Exhibit 10.2
OFFICE LEASE AGREEMENT
THIS LEASE Is made this 29th day of September 2000, by and between BSRT
Fountain Square L.L.C., an Illinois limited liability company (hereinafter
referred to as the "Landlord") and NetWolves Corporation, a New York corporation
hereinafter referred to as the "Tenant").
1. LEASED PREMISES. Landlord, for and in consideration of the rents
hereinafter reserved, of the covenants and conditions hereinafter set forth, to
be kept or performed on the part of Tenant, hereby leases to Tenant, and Tenant
hereby rents and leases from Landlord a portion of the two-story building (the
"Building") containing 79,179 rentable square feet located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, and in the Fountain Square Project, Tampa (Hillsborough County),
Florida, consisting of approximately Twenty Thousand Four Hundred Seventy Eight
(20,478) square feet of rentable space as depicted in Exhibit A attached hereto
("Tenant's Rentable Square Feet") located on the premises described in Exhibit B
attached hereto and incorporated herein by this reference (the "Premises") (the
Tenant's Rentable Square Feet located within the Building and situated upon the
Premises sometimes referred to herein as the "Leased Premises") for use by
Tenant for the term of this Lease. Subject to measurement standards by BOMA with
an 8.27% common area factor.
2. TERM. The term of this Lease shall be for a period of five (5) years or
until sooner terminated as herein provided. The Term of this Lease shall
commence on the date the improvements are substantially completed or upon
receiving final inspections (the "Commencement Date") and shall terminate on the
last day of the 60th calendar month thereafter. Tenant shall deliver, on or
before the 30th day after execution of this Lease, an approved Plan for purposes
of construction. See Rider to Office Lease Agreement, which is attached hereto
and made a part hereof.
The Tenant shall have the one-time right to cancel this Lease at the end of
the thirty six (36) month subsequent to the Commencement Date, provided Tenant
gives Landlord written notice at least 180 days prior to exercising this one-
time cancellation provision, which notice shall be ineffective unless
accompanied by certified (U.S.) funds in the amount of Two Hundred Forty Three
Thousand Six Hundred Five and 93/100 Dollars ($243,605.93), said amount being
equal to the unamortized tenant improvement expenses incurred by Landlord and
the unamortized leasing commissions paid by Landlord, with interest at the rate
often percent (10%) per annum.
3. BASE RENT. Tenant shall pay to the Landlord or its designee, ~to any
successor thereto named by Landlord, at the address set forth herein or at such
other place as Landlord may designate in writing, without notice or demand, and
without deduction, abatement, counterclaim, credit, or set-off whatsoever,
except as may be expressly noted and authorized under the terms of this Lease,
the following:
A. Annual rental at the rate of THREE HUNDRED EIGHTY NINE THOUSAND EIGHTY
TWO AND NO/100 DOLLARS ($389,082.00) for the first Lease Year payable in lawful
money of the United States in equal monthly installments (the "Monthly Rental
"). The first Monthly Rental and sales tax thereon if any, as set forth in
paragraph 8 herein, shall be paid by Tenant to Landlord on the first day of the
month; and all subsequent Monthly Rentals shall be due in advance on the first
day of each calendar month during the term of this Lease, and with any sales,
privilege or rental tax as provided herein. The term "Lease Year", as used
herein (i) shall mean the twelve (12) month period beginning with the
Commencement Date as defined in Paragraph 2 hereof, and each twelve (12) month
period thereafter occurring during the term of this Lease, and (ii) in the event
the Lease expires or terminates on a date other than the date set forth in
Paragraph 2 hereof, then the term "Lease Year" also shall mean the period from
the end of the preceding Lease Year to the date of said expiration or
termination of this Lease. Notwithstanding anything to the contrary contained
herein, in the event the Commencement Date is other than the first day of a
calendar month, then Tenant shall pay to Landlord on the Commencement Date a sum
equal to the per diem Monthly Rental for the Month in which the Commencement
Date shall occur (the "First Month") multiplied by the number of days from the
Commencement Date to the last day of the First Month, both inclusive. In the
event this Lease Terminates on a day, other than the date specified in Paragraph
2 hereof, the Monthly Rental and any Additional Rental, as herein defined shall
be equitably adjusted.
B. Tenant agrees that any other sums due Landlord from Tenant under the
tem1S of this Lease, except for the Monthly Rental, shall be considered as
additional rental from Tenant (the" Additional Rental"). As used herein the term
"Rent" shall include the Monthly Rental, Additional Rental and such other
payments as are set forth herein. Rent payments are deemed to be paid when
received by Landlord.
C. It is understood and agreed that Tenant's failure to pay the Additional
Rental shall, for the purposes of the default provision hereof, entitle Landlord
to all remedies provided herein and at law or equity on account of Tenant's
failure to pay Rent.
D. Any delay or failure of Landlord in computing or billing for Additional
Rental shall not constitute a waiver or in any way impair the continuing
obligation of the Tenant to pay such Additional Rental.
E. Landlord and Tenant agree that commencing with 2002, and every Calendar
Year thereafter, the Monthly Rental which is payable for the immediately
succeeding Lease Year (or portion thereof) shall be adjusted by an amount equal
to Tenant's pro-rata share of 25.86% of Increases in Operating Expenses of the
Building and Premises in excess of Basic Costs. The term "Operating Expenses"
shall mean and include: all expenses relating to the Building and the Building
Exterior Common Areas, including all costs of operation, maintenance and
management thereof and assessments for public betterments or improvements, any
and all assessments or charges that are charged by any property owners
association applicable to the Land (the" Association"), ad valorem real estate
taxes and any other tax on real estate as such, ad valorem taxes on furniture,
fixtures, equipment or other property used in connection with the operation,
maintenance or management of the Building and the Building exterior common areas
and the costs, including, without limitation, legal and consulting fees, of
contesting or attempting to reduce any of the aforesaid taxes, reasonable
amortization of capital improvements which are required by applicable law or
which will improve the efficiency of operating, managing or maintaining the
Building or. which will reduce Landlord's operating expenses or the rate of
increase thereof, the cost of labor, materials, repairs, insurance, utilities
and services and such other expenses with respect to the operation, maintenance
and management of the Building and the Building exterior common areas, all of
which expenses shall be incurred or paid by or on behalf of Landlord or are
properly chargeable to Landlord's operating expenses in accordance with
generally accepted accounting principles as applied to the operation,
maintenance and management of a first class office building.
Notwithstanding the foregoing, it is agreed that the Basic Costs shall not
include: (i) any leasing or marketing or brokerage costs, fees, or commissions;
(ii) any cost of upfitting space for occupancy by tenants; (iii) any
amortization of principal or interest on account of any indebtedness; (iv) any
legal expenses arising out of any misconduct or negligence of Landlord or any
person for which Landlord is responsible or arising out of dealings between any
principals constituting Landlord or arising out of any leasing, sale or
financing of the Building or the Land or any part of either of them; (v) except
as expressly permitted above, any amortization or depreciation; (vi) capital
improvements made to the Building, other than costs for improvements made to the
Building which, although capital in nature, are primarily intended to reduce the
normal operating costs of the Building as well as capital improvements made in
order to comply with any law hereafter promulgated by any governmental authority
as amortized over the useful economic life of such improvements as determined by
Landlord in its reasonable business judgment in accordance with generally
accepted accounting principles and except for items which are generally
considered maintenance and repair items, such as painting of Common Areas,
replacement of carpet in elevator lobbies, and the like; (vii) repair,
replacement and general maintenance paid by proceeds of insurance or by Tenant
or other third parties; (viii) interest, amortization or other payments on loans
to Landlord; (ix) legal or accounting expenses for services other than those
that benefit the Building generally; (x) the cost incurred by Landlord to bring
the Building, the Land or any equipment maintained therein in compliance with
laws, ordinances, rules, regulations, requirements, directives, guidelines and
orders in effect and applicable to the Building as of the date of this Lease;
(xi) the cost of any services or materials supplied to other tenants of the
Building and not made available to Tenant; (xii) the cost of any services or
materials for which Landlord receives reimbursement from other sources; (xiii)
depreciation on the Building or any equipment maintained therein; (xiv) federal
income taxes imposed on or measured by the income of Landlord from the operation
of the Building; (xv) repairs, alterations, additions, improvements, or
replacements made to rectify or correct any defect in the original design,
materials or workmanship of the Building or the common areas (but not including
repairs, alterations, additions, improvements, or replacements made as a result
of ordinary wear and tear); (xvi) damage and repairs attributable to fire or
other casualties; (xvii) damage and repairs necessitated by the negligence or
willful misconduct of Landlord, Landlord's employees, contractors or agents;
(xviii) executive salaries or salaries of service personnel to the extent not
properly allocated to the Building in accordance with generally accepted
accounting principles; (xix) Landlord's general overhead expenses not related to
the Building or not properly allocated to the Building in accordance with
generally accepted accounting principles; (xx) costs (including permit, license
and inspection fees) incurred in renovating or otherwise improving, decorating,
painting or altering space for tenants or other occupants of the Building or a
vacant space (excluding common areas) in the Building; (xxi) costs incurred due
to a violation by Landlord or by any other tenant of the Building of the terms
and conditions of a lease; (xxii) costs of any services provided to Tenant or
other occupants of the Building for which Landlord is reimbursed by a third
party; and (xxiii) any other expense which, under generally accepted accounting
principles applied to real estate operations, would not be considered a
reasonable maintenance and operating expense. Landlord shall not collect in
excess of 100% of Basic Costs and shall not recover any item of cost more than
once.
In the event Tenant is required to pay Tenant's Proportionate Share of
Basic Costs pursuant to this Paragraph 3E. Tenant shall have the right, at
Tenant's expense and no more frequently than once per calendar year, to inspect
Landlord's books and records showing Basic Costs of the Building for the
calendar year in question; provided, however, Tenant shall not have the right to
withhold any payments of Tenant's Proportionate Share of Basic Costs due and
payable hereunder the amount of which may be in dispute, and Tenant must pay the
entire amount due and payable hereunder prior to reviewing Landlord's books and
records. In the event Tenant's inspection of Landlord's books and records
reveals a verifiable error in Landlord's computation of Tenant's Proportionate
Share of excess Basic Costs resulting in an overpayment by Tenant of Tenant's
Proportionate Share of excess Basic Costs (after allowing for any adjustment
pursuant hereto), Landlord shall promptly reimburse the amount of such
overpayment to Tenant, together with interest thereon from the date of
overpayment until the date of reimbursement at a rate per annum equal to one
percent ( 1% ) plus the Prime Rate (as defined herein) in effect as of the date
of overpayment. If the error in Landlord's computation is greater than four
percent (4%), then Landlord shall reimburse Tenant for Tenant's reasonable
expenses of Tenant's inspection and audit of Landlord's books and records. As
used in this Lease, the "Prime Rate" shall be deemed to be that rate of interest
announced by Nations Bank, N .A. , or any successor thereto, from time to time
as its "prime rate," and Landlord and Tenant acknowledge and understand that
Nations Bank, N .A. , lends at rates of interest both above and below the Prime
Rate. Landlord's statement setting forth the total amount of Tenant's
Proportionate Share of excess Basic Costs furnished to Tenant in accordance with
the provisions of this Paragraph 3E shall be deemed to have been approved by
Tenant unless protested by Tenant in writing within ninety (90) days after
delivery of such statement to Tenant at the Premises. Basic costs are as defined
as the product of Rentable Square Feet in the Building multiplied by actual
operating expenses for 2001. In addition, increases and all expenses except real
estate taxes, electricity and insurance shall be capped at five percent (5%) of
the previous year's expenses.
As soon as is practicable after the commencement of each and every Lease
Year, but no later than March 31 of the Lease Year then in effect, Landlord
shall provide Tenant with a statement setting forth Landlord's estimate of the
increase in Operation Expenses over Basic Costs. Tenant shall pay to Landlord on
the first day of each month during such Lease Year an amount equal to
one-twelfth of the Landlord's estimate as Additional Rental. Tenant will pay a
lump sum for the amount of the estimate for such Lease Year up to the time the
statement is prepared. As soon as practicable after the end of each Lease Year
Landlord shall furnish to Tenant a statement of such year's actual Operating
Expenses compared as to the Basic Costs and a calculation of Tenant's share of
the increase in Operating Expenses. If Tenant's actual cost is greater than the
estimated share, Tenant shall pay Landlord the difference within ten (10) days
of receipt of such Statement. If Tenant's share of the increase in Operating
Expenses is less then the estimated share, Landlord shall issue a credit to
Tenant for the difference. Tenant, at Tenant's sole cost and expenses, shall
have reasonable access and the right to audit the books and records of Landlord
pertaining to the Operating Expenses of the Building and Premises.
F. All sales tax required or imposed by any governmental body (as more
fully described in Paragraph 8 below).
G. A late charge in the amount of five percent (5%) of any monthly rent
installment which is not received by Landlord within ten (10) days of the due
date. Payment of such late charge shall accompany the payment of the monthly
rent installment to which it applies.
4. RENT INCREASE. Notwithstanding anything herein to the contrary, Landlord
and Tenant agree that for each succeeding Lease Year, the Monthly Rental shall
be increased to a rate that is equal to one hundred and three (103%) percent of
the Monthly Rental, exclusive of any adjustment for Tenant's share of the
Operating Expenses pursuant to Section 3E hereof, paid by Tenant for the
immediately preceding Lease Year.
5. SECURITY DEPOSIT. A cash security deposit equal to one (I) month's rent
is due upon execution of this Lease in addition to which Tenant shall deposit
with Landlord an irrevocable unconditional letter of credit, drawable at sight,
in the amount of$250,000 (U.S.) from a financial institution acceptable to
Landlord and in a substantially similar form and content of the attached
Addendum. The Letter of Credit is required to be delivered to Landlord upon
execution of this Lease.
The deposits shall act as security (but not as a trust fund) for the performance
by Tenant of the terms, covenants and conditions of this Lease to be kept and
performed by Tenant. If tenant defaults with respect to any material provision
of this Lease, including but not limited to the provision relating to the
payment of rent, Landlord may (but shall not be required to) draw upon, use,
apply or retain all of any part of this security deposit for the payment of any
rent or any other sum due under this Lease which shall be in default in the
payment thereof, or for the payment of any other amount which Landlord may spend
or become obligated to spend by reason of Tenant's default. If any portion of
said deposit is so used or applied, Tenant shall, upon demand therefore, deposit
cash or substitute an additional letter of credit with Landlord in an amount
sufficient to restore the security deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not be
required to keep any portion of the security deposit paid in cash separate from
its general funds, but Tenant shall be entitled to interest on such deposit at a
rate equal to the prime rate (as announced by the Wall Street Journal in effect
when the money is deposited, to be combined with and treated similarly to the
principal deposit. Provided Tenant is not then in default of this Lease, the
security deposit and Letter of Credit or any balance thereof shall be returned
to Tenant within fifteen (15) days after the expiration of the 36th month of
this Lease. In the event of the assignment of Landlord's interest in this Lease,
Landlord shall transfer said deposits to Landlord's successor in interest, and
upon such transfer Tenant shall have no further rights against Landlord.
6. TENANT IMPROVEMENT ALLOWANCE. Tenant shall be granted an allowance for
tenant improvements, up to twenty dollars ($20.00) per rentable square foot
("Tenant Improvement Allowance") for the purposes of improvements to the Leased
Premises, demolition costs incurred, voice and data cabling, design costs and
property manager construction management fees and, including exterior signage
provided it is in conformity with paragraph 33 of this Lease, but excluding
rent, computers, office equipment, furniture and other items of like nature and
characterization. The property manager construction management fee shall be not
greater than five percent (5%) on the first $500,000 of work, and two percent
(2%) on the remainder. To the extent Tenant utilizes less than $20.00 per square
foot for the actual cost of tenant improvements, the remainder shall be held in
abeyance and may be utilized by Tenant for future improvements subject to the
provisions of this paragraph. Landlord shall provide Tenant with a Construction
Contract and drawings detailing the extent, scope and cost for the tenant
improvements and all costs in excess of the Tenant Improvement Allowance, shall
be submitted in U.S. funds to Landlord prior to the commencement of any work. In
addition, the Tenant shall be liable for all cost overruns and change orders,
which shall be paid on a current and on-going basis. Tenant acknowledges and
agrees that Landlord's obligation to pay the Tenant Improvement Allowance shall
not accrue and become due unless and until all costs in excess of the Tenant
Improvement Allowance have been paid by Tenant. Landlord shall obtain bids from
three (3) general contractors and the selection of contractor will be subject to
final review by Landlord and Tenant. See Rider to Office Lease Agreement, which
is attached hereto and made apart hereof.
7. USE. Tenant shall use and occupy the Leased Premises only for general
office and administrative use and for no other purpose without the written
consent of Landlord, which shall not be unreasonably withheld. The Premises
shall not be used for any illegal purposes, or in any manner to create any
nuisance, or trespass, or to vitiate any insurance or increase the rate of
insurance on the Premises or the Building. Tenant agrees to comply with all
governmental rules, regulations, decrees and requirements applicable to the use
and occupancy of the Leased Premises. Tenant shall not do or permit to be done
in or about the Premises anything, which will obstruct or interfere with the
rights of other Tenants, if any, in the Building. If Tenant receives notice of
any claim or violation of any law, rule, regulation or decree applicable to the
Premises or the Building, Tenant shall give prompt notice thereof to Landlord.
In case of a material breach of any of the covenants contained in this paragraph
7, Landlord may, in addition to all other remedies available to the Landlord,
terminate this Lease upon the failure of the Tenant to cure default within
thirty (30) days after notice, or if the same is not curable within thirty (30)
days, to commence efforts to effect a cure within the thirty (30) day period
which it pursues thereafter to conclusion diligently.
8. PAYMENT OF TAXES. Tenant shall pay all taxes assessed during the term of
this Lease against any leasehold interest or personal property of any kind,
owned by or placed in, upon or about the Premises by Tenant, including, without
limitation, any rental or occupancy taxes and any other taxes arising out of the
operation of Tenant's business or occupancy of the Premises. All rents and other
charges paid by Tenant are subject to applicable state and local sales taxes,
which shall be paid by Tenant.
9. ACCEPTANCE OF LEASED PREMISES. The taking of possession of the Leased
Premises by Tenant at the Commencement Date shall be conclusive evidence as
against the Tenant that Tenant accepts the same "as is" and that the Leased
Premises and the Building were in good and satisfactory condition for the use
intended at the time such possession was taken except for latent defects and any
punch list items, to the extent otherwise noted by Tenant, in the acceptance of
Leased Premises executed by Tenant at that time. Neither Landlord nor Landlord's
agents have made any representations or promises with respect to the physical
condition of the Building or the Leased Premises, the rents, leases, expenses of
operation, or any other matter or thing affecting or relating to the Leased
Premises except as herein expressly set forth, and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease. Tenant will inspect the Leased
Premises and sign an Acceptance of Leased Premises on the Commencement Date and
be thoroughly acquainted with the condition of the Leased Premises. Unless
expressly stated herein to the contrary, Landlord has no obligation to repair,
improve, or add to the Leased Premises prior to Tenant's occupancy thereof and
Tenant shall, at its sole cost and expenses and in compliance with the provision
of paragraph 10(B) hereof, be responsible for any changes, alterations, repairs,
or decorations to the Leased Premises prior to its occupancy thereof.
Notwithstanding anything to the contrary herein, provided the Landlord has
substantially completed to the Tenant's reasonable satisfaction, the Tenant's
Improvements contemplated by Section 6 of this Lease, Tenant agrees and
acknowledges that it shall be deemed to have accepted the Leased Premises on
December I, 2000, if Tenant has not taken possession sooner.
10. TENANTS CARE.
A. Tenant will, at Tenant's expense, take good care of the Leased Premises,
Building and the fixtures and appurtenances therein, reasonable wear and tear,
and damage by fire covered by insurance proceeds payable to Landlord, the
elements, casualty covered by insurance proceeds payable to Landlord, excepted,
and will suffer no active or permissive waste or injury thereof; and Tenant
shall, at Tenant's expense, but under the direction of Landlord, promptly repair
any injury or damage whether structural or nonstructural to the Premises or
Building caused by the misuse or neglect thereof by Tenant, or by persons
permitted on the Premises by Tenant, its agents, officers, employees or
contractors, or Tenant moving in and out of Premises. All the aforesaid repairs
shall be of quality or class equal to the original work or construction, and
shall be made in accordance with the provisions of Paragraph 10(B) hereof. If
Tenant fails after fifteen (15) days' notice thereof to proceed with due
diligence to make the repairs required to be made by Tenant, the repairs may be
made by Landlord, at the expense of Tenant and the commercially reasonable
expenses thereof incurred by Landlord plus five percent (5%) for overhead, shall
be collectible by Landlord as Additional Rental after rendition of a ▇▇▇▇ or
statement. There shall be no abatement of rent or rent allowance to Tenant for
diminution of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making, or failing to make, any repairs, alterations, additions or
improvements in or to any portion of the Premises, or in or to fixtures,
appurtenances, or equipment thereof. Notwithstanding the foregoing, if the
Premises are rendered untenantable in whole or part, for a period in excess of
ten (10) business days, by making repairs, replacements or additions other than
those made with Tenant's consent or caused by misuse or neglect by Tenant or
Tenant's employees, agents, servants, visitors or licensees, there shall be a
proportion abatement of rent during the period of such untenantability.
B. Tenant will not, without Landlord's written consent, make alterations,
additions or improvements in or about the Premises, including, but not limited
to the Leased Premises, and will not do anything to or on the Premises which
will increase the rate of fire insurance. Landlord shall not unreasonably
withhold or delay its consent if the alterations, additions or improvements are
located in the Building and provided that such alterations, additions or
improvements are consistent with the high quality of the Premises and the other
buildings in the Fountain Square Development (the "Development").
Notwithstanding any requirement in this subparagraph 10(B) to the contrary,
Tenant shall have the right to make alterations or improvements to the Leased
Premises so long as the sum total of any such alterations or improvements does
not exceed ten thousand dollars ($10,000) for any single improvement (which
shall be defined broadly and shall include related changes to a single location)
and so long as said alterations or improvements do not disturb or otherwise have
any adverse affect on the Building's primary water system, the primary heating
system, the primary air-conditioning system or the primary electrical system
(including the distribution facility) on other Tenants, if any. For any
alteration or improvement, or combination thereof, in excess of $10,000,
Landlord's consent in advance shall be required. Tenant shall submit its
proposed plaJ1s to Landlord in standard forn1 aJ1d Landlord shall have five (5)
business days to approve or reject the submitted plans. In the absence of any
written response by Landlord within said five (5) business day period, the plans
shall be deemed approved. In addition to any other remedy or provision contained
in this Lease, Tenant expressly indemnifies and otherwise holds Landlord
harmless for any damages and expenses resulting from unpermitted improvements
made without Landlord's consent. It is expressly understood and agreed that
Landlord is not requiring Tenant to make any such improvements to the Leased
Premises, and no improvements by Tenant shall be deemed improvements in
accordance with an agreement between the parties, within the meaning of the
Florida Mechanic's Lien Law. All contractors, subcontractors, mechanics,
laborers, materialmen, and others who perform any work, labor or services, or
furnish any materials, or otherwise participate in the improvement of the
Building or Premises shall be and are hereby given notice that Tenant is not
authorized to subject Landlord's interest in the Building or Premises to any
claim for mechanics', laborers' and materialmen's liens, and all persons dealing
directly or indirectly with Tenant may not look to the Building or Premises as
security for payment. Tenant shall save Landlord harmless from and against all
expenses, liens, claims or damages to either property or person who mayor might
arise by reason of the making of any such additions, improvements, alterations
and/or installations. Tenant shall comply with the building codes, regulations
and laws now or hereafter to be made or enforced in the municipality, county
and/or state, which have jurisdiction over such work. All alterations, additions
or improvements of a permanent nature made or installed by Tenant to the
Building or Premises shall become the property of Landlord at the expiration of
this Lease. Tenant further agrees to do the foregoing prior to the expiration of
the Term. Prior to making any alterations greater than $10,000, Tenant (i) shall
submit to Landlord detailed plans and specifications (including layout,
architectural, mechanical and structural drawings) for each proposed alteration
and shall not commence any such alteration without first obtaining Landlord's
written approval of such plans and specifications which approval shall not be
unreasonably withheld or delayed, (ii) shall, at its expense, obtain all
permits, approvals and certificates required by any governmental or
quasi-governmental bodies, and (iii) shall furnish to Landlord duplicate
original policies of worker's compensation (covering all persons to be employed
by Tenant, and Tenant's contractors and subcontractors in connection with such
alteration) and comprehensive public liability (including property damage
coverage) insurance in such form, with such companies, for such periods and in
such amounts as Landlord may require, naming Landlord and its agents as
additional named insured. Upon completion of such alteration, Tenant, at
Tenant's expense, shall obtain certificates of final approval of such alteration
required by any governmental or quasi- governmental bodies and shall furnish
Landlord with copies thereof. All materials and equipment to be incorporated in
the Leased Premises as a result of all alterations shall be new and first
quality and shall be of a class equal to the original work or construction; no
such materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage or title retention or security agreement without the prior written
consent of Landlord. Tenant shall use its best efforts, at any time prior to or
during the term, not to directly or indirectly employ, or permit the employment
of, any contractor, mechanic or laborer in the Premises, whether in connection
with any alteration or otherwise, if such employment will interfere or cause any
conflict with other contractors, mechanics, or laborers engaged in the
construction, maintenance or operation of any part of the Development by
Landlord, Tenant or others. In the event of any such interference or conflict,
Tenant, upon demand of Landlord, shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Development
immediately. Landlord will use commercially reasonable efforts to schedule
contractors, mechanics or laborers at the Development so that there will not be
interference or conflict with the Tenants, contractors, mechanics or laborers.
With respect to any alterations to which Landlord has consented, Tenant shall
not employ any contractors, subcontractors, employees, mechanics or laborers
without Landlord's prior written consent which consent may not be unreasonably
withheld by Landlord.
C. No later than the last day of the Term of this Lease, Tenant will remove
all of Tenant's personal property and repair all injury done by or in connection
with the installation or removal of said property and surrender the Building and
Leased Premises and all improvements located therein whether or not paid for by
Tenant (together with all keys to the improvements located on the Leased
Premises) in as good a condition as they were at the beginning of the Term, wear
and tear and damage covered by insurance proceeds which insurance proceeds were
received by Landlord, excepted. In the event Tenant repairs an injury to the
Building and Premises and Landlord is entitled to recover from a third party for
such injury, then Landlord shall assign such claim to Tenant (if such claim is
assignable) to the extent necessary to reimburse Tenant for its out-of-pocket
expenses incurred in repairing such injury .All property of Tenant remaining on
the Premises after expiration of this Lease shall be deemed abandoned and may be
removed by Landlord and Tenant shall reimburse Landlord for the cost of removing
the same, subject however, to Landlord's right to require Tenant to remove any
improvements or additions made to Premises by Tenant, which right may be
exercised only if Landlord has reserved such right in writing in its approval of
such improvements or additions as provided in subparagraph B above.
D. In doing any work related to the installation of Tenant's furnishings,
fixtures, or equipment in the Building or Premises, Tenant will use only
contractors, subcontractors, employees, mechanics and laborers approved by
Landlord, which approval shall not be unreasonably withheld. Tenant shall
promptly remove any lien for material or labor claimed against the Premises by
such contractors, subcontractors, employees, mechanics and laborers, if such
claim should arise by paying the claim or by transferring the lien to a bond and
Tenant hereby indemnifies and holds Landlord harmless from and against any and
all costs, expenses or liabilities incurred by Landlord as a result of such
liens.
E. Tenant shall not install any equipment in the Building or on the
Premises whatsoever which will or may necessitate any changes, replacements or
additions to or require the use of the primary water system, plumbing system,
heating system, air-conditioning system or the electrical system of the Premises
and/or Building without the prior written consent of Landlord, as provided in
subparagraph 10(B) above, and which consent shall not be unreasonably withheld.
F Tenant agrees that all personal property brought into the Building and
Premises by Tenant, its employees, licensees and invitees shall be at the sole
risk of Tenant, and Landlord shall not be liable for theft thereof or for any
damages thereto; such theft or damage being in the sole responsibility of
Tenant.
G. Notwithstanding any of the above, any and all improvements, fixtures,
personal property, and equipment located in the Building as of the Commencement
Date shall be deemed approved by Landlord.
11. HOURS OF OPERATION. The normal business hours of the Building shall be
from 8:00 a.m. to 6:00 p.m. on Monday through Friday, and 8:00 a.m. to I :00
p.m. on Saturday. The Building will not operate on New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving and Christmas. Tenant shall have
access to the Building, however, at all times.
12. LANDLORD'S SERVICES.
A. Landlord shall furnish the following at no additional cost to Tenant
during regular hours of operation (see Paragraph 11) but subject to additional
costs at other times:
(1) Electricity for routine lighting and the operating of general office
machines such as typewriters, dictating equipment, desk-model adding machines,
and the like, which use 110-volt electric power. The electrical capacity
available to Tenant from time to time shall be identified by Landlord upon
written request from Tenant. Except as provided in subparagraph 10(G) above,
heavier use items shall not be used or installed, unless specified by separate
written consent of Landlord, which consent shall not be unreasonably withheld.
The purchase price and all installation costs of the above items will be borne
solely by Tenant. Tenant will not install any equipment beyond that listed
above, including any expansion of said systems, without Landlord's written
consent, which shall not be unreasonably withheld, and Tenant may be subject to
an additional charge for actual electrical power consumption. In the event that
additional air conditioning is required as a result of the above-listed items,
the cost of such equipment and the installation of same shall be borne by
Tenant.
(2) Heat and air conditioning which is reasonably required for the
comfortable occupation of the Building, subject to any governmental laws,
regulations or restrictions pertaining to the furnishing or use of such heat and
air conditioning. As of the Commencement Date, the temperatures which are
reasonably required for the comfortable occupation of the Building range from 72
to 78 degrees for both heating and for air conditioning.
(3) Elevator service.
(4) Toilet room supplies.
(5) Window washing with reasonable frequency, but no less than twice a
year.
(6) Nightly janitorial service in the manner that such janitorial service
is customarily furnished in first class office buildings in Tampa, Florida, no
less than five (5) days a week.
(7) Water and sewage disposal.
B. Services to be provided by Landlord hereunder shall be subject to all of
the Rules and Regulations of the Building established by the Landlord from time
to time. The current Rules and Regulations are attached to this Lease as Exhibit
C. Landlord reserves the right to modify and amend the Rules and
Regulations on thirty (30) days written notice to Tenant (except for life-safety
items for which no notice shall be required) so long as all Tenants are treated
equally. C. To the extent not otherwise caused by or attributable to the
negligence or willful misconduct of the Landlord or his agents, servants or
employees, Landlord shall not be liable for any damages directly or indirectly
resulting from, nor shall the Rent as herein set forth be abated by reasons of
(i) installation, use or interruption of use, of any equipment in connection
with the furnishing of any of the foregoing services, or (ii) failure to
furnish, or delay in furnishing, any such services when such failure or delay is
caused by accident or any condition beyond the reasonable control of the
Landlord or by the making of necessary repairs or improvements to the Premises
or to the Building. The temporary failure to furnish any such services shall not
be construed as an eviction of Tenant or relieve Tenant from the duty of
observing and performing any of the provisions of this Lease. Notwithstanding
the above, however, if the Building or the Leased Premises is unusable for its
intended use for a period of more than ninety (90) days, rent shall ▇▇▇▇▇ for
that period beyond the ninetieth day and until the Building is usable, in
Landlord's reasonable discretion, and only for that portion of the Building
which is unusable.
D. If Tenant uses services in an amount or for a period in excess of that
provided for herein, then Landlord reserves the right to charge Tenant and
Tenant shall pay Landlord as Additional Rental a sum determined by Landlord or
an independent consultant selected by Landlord as reimbursement to Landlord for
the actual costs incurred by Landlord in providing such added services. Tenant
shall pay Landlord the amount of such reimbursement within ten (10) business
days subsequent to the billing thereof by Landlord.
E. Landlord shall at its expense keep the (i) foundation, structural
integrity, exterior and roof of the Building, (ii) interior common areas, (iii)
parking and landscaped areas, and (iv) plumbing, including but not limited to
restrooms, heating, air conditioning and electrical systems, in good order,
repair and condition, w11ess any such work is necessary because of any act of
Tenant, in which event the cost shall be borne by Tenant. This paragraph shall
not apply to any damage caused by fire or other casualty or condemnation as
described in this Lease.
F. Landlord shall cause the upgrade of the lavatories in the Leased
Premises, at Landlord's sole cost. Said upgrade shall include new laminate,
sinks, and wall covering. In addition, Landlord, at Landlord's sole cost, shall
install one (I) male and one (I) female restroom as shown on Exhibit A, which
when completed, shall be not violative of the Americans with Disabilities Act as
in effect on the Commencement Date.
13. DESTRUCTION OR DAMAGE TO PREMISES.
A. If the Premises are totally destroyed (or are so substantially damaged
as to be untenantable) or a material part is so damaged that it prevents Tenant
from using the Leased Premises as intended by and set forth in this Lease by
storm, fire, earthquake, or other casualty, Rent shall not be abated or be
prorated from the date of such casualty; however, Landlord shall within
forty-five (45) days of such damage or destruction make a good-faith
determination of whether the Leased Premises can be restored within one hundred
eighty ( 180) days from the date of such casualty using only the insurance
proceeds. In the event the Landlord determines in its sole discretion that the
Leased Premises cannot be restored within one hundred eighty (180) days from the
date of such casualty using only the insurance proceeds, this Lease may be
terminated upon written notice from either party given to the other party given
not more that ten (10) days following the date that Landlord gives Tenant notice
that the Leased Premises cannot be restored within the one hundred eighty (180)
day period. Landlord thereafter shall receive all of the insurance proceeds. If
Landlord terminates this Lease under this paragraph, Tenant shall surrender
possession of the Leased Premises on the date of termination and Landlord shall
refund to Tenant all advance Rent and other payments or credits made by Tenant
to or on behalf of Landlord for the period following the termination date. In
the event such notice of termination is not given, then this Lease shall remain
in full force and effect; however, if Landlord fails to complete such
restoration within one hundred eighty (180) days from the date of the casualty,
this Lease may be terminated effective as of the date of such casualty upon
written notice from either party to the other given not more that ten (10) days
following expiration of the one hundred eighty (180) day period, except,
however, Landlord shall not be responsible for delays which may be caused by
reason of adjustment of fire insurance on the part of Landlord or Tenant or for
delays contemplated by Paragraph 40 herein provided such delays do not last
longer than sixty ( 60) days. In the event such notice is not given, then this
Lease shall remain in full force and effect and Rent shall commence upon
delivery of the Leased Premises to Tenant in a tenantable condition. In the
event such damage or destruction occurs within one year from the expiration of
this Lease, Tenant may, at its option on written notice to Landlord within
thirty (30) days of such casualty, terminate this Lease as of the date of such
destruction or damage. If the Premises are damaged due to a casualty, Tenant
shall remove, at its sole cost and expense, its furniture and other belongings
from the Leased Premises as Landlord shall require in order for Landlord to
repair and restore the Premises.
B. Except as provided in paragraph 12(c) above, if the improvements on the
Leased Premises are damaged but not rendered wholly untenantable or unusable for
the purposes described in this Lease by any of the events set forth in
subparagraph A above, Rent shall not ▇▇▇▇▇ or be prorated; however, Landlord
shall restore the improvements on the Leased Premises as quickly as practicable.
C. Landlord shall not be required to make any repair or replacement of any
improvements installed in the Leased Premises by or for Tenant, other than the
Building and the parking facilities, nor shall Landlord be responsible for the
replacement of Tenant's furniture and furnishings. Tenant shall, at Tenant's
sole cost and expense, repair and restore its portion of such improvements to
their original condition.
D. In no event shall Rent ▇▇▇▇▇ if the damage or destruction of the
Premises or any improvements located thereon whether total or partial, is the
result of the negligence or willful misconduct of Tenant, its agents, or
employees. Notwithstanding the foregoing, each party shall look first to any
insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible and to the extent
permitted by law, Landlord and Tenant each hereby releases and waives any right
of recovery against the other or anyone claiming through or under each of them
by way of subrogation or otherwise. The foregoing release and waiver shall be in
force only if both releasers' insurance policies contain a clause providing that
such a release or waiver shall not invalidate the insurance and also provided
that such a policy can be obtained, without additional premiums. Tenant
acknowledges that Landlord shall not carry insurance covering Tenant's
furniture, fixtures, equipment and/or improvements.
14. LIABILITY AND INDEMNITY.
A. The tern "Landlord" as used in this Lease shall mean only the owner or
mortgagee in possession for the time being of the Premises so that in the event
of the sale of said Premises, Building or leasehold interest or an assignment of
this Lease, Landlord shall be and is hereby entirely freed and relieved of all
obligations of Landlord subsequently accruing.
B. Notwithstanding that joint or concurrent liability may be imposed upon
Landlord by law, Landlord and Tenant shall indemnify and hold each other and
their agents, servants and employees, including reasonable attorneys' fees,
resulting from or arising out of bodily injury, sickness, disease or death, or
injury to or destruction of tangible property resulting solely from affirmative
acts of negligence by Landlord or Tenant respectively, or their respective
agents, servants or employees. Moreover, except as provided in subparagraph
14(A) above and elsewhere in this Lease, Landlord shall not be liable for any
damage or injury to the Leased Premises, to Tenant's property, to Tenant, its
agents, contractor, employees, invitees, or licensees, arising from any use or
condition of the Leased Premises, the Premises the Building, or any sidewalk or
entrance way serving the Building, or the act or neglect of co-tenants, or the
malfunction ofany equipment or apparatus serving the Building, any or all of
which Landlord does not have prior knowledge, and Tenant shall indemnify and
hold Landlord ham11ess from and against any and all causes of action, claims,
damages, losses, and expense in connection therewith, except for Landlord's
gross negligence.
15. DEFAULT.
I. BY TENANT
A. Upon the happening of any one or more of the following events, Tenant
shall be in default under the terms of this Lease:
(1) Tenant's failure to pay any installment of the monthly Rental within
ten (10) calendar days of the date upon which the same becomes due and payable
under this Lease.
(2) Tenant's failure to pay any Additional Rental within thirty (30) days
after written notice is received or is deemed received by Tenant.
(3) Tenant's failure to perform or observe any term or condition of this
Lease which, because its character, would immediately and materially jeopardize
Landlord's interest; provided, however, that Tenant shall have three (3)
business days from written notice from Landlord to cure or otherwise remedy the
problem;
(4) Tenant's failure to perform or observe any other term or condition
contained in this Lease and Tenant's failure to commence within thirty (30) days
after notice from Landlord to Tenant thereof the curing of such term or
condition and Tenant's failure to promptly and diligently complete the curing of
same; provided, however, that Tenant shall not .be in default if Tenant
diligently is pursuing to cure such term or condition beyond said thirty-day
period so long as Tenant continues to diligently pursue the cure to conclusion
and so long as the term or condition is, in fact, curable;
(5) The filing of a petition by or against Tenant for adjudication as a
debtor within the meaning of Chapter 7 or Chapter 13 or other provisions of the
Bankruptcy Act, as now or hereafter amended or supplemented, or for
reorganization or arrangement within the meaning of Chapter II of the Bankruptcy
Act, or the filing of any petition by or against Tenant under any future
bankruptcy act or insolvency law for the same or similar relief and the failure
to have such petition dismissed within sixty (60) days'
(6) The dissolution or liquidation, or the commencement of any action or
proceeding for the dissolution or liquidation, of Tenant, whether instituted by
or against Tenant or the appointment of a receiver or Trustee, of the property
of Tenant;
(7) The taking possession of the property of Tenant by a governmental
officer or agency pursuant to statutory authority for the dissolution,
rehabilitation, reorganization or liquidation of Tenant;
(8) Tenant's making an assignment for the benefit of creditors, whether
voluntary or involuntary;
(9) Tenant's interest under this Lease being sold or taken under execution
or other legal process;
(10) Levy upon or attachn1ent under process, attributable to Tenant,
against the Premises or any part thereof or Tenant's effects or interest therein
which is not satisfied or dissolved within fifteen (15) days after such levy or
attachment.
B. Upon Tenant's default or breach of the Lease as described in
subparagraph A above, Landlord, at its discretion, may then exercise anyone or
more of the following options:
(1) Terminate this Lease, remove all persons and property from the Premises
by summary proceedings, and take possession of the Leased Premises by Court
Order unless abandoned or vacated, all without prejudice to Landlord's right to
collect from Tenant any rent or other sums which became payable to Landlord
prior to such termination, together with all damages suffered by Landlord
resulting from Tenant's default hereunder;
(2) Landlord, without termination of this Lease, upon Tenant's default or
breach of this Lease, as set forth in subparagraph A above, may at Landlord's
option, evidenced by written notice to Tenant, terminate Tenant's right to
possession and enter upon and rent the Leased Premises at the best price
obtainable by commercially reasonable efforts, for any term Landlord deems
proper and commercially reasonable. Tenant shall upon receipt of such notice
surrender possession of the Leased Premises to Landlord and remove all of
Tenant's property therefrom; and remove all persons and property therefrom,
using such force as may be necessary without being guilty of trespass, forcible
entry or detainer or other tort. Tenant shall be liable to Landlord for the
deficiency, if any, between the amount of all Rent reserved in this Lease and
the net rent, if any, collected by Landlord in reletting the Leased Premises
(the "Net Rent"), which deficiency shall be due and payable by Tenant for the
period in which Rent reserved in the Lease would have been due and payable. Net
Rent shall be computed by deducting from gross rents collected all expenses and
costs of whatever nature reasonably incurred by Landlord in reletting,
including, but not limited to reasonable attorneys' fees, broker's commissions
and the cost of renovating or remodeling the Leased Premises.
(3) In the event Landlord elects to terminate this Lease as hereinabove
provided, Landlord may, in addition to any other remedies it may have, recover
from Tenant all damages Landlord may incur by reason of such default, including
the cost of recovering the Premises, reasonable attorneys' fees, and any other
cash concession (which shall be amortized over the Term of this Lease) and
including the amount of Rent reserved in this Lease for the remainder of the
Term less amounts received upon reletting, all of which amounts shall be
immediately due and payable from Tenant to Landlord. The term "reserved" as
applied to Rent shall mean any and all payments to which Landlord is entitled
hereunder during the entire Term of this Lease.
(4) Landlord may declare the entire remaining unpaid Rent for the Lease and
other charges due hereunder to be immediately due and payable, and take such
action available to Landlord to recover and collect the same, subject to (3)
above.
(5) Landlord may exercise any and all rights and privileges and pursue any
remedy that Landlord may have under the laws of the State of Florida.
C. Any installment of Rent herein required to be paid by Tenant which is
not paid when due, shall bear interest at the rate of (i) four percent (4%) over
the prime rate published by the Wall Street Journal, as such rate changes from
time to time provided that such rate does not exceed the maximum rate of
interest permitted to be contracted for by applicable law (the "Maximum Rate")
and if such rate does exceed the Maximum Rate, then the interest rate shall be
the Maximum Rate, from the due date until paid, as a late charge for the purpose
of reimbursing Landlord for expenses incurred by reason of such failure by
Tenant and not as a penalty. The interest so charged shall be collectible as
Additional Rental.
D. All of Landlord's rights and remedies after a default by Tenant, whether
expressly stated above or whether available at law or in equity, shall be deemed
separate and cumulative, and the exercise of anyone right or the pursuit of
anyone remedy shall not preclude Landlord from exercising any other right or
pursuing any other remedy.
E. Landlord shall have, upon default in payment of Rent by Tenant, alien in
the principal amount of Rent in default, upon the furniture, machinery,
equipment, fixtures and property usually kept on the Leased Premises, and owned
by Tenant, regardless of whether Tenant or another has possession of the
property mentioned.
F. All agreements, covenants, conditions and provisions to be performed or
observed by Tenant under this Lease shall be at its sole cost and expense and
without any abatement of Rent. If Tenant shall fail to pay any sum of money
other than Rent, required to be paid by it hereunder or shall fail to perform
any other act on its part to be performed hereunder, Landlord may, but shall not
be obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as this Lease provides. All sums so paid
by Landlord and all necessary incidental costs shall be deemed Additional Rental
hereunder and shall be payable to Landlord on demand, together with interest
thereon at the rate of four percent (4%) over the prime rate published by the
Wall Street Journal, as such rate changes from time to time provided that such
rate does not exceed the Maximum Rate of Interest permitted by applicable law
and if such rate exceeds the Maximum Rate then the interest rate shall be the
Maximum Rate, from the date of expenditure by Landlord to the date of repayment
by Tenant, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of nonpayment thereof by
Tenant as in the case of default by Tenant in the payment of Rent.
G. The rights given to Landlord herein are in addition to any rights that
may be given to Landlord by a statute or under law.
H. In the event of default, re-entry or termination of this Lease prior to
the expiration of the term or dispossession by summary proceeding, Landlord
shall use its good faith commercially reasonable efforts and Tenant shall use
good faith commercially reasonable efforts to relet the Leased Premises in order
to mitigate damages.
II. BY LANDLORD
A. The occurrence of anyone or more of the following events shall
constitute a default hereunder by Landlord:
(1) The making by Landlord of any general assignment for the benefit of
creditors, whether voluntary or involuntary; (2) the filing by or against
Landlord of a petition to have Landlord adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Landlord, the same is dismissed within
sixty (60) days); (3) the appointment of a trustee or receiver to take
possession of substantially all of Landlord's assets or of Landlord's interest
in the Building, where possession is not restored to Landlord within sixty (60)
days; (4) the attachment, execution or other judicial seizure of substantially
all of Landlord's assets or of Landlord's interest in the Building where such
seizure is not discharged within fifteen ( 15) days; or (5) the failure of the
Landlord after thirty (30) days' written notice to undertake to perform repairs
for which it is obligated or to perform any of its covenanted obligations
hereunder; (6) the material breach of any of Landlord's representations made
herein.
B. In the event of any such default by Landlord, in addition to any other
remedies available to Tenant at law or in equity, Tenant shall have the right to
pay any amount due hereunder to Landlord, whether as rent or otherwise, into an
escrow account until the adjudication of the amount of Tenant's damages by
reason of Landlord's default.
C. All rights, options and remedies of Tenant contained in this Lease shall
be construed and held to be cumulative, and no one of them shall be exclusive of
the other, and Tenant shall have the right to pursue anyone or all of such
remedies or any other remedy or relief which may be provided by law, whether or
not stated in this Lease. No waiver of any default of Landlord hereunder shall
be implied from any omission by Tenant to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect defaults other than as specified in said waiver. The consent or approval
of Tenant to or of any act by Landlord requiring Tenant's consent or approval
shall not be deemed to waive or render unnecessary Tenant's consent or approval
to or of any subsequent similar acts by Landlord.
16. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written
consent of Landlord which consent may be not unreasonably withheld or delayed,
assign this Lease or any interest thereunder, or sublet the Leased Premises, the
Building or any part thereof, or permit the use of the Premises and the Building
by any party other than the Tenant. As used herein the term subtenant shall
include any assignee of the Lease or any interest therein. Tenant shall submit
to Landlord a written request for the consent of the Landlord to such assignment
or subletting which request shall be accompanied by the name of the subtenant, a
copy of the proposed sublease, the nature and character of the business of the
proposed subtenant, the proposed use of the Leased Premises, current financial
information on the subtenant, and such additional information as Landlord may
reasonably request. Consent by Landlord to one assignment or sublease shall not
destroy or waive this provision, and all later assignments and subleases shall
likewise be made only upon the prior written consent of Landlord. Assignees
shall become liable directly to Landlord for all obligations of Tenant hereunder
without relieving Tenant's liability under this Lease subject to the terms of a
sublease. Notwithstanding the foregoing, it is expressly understood that any
wholly-owned subsidiary of Tenant may occupy the Leased Premises without the
consent of the Landlord.
Tenant agrees that the instrument by which any assignment or subletting
consented to by Landlord is accomplished shall expressly provide that the
assignee or subtenant will perform and observe all the agreements, covenants,
conditions and provisions to be performed and observed by Tenant under this
Lease subject to the terms of a sublease as and when performance and observance
is due and that Landlord will have the right to enforce such agreements,
covenants, conditions and provisions directly against such assignee or
subtenant. Tenant shall in all cases remain responsible for the performance by
any subtenant or assignee or all such agreements, covenants, conditions and
provisions. Any assignment or subletting without an instrument containing the
foregoing provision shall be void and shall, at the option of the Landlord,
constitute a default that entitles Landlord to terminate this Lease unless
rectified within thirty (30) days after written notice.
In the event Tenant notifies Landlord of Tenant's intent to sublease or
assign this Lease, and provides Landlord with the required information as stated
above, Landlord shall within ten (10) days from receipt of such notice (i)
consent to such proposed subletting, or (ii) refuse such consent, or (iii) elect
to cancel this Lease. In the event of Landlord's election to cancel, Tenant
shall have ten (10) days from receipt of such notice in which to notify Landlord
of Tenant's acceptance of such cancellation or Tenant's desire to remain in
possession of the Leased Premises under the terms and conditions and for the
remainder of the Term of this Lease. In the event Tenant fails to so notify
Landlord of Tenant's election to accept termination or to continue as Tenant
hereunder, such failure shall be deemed an election to terminate and such
termination shall be effective as of the end of the ten (10) days from the date
of Landlord's notice. In the event a sublease or assignment is made as herein
provided, Tenant shall reimburse Landlord for all of the reasonable and
necessary legal and accounting services required in order to accomplish such
assignment or subletting.
The following are additional conditions and restrictions upon assigl1illent
or subletting by Tenant:
(1) Any sublease or assignment shall be expressly subject and subordinate
to all of the terms and provisions of this Lease;
(2) Tenant agrees not to list or otherwise publicly advertise the Leased
Premises for assignment or subletting at a rental rate less than (a) the rate of
the Monthly Rent then payable hereunder for the Premises or (b) the rate at
which Landlord is then offering comparable space in the Premises (and Landlord
agrees, upon written request from Tenant, to advise Tenant of such rate),
whichever is higher; however, Tenant may negotiate a lesser rate; and
(3) If Tenant shall sublet or assign all or a portion of the Leased
Premises for a rental in excess of the total Rent stipulated herein, which is or
may become due and owing, then Tenant shall pay to Landlord as Additional Rental
fifty percent (50%) of all of such excess amount after subleasing expenses. In
addition, Tenant shall also pay to Landlord, as Additional Rental fifty percent
(50%) of all other profit, gain, or consideration realized by Tenant in
connection with the subletting or assignment.
(4) Such subletting or assignment shall not cause Landlord any cost, and if
Landlord incurs any cost whatsoever, then Tenant agrees to pay as Additional
Rental all normal and ordinary costs, including, but not limited to, brokerage
fees, legal fees, management fees, and the cost associated with improving the
Premises.
(5) With respect to subletting less than all the Leased Premises, Tenant at
its sole cost and expense, shall provide and permit reasonable means of ingress
to and egress from the space sublet by Tenant.
If Landlord terminates this Lease as set forth herein, Landlord may, if it
elects, enter into a new lease covering the Premises with the intended assignee
or subtenant on such terms and conditions as Landlord and such person may agree,
or enter into a new lease covering the Leased Premises, with any other person;
in such event, Tenant shall not be entitled to any portion of the profit, if
any, which Landlord may realize on account of such termination and reletting,
nor shall Tenant be entitled to a finder's fee, broker's commission, or any such
other fee. From and after the date of such termination of this Lease, Tenant
shall have no further obligation to Landlord hereunder with respect to these
Leased Premises, except for matters occurring or obligations arising hereunder
prior to the date of such termination.
Landlord covenants and agrees that it will not withhold or delay its
consent to the sale, assignment, merger, consolidation or other combination of
Tenant's operation with another, wherein operation control of Tenant is acquired
by another.
If Tenant's interest in this Lease is assigned or if the Leased Premises or
any part thereof are subject to, or occupied by, or used by, anyone other than
Tenant, regardless of whether this is in violation of this paragraph 16, then
Landlord may, after default by Tenant, accept from any assignee, sublessee or
anyone who claims aright to the interest of Tenant under this Lease, or who
occupies any part or the whole of the Leased Premises the payment of Rent and/or
the performance of any of the other obligations of Tenant under this Lease, but
such acceptance shall not be deemed to be a waiver by Landlord of the breach by
Tenant of the provisions of this paragraph 16, nor a recognition by Landlord
that any such assignee, sublessee, claimant or occupant has succeeded to the
rights of Tenant hereunder, nor a release by Landlord of Tenant from further
performance by Tenant of the covenants on Tenant's part to be performed under
this Lease; provided, however, that the net amount of rent collected from any
such assignee, sublessee, claimant or occupant shall be applied by Landlord to
the Rent to be paid hereunder.
17. CONDEMNATION/EMINENT DOMAIN. If the whole of the Premises shall be
condemned, or purchased in lieu of condemnation, by any competent authority, for
any public purpose, then, this Lease shall cease and terminate from the time
when the possession shall be required for such use or purpose and the Rent
including unearned prepaid rent, if any, shall be apportioned accordingly.
A. If any part of the Leased Premises shall be taken or condemned or
purchased in lieu thereof by any competent authority for any public purpose,
provided the balance of the Leased Premises remaining cannot be effectively
utilized by Tenant for office space even if the condemnation proceeds are used
to restore or repair the Leased Premises, then Tenant shall have the option to
cancel this Lease (effective as of the time that possession shall be required
for such public use or purpose) by Tenant, giving Landlord written notice within
twenty (20) days after receipt of notice of the condemnation from Landlord or
from the governmental authorities, whichever occurs first, or in the absence of
such notice, within a reasonable time after the taking occurs. If Tenant is
entitled to exercise said option to terminate and does so, all rents shall be
prorated to the date Tenant is required to surrender possession. In the event
Tenant is not entitled to cancel the Lease, or if it is entitled to do so but
does not exercise its option, Landlord shall use the net proceeds received from
the condemnation for repair and restoration of the Premises, and Tenant will be
responsible for the Rent as heretofore set forth to the date of such taking or
purchase; after which date the Rent and Additional Rent herein reserved shall be
reduced proportionately as the usable floor area of the remaining leased space
in the Leased Premises compares to the usable floor area of the Leased Premises
before such taking or purchase and Tenant shall have no future liability with
respect to the pro rata portion of the Rent for the unusable area resulting from
the condemnation.
B. Landlord and Tenant hereby agree that any award or proceeds resulting
from a condemnation or purchase in lieu thereof of the whole or part of the
Premises shall belong solely to Landlord, and Tenant hereby waives any right to
make any claim therefore as the result of this Lease; provided, however, that
Tenant shall not be prevented from pursuing any claim that Tenant has under the
laws of the State of Florida against the condemning authority, so long as such
claim will not diminish Landlord's award.
C. If there shall be taken during the term of this Lease any substantial or
material part of- the Leased Premises and the Landlord decides not to restore
the Leased remises, Landlord may, upon thirty (30) days' notice to Tenant,
terminate this Lease.
18. ACCESS TO PREMISES.
A. Landlord and Landlord's agents, employees, or vendors shall have the
right to enter the Leased Premises, by passkey or otherwise, at any time upon
reasonable advance notice to Tenant under the circumstances (except no notice
shall be required in the case of an emergency) for any purpose which Landlord
may deem necessary for any installation in or operation of the Building,
including without limitation, the exhibiting of the Leased Premises or the
Building to prospective purchasers, mortgagees or tenants. In addition, Landlord
shall have the right to take all necessary materials and equipment into the
Leased Premises and to store the same within during construction or while making
necessary repairs and maintenance so long as Landlord has acquired Tenant's
prior written consent, which consent shall not be unreasonably withheld. Any
entry and activity by the Landlord, as permitted under this paragraph 18, shall
not entitle Tenant to any rent abatement, shall not constitute an eviction of
Tenant and shall not in any way violate the Lease or any portion hereof.
Landlord covenants that it will use its commercially reasonable efforts to
minimize any interference with, or interruption of, the business of the Tenant
in making such repairs or performing maintenance work. This paragraph shall not
release Tenant from providing reasonable security precautions equivalent to
those provided to its own employees, licensees, and invitees.
B. During the last sixty (60) days of the Lease Term, and with Tenant's
written consent, which consent shall not be unreasonably withheld, if Tenant has
removed all or substantially all of its property from the Leased Premises,
Landlord may immediately enter the Leased Premises and renovate or redecorate
the Leased Premises without reduction or abatement of rent, or incurring
liability to Tenant for any compensation and such act or acts shall have no
effect on this Lease or Tenant's obligations hereunder.
19. TENANT RISK. Tenant agrees that all personal property brought into the
Premises by Tenant, its employees, licensees and invitees shall be at the sole
risk of Tenant. Landlord shall not be liable for theft thereof or of any money
deposited therein or for any damages thereto; such theft or damage being the
sole responsibility of Tenant.
20. SUBORDINATION AND ATTORNMENT.
A. This Lease is subject and subordinate to any mortgage which now or
thereafter encumbers or affects the Building and/or the Premises on which the
Building is situated, and to all renewals, modifications, consolidations,
replacements and extensions thereof. This clause shall be self -operative and no
further instrument of subordination need be required by any mortgagee or
Landlord. In confirmation of such subordination, however, Tenant shall, within
ten (10) business days of Landlord's request, promptly execute any appropriate
certificate or instrument that landlord may reasonably request. In the event of
the enforcement by the holder of any such instrument of the remedies provided
for by law or b)' such mortgage or land lease, Tenant will, upon request of any
person or party succeeding to the interest of Landlord as a result of such
enforcement, automatically become the Tenant of such successor-in-interest
without change in the terms or other provision of this Lease. Upon request by
such successor-in-interest, Tenant shall execute and deliver an instrument or
instruments confirming the attornment herein provided for. Landlord agrees that,
concurrently with the execution of the Lease, it will endeavor to provide Tenant
with commercially reasonable non- disturbance agreement(s) in favor of Tenant
from any ground lessors, mortgage holders or lien holders then in existence, in
a form reasonably satisfactory to Tenant. Said non-disturbance agreements shall
be in recordable form and may be recorded at Tenant's election and expense.
B. If at any time during the term of this Lease after the Commencement
Date, the Leased Premises or the real property of which the Premises is a part
becomes subject to any mortgage liens or other encumbrances, Landlord, at
Tenant's request, provided that Tenant is not in default under this Lease, will
use good-faith efforts to deliver to Tenant a non-disturbance agreement of such
other mortgagee, lessor or lienholder promptly after Tenant's request therefore.
The non-disturbance agreement shall be in form and substance reasonably
satisfactory to Tenant and provide that so long as Tenant is not in default
under this Lease, Tenant's possession of the Premises will not be disturbed by
such mortgagee, lessor or lienholder in the exercise of any right or remedy
under any note, mortgage, assignment of leases, deed of trust, or otherwise
available at law or in equity.
21. ESTOPPEL. Tenant shall, from time to time, upon not less than ten (10)
days' prior written request by Landlord, execute, acknowledge and deliver to
Landlord a written estoppel certificate in such form as Landlord may reasonably
require, certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications that the same is in full force and effect
as modified and stating the modification), the dates to which the rent and other
charges have been paid, whether or not to the best of the Tenant's knowledge
Landlord is in default hereunder (and if so, specifying the nature of the
default), and such other matters as may be reasonably required by Landlord or
the holder of any mortgage to which the Premises are subject, it being intended
that any such statement delivered pursuant to this paragraph 21 may be relied
upon by a prospective purchaser of Landlord's interest or mortgagee of
Landlord's interest or assignee of any mortgage or deed of trust upon Landlord's
interest in the Premises.
22. TENANT'S INSURANCE. Tenant shall, at its expense, at all time during
the term of this Lease maintain in force a policy or policies of comprehensive
public liability insurance, including property damage, written by one or more
responsible insurance companies licensed to do business in the State of Florida,
insuring Tenant and naming Landlord as an additional insured and as the
certificate holder thereof, against claims for loss of life, bodily injury and
property damage occurring in, on or about the Premises or the Building or with
respect to the business operated by Tenant in the Leased Premises in which the
limit of public liability coverage shall be not less than $2,000,000.00 for
combined single limit bodily injury, death, and property damage liability. Each
such policy of insurance shall not be cancellable or amendable for any cause, if
such cancellation or amendment might in any way detrimentally affect Landlord,
without first giving Landlord thirty (30) days' prior written notice. A copy of
a certificate of said insurance shall be delivered to Landlord on or before the
commencement of the term of this Lease, and upon Landlord's request copies or
certificates with respect to all renewal, extensions or replacements thereof
shall thereafter be furnished to Landlord at least ten ( 10) days prior to the
expiration or cancellation of any policies which they replace.
23. SURRENDER OF PREMISES.
A. Tenant shall, upon the termination of this Lease, by lapse of time or
otherwise, return the Leased Premises to Landlord in as good condition as when
received, loss by fire or other unavoidable casualty and ordinary wear excepted.
It is understood and agreed that the exception made as to "loss by fire or other
unavoidable casualty" does not include damages, fires or casualties caused or
contributed to by the act or neglect of Tenant, its servants, agents, employees,
invitees or licensees, and not compensated for by insurance.
B. All permanent installations, additions, fixtures and improvements in or
upon the Leased Premises, whether placed there by Landlord or Tenant, including,
without limitation, paneling, decoration, partitions, railings, carpeting and
flooring, shall become the property of Landlord and shall remain upon the Leased
Premises at the termination of the Lease without compensation, allowance or
credit to the Tenant.
C. Any furniture, equipment, machinery or other movable property and
furnishings brought onto the Premises during Tenant's occupancy thereof and not
removed at the termination of the Lease may be handled, removed or stored by
Landlord, at the cost, expense and risk of Tenant, with no liability upon
Landlord for loss or injury thereto and without prejudice to Landlord's lien and
privilege securing all sums due hereunder. Tenant shall pay Landlord for all
expenses incurred by Landlord in such removal and storage charges against such
property so long as the same shall be in Landlord's possession or under
Landlord's control. All property not removed from the Premises or retaken from
storage by Tenant within thirty (30) days after the termination of this Lease,
however terminated, shall be conclusively deemed to have been conveyed by Tenant
to Landlord as by ▇▇▇▇ of sale without further payment or credit by Landlord to
Tenant.
24. HOLDING OVER. Tenant acknowledges that possession of the Leased
Premises must be surrendered to Landlord at the expiration or sooner termination
of the Term of this Lease. Tenant agrees that if possession of the Leased
Premises is not surrendered to Landlord within 24 hours after the date of the
expiration or sooner termination of the term of this Lease, then Tenant shall
pay to Landlord for each month and for each portion of any month during which
Tenant holds over in the Leased Premises after the expiration or sooner
termination or the term of this Lease, without the express written consent and
approval of Landlord, a sum equal to 150% times the aggregate of that portion of
the Monthly Rental and 100% of Additional Rental which was payable under this
Lease during the last month of the term hereof. Nothing herein contained shall
be deemed to permit Tenant to retain possession of the Leased Premises after the
expiration or sooner termination of the term of this Lease. The aforesaid
provision of this Article shall survive the expiration or sooner termination of
the term of this Lease.
25. NAME AND ADDRESS OF BUILDING. Landlord shall have the right to name and
from time to time change the name of the Building.
26. AIR RIGHTS. This Lease does not grant any rights to light, view and air
over property.
27 FAILURE TO INSIST ON STRICT PERFORMANCE. The failure of Landlord to
insist, in anyone or more instances, upon a strict performance of any covenant
of this Lease shall not be construed as a waiver or relinquishment thereof, but
the same shall continue and remain in full force and effect. The receipt by
Landlord of rent with knowledge of the breach of any covenant of Tenant
hereunder shall not be deemed a waiver of the rights of Landlord with respect to
such breach, and no waiver by Landlord of any provision hereof shall be deemed
to have been made unless expressed in writing and signed by the Landlord.
28. Intentionally Deleted.
29. PROHIBITION OF MECHANICS' LIENS. Tenant shall use its best efforts to
preclude from creating or allowing to be created against Landlord's title to or
interest in the Premises, any mechanic's, materialman's or laborer's liens, and
further expressly agrees to notify, prior to the commencement of any work or the
provision of any materials, all persons who might claim by, through, under or
against Tenant that Tenant has no power or authority to subject the title or
interest of Landlord, as fee owner of the Premises and the Building, to any
claim for any such lien. Tenant further agrees to notify all persons dealing
with Tenant that they shall look solely to the Tenant for the payment of any and
all charges incurred in improving, maintaining and repairing the Leased
Premises. In the event that any claim of lien or similar encumbrance is created
against the Premises arising out of the acts or in action of Tenant, Tenant
shall cause to have samee moved within fifteen (15) business days by payment or
by transferring said lien to bond.
30. COMPLIANCE WITH LAW AND ORDINANCES. The Tenant shall promptly comply
with all statutes, ordinances, rules, orders, regulations and requirements of
any Federal, State, or Municipal Government and of any and all their departments
and agencies applicable to said Premises, for the correction, prevention and
abatement of nuisances or other grievances, in, upon, or connected with the
Leased Premises during the Lease term. Tenant shall also promptly comply with
all rules, order and regulations of the Southeastern Underwriter's Association
for the prevention of fires, at Tenant's sole expense. Landlord, at Landlord's
sole cost and expense, shall ensure that the Building and the Premises are not
violative of the requirements of the Americans With Disabilities Act and any
other codes and/or laws governing the property, in force and effect as of the
date of construction of the improvement in question.
31. RULES AND REGULATIONS. Tenant shall observe and comply with such
additional reasonable rules and regulations as Landlord may prescribe upon
written notice to Tenant for the safety, care and cleanliness of the Building
and Premises, and the comfort, quiet enjoyment and convenience of other
occupants of the Development; provided, however, that all tenants in the
building are treated equally.
32. HAZARDOUS MATERIALS. Tenant agrees to obtain Landlord's prior written
consent to use, handle, store or otherwise utilize hazardous materials and/or
substances as defined from time to time by Federal, State or Local law or
regulation, on the Premises. Landlord reserves the right, in its sole and
absolute discretion, to prohibit any such hazardous materials in the Premises or
Development except for incidental cleaning purposes. Tenant agrees to comply
with all Federal, State and local laws and regulations pertaining to the
handling, transport, storage, use and disposal of said hazardous materials. Upon
demand of Landlord, Tenant will submit material safety data sheets, permits, and
copies of manifests including use and disposal logs to Landlord for all such
hazardous materials handled, stored, or otherwise used on the Premises. Landlord
represents that to the best of its knowledge the Building and Demised Premises
are free from any hazard substances which would require remediation or removal
under OSHA or any Federal or State Environmental Laws or Rules.
33. SIGNAGE. Tenant, at its sole cost and expense, may construct signage on
the Premises, Leased Premises and/or the Building, subject to Landlord's written
consent, which will not be unreasonably withheld and providing such signage is
consistent in design and appearance with, but not greater than 75 percent as
large as the approved signage for GE Capital, which is depicted on the attached
Exhibit "S". Tenant's sign shall also be in conformity with all applicable
rules, ordinances and laws promulgated by any applicable governmental or quasi-
governmental agency. Tenant shall have the right to install exterior signage on
the east and south side of the Building. Notwithstanding anything above to the
contrary regarding signage costs and expenses, Tenant may utilize some or all of
the Tenant Improvement Allowance for signage.
34. PARKING.
A. Landlord shall maintain parking facilities as shown on Exhibit "P" for
the purpose of accommodating Tenant, Tenant's invitees and employees. Landlord
reserves the right to reasonably control the method, manner and time of parking
and the number of parking spaces. Notwithstanding the foregoing, Landlord
covenants and agrees to provide Tenant with at least One Hundred Ten (110)
parking spaces for the Building in an area as shown on Exhibit "P" to be used on
a non-exclusive basis and four (4) parking spaces to be used on an exclusive
basis. If Tenant feels that it does not have the use of One Hundred Ten (110)
parking spaces, then Tenant shall give Landlord written notice of the problem
and Landlord shall have sixty (60) days from the date of receipt of such notice
to remedy the problem or designate parking for Tenant's use. Landlord retains
the right, at its option, to reconfigure or restructure the existing parking lot
on the Premises so long as the net number of spaces available to Tenant and set
forth herein is not reduced.
B. In the event that any of the Premises are taken by any governmental or
quasi-governmental entity by way of condemnation, or if Landlord elects to
construct a raised parking garage on the Premises, Landlord shall have the right
under this Lease to move Tenant's parking spaces to another area so long as such
area is a reasonable distance from the Building in light of all the existing
circumstances and so long as no other tenant of Landlord in the Fountain Square
Project is afforded exclusive parking privileges. If Tenant's parking spaces are
moved because of condemnation or the construction of a raised parking garage on
the Premises, Tenant's use of the replacement facilities shall be on a non-
assigned, non-exclusive basis.
35. BROKER AND INDEMNITY. Landlord is responsible to pay a leasing
commission to Cushrnan & Wakefield ("C & W") in the amount of four percent (4%)
and to Smith, Moses, ▇▇▇▇▇▇ and Associates in the amount of two percent (2%)
Tenant warrants and represents that it has not authorized or employed, or acted
by implication to authorize or to employ, any real estate broker or salesman to
act for it in connection with this Lease other than C & W. Tenant shall hold
Landlord harmless from and indemnify and defend Landlord against any and all
claims by any real estate broker or salesman, other than C & Wand brokers dealt
with by Landlord, if any, and Landlord shall hold Tenant harmless from and
indemnify and defend Tenant against any and all claims by any real estate
broker, salesman, other than brokers dealt with by Tenant (except C & W), for a
commission or finder's fee as a result of Tenant and Landlord entering into this
Lease.
36. PUBLIC AREAS. Landlord shall have the right at any time without the
prior written consent of Tenant and without the same constituting an eviction of
Tenant or entitling Tenant to any abatement or Rent, and without otherwise
incurring any liability to Tenant to change the arrangement and/or location of
(including the closing of) public entrances, passageways, parking areas, stores,
doorways, corridors, elevators, escalators, stairs, toilets or other public
parts of the Premises and/or Building, provided that in so doing, Landlord does
not deny Tenant and Tenant's agents, invitees and licensees of reasonable means
of access to or use of the Premises and/or Building.
37. QUIET ENJOYMENT. Landlord covenants that so long as Tenant is not in
default hereunder, Tenant shall and may peaceably and quietly have, hold and
enjoy the Leased Premises during the term of this Lease and any renewal or
extension hereof, subject to the provision of this Lease and any mortgages to
which the Premises are now or hereafter subject.
38. RELATIONSHIP TO THE PARTIES. Nothing contained herein shall be deemed
or construed be the parties hereto, nor any third party, as creating the
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, nor any
acts of the parties herein, shall be deemed to create any relationship between
the parties hereto other than the relationship of Landlord and tenant.
39. CORPORATE TENANT. Each person executing this Lease on behalf of Tenant
does hereby covenant and warrant that (i) Tenant is duly incorporated and
validly existing on the laws of its state of incorporation, (ii) Tenant has and
is qualified to do business in Florida, (iii) Tenant has full corporate right
and authority to enter into this Lease and to perform all Tenant's obligations
hereunder, and (iv) each person (and both of the persons if more than one signs)
signing this Lease on behalf of the corporation is duly and validly authorized
to do so.
40. FORCE MAJEURE. This Lease and the obligation of Tenant to pay Rent
hereunder and the obligation of either party to perform all of the other
covenants and agreements hereunder on the part of that party to be performed
(except the payment of Rent) shall not be affected, impaired or excused because
the other party is unable to fulfill any of its obligations under this Lease
expressly or implied to be performed by the other party or if the other party is
prevented or delayed from so doing by reason of catastrophic events, casualties
and acts of God. Whenever a period of time is herein prescribed for action to be
taken by a party, there shall be excluded from the computation for any such
period of time, any delays due in part or in whole by any of the aforementioned
reasons.
41. NOTICES.
A. Any notice by either party to the other shall be valid only if in writing
and shall be deemed to be duly given only if delivered personally or sent
by courier service, by overnight delivery service, or by registered or
certified, postage prepaid, mail addressed to the following addresses:
To Tenant:
NetWolves Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇, ▇▇
With a copy to:
Blau, Kramer, Wactlar & ▇▇▇▇▇▇▇▇▇, P.C. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
To Landlord: ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Banyan Strategic Realty Trust ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address for either party as that party may designate by notice
to the other; notice shall be deemed given, if delivered personally, upon
delivery thereof, or if sent by courier service, overnight delivery service or
if mailed, upon the posting thereof.
B. Tenant hereby appoints as its agent to receive service of all dispossessory
or distraint proceedings, the person in charge of Premises at the time of
occupying the Leased Premises; and if there is no person occupying same,
then such service may be made by overnight delivery to Tenant at the
address set forth above with a copy by overnight delivery to Tenant's
General Counsel as shown above.
42. ENTIRE AGREEMENT/NO OTHER AGREEMENTS. This Lease contains the entire
agreement of the parties hereto and no representations, inducements, promises or
agreements, oral or otherwise, between the Landlord and Tenant not embodied
herein, shall be of any force or effect. Any agreement hereafter made between
Landlord and Tenant shall be ineffective to modify, release or otherwise affect
this Lease, in whole or in part, unless such agreement is in writing and signed
by the party against whom said agreement is sought to be enforced.
43. CONSTRUCTION OF LEASE. Notwithstanding the fact that this Lease may
have been prepared by Landlord, the language in all parts of this Lease shall in
all cases be construed as a whole according to its fair meaning and not strictly
for nor against either Landlord or Tenant. Paragraph headings in this Lease are
for convenience only and are not to be construed as part of this Lease or in any
way defining, limiting or amplifying the provisions thereof. Landlord and Tenant
agree that in the event any term, covenant or condition herein contained is held
to be invalid, illegal or unenforceable for any reason, by any court of
competent jurisdiction, the invalidity or unenforcablity of any other term,
covenant or condition herein contained, it being the intention of the parties to
this Lease that in lieu of each such term, condition or covenant that is invalid
or unenforceable, there added as a part of this Lease a provision as similar in
term to such invalid or unenforceable term, condition or covenants may be
possible and may be valid and unenforceable. Time is of the essence of this
Lease and of each and all provisions hereof.
44. VENUE. This Lease is a Florida contract, to be interpreted and enforced
under and in accordance with the laws of the State of Florida.
45. 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 guidelines have been found in buildings in Florida. Additional
information regarding radon testing may be obtained from your public county
health unit.
46. HEIRS AND ASSIGNS/PARTIES.
A. The provisions of this Lease shall bind and inure to the benefit of the
Landlord and Tenant, and their respective successors, heirs, legal
representatives, and assigns, it being W1derstood that the term "Landlord" as
used in this Lease, means only the owner or the lessee for the time being of the
Premises. Tenant shall be bound to any succeeding party Landlord for performance
by Tenant of all the Terms, covenants and conditions of this Lease and agrees to
execute any attornment agreement not in conflict with the terms and provisions
of this Lease at the request of any such succeeding Landlord.
B. The parties "Landlord", and "Tenant", and pronouns relating thereto, as
used herein, shall include male, female, singular and plural, corporation,
partnership or individual, as may fit the particular parties.
47. EXPENSES AND ATTORNEYS' FEES. In the event of litigation arising
between Landlord and Tenant as a result of this Lease, the prevailing party in
such litigation shall be reimbursed by the other party for all costs of such
litigation, whether before or after trial, or on appeal, or in any bankruptcy
proceeding, including all reasonable attorneys' fees, paralegal fees, costs and
expenses. Further, Tenant will pay to Landlord as additional rent hereunder all
reasonable attorneys' fees, including paralegal fees, costs and expenses and all
other expenses which may be incurred by Landlord as a result of any action taken
by Tenant in any litigation or negotiation in which Landlord shall, without its
fault, become involved though or because of this Lease. Similarly, Landlord
shall pay to Tenant, by way of a credit towards the monthly rent, all costs of
litigation, including all reasonable attorneys' fees, including paralegal fees,
costs and expenses and all other expenses which may be incurred by Tenant as a
result of any action taken by Landlord in any litigation or negotiation in which
Tenant shall, without its fault, become involved though or because of this
Lease.
48. REASONABLE MODIFICATION. If, in connection with obtaining any financing
for the Building, or for any ground or under lying lease(s), a recognized
institutional lender shall request reasonable modifications in this Lease as a
condition to such financing, Tenant will not withhold, delay or defer its
consent, provided such modifications do not increase the obligations of Tenant
hereunder or adversely affect Tenant's leasehold interest or Tenant's use and
enjoyment of the Leased Premises.
49. REASONABLE CONSENT. Landlord agrees not to unreasonably withhold its
approval of or its consent to any act of Tenant, where such approval or consent
is required by the terms of this Lease and the Lease does not otherwise
specifically allow Landlord to withhold its consent in its discretion.
50. SAVING PROVISION. If any provision of this Lease, or its application to
any situation shall be invalid or unenforceable to any extent, the remainder of
this Lease, or the application thereof to situations other than that as to which
it is invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
51. MISCELLANEOUS.
A. All obligations of Tenant or Landlord hereunder not fully performed as
of the expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof.
B. Whenever a period of time is herein prescribed for action to be taken by
a party herein, said party shall not be liable or responsible for, and there
shall be excluded from the computation for any such period of time, any delays
due to cause of any kind whatsoever which are beyond the control of said party.
C. In the event that Landlord shall not have performed any duty or
obligation required of Landlord hereunder, the same shall not be deemed a
default under this Lease until such time as Tenant has given Landlord not less
than thirty (30) days written notice and Landlord has not cured or in good faith
undertaken to cure such alleged default within such time period.
52. EFFECTIVENESS OF LEASE. This Lease shall have no binding force or
effect and shall neither confer any rights nor impose any obligations, including
brokerage obligations, on either Landlord or Tenant unless and until both
Landlord and Tenant shall execute this Lease and executed counterparts of this
Lease shall have been delivered to Tenant and Landlord with the applicable
security deposit and letter of credit described in paragraph 5 of this Lease.
53. MANAGEMENT. The building shall be managed by Landlord or its designee.
The Landlord's initial designee shall be:
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
54. ADDENDA. The addenda or ExJ1ibits annexed hereto and executed by the
parties for identification herewith are made a part of this Agreement of Lease
for all purposes as though set forth in full herein.
55. OPTION TO RENEW. Tenant shall have a one five-year option to renew its
lease for all or part of the premises upon nine (9) months' prior written notice
to Landlord. The rental rate for each renewal term shall be at the then current
market rate for the Premises. If the parties cannot agree on the market rate,
the parties will agree to use baseball-type arbitration to establish the fair
market rate, pursuant to which each party will suggest a fair market rate and
the arbitrator shall be required to select the more reasonable of the two
choices. The foregoing Option to Renew is hereby declared and acknowledged to be
subject and subordinate to all rights now existing or hereafter granted to GE
Capital (or its successor) for expansion into all or part of the Leased Premises
or any right of first refusal now or hereafter granted to GE Capital (or its
successor) in connection with the Leased Premises.
56. RIGHT OF FIRST OFFER. Provided: (i) this Lease is then in full force
and effect, and (ii) Tenant is not then in default of this Lease, Tenant shall
have a continuing right of first offer ("Right of First Offer") to lease any
portion of the I 51 floor of the Building which becomes available for lease
during the Term (including the renewal term) of this Lease, upon the prevailing
market rate and terms to be coterminous with the initial Lease. Additionally if
Tenant exercised the right of first offer than Tenant will increase the Letter
Of Credit proportionately and shall have the same termination rights as provided
in the initial Lease to cover the unamortized portion of the tenant improvements
and commissions. Landlord shall notify Tenant of the location and rentable area
of the space and when such space will be available. Tenant shall have ten (10)
business days (excluding Saturday, Sunday and holidays observed by national
banks in Tampa) to notify Landlord of its exercise of this Right of First Offer.
If Tenant fails to notify Landlord in writing within ten (10) business days of
its exercise of this Right of First Offer, Landlord may lease the space (or any
part thereof) to a third party.
IN WITNESS HEREOF, the parties have hereunto set their hands and seals, as of
the day and year first above written. TENANT:
NetWolves Corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
Attest: Its:
LANDLORD:
BSRT Fountain Square L.L.C.
an Illinois Limited Liability Company
Vice President
Secretary
EXHIBIT"B"
A tract of land lying in the ▇▇▇▇▇▇▇▇▇ ▇/▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇ 18 East, Hillsborough County, Florida, being more particularly described
as follows:
From the Northwest ▇▇▇▇▇ of Section ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, run thence S. 00- 19' 53" W., 109.28 feet, along
the West boundary line of the Northwest 1/4 of said Section 7; thence S.89- 40'
07" E., 30.00 feet to the East right-of-way line of ▇▇▇▇▇▇ ROAD; run thence N.
39- 17' 32" E., 25.52 feet, along Intersection right-of-way line for MEMORIAL
HIGHWA y (STATE ROAD NO. S-576); thence S. 89- 58' 39" E., 242.01 feet, along
the South right-of-way line of MEMORIAL HIGHWA y (STATE ROAD NO. S-576), to the
beginning of a curve to the right; thence Easterly, 298.44 feet, along the
curved Southerly right- of-way line of said MEMORIAL HIGHWAY (having a radius
of5682.58 feet, a central angle of 03- 00' 33", and a chord bearing and distance
ofS.88- 28' 23" E., 298.41 feet), to a point of reverse curve; thence Easterly
242.02 feet, along the curved Southerly right-of-way line of said MEMORIAL HIGHW
AY (being a curve to the left, having a radius of 5776.58 feet, a central angle
of 02- 24' 02", and a chord bearing a distance of S. 88- 08' 55" E., 241.99
feet), to a point of right- of-way change; thence S.OO- 08' 40" W., 12.00 feet,
along the right-of-way line on the South side of said MEMORIAL H[GHWA Y; thence
Easterly, 49.60 feet along the, curved Southerly right-of-way line of said
MEMORIAL HIGHW AY (being, a curve to the left, having a radius of 5788.58 feet,
a central angle of 00- 29' 31", and a chord bearing and distance of S. 89- 36'
53" E., 49.60 feet), to the end of said curve; thence S.89- 51' 39" E., 350.39
feet, along the South right-of-way line of said MEMORIAL HIGHWAY; thence S.48-
57' 56" E., 94.63 feet, along Intersection right- of-way line, to the West
right-of-way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇); thence S.OO- 25'
30" W., 1056.30 feet, along the West right-of-way line of said EISENHOWER BOULEV
ARD for a point of Beginning; thence continue, S.00- 25' 30" W., 486.68 feet,
along the West right-of-way line of said EISENHOWER BOULEV ARD to the
Intersection right-of-way line of GUN CLUB ROAD; thence S.45- II' 30" W., along
said Intersection right-of-way line, 50.79 feet to Northerly right-of-way line
of said GUN CLUB ROAD; thence S. 85- 10' 09" W., 489.25 feet, along the
Northerly right-of-way line of said GUN CLUB ROAD; thence 23.07 feet along the
arc of a curve to the right, said curve having a radius of 43.00 feet and a
chord of 22.79 feet which bears N. 14- 56' 39" W .; thence N. 00- 25' 30" E., a
distance of274.58 feet; thence 204.68 feet along the arc of a curve to the
right, said curve having a radius of381.00 feet and a chord of202.23 feet, which
bears N. 14- 57' 55" W.; thence N. 63- 00' 52" E., a distance of 101.24 feet;
thence 125.34 feet along at the arc of a curve to the right, said curve having a
radius of 262.00 feet and a chord of 124.15 feet, which bears N. 76- 43' II" E.;
thence S. 89- 34' 30" E., a distance of 372.18 feet to the Point of Beginning;
containing 6.63 acres, more or less.
EXHIBIT "C"
RULES AND REGULATIONS
(a) Tenant shall faithfully observe and comply with the rules and regulations of
the Building as may be included in this Lease and modified or added to from time
to time by the Landlord. Landlord shall not be responsible to Tenant for the
nonperformance of any of said Rules and Regulations by any other Tenant or
occupant of the Building.
(b) The sidewalks, entry passages, corridors, halls, elevators, and stairways
shall not be obstructed by Tenant or used by it for other than those of ingress
and egress. The floors, skylights and windows that reflect or admit light in any
place in said Building shall not be covered or obstructed by Tenant. The water
closets and other water apparatus shall not be used for any other purpose other
than those for which they were constructed, and no sweeping, rubbish, or other
obstructing substances shall be tl1fown therein.
(c) No sign, placard, picture, name, advertisement or notice visible from the
exterior of any TenaI1t's Premises shall be inscribed, painted, affixed or
otherwise displayed by any Tenant on any part of the Building without the prior
written consent of Landlord. Materials stored or placed by Tenant visible from
outside the Building will not be permitted.
(d) The Premises shall not be used for the storage of merchandise held for sale
to the general public or for lodging. No cooking shall be done or permitted on
the Premises except private use by Tenant of Underwriters' Laboratory- approved
equipment for brewing coffee, tea, hot chocolate and similar beverages. Vending
machines and refrigerators shall be permitted in the Leased Premises provided
the same are properly maintained and serviced-
(e) No Tenant shall employ any person or persons other than the janitor of
Landlord for the purpose of cleaning its Leased Premises unless otherwise agreed
to by Landlord in writing. Except with the written consent of Landlord, no
person or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning the same. Landlord shall not be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of any Tenant by the janitor or
any other employee of any other person.
(f) Landlord will furnish each Tenant free of charge with keys to each door lock
provided in the Leased Premises by Landlord. At Tenant's request, additional
keys shall be provided by Landlord to Tenant at Landlord's actual cost. No
Tenant shall lock or install anew or additional lock or any bolt on any door of
its Leased Premises. Each Tenant, upon the termination of its lease, shall
deliver to Landlord all keys to doors in the Leased Premises and in the
Building, if such keys have been furnished to Tenant.
(g) No Tenant shall use or keep in the Premises or the Building, any kerosene,
gasoline, or inflammable or combustible fluid or material other than limited
quantities thereof reasonably necessary for the operation or maintenance of
office equipment. No Tenant shall use any method of heating or air conditioning
other than that supplied by Landlord. No Tenant shall use or keep or permit to
be used or kept any foul or noxious gas or substance in the Premises, or permit
or suffer the Premises to be occupied or used in a matter offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors, vibrations, or interfere in any way with other tenants or those having
business in the Building, nor shall any animals or birds be brought or kept on
the Premises or the Building.
(h) Landlord shall have the right, exercisable without notice and without
liability to any Tenant, to change the name of the Building
(i) Landlord
establishes the hours of8:00 a.m. to 6:00 p.m. Monday through Friday and 8:00
a.m. to I :00 p.m. on Saturdays, as reasonable and usual business hours for the
purposes of Paragraph II of the Lease. If Tenant requires electricity or heat or
air conditioning after hours, on Saturdays or Sundays, or national holidays,
Tenant shall notify Landlord during norn1al business hours at least two (2)
hours in advance of the additional requirement. Tenant shall pay Landlord such
charges as Landlord shall establish from time to time for providing such
services during such hours. Any such charges which Tenant is obligated to pay
shall be deemed to be Additional Rent under the Lease, and should Tenant fail to
pay the same after demand, such failure shall be a default by Tenant under the
Lease. The cost to be paid by Tenant for providing the additional services shall
be the actual costs and expenses incurred by Landlord in providing such services
to Tenant. The cost of after-hours air conditioning is $25.00 per hour per
unit. The Leased Premises encompasses one unit.
0) No curtains, draperies, blinds, shutters, shades, screens or other coverings,
hangings, or decorations shall be attached to, hung, or placed in, or used in
connection with any exterior window of the Building without Landlord's consent
and approval. In any event, with prior written consent of the Landlord, such
items shall be installed on the office side of Landlord's standard window blinds
and shall in no way be visible from the exterior of the Building.
(k) Each Tenant shall use its best efforts to ensure that the doors of its
Leased Premises are closed and locked and that all water faucets and water
apparatus are shut off before Tenant and Tenant's employees leave the Premises
so as to prevent waste or damage. For any default or carelessness in this
regard, Tenant shall make good on all damages sustained by other tenants or
occupants of the Building or Landlord. On rnulti-tenancy floors, all Tenants
shall keep the doors to the Building's corridors closed at all times except for
ingress and egress.
(l) No Tenant shall install any radio or television antenna, loudspeaker, or
other device on the roof or exterior walls of the Building. No T. V., radio, or
recorder shall be played in such a manner as to cause a nuisance to any other
Tenant.
(m) There shall not be used in any space, or of the public halls of the
Building, either by any Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by any
Tenant into Building or kept in or about its Premises.
(n) Each Tenant shall store all its trash and garbage within its Premises. No
material shall be placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of office building trash and garbage in the
City of Tampa and/or the County of Hillsborough without being in violation of
any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only though entryways and freight elevator provided for such
purposes and at such times as Landlord shall designate.
(0) Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building or on the site are prohibited.
(p) The requests of Tenant for maintenance assistance will be attended by the
Property Manager.
(q) All deliveries are to be made only though the loading docks, and taken to
the floor by freight elevator, during normal business hours. No Tenant shall
allow any delivery through the front doors, nor in the passenger elevators at
any time.
(r) These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the agreements, covenants,
conditions and provisions of any Lease of the Leased Premises, the Premises or
the Building. The terms, covenants and conditions set forth in the Lease shall
govern in the event of any inconsistency or ambiguity between the Rules and
Regulations and the Lease.
(s) Landlord reserves the right to make such other rules and regulations as in
its judgment may from time to time be needed for safety, care and cleanliness of
the Building and for the preservation of good order therein. Notice of any such
amendment or modification promptly will be provided Tenant.
ADDENDUM
FORM OF IRREVOCABLE ST ANDBY LETTER OF CREDIT
Beneficiary:
Banyan Strategic Realty Trust ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
We establish our Irrevocable Letter of Credit Number [ ] dated [ ]
in your favor for the account of [ ] ("Tenant"), whose current address
is up to the aggregate amount of USD [$ ] available by your draft(s) at
sight drawn on us to be accompanied by the original Letter of Credit and
following document(s)in duplicate (unless otherwise indicated):
Beneficiary's signed statement reading:
We hereby certify that the amount of our draft represents funds due as result of
the failure of Tenant to comply with the terms of their lease agreement dated
[ ].
Expiration Date of this Letter of Credit is [ ] at our counters at
[ , Attention:
From and after the date, which is fifteen (15) days prior to the Expiration
Date, this Letter of Credit may be drawn upon by the Beneficiary by draft at
sight drawn upon us accompanied only by the original Letter of Credit and
without any accompanying documents. This Letter of Credit may be replaced at any
time and from time to time by Tenant with a Letter of Credit in identical form
having (i) a later expiration date.
All drafts presented for negotiation must be endorsed on reverse side by the
Beneficiary.
Drafts must be endorsed hereon and must be marked as being drawn under our above
mentioned Letter of Credit and bear its number and date.
We hereby engage with bona fide holders that drafts drawn strictly in compliance
with the terms of this credit and amendments shall meet with due honor upon
presentation to us.
This undertaking is issued subject to the International Standby Practices 1998
(ISP98). [ ] Authorized Signature
RIDER TO OFFICE LEASE AGREEMENT 1 -Commencement
Subject to delays resulting from strikes, material shortages, labor unrest, acts
of God, severe weather, war, insurrection, delays caused by governmental
agencies in the issuance of required permits or other factors beyond the control
of Landlord (herein "Force Majeure Matters or delays caused by Tenant or Tenants
agents, employees, contractors, subcontractors or licensees, including, without
limitation, Tenant's failure to promptly respond as required hereunder or change
orders to the Tenant Improvements Plans and Specifications ("Tenant Delay
Factors"), Landlord will deliver the Premises to Tenant not later than December
21, 2000 (the Target Commencement Date"), with the Tenant Improvements
substantially completed in accordance with the Tenant Improvements Plans and
Specifications, as evidenced by the issuance of final inspection by the City of
Tampa. Tenant shall have the right to enter the Premises two (2) weeks prior to
the Target Commencement Date to install communications equipment. furniture, and
fixtures provided that Tenant shall not interfere with or delay the completion
of the Tenant Improvements by Landlord's contractor. Any delay in Tenant's
timely delivery of these items shall be deemed a Tenant Delay Factor. If
Landlord for any reason whatsoever cannot deliver possession of the Premises to
Tenant (with the Tenant Improvements substantially completed in accordance with
the Tenant Improvements Plans and Specifications) not later than the Target
Commencement Date. this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom except as
described below; but in that event, Landlord and Tenant shall act diligently and
in good faith to complete the work that is necessary to allow Landlord to
deliver the Premises to Tenant as specified above. In such case, (a) if
Landlord's failure to deliver possession of the Premises to Tenant (with the
Tenant Improvements substantially completed in accordance with the Tenant
Improvements Plans and Specifications) by the Target Commencement Date is not
the result, in whole or in part, one or more Tenant Delay Factors, the
Commencement Date shall be adjusted to be the date when Landlord does in fact
deliver possession of the Premises to Tenant as described above and Landlord
shall payor credit delay damages to Tenant as described below; and (b) if
Landlord's failure to deliver possession of the Premises to Tenant (with the
Tenant Improvements substantially completed in accordance with the Tenant
Improvements Plans and Specifications) by the Target Commencement Date is the
result, in whole or in part of one or more Tenant Delay Factors, the
Commencement Date shall be the later of (i) the Target Commencement Date or (ii)
the date the Tenant Improvements would have been substantially completed in the
absence of such Tenant Delay Factor(s) and no delay damages shall be payable to
Tenant. If Landlord cannot deliver possession of the Premises to Tenant with the
Tenant Improvements substantially by December 21, 2000, (the "Delivery
Deadline"), which deadline shall be extended one (1) day for each day of delay
due to Force Majeure Matters or Tenant Delay Factors, then Landlord shall pay
delay damages to Tenant equal to one (1) day of Base Rental for each one (1) day
of delay for the period from the Delivery Deadline through the date that
possession of the Premises is delivered to Tenant with the. Tenant Improvements
completed. Such delay damages shall. at Landlord's election, either be paid in
cash to Tenant or as a credit against monthly payments of Base Rental otherwise
due hereunder. Notwithstanding any term or provision herein to the contrary, if.
for any reason other than Force Majeure Matters or Tenant Delay Factors,
Landlord cannot deliver possession of the Premises (with the Tenant Improvements
substantially completed in accordance with the Tenant Improvements Plans and
Specifications) to Tenant by the date that is sixty (60) days after the Target
Commencement Date and sixty (60) days after the Delivery Deadline, Tenant shall
be entitled to terminate this Lease by so notifying Landlord in writing within
ten (10) days following the expiration of such sixty (60) day period.
Within five (5) days following Tenant's occupancy of the Premises. Tenant shall
execute and deliver to Landlord duplicate originals of a stipulation regarding
the actual Commencement date, the corresponding Term of the Lease and other
matters, subject to Landlord's approval of the information inserted by Tenant in
the stipulation, Landlord shall execute the duplicate originals of the
stipulation and shall promptly return one (1) fully executed original to Tenant.
2. Construction of Improvements.
Subject to Force Majeure Matters and consistent with the terms of Paragraph 1
herein and Exhibit C hereto, Landlord shall pursue diligently and in good faith
the completion of the Building Shell Improvements and the Tenant Improvements.
Landlord shall provide Tenant with an allowance of $20.00 per rentable square
foot of the Premises allocated for space planning, architectural. mechanical,
electrical and construction drawings and cabling, signage permits and hard
construction costs. The Tenant Improvements Allowance shall be applied and paid
as described in Paragraph 1 and Exhibit C of this Lease.
(a) The Tenant Improvements Allowance shall be applied by Landlord against the
costs of designing. planning and constructing the Tenant Improvements. In the
event the costs incurred in connection with the design, planning and
construction of the Tenant Improvements as approved by Tenant exceed the Tenant
Improvements Allowance, Tenant shall be responsible for bearing and paying such
excess costs (the "Excess Costs"). as follows:
(1) Tenant shall pay to Landlord, prior to the commencement of construction of
the Tenant Improvements, an amount equal to one hundred percent (100%) of such
Excess Costs (as then estimated by Landlord).
(2) As soon as the final accounting is prepared and submitted by Landlord to
Tenant, Tenant shall pay to Landlord the entire unpaid balance of the actual
Excess Costs based on the final costs to Landlord or Landlord shall refund any
credit due Tenant.
(b) Tenant shall hire a cabling and sign contractor which costs shall not be
subject to any management fee. Landlord will reimburse Tenant for these costs
within ten (10) business days, provided Landlord has not used allowance for
other costs outlined in this Rider to Lease Agreement.
The Excess Costs (if any) payable by Tenant under this Paragraph 2(b) shall be
due hereunder at the time specified herein.
(c) Except as otherwise provided above in this Paragraph 2, all installations
and improvements now or hereafter placed on or in the Premises shall be for
Tenant's account and at Tenant's cost.
(3) The foregoing Rider to Office Lease Agreement is hereby incorporated into
and made a part of the Office Lease Agreement. In the event of a conflict
between the terms of the Rider to Office Lease Agreement and the terms of the
Office Lease Agreement Rider to Office Lease Agreement shall control.
EXHIBIT C Construction of Improvements
1. Preparation and Approval of Tenant Improvements and Specification. Within ten
(10) business days after the Lease Date, Landlord shall submit to Tenant a space
plan for the Premises approved by Tenant. As soon as reasonably practicable
following Tenant's approval of the space plan, Landlord shall proceed. to have
an architect prepare a draft of the Tenant Improvements Plans and Specifications
and shall deliver a complete copy of the Tenant Improvements Plans and
Specifications to Tenant for Tenant's review and approval. Tenant shall review
the draft of the Tenant Improvements Plans and Specifications and shall notify
Landlord in writing within five (5) business days after Tenant's receipt of same
as to whether Tenant approves the Tenant Improvements Plans and Specifications;
and if Tenant does not approve the Tenant Improvements Plans and Specifications,
such written notice from Tenant to Landlord shall provide Tenant's specific and
detailed comments and suggestions which, if incorporated in the Tenant
Improvements Plans and Specifications would render the Tenant Improvements Plans
and Specifications acceptable to Tenant. Landlord and Tenant shall cooperate
with one another in good faith to reach agreement regarding the Tenant
Improvements Plans and Specifications as soon as practicable, and in any event
Tenant shall approve the Tenant Improvements Plans and Specifications if they
are prepared in accordance with and consistent with the preliminary space plans
approved by Tenant. In the event Landlord and Tenant are unable, after complying
with the foregoing terms and provisions in this Paragraph 1, to reach agreement
regarding the Tenant Improvements Plans and Specifications within fifteen (15)
business days after the date on which Landlord initially delivers the draft of
the Tenant Improvements Plans and Specifications to Tenant pursuant to this
Paragraph 1 and until such time as Landlord and Tenant succeed in reaching
agreement relative to the Tenant Improvements Plans and Specifications, Landlord
may terminate the Lease by giving written notice of such action to Tenant.
2. Tenant Improvement Allowance and Construction of Tenant Improvements.
Landlord will obtain bids for construction of the Tenant Improvements from at
least three (3) qualified general contractors and shall select the lowest
responsible bidder unless Landlord and Tenant mutually agree otherwise. The
proposed cost of such construction shall be subject to Tenant's review and
approval to the extent it exceeds the Tenant Improvements Allowance. Landlord
shall coordinate construction of the Tenant Improvements in accordance with
Tenant Improvements Plans and Specifications approved by Landlord and Tenant as
described above. The timetable for design and construction of Tenant
Improvements will be provided to Landlord within ten (10) days after lease
execution. No changes to the approved Tenant Improvement Plans and
Specifications shall be made unless approved in writing by Landlord and Tenant.
In the event Tenant desires any changes to the approved Tenant Improvements
Plans and Specifications, Tenant shall submit the proposed change to Landlord
for Landlord's approval, which approval shall not be unreasonably withheld if
such change will not delay the Commencement Date or significantly increase the
scope of the work. Landlord shall prepare and submit to Tenant a Change Order
setting forth a description of the change and the cost thereof. If Tenant fails
to execute and approve the Change order within five {5) days thereafter, Tenant
shall be deemed to have withdrawn the proposed change and Tenant shall reimburse
Landlord for the reasonable cost of preparing the Change Order .
If Tenant executes the Change Order within the five {5) day period, the Change
Order shall be deemed approved by Tenant, Landlord shall implement the change in
accordance with the Change Order and the cost described therein shall be paid by
Tenant to the extent such cost exceeds the Tenant Improvements Allowance.
The foregoing Construction of Improvements are hereby incorporated into and made
a part of the Lease Agreement. In the event, however, of a conflict between the
terms of the Construction of Improvements and the terms of the Lease Agreement,
the Construction of Improvements shall control.
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
BSRT Fountain Square L.L.C., an Illinois limited liability company ("Landlord")
and NetWolves Corporation, a New York corporation ("Tenant") agree as follows:
1. Recitals
(a) Landlord and Tenant executed and delivered a certain Office Lease Agreement
dated September 29, 2000 (the "Lease").
(b) Capitalized terms used herein shall have the same meanings as ascribed to
such terms in the Lease.
(c) Landlord and Tenant desire to amend the Lease to correct the square footage
of the Premises.
2. Amendment
(a) The amount of Tenant's Rentable Square Feet as set forth in Paragraph 1 (
and elsewhere ) in the Lease is hereby changed from 20,478 to 20,520.
(b) There shall be no change in the Base Rent for the Premises.
3. Ratification
In all other respects, the Lease is ratified, confirmed and readopted.
Executed this 22nd day of January, 2001.
IN WITNESS HEREOF, the parties have hereunto set their hands and seals, as of
the day and year first above written.
TENANT:
NetWolves Corporation
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
AVP Operations
LANDLORD:
BSRT Fountain Square L.L.C. , an Illinois Limited Liability Company
By: BSRT Portfolio Corp., an Illinois Corporation,
its manager
Vice President