Florida-Palm Beach Gardens-The Wackenhut Center Lease - Daniel S. Catalfumo and The Wackenhut Corp.
REFERENCED DATA
Any reference in this lease to the following subjects shall incorporate
therein the data stated for the subject(s) in this Section:
DATE OF LEASE April 18, 1995
LANDLORD: Daniel S. Catalfumo, as Trustee
under F.S. 689.071
LANDLORD'S ADDRESS: 1540 Latham Road, WPB, FL 33409
TENANT: The Wackenhut Corporation
TENANT'S ADDRESS: 1500 San Remo Avenue
Coral Gables, FL 33416-3036
DEMISED PREMISES: Ninety Thousand Five Hundred
(90,500) square feet on the second
through fourth (2nd - 4th) floors
and a portion of the first floor of
the Building. For all purposes
hereof the Building shall be deemed
to contain Ninety-four Thousand
Nine Hundred Fifty-six (94,956)
square feet (the "Building Area").
LEASE TERM: Fifteen (15) Years.
ESTIMATED DATE OF SUBSTANTIAL
COMPLETION: January 16, 1996
RENTAL COMMENCEMENT DATE: February 15, 1996
EXPIRATION DATE OF LEASE
TERM: February 28, 2001
ANNUAL RENTAL: One Million Seven Hundred
Sixty-Four Thousand Seven Hundred
Fifty Dollars and 00/100
($1,764,750.00) calculated at the
rate of $19.50 per square foot.
TENANT'S PROPORTIONATE SHARE: 94.98%
PERMITTED USES: General Business and Office Use
SECURITY DEPOSIT: N/A
OPTIONS TO RENEW: Three (3) Five (5) year options
WITNESSES: LANDLORD:
------------------------------- --------------------------------
DANIEL S. CATALFUMO, as Trustee
------------------------------- under F.S. 689.071
TENANT:
------------------------------- THE WACKENHUT CORPORATION
By:
-----------------------------
Senior Vice-President
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OFFICE LEASE
THIS LEASE made and entered into as of the 18th day of April, 1995 by
and between DANIEL S. CATALFUMO, AS TRUSTEE UNDER F.S. 689.071, (hereinafter
referred to as "Landlord") and THE WACKENHUT CORPORATION (hereinafter referred
to as "Tenant").
W I T N E S S E T H:
1. DEMISED PREMISES.
A. Landlord is or will become the owner of a 7.7 acre tract of land
(the "Land") situated adjacent to I-95 at the corner of RCA Boulevard and
Northcorp Parkway, in Palm Beach Gardens, Florida, more particularly described
in Exhibit "A" attached hereto. Landlord shall construct upon said Land a four
(4) story building to be known as "The Wackenhut Center" (hereinafter referred
to as the "Building"), together with two (2) other office buildings (the
"Adjacent Buildings") surrounding parking areas and driveways (collectively
called the "Parking Facilities") and curbs and sidewalks all as located on the
Site Plan attached hereto as Exhibit "B". The Land, along with the Building,
Adjacent Buildings, Parking Facilities and all other improvements presently or
hereafter located upon the Land, are hereinafter collectively referred to as the
"Property". Landlord agrees that the aggregate square footage of the Building
and Adjacent Buildings shall not exceed One Hundred Twenty-Five (125,000) square
feet subject to the expansion provision contained in Paragraph 47.
B. Landlord, for the term and subject to the provisions and conditions
hereof, shall lease to Tenant, and Tenant shall accept from Landlord, certain
space more particularly described by the cross-hatched area on the floor plans
annexed hereto as Exhibit "C", which for all purposes hereof shall be deemed to
contain Ninety Thousand Five Hundred (90,500) square feet consisting of all of
the second through fourth (2nd - 4th) floors and a portion of the first floor of
the Building, (the "Demised Premises"), together with an exclusive license for
the duration of the term of the Lease to use the parking spaces (the "Parking
Spaces") described in the Parking Space Schedule attached hereto as Exhibit "D",
for parking of the passenger vehicles and service vans of Tenant and Tenant's
invitees and employees and for no other purpose. Upon the Leasehold Improvements
Completion Date as hereinafter defined, Landlord and Tenant shall promptly
execute a revision to the Referenced Data containing the actual square footage
(which square footage of the Demised Premises shall be the Building Area less
1,500 square feet for which Tenant shall not be obligated to pay Rent and less
the portion of the Building not leased by Tenant pursuant to its Expansion and
Contraction Rights as defined below, which calculation shall be subject to the
reasonable verification of Tenant's architect) the actual Rent to be paid
hereunder and the actual Tenant Improvement Allowance (as hereafter defined).
The revised Referenced Data shall be incorporated into this Lease automatically
upon execution by the Parties. Tenant shall have the right to increase the
square footage of the Demised Premises by any amount up to the entire Building
Area, or decrease the square footage of the Demised Premises on the first floor
of the south portion of the Building by any amount up to 8,677 square feet (the
"Expansion and Contraction Rights"). Tenant shall be entitled to exercise its
Expansion and Contraction Rights up until such time as Tenant has provided
Landlord with its Preliminary Interior Plans (as defined in Paragraph 3.A.)
pursuant to Paragraph 3.A. If Tenant elects to change the square footage of the
Demised Premises, then in such event, the Annual Rent, Tenant's Proportionate
Share, the amount of the Tenant Improvement Allowance (as hereafter defined),
and the actual square footage of the Demised Premises shall be modified upon the
Leasehold Improvements Completion Date. Any space in the Building which is not
leased by Tenant ("Remaining
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Space") shall be on the first floor of the south portion of the Building in a
reasonably leasable configuration. Tenant agrees that landlord may access any
such Remaining Space through Tenant's lobby at no expense to Landlord, or its
other tenants, except for the cost of any hallway required to be constructed by
Landlord to access the Remaining Space. Tenant shall have the right to approve
the location, size and appearance of any such hallway, which approval shall not
be unreasonably withheld. No portion of any hallway required to access the
Remaining Space shall be included in the Demised Premises. If the area of the
Remaining Space is more than 3,500 square feet, then the area of the lobby for
which Tenant is paying Rent shall be reduced in proportion to the relative
square footages of the Remaining Space and the Demised Premises to account for
the shared use of the lobby. For example, if the area of the Remaining Space is
4,000 square feet, the area of the Demised Premises is 90,956 square feet, the
Building Area is 94,956 square feet and the area of the lobby is 1,728 square
feet, then the portion of the lobby for which Tenant shall not pay Rent will be
72.79 square feet (4,000/94,956 x 1,728 = 72.79).
C. The Demised Premises shall be used for general business and office
purposes, including, but not limited to conference and computer facilities,
employee kitchen and lounge facilities, and any other legally permitted uses
under applicable laws, regulations and restrictions recorded among the Public
Records of Palm Beach County as of the date hereof, or as hereafter consented to
or created by Tenant and for no other purposes.
D. The use and occupation by Tenant of the Demised Premises shall
include the non-exclusive use (except for the exclusive parking spaces assigned
to Tenant pursuant to the Parking Space schedule), in common with other tenants
of the Building of the common facilities, employees' parking areas, service
roads, loading facilities, sidewalks and customer car parking areas
(collectively the "Common Areas") as such Common Areas now exist or as such
Common Areas may hereafter be constructed, and other facilities as may be
designated from time to time by Landlord, subject however to the terms and
conditions of this agreement and to the Rules and Regulations (as hereafter
defined) for the use thereof as prescribed from time to time by Landlord.
2. TERM.
A. This Lease shall be effective upon execution by Landlord and Tenant
and the term of this Lease shall commence on the Rental Commencement Date and
end at 12:00 midnight on the last day of the month in which the fifteenth (15th)
anniversary of the Rental Commencement Date occurs, unless sooner terminated as
herein provided. The "Rental Commencement Date", shall be February 15, 1996,
provided that Landlord has "delivered" the Demised Premises over to Tenant for
the installation of Tenant's furniture and systems on or before January 16, 1996
(the "Leasehold Improvements Completion Date"). For the purposes of this
Paragraph 2, the term "delivered" or "delivery of the Demised Premises", shall
mean that possession of the Demised Premises has been turned over to Tenant
ready for the installation of Tenant's furniture and systems with (1) at least
one elevator servicing the Demised Premises available for use by Tenant; (2)
reasonable access and reasonable facilities necessary for the conduct of
Tenant's business in the Demised Premises, including, corridors, elevators,
stairways, toilets, heating, ventilating, air conditioning, water, plumbing,
public area lighting and electrical power facilities, all properly installed in
accordance with all applicable building codes and in good working order; (3) all
facilities serving the Building and passing through the Demised Premises shall
have been completed; (4) the exterior of the Building shall be substantially
completed and enclosed, including all windows with the remaining work to be done
in the Building to be of such a nature so as to not materially interfere with
Tenant's installation of its furniture and systems,
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and, upon completion thereof, its normal use and occupancy of the Demised
Premises for the conduct of its business. Landlord and Tenant acknowledge that,
subject to Landlord meeting the foregoing conditions with respect to delivery of
the Demised Premises, Landlord may be working on completing the Demises
Premises, Building and Parking Facilities between January 16, 1996 and February
15, 1996, provided that by February 15, 1996, in addition to all of the
foregoing conditions with respect to delivery of the Demised Premises, Landlord
shall have obtained all required governmental approvals and inspections which
are necessary, when taken together with the work to be performed by Tenant, to
allow Tenant to lawfully occupy the Demised Premises and Landlord shall have
complied with all legal requirements which are necessary for Tenant to use the
Demised Premises for the conduct of its business (provided Tenant applies for
and obtains its occupational licenses from the appropriate authorities) The
determination as to whether or not the Demised Premises have been "delivered" as
defined above shall be made jointly by Tenant's architect and the architect of
record who prepared and sealed the Interior Plans and Specifications after
consultation and a joint inspection of the Building using their reasonable
judgment. If Landlord delivers the Demised Premises to Tenant for the
installation of Tenant's furniture and systems after January 16, 1996, or if
Landlord fails to complete before February 15, 1996, any work being performed
after January 15, 1996, as described above the Rental commencement Date shall be
that day which is thirty (30) days after landlord has delivered the Demised
Premises to Tenant ready for the installation of Tenant's furniture and systems
or completed any of Landlord's remaining work as applicable. If Tenant occupies
any portion of the Demised Premises for purposes of conducting its business
prior to the date which would otherwise be calculated to be the Rental
Commencement Date pursuant to this paragraph, Tenant shall immediately commence
paying Rent on the portion of the Demised Premises so occupied. If Catalfumo
Construction, Inc. performs the Leasehold Improvements and Landlord fails to
deliver the Building and Demised Premises in the condition required above by
January 16, 1996, Landlord shall provide Tenant with two (2) days of Rent
abatement for every day of delay, said Rent abatement to commence on the Rental
Commencement Date.
B. If Tenant elects to have a contractor other than Catalfumo
Construction, Inc. construct the Leasehold Improvements, Rent shall be payable
commencing on February 15, 1996, regardless of whether or not the Leasehold
Improvements are completed or whether or not Tenant has occupied the Demised
Premises, provided that Landlord has turned over the first and second floors of
the Building to Tenant ready for the Tenant's selected contractor to immediately
commence construction of Tenant's Leasehold Improvements on or before October
15, 1995 and the balance of the Demised Premises by November 15, 1995
(respectively, the "Core Building Completion Dates"). If Tenant elects to have a
contractor other than Catalfumo Construction, Inc. construct the Leasehold
Improvements and Landlord fails to deliver the Completed Core Building (as
hereinafter defined) to Tenant ready for Tenant's selected contractor to
commence work by November 15, 1995, the Rental Commencement Date shall be that
date which is ninety (90) days after Landlord has delivered the Completed Core
Building and Tenant shall be provided with two (2) days of Rent abatement for
every day of delay with said abatement to commence on the Rental Commencement
Date. The term "Completed Core Building" shall mean that Landlord has completed
the core and shell and the remainder of the Building to the extent necessary
such that Tenant can, based upon reasonable joint determination of Landlord's
and Tenant's architects, arrived at after consultation and a joint inspection of
the Building, commence and carry on the Leasehold Improvements (as defined in
Paragraph 3.A.), using all necessary trades, including non-union laborers and
contractors; provided, however, that in no event shall the Core Building
Completion Date be deemed to have occurred until: (1) temporary power is
available to each floor; (2) the portion of the Demised Premises to be turned
over is water
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tight; (3) Tenant and its agents have safe access to the applicable portion of
the Demised Premises for themselves, their employees and invitees and, given
consideration to ongoing construction activities, such access is reasonably
clear, convenient and sufficient to permit Tenant to commence and carry on the
work on the Leasehold Improvements in accordance with good construction
practices. within 11 days of the Core Building Completion Date, Tenant shall
walk through the Building and prepare a "punch list" of items which are
incomplete or do not comply with the Building Plans and Specifications.
C. In no event shall Rent commence to be due unless there is available
to the Demised Premises: (1) required utility services, (2) elevator service
servicing the Demised Premises and (3) the completion of the parking spaces
serving the Demised Premises.
D. Anything in Paragraph 2.A. and B. to the contrary notwithstanding,
if Landlord fails to perform by the core Building or Leasehold Improvements
Completion Dates as applicable and such failure was in fact caused by any of the
following, Rent shall commence as if the delay had not occurred and the deadline
dates for the delivery of the Completed Core Building or Leasehold Improvements,
as applicable shall be extended by the number of days of delay, provided
Landlord shall have given Tenant prompt written notice of any delays which may
be caused by Tenant as provided in Paragraph 3.A.:
(1) material changes in the work to be performed by Landlord
in readying the Demised Premises for Tenant's occupancy, which are requested by
Tenant after approval of the Interior Plans and Specifications for the Leasehold
Improvements (as those terms are defined in Paragraph 3 hereof); or
(2) any failure by Tenant, to furnish any required plan,
information (including, without limitation, any material, furnishings,
equipment, color or other selection) approval or consent within the required
period of time; or
(3) the performance or non-performance of any work or activity
in the Demised Premises by Tenant or any of its employees, agents or
contractors.
E. If Landlord has not delivered the Demised Premises to Tenant by
April 15, 1996, if Catalfumo Construction, Inc. is performing the Leasehold
Improvements, or if Catalfumo Construction, Inc. is not performing the Leasehold
Improvements and Landlord has not delivered the Completed Core Building to
Tenant ready for Tenant's selected contractor to commence the Leasehold
Improvements as described in Paragraph 2. by February 15, 1996, then, and only
then, Tenant shall be entitled to terminate this Lease by providing written
notice of its election within fifteen (15) days thereafter, failing which,
Tenant shall be deemed to have elected not to terminate this Lease, provided
however, any election by Tenant not to terminate this Lease pursuant to this
Paragraph 2.E., shall not be deemed a waiver or modification of Tenant's right
to receive the Rent Abatement provided above or any other right or remedy
available to Tenant by reason of such failure by Landlord.
F. Upon delivery of the Demised Premises to Tenant for the installation
of Tenant's furniture and systems it shall be presumed that all work theretofore
performed by or on behalf of Landlord was satisfactorily performed in accordance
with and meeting the requirements of this Lease, excepting any items covered by
Landlord's construction warranty, punch list items or latent defects in work
performed by Catalfumo Construction, Inc. Tenant shall provide Landlord with a
"Punch List" of items, which are incomplete or do not comply with the Interior
Plans and Specifications (as hereinafter defined) as soon as practicable
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after Tenant takes possession of the Demised Premises, but in any event, prior
to sixty (60) days from the date of possession.
G. When the Rental Commencement Date has been established, if the
Rental Commencement Date is different from that presently set forth in the
Referenced Data, Landlord and Tenant shall execute a revision to the Referenced
Data setting forth the actual Rental Commencement Date and the actual Expiration
Date.
H. Landlord shall obtain a building permit from the City of Palm Beach
Gardens for the construction of the Building by April 30, 1995. on or before
July 15, 1995, Landlord will send Tenant a notice confirming that the Core
Building Completion Dates are October 15, 1995, for the first two floors and
November 15, 1995 for the remainder of the Building, or specifying that the Core
Building Completion Dates will be delayed beyond such dates. In the latter
event, Landlord will notify Tenant at least sixty (60) days prior to the new
dates anticipated as the Core Building Completion Date. In the event Landlord
fails to send the required notice on or before July 15, 1995, then Landlord
shall be deemed to have confirmed the Core Building Completion Dates set forth
herein. Landlord agrees to update previous notices to Tenant as changing
circumstances may require. These notices shall be given to facilitate Tenant's
scheduling only and Landlord shall have no liability for the failure to give
said notices or for the inaccuracy of said notices beyond the specific rights
and remedies set forth in this Paragraph 2. From and after the date hereof until
the second of the Core Building Completion Dates (at which time Tenant shall
have complete access to the Demised Premises), Tenant and its agents shall be
permitted to inspect the progress of Landlord's work on the Building at
reasonable times on reasonable notice to Landlord's designee (until further
notice Landlord's designee shall be Daniel S. Catalfumo). Any such inspection
shall be made at Tenant's sole risk and expense. Upon request of Tenant,
Landlord shall provide Tenant with oral reports on the progress of Landlord's
work and copies of Landlord's construction schedule and the updates thereof.
I. For purposes of Tenant's entitlement to the Rent abatement in the
event the Completed Core Building or the Demised Premises (as applicable) are
not delivered on the dates specified in Sub-Paragraphs 2(A) and 2(B) above,
Landlord hereby waives any right to assert Force Majeure (pursuant to Paragraph
37), impossibility of performance or any other similar basis, in law or equity,
to relieve Landlord of its obligation to grant Tenant the Rent abatement as
aforesaid.
3. CONSTRUCTION OF BUILDING AND LEASEHOLD IMPROVEMENTS.
A. Upon execution of the Lease, Landlord shall construct the Building
in accordance with architectural and engineering drawings and specifications
(the "Building Plans and Specifications") prepared by Landlord's architect and
attached hereto as Exhibit "E". No material alterations or substitutions of
materials from the Buildings Plans and Specifications shall be made by Landlord
without the prior written consent of Tenant which shall not be unreasonably
withheld or delayed. In addition, Landlord has provided Tenant with copies of
the elevations and Site Plan for the Adjacent Buildings, prepared by
Oliver-Glidden & Partners dated March 14, 1995, which have been reviewed and
approved by Tenant. If Tenant requests any changes to the Building Plans and
Specifications or the Site Plan for the Property which require Landlord to seek
amendments or reapproval by the City of Palm Beach Gardens, or would delay the
development of the Property or construction of the Building and Demised
Premises, Landlord shall be granted a day for day extension of the dates to
deliver the Demised Premises or the Completed Core Building as applicable as set
forth in paragraph 2 above. Upon receipt of a request from Tenant for any such
changes causing a delay, Landlord shall provide Tenant with a written notice of
the delay which will be caused by the change and Tenant shall then elect within
three (3) business days whether or not to proceed with the change. If Tenant
requests any change which would cause an increase in the cost of
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construction of the Building or development of the Property, Tenant shall be
required to pay the actual cost of said change without mark-up for profit (but
with a mark-up for overhead) upon receipt of Landlord's invoice therefor.
Landlord shall provide Tenant with written notice of the increase in cost and
Tenant shall have three (3) business days to elect whether or not to proceed
with the change. Tenant shall have a space plan, interior design plan, finish
schedules and architectural sketches (the "Preliminary Interior Plans") of the
proposed Leasehold Improvements to the demised premises prepared and submitted
to landlord on or before July 1, 1995, said preliminary interior plans to
include the items set forth on exhibit "F", be complete and ready for
Landlord's, architect and engineer to prepare the Interior Plans and
Specifications (as defined below). Landlord shall provide Tenant with an
allowance of $.83 per square foot of the Demised Premises to be used by Tenant
to defray a portion of the costs for preparation of the Preliminary Interior
Plans. This allowance shall be payable to Tenant as and when Tenant incurs
architectural and engineering costs in the preparation of the Preliminary
Interior Plans. Within forty-five (45) days of receipt of the Preliminary
Interior Plans, Landlord shall have permit sets of working architectural and
engineering drawings in sufficient detail for processing permits and bidding
purposes prepared in accordance with the Preliminary Interior Plans (the
"Interior Plans and Specifications"). The Interior Plans and Specifications
shall be subject to Tenant's architect's reasonable review and approval.
Tenant's architect shall review and approve or disapprove the Interior Plans and
Specifications within Ten (10) days of receipt of same from Landlord and any
revisions to the Interior Plans and Specifications within three (3) days of
receipt of same from Landlord. The improvements to be made to the Demised
Premises pursuant to the Interior Plans and Specifications shall be referred to
herein as the "Leasehold Improvements." Upon completion of the Interior Plans
and Specifications, Landlord and Tenant shall mutually select three (3) general
contractors, including Catalfumo Construction, Inc., to bid on the construction
of the Leasehold Improvements. Tenant shall have the right to select the general
contractor to complete the construction of the Leasehold Improvements. If Tenant
selects Catalfumo Construction, Inc., Tenant shall notify Landlord within thirty
(30) days of receipt of the Interior Plans and Specifications. If Tenant selects
a contractor other than Catalfumo Construction, Inc., Landlord will provide, at
no additional cost to Tenant, all reasonable building services during
construction of the Leasehold Improvements on an as available basis, including
use of elevators, delivery docks and parking to aid in the construction of the
Leasehold Improvements. Landlord shall not charge any administration or
management fees with respect to the construction of the Leasehold Improvements.
if Landlord has previously purchased and stored building materials to be used
for the Leasehold Improvements, which are in excess of Landlord's requirements
for construction of the Building, Tenant shall be permitted to purchase said
materials at Landlord's original out-of-pocket cost with no additional mark-up
by Landlord or Landlord's contractor for profit, overhead or supervision with
respect to said excess building materials.
B. Landlord shall provide Tenant with an improvement allowance (the
"Improvement Allowance"), which shall be applied first to the cost of obtaining
required permits for, and completing the construction of, the Leasehold
Improvements, with any remaining portions of the Improvement Allowance to be
applied to Tenant's costs of relocation into the Demised Premises, including,
but not limited to, telephone and computer cabling, furniture, security systems,
moving costs, or any other costs and expenses as Tenant may elect. The
Improvement Allowance shall be in an amount equal to Thirty-Five and 58/100
Dollars ($35.58) multiplied times the square footage (as determined in
accordance with Paragraph 1.B.) shown in the Interior Plans and Specifications
approved by Tenant and Landlord. Landlord shall disburse the Improvement
Allowance toward the Leasehold Improvements in accordance with the following
conditions: (i) prior to commencement of any work, Landlord and Tenant shall
have approved the Interior Plans and Specificiations for such work as provided
in Paragraph 3.A. above; (ii) the
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Interior Plans. and Specifications shall meet all requirements of Palm Beach
County, Florida and other local governmental authorities having jurisdiction
over the work; (iii) disbursements shall be made at least once in each month by
Landlord in an amount which, when added to all previous amounts paid hereunder,
shall not exceed 90% of the cost of the work performed with respect to "hard"
costs (95% once not less than 50% of a particular contract has been completed
and 100% once all of the work under a particular contract has been completed,
provided Landlord's construction lender approves this disbursement procedure)
and 100% of the cost of the work performed with respect to all other costs and
materials purchased no later than the 10th day of the month, provided Landlord
shall have received on or before the 20th day of the preceding month an AIA Form
G702/3 from Tenant's architect (subject to verification of same by Landlord and
Landlord's construction lender), containing a certification of (a) the stage of
completion, (b) the estimated cost of completion, (c) the cost of the work and
materials incorporated in the Demised Premises to date, and (d) an estimate of
the cost of all remaining work and materials and of the performance of the work
in accordance with the Interior Plans and Specifications for the Leasehold
Improvements. In the event the above certification is received after the 20th
day of the month, the disbursement with respect thereto shall be made
concurrently with Landlord's next draw request to its lender but in any event,
on or before the 30th day of the following month; (iv) each request for
disbursement shall be accompanied by waivers of lien with respect to work on the
Building paid for out of prior disbursements signed by, as appropriate, all
architects, engineers, contractors, mechanics and designers to be paid out of
the proceeds thereof, or with respect to which a reimbursement of payment is
being submitted, provided that if any such waiver(s) cannot be obtained,
Landlord and Landlord's construction lender will accept Tenant's indemnification
with respect thereto; and to the extent that the Improvement Allowance is not
exhausted upon completion of the work in accordance with the Interior Plans and
Specifications, Landlord shall, at Tenant's request, disburse the balance of the
Improvement Allowance to Tenant, and Tenant shall not thereafter be required to
account to Landlord for the balance of the Improvement Allowance so disbursed to
Tenant. Tenant shall be responsible for the cost of the Leasehold Improvements
and Tenant's costs of relocation, to the extent that they exceed the Thirty-Five
Dollars ($35.00) per square foot Improvement Allowance.
C. Intentionally Omitted.
4. RENT.
A. Tenant shall pay as minimum rent for the Demised Premises the sum of
one Million Seven Hundred Sixty-Four Thousand Seven Hundred Fifty and 00/100
($1,764,750.00) annually which is Nineteen and 50/100 Dollars ($19.50) per
square foot of area as determined in accordance with Paragraph l.B. (the "Annual
Rental"). Such Annual Rental shall be payable during the term hereof, in
advance, in equal monthly installments, together with all sales, use or other
Taxes based thereon (including, but not limited to the tax imposed by Florida
Statutes 212.031), and any other state, federal or other governmental or quasi
governmental tax, service tax, license fee or other imposition levied on the
Rents received by Landlord, all of which shall collectively be referred to
hereafter as "Sales Tax". The first monthly installment of Annual Rental shall
be payable on the Rental Commencement Date and payment of monthly installments
of Annual Rental shall continue to be payable on the first (1st) day of each
successive month thereafter during the Term hereof. The monthly installments
shall be One Hundred Forty-seven Thousand Sixty-two and 50/100 ($147,062.50)
plus Sales Tax.
B. In addition to the Annual Rental, Tenant shall, upon written notice
from Landlord in accordance with Paragraph 5, pay any sums required to be paid
by Tenant for any calendar year pursuant to Paragraph 5 together with applicable
Sales Tax on all of the above and all other sums which are due to landlord under
the terms of this Lease (all such sums being hereinafter collectively referred
to as "Additional Rent"). The Annual Rental and
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Additional Rent are hereinafter sometimes collectively referred to as "Rent".
C. If the Rental Commencement Date occurs on a day other than the
first (1st) day of the month, Rent from the Rental Commencement Date until the
first (1st) day of the following month shall be prorated (calculated on the
basis of a thirty (30) day month) and shall be payable upon the Rental
Commencement Date.
D. All sums payable by Tenant under this Lease, whether or not stated
to be Annual Rental or Additional Rent, shall be collectible by Landlord as
Rent, and in the event of a default in payment thereof, Landlord shall have the
same rights and remedies as for a failure to pay Annual Rental (without
prejudice to any other right or remedy available therefor).
E. If Landlord, at any time or times, shall accept said Rent after same
shall become due and payable, such acceptance shall not excuse delay upon
subsequent occasions, or constitute, or be construed as, a waiver of any of
Landlord's rights hereunder.
F. All Rent and other sums due to Landlord hereunder shall be payable
without demand, deduction, set-off, or counterclaim (except for any right of
set-off which may be expressly set forth in this Lease) at the office address of
Landlord first above given, or at such other address as Landlord may designate,
from time to time, by written notice to Tenant.
5. TENANT'S RESPONSIBILITY FOR OPERATING EXPENSES
A. For and with respect to each calendar year (and any portion thereof)
during the term of this Lease (and any renewals or extensions thereof), after
calendar year 1996, Tenant shall pay to Landlord, as Additional Rent, an amount
equal to Tenant's Proportionate Share of the amount by which the amounts paid by
Landlord for Taxes (as defined below), electric and insurance exceed $1.35,
$1.50 and $.15 per square foot respectively (the "Excess Operating Expenses").
If at any time during the term of this Lease the amounts paid by Landlord for
Taxes, electric or insurance for any calendar year are less than the base
amounts set forth in the preceding sentence, then the Rent shall be reduced by
the amount by which the actual cost for said expense item is less than the
applicable base figure. In addition, Tenant shall not be required to pay any
Excess Operating Expenses for Taxes which is are a direct result of a sale or
transfer of Landlord's interest in the Building or Property, or the placement of
a mortgage on the Building in excess of the then current market value of the
Building. In such event, the base amount for Taxes set forth in this paragraph
shall be increased by the amount of the increase in the Taxes caused by the
sale, transfer or mortgage. Tenant's Proportionate Share of such Excess
Operating Expenses shall be paid in accordance with the following procedure:
Within 120 days after the end of each calendar year, Landlord shall
furnish to Tenant a written statement (the "Expense Statement") setting forth
the amount, if any, due from Tenant as a result of Excess Operating Expenses in
the amounts paid by Landlord for Taxes, electric and insurance calculated
pursuant to this Paragraph. Tenant's Proportionate Share of any such Excess
Operating Expenses shall be paid by Tenant with thirty (30) days of receipt of
the Expense Statement. For the purposes of this Paragraph, the term "Taxes"
shall be defined as all real estate taxes and assessments, ad valorem or
otherwise, transit Taxes, and any other federal, state, city, county or other
local governmental or quasi-governmental charges or charges by any school,
drainage, waste management, or other special improvement or service district, or
other public entity granted the power to assess the Property whether directly on
the ad valorem tax bill or otherwise, (but not including income taxes or any
other Taxes imposed upon or measured by Landlord's income or profits, unless the
same shall be imposed in lieu of real estate taxes or limited solely to income
from real property), general or special, ordinary or extraordinary, foreseen or
unforeseen, which may now or hereafter be levied, assessed or
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imposed upon the Property or with respect to the ownership thereof, excluding
the Taxes assessed against the Adjacent Buildings and excluding a prorated
portion of the Taxes assessed against the land which shall be determined by
multiplying the total Taxes assessed against the Land by a fraction, the
numerator of which shall be the number of gross square feet contained in the
Adjacent Buildings only and the denominator of which shall be the number of
gross square feet contained in all of the buildings located on the Land or if
the Adjacent Buildings are not constructed, then the denominator shall be one
hundred twenty-five thousand (125,000) square feet plus the area of any square
footage, if any, contained in the Proposed Building Expansion as defined in
Paragraph 47. Taxes shall also include any personal property taxes imposed upon
the furniture, fixtures, machinery, equipment, apparatus, systems and
appurtenances in proportion to the extent used in connection with the Building
for the operation thereof. If, due to a future change in the method of taxation,
any franchise, income, profit or other tax, however designated, shall be levied,
assessed or imposed in substitution, in whole or in part, for (or in lieu of)
any tax which would otherwise be included within the definition of Taxes, such
other tax shall be deemed to be included within Taxes as defined herein, Taxes
shall also include all of Landlord's expenses, including, but not limited to,
attorney's fees incurred by Landlord in any effort to minimize Taxes; provided,
however, that Landlord shall have no obligation to undertake any contest,
appeal or other procedure to minimize Taxes. Taxes shall be calculated taking
advantage, of the maximum possible discount. Tenant shall have the right (but
not the obligation) to contest the amount or validity of the Taxes which the
Tenant is required to pay hereunder, and for that purpose, the Tenant shall have
the right to file in the name of the Landlord all such protests or petitions and
to institute and prosecute such proceedings as the Tenant may deem necessary for
the purpose of such contest. Except as hereinafter provided, in the event a
refund of Taxes previously paid is obtained as a result of such contest by
Tenant, Tenant shall pay the cost of prosecuting such contest. If payment of
some or all of the Taxes is necessary in order to avoid penalties or interest
accruing thereon, Tenant shall pay its proportionate share of such Taxes, and
Landlord shall pay the balance thereof prior to such protest or proceeding. Any
refund of any Taxes relating to periods during the Term of the Lease shall be
applied first to reimburse or pay actual expenses incurred in connection with
the tax contest or appeal and next to Landlord and Tenant in proportion to the
amount of Taxes each has previously paid for the tax periods on which the refund
is based. Tenant shall be entitled to audit the items included in the Additional
Rent for a period of two (2) years after the end of each calendar year. Landlord
shall maintain and make available to Tenant upon reasonable notice, the
supporting information used to calculate the Additional Rent. Landlord shall
either credit any overpayments discovered by Tenant's audit to the next payments
of Rent coming due under the Lease, or if no further payments of Rent are due
under the Lease, Landlord shall promptly repay the overpayment to Tenant.
Notwithstanding anything to the contrary contained hereinabove, Taxes shall not
include any maintenance fees or regular or special assessments imposed by the
RCA Boulevard Drainage Association, Inc. or otherwise pursuant to that certain
Declaration of Protective Covenants, Restrictions, Reservations and Servitude
recorded in ORB 7105 at Page 1765 of the Public Records of Palm Beach County as
the same may be hereafter amended.
6. SECURITY DEPOSIT. Intentionally Omitted.
7. TENANT'S COVENANTS. Tenant agrees, on behalf of itself, its employees and
agents, that it shall:
A. Comply at all times with any and all Federal, state, and local
statutes, regulations, ordinances and other requirements of any applicable
public authorities relating to its use and occupancy of the Demised Premises and
as provided in Paragraph 52 hereof.
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B. Provide Landlord access to the Demised Premises at all reasonable
times during normal business hours, without charge or diminution of rent, to
enable Landlord: (1) to examine the same and to make such repairs, additions and
alterations as Landlord may be permitted to make hereunder to the Demised
Premises or any other portion of the Property or any part thereof; and (2) upon
reasonable notice, to show the Demised Premises to any prospective mortgagees
and purchasers, and, during the twelve (12) months prior to expiration of the
term of this Lease or any renewal term, to prospective tenants. Landlord shall
give Tenant reasonable prior notice of its need for access to the Demised
Premises, except in cases of emergency, and shall be accompanied at all times by
Tenant's representatives. Landlord shall use its best efforts to minimize any
disruption of Tenant's operations. Notwithstanding anything to the contrary
contained herein, Landlord shall not enter any of the Demised Premises in such a
fashion that Landlord's entry would jeopardize Tenant's governmental security
clearance status required to conduct its operations.
C. Tenant shall commit no waste in or upon the Demised Premises.
D. Upon the termination of this Lease for any reason whatsoever, remove
Tenant's goods, trade fixtures and effects and those of any other person
claiming under Tenant, and quit and deliver up the Demised Premises to Landlord
peaceably and quietly in as good order and condition as at the inception of the
term of this Lease or as the same hereafter may be improved by Landlord or
Tenant, reasonable use and wear thereof, damage from fire and other insured
casualty and repairs which are Landlord's obligation excepted. Goods and effects
not removed by Tenant at the termination of this Lease, however terminated, upon
five (5) days written notice from Landlord shall be considered abandoned and
Landlord may dispose of and/or store the same as it deems expedient, the
reasonable cost thereof to be charged to Tenant.
E. Not place signs on the Demised Premises except in accordance with
sign criteria approved by Landlord and the City of Palm Beach Gardens, and in
accordance with the provisions of Paragraph 42 of this Lease.
F. Not overload, damage or deface the Demised Premises or do any act
which might make void or voidable any insurance on the Demised Premises of the
Building and/or the Property or which may render an increased or extra premium
payable for insurance (and without prejudice to any right or remedy of Landlord
regarding this Subparagraph, Landlord shall have the right to collect from
Tenant, upon demand, any such increased or extra premium).
G. Not make any alteration of or addition to the Demised Premises
without the prior written approval of Landlord, which shall not be unreasonably
withheld or delayed. No consent shall be required from Landlord for alterations,
the aggregate cost of which do not exceed $10,000, provided that such
alterations are not structural or do not result in material modifications to the
Buildings main systems (i.e. HVAC, electrical or plumbing) as certified by
Landlord's architect. All alterations and additions to the Demised Premises
shall be performed in accordance with plans and specifications therefore
submitted to Landlord whether or not Landlord's consent is required and approved
by Landlord if Landlord's consent is required, in a good and workmanlike manner
and in conformity with all building codes, laws, regulations, rules, ordinances
and other requirements of all governmental or quasi-governmental authorities
having jurisdiction.
H. Notwithstanding anything to the contrary contained herein, on the
termination of the Lease, Tenant shall not be required to restore the Demised
Premises to their condition existing immediately prior to the making of the
Leasehold Improvements, nor shall Tenant be required to restore the Demised
Premises to their condition prior to the making of any future alterations and
additions to the Demised Premises in accordance with the terms of the Lease,
unless Landlord advises Tenant in
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writing of such required restoration at the time of Landlord's approval of the
plans submitted in connection with such future alterations and additions. All
counters, railings, movable partitions, lighting fixtures, special cabinet and
other wood work, doors machines and equipment which are installed in the Demised
Premises by or for the account of Tenant, and not paid for by Landlord, and
which can be removed without permanent structural damage to the Building, and
all furniture, furnishings and other articles of personal property owned by
Tenant and located in the Demised Premises (all of which are herein called
"Tenant's Property") shall be and remain the property of Tenant, and may be
removed by it at any time during the term of this Lease. However, if any of
Tenant's Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Demised Premises or the Building resulting from such removal.
During the term of the Lease, Tenant may finance or refinance the purchase price
of all or any part of its furnishings and equipment and in connection therewith
may grant security interests in and liens upon such items, provided that no
liens may be granted or placed upon Landlord's fee interest in the Building or
Property. The Landlord agrees to execute and deliver such disclaimers of
interest or waivers of lien as the Tenant or its respective lenders (including
finance lessors), may reasonably request with respect to such furnishings and
equipment in connection with such financing or refinancing.
I. Not bring any flammable, explosive or dangerous material or article
onto the Property in violation of any applicable law, regulation, ordinance or
to the extent that a common law nuisance would result. Landlord acknowledges
that Tenant shall be permitted to keep firearms in the Building.
J. Intentionally Omitted.
K. Not bring safes, heavy files, or other heavy into the Property in
excess of the floor loads provided for in the Building Plans and Specifications.
Tenant shall indemnify, defend and save Landlord harmless from any and all
expenses and other damages, including attorney's fees, and costs, resulting from
the use or installation by Tenant of heavy equipment in excess of the provided
floor loads.
L. Not use, create, store, or permit any toxic or hazardous material
anywhere on the Property in violation of applicable laws and regulations. Tenant
shall not dispose of any toxic or other hazardous waste through the plumbing
system or drainage system of the Building or the Property, and Tenant shall not
violate any requirement of any governmental agency, with respect to waste
disposal. Tenant shall indemnify, defend and hold Landlord harmless from any and
all expenses and other damages, including attorney's fees and costs incurred by
Landlord, as a result of the storage, handling or disposal of any hazardous
materials or waste by Tenant in violation of applicable laws and regulations,
which indemnification shall survive the expiration or earlier termination of
this Lease.
M. Immediately and at its expense, Tenant shall repair and restore any
and all damages caused to the Demised Premises or the Building due to Tenant's
improvements, installations, alterations, additions or other work conducted by
Tenant within the Demised Premises, and Tenant shall restore the Building to the
condition existing prior to improvement, installations, alterations, additions
or other work conducted by Tenant within the Demised Premises.
N. Comply with the Rules and Regulations (as hereinafter defined) as
initially set forth on Exhibit "G" which is attached hereto and incorporated
herein, and comply with such other reasonable rules and regulations as Landlord
may establish, and from time to time amend, for the general safety, comfort and
convenience of Landlord, occupants and tenants of the Building.
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O. Not install or operate in the Demised Premises any electrically
operated equipment or other machinery, including computers, which would overload
the Buildings electrical system capacities or any plumbing fixtures, which would
exceed the Buildings plumbing system capacity, both as set forth in the building
plans and specifications without first obtaining the prior written consent of
Landlord. Tenant shall not install any equipment of any kind or nature
whatsoever which would or might necessitate any changes, replacements or
additions to the structural system, water system, plumbing system, heating
system, air conditioning system or the electrical system servicing the Demised
Premises or any other portion of the Building without the prior written consent
of Landlord, and in the event such consent is granted, such replacements,
changes or additions shall be paid for by Tenant.
8. SERVICES. Landlord agrees that, throughout the term of the Lease and any
extensions, it shall maintain and manage the Building and Property in a first
class manner consistent with other Class A office buildings in Palm Beach
County. In that regard, Landlord shall:
A. Provide self service passenger elevator service to all floors in the
Building above the ground floor.
B. Provide Tenant with access to the Demised Premises 24 hours per day,
7 days a week, 365 days per year, except in case of an emergency, which causes
Landlord to limit access to Tenant.
C. Provide janitorial service after normal business hours to the
Demised Premises and Common Areas in the Building and Parking Facilities Monday
through Friday, as are customarily provided in first class office buildings in
Palm Beach County, Florida. Janitorial services are to be provided as detailed
in Cleaning Specifications schedule attached as Exhibit "G".
D. subject to the provisions of Paragraphs 12 and 15 hereof, maintain,
operate, repair and replace as necessary, the Building's plumbing, electrical
and HVAC systems, the elevators and public portions of the Building, both
exterior and interior, structural and non-structural, foreseen and unforeseen,
including, without limitation, the base Building structure and roof. Landlord
shall make any repairs to the Demised Premises covered by its construction
warranties or caused or resulting from carelessness, omission, neglect or
improper conduct of Landlord, its servants, agents, contractors, employees,
invitees or licensees or a breach of Landlord's obligations under this Lease.
Landlord shall be responsible for all repairs to the core areas within the
Demised Premises and for all repairs and replacements to the Building and the
Building systems which are not specifically set forth as the obligation of
Tenant. In the event that any repair is required by reason of the negligent or
willful acts of Tenant or its agents, employees or invitees, or of any other
person entering the Building with Tenant's consent, express or implied, Landlord
may upon fifteen (15) days written notice to Tenant, make such repair and add
the cost thereof to the first installment of Rent which will thereafter become
due.
E. Furnish the Demised Premises and Common Areas of the Property with
electric service for lighting and normal office use in accordance with the
Building Plans and Specifications. Furnish the Demised Premises and Common Areas
with heating or air conditioning during such hours as may be determined by
Tenant so that the average temperature in the Demised Premises is 72(degrees)
F+/- 2(degrees).
F. Maintain and repair, at its cost and expense, in good working order
and condition, the Demised Premises, including the plumbing, electrical, HVAC
and other systems within the Demised Premises, with the exception of such items
which are damaged by Tenant's negligence or the negligence of Tenant's agents,
employees contractors or invitees.
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G. Tenant acknowledges that Landlord does not warrant that any of the
services referred to in this Paragraph 8 will be free from interruption from
causes beyond the reasonable control of Landlord. If Landlord fails to provide
any essential services or facilities for three (3) consecutive business days to
the extent that all or a portion of the Demised Premises is rendered
untenantable and Tenant cannot conduct its normal business in the Demised
Premises or a portion thereof, then Rent shall be abated for the portion of the
Demised Premises rendered untenantable retroactive to the first day that the
service or facility was unavailable, provided that there shall be no abatement
if the failure to provide service is as a result of an event of force majeure as
defined in Paragraph 36. In such event, Tenant shall be entitled to expend any
reasonable sums required to correct Landlord's failure and deduct the same from
the next Rent coming due.
H. Landlord shall manage and maintain the Building and Property in a
first class fashion. If at any time during the term of the Lease, Tenant is
dissatisfied with the management and/or maintenance of the Building and
Property, and Tenant provides written notice of such dissatisfaction to
Landlord, Landlord shall have fifteen (15) days to reasonably remedy the cause
of Tenant's dissatisfaction. If Landlord fails to satisfy Tenant's reasonable
concerns, Tenant shall so notify Landlord and Landlord shall be required to
replace the management and/or service providers. Further, Tenant shall have the
right at any time during the term of the Lease to contract separately to provide
its own janitorial service. If Tenant elects this option, the applicable cost of
the janitorial service for the Demised Premises, as then being paid by Landlord
per the existing vendor contract or at the then prevailing market rate for
similar janitorial services, whichever is greater, shall be deducted from the
Rent being paid by Tenant.
I. Provide tempered water and municipally provided cold water to the
Demised Premises.
9. SUBLETTING AND ASSIGNING. Tenant shall not assign, mortgage or otherwise
transfer or encumber this Lease or any portion of Tenant's interest herein, or
sublet all or any portion of the Demised Premises without first obtaining
Landlord's prior written consent thereto, which shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, Tenant, without Landlord's
consent, shall be entitled to sublet the Demised Premises or assign in whole or
in part, its rights under the Lease to any affiliate or subsidiary of Tenant or
any parent of Tenant or any successor of Tenant resulting from a merger or
consolidation of Tenant into any entity under the "Common Control" of Tenant.
Should Tenant sublet or assign all or a portion of the Demised Premises for an
amount greater than the Rent Tenant is paying, whether or not such assignee or
subtenant is under the Common Control of Tenant, the excess shall be retained in
full by Tenant. If Landlord consents to any assignment or subletting, such
consent will not be deemed a consent to any further subletting or assignment.
Duly attempted assignments, mortgages, subleases or other encumbrances of the
Demised Premises in violation of this paragraph shall be null and void. If
Landlord consents to any subletting or assignment, or if Landlord's consent is
not required it shall nevertheless be a condition to the effectiveness thereof
that a fully executed copy of the sublease or assignment be furnished to
Landlord and that any assignee assume in writing all obligations of Tenant
hereunder, including, without limitation, the obligation to only use the Demised
Premises for the uses permitted hereunder. In the event of any subletting or
assignment of the Demised Premises, whether or not Landlord's consent is
required, Tenant shall remain liable for all of the obligations of Tenant set
forth herein. For the purposes of this paragraph, "Common Control" shall be
defined as the percentage of shares, or the voting rights to said shares, which
control the making of major corporate decisions.
10. IDEMNIFICATION. Tenant shall indemnify, defend and hold Landlord, its agents
and employees, harmless from and against any
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and all liability, claims, suits, demands, judgments, costs, damages, fines,
interest and expenses (including reasonable attorneys' fees and disbursements)
incurred or suffered by Landlord, its agents and employees, by reason of any
breach, violation or nonperformance by Tenant, or its agents, employees,
licensees, invitees or contractors of any covenant or provision of this Lease,
or by reason of any damage to persons or property caused by moving property of
or for Tenant in or out of the Building, or by the installation or removal of
furniture or other property of or for Tenant or by reason of or arising out of
the acts, omissions, negligence or improper conduct of Tenant, or its agents,
employees, licensees, invitees or contractors in the preparation, alteration,
use or occupancy of the Demised Premises. Landlord shall indemnify, defend and
hold Tenant harmless from and against any and all liability, claims, suits,
demands, judgments, costs, damages, fines, interest and expenses (including
reasonable attorneys' fees and disbursements) incurred or suffered by Tenant by
reason of any breach, violation or non-performance by Landlord, or its agents,
employees or contractors, of any covenant or provision of this Lease, or by
reason of or arising out of the acts, omissions, negligence, or improper conduct
of Landlord, or its agents, employees, licensees, invitees or contractors in the
preparation, alteration, repair or maintenance of the Building; provided,
however, that such indemnification by Landlord shall not be enforceable against
any mortgagee in possession of the Building prior to a foreclosure or other
proceeding or process, whereby any such mortgagee may obtain fee title to the
Building. Where applicable, the indemnifying party shall have the right, at the
indemnifying party's own cost and expense, to resist or defend such action or
proceeding in the indemnified party's name, if necessary, and by such attorneys
as the indemnified party shall approve, which approval shall not be unreasonably
withheld or delayed.
11. INSURANCE
A. Tenant, at its own cost and expense, shall obtain and maintain in
full force and effect during the original term hereof, and any extensions or
renewals, single limit public liability and property damage insurance in an
amount at least equal to Five Million Dollars ($5,000,000.00) or such other
amounts as Landlord's lender may reasonably require from time to time upon
thirty (30) days prior written notice.
B. Landlord shall at all times during the term of the Lease and
extensions, maintain in effect a policy or policies of insurance covering the
Building and Property and providing protection against all perils included
within the classification "fire and extended coverage", business
interruption/rent loss insurance for a period not to exceed eighteen (18) months
and any other commercially reasonable coverages for similar buildings in the
amounts as reasonably required by Landlord's lender. In any event, Landlord
agrees to carry with companies reasonably acceptable to Tenant, during the Term
hereof, all risk property insurance ("Landlord's Property Insurance") covering
fire and extended coverage, vandalism and malicious mischief, sprinkler leakage
and all other perils of direct physical loss or damage insuring the improvements
and betterments located in the Building, including the Demised Premises and all
appurtenances thereto (excluding Tenant's Property) for the full replacement
value thereof. If the Building is within a federally designated flood plain,
Landlord shall also carry flood insurance in the maximum amount available, not
to exceed the full insurable value of the Building, including the Demised
Premises. During construction of the Building, Landlord shall carry, at its own
expense, Builder's Risk Insurance in appropriate amounts. Landlord, upon
request, shall furnish Tenant certificates of the insurance required of Landlord
pursuant to this Paragraph. In addition, Landlord shall maintain on the Building
and Property, public liability and property damage insurance in amounts equal to
those required to be maintained by Tenant as set forth in Paragraph 11.A.
C. Tenant agrees to carry all risk insurance covering Tenant's
fixtures, furnishings, wall covering, carpeting, drapes,
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equipment and all other items of personal property of Tenant located on or
within the Demised Premises in amounts as may be determined by Tenant ("Tenant's
Property Insurance"). Landlord agrees it shall not have any right, title or
interest in and to Tenant's Property Insurance or any proceeds therefrom.
D. Except for Tenant's Property Insurance, all policies of
insurance described above shall name Landlord and any mortgagee of Landlord as
named insureds, and shall include an endorsement providing that the policies
will not be cancelled or amended until after thirty (30) days, prior notice to
Landlord. All such policies of insurance shall be issued by a financially
responsible company or companies satisfactory to Landlord and authorized to
issue such policy or policies, and licensed to do business in the State of
Florida. Tenant shall deposit with Landlord duplicate originals of such
insurance on or prior to the Rental Commencement Date, together with evidence of
paid-up premiums, and shall deposit with Landlord renewals thereof at least
fifteen (15) days prior to expiration of any such policies.
12. FIRE OR OTHER CASUALTY.
12.01 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause (and if this Lease shall not
have been terminated as in this Paragraph 12 hereinafter provided), Landlord
shall promptly repair the damage and restore and rebuild the Building and the
Demised Premises to substantially the same condition as existed prior to the
fire or other casualty, at its expense (without limiting the rights of Landlord
under any other provisions of this Lease), after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to repair or
replace any of Tenant's Property.
12.02 (a) if the Building or the Demised Premises shall be partially
damaged or partially destroyed by fire or other cause, then the rents payable
hereunder shall be abated to the extent that the Demised Premises shall have
been rendered untenantable or rendered inaccessible for the period from the date
of such damage or destruction to the date the damage shall be repaired or
restored. In the event that so much of the Demised Premises shall be damaged,
destroyed or rendered inaccessible that Tenant is unable to conduct its business
in a reasonable manner in the undamaged or non-destroyed portion of the Demised
Premises, then, if Tenant moves out of the entire Demised Premises until the
restoration work has been completed, the rent therefor shall be fully abated.
(b) if the Demised Premises or a major part thereof shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely (which shall be deemed to include substantially completely)
untenantable or inaccessible on account of fire or other cause, then the rents
shall abate as of the date of the damage or destruction and until Landlord shall
repair, restore and rebuild the Demised Premises including access thereto,
provided, however, that should Tenant reoccupy a portion of the Demised Premises
for the conduct of business during the period the restoration work is taking
place and prior to the date that the same are made completely tenantable, rents
allocable to such portion shall be payable by Tenant from the date of such
occupancy.
(c) if the Demised Premises or a major part thereof shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely (which shall be deemed to include substantially completely)
untenantable on account of fire or other cause, then within ninety (90) days
after such damage or destruction to the Demised Premises, Landlord shall deliver
to Tenant a statement prepared by a reputable contractor setting forth such
contractor's estimate as to the time required to repair such damage. If the
estimated time period exceeds 180 days from the date of such statement, Tenant
may elect to terminate this Lease by notice to Landlord not later than thirty
(30) days following receipt of such statement. If Tenant
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makes such election, the term of this Lease shall expire upon the thirtieth
(30th) day after notice of such election is given by Tenant, and Tenant shall
vacate the Demised Premises and surrender same to Landlord in accordance with
the provisions of Paragraph 7 hereof. If Tenant shall not have elected to
terminate this Lease pursuant to this Section 12.02(c) (or is not entitled to
terminate this Lease pursuant to this Paragraph 12) and such repairs are not
made by Landlord within two (2) months after the expiration of the period
estimated for effecting such repairs, then Tenant may elect to terminate this
Lease by giving notice to Landlord not later than sixty (60) days following
expiration of the aforesaid restoration period. If tenant makes such election,
the term of this Lease shall expire on the thirtieth (30th) day after notice of
such election is given by Tenant, and Tenant shall vacate the Demised Premises
and surrender the same to Landlord in accordance with the provisions of
Paragraph 7 hereof.
12.03 If the Building shall be so damaged or destroyed by fire or other
cause (whether or not the Demised Premises are damaged or destroyed) as to
require a reasonably estimated expenditure to restore of more than 25% of the
full insurable value of the Building immediately prior to the casualty, then
Landlord may terminate this Lease by giving Tenant notice to such effect within
ninety (90) days after the date of the casualty. Notwithstanding the foregoing,
Landlord may not exercise such option unless it terminates, at the same time,
all leases of space in the Building. In such event, this Lease shall terminate
on the thirtieth (30th) day after the giving of such notice of termination and
the rents payable hereunder shall be apportioned as of the date of such
termination with respect to the undamaged portion of the Demised Premises and as
of the date of damage with respect to the damaged portion of the Demised
Premises (except as to those portions which were reoccupied by Tenant). Within
ninety (90) days after such damage or destruction to the Demised Premises,
Landlord shall deliver to Tenant a statement prepared by a reputable contractor
setting forth such contractor's estimate as to the time required to repair such
damage. If the estimated time period exceeds 180 days from the date of such
statement or if the remaining unexpired term of the Lease is less than two (2)
years, Tenant may elect to terminate this Lease by notice to Landlord not later
than sixty (60) days following receipt of such statement. If Tenant makes such
election, the term of this Lease shall expire upon the thirtieth (30th) day
after notice of such election is given by Tenant, and Tenant shall vacate the
Demised Premises and surrender same to Landlord in accordance with the
provisions of Paragraph 7 hereof. If Tenant shall not have elected to terminate
this Lease pursuant to this Section 12.03 (or is not entitled to terminate this
Lease pursuant to this Paragraph 12) and such repairs are not made by Landlord
within two (2) months after the expiration of the period estimated for effecting
such repairs, then Tenant may elect to terminate this Lease by giving notice to
Landlord not later than sixty (60) days following expiration of the aforesaid
restoration period. If Tenant makes such election, the term of this Lease shall
expire on the thirtieth (30th) day after notice of such election is given by
Tenant, and Tenant shall vacate the Demised Premises and surrender the same to
Landlord in accordance with the provisions of Paragraph 7 hereof.
12.04 No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Paragraph, and the time periods provided to Landlord to complete repairs
or restoration shall be extended by the period of any delay beyond the control
of Landlord which arises by reason of adjustment of insurance. Notwithstanding
the foregoing, Landlord shall be obligated to use all reasonable efforts in
order to effectuate an expeditious adjustment with its insurance carrier and to
proceed with due diligence in connection with such repair or restoration. Such
obligation on Landlord's part shall include the requirement, subject to its
lender's consent that Landlord seek a loan in order to finance such repair or
restoration based upon its anticipated
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insurance settlement, if in Landlord's reasonable judgment same would be
commercially reasonable.
13. INCREASE IN PREMIUMS. Tenant shall not do, permit or suffer to be done any
act, matter, thing or failure to act in respect to the Property or the Demised
Premises or use or occupy the Property or the Demised Premises or conduct or
operate Tenant's business in any manner objectionable to insurance companies
whereby the fire insurance or any other insurance now in force or hereafter to
be placed on the Demised Premises or any part thereof shall become void or
suspended or whereby any premiums in respect of insurance maintained by Landlord
shall be higher than those which would normally have been in effect for the
occupancy contemplated under the permitted uses. In case of a breach of this
covenant, in addition to all other rights and remedies of Landlord hereunder,
Tenant shall (a) indemnify Landlord and hold Landlord harmless from and against
any loss which would have been covered by insurance which shall become void or
suspended because of such breach by Tenant, and (b) pay to Landlord any and all
increase of premiums on any insurance, including, without limitation, rent
insurance, resulting from any such breach.
14. WAIVER OF SUBROGATION. Landlord and Tenant waive, unless said waiver should
invalidate any insurance required or permitted hereunder, their right to recover
damages against each other for any reason whatsoever to the extent the damaged
party recovers indemnity from its insurance carrier. Any insurance policy
procured by either Tenant or Landlord which does not name the other as a named
insured shall, if obtainable at no extra cost, contain an express waiver of any
right of subrogation by the insurance company, including but not limited to
Tenant's worker's compensation carrier, against Landlord or Tenant, whichever
the case may be.
15. EMINENT DOMAIN.
A. If the whole of the Property, Parking Facilities, or the whole of
the Demised Premises shall be taken or condemned for a public or quasi-public
use under any law, ordinance or regulation, or by right of eminent domain or
private purchase in lieu thereof by any competent authority, this Lease shall
terminate and Rent shall abate for the unexpired portion of the term of this
Lease as of the date the right to possession shall vest in the condemning
authority.
B. If part of the Demised Premises or a part of the Parking Facilities
shall be acquired or condemned as aforesaid, and such acquisition or
condemnation shall render the remaining portion unsuitable for the business of
Tenant the term of this Lease shall cease and terminate as provided in Paragraph
15(A) hereof, provided however, that diminution of area shall not in and of
itself be conclusive as to whether the portion of the Demised Premises
remaining after such acquisition is unsuitable for Tenant's business. If such
partial taking is not extensive enough to render the Demised Premises unsuitable
for the business of Tenant, this Lease shall continue in full force and effect
except that the Annual Rental shall be reduced in the same proportion that the
area of the Demised Premises taken bears to the area demised. Subject to the
rights of any mortgagee of Landlord's estate, Landlord shall, upon receipt of
the net condemnation award, make all necessary repairs or alterations to the
Building, Property and Parking Facilities so as to render the portion of the
Property not taken a complete architectural unit, but Landlord shall in no event
be required to spend for such work an amount in excess of the net amount
received by Landlord as damages for the part of the Building, Property and
Parking Facilities so taken. "Net amount received by Landlord" shall mean that
portion of the condemnation award in excess of any sums required to be paid by
Landlord to the holder of any mortgage on the property so condemned, and all
expenses and legal fees incurred by Landlord in connection with the condemnation
proceeding.
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C. If part of the Building or Parking Facilities, but no part of the
Demised Premises, is taken or condemned as aforesaid, and, such partial
acquisition or condemnation shall render Landlord unable to comply with its
obligations under this Lease, or shall render the Demised Premises unsuitable
for the business of Tenant, the term of the Lease shall cease and terminate as
provided in Paragraph 15.A. hereof, by Landlord sending notice to such effect to
Tenant, whereupon Tenant shall immediately vacate the Demised Premises.
D. In the event of any condemnation or taking as hereinbefore provided,
whether whole or partial, Tenant shall not be entitled to any part of the award,
as damages or otherwise, for such condemnation and Landlord is to receive the
full amount of such award, and Tenant hereby expressly waives any right or claim
to any part thereof. Although all damages in the event of any condemnation are
to belong to the Landlord whether such damages are awarded as compensation for
diminution in value of the leasehold or the fee of the Demised Premises, Tenant
shall have the right to claim and recover from the condemning authority, but not
from Landlord, such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right on account of any damage to Tenant's Property,
Tenant's business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures, and equipment, or the loss of Tenant's business or decrease
in value thereof.
16. EVENTS OF TENANT'S DEFAULT. Each of the following events shall constitute an
Event of Default under this Lease:
A. If Tenant shall fail to pay Rent within five (5) days of the date of
written notice from Landlord that said Rent is past due (provided that Landlord
shall not be required to provide said written notice more than two (2) times in
any calendar year); or
B. If Tenant shall fail to perform or observe any of the other
covenants, terms or conditions contained in this Lease within thirty (30) days
after written notice thereof by Landlord (provided that Tenant shall not be
deemed to be in default if the default is of such a nature that it cannot be
cured within thirty (30) days and Tenant commences to cure its default within
said thirty (30) day period and diligently pursues the cure to completion; or
C. If a receiver or trustee is appointed to take possession of all or a
substantial portion of the assets of Tenant and such receiver or trustee is not
dismissed within thirty (30) days; or
D. If Tenant makes an assignment for the benefit of creditors; or
E. If any bankruptcy, reorganization, insolvency, creditor adjustment
or debt rehabilitation proceedings are instituted by or against Tenant under any
state or federal law and the same are not dismissed within thirty (30) days; or
F. If levy, execution, or attachment proceedings or other process of
law are commenced upon, on or against Tenant or a substantial portion of
Tenant's assets and the same are not dismissed within thirty (30) days; or
G. If a liquidator, receiver, custodian, sequester, conservator,
trustee, or other similar judicial officer is applied for by Tenant; or
H. If Tenant becomes insolvent in the bankruptcy or equity sense; or
I. Intentionally Omitted.
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17. LANDLORD'S REMEDIES.
A. If Tenant fails to pay Annual Rental, Additional Rent, or any other
sum payable to Landlord hereunder within five (5) days of the date when due,
Tenant shall pay a late charge in the amount of five percent (5%) of the amount
of the delinquent payment plus interest accruing on the unpaid sums from the
date such sums are due at a rate equal to the rate of interest paid by Landlord
on sums borrowed by Landlord (the "Late Charge"). The Late Charge shall be
Additional Rent under the terms of this Lease. In no event however shall any
interest or other charge on any delinquent payments exceed the amount allowed to
be charged under the usury laws of the State of Florida, it being acknowledged
and agreed that any amount in excess of such limitation shall be refunded to
Tenant by Landlord by means of a credit against the next installment(s) of Rent
coming due hereunder, or if no such Rent payments remain to be paid, then the
excess shall be refunded in cash. The Late Charge shall be in addition to, and
shall not in any way limit any other rights or remedies available to Landlord
under the terms of this Lease or at law and in equity.
B. Upon the occurrence of an Event of Default, Landlord may, at any
time thereafter, and in addition to any other available rights or remedies at
law and/or in equity, elect any one or more of the following remedies:
(1) Intentionally Omitted.
(2) To immediately re-enter the Demised Premises, including
Tenant's exclusive Parking Facilities, without accepting surrender of the
leasehold estate and remove all persons and all or any property therefrom, with
or without summary dispossession proceedings or by any suitable action or
proceeding at law, without being liable to indictment, prosecution or damages
therefor, and repossess and enjoy the Demised Premises; together with all
additions, alterations and improvements. Upon recovering possession of the
Demised Premises by reason of or based upon or arising out of a default on the
part of Tenant, Landlord may, at Landlord's option, either terminate this Lease
or make such alterations and repairs as may be necessary in order to relet the
Demised Premises or any part or parts thereof, either in Landlord's name or
otherwise, for a term or terms which may at Landlord's option be less than or
exceed the period which would otherwise have constituted the balance of the Term
of this Lease and at such rent or rents and upon such other terms and conditions
as in Landlord's sole discretion may seem advisable and to such person or
persons as may in Landlord's discretion seem best. Upon each such reletting all
rents received by Landlord from such reletting shall be applied: first, to the
payment of any indebtedness other than Rent due hereunder from Tenant to
Landlord; second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorney's fees and all costs of such alterations
and repairs; third, to the payment of Rent due and unpaid hereunder; and the
residue if any, shall be held by Landlord and applied in payment of future rent
as it may become due and payable hereunder. If such rentals received from such
reletting during any month shall be less than that to be paid during that month
by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of the Demised Premises or the making of alterations and/or
improvements thereto or the reletting thereof shall be construed as an election
on the part of Landlord to terminate this Lease unless written notice of such
intention be given to Tenant. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Demised Premises or, in the event that the
Demised Premises or any part or parts thereof are relet, for failure to collect
the rent thereof under such reletting. Tenant, for Tenant and Tenant's
successors and assigns, hereby irrevocably constitutes and appoints Landlord as
Tenant's agent to collect the rents due and to become due under all subleases of
the Demised Premises or any part thereof without in any way affecting Tenant's
obligation to pay any unpaid balance of Rent due or to become due hereunder.
Notwithstanding any such reletting without termination,
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Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
(3) To terminate this Lease and the term hereby created
without any right on the part of Tenant to waive the forfeiture by payment of
any sum due or by other performance of any condition, term or covenant broken,
whereupon Landlord shall be entitled to recover, any and all sums and damages
for violation of Tenant's obligations hereunder accrued and unpaid or which have
arisen at the time of such termination.
C. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy herein or by law provided
but each shall be cumulative and in addition to every other right or remedy
given herein or now or hereafter existing at law or in equity or by statute.
D. In the event of a breach by Tenant of any of the covenants or
provisions hereof, Landlord, in its sole and absolute discretion, shall have the
right of injunction and the right to invoke any remedy allowed at law or in
equity as if re-entry, summary proceedings and other remedies were not herein
provided for in law or in equity.
E. No waiver by Landlord of any breach by Tenant of any of Tenant's
obligations, agreements or covenants herein shall be a waiver of any subsequent
breach or of any obligation, agreement or covenant, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach.
F. If Tenant defaults under any of the covenants or provisions of this
Lease, Landlord, in its sole and absolute discretion and in addition to any
other available rights or remedies, may elect to cure Tenant's default in which
event any sums advanced and any costs incurred by Landlord in curing such
default shall be due and payable by Tenant to Landlord upon demand together with
interest thereon from the date the sums are advanced or the costs are incurred
until paid to Landlord.
G. Landlord shall use reasonable efforts to mitigate its damages in the
event of any default by Tenant hereunder.
18. LANDLORD'S DEFAULT/TENANT'S REMEDIES. If Landlord shall fail to perform any
provision of this Lease or breach any covenant contained on the part of
Landlord, Tenant shall give Landlord written notice thereof, and Landlord shall
have thirty (30) days after receipt of Tenant's notice to remedy the failure or
breach, unless the failure or breach is of such a nature that it may not be
cured within thirty (30) days in which event, Landlord shall commence to cure
the failure or breach within said thirty (30) day period and diligently pursue
the cure to completion. If Landlord fails to cure its default within said thirty
(30) day period, or commence the cure and diligently complete same as
applicable, Tenant shall be entitled to remedy Landlord's default and deduct the
reasonable cost of doing so from the next payment of Rents then coming due under
the Lease. If the default is of such a nature that it may not be remedied by
Tenant, Tenant shall be entitled to seek equitable relief in order to compel
Landlord's cure of the default. In such event, Tenant shall be entitled to
recover its reasonable attorneys' fees and costs in seeking such equitable
remedy.
19. QUIET ENJOYMENT. Upon paying the Rent, and upon Tenant's observance and
keeping of all the covenants, agreements and conditions of this Lease, Tenant
shall quietly have and enjoy the Demised Premises during the term of this Lease
without hindrance or molestation by anyone claiming by or through Landlord;
subject, however, to the terms, exceptions, reservations and conditions of this
Lease. Landlord and Tenant agree that this provision shall be deemed a covenant
remaining with the Land, which shall bind Landlord's successors and/or assigns.
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20. NO WAIVER. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more agreements, terms,
covenants, conditions, or obligations of this Lease, or to exercise any right,
remedy or election therein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
of this Lease or of the right to exercise such right, remedy or election, with
respect to any subsequent breach, act, or omission. The manner of enforcement or
the failure of Landlord to enforce any of the covenants, conditions, rules and
regulations set forth herein or hereafter adopted, against any tenant in the
Building shall not be deemed a waiver of any such covenants, conditions, rules
and regulations.
21. SUBORDINATION NON-DISTURBANCE AND ATTORNMENT/ESTOPPEL.
A. upon written request of Landlord, or any mortgagee or beneficiary of
Landlord, Tenant will in writing, subordinate its right hereunder to the
interest of any ground lessor of the Land upon which the Demised Premises is
situated and to the lien of any mortgage or deed of trust, now or hereafter in
force against the Land and Building of which the Demised Premises is a part, and
upon any building hereafter placed upon the land of which the Demised Premises
is a part and to all advances made or hereafter to be made upon the security
thereof; provided, however, that the ground lessor, or the mortgagee or trustee
named in said mortgage or trust deed shall agree that Tenant's peaceable
possession of the Demised Premises or its rights under this Lease will not be
diminished on account thereof.
B. In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deeds of trust,
upon any such foreclosure or sale Tenant agrees to recognize such beneficiary or
purchaser as the Landlord under this Lease, provided Tenant's right to
possession continues unabated and Tenant's rights under this Lease continue
undiminished.
C. Landlord agrees to obtain a Non-Disturbance and Attornment Agreement
from its current lender(s) and the ground lessor, if any, and delivery same to
Tenant within thirty (30) days from the date hereof and from any future lender
within thirty (30) days from obtaining financing from such lender, substantially
in accordance with the form attached hereto as Exhibit "H".
D. Intentionally Omitted.
E. Within ten business (10) days after written request from Landlord
from time to time, Tenant shall execute and deliver to Landlord, or Landlord's
designee, a written statement certifying, (i) that this Lease is unmodified and
in full force and effect, or is in full force and effect as modified and stating
the modifications; (ii) the amount of Annual Rent and the date to which Annual
Rent and Additional Rent have been paid in advance; and (iii) that Landlord is
not in default hereunder or, if Landlord is claimed to be in default, stating
the nature of any claimed default; (iv) the amount of security deposit Landlord
is holding, if any, and (v) any options to renew or purchase that Tenant may
have.
22. NOTICES. All bills, statements, notices or communications which either party
hereto may desire or be required to give to the other shall be given or rendered
in writing and either hand delivered to Landlord or Tenant or sent by registered
or certified mail or overnight courier, postage prepaid, addressed to Landlord
or Tenant at the address set forth on the first page hereof or any other address
pursuant to notice given as herein set forth. In addition, if the notice is
given to Landlord, copies shall be provided to Tambone Real Estate Development
Corporation, 4500 PGA Blvd., Suite 304, Palm Beach Gardens, FL 33418, and John
F. Flanigan, Esquire, Moyle, Flanigan, Katz, et al, 625 N. Flagler Drive,
Barnett Centre, 9th Floor, West Palm Beach, FL 33401. Any notices given in
accordance with the Lease shall be deemed to be
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given when the same is hand delivered to the other party, delivered by the
overnight courier or upon acceptance or refusal of the certified or registered
mail, as the case may be.
23. HOLDING OVER. Should Tenant continue to occupy the Demised Premises after
expiration of the term of this Lease or any renewals thereof, such tenancy shall
(without limitation on any of Landlord's rights or remedies therefor) be one at
sufferance from month to month at a minimum monthly rent equal to 150% of the
Rent payable for the last month of the term of this Lease.
24. BROKERS. Tenant represents and warrants that it has not employed any broker
or agent as its representative in the negotiation for or the obtaining of this
Lease other than PREVE LIBERATORE & BARTON ("Broker") whose commission shall be
paid by Landlord pursuant to a separate written agreement, and agrees to
indemnify and hold Landlord harmless from and against any and all cost or
liability for compensation (including, without limitation, reasonable attorneys'
fees and costs) claimed by any other broker or agent other than Broker with whom
it has dealt or claimed to have been engaged by Tenant.
25. DEFINITIONS OF LANDLORD AND TENANT.
A. The word "Tenant" as used in this Lease shall be construed to mean
tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships, or individuals, men or women, shall in all cases be
assumed as through in each case fully expressed. Each provision hereof shall
extend to and shall, as the case may require, bind and inure to the benefit of
Tenant and its heirs, legal representatives, successors and assigns, provided
that this Lease shall not inure to the benefit of any assignee, heir, legal
representative, transferee or successor of Tenant except upon the express
written consent or election of Landlord, except as herein otherwise provided.
B. The term "Landlord" as used in this Lease shall mean the fee owner
of the Building or, if different, the party holding and exercising the right, as
against all others (except space tenants of Building) to possession of the
Building. In the event of voluntary or involuntary transfer of such Ownership or
right to a successor in interest of Landlord, Landlord shall be freed and
relieved of all liability and obligation hereunder which shall thereafter accrue
(and, as to any unapplied portion of Tenant's security deposit, Landlord shall
be relieved of all liability therefore upon transfer of such portion to its
successor in interest) and Tenant shall look solely to such successor in
interest for the performance of the covenants and obligations of Landlord
hereunder which shall thereafter accrue, provided that such successor in
interest agrees to assume and be bound by the terms of this Lease. Subject to
the foregoing, the provisions hereof shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors and assigns of
Landlord. In no event shall the liability of Landlord to Tenant hereunder exceed
Landlord's interest in the Building. Tenant agrees that no judgment arising from
any default of Tenant's agreements under the terms of this Lease or by reason of
any willful or negligent act of Landlord and its building manager, and their
employees, officers, agents and independent contractors, shall attach against
any property of Landlord other than the Building, and in no event shall any such
judgment constitute a lien upon any other lands or properties owned by Landlord
wheresoever located. Neither shall any such judgment attach or constitute a lien
against any property of any principal or partner of the Landlord, or of their
heirs, executors, administrators, successors or assigns.
26. PRIOR AGREEMENTS; AMENDMENTS. Neither party hereto has made any
representations or promises except as contained herein. No agreement hereinafter
made shall be effective to change, modify, discharge or effect an abandonment of
this Lease, in whole or in part, unless such agreement is in writing and signed
by the party
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against whom enforcement of the change, modification, discharge or abandonment
is sought.
27. CAPTIONS. The captions of the Paragraphs in this Lease are inserted and
included solely for convenience and shall not be considered or given any effect
in construing the provisions hereof.
28. CONSTRUCTION OF LEASE. If any term of this Lease, or the application thereof
to any person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
29. CONSTRUCTION LIENS, ETC.
A. Tenant shall comply with the Construction Lien Law of the State of
Florida as set forth in Florida Statutes, Chapter 713. Tenant will not create or
permit to be created or remain as a result of any action or work done or
contracted for by Tenant, and will discharge, any lien, encumbrance or charge
(levied on account of any imposition or any mechanic's, laborer's or
materialman's lien) which might be or become a lien, encumbrance or charge upon
the Property, the Demised Premises or any part thereof or the income therefrom,
whether or not the same shall have any priority or preference over or ranking on
a parity with the estate, rights and interest of Landlord in the Property, the
Demised Premises or any part thereof, or the income therefrom, and tenant will
not suffer any other matter or thing whereby the estate, rights and interest of
Landlord in the Property, the Demised Premises or any part thereof might be
impaired; provided that any mechanic's, laborer's or materialman's lien may be
discharged in accordance with Subparagraph B of this Paragraph 29.
B. If any construction, laborer's or materialman's lien shall at any
time be filed against the Building, the Demised Premises or any part thereof as
a result of any action or work done on behalf of or contracted for by Tenant,
Tenant, within fifteen (15) days after notice of the filing thereof, will cause
it to be discharged of record by payment, deposit, bond, order of the court of
competent jurisdiction or otherwise. If Tenant shall fail to cause such lien to
be discharged within the period aforesaid, then in addition to any other right
or remedy, Landlord may, but shall not be obligated to, discharge it either by
paying the amount claimed to be due or by transferring same to security, and in
any such event, Landlord shall be entitled, if Landlord so elects, to compel
prosecution of any action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment in favor of the lienor with interest costs and
allowances. Any amount so paid by Landlord and all costs, expenses, and fees
including without limitation attorneys' fees, incurred by Landlord in connection
with any mechanic's, laborer's or materialman's lien, whether or to the same has
been discharged of record by payment, deposit, bond, order of the court of
competent jurisdiction or otherwise, together with interest thereon, at the
maximum rate permitted by law, from the respective dates of Landlord's making of
the payments and incurring of the costs and expenses, shall constitute
Additional Rent payable by Tenant to Landlord upon demand.
C. Nothing contained in this Lease shall be deemed or construed in
any way as constituting the consent or request of Landlord, express or implied
by inference or otherwise, to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of any materials
for any alteration, addition, improvement or repair to the Property, the Demised
Premises or any part thereof, nor as giving Tenant any right, power or authority
to contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to the filing of any lien against the Property,
the Demised Premises or any part thereof, nor to subject Landlord's estate in
the Property to liability under the Construction Lien Law of the
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State of Florida in any way, it being expressly understood that Landlord's
estate shall not be subject to any such liability.
D. Notwithstanding any provision to the contrary set forth in this
Lease, it is expressly understood and agreed that the interest of the Landlord
shall not be subject to liens for improvements made by Tenant in and to the
Demised Premises, including the Leasehold Improvements, Tenant shall notify each
and every contractor making any such improvements of the provision set forth in
the preceding sentence of this Paragraph, and shall require each such contractor
to execute an agreement providing that it will look solely to Tenant for payment
in connection with improvements and will not file any liens or notices to owner
in connection with the improvements. The parties agree to execute, acknowledge
and deliver to Landlord without charge a Construction Lien Notice, in recordable
form, containing a confirmation that the interest of the Landlord shall not be
subject to liens for improvements made by Tenant to the Property or the Demised
Premises.
30. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights:
A. ADJOINING AREAS. The use and reasonable access thereto through the
Demised Premises for the purposes of operation, maintenance, decoration and
repair of all walls, windows and doors bounding the Demised Premises (including
exterior walls of the Building, core corridor walls and doors and any core
corridor entrance) except the inside surface thereof, any terraces or roofs
adjacent to the Demised Premises and any space in or adjacent to the Demised
Premises used for shafts, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other facilities are reserved to Landlord. Landlord shall
use reasonable efforts to minimize any disruption of Tenant's operations caused
by the exercise of Landlord's rights hereunder.
B. COMMON AREAS AND PARKING FACILITIES. Subject to Tenant's parking
rights as set forth in the attached Parking Space Schedule, Landlord shall have
the exclusive right to manage the Common Areas and the Parking Facilities.
31. INTENTIONALLY OMITTED.
32. RULES AND REGULATIONS. Tenant covenants and agrees that it shall comply with
and observe all nondiscriminatory, uniformly applied reasonable rules and
regulations ("Rules and Regulations") which Landlord shall from time to time
promulgate for the management and use of the Demised Premises, the Building and
the Parking Facilities. Landlord's initial Rules and Regulations are set forth
on Exhibit "I" attached hereto and made a part hereof Landlord shall have the
right from time to time to reasonably amend or supplement the Rules and
Regulations theretofore promulgated.
33. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE ANY AND ALL RIGHT TO
A TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM, OR SUBSEQUENT
PROCEEDING, BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT'S USE OR OCCUPANCY OF THE DEMISED PREMISES, THE BUILDING OR THE PARKING
FACILITIES AND/OR ANY CLAIM OF INJURY OR DAMAGE.
34. RADON GAS. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of Radon that exceed Federal and
State guide lines have been found in buildings in Florida. Additional
information regarding Radon and Radon testing may be obtained from your county
public health unit.
35. NO OPTION. The submission of this Lease to Tenant for examination does not
constitute a reservation of or option for the Demised Premises and this Lease
becomes effective as a lease only upon execution and delivery thereof by the
Landlord and Tenant.
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36. FORCE MAJEURE. Notwithstanding anything to the contrary contained herein,
neither Landlord nor Tenant shall be deemed in default with respect to any
obligation hereunder, if their inability to perform is due to any event of Force
Majeure. "Force Majeure" shall mean any and all causes beyond the reasonable
control of a party, including, without limitation, governmental restrictions,
labor disputes (including strikes, slowdowns and similar labor problems),
accident, mechanical breakdown, shortages or inability to obtain labor, fuel,
steam, water, electricity or materials (for which no substitute is readily
available at an economically reasonable price), acts of God, enemy action, civil
commotion, fire or other casualty. Force Majeure shall not include the financial
condition of a party or its inability to make payments. No party shall be
entitled to claim Force Majeure unless it shall have given the other party
notice of the cause of such Force Majeure with reasonable promptness after it
shall make a good faith determination that it will seek the benefit of Force
Majeure.
37. RECORDING. Landlord and Tenant acknowledge and agree that a Memorandum of
Lease in form and substance as attached hereto as Exhibit "J" shall be recorded
in the Public Records of Palm Beach County, Florida. The Memorandum will be
recorded by Landlord within three (3) business days of the closing of the
purchase of the Land by Landlord.
38. EXPANSION OPTION. Tenant shall have the right on the fifth (5th) anniversary
of the Rental Commencement Date to lease up to an additional Three Thousand Two
Hundred Eighty (3,280) square feet, on the first floor of the Building, or such
greater amount of square footage which has not been leased by Tenant if Tenant
elects to reduce the size of the Demised Premises as set forth in Paragraph 1.B.
or if Landlord increases the size of the Building pursuant to Paragraph 47. (The
portions of the adjacent square footage on which Tenant shall hold options
hereunder and any space leased by Tenant pursuant to Paragraph 39 below, shall
be defined herein as the "Additional Space"). Tenant shall only be entitled to
lease the Additional Space in increments to be determined by the size of the
existing office suites developed in the Additional Space. The per square foot
rental rate for the Additional Space will be the rate then being paid by Tenant
under this Lease for the Demised Premises with the exception that Landlord shall
provide Tenant with an improvement allowance for the Additional Space equal to
the then "Fair Market" (as defined in the attached Exhibit "K") for such
improvement allowances. If Landlord and Tenant cannot agree on a "Fair market"
improvement allowance, the improvement allowance matter will be resolved via
arbitration pursuant to the procedure set forth in Exhibit "K". Tenant shall
provide Landlord with nine (9) months prior written notice of its election to
expand into the Additional Space in accordance with the option granted in this
Paragraph 38, failing which, the option shall be deemed waived and of no further
force and effect. Upon delivery of possession of the Additional Space to Tenant,
Tenant shall have ninety (90) days to construct its leasehold improvements to
the Additional Space with Rent to commence for the Additional Space on the
earlier of occupancy for the purpose of conducting its business of the
Additional Space by Tenant or ninety (90) days from the delivery of possession
of the Additional Space to Tenant for its leasehold improvements.
39. PREFERENTIAL RIGHT TO LEASE. Tenant shall have the first right to lease any
Additional Space which becomes vacant in the Building (after first being
occupied) during the term of the Lease. The per square foot rental rate for any
Additional Space under this Paragraph shall be the then prevailing "Fair market"
per square foot rental rate, including a "Fair Market" tenant improvement
allowance determined in accordance with Exhibit "J". Tenant shall have ten (10)
days from receipt of written notice from Landlord that Additional Space is or
will become vacant in the Building to exercise its right under this paragraph.
Landlord shall give Tenant ninety (90) days prior notice with respect to
Additional Space which is to become vacant as a result of the expiration of the
stated term of another tenant's lease and use its best efforts to give Tenant as
much notice as possible with respect to any unscheduled vacancies. If Tenant
exercises its right to lease
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Additional Space pursuant to this Paragraph, Tenant shall have sixty (60) days
from receipt of "as built" plans for the Additional Space to design any
leasehold improvements Tenant desires to make to the Additional Space and ninety
(90) days to construct the leasehold improvements. Rent shall commence for any
Additional Space leased under this Paragraph on the earlier of (a) the date of
occupancy of all or a portion of the Additional Space by Tenant, (b) completion
of construction of the leasehold improvements to the Additional Space as
evidenced by a Certificate of occupancy thereof, or (c) ninety (90) days from
the delivery of the Additional Space to Tenant for construction of Tenant's
leasehold improvements. If Tenant leases any space under this Paragraph the term
of the Lease for the Additional Space shall run concurrently and end
coterminously with the balance of the term of the Lease for the Demised
Premises.
40. RENEWAL OPTIONS. Provided Tenant is not in default in payment of Rent at the
time of exercise or at the time of commencement of any of the renewal options
referred to herein, Tenant shall have three (3) five (5) year options to extend
the Term of the Lease after the expiration of the original Term. To exercise
each of the options, Tenant must give Landlord written notice of its intention
to exercise the option not less than twelve (12) months prior to the expiration
of the original Term of the Lease or the applicable renewal Term. If Tenant
fails to give twelve (12) months notice of its intention to exercise the option,
and if Landlord has not committed the space to another prospect as evidenced by
a signed Letter of Intent for the Demised Premises or a portion thereof, Tenant
shall be entitled to elect to exercise the option on or before that day which is
nine (9) months prior to the expiration of the original Term of the Lease or the
then applicable renewal Term. If Tenant elects to exercise any of its renewal
options pursuant to the terms of this Paragraph, the per square foot rental for
each renewal Term for the Demised Premises and any Additional Space during each
renewal Term shall be the Fair Market per square foot rental rate (including any
Fair Market improvement allowance) at the time of the applicable renewal
determined in accordance with the provisions of Exhibit III", provided, however,
that in no event shall the Rent for the first renewal Term be higher than $25.00
per square foot, plus any Excess Operating Expenses to be paid by Tenant as
Additional Rent pursuant to Paragraph 5. If Tenant fails to give notice as
required herein of its exercise of any renewal option, then such option and all
subsequent options shall terminate and be of no further force and effect.
41. STORAGE SPACE. Tenant shall be granted the use of three thousand (3,000)
square feet of storage space in the Building at no additional Rent, if, through
collaboration with Tenant's architect, Landlord is able to design such space
into the Building at no additional construction cost.
42. SIGNAGE. Tenant shall have the exclusive right to display its sign and
logoon the Building in the following locations:
A. On two (2) sides of the Building on the top of the Building attached
to the stucco parapet wall as shown on the Building Plans and Specifications;
B. Above the entry of Tenant's exclusive lobby on the first floor of
the Building;
C. On the ground mounted monument signage to be located at the entrance
to the Property.
43. SATELLITE DISH. Tenant shall have the right, at its own expense, but at no
additional charge from Landlord, to install a satellite dish and/or antenna on
the roof subject to Tenant obtaining any and all required governmental approvals
of the installation. The cost of any required screening of the roof mounted
equipment shall be included in the cost to be paid by Tenant for the roof
mounted equipment. Tenant shall not install
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any equipment on the roof which will overburden the building structure or
require any additional structural expense in construction of the Building.
Landlord shall cooperate fully with Tenant in obtaining all required approvals
of the satellite dish and/or antenna. Landlord shall not install any other
satellite dish or antenna on the roof which would interfere with Tenant's
signals or reception.
44. OPTION TO PURCHASE. Tenant shall have the option to purchase the Building at
any time from the date of execution of the Lease, through that date which is one
(1) year from the issuance of the Certificate of occupancy for the Building. If
Tenant exercises its option to purchase, the purchase price shall be Thirteen
million one Hundred Fifteen Thousand Ten and 00/100 ($13,115,010) (based on
the gross square footage of the Building of 95,280 square feet at $137.65/gross
square foot. If the gross square footage of the Building is increased as set
forth in Paragraph 47, the purchase price shall be increased accordingly). If
Landlord has applied for or closed permanent financing prior to Tenant
exercising its option to purchase the Building, Tenant shall pay, in addition to
the purchase price, any and all costs and expenses incurred by Landlord in
connection with the permanent financing (but not the construction loan financing
the costs of which shall be borne solely by Landlord) including, without
limitation, documentary stamps, intangible taxes, title insurance costs,
recording costs, prepayment penalties, assumption fees, loan application fees,
and commitment fees. If Tenant elects to exercise its option, it shall execute
and deliver to Landlord a Contract containing the terms set forth herein and
those customarily contained in contracts for the sale of similar commercial real
estate in Palm Beach County Florida which are not inconsistent with the terms
hereof including the obligation of Landlord to pay for the cost of the
documentary stamps on the deed and the title insurance premium. Tenant shall
deliver a cash deposit of $100,000.00 along with such Contract. Closing shall
occur not less than thirty (30) days and no more than one hundred twenty (120)
days from the date of full execution of the Contract, but in no event prior to
issuance of a Certificate of occupancy for the Demised Premises. Any sale
contemplated hereby, shall be all cash to Landlord. Landlord agrees to notify
Tenant of any and all potential costs to be incurred by Tenant as a result of
Landlord obtaining permanent financing prior to Landlord attempting to obtain
permanent financing on the Building and shall provide Tenant with copies of the
executed loan documents within a reasonable period of time after closing such
permanent financing.
45. RIGHT OF FIRST REFUSAL TO PURCHASE THE BUILDING. If the Landlord shall
determine at any time during the term of the Lease to sell the Building and if
Landlord receives a bonafide offer to purchase from a third party, which
Landlord desires to accept, Landlord shall give Tenant ten (10) business days to
exercise its right of the first refusal to purchase the Building on the same
terms and conditions as set forth in the bonafide third party offer. If Tenant
elects to exercise the right of first refusal to purchase the Building, the
purchase shall be closed in accordance with the provisions of the bonafide third
party offer. A sale of the Building shall include any transfer (whether in a
single or a series of transactions) of a majority of the interests in Landlord.
46. NON-COMPETE. Landlord shall not lease, or allow any assignment or sublease
to, or sell any premises within the Building or the Property to any competitor
of Tenant, provided Tenant has not exercised its right to assign or sublet the
Demised Premises to an unaffiliated third party or vacated the Building.
47. EXPANSION OF BUILDING. Landlord and Tenant agree that Landlord and Tenant
shall use their best good faith efforts to design Tenants Leasehold Improvements
to allow for the expansion of the two (2) story portion of the Building up to a
maximum of 1,390 additional square feet on the first and second floors in the
area marked as the "Proposed Building Expansion on Exhibit "C". If Landlord is
successful in completing the Proposed Building Expansion, any square footage
located in the Proposed Building
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Expansion shall be added to (a) in the Additional Space as defined in paragraph
38, (b) the total square footage of the Building and (c) the total square
footage permitted to be contained in the Building and Adjacent Buildings.
48. DIVISION OF PROPERTY. Landlord and Tenant acknowledge and agree that the
Building and the Land upon which the Building is located, cannot be replatted to
subdivide the Building and the portion of the Land on which the Building is
located from the entire tract which comprises the Land. Accordingly, Landlord
and Tenant agree that should Tenant elect to exercise its option to purchase the
Building under Paragraph 44 or its right of first refusal under Paragraph 45,
then Landlord and Tenant shall cooperate with one another using their best
efforts to obtain an exemption from the platting requirement to enable the
subdivision of the Land. Landlord and Tenant agree to execute such cross
easement agreements and other agreements as may be reasonably necessary to
accomplish the subdivision of the Land. If an exemption cannot be obtained, then
the Building, Adjacent Buildings and Land shall be submitted to a commercial
condominium form of ownership and the Building shall be designated as a separate
unit from the Adjacent Buildings. The Land and Parking Facilities, landscaping,
access roads and signage shall be designated as Common Areas to be maintained by
the owners of the Building and Adjacent Buildings sharing the cost on a prorata
basis. Prior to closing any purchase contemplated in Paragraph 44 and 45,
Landlord and Tenant agree to execute any and all documentation necessary in
order to complete the subdivision of the Land or conversion to the commercial
condominium form of ownership in the event such conversion is necessitated by
Tenant's election of any of the options set forth herein.
49. LANDLORD'S REPRESENTATIONS. Landlord represents and warrants to Tenant (a)
Landlord has entered into a contact to acquire the Land from its present owner;
(b) Landlord shall close on the purchase of the Land on or before May 1, 1995;
(c) Landlord will provide Tenant with copies of any notice of default which
Landlord may receive from the seller and with a copy of the executed deed of
conveyance within three (3) business days of the closing of the purchase of the
Land; (d) Landlord shall cause the Land, Buildings, Adjacent Buildings and
Parking Facilities to be developed substantially as set forth on the Site Plan
and shall complete the development of the Adjacent Buildings in such a fashion
so as to not interfere with the use by Tenant of the Building and Parking
Facilities. Landlord shall not make any material changes to the Site Plan
without the prior written consent of Tenant, which shall not be unreasonably
withheld or delayed. Landlord further covenants, represents and warrants that
prior to the Rental Commencement Date (i) title to the Land, including any
beneficial interest therein or any interest in this Lease, shall not be sold,
transferred or conveyed by Landlord without Tenant's prior written consent,
which consent may be withheld in Tenant's sole discretion and (ii) Landlord's
obligations to construct the Building pursuant to the terms of this Lease shall
not be delegated to or undertaken by any third party other than Catalfumo
Construction, Inc. Notwithstanding the foregoing, Landlord shall be permitted to
convey the Land to an entity in which Daniel S. Catalfumo and Richard Tambone
collectively own directly or indirectly a majority or controlling interest
provided that reasonably acceptable evidence of such ownership is furnished to
Tenant together with properly executed copies of the recorded deed of conveyance
and written agreement whereby this Lease is assigned to and assumed by such
entity.
50. SECURITY. If Landlord elects to provide security guard service for the
Building or Property or any other property owned by Landlord and located within
the Northcorp project, Landlord shall employ The Wackenhut Corporation Security
Guard Services for such services. Regardless of whether or not Landlord elects
to provide security guard services to the Property, Tenant shall, at its own
cost and expense, be entitled to do so using its own forces, provided that
Tenant's security guard services shall not
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unreasonably interfere with the use of the Adjacent Buildings and Parking
Facilities by the Tenants of the Adjacent Buildings.
51. ENVIRONMENTAL MATTERS.
A. STATUS OF PROPERTY. Landlord represents and warrants that any
handling, transportation, storage, treatment or usage of hazardous or toxic
substances (as defined by any applicable government authority and hereinafter
being referred to as "Hazardous Materials") that has occurred or will occur on
the Property (except for any of such activities which may be undertaken by
Tenant or its agents or invitees) shall be in compliance with all applicable
federal, state and local laws, regulations and ordinances. Landlord further
represents and warrants that no leak, spill, discharge, emission or disposal of
Hazardous materials has occurred on the Property and that the soil, groundwater,
soil vapor on or under the Property are free of Hazardous materials as of the
date hereof.
B. INDEMNIFICATION BY LANDLORD. Landlord agrees to indemnify, defend
and hold Tenant and its officers, partners, directors, shareholders, employees
and agents harmless from any claims, judgments, damages, fines, penalties,
costs, liabilities (including sums paid in settlement of claims) or loss
including fees and expenses of any attorneys, consultants and experts which
arise during or after the Term or any renewal term, or in connection with the
presence or suspected presence of Hazardous materials in the soil, groundwater,
or soil vapor on or under the Property, unless such Hazardous materials are
present solely as the result of the acts of Tenant, its officers, employees,
invitees, or agents. Without limiting the generality of the foregoing, this
indemnification shall survive the expiration of this Lease and does specifically
cover costs incurred in connection with any investigation of site conditions or
any cleanup, remedial, removal or restoration work required by any federal,
state or local governmental agency or political subdivision because of the
presence of suspected presence of Hazardous Materials in the soil, groundwater,
or soil vapor on or under the Property, unless the Hazardous materials are
present solely as the result of the acts of Tenant, its officers, agents,
invitees, or employees. Without limiting the generality of the foregoing, this
indemnification shall also specifically cover costs in connection with: (a)
soil, ground water or soil vapor on or under the Property before the date
hereof; or (b) Hazardous Materials that migrate, flow percolate, diffuse or in
any way move onto or under the Property after the date hereof; or (c) Hazardous
Materials present on or under the Property as a result of any discharge,
dumping, spilling (accidental or otherwise) onto the Property during or after
the Term or any renewal term by any person or entity other than Tenant, its
officers, employees, invitees and agents.
52. COMPLIANCE WITH LAWS AND PROCEDURES
A. COMPLIANCE. Tenant at its sole cost, will promptly comply with all
applicable governmental or quasi governmental laws, guidelines, rules,
regulations and requirements, whether of federal, state, or local origin,
applicable to the Premises, including, but not limited to, the Americans with
Disabilities Act, 42 U.S.C. Section 12101 et seq. (the "Legal Requirements")
arising from or pertaining to the use or occupancy of the Premises.
Notwithstanding the foregoing, the following are applicable: (i) Landlord as
opposed to Tenant shall be responsible for insuring that the following elements
of the Building comply with the Legal Requirements; structural elements; Common
Areas; and mechanical, electrical and plumbing elements common to the entire
Building (not including, for example, plumbing and electrical fixtures and
fittings located in the Premises); (ii) Landlord's obligations with respect to
Hazardous Materials is set forth in Paragraph 51 above.
Tenant at its sole cost and expense shall be solely responsible for
taking any and all measures which are required to comply with the requirements
of the ADA within the Premises. Any
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Alterations to the Premises made by or on behalf of Tenant for the purpose of
complying with the ADA or which otherwise require compliance with the ADA shall
be done in accordance with this Lease; provided, that Landlord's consent to such
Alterations shall not constitute either Landlord's assumption, in whole or in
part, of Tenant's responsibility for compliance with the ADA, or representation
or confirmation by Landlord that such Alterations comply with the provisions of
the ADA. Notwithstanding the foregoing, Landlord as opposed to Tenant shall be
responsible for non-compliance with Legal Requirements of any work performed by
Tenant's contractor to the extent the Building and Demised Premises are
deficient in terms of the Legal Requirements as the same exists on the date the
Building and Demised Premises are delivered to Tenant's contractor.
53. NO RIGHT TO USE THE NAME "WACKENHUT".
Notwithstanding anything to the contrary contained herein, the right to
use the name, "Wackenhut" alone, or in combination with any other words, such
as, for example, "The Wackenhut Center" or "The Wackenhut Headquarters" or any
similar combinations, together with the right to any trademarks, service marks,
or logos of Tenant, its affiliates or subsidiaries, whether now or hereafter
created or existing shall belong solely and exclusively to Tenant and Landlord
hereby expressly disclaims any right, title or interest therein or thereto. No
permission, express or implied, is granted to Landlord by Tenant to use the same
in any print or media advertisements or notices without the express prior
written consent of Tenant, which consent Tenant may withhold in its sole and
absolute discretion. Upon the termination of this Lease for any reason or in the
event of any assignment or sublease by Tenant, Tenant shall have the right to
remove its signage from the exterior and interior of the Building and the
Property at its expense. This provision shall expressly survive the termination
or cancellation of this Lease and may be enforced by injunctive relief in
addition to any other remedies available at law or in equity to Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
day and year first aforesaid.
Signed, sealed and delivered LANDLORD:
in the presence of:
------------------------------------- ------------------------------------
DANIEL S. CATALFUMO, as
------------------------------------- Trustee under F.S. 689.071
TENANT:
THE WACKENHUT CORPORATION
-------------------------------------
By:
------------------------------------- --------------------------------
Senior Vice-President
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