwise,. upon
which this Lease shall be terminated and each party shall be released from any
and all claims against the other in connection with this Lease with the
exception of any claims related to TENANT's use or occupancy of the Temporary
Space which shall survive such termination.
46. CORPORATE TENANCY: If TENANT is a corporation, the undersigned officer of
TENANT hereby warrants and certifies to LANDLORD that TENANT is a corporation in
good standing and is authorized to do business in the State of Florida. The
undersigned officer of TENANT hereby further warrants and certifies to LANDLORD
that he or she, as such officer, is authorized and empowered to bind the
corporation to the terms of this Lease by his or her signature thereto.
47. RENT A SEPARATE COVENANT: TENANT shall not for any reason withhold or reduce
TENANT'S required payment of rent and other charges as provided in this Lease,
it being agreed that the obligations of LANDLORD hereunder are independent of
TENANT'S obligations.
48. USE OF HAZARDOUS MATERIALS AND INDEMNIFICATION: TENANT shall not cause or
permit any Hazardous Material to be generated, brought upon, kept, used,
disposed of or released on, in or about the Premises or the Building or the
property upon which the Building is located by TENANT, its agents, employees,
contractors or invitees. The TENANT irrevocably agrees that it will, at its sole
efforts and expense comply with all past, present and future laws, ordinances,
rules, regulations, orders, decrees or permits enacted or issued by any federal,
state, county or municipal governmental agency(s) or judicial body having
jurisdiction or control over environmental contamination or pollution with
respect to TENANT's use of the Leased Premises.
If TENANT breaches this obligation, TENANT shall indemnify, defend and
hold LANDLORD harmless from any and all claims, judgements, damages, penalties,
fines, liens, costs, expenses, liabilities or losses (including, without
limitation, diminution in value of the Premises or the Building, damages for the
loss or restriction on use of rentable space or of any amenity of the Premises
or the Building, damages arising from any adverse impact on marketing of space,
and sums paid in settlement of claims, attorneys' fees, consultant fees and
expert fees) which arise during or after the Lease Term as a result of such
contamination. This indemnification of LANDLORD by TENANT includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean-up, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision because
of Hazardous Material present in the soil or ground water, in the Premises or in
the Building.
Without limiting the foregoing, if the presence of any Hazardous
Material on the Premises or in the Building caused by TENANT, its agents,
employees, contractors or invitees results in any contamination of the Premises
and/or the Building, TENANT shall promptly take all actions at its sole expense
as are necessary to return the Premises and/or the Building to the conditions
existing prior to the introduction of any such Hazardous Material; provided that
LANDLORD's approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld so long as such actions would not potentially
have any material adverse long-term or short-term effect on the Premises and/or
the Building. The foregoing indemnity shall survive the expiration or earlier
termination of this Lease. As used herein, the term "Hazardous Material" means
such hazardous or toxic substance, pollutant, material or waste, including, but
not limited to, those substances, materials, and wastes listed in the United
States Department of Transportation Hazardous Materials Table (49 CFR 172.101)
or by the Environmental Protection Agency as hazardous substances (40 CFR Part
302) and amendments thereto, or such substances, materials and wastes that are
or become regulated or defined as such under any applicable local, state or
federal law and also includes oil. LANDLORD and its agents shall have the right,
but not the duty, to inspect the Premises at any time to determine whether
TENANT is complying with the terms of this Lease. If TENANT is not in compliance
with this Lease, LANDLORD shall have the right to immediately enter Premises to
remedy any contamination caused by TENANT's failure to comply notwithstanding
any other provision of this Lease. LANDLORD shall use its best efforts to
minimize interference with TENANT's business but shall not be liable for any
23
<PAGE>
interference caused thereby. Any default under this paragraph shall be a
material default enabling LANDLORD to exercise any of the remedies set forth in
this Lease.
All of TENANT's obligations of indemnification to LANDLORD pursuant to
this section of the Lease shall survive indefinitely the termination or
expiration of this Lease.
49. Intentionally Deleted.
50. SUCCESSORS AND ASSIGNS: All terms, provisions, covenants and conditions to
be observed and performed by TENANT shall be applicable to and binding upon
TENANT's respective heirs, administrators, executors, successors and assigns,
subject however, to the restrictions as to assignment or subletting by TENANT as
provided therein. All expressed covenants of this Lease shall be deemed to be
covenants running with the land.
51. ENTIRE AGREEMENT: This Lease contains the final and entire agreement between
the parties hereto and all previous negotiations leading thereto, and it may be
amended or modified only by an agreement in writing signed by LANDLORD and
TENANT. No surrender of the Leased Premises, or of the remainder of the term of
this Lease, shall be valid unless accepted by LANDLORD in writing. TENANT
acknowledges and agrees that TENANT has not relied upon any statement,
representation, discussion, prior written or contemporaneous oral promises,
agreements, warranties or communications, oral or in writing except such as are
expressed herein.
52. RADON GAS: The following disclosure is required on all leases of real
property in Florida: "Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit."
24
<PAGE>
ADDENDUM TO OFFICE BUILDING NET LEASE
THIS ADDENDUM TO OFFICE BUILDING NET LEASE is made and entered into
this 28th day of December, 1999 by and between by and between ANGLERS OFFICE
PARK, INC., a Florida corporation doing business as Anglers Corporate Center
(hereinafter called "LANDLORD"), whose address for purposes hereof is 2860
Pershing Street, Hollywood, Florida 33020 and TAKE TO AUCTION.COM, INC.
(hereinafter called "TENANT" ) and amends and modifies that certain Office
Building Net Lease (the "Lease") with respect to the Premises located at
Suite16, 5555 Anglers Avenue, Ft. Lauderdale, Broward County, Florida, as
follows:
1. Unless the context otherwise requires, all initial capitalized terms
used but not defined in this Addendum, shall have the meaning or meanings given
to such terms in the Lease. This Addendum shall be deemed a part of, but shall
take precedence over and supersede any provisions to the contrary contained in
the Lease. All references in the Lease or this Addendum to the Lease shall be
deemed to refer to the Lease as modified by this Addendum, unless the context
otherwise requires.
2. LANDLORD shall provide TENANT with a total credit against Base
Rental in the amount of $58,277.58. This credit shall be applied in five equal
annual installments of beginning on the first anniversary of the Commencement
Date. The rent credit shall be forfeited if TENANT is in default under the Lease
on the date the credit would otherwise be due.
3. TENANT shall have temporary exclusive use and occupancy of Suite 9
in the Building during LANDLORD's build out of TENANT's Leased Premises and
until the Commencement Date (the "Temporary Space"). TENANT shall be in default
under this Lease if TENANT fails to vacate the Temporary Space and take
possession of the Leased Premises within ten (10) days of the Commencement Date.
During its occupancy of the Temporary Space, TENANT shall pay to the LANDLORD
the full amount of the rental required under the terms of this Lease including
Operating Expenses and Impositions. Rental due for the first month of occupancy
of the Temporary Space shall be paid to the LANDLORD upon the execution of this
Lease. All of the terms and provisions of this Lease shall apply to TENANT's use
and occupancy of the Temporary Space.
4. TENANT and/or its contractors shall have access to the Leased
Premises prior to the Commencement Date for installation of telephone and
telecommunications equipment provided said access is coordinated with LANDLORD
and its contractors and does not interfere with or delay the completion of
LANDLORD's work in the Leased Premises.
5. Except as expressly modified by this Addendum and any other addenda
executed by the parties, the provisions of the Lease are hereby ratified and
confirmed.
LANDLORD:
ANGLERS OFFICE PARK, INC.
Witnesses: a Florida corporation
By: /s/ Marvin Mandel
-------------------------------- -----------------
Marvin Mandel, President
TENANT:
TAKE TO AUCTION.COM, INC.
Witnesses: a Florida corporation
By: /s/ Albert Friedman
-------------------------------- ---------------------
Albert Friedman, President
<PAGE>
EXHIBIT "A"
FLOOR AND SITE PLANS AND LANDLORD'S WORK
----------------------------------------
I. FLOOR AND SITE PLANS - See Attached
II. LANDLORD'S WORK - LANDLORD shall complete the following improvements to
the Premises at LANDLORD's expense:
<PAGE>
EXHIBIT "B"
CONSTRUCTION SPECIFICATIONS
---------------------------
LANDLORD'S WORK
Landlord shall cause Landlord's contractor to construct the interior
improvements to the demised premises shown on Exhibit "A" containing the
improvements as described below ("Landlord's Work") at Landlord's sole cost and
expense, prior to Landlord's delivery of possession to Tenant.
<TABLE>
<CAPTION>
DESCRIPTION:
<S> <C> <C>
A. Floor Type
----------
Floor slab: Concrete slab ready for floor covering.
Floor Covering:
1) Office Area: Commercial grade, direct glue down, carpet at office area and storage closet with
vinyl cove base board . Color of Tenant's choice from Landlord's
samples.
2) Bathroom: Ceramic tile of Tenant's choice from Landlord's samples.
B. Electrical
----------
Electrical Service: 100 amp 120 volt, single phase.
Electrical Panel: One panel with 30 circuits. Any additional circuits needed by Tenant
shall be at the Tenant's sole cost and expense.
Wall Receptacle: Standard wall mounted 120-volt duplex receptacles to be located per
attached space plan.
Lighting: 2' x 4' flourescent, lay-in fixtures with acrylic lens.
Switches: Lighting control switches at entry/exit and at enclosed offices,
bathroom and storage closet.
Exit Lights/
Emergency Lighting: Installed per code.
C. Ceiling Type
------------
Lay in Ceiling: 2' x 2' lay in fiberboard tile (white flat fissure) with metal
ceiling grid.
Ceiling Height: 9'+/- above the concrete slab.
D. Air Conditioning
----------------
Tonnage: One split system HVAC unit at office area. Tonnage to be in accordance with
Florida Energy Code standards.
<PAGE>
Control Wiring: One control/thermostat per A/C unit.
E. Partitions
----------
Demising Walls: 5/8" type X drywall, fire taped and sanded, ready for paint. 3-5/8"
20 gauge metal studs at 24" on center.
Interior Walls: gypsum board on each side of 3-5/8" metal studs, 20-gauge, at 24" on
center, taped and sanded, ready for paint.
Wall Height All demising walls shall go from the concrete slab to the
underside of the roof deck. All interior walls at offices shall go
from the slab to the underside of the dropped ceiling grid, unless
otherwise indicated on the final plans.
Paint/Wall Covering: All interior walls to be
painted with two (2) coats of flat
latex paint of Tenant's choice from
Landlord's samples.
F. Doors
-----
Storefront Entry Door: 3'0" x 6'8" glass door in metal frame to match building shell
specifications.
Interior Door: 3'0" x 6'0" +/-, solid-core, stain-grade, wood doors with hollow metal frames
and lever-type passage set hardware.
G. Plumbing
--------
Bathroom: To be installed to code, in accordance with ADA requirements.
Coffee Bar: To be located as per attached space plan and to include bar sink with mica
counter top with cabinet below.
H. Telephone
---------
Telephone Conduit: Landlord will install one1/2" conduit to Tenant's space from the building
meter/telephone room. Tenant shall be responsible for the supply and
installation of all telephone lines and equipment necessary for
Tenant's phone system.
Telephone Outlets: Outlets to be located as per space plan. Cover plates not included.
</TABLE>
<PAGE>
EXHIBIT "C"
NON-DISTURBANCE AGREEMENT
-------------------------
<PAGE>
RULES AND REGULATIONS
The following Rules and Regulations, hereby accepted by TENANT, are
prescribed by LANDLORD to enable LANDLORD to provide, maintain, and operate, to
the best of LANDLORD's ability, orderly, clean and desirable premises, Building
and parking facilities for tenants therein at as economical a cost as reasonably
possible and in as efficient a manner as reasonably possible and to regulate
conduct in and use of said Premises, Building and parking facilities in such
manner as to minimize interference by others in the proper use of same by
TENANT.
1. TENANT, its officers, agents, servants and employees shall not block
or obstruct any of the entries, passages, doors, walkways and hallways of the
Building or parking facilities, or place, empty or throw any rubbish, litter,
trash or material of any nature into such areas, or permit such areas to be used
at any time except for ingress or egress of TENANT, its officers, agents,
servants, employees, patron, licensees, customers, visitors or invitees.
2. LANDLORD shall not be responsible for lost or stolen property,
equipment, money or any article taken from Leased Premises, Building or parking
facilities regardless of how or when such loss occurs.
3. No additional locks shall be placed on any door or changes made to
existing locks in the Building without the prior written consent of LANDLORD.
LANDLORD shall furnish two keys to each lock on the door to the Leased Premises.
LANDLORD may, at all times, keep a pass key to the Leased Premises. All keys
shall be returned to LANDLORD promptly upon termination of this Lease.
4. If TENANT desires alarm or other utility or service connection
installed or changed, such work shall be done at the expense of TENANT, with the
prior approval and under the direction of LANDLORD.
5. TENANT, its officers, agents, servants and employees shall not
permit the operation of any musical or sound producing instruments or device
which may be heard outside the Leased Premises, Building or parking facilities,
or which may emanate electrical waves which shall impair radio or televisions
broadcasting or reception from or in the Building.
6. All plate and other glass now in the Leased Premises or Building
which is broken through cause attributable to TENANT, its officers, agents,
servants and employees, patrons, licensees, customers, visitors or invitees
shall be replaced by and at the expense of TENANT under the direction of
LANDLORD.
7. The plumbing facilities shall not be used for any purpose other than
that for which they are constructed, and no foreign substance of any kind shall
be thrown therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by TENANT, who
shall, or whose officers, employees, agents, servants, patrons, customers,
licensees, visitors or invitees shall have caused it.
8. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Premises or the Building, nor placed in the
walkways, driveways or parking areas without the prior written consent of
LANDLORD.
9. Glass panel doors, that reflect or admit light into the Premises
shall not be covered or obstructed by TENANT, and TENANT shall not permit,
erect, and/or place drapes, furniture, fixtures, shelving, display cases or
tables, lights or signs and advertising devices in front of or in proximity of
exterior windows, glass panels, or glass doors providing a view into the
interior of the Leased Premises unless same shall have first been approved in
writing by LANDLORD.
10. Canvassing, soliciting and peddling in the Building or parking
facilities is prohibited and each TENANT shall cooperate to prevent the same. In
this respect, TENANT shall promptly report such activities to the LANDLORD.
<PAGE>
11. The TENANT shall maintain the interior of the Leased Premises in a
clean and orderly condition as LANDLORD does not provide any janitorial service.
TENANT shall place all of its refuse in the dumpsters provided by the LANDLORD
in the areas so designated. TENANT shall not place items other than customary
office refuse in the dumpsters. TENANT shall not place packing materials,
crates, pallets and similar materials in the dumpsters. In the event TENANT must
dispose of crates, boxes, etc., it shall be the responsibility of TENANT to make
arrangements for disposal of same. In no event, shall TENANT set such items in
the walkways, driveways, or other common areas of Building or parking
facilities.
12. TENANTS shall be responsible for any damage to the Leased Premises,
including carpeting and flooring, as a result of rust or corrosion of file
cabinets, roller chairs, metal objects or spills of any type of liquid, beyond
normal wear and tear.
13. If the Premises demised to TENANT become infested with vermin,
TENANT, at its sole cost and expense, shall cause its premises to be
exterminated from time to time, to the satisfaction of LANDLORD, and shall
employ such extermination therefore as shall be approved by Landlord.
14. TENANT shall not install or place any antenna, aerial wires, aerial
or satellite dish of any type on the roof of the Building or elsewhere outside
of the Premises. Nor shall TENANT install any radio or television equipment, or
any other type of equipment, inside or outside the Building, without LANDLORD's
prior approval in writing, and upon such terms and conditions as may be
specified by LANDLORD in each and every instance.
15. TENANT shall not advertise the business, profession or activities
of TENANT in any manner which violates the letter of spirit of any code of
ethics adopted by any recognized association or organization pertaining thereto,
or use the name of the Building for any purpose other than that of the business
address of TENANT.
16. TENANT, its officers, agents, employees, servants, patrons,
customers, licensees, invitees and visitors shall not solicit business in the
Building's parking facilities or common areas, nor shall TENANT distribute any
handbills or other advertising matter in automobiles parked in the Building's
parking facilities.
17. TENANT shall not conduct its business in such manner as to create
any nuisance, or interfere with, annoy or disturb any other TENANT in the
Building, or LANDLORD in its operation of the Building or commit waste or suffer
or permit waste to be committed in the Leased Premises, Building or parking
facilities. In addition, TENANT shall not allow its officers, employees, agents,
servants, patrons, customers, licensees, and visitors to conduct themselves in
such a manner as to create any nuisance or interfere with, annoy or disturb any
other TENANT in the Building or LANDLORD in its operation of the Building or
commit waste or suffer or permit waste to be committed in the Leased Premises,
Building or parking facilities.
18. TENANT, its officers, employees, agents, servants, patrons,
customers, licensees, and visitors shall not bring, store or maintain any
flammable fluids or explosives on or into the Premises.
19. TENANT, its officers, employees, agents and servants shall not use
Leased Premises, Building or parking facilities for housing, lodging or sleeping
purposes or for the cooking or preparation of food.
20. TENANT, its officers, employees, agents, servants, patrons,
customers, licensees, visitors or invitees shall not bring into parking
facilities, Building or Leased Premises or keep on the Leased Premises any fish,
fowl, reptile, insect, or animal.
21. Neither TENANT nor any officers, employees, agents, servants,
patrons, customers, licensees, visitors or invitees of any TENANT shall go upon
the roof of the Building, other than to service the HVAC.
22. TENANT shall use only office machines and equipment that operate on
the Building's standard electric circuits, but which in no event shall overload
the Building's standard electric circuits.
2
<PAGE>
23. LANDLORD shall supply TENANT with hurricane shutters for the
Premises which TENANT shall store in the Premises. TENANT shall be responsible
for installation of the hurricane shutters in advance of any threatened
hurricane or tropical storm and for the removal of same after the threat or
storm passes. In the event that TENANT fails to promptly install the hurricane
shutters in advance of a threatened hurricane or tropical storm, LANDLORD may,
at its option but without any obligation to do so, install the hurricane
shutters on TENANT's Premises and charge TENANT a reasonable fee for such
installation as additional rent.
3
<PAGE>
GUARANTY OF LEASE
WHEREAS, a certain Lease, hereinafter referred to as the "Lease", of
even or approximate date herewith has been, or shall be, executed by and between
ANGLERS OFFICE PARK, INC., a Florida corporation doing business as Anglers
Corporate Center, therein and herein referred to as "LANDLORD", and TAKE TO
AUCTION.COM, INC., therein and herein referred to as "TENANT", with respect to
certain premises located at 5555 Anglers Avenue, Ft. Lauderdale, Florida 33312;
and
WHEREAS, LANDLORD under the Lease requires as a condition to its
execution of the Lease that the undersigned ("GUARANTOR") personally guaranty
the full performance of the obligations of TENANT under the Lease; and
WHEREAS, the undersigned is/are desirous that LANDLORD enter into the
Lease with TENANT,
NOW THEREFORE, in consideration of the execution of the Lease by
LANDLORD, and in consideration of other good and valuable considerations, the
receipt and adequacy of which are hereby acknowledged, the undersigned hereby
unconditionally guarantee(s) the full, faithful and punctual performance of each
and all of the terms, covenants, agreements and conditions of the Lease to be
kept and performed by TENANT, in accordance with and within the time prescribed
by the Lease, including, but not limited to, the payment of all rentals and
other charges to accrue thereunder. The undersigned further agrees as follows:
1. This covenant and agreement on its part shall continue in favor of
LANDLORD notwithstanding any extension, modification, amendment, or alteration
of the Lease entered into by and between the parties thereto, or their
successors or assigns, and notwithstanding any assignment of the Lease or
subletting thereunder, with or without the consent of LANDLORD, and no
extension, modification, amendment, alteration, or assignment or subletting of
the Lease, and no forbearance which may be granted to TENANT, and no waiver by
LANDLORD, and no other agreements between LANDLORD and TENANT (with or without
notice to or knowledge of the undersigned) shall in any manner release or
discharge the undersigned; and it does hereby consent thereto. This is an
absolute, unconditional and continuing guaranty of payment and performance and
not of collection.
2. This Guaranty shall continue unchanged by any bankruptcy,
reorganization or insolvency of TENANT or any successor or assignee thereof or
by any disaffirmance or abandonment by TENANT or a trustee of TENANT.
3. LANDLORD may, without notice, assign this Guaranty of Lease in whole
or in part and no assignment or transfer of the Lease shall operate to
extinguish or diminish the liability of the undersigned hereunder.
4. The liability of the undersigned under this Guaranty of Lease shall
be primary and in any right of action which shall accrue to LANDLORD under the
Lease, LANDLORD may, at its option, proceed against the undersigned without
having commenced any action, or having obtained any judgment, against TENANT.
5. The undersigned shall pay LANDLORD's attorney's fees, including
appellate fees and those incurred in bankruptcy proceedings, and all costs
incurred in any collection or attempted collection or in any negotiations
relative to the obligations hereby guaranteed or in enforcing this Guaranty of
Lease against the undersigned, individually and jointly.
6. The undersigned does hereby waive any and all notices and demands by
LANDLORD, including, but not limited to, default in the payment of rent or any
other amounts contained or reserved in the Lease.
7. The undersigned hereby waive: (a) notice of acceptance of this
Guaranty; (b) demand of payment, presentation and protest; (c) all right to
assert or plead any statute of limitations as to or relating to this Guaranty
and the Lease; (d) any right to require LANDLORD to proceed against TENANT or
<PAGE>
any other Guarantor or any other person or entity liable to LANDLORD; (e) any
right to require LANDLORD to apply to any default, any Security Deposit or other
security it may hold under the Lease; (f) any right to require LANDLORD to
proceed under any other remedy LANDLORD may have before proceeding against
Guarantor; and (g) any right of subrogation.
8. The undersigned does hereby subordinate all existing or future
indebtedness of TENANT to Guarantors to the obligations owed to LANDLORD under
the Lease and this Guaranty.
9. The obligations of TENANT under the Lease to execute and deliver
estoppel statements and financial statements, as therein provided, shall be
deemed to also require the Guarantor hereunder to do so and provide the same
relative to Guarantor(s).
10. The use of the singular herein shall include the plural. The
obligation of two (2) or more parties shall be joint and several. The terms and
provisions of this Guaranty shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties herein named.
11. The undersigned acknowledge that this Guaranty is entered into in
Broward County, Florida and stipulate to venue in all legal actions in
connection herewith in the State Courts in Broward County, Florida. This
Guaranty shall be deemed to have been made under and shall be governed by the
Laws of the State of Florida in all respects, including matters of construction,
validity and performance. No modification of the provisions of this Guaranty
shall be effective unless the same shall be in writing and signed by LANDLORD.
12. Notwithstanding anything to the contrary contained herein, the
maximum liability of GUARANTOR under this Guaranty shall be limited to
$75,000.00, plus interest, costs and attorneys fees. Further, on each
anniversary date of the Lease, the maximum liability of GUARANTOR hereunder
shall be reduced by $15,000.00, not including interest, costs and attorneys
fees.
13. GUARANTOR AND LANDLORD HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION BASED UPON THE LEASE, THIS GUARANTY OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THE LEASE OR THIS GUARANTY, INCLUDING ANY ACTION,
PROCEEDING OR COUNTERCLAIM IN CONNECTION THEREWITH. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LANDLORD ENTERING INTO THE LEASE.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed as of this day of December, 1999.
GUARANTOR:
PERFUMANIA, INC.
a Florida corporation
By: /s/ Ilia Lekach
--------------------
Ilia Lekach, President
/s/ Albert Friedman
-------------------
Witness
(This Guaranty of Lease must be completed in full prior to submission
to LANDLORD for execution.)
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