EXHIBIT 10.11
INDUSTRIAL LEASE AGREEMENT
BETWEEN
INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC.
AS LANDLORD
AND
DATALINC-I, LTD.
AS TENANT
DATED: April 15, 1991
LEASE INDEX
SECTION SUBJECT
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1. Basic Lease Provisions
2. Demised Premises
3. Term
4. Minimum Rental
5. Security Deposit
6. Operating Expenses and Additional Rent
7. Use of Demised Premises
8. Insurance
9. Utilities
10. Maintenance and Repairs
11. Tenant's Personal Property: Indemnity
12. Tenant's Fixtures
13. Signs
14. Landlord's Lien
15. Governmental Regulations
16. Environmental Matters
17. Construction of Demised Premises
18. Tenant Alterations and Additions
19. Services by Landlord
20. Fire and Other Casualty
21. Condemnation
22. Tenant's Default
23. Landlord's Right of Entry
24. Mortgagee's Rights
25. Estoppel Certificate
26. Landlord's Liability
27. Notices and Payments
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28. Brokers
29. Assignment and Subleasing
30. Termination or Expiration
31. Relocation
32. Late Payments
33. Rules and Regulations
34. Miscellaneous
35. Special Stipulations
Exhibit "A" Site Plan
Exhibit "B" Floor Plan
Exhibit "C" Special Stipulations
Exhibit "D" Rules and Regulations
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INDUSTRIAL LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made this l5th day of April, 1991 by and
between INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC., a Delaware Corporation
("Landlord"), and DATALINC-I, LTD. a Florida Limited Partnership ("Tenant"),
(the words "Landlord" and "Tenant" to include
their respective legal representatives, successors and permitted assigns where
the context requires or permits).
W I T N E S S E T H:
1. BASIC LEASE PROVISIONS. The following constitute the "Basic Lease Provi-
sions" of this Lease:
(a) Demised Premises Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(b) Demised Premises Square Footage: 9,400
(c) Building Square Footage: 40,224
(d) Annual Minimum Rent:
Lease Year 1 $34,404.00 Lease Year 6 $79,128.00
Lease Year 2 $68,808.00 Lease Year 7 $79,128.00
Lease Year 3 $68,808.00 Lease Year 8 $79,128.00
Lease Year 4 $68,808.00 Lease Year 9 $79,128.00
Lease Year 5 $68,808.00 Lease Year 10 $79,128.00
(e) Monthly Minimum Rent Installments:
Lease Year 1 $ 5,734.00 Lease Year 6 $ 6,594.00
Lease Year 2 $ 5,734.00 Lease Year 7 $ 6,594.00
Lease Year 3 $ 5,734.00 Lease Year 8 $ 6.594.00
Lease Year 4 $ 5,734.00 Lease Year 9 $ 6.594.00
Lease Year 5 $ 5,734.00 Lease Year 10 $ 6,594.00
(f) Lease Commencement Date: June 1, 1991
(g) Minimum Rent Commencement Date: December 1, 1991
(h) Termination Date: May 31, 2001
(i) Term: One Hundred Twenty (120) Months
(j Tenant's Operating Expense Percentage: 23%
(k) Security Deposit: $25,000.00
(1) Date Tenant Must Approve Plans and Specifications For Improvements:
▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇) Permitted Use: Satellite Hub Station
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(n) Address for notice:
Landlord: Industrial Developments International, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President-Operations
Tenant: DATALINC-I, LTD.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(o) Broker(s): ▇▇. ▇▇▇▇ ▇▇▇▇▇
CB COMMERCIAL
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
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2. DEMISED PREMISES. For and in consideration of the rent hereinafter
reserved and the mutual covenants hereinafter contained, Landlord does hereby'
lease and demise unto Tenant, and Tenant does hereby hire, lease and accept,
from Landlord the following premises, referred to as the "Demised Premises":
approximately 9,400 square fyet of space, 3,200 square feet of which is office
space, located within 6900 Fairfield Business Dr. (the "Building"), which
Building contains a total of 40,224 square feet and located in ▇▇▇▇▇▇ County,
Ohio as shown on the site plan attached hereto as Exhibit A and incorporated
herein, all upon the terms and conditions hereinafter set forth.
3. TERM. To have and to hold the Demised Premises for the term (the "Term")
to commence on the Commencement Date set forth in l(f) of the Basic Lease
Provisions and to terminate on the Termination Date set forth in l(q) of the
Basic Lease Provisions, as the Termination Date may be extended pursuant to
Section 17(b).
4. MINIMUM RENT. Tenant shall pay to Landlord as minimum rent for the
Demised Premises, commencing on the Minimum Rent Commencement Date and
continuing throughout the Term in lawful money of the United States the annual
amount set forth in 1. of the Basic Lease Provisions payable in equal monthly
installments as set forth in 1. (e) of the Basic Lease Provisions (the "Minimum
Rent"), payable in advance, without demand and without abatement, reduction,
set-off or deduction, on the first day of each calendar month during the Term.
Tenannt shall pay to Landlord the first month's Minimum Rent due hereunder upon
execution of this lease by both parties. If the Commencement Date of the Term
shall fall on a day other than the first day of a calendar month, the Minimum
Rent shall be apportioned pro rata on a per diem basis for the period between
surh Commencement Date and the first day of the following calendar month and
such apportioned sum shall be paid on the Commencement Date.
5. SECURITY DEPOSIT. Upon execution of this Lease by both parties, Tenant
will pay to Landlord the sum set forth in l. (k) of the Basic Lease Provisions
as security for the full and faithful performance by Tenant of each and every
term, covenant and condition of this Lease. In the event that Tenant is in
default under this Lease, or fails to perform any of the terms, provisions and
conditions of this Lease, Landlord may use, apply, or retain the whole or any
part of the security so deposited for the payment of any sum due Landlord or
which Landlord may expend or be required to expend by reason of the Tenant's
default or failure to perform, including, but not limited to, any damages or
deficiency in the reletting of the Demised Premises; provided. however, that any
such use, application or retention by Landlord of the whole or any part of the
security deposit shall not be or be deemed to be an election of remedies by
Landlord or viewed as liquidated damages, it being expressly understood and
ayreed that, notwithstanding such use, application or retention, Landlord shall
have the r qlit to pursue any and all other remedies available to it under the
terms of this Lease or ot@erwise. In the event that Tenant shall comply with all
of the terms, covenants and conditions of this Lease, the security deposit shall
be returned to Tenant within thirty (30) days after compliance has been
ascertained by Landlord and after delivery of possession of the Demised Premises
to Landlord. In the event of a sale of the Building, Landlord shall have the
right to transfer the security deposit to the purchaser, and Landlord shall
thereupon be released from all liability for the return of such security
deposit. Tenant shall look solely to the new landlord for the return of such
security deposit. Tenant shall not assign or encumber the money deposited as
security, and neither Landlord nor it's successors or assigns shall be bound by
any such assignment or encumbrance.
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6. OPERATING EXPENSES AND ADDITIONAL RENT.
(a) Tenant agrees to pay as Additional Rent its proportionate share of
the amount paid or Incurred by Landlord during the Term for operation and
maintenance of the Building (collectively "Operating Expenses"). Operating
Expenses shall include all expenses for operation, repair, replacement and
maintenance as necessary to keep e Building and the common areas, grounds,
and parking areas associated therewith in good order, condition and repair,
including but not limited to, utilities for the common areas of and
relating to the Building, expenses associated with the driveways and
parking areas (including repaving and snow. trash and ice removal),
security systems, lighting facilities, landscaped areas, walkways,
directional signage, curbs, drainage strips, sewer lines, all charges
assessed against the Building pursuant to any applicable easements,
covenants or development standards, administrative fees (including property
management fees and attorneys' fees), all real property taxes and special
assessments imposed upon the land on which the Building is constructed, and
all insurance premiums paid by Landlord with respect to the Building,
including public liability Insurance. Operating Expenses shall not include
expenses for the costs of any maintenance and repair required to be
performed by Landlord at its own expense under Section (10.)(b). Further.
Operating Expenses shall not include the costs for capital improvements
unless such costs are incurred for the purpose of causing a material
decrease in the Operating Expenses of the Building, or are required by any
governmental authority because of the specific use by Tenant of the Demised
Premises. The proportionate share or Operating Expenses to be paid by
Tenant shall be a percentage of the Operating Expenses based upon the
proportion that the square footage of the Demised Premises bears to the
total square footage of the Building (such figure referred to as "Tenant's
Operating Expense Percentage" and set forth in l, (j) of the Basic Lease
Provisions). Landlord shall estimate the total amount of Operating Expenses
to be paid by Tenant during each calendar year promptly after the beginning
of each calendar year during the Term, and Tenant shall pay to Landlord
one-twelfth (1/12) of such sum on the first day of each calendar month
during each such calendar year, or part thereof, during the Term. Within a
reasonable time after the end of each calendar year, Landlord shall submit
to Tenant a statement of the actual amount of Operating Expenses for such
calendar year, and within thirty (30) days ▇▇▇▇▇ receipt of such statement,
Tenant shall pay any deficiency between the actual amount owed and the
estimates paid during such calendar year, or in the event of overpayment,
Landlord shall credit the amount of such overpayment toward the next
Installment of Operating Expenses owed by Tenant. If the Connencement Date
shall fall on other than the first day of the calendar year, and/or if the
Termination Date shrill fall on other than the last day of the calendar
year, Tenant's share of the Operating Expenses for such calendar year shall
be apportioned prorata.
(b) Any amounts required to be paid by Tenant hereunder and any
charges or expenses incurred by Landlord an behalf of Tenant under the
terms of this Lease shall be considered "Addiditional Rent" payable in the
same manner and upon the same terms and conditions as the Minimum Rent
reserved hereunder. Any failure on the part of Tenant to pay such
Additional Rent when and as the same shall become due shall entitle
Landlord to the remedies available to it for non-payment of Minimum Rent.
Tenant's obligations for non-payment of Additional Rent shall begin to
accrue on the Lease Commencement Date, regardless of the Minimum Rent
Commencement Date.
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(c) If applicable in the jurisdiction where the Demised Premises are
located, Tenant shall pay and be liable for all rental, sales, use and
inventory taxes or other similar taxes, any, levied or imposed by any city.
state, county or other governmental body having authority, such payments to
be in addition to all other payments required to be paid Landlord by Tenant
under the terms of this Lease. Such payment shall be made by Tenant
directly to such governmental body if billed to Tenant, or if billed to
Landlord, such payment shall be paid concurrently with the payment of the
Minimum Rent, Additional Rent, or such other charge upon which the tax is
based, all as set forth herein.
7. USE OF DEMISED PREMISES.
(a) The Demised Premises shall be used for the Permitted Use set forth
in 1. (m) of the Basic Lease Provisions. Other uses shall not be
unreasonably witheld or denied.
(b) Tenant will permit no liens to attach or exist against the
Demised Premises, and shall not commit any waste.
(c) The Demised Premises shall not be used for any illegal purposes,
and Tenant shall not allow, suffer, or permit any vibration, noise, odor,
light or other effect to occur within or around the Demised Premises that
could constitute a nuisance or trespass for Landlord or any occupant of an
adjoining building, its customers, agents, or invitees. Upon notice by
Landlord to Tenant that any of the aforesaid prohibited uses are occurring,
Tenant agrees forthwith to remove or control the same.
(d) Tenant shall not in any way violate any law, ordinance or
restrictive covenant affecting the Demised Premises, and shall not in any
manner use the Demised Premises so as to cause cancellation of, prevent the
use of, or increase the rate of, the fire and extended coverage insurance
policy required hereunder.
(e) In the event said insurance rates are increased over the least
hazardous rate available due to the nature of the use of the Demised
Premises by Tenant, said Increased amounts shall also be paid by Tenant as
Additional Rent.
8. INSURANCE.
(a) Tenant covenants and agrees that from and after the date of
delivery of the Demised Premises from Landlord to Tenant, Tenant will carry
and maintain, at its sole cost and expense, the following types of
insurance, in the amounts specified and in the form hereinafter provided
for:
(i) Liability Insurance in the Commercial General Liability form
(or reasonable equivalent thereto) claims for personal injury or
death, property damage and product liability occuring upon, in or
about the Demised Premises, such insurance to be written on an
occurrence basis (not a claims made basis), to be combined single
limits amounts not less that $1,000,000 and to have general aggredate
limits of not less than $2,000,000 for each policy year. The insurance
coverage required under this Section 8(a)(i) shall, in addition,
extend to any liability of Tenant arising out of the indemnities
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provided for in Section 11 and, if necessary, the policy shall contain
a contractual endorsement to that effect. The general aggregate limits
under the Commercial General Liability insurance policy or policies
must apply separately to the Demised Premises and to Tenant's use
thereof (and not to any other location or use of Tenant) and such
policy shall contain an endorsement to that effect. The certificate of
insurance evidencing the Commercial General Liability form of policy
shall specify all endorsements required herein and shall specify on
the face thereof that the limits of such policy apply separately to
the Demised Premises.
(ii) Insurance covering all of the items included in Tenant's
leasehold improvements, heating, ventilating and air conditioning
equipment, trade fixtures, merchandise and personal property from time
to time in, on or upon the Demised Premises, in an amount not less
than one hundred percent (100%) of their full replacement value from
time to time during the Term, providing rotection against perils
included within the standard form of "all-risks" fire and casualty
insurance policy, together with insurance against sprinkler damage,
vandalism and malicious mischief. Any policy proceeds from such
insurance shall be held in trust by Tenant's insurance company for the
repair, construction and restoration or replacement of the property
damaged or destroyed unless this Lease shall cease and terminate under
the provisions of Section 20(a).
(b) All policies of the insurance provided for in Section B(a) shall
be issued in form acceptable to Landlord by insurance companies with a
rating of not less than "A." and financial size or not less than Class X,
in the most current available "Best's Insurance Reports", and licensed to
do business in the state in which the Building is located. Each and every
such policy:
(i) shall name Landlord as well as Landlord's Mortgagee, as
defined in Section 24, and any other party reasonably designated by
Landlord, as an additional insured. In addition, the coverage
described in Section 8(a)(ii) shall also name Landlord as loss payee;
(ii) shall be delivered to Landlord within thirty (30) days after
delivery of possession of the Demised Premises to Tenant and
thereafter within thirty (30) days prior to the expiration of each
such policy, and, as often as any such policy shall expire or
terminate. Renewal or additional policies shall be procured and
maintained by Tenant in like manner and to like extent;
(iii)shall contain a provision that the insurer will give to
Landlord and such other parties in interest at least thirty (30) days
notice in writing in advance of any material change, cancellation,
termination or lapse, or the effective date of any reduction in the
amounts of Insurance; and
(iv) shall be written as a primary policy which does not
contribute to and is not in excess of coverage which Landlord may
carry.
(c) Any insurance provided for in Section 8(a) may be maintained by
means of a policy or policies of blanket insurance, covering additional
Items or locations or insureds, provided, however, that:
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(i) Landlord and any other parties in interest from time, to time
designated by Landlord to Tenant shall be named as an additional
insured thereunder as its interest may appear;
(ii) the coverage afforded Landlord and any such other parties in
interest will not be reduced or diminished by reason of the use of
such blanket policy of Insurance;
(iii) any such policy or policies shall specify therein the
amount of the total insurance allocated to the Tenant's improvements
and property; and
(iv) the requirements set forth in this Section 8 are otherwise
satisfied.
(d) In the event that Tenant shall fall to carry and maintain the
insurance coverages set forth in this Section 8, Landlord may upon thirty
(30) days notice to Tenant (unless such coverages will lapse in which event
no such notice shall be necessary) procure such policies of insurance and
Tenant shall promptly reimburse Landlord therefor.
(e) Landlord and Tenant hereby waive any rights each may have against
the other on account of any loss or damage occasioned to Landlord or
Tenant, as the case may be, their respective property, the Demised
Premises, its contents or to the other portions of the Building arising
from any risk covered by all risks fire and extended coverage Insurance,
and to the extent of recovery under valid and collectible policies of such
insurance, provided that such waiver does not invalidate such policies or
prohibit recovery thereunder. The parties hereto each, on behalf of their
respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, waive any right of subrogation that such
Insurers may have against Landlord or Tenant, as the case may be.
9. UTILITIES. During the Term, Tenant shall promptly pay as billed to
Tenant all rents and charges for water and sewer services and all costs and
charges for gas, steam, electricity, fuel, light, power, telephone, heat and any
other utility or service used or consumed in or servicing the Demised Premises
and all other costs and expenses involved in the care, management and use
thereof. If Tenant fails to pay any utility bills or charges, Landlord may, at
its option, upon reasonable notice to Tenant pay the same and in such event, the
amount of such paymenle together with interest thereon at the interest rate as
defined in Section 31(g) from the date of such payment by Landlord, will be
added to Tenant's next due payment, as Additional Rent.
10. MAINTENANCE AND REPAIRS.
(a) Tenant shall, at its own cost and expense, maintain in good
condition and repair the interior of the Demised Premises, including but
not limited to the electrical systems, heating, air conditioning and
ventilation systems, plate glass, windows and doors, sprinkler and plumbing
systems. Tenant shall maintain in full force and effect a service contract
for the heating, ventilation and air conditioning systems with an entity
reasonably acceptable to Landlord. Tenant's obligations to repair and
maintain the Demised Premises shall include without limitation all plumbing
and sewer facilities within the Demised Premises, fixtures. interior walls.
floors, ceilings, windows, doors, storefronts. plate glass, skylights, all
electrical facilities and equipment including without limitation lighting
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fixtures, lamps, fans and any exhaust equipment and systems, electrical
motors, and all other appliances and equipment of every kind and nature
located in, upon or about the Demised Premises except as to such
maintenance and repair as is the obligation of Landlord pursuant to Section
10(b) herein. All glass, both interior and exterior, is at the sole risk of
Tenant; and any broken glass shall be promptly replaced at Tenant's expense
by glass of like kind, size and quality. (b) Landlord shall, at its own
cost and expense, maintain in good condition and repair the exterior walls,
roof, foundation and structural frame of the Building.
(c) Unless the same is caused solely by the negligent action or
inaction of Landlord, Landlord shall not be liable to Tenant or to any
other person for any damage occasioned by failure in 'any utility system or
by the bursting or leaking of any vessel or pipe in or about the Demised
Premises; or for any damaged occasioned by water coming into the Demised
Premises or arising from the acts or neglects of occupants of adjacent
property or the public.
11. TENANT'S PERSONAL PROPERTY: INDEMNITY All of Tenant's personal property
in the Demised Premises shall be and remain at Tenant's sole risk, and Landlord
shall not be liable for and Tenant hereby releases Landlord from any and all
liability for theft thereof or any damage thereto occasioned by any acts,
omissions or negligence of any persons, or any act of God, and Landlord shall
not be liable for any injury to the person or property of other persons in or
about the Demised Premises, Tenant expressly agreeing to indemnify and save
Landlord harmless in all such cases. Tenant further agrees to reimburse Landlord
for any costs or expenses, Including without limitation attorneys' fees which
Landlord may incur in investigating, handling or litigating any such claim
against Landlord by a third person.
12. TENANT'S FIXTURES. Tenant shall have the right to install in the
Demised Premises trade fixtures required by Tenant or used by it in its
business, and if installed by Tenant, to remove any or all such trade fixtures
from time to time during and upon termination of this Lease, provided Tenant is
not then in default under the terms of this Lease and any applicable grace
period has not expired with the default having not been cured; provided,
however, that Tenant shall repair and restore any damage or injury to the
Demised Premises (to the condition in which the Demised Premises existed prior
to such installation) caused by the installation and/or removal of any such
trade fixtures.
13. SIGNS. No sign, advertisement or notice shall be inscribed, painted,
affixed, or displayed on the windows or exterior walls of the Demised Premises
or on any public area of the Building, except in such places, numbers, sizes,
colors and styles as are approved in advance in writing by Landlord, and which
conform to all applicable laws and/or ordinances. Any and all permitted signs
shall be installed, maintained and removed by Landlord at Tenant's sole expense.
14. This Section has been deleted.
15. GOVERNMENT REGULATIONS. Tenant shall throughout the Term of this Lease,
at Tenant's sole cost and expense, promptly comply with al1 laws and ordinances
and notices, orders, rules, regulations and requirements of all federal, state,
and municipal governments and appropriate departments, commissions, boards and
officers thereof, and notices, orders, rules and regulations of the National
Board of Fire Underwriters, or any other body now or hereafter constituted
exercising similar functions, relating to all or any part of the Demised
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Premises, foreseen or unforeseen, ordinary as well as extraordinary, or to the
use or manner of use of the Demised Premises or to the sidewalks. parking areas.
curbs and access ways adjoining the Demised Premises. Without limiting the
generality of the foregoing, Tenant shall keep in force at all times all
licenses, consents and permits necessary for the lawful use of the Demised
Premises, and Tenant shall pay all personal property taxes, income taxes,
license fees. and other taxes which are or may be assessed, levied or imposed
upon Tenant in connection with Tenant's operation of its business upon the
Demised Premises. Tenant shall likewise observe and comply with the requirements
of all policies of public liability, fire and other policies of insurance at any
time in force with respect to the Demised Premises.
16. ENVIRONMENTAL MATTERS.
(a) Tenant warrants that all its activities on the Demised Premises,
the Building, or the Project during the course of this Lease will be
conducted in material compliance with all federal, state, and local laws,
regulations, orders, permits, ordinances, and the like concerning
protection of human health and/or the environment ("Environmental Laws").
Tenant warrants that it is currently in compliance with all applicable
Environmental Laws and that there are no pending or threatened notices of
deficiency, notices of violation, orders, or Judicial or administrative
actiofis involving alleged violations by Tenant of any Environmental Laws.
Tenant, at Tenant's sole cost and expense. shall be responsible for
obtaining all permits or licenses or approvals under Environmental Laws
necessary for Tenant's operation of its business on the Demised Premises
and shall make all notifications and registrations required by any
applicable Environmental Laws. Tenant, at Tenant's sole cost and expense,
shall at all times comply with the terms and conditions of all such
permits, licenses, approvals, notifications and registrations and with any
other applicable Environmental Laws. Tenant warrants that it has obtained
all such permits, licenses or approvals and made all such notifications and
registrations required by any applicable Environmental Laws necessary for
Tenant's operation of its business on the Demised Premises.
(b) Tenant shall not cause or permit any Hazardous Substances (as
hereinafter defined) to be brought upon, kept or used in or about the
Demised Premises, the Building, or the Project without the prior written
consent of Landlord, which consent may be unreasonably and arbitrarily
withheld.
(c) In the event Landlord shall grant its consent as described in
Section 16(b) above, Tenant shall not cause or permit the release of any
Hazardous Substances into any environmental media such as air, water or
land, or into or on the Demised Premises, the Building or the Project. If
such release shall occur, Tenant shall (i) immediately take all necessary
steps to contain, control and clean up such release and any associated
contamination, (ii) notify Landlord, and (iii) take any and all other
action which may be required by Environmental Laws, governmental agencies,
and/or Landlord.
(d) Tenant shall not install any underground storage tank on the
Demised Premises.
(e) Tenant shall indemnifi Landlord and hold Landlord harmless from
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and against any and all expense, loss, and liability suffered by Landlord,
with the sole exception of those expenses, lossess and liabilities arising
solely from Landlord's own negligence or willful act, by reason of Tenant's
improper (regardless of whether accidental, intentional, or negligent)
storage, generation, handling, treatment, transportation or disposal (or
arrangement for transportation or disposal) of any Hazardous Substances, or
by Tenant's breach of any of the provisions of this Section 16, including,
without limitation, (i) any and all expenses that Landlord may incur to
comply with any Environmental Laws as a result of Tenant's failure to
comply therewith; (II) any and all costs that Landlord may incur in
studying or remedying any Contamination at or arising from the Demised
Premises, the Building, or the Project; (III) any and all costs that
Landlord may incur in studying, removing, disposing or otherwise addressing
any Hazardous Substances; (iv) any and all fines, penalties or other
sanctions assessed upon Landlord by reason of Tenant's failure to comply
with Environmental Laws; and (v) any and all legal and professional fees
and costs incurred by Landlord in connection with the foregoing The
indemnity contained herein shall survive the termination or expiration of
this Lease.
(f) The term "Hazardous Substances" as used herein means any hazardous
or toxic substance or waste as those terms are defined by any applicable
federal or state law or regulation (including, without limitation, the
Comprehensive Environmental Recovery Compensation and Liability Act, 42
U.S.C. 9601 et. sec. and the Resource Conservation and Recovery Act, 42
U.S.C. 6901 et. sec.) and petroleum products and oil.
(g) The term "Contamination" as used herein means the uncontained or
uncontrolled presence of or release of Hazardous Substances into any
environmental media and into or on any portion of the Demised Premises, the
Building, or the Project so as to require remediation, cleanup or
investigation under any applicable Environmental Law.
17. CONSTRUCTION OF DEMISED PREMISES.
(a) Within thirty (30) days after the date hereof, Landlord shall
prepare, and submit to Tenant a complete set of plans and specifications
and construction drawings (collectively, the "Plans and Specifications")
covering all work to be performed by Landlord in constructing the interior
improvements for the Demised Premises. Said Plans and Specifications shall
be in such detail as Landlord may require and shall be in compliance with
all applicable statutes, ordinances and regulations. Tenant shall approve
the Plans and Specifications by the date set forth in l(l) of the Basic
Lease Provisions. If Tenant fails to approve the Plans and Specifications
by such date, and completion of construction of the requirements is delayed
beyond the Commencement Date, the Term and Tenant's obligation to pay rent
hereunder shall nevertheless begin on the Rent Commencement Date. Any
subsequent changes to said Plans and Specifications requested by Tenant
shall be at Tenant's sole cost and expense and subject to Landlord's
written approval.
(b) Landlord shall use reasonable speed and diligence to substantially
complete the improvements within the Demised Premises, and have Demised
Premises ready for occupancy on or before the Commencement Date. If
Landlord shall be unable to give possession of the Demised Premises on that
date or if the construction has begun and Landlord is unable due to Delay
13
(as hereinafter defined) to complete the improvements on or before that
date, such failure to give possession shall not in any way affect the
obligation of Tenant hereunder except that the Minimum Rent and Additional
Rent obligation shall not occur until the Demised Premises are made
available for occupancy by Tenant, unless such failure to give possession
has been caused by any act or omission on the part of Tenant; and Landlord
and Tenant agree that the Term ▇▇▇▇▇ be extended b@ the period of such
Delay. No liability whatsoever shall arise or accrue against Landlord any
reason of its failure to deliver or afford possession, and Tenant hereby
releases and discharges Landlord from and of any claims for damage, loss,
or injury of every kind whatsoever as if this Lease were never executed.
(c) The construction period shall be extended for delays ("Delay")
incurred by reason of changes requested by Tenant In the Plans and
Specifications after the Tenant's approval thereof, and for such additional
time as is equal to the time lost by Landlord or Landlord's contractors or
suppliers in connection with the performance of Landiord's work and/or the
construction of the Building and related improvements due to strikes or
other labor troubles, governmental restrictions and limitations, war or
other national emergency, non-availabi]ily of materials or supplies, delay
in transportation, accidents, floods, fire, damage or other casualties,
weather or other conditions, acts or omissions of Tenant, or delays by
utility companies in bringing utility lines to the Demised Premises.
(d) Upon substantial completion of the Demised Premises, a
representative of Landlord and a representative of Tenant together shall
inspect the Demised Premises and generate a punchlist of defective or
uncompleted items relating to the completion of construction of the
Improvements within the Demised Premises. Landlord shall, within a
reasonable time after such punchlist is prepared and agreed upon by
Landlord and Tenant, complete such Incomplete work and remedy such
defective work as are set forth on the punchlist. All construction work
performed by Landlord shall be deemed approved by Tenant in all respects
except for items of said work which are not completed or do not conform to
the Plans and Specifications and which are included on the punchlist.
(e) Upon acceptance of the Demised Premises by Tenant, Tenant shall
execute and deliver to Landlord a letter of acceptance confirming that the
Commencement Date and Expiration Date remain as set forth in the Basic
Lease Provisions, or if revised pursuant to the terms hereof, setting forth
the Commencement Date and Expiration Date as so revised.
18. TENANT ALTERATIONS AND ADDITIONS. Tenant shall not make or permit to be
made any alterations, improvements, or additions to the Demised Premises (a
"Tenant's Change"), without first obtaining on each occasion Landlord's prior
written consent (which consent Landlord agrees not unreasonably to withhold) and
Mortgagee's prior written consent (if such consent is required). Tenant shall
furnish Landlord with a full set of plans and specifications for any Tenant's
change prior to the commencement thereof together with an original builder's
risk policy of insurance in form and amount of coverage reasonably acceptable to
Landlord, showing Tenant as named insured, and Landlord and Mortgagee as loss
payees. All Tenant's changes shall be performed in accordance with all legal
requirements applicable thereto and in a good and workmanlike manner with
first-class materials and, upon completion of any Tenant's change, Tenant shall
furnish to Landlord "as-built" drawings showing the location and type thereof.
If Landlord at the time of giving Its approval to any Tenant's change notifies
14
Tenant that approval is conditioned upon restoration, then upon written request
of Landlord, Tenant shall, at its sole cost and expense and upon the termination
of this Lease, remove the same and restore the Demised Premises to its condition
prior to such Tenant's Change. No Tenant's Change shall impair the structural
strength of the Building or reduce Its value, Tenant shall take or cause to be
taken all steps that are required or permitted by law in order to avoid the
imposition of any materialmen's or mechanics' liens upon the Building or the
Demised Premises, and Tenant shall pay the full cost of any Tenant's Change and
shall give Landlord such reasonable security as may be requested by Landlord to
insure payment of such cost. Except as otherwise provided herein and in
Paragraph 12 hereof, all Tenant's Changes and all repairs and all other property
attached to or installed on the Demised Premises by or an behalf of Tenant shall
immediately upon completion or installation thereof be and become part of the
Demised Premises and the property of Landlord without payment therefor by
Landlord and shall be surrendered to Landlord upon the expiration or earlier
termination of the Term of this Lease. Landlord shall have no duty or obligation
to make any Tenant's Change, replacement or repair to the Building, whether
interior or exterior, structural or non-structural, ordinary or extraordinary,
or to maintain the Demised Premises.
19. SERVICES BY LANDLORD. Landlord shall be responsible for providing for
maintenance of the common areas of and relating to the Building, and for no
other services whatsoever. Tenant, by payment of T-enant's share of the
Operating Expenses, shall pay Tenant's pro rata share of the expenses incurred
by Landlord hereunder.
20. FIRE AND OTHER CASUALTY.
(a) In the event of total or artial destruction of the Demised
Premises by fire or other casualty insured by Landlord, Landlord agrees to
promptly restore and repair the Demised Premises at Landlord's expense to
the extent Landlord receives insurance proceeds therefor; provided, however
that in the event the Demised Premises are (i) so destroyed that they
cannot be repaired or rebuilt within one hundred twenty (120) days after
the commencement of such repair or rebuilding; or (ii) destroyed by a
casualty which is not covered by Landlord's insurance, or if such casualty
is covered by Landlord's insurance but a Landlord's Mortgagee or other
party entitled to insurance proceeds fails to make such proceeds available
to Landlord in an amount sufficient for restoration of the Demised
Premises, then, either Landlord or Tenant may terminate and cancel this
Lease effective as of the 5th day after such casualty by giving written
notice to the other party within such days of the date of such casualty.
Upon the giving of such notice, all further obligations hereunder shall
thereupon cease and terminate. If no such notice is given, Landlord shall
make such repair or restoration of the Demised Premises promptly and in
such manner as not to unreasonably Interfere with Tenant's use and
occupancy of the Demised Premises (if Tenant is still occupying the Demised
Premises). Any proceeds from the fire and extended coverage Insurance
policies not utilized by Landlord in restoring or repairing the Demised
Premises shall become the sole property of Landlord. Minimum Rent shall
proportionately ▇▇▇▇▇ during the time that the Demised Premises or any part
thereof are unusable by reason of any such damage thereto.
15
(b) Except as provided herein, damage to or destruction of all or any
portion of the Demised Premises by fire or by any other cause shall not
terminate this Lease, nor entitle Tenant to surrender the Demised Premises
nor in any way affect Tenant's obligation to pay the Minimum Rent,
Additional Rent and other sums payable hereunder.
21. CONDEMNATION.
(a) If all of the Demised Premises is taken or condemned for a public
or quasi-public use, or if a material portion of the Demised Premises is
taken or condemned for a public or quasi-public use and the remaining
portion thereof is not usable by Tenant, this Lease shall terminate as of
the earlier of the date title to the condemned real estate vests in the
condemnor and the date on which Tenant is deprived of possession of the
Demised Premises. In such event, the Minimum Rent herein reserved and all
Additional Rent and other sums payable hereunder shall be apportioned and
paid In full by Tenant to Landlord to that date, all Minimum Rent,
Additional Rent and other sums payable hereunder prepaid for periods beyond
that date shall forthwith be repaid by Landlord to Tenant, and neither
party shall thereafter have any liability hereunder, except that any
obligation or liability of either party, actual or contingent, under this
Lease which has accrued on or prior to such termination date shall survive.
(b) If only part of the Demised Premises is taken or condemned for a
public or quasi-public use and this Lease does not terminate pursuant to
Section 21(a) above, Landlord to the extent of the award it receives, shall
restore the Demised Premises to a condition and to a size as nearly
comparable as reasonably possible to the condition and size thereof
immediately prior to the taking, and there shall be an equitable abatement
of the Minimum Rent and Additional Rent according to the value of the
Demised Premises before and after the taking. Pending such determination,
Tenant shall continue to pay Life Minimum Rent and Additional Rent as
herein originally specified, and upon such determination. If Tenant is
entitled to a refund because of an overpayment of Minimum Rent or
Additional Rent, Landlord shall make the same promptly, or in lieu thereof
credit the amount thereof to future installments of Minimum Rent or
Additional Rent as they become due.
(c) Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Section 21,
without deduction therefrom for any estate vested in Tenant by this Lease,
and Tenant shall receive no part of such award. Nothing herein contained
shall be deemed to prohibit Tenant from making a separate claim, against
Life condemnor, to the extent permitted by law, for the value of Tenant's
moveable trade fixtures, machinery and moving expenses, provided that the
making of such claim shall not and does not adversely affect or diminish
Landiord's award.
22. TENANT'S DEFAULT.
(a) The occurrence of any one or more of the following events shall
constitute an Event of Default of Tenant under this Lease: (i) If Tenant
falls to pay Minimum Rent or any Additional Rent hereunder as and when such
rent becomes due and such failure shall continue for more than 5 days after
receipt of written notice from Landlord of such failure; (ii) if Tenant
fails to pay Minimum Rent or any Additional Rent on time more than twice in
16
any period of 12 months (provided Landlord has given Tenant written notice
of the previous failures during such 12 month period within 20 days of the
date such payment was due), notwithstanding that such payments have been
made within the applicable cure period, (iii) If the Demise Premises become
vacant, deserted, or abandoned for more than 10 consecutive days or if
Tenant fails to take possession of the Demised Premises on the Commencement
Date or promptly thereafter; (iv) if Tenant permits to be done anything
which creates a lien upon the Demised Premises and falls to discharge, bond
such lien or post security with Landlord acceptable to Landlord within 10
days after receipt by Tenant of written notice thereof; (v) if Tenant
violates the provisions of Section 29 of this Lease by attempting to make
an unpermitted assignment or sublease; (vi) if Tenant fails to maintain in
force all policies of insurance required by this Lease and such failure
shall continue for more than 10 days after Landlord gives Tenant notice of
such failure; (vii) if any petition is filed by or against Tenant or any
guarantor of this Lease under any present or future section or chapter of
the Bankruptcy Code, or under any similar law or statute of the United
States or any state thereof (which, in the case of an involuntary
proceeding, is not permanently discharged, dismissed, stayed, or vacated,
as the case may be, within 60 days of commencement), or if any order for
relief shall be entered against Tenant or any guarantor of this Lease in
any such proceedings,, (vill) if Tenant or any guarantor of this Lease
becomes insolvent or makes a transfer in fraud of creditors or makes an
assignment for the benefit of creditors; (ix) if a receiver. custodian, or
trustee is appointed for the Demised Premises or for all or substantially
all of the assets of Tenant or of any guarantor of this Lease, which
appointment is not vacated within 69 days following the date of such
appointment (x) if Tenant fails to perform or observe any other term of
this Lease and such failure shall continue for more than 10 days after
Landlord ves Tenant notice of such failure, or, if such failure cannot be
correrted within such 10 day period, if Tenant does not commence to correct
such default within said 10 day period and thereafter diligently prosecute
the correction of same to completion within a reasonable time and in any
event prior to the time a failure to complete such correction could cause
Landlord to be subject to prosecution for violation of any law, rule,
ordinance or regulation or causes, or could cause a default under any
mortgage, underlying lease, tenant leases or other agreements applicable to
the Project; or (xi) if Tenant fails to perform any term (other than the
payment of Minimum Rent or any Additional Rent) of this Lease more then 2
times In any period of 12 months, notwithstanding that Tenant has corrected
any previous failures within the applicable cure period.
(b) Upon the occurrence of any one or more of the aforesaid Events of
Default, or upon the occurrence of any other default or defaults by Tenant
under this Lease, Landlord may, at Landlord's option, without any demand or
notice whatsoever (except as expressly required In this Section 22):
(i) Terminate this Lease by giving Tenant notice of termination,
in which event this Lease shall expire and terminate on the date
specified In such notice of termination with the same force and effect
as though the date so specified were the date herein originally fixed
as the termination date of the term of this Lease. and all rights of
Tenant under this Lease and in and to the Demised Premises shall
expire and terminate and Tenant shall remain liable for all
obligations under this Lease arising up to the date of such
termination, and Tenant shall surrender the Demised Premises to
17
Landlord on the date specified in such notice, and if Tenant fails to
so surrender Landlord shall have the right. without notice, to enter
upon and take possession of the Demised Premises and to expel or
remove Tenant and its effects without being liable for prosecution or
any claim for damages therefor; or
(ii) Terminate this Lease as provided in Section 22(b)(i) hereof
and recover from Tenant all damages Landlord may incur by reason of
Tenant's default, including, without limitation, a sum which, at the
date of such termination, represents the then value of the excess, if
any, of (1) the total Minimum Rent, Additional Rent, and all other
sums which would have been payable hereunder by Tenant for the period
commencing with the day following the date of such termination and
ending with the Termination Date of the Term, over (2) the aggregate
reasonable rental value of the Demised Premises for the same period,
plus (3) the costs of recovering the Demised Premises and all other
expenses incurred by Landlord due to Tenant's default, Including,
without limitation, reasonable attorney's fees, plus (4) the unpaid
Minimum Rent earned as of the date of termination plus interest at the
Interest Rate (as defined In Section 32 herein), plus other sums of
money and damages owing on the date of termination by Tenant to
Landlord under this Lease or in connection with the Demised Premises,
all.of which excess sum shall be deemed immediately due and payable:
or
(iii) Without terminating this Lease, and with or without notice
to Tenant, Landlord may in Its own name but as agent for Tenant enter
into and upon and take possession of the Demised Premises or any part
thereof, and, at Landlord's option, remove persons and property
therefrom and such property if any, may be removed and stored in a
warehouse or elsewhere at the cost of, and for the, account of Tenant.
all without being deemed guilty of trespass or becoming liable for any
loss or damage which may be occasioned thereby, and Landlord may rent
the Demised Premises or any portion thereof as the agent of Tenant
with or without advertisement, and by private negotiations and for any
term upon such terms and conditions as Landlord may deem necessary or
desirable in order to relet the Demised Premises. Landlord shall in no
way be responsible or liable for any failure to rent the Demised
Premises or any part thereof, or for any failure to collect any rent
due upon such reletting. Upon each such reletting, all rentals
received by Landlord from such reletting shall be applied: first, to
the payment of any indebtedness (Other than any rent due hereunder)
from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including, without limitation, brokerage
fees and attorney's fees and costs of alterations and repairs; third,
to the payment of rent and other charges then due and unpaid
hereunder: and the residue, if any, shall be held by Landlord to the
extent of and for application in payment of future rent, If any
becomes owing, as the same may become due and payable hereunder. In
reletting the Demised Premises as aforesaid, Landlord may grant rent
concessions and Tenant shall not be credited therefore. If such
rentals received from such reletting shall at any time or from time to
time be less than sufficient to pay to Landlord the entire sums then
due from Tenant hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall, at Landiord's option, be calculated
and paid monthly. Notwithstanding any such reletting without
18
termination, Landlord may at any time thereafter elect to terminate
this Lease for any such previous default provided same has not been
cured; or
(iv) Without terminating this Lease, and with or without notice
to Tenant, Landlord may enter into and upon the Demised Premises and
without being liable for prosecution or any claim for damages
therefore, maintain the Demised Premises and repair or replace any
damage thereto or do anything or make any payment for which Tenant is
responsible hereunder. Tenant shall reimburse Landlord Immediately
upon demand for any expenses which Landlord incurs in thus effecting
Tenant's compliance under this Lease, and Landlord shall not be liable
to Tenant for any damages with respect thereto; or
(v) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor,
utilities or other service, wherever Landlord is obligated to furnish
or render the same so long as Tenant is in default under this Lease:
or
(vi ) Allow the Demised Premises to remain unoccupied and collect
rent from Tenant as it-comes due; or
(vil) Foreclose any security interest in the property of Tenant
which Landlord may have under the laws of the state where the Building
is located or under this Lease, including the immediate taking of
possession of all property on or in the Demised Premises; or
(vill) Pursue such other remedies as are available at law or
equity.
(c) If this Lease shall terminate as a result of or while there exists
a default hereunder, any funds of Tenant held by Landlord may be applied by
Landlord to any-damages payable by Tenant (whether provided for herein or
by law) as a result of such termination or default.
(d) The parties hereby waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties herein against the other
on any matters whatsoever, arislng out of or in an way connected with this
Lease, Tenant's use or occupancy of the Demised Premises, or any claim of
injury or damage hereunder, and Tenant covenants and agrees that Tenant
will not interpose any counterclaim, offset, or deduction in any summary
proceeding brought by Landlord to recover possession of the Demised
Premises.
(e) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be
a bar to the maintenance of any subsequent actions or proceedings for the
recovery of such sum or sums so omitted.
(f) The foregoing provisions of this Article 22 shall apply to any
renewal or extension of this Lease.
19
(g) If any statute or rule of law shall limit any of Landlord's
remedies as hereinabove set forth, Landlord shall nonetheless be entitled
to any and all other remedies hereinabove set forth.
(ii) No agreement to accept a surrender of the Demised Premises
and no act or omission by Landlord or Landlord's agents during the
Term shall constitute an acceptance or surrender of the Demised
Premises unless made in writing and signed by Landlord. No re-entry or
taking possession of the Demised Premises by Landlord shall constitute
an election by Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant.
(i) No provision of this Lease shall be deemed to have been waived by
either party unless such waiver is in writing and signed by the party
making such waiver. Landlord's acceptance of Minimum Rent or Additional
Rent following an. Event of Default hereunder shall not be construed as a
waiver of such Event of Default. No custom or practice which may grow up
between the parties In connection with the terms of this Lease shall be
construed to waive or lessen either party's right to insist upon strict
performance of the terms of this Lease, without a written notice thereof
the other party.
(j) The rights granted to Landlord In this Section 22 shall be
cumulative of every other right or remedy provided in this Lease or which
Landlord may otherwise have at law or in equity or by statute, and the
exercise of one or more rights or remedies shall not prejudice or impair
the concurrent or subsequent exercise of other rights,or remedies or
constitute a forfeiture or waiver of Minimum Rent, Additional Rent or
damages accruing to Landlord by reason of any Event of Default under the
Lease. If an Event of Default shall occur, Tenant shall pay to Landlord, on
demand, all expenses incurred by Landlord as a result thereof, including
reasonable attorneys' fees, court costs and expenses. If Landlord shall be
made a party to any litigation commenced against Tenant as a result of this
Lease, Landlord's ownership of the Demised Premises or the relationshi of
Landlord and Tenant arising by virtue of this Lease, and Tenant, at its
expense, shalf fail to provide Landlord with counsel approved by Landlord,
Tenant shall pay all costs and reasonable attorneys' fees incurred by
Landlord In connection with such litigation.
(k) In the event that Tenant is in default hereunder, and any rent,
including Minimum Rent, Additional Rent and any other sums, owing under
this Leases collected by or through an attorney-at-law, Tenant agrees to
pay fifteen percent (15%) of such sum as attorneys fees.
23. LANDLORD'S RIGHT OF ENTRY. Tenant agrees to permit Landlord and the
authorized representatives of Landlord and of the Mortgagee to enter upon the
Demised Premises at all reasonable times for the purposes of inspecting them and
making any necessary repairs thereto and performing any work therein that may be
necessary by reason of Tenant's failure to make such repairs or perform any such
work required of Tenant under this Lease; provided that, except in the case of
an emergency, Landlord shall give the Tenant reasonable prior written notice of
Landlord's intended entry upon the Demised Premises. Nothing herein shall imply
any duty upon the part of Landlord to do any such work, and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to perform it. Landlord shall not be liable for inconvenience, annoyance,
disturbance or other damage to Tenant by reason of making such repairs or the
20
performance of such work in the Demised Premises or on account of bringing
materials, supplies and equipment into or through the Demised Premises during
the course thereof, and the obligations of Tenant under this Lease shall not
thereby be affected: provided, however, that Landlord shall use reasonable
efforts not to annoy, disturb or otherwise interfere with Tenant's operations in
the Demised Premises in making such repairs or performing such work. Landlord
also shall have the right to enter the Demised Premises at all reasonable times
to exhibit the Demised Premises to any prospective purchaser and/or mortgagee
thereof; and Landlord shall have the right to exhibit the Demised Premises to
any prospective tenant at any time within six (6) months prior to the expiration
of the Term of this Lease, unless Tenant shall have previously exercised a then
current option to renew the Term beyond the then current Term.
24. MORTGAGEE'S RIGHTS.
(a) This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to the lien of Landlord's Mortgage (as defined
hereinbelow). Tenant recognizes and acknowledges the right of the holder of
Landlord's Mortgage (the "Mortgagee") to foreclose or exercise the power of
sale against the Demised Premises under Landlord's Mortgage.
(b) Tenant shall, in confirmation of the subordination set forth in
Section 24(a) above and notwithstanding the fact that such subordination is
self-operative, and no further instrument or subordination shall be
necessary, upon demand, at any time or times, execute, acknowledge, and
deliver to Landlord or to Mortgagee any and all instruments requested by
either of them to evidence such subordination.
(c) If requested by Mortgagee, Tenant shall. upon demand, at any time
or times, execute, acknowledge, and deliver to Mortgagee, any and all
instruments that may be necessary to make this Lease superior to the lien
of Landlord's Mortgage.
(d) If Mortgagee shall hereafter succeed to the rights of Landlord
under this Lease, whether through possession or foreclosure action or
delivery of a new lease, Tenant shall, at the option of the Mortgagee,
attorn to and recognize such successor as Tenant's Landlord under this
Lease without change in the terms and provisions of this Lease (provided
that such successor shall not be bound by (i) any payment of Minimum Rent
or Additional Rent for more than one month in advance, except prepayments
in the nature of security for the performance by Tenant of its obligations
under this Lease, and then only if such prepayments have been deposited
with and are under the control of such successor, or (ii) any provision of
any amendment to the Lease to which the Mortgagee has not consented, and
shall promptly execute and deliver any Instrument that may be necessary to
evidence such attornment. Upon such attornment, this Lease shall continue
in full force and effect as a direct lease between each successor Landlord
and Tenant, subject to all of the terms, covenants and conditions of this
Lease.
As used in this Paragraph 24 and In Paragraph 32, the term "Landlord's
Mortgagee" means any or all mortgages, deeds to secure debt, deeds of trust
or other Instruments in the nature thereof which may now or hereafter
affect or encumber Landlord's title to the Demised Premises.
21
25. ESTOPPEL CERTIFICATE. Tenant agrees. at any time, and from time to
time, within ten (10) days' after Landlord's written request, to execute,
acknowledge and deliver to Landlord, a statement in writing in recordable form
to Landlord and/or its designee certifying that: (i) this Lease is unmodified
and in full force and effect (or, if there have been modifications, that the
same is in full force and effect, as modified) and (ii) the dates to which
Minimum Rent, Additional Rent and other charges have been paid, (iii) whether or
not, to the best knowledge of the signer of such certificates, there exists any
failure by Landlord to perform any term, covenant or condition contained in this
Lease, and, if so, specifying each such failure of which the signer may have
knowledge, (iv) (if such be the case) the Tenant has unconditionally accepted
the Demised Premises and is conducting its business therein, (v) and as to such
additional matters as may be requested by Landlord, it being intended that any
such statement delivered pursuant hereto may be relied upon by Landlord and by
any purchaser of title to the Demised Premises or by any Mortgagee or any
assignee thereof or any party to any sale-leaseback of the Demised Premises, or
the landlord under a ground lease affecting the Demised Premises.
26. LANDLORD LIABILITY. No owner of the Demised Premites, whether or not
named herein, shall have liability hereunder after lie ceases to hold title to
the Demised Premises, except for obligations which may have theretofore accrued.
Neither Landlord nor any officer, director,' shareholder, partner or principal,
whether disclosed or undisclosed, of Landlord shall be under any personal
liability with respect to any of the provisions of this Lease, an-a if Landlord-
is in breach or default with respect to Landlord's obligations or otherwise
under this Lease, Tenant shall look solely to the equity of Landlord in the
Demised Premises for the satisfaction of Tenant's remedies. It is expressly
understood and agreed that Landlord's liability under the terms, covenants,
conditions, warranties and obligations of this Lease shall in no event exceed
the loss of Landlord's equity interest in the Demised Premises.
27. NOTICES AND PAYMENTS. Any notice or payment required or permitted to be
given or served by either party to this Lease shall be deemed given when made in
writing, deposited with the United States Postal Service, postage prepaid, to be
mailed by registered mail, return receipt requested, or delivered by overnight
delivery service, properly addressed to the address set forth in l(n) of the
Basic Lease Provisions.
28. BROKERS. Neither Landlord nor Tenant has engaged any brokers who would
be entitled to any commission or fee based on the execution of this Lease, other
than those set forth in l(o) of the Basic Lease Provisions (the "Brokers") who
shall be paid pursuant to separate agreement. Further, neither Landlord nor
Tenant have had any conversations or negotiations with any broker except the
Brokers concerning the leasing of the Demised Premises. Landlord and Tenant
hereby indemnify each other against and from any claims for any brokerage
commissions (except those payable to the Brokers, all of wnich are payable by
Landlord) and all costs, expenses and liabilities in connection therewith,
including, without limitation, reasonable attorneys' fees and expenses, for any
breach of the foregoing. The foregoing indemnification shall survive the
termination of the Lease for any reason.
29. ASSIGNMENT AND SUBLEASING. Tenant may not assign, mortgage, pledge,
encumber or otherwise transfer this Lease, or any interest thereunder, or sublet
the Demised Premises, in whole or in part, without on each occasion first
obtaining the prior express written consent of Landlord, which consent Landlord
may give or withhold in its sole and absolute discretion. Permitted subtenants
22
or assignees shall become liable directly to Landlord for all obligations of
Tenant hereunder, without, however, relieving Tenant of any of its liability
hereunder. Tenant further agrees that if such subtenant or assignee is required
to any rent greater than the rent required to be paid by Tenant hereunder, then
Landlord shall be entitled to receive and shall be paid such increased amount as
Additional Rent. No such assignment, subletting, occupancy or collection shall
be deemed the acceptance of the assignee, tenant or occupant, as Tenant, or a
release of Tenant from the further performance by Tenant of Tenant's obligations
under this Lease.
30. TERMINATION OR EXPIRATION.
(a) No termination of this Lease prior to the normal ending thereof by
lapse of time or otherwise, shall affect Landlord's right to collect rent
for the period prior to termination thereof.
(b) At the expiration or earlier termination of the Term of this
Lease, Tenant shall surrender the Demised Premises and all improvements,
alterations and additions thereto, and keys therefor to Landlord, clean and
neat, and in the same condition as at the commencement of the Term, natural
wear and tear only excepted.
(c) If Tenant remains in possession of the Demised Premises after
expiration of the Term hereof, with Landlord's acquiescence and without any
express agreement of the parties, Tenant shall be a tenant-at-will at one
hundred fifty percent (150%) of the Minimum Rent in effect at the end of
the Term of the Lease, together with all other Additional Rent due
hereunder, and there shall be no renewal of this Lease by operation of law.
31. This section has been deleted.
32. LATE PAYMENTS. In the event any installation of rent, inclusive of
Minimum Rent, or Additional Rent or other sums due hereunder. if any, is not
paid within five (5) days after the date when such rent is due, Tenant shall pay
interest or the amount past due at a rate of fifteen percent (15%) per annum
(the "Interest Rate") to defray the additional expenses incurred by Landlord In
processing such payment.
33. RULES AND REGULATIONS Tenant agrees to abide by the Rules and
Regulations set forth on Exhibit "D" attached hereto, as well as other rules and
regulations reasonably promulgated by the Landlord from time to time.
34. MISCELLANEOUS.
(a) The parties hereto hereby covenant and agree that this Lease is a
"net lease" and that, any present or future law to the contrary
notwithstanding, this Lease &hall not terminate, except as herein
specifically provided, and Landlord shall receive the Minimum Rent and
Additional Rent and all other sums payable by Tenant hereinabove provided
as net income from the Demised Premises, without any abatement, reduction,
sel-off, counterclaim, defense or deduction and not diminished by (a) any
imposition of an public authority of any nature whatsoever during the
entire Term, notwithstanding any changes in the method of taxation or
raising, levying or assessing any imposition, or any changes In the name of
any imposition, or (b) any expenses or charges required to be paid to
maintain and carry the Demised Premises or to continue the ownership of
23
Landlord, other than payments under any mortage now existing or hereafter
created by Landlord. The obligations of Tenant hereunder shall not be
affected by reason of any damage to or destruction of the Demised Premises.
Tenant shall remain obligated under this Lease in accordance with its terms
and shall not take any action to terminate, rescind or void this Lease,
notwithstanding any bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding affecting Landlord or any assignee of
Landlord.
(b) If any clause or provision of this Lease is determined to be
illegal, invalid or unenforceable under present or future laws effective
during the term of this Lease, then and in that event. it is the intention
of the parties hereto that the remainder of this Lease shall not be
affected thereby. and that in lieu of such illegal, invalid or
unenforceable clause or provision there shall be substituted a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
(c) All rights, powers, and privileges conferred hereunder upon the
parties hereto shall be cumulative, but not restrictive to those given by
law.
(d) Time is of the essence of this agreement.
(e) No failure of Landlord or Tenant to exercise any power given
Landlord or Tenant hereunder or to insist upon strict compliance by
Landlord or Tenant with its obligations hereunder, and no custom or
practice of the parties at variance with the terms hereof shall constitute
a waiver of Landiord's or Tenant's rights to demand exact compliance with
the terms hereof.
(f) This Lease contains the entire agreement of the parties hereto and
no representations, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force and effect.
The masculine (or neuter) pronoun, singular number shall include the
masculine, feminine and neuter gender and the singular and plural number.
(g) This contract shall create the relationship of Landlord and Tenant
between Landlord and Tenant; no estate shall pass out of Landlord; Tenant
has a usufruct, not subject to levy and sale, and not assignable by Tenant
except as expressly set forth herein.
(h) Landlord and Tenant agree to execute, upon request of the other, a
memorandum of this Lease in recordable form and the requesting party shall
pay the costs and charges for the recording of such memorandum of lease.
Under no circumstances shall Tenant have the right to record this Lease,
and should Tenant do so, Tenant shall be in default hereunder.
(i) The captions of this Lease are for convenience only and are not a
part of this Lease, and do not in any way define, limit, describe or
amplify the terms or provisions of this Lease or the scope or intent
thereof.
(j) This Lease may be executed in multiple counterparts, each of which
shall constitute an original, but all of which taken together shall
constitute one and the same agreement.
24
(k) This Lease shall be interpreted under the laws of the State where
the Demised Premises are located.
35. STIPULATIONS. The Special Stipulations, if any, attached hereto as
Exhibit C, are incorporated herein and made a part hereof, and to the extent of
any conflict between the foregoing provisions and the Special Stipulations, the
Special Stipulations shall govern and control.
IN WITNESS WHEREOF, the parties hereto have hereunto set their seals, the
day and year first above written.
LANDLORD:
INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC.
s/s ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________________
▇▇▇▇▇ ▇. "▇▇▇▇" ▇▇▇▇▇▇▇
Its: President
Approved by A & B s/s SO
s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attest:____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Secretary
(CORPORATE SEAL)
(If Tenant is an Individual)
TENANT:
_____________________________ (SEAL)
Name: _____________________________
(If Tenant is a Partnership)
TENANT:
s/s ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________ (SEAL)
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
25
LANDLORD:
STATE 0F GEORGIA
COUNTY OF ▇▇▇▇▇▇
BEFORE ME, a Notary Public in the aforesaid County, personally appeared
▇▇▇▇▇ ▇. "▇▇▇▇" Gorgory and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ known to me to be the person(s)
who, as President and Secretary respectively, of Industrial Development
International, Inc., the corporation which executed the foregoing Instrument
in its capacity as Landlord, signed the same, and acknowledged to me that they
did so sign said instrument in the name and upon behalf of said corporation as
officers of said corporation, that the same is their free act and deed as such
officers, respectively, and they were duly authorized thereunto by its board of
directors; and that the seal affixed to said Instrument is the corporate seal o
said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this 30th day of May, 1991.
s/s ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Notary Public
My Commission Expires: 4/22/92
TENANT - Individual:
STATE OF
COUNTY OF
BEFORE ME, a Notary Public in and for said County, personally appeared
___________________________ known to me to be the person(s) who executed the
foregoing instrument in its capacity as Landlord, signed the same, and
acknowledged to me that (s)he did so sign said instrument in the name and that
the same is his/her free act and deed.
IN TESTIMONY WIIEREOF, I have hereunto subscribed my name, and afflxed my
official seal this day of 19_.
_______________________________
Notary Public
My Commission Expires:
26
TENANT - Partnership:
STATE OF FLORIDA
COUNTY OF PINELLAS
BEFORE ME, a Notary Public in and for said County, personally appeared ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ and _______________________ known to me to be the person(s) and who,
as President and ____________________, respectively , of Datalinc-I, Ltd., the
partnership which executed the foregoing instrument in its capacity as Tenant,
signed the same, and acknowledged to me that they did so sign said instrument in
the name and upon behalf of said partnership, that the same is their free act
and deed and they were duly authorized thereunto by the partnership.
IN TESTIMONY WHEREOF, I have subscribed my name, and affixed my official
seal, this 8th day of May, 1991.
s/s ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_______________________________
Notary Public
My Commission Expires:
Notary Public, State of Florida at Large
My Commission Expires June 1, 1991
TENANT - Corporation:
STATE OF
COUNTY OF
BEFORE ME, a Notary Public in and for said County, personally appeared
__________________ and __________________ known to me to be the person(s) who,
as ___________________ and ___________________, respectively, of the corporation
which executed the foregoing instrument in its capacity as Tenant, signed the
same, and acknowledged to me that they did so sign said Instrument In the name
and upon behalf of said corporation as officers of said corporation. that the
same Is their free act and deed as such officers, respectively, and they were
duly authorized thereunto by its board of directors; and that the seal affixed
to said instrument is the corporate seal of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this day of 19_.
_______________________________
Notary Public
My Commission Expires:
27
EXHIBIT "C"
1. LANDLORD DEFAULT. In the event that Tenant shall receive a final
Judgment in a court of competent jurisdiction in the State of Ohio to the effect
that Landlord has committed a material breach of this Lease, and any appeal
period has expired without any appeal of such judgment being filed by Landlord,
and any cure period as established by such Judgment or otherwise has expired
without Landlord curing such breach, then Tenant may terminate this lease upon
five (5) days written notice to Landlord.
28
EXHIBIT "D"
INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC.
RULES AND REGULATIONS
These Rules and Regulations have been adopted by Industrial Developments
International . Inc. ("Landlord") for the mutual benefit and protection of all
the tenants of the, Building In order to insure the safety, care and cleanliness
of the Building and the preservation of order therein.
1. The sidewalks, entrances, passages, corridors or halls shall not be
obstructed or used for any purpose other than ingress and egress. No tenant and
no employees of any tenant shall go upon the roof of the Building without the
consent of Landlord.
2. No awnings or other projections shall be attached to the outside walls
of the Building.
3. The wash room partitions, mirrors, wash basins and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags or other substances shall be thrown
therein.
4. No tenant shall cause or permit any objectionable or offensive noise or
odors to be emitted from the Premises.
5. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purposes.
6. No tenant shall make. or permit to be made any unseemly or disturbing
noises, sounds or vibrations or disturb or interfere with tenants of this or
neighboring buildings or premises or those having business with them whether by
use of any musical instrument, radio, phonograph, unusual noise, or in any other
way.
7. Each tenant must, upon the termination of this tenancy, restore to the
Landlord all keys of stores, offices, and rooms, either furnished to, or
otherwise procured by, such tenant and in the event of the loss of any keys so
furnished, such tenant shall pay to the Landlord the cost of replacing the same
or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such change.
8. If any tenant shall employ one or more persons to do janitorial or other
similar work In the Premises, that tenant shall, while such persons are in the
Building and outside the Premises, follow such directions as the manager of the
Building may prescribe with respect to the control of such persons, and such
tenant shall be responsible for all acts of such persons.
9. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent such activity.
29
10. Landlord will direct electricians as to where and how telephone or
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord.
11. Parking spaces associated with the Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express written permission of Landlord.
12. Tenant shall not use any area within the Project for storage purposes
other then the interior of the Demised Premises.
30
AMENDMENT NO. 1 TO LEASE AGREEMENT
This AMENDMENT NO. 1 TO LEASE AGREEMENT (this "Amendment") is entered into
this 16th day of September, 1991, between INDUSTRIAL DEVELOPMENTS INTERNATIONAL,
INC. ("Landlord") and DATALINC-I, LTD., a limited partnership having Integrated
Communication Networks, Inc. as its general partner ("Tenant").
RECITALS:
Landlord and Tenant entered into that certain Industrial Lease Agreement
dated April 15, 1991, for approximately 9,400 square feet of space within the
premises located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (the
"Lease").
Landlord has agreed to construct additional improvements to the Demised
Premises, and Tenant has agreed to increase the Minimum Rent as consideration
therefore.
FOR AND IN CONSIDERATION of Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. All defined terms used in this Amendment shall have the meaning given to
them in the Lease.
2. Minimum Rent. Landlord and Tenant agree that Annual Minimum Rent, as
defined in Section l(d) of the Lease, shall be increased by $.24 per square foot
of the Demised Premises for the first sixty (60) months following the Minimum
Rent Commencement Date. For the period commencing December 1, 1991, and ending
May 31, 1996, Annual Minimum Rent shall be $71,064.00 with monthly minimum rent
installments of $5,922.00. For the six month period commencing June 1, 1996, and
ending December 1, 1996, Annual Minimum Rent shall be $81,384.00, with monthly
minimum rent installments of $6,782.00.
3. Ratification. Except as modified hereby, the Lease is hereby ratified
and confirmed by Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date written above.
LANDLORD:
INDUSTRIAL DEVELOPMENTS
INTERNATIONAL, INC.
s/s ▇▇▇▇▇ ▇. "▇▇▇▇" ▇▇▇▇▇▇▇, Jr.
----------------------------------
By: ▇▇▇▇▇ ▇. "▇▇▇▇" ▇▇▇▇▇▇▇, Jr.
Title: President
s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Attest: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
31
TENANT:
DATALINC-I, LTD-, a Florida
limited partnership
By: Integrated Communications
Networks, Inc., general
partner
s/s ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
32
AMMENDMENT NO, 2 TO LEASE AGREEMENT
THIS AMENDMENT NO. 2 TO LEASE AGREEMENT (this "Amendment") is entered into
this 31st day of January, 1994, between INDUSTRIAL DEVELOPMENTS INTERNATIONAL,
INC. ("Landlord") and DATALINC-I, LTD., a Florida limited partnership having
Integrated Communication Networks, Inc. as its general partner ("Tenant").
RECITALS:
Landlord and Tenant entered into that certain Industrial Lease Agreement
dated April 15, 1991, as amended by that certain Amendment No. I to Lease
Agreement dated September 16, 1991 (as amended, the "Lease"), for approximately
9,400 square feet of space within the premises located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇.
Landlord has consented to the construction of additional improvements
within the Demised Premises by Tenant and has agreed to reimburse Tenant for
Tenant's costs incurred in such construction, and Tenant has agreed to increase
the Minimum Rent as consideration therefore.
Landlord and Tenant desire to amend the Lease to, among other things,
extend the Term of the Lease and increase the Minimum Rent.
FOR AND IN CONSIDERATION of Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. DEFINED TERMS. All capitalized terms used in this Amendment and not
defined herein shall have the meaning given to them in the Lease.
2. TERMINATION DATE. The Termination Date, as defined in Section I (h) of
the Lease, is hereby extended to January 31, 2005.
3. MINIMUM RENT. The Annual Minimum Rent, as defined in Section I (d) of
the Lease, shall be increased as follows. For the period commencing February 1,
1994, and ending May 31, 1996, Annual Minimum Rent shall be $80,500.00 with
Monthly Minimum Rent Installments of $6,708.33.'00. For the six month period
commencing June 1, 1996, and ending November 30, 1996, Annual Minimum Rent shall
be $90,820.00 with Monthly Minimum Rent installments of $7,568.33.00. For the
period commencing December 1, 1996, and ending January 31, 2004,- Annual Minimum
Rent shall be $88,564.00 with Monthly Minimum Rent installments of $7,380.33.
4. CONSTRUCTION OF ADDITIONAL IMPROVEMENTS.
(a) Tenant shall be responsible for constructing certain additional
interior improvements within the Demised Premises (the "Additional
Improvements"). Within thirty (30) days after the date hereof, Tenant
shall, at its sole cost and expense, prepare and submit to Landlord for
Landlord's written approval of disapproval (which approval will not be
unreasonably withheld or conditioned) a complete set of plans and
specifications and construction drawings (collectively, the "Plans and
Specifications") covering all work to be performed by Tenant in
constructing the Additional Improvements. The Plans and Specifications
shall be in such detail as Landlord may reasonably require and shall be in
compliance with all applicable statutes, ordinances and regulations.
Landlord shall review the Plans and Specifications and indicate requested
33
changes, if any, by written notice to Tenant, within ten (10) days after
receipt of the Plans and Specifications by Landlord. If Landlord fails to
indicate such requested changes to the Plans and Specifications by such
date, the Plans and Specifications shall be deemed approved. Thereafter,
any changes to the Plans and Specifications shall be subject to Landlord's
written approval.
(b) Tenant or its contractor shall construct the Additional
Improvements in a good, first-class and workmanlike manner and in
accordance with the Plans and Specifications. Tenant shall carry, or cause
its contractor to carry, insurance reasonably satisfactory to Landlord
throughout the construction of the Additional Improvements.
(c) Upon substantial completion of the Additional Improvements, a
representative of Landlord and a representative of Tenant together shall
inspect the Demised Premises and generate a punchlist of defective or
uncompleted items relating to the completion of construction of the
Additional Improvements. Tenant shall, within a reasonable time after such
punchlist is prepared and agreed upon by Landlord and Tenant, complete such
incomplete work and remedy such defective work as are set forth on the
punchlist.
(d) Landlord shall reimburse Tenant for Tenant's costs (as defined in
subsection (e) below) incurred in constructing the Additional Improvements,
up to Sixty Thousand and No/100 Dollars ($60,000.00) (the "Tenant
Allowance") as follows:
(1) Landlord shall pay fifty percent (50%) of the Tenant
Allowance to Tenant at such time as:
(i) Tenant has delivered to Landlord copies of Tenant's
building permit;
(ii) Tenant has received Landlord's written approval
of the Plans and Specifications;
(iii) Tenant's contractor has completed fifty percent
(50%) of the Additional Improvements within the Demised
Premises, as evidenced by a certificate from Tenant's
architect and invoices, receipts and other evidence reasonably
required by Landlord to evidence the cost of the
Additional Improvements made as of the date of Tenant's request
for payment; and
(iv) Tenant has delivered to Landlord partial lien
waivers for the first fifty percent (50%) of the Additional
Improvements, from Tenant's contractor, all subcontractors
and all laborers or material suppliers having performed any
work at the Demised Premises relating to the construction
of the first fifty percent (50%) of the Additional Improvements.
(2) Landlord shall pay the remainder of the Tenant Allowance
to Tenant at such time that Tenant's contractor has:
34
(i) substantially completed the Additional Improvements
and received a certificate of occupancy from the applicable
governing authority;
(ii) delivered to Landlord lien waivers and affidavits
from Tenant's contractor, all subcontractors, and all
laborers or materials suppliers having performed any work at
the Demised. Premises relating to the Additional
Improvements, together with any other evidence reasonably
required by Landlord to satisfy Landlord's title insurer that
there are no parties entitled to file a lien against the real
property underlying the Project in connection with such
work; and
(iii) delivered to Landlord all invoices, receipts
and other evidence reasonably required by Landlord to
evidence the cost of the Additional Improvements.
(f) Tenant's costs for construction of the Additional Improvements
shall include the cost of the Plans and Specifications, and all tenant
buildout, including, without limitation, demising walls, utilities, and the
heating, ventilating and air conditioning system.
(g) Tenant shall be responsible for all costs of construction of the
Additional Improvements in excess of the Tenant Allowance.
5. RATIFICATION. Except as modified hereby, the Lease shall be and remain
in full force and effect and unchanged. As amended hereby, the Lease is hereby
ratified and confirmed by Landlord and Tenant. To the extent the terms hereof
are inconsistent with the terms of the lease, the terms hereof shall control.
IN WITNESS THEREOF, Landlord and Tenant have executed this Amendment as of
the date written above.
LANDLORD:
INDUSTRIAL DEVELOPMENTS
INTERNATIONAL, INC.
s/s ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ s/s ▇▇▇▇▇ ▇. "▇▇▇▇" ▇▇▇▇▇▇▇, Jr.
_____________________________ By: ________________________________
WITNESS Name: ▇▇▇▇▇ ▇. "▇▇▇▇" ▇▇▇▇▇▇▇, Jr.
PRINT NAME: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: President
s/s ▇▇▇▇▇▇ ▇▇▇▇▇▇ s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________ ATTEST: _____________________________
WITNESS NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PRINT NAME: ▇▇▇▇▇▇ ▇▇▇▇▇▇ TITLE: Secretary
[CORPORATE SEAL]
35
TENANT:
DATALINC-I, LTD., a Florida limited
partnership
By: Integrated Communications
Networks, Inc., its general partner
s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ s/s ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________ By: ________________________________
WITNESS Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
PRINT NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Chairman
s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
_____________________________
WITNESS
PRINT NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
[CORPORATE SEAL]
36
ACKNOWLEDGMENTS
LANDLORD
STATE OF GEORGIA
COUNTY OF ▇▇▇▇▇▇
Before me, a notary public in and for said county, personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇, Jr. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ known to me to be the persons
who as, President and Secretary respectively of INDUSTRIAL DEVELOPMENTS
INTERNATIONAL, INC. the corporation which executed the foregoing instrument,
signed the same, and acknowledged to me that they did so sign said instrument in
the name and upon behalf of said corporation as such officers, respectively;
that the same is their free act and deed as such officers, respectively, and the
free and corporate act and deed of said corporation; that they were duly
authorized thereunto by its board of directors; and that the seal affixed to
said instrument is the corporate seal of said corporation. In testimony whereof,
I have hereunto subscribed my name, and affixed my official seal, at Atlanta,
Georgia this 10th day of February, 1994.
s/s ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________
NOTARY PUBLIC
[NOTARIAL SEAL]
MY COMMISSION EXPIRES: 4/22/96
37
TENANT
STATE OF FLORIDA
COUNTY OF PINELLAS
Before me, a notary public in and for said county, personallyy appeared
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ known to me to be the person who as, Chairman of INTEGRATED
COMMUNICATIONS NETWORKS, INC., the corporation which executed the foregoing
instrument as general partner of DATALINC-I, LTD., a Florida limited
partnership, signed the same, and acknowledged to me that s/he did so sign said
instrument in the name and upon behalf of said corporation and partnership as
such officer, respectively, that the same is her/his free act and deed as such
officer, and the free and corporate act and deed of said corporation; that s/he
was duly authorized thereunto by its board of directors; and that the seal
affixed to said instrument is the corporate seal of said corporation. In
testimony thereof, I have hereunto subscribed my name, and affixed my official
seal, at St. Petersburg this 31st day of January, 1994.
s/s ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
_________________________
NOTARY PUBLIC
[NOTARIAL SEAL]
MY COMMISSION EXPIRES: 6/01/96
38
CERTIFICATE OF AUTHORITY
CORPORATION
The undersigned, Secretary of INTEGRATED COMMUNICATIONS NETWORKS, INC. a
Florida corporation ("General Partner") which is the general partner of
DATALINC-I, LTD., a Florida limited partnership ("Tenant"), hereby certifies as
follows to INDUSTRIAL DEVELOPNMNTS INTERNATIONAL, INC., a Delaware corporation
("Landlord"), in connection with Tenant's proposed amendment to Tenant's lease
of premises at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (the "Premises"):
1 . Tenant is duly formed, validly existing and in good standing under the
laws of the State of Florida, and duly qualified to do business in the State of
Ohio.
2. That the following named persons, acting individually, are each
authorized and empowered to negotiate and execute, on behalf of Tenant, an
amendmendment Tenant's lease of the Premises and that the signature opposite the
name of each individual is an authentic signature:
▇▇▇▇ ▇▇▇▇▇▇▇▇ President s/s ▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________ __________________ _____________________
(name) (title) (signature)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Chairman/CEO s/s ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________ __________________ _____________________
(name) (title) (signature)
____________________ __________________ _____________________
(name) (title) (signature)
3. That the foregoing authority was conferred upon person(s) named above by
the Board of Directors of General Partner, at a duly convened meeting held
November 30, 1993.
s/s ▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
Secretary
39