Exhibit 10.6
OFFICE SPACE LEASE AGREEMENT
Between
K/B Opportunity Fund I, L.P.,
a Delaware Limited Partnership
as Landlord,
and
PREFERRED EMPLOYERS GROUP, INC.
as Tenant,
Dated
August 1, 1994
OFFICE SPACE LEASE AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I THE PREMISES.........................................................1
SECTION 1.1 Demise..................................................1
SECTION 1.2 Premises................................................1
SECTION 1.3 Nonexclusive Rights.....................................1
SECTION 1.4 Landlord's Reserved Rights..............................1
ARTICLE II TERM................................................................2
SECTION 2.1 Term....................................................2
SECTION 2.2 Lease Commencement Date.................................2
SECTION 2.3 Amendment to Lease......................................2
SECTION 2.4 Anticipated Completion Date.............................2
SECTION 2.5 Lease Year..............................................2
SECTION 2.6 Acceptance of Possession by Tenant......................2
ARTICLE III RENT...............................................................2
SECTION 3.1 Rent....................................................2
SECTION 3.2 Base Rent...............................................3
SECTION 3.3 Increase in Operating Costs.............................3
SECTION 3.4 Additional Rent.........................................4
SECTION 3.5 Sales Tax...............................................5
SECTION 3.6 Payment of Rent.........................................5
SECTION 3.7 Past Due Rent...........................................5
ARTICLE IV SECURITY DEPOSIT....................................................5
SECTION 4.1 Security Deposit........................................5
SECTION 4.2 Application of Security Deposit.........................5
SECTION 4.3 Return of Security Deposit..............................6
SECTION 4.4 Transfer of Security Deposit............................6
SECTION 4.5 Mortgagee...............................................6
SECTION 4.6 Third Party Claims on Security Deposit..................6
ARTICLE V USE OF PREMISES......................................................6
SECTION 5.1 Use.....................................................6
SECTION 5.2 Compliance with Laws....................................6
ARTICLE VI ASSIGNMENT AND SUBLETTING...........................................7
SECTION 6.1 Prohibition.............................................7
SECTION 6.2 Assignment in Bankruptcy................................8
SECTION 6.3 Effect of Consent.......................................8
ARTICLE VII TENANT'S MAINTENANCE AND REPAIRS...................................9
SECTION 7.1 Maintenance.............................................9
SECTION 7.2 Repairs.................................................9
ARTICLE VIII TENANT ALTERATIONS................................................9
SECTION 8.1 Prohibition.............................................9
SECTION 8.2 Indemnification, Removal................................9
ARTICLE IX LANDLORD'S INTEREST NOT SUBJECT TO LIENS...........................10
SECTION 9.1 Liens, Generally.......................................10
SECTION 9.2 Mechanics Liens........................................10
SECTION 9.3 Notices of Commencement................................10
(i)
ARTICLE X KEYS, SIGNS, FURNISHINGS AND EQUIPMENT..............................11
SECTION 10.1 Keys...................................................11
SECTION 10.2 Signs..................................................11
SECTION 10.3 Landlord's Signage Rights..............................11
SECTION 10.4 Removal of Signage.....................................11
SECTION 10.5 Furnishings............................................11
SECTION 10.6 Equipment..............................................11
ARTICLE XI INSPECTION BY LANDLORD.............................................12
ARTICLE XII INSURANCE.........................................................12
SECTION 12.1 Liability Insurance....................................12
SECTION 12.2 Property Insurance.....................................12
SECTION 12.3 Other Insurance........................................12
SECTION 12.4 Requirements...........................................12
SECTION 12.5 Failure to Procure Insurance...........................12
SECTION 12.6 Waiver of Subrogation..................................13
SECTION 12.7 Insurance by Landlord..................................13
SECTION 12.8 Increase in Landlord's Insurance Premium...............13
ARTICLE XIII SERVICES AND UTILITIES...........................................13
SECTION 13.1 Services and Utilities.................................13
SECTION 13.2 Normal Hours...........................................13
SECTION 13.3 Interruptions..........................................14
SECTION 13.4 Energy Conservation Control............................14
SECTION 13.5 Landlord's Responsibilities............................14
ARTICLE XIV LIABILITY OF LANDLORD, INDEMNIFICATION
BY TENANT.........................................................14
SECTION 14.1 Liability of Landlord..................................14
SECTION 14.2 Indemnification of Landlord............................15
SECTION 14.3 Notice of Claim or Suit................................16
SECTION 14.4 Transfer of Office Complex.............................16
SECTION 14.5 No Offset Against Rent.................................16
SECTION 14.6 Limitation on Liability of Landlord....................16
ARTICLE XV RULES AND REGULATIONS..............................................17
ARTICLE XVI DAMAGES OR DESTRUCTION............................................17
SECTION 16.1 Damage of Destruction..................................17
SECTION 16.2 Limitation of Landlord's Obligation....................17
SECTION 16.3 Landlord's Termination Option..........................18
ARTICLE XVII CONDEMNATION.....................................................18
SECTION 17.1 Condemnation...........................................18
SECTION 17.2 Award..................................................18
ARTICLE XVIII DEFAULT BY TENANT...............................................19
SECTION 18.1 Events of Default......................................19
SECTION 18.2 Remedies on Default....................................20
SECTION 18.3 Additional Remedies....................................21
SECTION 18.4 No Waiver..............................................22
SECTION 18.5 Landlord May Cure Tenant's Defaults....................22
ARTICLE XIX ATTORNMENT AND NONDISTURBANCE.....................................22
SECTION 19.1 Nondisturbance.........................................22
SECTION 19.2 Attornment and Waiver..................................23
SECTION 19.3 Quiet Enjoyment........................................23
(ii)
ARTICLE XX END OF TERM........................................................24
SECTION 20.1 Surrender of Premises..................................24
SECTION 20.2 Holding Over...........................................24
ARTICLE XXI PARKING...........................................................24
SECTION 21.1 Parking, Generally.....................................24
SECTION 21.2 No Specified Spaces....................................24
SECTION 21.3 Parking Garage Rules...................................25
SECTION 21.4 Parking Garage Hours...................................25
SECTION 21.5 No Liability of Landlord...............................25
ARTICLE XXII RELOCATION OF TENANT.............................................25
SECTION 22.1 Entire Agreement; Modification.........................25
SECTION 22.2 No Partnership.........................................25
SECTION 22.3 Determination of Rentable Area.........................25
SECTION 22.4 Brokers................................................25
SECTION 22.5 Estoppel Certificates..................................25
SECTION 22.6 Waiver of Jury Trial...................................26
SECTION 22.7 Waiver of Right of Redemption..........................26
SECTION 22.8 Venue..................................................26
SECTION 22.9 Notices................................................27
SECTION 22.10 Rules of Construction..................................27
SECTION 22.11 Successors and Assigns.................................27
SECTION 22.12 Waiver.................................................27
SECTION 22.13 Costs and Attorneys' Fees..............................27
SECTION 22.14 Time of the Essence....................................27
SECTION 22.15 Governing Law..........................................27
SECTION 22.16 No Recording...........................................27
SECTION 22.17 Radon Gas Notification.................................27
(iii)
OFFICE SPACE LEASE AGREEMENT
THIS OFFICE SPACE LEASE AGREEMENT (this "Lease") is made as of this
day of , 19 , by and between K/B Opportunity Fund I, L.P.,
a Delaware Limited Partnership (hereinafter referred to as "Landlord"), and
Preferred Employers Group, Inc. (hereinafter referred to as "Tenant").
RECITALS:
WHEREAS, Landlord is the record owner of fee simple title to that
certain improved parcel of real property located in the City of Miami, Dade
County, Florida, more particularly and legally described on Exhibit A attached
hereto (the "Land"), upon which Landlord has developed an office complex known
as Bayshore Executive Office Building (the "Office Complex"); and
WHEREAS, Tenant desires to lease space in the Office Complex and
Landlord is willing to rent space in the Office Complex to Tenant, upon and
subject to the terms, conditions, covenants and agreements set forth
hereinbelow.
NOW, THEREFORE, for and in consideration of the premises hereof, the
parties hereto, intending legally to be bound, hereby covenant, stipulate and
agree as follows:
ARTICLE I
THE PREMISES
1.1 Demise. Landlord does hereby demise, let and lease unto Tenant, and
Tenant does hereby hire, lease and take as Tenant from Landlord, for the term,
for the use and on those terms and conditions hereinafter specified in this
Lease the premises hereinafter defined and described in Section 1.2 of this
Lease.
1.2 Premises. The Premises shall consist of and include approximately
8,500 square feet of the said total rentable area of approximately 11,600 square
feet on the Penthouse (PH) floor of the Building of the Office Complex (the
"Premises"). The location and configuration of the Premises are outlined on the
floor plan attached hereto as Exhibit B and made a part hereof. As such time as
the exact number of square feet of rentable area included in the Premises is
ascertained in accordance with Section of this Lease, Landlord and Tenant
shall execute an amendment to this Lease more particularly described in Section
2.3 of this Lease, stating, among other things, the exact number of square feet
of rentable area included in the Premises.
1.3 Nonexclusive Rights. The lease of the Premises includes the
nonexclusive right, together with the other tenants of the Office Complex and
members of the public, to use the common and public areas of the Office Complex
for purposes of ingress and egress, but includes no other rights not
specifically set forth herein.
1.4 Landlord's Reserved Rights. Landlord hereby reserves to itself and
its successors and assigns the right (i) to change from time to time the street
address and/or name of the Office Complex an/or the arrangement and/or location
of entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets, or other public portions, of the Office Complex; (ii) to own, install,
erect, use, maintain and repair and replace pipes and conduits in and through
the Premises; and (iii) to grant to any other person or entity the exclusive
right to conduct any particular business or undertaking in the Office Complex.
Tenant hereby consents and agrees to the foregoing and further agrees and
acknowledges that Landlord may exercise any or all of the foregoing rights
without being deemed guilty of an eviction, actual or constructive, or a
disturbance or interruption of the business of Tenant or of Tenant's use of
occupancy of the Premises.
ARTICLE II
TERM
2.1 Term. The term of this Lease ("Lease Term") shall commence at 12.01
a.m. on the Lease Commencement Date, as determined pursuant to Section 2.2
hereof, and shall continue unless earlier terminated in accordance with the
provisions of this Lease, for the balance of the calendar month in which the
Lease Commencement Date occurs and for a period of seven (7) years thereafter
and shall cease, terminate and expire at 11:59 p.m. on the day which is the
seventh (7th) annual anniversary of the last day of the calendar month in which
the Lease Commencement Date occurs (the "Lease Expiration Date"). The Lease
Expiration Date may be extended as provided in the Addendum of this Lease.
2.2 Lease Commencement Date. The Lease Commencement Date shall be the
date on which the Landlord substantially completes, or is deemed to have
substantially completed, construction of the tenant improvements to be installed
in the Premises, as determined pursuant to Paragraph 9 of Exhibit C attached
hereto and made a part hereof. Notwithstanding that the Lease Commencement Date
shall be established in the manner and on the date provided in this Section,
Tenant and Landlord acknowledge and agree that this Lease is binding upon them
as of the date of its execution by Tenant and Landlord.
2.3 Amendment to Lease. Promptly after the Lease Commencement Date is
ascertained, Landlord and Tenant shall execute a written amendment to the Lease
in the form attached here to as Exhibit D and made a part hereof by reference
thereto, setting forth the Lease Commencement Date and the Lease Expiration
Date, and stating the exact number of square feet of rentable area included in
the Premises.
2.4 Anticipated Completion Date. Landlord presently anticipates that
the Premises will be substantially completed and ready for occupancy by Tenant
on or about September 1, 1994. In the event that Landlord's substantial
completion of construction of the Premises or the delivery of possession of the
Premises to Tenant is delayed, regardless of the reasons or causes of such
delay, this Lease shall not be rendered void or voidable as a result of such
delay, and the term of this Lease shall commence on the Lease Commencement Date
as determined pursuant to Section 2.2 hereof. Furthermore, Landlord shall not
have any liability whatsoever to Tenant on account of such delay.
2.5 Lease Year. For purposes of this Lease, the term "Lease Year" shall
mean each consecutive period of twelve (12) calendar months, commencing on the
first day of the calendar month immediately following the month in which the
Lease Commencement Date occurs and each anniversary of such day, except that the
first Lease Year ("First Lease Year") shall also include the period from the
Lease Commencement Date until the first day of the following month.
2.6 Acceptance of Possession by Tenant. The taking of possession of the
Premises by Tenant shall constitute an acknowledgment by Tenant that the
Premises are in good condition and that all work and materials provided by
Landlord are satisfactory, except as to any defects or incomplete work that are
described in a written notice given by Tenant to Landlord no later than fifteen
(15) days after Tenant commences occupancy of the Premises. Landlord shall be
obligated to correct and complete only those defects and incomplete items
described in such notice which Landlord's architect or engineer confirms are, in
fact, defective or incomplete items pursuant to the terms of Exhibit C, if any.
ARTICLE III
RENT
3.1 Rent. Tenant shall pay as rent for the Premises the amounts set
forth in this Article III (each of which shall be considered rent and all of
which are, unless specifically stated otherwise, collectively referred to herein
as "rent").
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3.2 Base Rent. Tenant shall pay as base rent ("Base Rent") the sum set
forth in the Addendum hereto annually, payable in equal monthly installments, in
advance, as set forth in the Addendum hereto together with all applicable sales
taxes thereon. The first payment of Base Rent shall be made upon the Lease
Commencement Date, and the second and subsequent monthly payments shall be made
on the first day of each and every calendar month (beginning with the second
calendar month) during the Lease Term. If the Lease Commencement Date is a date
other than the first day of a month, the first monthly installment of Base Rent
shall be prorated for the period from such date until the first day of the
following month at the rate of one thirtieth (1/30th) of the monthly installment
for each day, payable in advance.
3.3 Increase in Operating Costs. In addition to each monthly
installment of Base Rent Tenant shall pay to Landlord as Additional Rent nine
percent (9.0%) (being the approximate and agreed upon proportion which the floor
area of the Premises bears to the total rentable office area of the Office
Complex and being herein referred to as the "Tenant's Proportionate Share") of
the excess during each calendar year of the Lease Term of the Basic Cost (as
hereinafter defined). All payments under this Section 3.3 shall be deemed and
considered to be Additional Rent as defined in Section 3.4 hereof.
For the purposes hereof, the term "Basic Cost" as used herein shall
mean all Operating Expenses (as hereinafter defined) of the Office Complex,
which shall be computed on the accrual basis and shall consist of all
expenditures determined by Landlord to be necessary in the ownership,
management, operation and maintenance of the Office Complex. The term "Operating
Expenses" as used herein shall mean all expenses, costs and disbursements (but
not replacement of capital investment items or specific costs especially billed
to and paid by specific tenants) of every kind and nature which Landlord shall
pay or become obligated to pay because of or in connection with the ownership,
management, operation and maintenance of the Office Complex, including, but not
limited, to the following:
(a) All general and special real estate taxes, special
assessment, and other ad valorem taxes, rates, levies and assessments payable in
respect of such year by Landlord upon or with respect to the Office Complex or
the land by any governmental or quasi-governmental authority and all taxes
specifically imposed in lieu of any such taxes.
(b) All wages and salaries of all employees engaged in
operating and maintenance or security of the Office Complex, including taxes,
insurance and benefits relating thereto.
(c) The cost of all supplies and materials used in management,
operation and maintenance of the Office Complex.
(d) All costs (including surcharges) of all utilities for the
Office Complex, including without limitation water, sewer, electric power,
heating, lighting, air conditioning and ventilating.
(e) All costs of all maintenance and service agreements for
the Office Complex and the equipment therein, including without limitation on
security and energy management services, window cleaning, elevator maintenance
and janitorial service.
(f) All costs of all insurance relating to the Office Complex,
including casualty and liability insurance applicable to the Office Complex and
Landlord's personal property used in connection therewith.
(g) All costs of repairs and general maintenance of the Office
Complex (excluding repairs and general maintenance paid by proceeds of insurance
or by Tenant or other third parties, and alterations attributable solely to
tenants of the Office Complex other than Tenant).
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(h) Management fees and reimbursable costs and expenses for
the manager of the Office Complex.
(i) All costs of professional services or fees involved in any
contest of any taxes or assessments with respect to the Office Complex or the
Land, including legal and accounting services.
(j) All costs of any additional services not provided to the
Office Complex at the Lease Commencement Date but thereafter provided by
Landlord in the prudent management of the Office Complex.
Operating Costs shall not include the replacement of capital investment
items or new capital improvements unless such items or improvements result in
the decrease of the operating costs of the Office Complex, in which case the
costs of said capital investment item or new capital improvement shall be
included by spreading such costs over the period necessary to recover such costs
form the savings accomplished by the decreased Operating Costs of the Office
Complex.
The "Initial Basic Cost" shall be defined as the Basic Cost for the
calendar year which includes the Lease Commencement Date and is stipulated and
agreed to be five dollars and forty five cents ($5.45) per square foot of
rentable area of office space in the Office Complex.
Prior to January 1 of each calendar year during the Lease Term after
the calendar year which includes the Lease Commencement Date, Landlord shall
provide to Tenant a comparison of the Initial Basic Cost and the projected Basic
Cost for such upcoming calendar year, together with a statement of the projected
excess of the Basic Cost over the Initial Basic Cost. During each month of the
following calendar year, Tenant shall pay to Landlord, in advance and
simultaneously with each monthly installment of Base Rent, one twelfth (1/12) of
Tenant's Proportionate Share of any projected excess of the Basic Cost over the
Initial Basic Cost for such calendar year. Landlord shall, within ninety (90)
days (or as soon thereafter as possible) after the close of each calendar year
following the calendar year of the Lease Commencement Date, provide Tenant a
statement of such year's actual Basic Cost showing the actual excess of the
Basic Cost over the Initial Basic Cost. If such statement shows that Tenant's
monthly payments pursuant to this Section exceeded Tenant's share of the actual
increase incurred for the preceding calendar year, then Landlord shall promptly
refund such excess to Tenant. If such statement shows that Tenant's share of the
actual increase in the Basic Cost exceeded the monthly payments from Tenant
pursuant to this Section for the preceding calendar year, then Tenant shall
within thirty (30) days after receipt of such statement pay the total amount of
such deficiency to Landlord.
Should this Lease Agreement commence at any time other than the first
day of a calendar year, the payment of Tenant's Proportionate Share under this
Section shall be prorated and adjusted for such commencement year on a
proportionate daily basis (assuming a 365 day calendar year).
Tenant's obligation to make the payments under this Section as
Additional Rent shall survive any termination of this Lease by lapse of time or
otherwise.
Exclusive of increases in real estate taxes, insurance and utilities,
the Tenant's Proportionate Share of Basic Costs shall not increase by more than
five percent (5%) from any prior year.
3.4 Additional Rent. If Landlord shall make any expenditure for which
Tenant is responsible or liable under this Lease, or if Tenant shall become
obligated to Landlord under this Lease for any sum other than Base Rent,
including without limitation, Tenant's Proportionate Share of increased Basic
Cost, as set forth in Section 3.3 of this Lease, the amount thereof shall be
deemed to constitute additional rent ("Additional Rent") and shall be due and
payable by Tenant to Landlord, together with all applicable sales taxes thereon,
if
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any, simultaneously with the next succeeding monthly installment of Base Rent or
at such other time as may be expressly provided in this Lease for the payment of
same.
3.5 Sales Tax. In addition to the Base Rent, Additional Rent and any
other sums or amounts required to be paid by Tenant to Landlord pursuant to the
provisions of this Lease, Tenant shall also pay to Landlord, simultaneously with
such payment of such rents or other sums or amounts, the amount of any
applicable sales, use or excise tax on any such rents or other sums or amounts
so paid by Tenant to Landlord, whether the same be levied, imposed or assessed
by the State of Florida or any other federal, state, county or municipal
governmental entity or agency. Any such sales, use or excise taxes shall be paid
by Tenant to Landlord at the same time that each of the Base Rent, Additional
Rent or any other sum or amount with respect to which such taxes are payable are
paid by Tenant to Landlord. In the event that any business, rent or other taxes
that are now or hereafter levied upon Tenant's use or occupancy of the premises
are enacted, changed or altered so that any of such taxes are levied against
Landlord, or the mode of collection of such taxes is changed so that Landlord is
responsible for collection or payment of such taxes, Tenant shall pay any and
all such taxes to Landlord upon written demand from Landlord as Additional Rent.
3.6 Payment of Rent. Each of the foregoing amounts of rent and other
sums shall be paid to Landlord on the first (1st) day of every month during the
Lease Term without demand and without deduction, set-off, claim or counterclaim
of any nature whatsoever which Tenant may have or allege to have against
Landlord, and all such payments shall, upon receipt by Landlord, be and remain
the sole and absolute property of Landlord. All such rents and other sums shall
be paid to Landlord in legal tender of the United States at the address to which
notices to Landlord are to be given or to such other party or to such other
address as Landlord may designate from time to time by written notice to Tenant.
If Landlord shall at any time accept any such rents or other sums after the same
shall become due and payable, such acceptance shall not excuse a delay upon
subsequent occasions, or constitute or be construed as a waiver of any of
Landlord's right hereunder.
3.7 Past Due Rent. If Tenant fails to make any payment of Base Rent,
Additional Rent or any other sums or amounts to be paid by Tenant hereunder
within fifteen (15) days of the due therefor such payment is due and payable,
Tenant shall pay to Landlord an administrative late charge of five percent (5%)
of the amount of such payment. Such late charge shall constitute Additional Rent
due and payable hereunder with the next installment of Base Rent due hereunder.
ARTICLE IV
SECURITY DEPOSIT
4.1 Security Deposit. Simultaneously with the execution of this Lease,
Tenant shall deliver to Landlord the sum of twenty two thousand DOLLARS
($22,000.00), as a security deposit, plus applicable sales taxes, if any, (the
"Security Deposit") as security for the faithful performance by Tenant of all of
Tenant's obligations, covenants, conditions and agreements under this Lease.
Landlord shall not be required to maintain the Security Deposit in a separate
account and, the Security Deposit may be combined with other funds of Landlord
unless otherwise required by law. The Security Deposit shall not earn interest,
unless otherwise required by law.
4.2 Application of Security Deposit. In the event of any default by
Tenant hereunder, Landlord shall have the right, but shall not be obligated to
use, apply or retain all or any portion of the Security Deposit for: (a) the
payment of any Base Rent or Additional Rent or any other sum of money payable by
Tenant to Landlord; (b) the payment of any amounts which Landlord may spend or
become obligated to spend to repair physical damage to the Premises or the
Office Complex or for any restoration pursuant to Articles V, VII, VIII, X and
XVI or elsewhere in this Lease; or (c) the payment of any amount Landlord may
spend or become obligated to spend, or for the compensation of Landlord for any
losses incurred, by reason of any default by Tenant hereunder, including, but
not limited to, any
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damage or deficiency arising in connection with the reletting of the Premises or
any discharge of any liens against the Premises or any portion thereof. If any
portion of the Security Deposit is so used or applied, then within three (3)
business days after written notice to Tenant of such use or application Tenant
shall deposit with Landlord cash in any amount sufficient to restore the
Security Deposit to its original amount, and Tenant's failure to do so shall
constitute a default under this Lease.
4.3 Return of Security Deposit. Unless otherwise required by law,
within thirty (30) days after the expiration of the Lease Term, and provided
Tenant has vacated the Premises and is not in default hereunder, Landlord shall
return the Security Deposit to Tenant, without interest, less such portion
thereof as Landlord shall have appropriated and applied in accordance with the
provisions of this Article.
4.4 Transfer of Security Deposit. In the event of the sale or transfer
of Landlord's interest in the Premises or the Office Complex, Landlord shall
have the right to transfer the Security Deposit to the purchaser or assignee, in
which event Tenant shall look only to the purchaser or assignee, as the new
landlord, for the return of the Security Deposit, and Landlord hereunder shall
thereupon be released and discharged from all liability to Tenant for the return
of the Security Deposit.
4.5 Mortgagee. Tenant hereby acknowledges that Tenant will not look to
the holder of any mortgage encumbering the Office Complex (or any part thereof
or interest therein) for return of the Security Deposit if such holder, or its
successors or assigns, shall succeed to the ownership of the Office Complex,
whether by foreclosure or deed in lieu thereof, except if and to the extent the
Security Deposit is actually transferred to and accepted by such mortgage
holder.
4.6 Third Party Claims on Security Deposit. In the event of bankruptcy
or other creditor debt proceedings against Tenant which result in a third party
claim on the Security Deposit, the Security Deposit shall be deemed to be first
applied to the payment of rents and other sums due Landlord for all periods
prior to the filing of such proceedings.
ARTICLE V
USE OF PREMISES
5.1 Use. Tenant shall throughout the term of this Lease, use and occupy
the Premises solely for general office purposes and for no other use or purpose
whatsoever without the prior written consent of Landlord. Tenant shall not use
or occupy the Premises for any unlawful purposes or in any manner that will
constitute waste, nuisance or unreasonable annoyance to the Landlord or other
tenants of the Office Complex.
5.2 Compliance with Laws. Tenant shall comply with all applicable laws,
ordinances (including zoning ordinances and land use requirements), rules,
regulations, and orders of all federal, state, county and municipal governments
and any other public or quasi-public authority have jurisdiction over the
Premises or the business activities conducted therein, including particularly
but without limitation, those concerning the use, occupancy and condition of the
Premises and all machinery, equipment and furnishings located therein, and of
any insurance underwriting board or insurance inspection bureau having or
claiming jurisdiction or any other body exercising similar functions and of all
insurance companies from time to time selected by Landlord to write policies of
insurance covering the Office Complex and any business activity conducted
therein or therefrom. It is expressly understood that if any present or future
law, ordinance, regulation or order requires an occupancy permit for the
Premises, Tenant will obtain such permit at Tenant's own expense.
Tenant, its officers, directors, employees, agents and invitees shall
not permit the presence, handling, storage or transportation of hazardous or
toxic materials or medical waste ("hazardous waste") in or about the Premises or
the Office Complex, except in strict compliance with all laws, ordinances,
rules, regulations, orders and guidelines of any
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government agency having jurisdiction, the applicable board of insurance
underwriters, and the Rules and Regulations of the Office Complex. In no event
shall hazardous waste be disposed of in or about the Premises or the Office
Complex. Tenant shall obtain and maintain throughout the term of this lease all
licenses and permits required in connection with Tenant's activities involving
hazardous waste.
Tenant shall notify Landlord immediately of any discharge or discovery
of any hazardous waste at, upon, under, or within the Premises or the Office
Complex. Tenant shall, at its sole cost and expense, comply with all remedial
measures required by any governmental agency having jurisdiction. Tenant shall
promptly forward to Landlord copies of all orders, notices, permits,
applications, or other communications and reports received by Tenant in
connection with any discharge or the presence of any hazardous waste or any
other matters relating to the toxic waste or any similar laws or regulations, as
they may affect the Premises or the Office Complex (collectively "Notice").
The obligations, liabilities and responsibilities of Tenant, its
officers and directors under this section shall survive the expiration or
termination of this lease and shall include:
(a) The removal of any material deemed at any time to be
hazardous waste on, within or released from the Premises or the Office Complex,
whether such removal is done or completed by Tenant, Landlord, or any other
person or entity and regardless of whether or not such removal is rendered
pursuant to a court order or the order of a Governmental Agency (as defined
below);
(b) Claims asserted by any person or entity (including,
without limitation, any governmental agency or quasi-governmental authority,
board, bureau, commission, department, instrumentality, public body, court, or
administrative tribunal [a "Governmental Agency"], in connection with or in any
way arising out of the presence, storage, use, disposal, generation,
transportation, or treatment of any hazardous waste at, upon, under or within
the Premises or the Office Complex, after the time that Tenant became an
occupant or had control of the Premises;
(c) The preparation of an environmental audit on the Premises
or the Office Complex, whether conducted or authorized by Tenant, Landlord or
any third party, and the implementation of any such environmental audit's
recommendations;
(d) To indemnify, defend and hold Landlord, its agents and
mortgagees harmless from and against any and all claims, liabilities, injuries,
damages, costs and expenses (including attorney's fees and costs through appeal)
arising out of or in connection with any breach of this Article, including any
direct, indirect, or consequential damages suffered by any individuals or
entities related in any way to Tenant's use of hazardous materials at the
Premises.
ARTICLE VI
ASSIGNMENT AND SUBLETTING
6.1 Prohibition. Tenant shall not have the right to assign, transfer,
sublease, mortgage or otherwise encumber this Lease or its interest in the
Premises without first obtaining the prior written consent of Landlord, which
consent may not be unreasonably withheld by Landlord. No such assignment,
transfer, sublease, mortgage or other encumbrance of this Lease, Tenant's
interest in the Premises, or the right of occupancy hereunder may be effectuated
by operation of law or otherwise without the prior written consent of Landlord,
which consent may not be unreasonably withheld by Landlord. If Tenant is a
partnership (whether general or limited) a withdrawal or change, whether
involuntary or by operation of law, of partners owning a controlling interest in
Tenant shall be deemed to be a voluntary assignment of this Lease subject to the
foregoing prohibition. If Tenant is a corporation, any merger, consolidation or
other reorganization of Tenant, or the sale or transfer of a controlling
interest of the capital stock of Tenant, shall not be deemed to
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be a voluntary assignment of this Lease subject to the foregoing prohibition;
Any attempted assignment, transfer, sublease, mortgage or other encumbrance by
Tenant of this Lease or its interest in the Premises without Landlord's consent
shall, at the option of Landlord, constitute a default by Tenant under this
Lease entitling Landlord to exercise any or all of its rights and remedies under
Article XVIII of this Lease, and Tenant shall remain liable for all rent and
other sums due under this Lease and all damages suffered by Landlord on account
of such default by Tenant.
6.2 Assignment in Bankruptcy. Notwithstanding any of the foregoing
provisions, covenants, and conditions of Section 6.1 above to the contrary, in
the event that this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. 101 et seq. (the "Bankruptcy
Code"), any and all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of the Tenant within the meaning
of the Bankruptcy Code. Any and all monies or other consideration constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly paid
to or turned over to Landlord. If Tenant proposes to assign this Lease pursuant
to the Provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to the Tenant, then notice of such proposed assignment setting forth (i) the
name and address of such person, (ii) all of the terms and conditions of such
offer, and (iii) the adequate assurance to be provided by Tenant to assure such
person's future performance under the Lease, including, without limitation, the
assurances referred to in the Bankruptcy Code, or any such successor or
substitute legislation or rule thereto, shall be given to Landlord by Tenant no
later than twenty (20) days after receipt by Tenant, but in any event no later
than ten (10) days prior to the date that Tenant shall make application to a
court of competent jurisdiction for authority and approval to enter into such
assignment and assumption. Landlord shall thereupon have the prior right and
option, to be exercised by notice to Tenant given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such person, less any brokerage commissions which
may be payable out of the consideration to be paid by such person for the
assignment of this Lease. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
6.3 Effect of Consent. The consent by Landlord to any assignment,
transfer, sublease, mortgage or encumbrance shall not be construed as a waiver
or release of Tenant from any and all liability for the performance of all
covenants and obligations to be performed by Tenant under this Lease, nor shall
the collection or acceptance of rent from any assignee, transferee or subtenant
constitute a waiver or release of Tenant from any of its liabilities or
obligations under this Lease. Landlord's consent to any assignment, transfer,
sublease, mortgage or encumbrance shall not be construed as relieving Tenant (or
any such assignee or subtenant) from the obligation of obtaining Landlord's
consent to any further assignment, transfer, sublease, mortgage or encumbrance
in accordance with the provisions of Sections 6.1 or 6.2 hereof, as applicable.
For any period during which Tenant is in default hereunder, Tenant hereby
assigns to Landlord the rents or other sums due from any subtenant or assignee
of Tenant and hereby authorizes each subtenant or assignee to pay said rents or
other sums directly to Landlord. All monies, rents or other consideration paid
or delivered to, or received by, Tenant from any subtenant or assignee shall be
held by Tenant in trust for Landlord and shall be paid to Landlord immediately
upon demand therefor. Tenant further agrees to submit any and all instruments of
assignment, transfer or sublease to Landlord for Landlord's prior written
approval as to form and substance, which may be given or withheld by Landlord in
its sole and absolute discretion, but which instruments shall provide, as an
express condition precedent to Landlord's prior approval, that any assignee,
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transferee or sublessee agrees to remain jointly and severally liable to
Landlord for all obligations imposed by any such agreement of assignment,
transfer or sublease.
ARTICLE VII
TENANT'S MAINTENANCE AND REPAIRS
7.1 Maintenance. Tenant will keep and maintain the Premises and all
fixtures and equipment located therein in clean, safe and sanitary condition,
will take good care thereof and make all required repairs thereto, and will
suffer no waste or injury thereto. Landlord, at its cost, shall provide and
install Building Standard light fixtures as provided in Exhibit C attached
hereto, if any, and all replacement tubes for such light fixtures. All other
bulbs, tubes and lighting fixtures for the Premises shall be provided and
installed by Tenant at its cost and expense.
7.2 Repairs. Except as otherwise provided in Article XVII hereof, all
injury, breakage and damage to the Premises and to any other part of the Office
Complex caused by any act or omission of Tenant, or of any agent, employee,
subtenant, contractor, customer or invitee of Tenant, shall be repaired by and
at the sole expense of Tenant, except that Landlord shall have the right, at its
option, to make such repairs and to charge Tenant for all costs and expenses
incurred in connection therewith as Additional Rent hereunder, which shall be
due and payable upon demand.
ARTICLE VIII
TENANT ALTERATIONS
8.1 Prohibition. Tenant will not make or permit anyone to make any
alteration, addition, improvements, removal, demolition or other construction or
work of any nature (collectively "Alterations") structural or otherwise, in or
to any portion of the interior or exterior of Premises or the Office Complex,
without the prior written consent of Landlord, which may not be unreasonably
withheld. Landlord may impose any conditions upon its approval as it deems
appropriate, including, without limitation, (a) the review and approval of any
plans and specifications for such work, (b) the review and approval of the
contractor or other persons who will perform the work, and (c) the acquisition
by Tenant of specified additional insurance. All Alterations permitted by
Landlord and constructed or installed by Tenant shall conform to all laws,
ordinances, rules and regulations and requirements as set forth in Section 5.2
of this Lease. As a condition precedent to such written consent of Landlord,
Tenant agrees to obtain and deliver to Landlord written, unconditional waivers
of mechanic's and materialmen's liens against the Office Complex and the Land
from all proposed contractors, subcontractors, laborers and material suppliers
for all work, labor and services to be performed and materials to be furnished
in connection with any such alteration, addition, removal or demolition.
8.2 Indemnification, Removal. Tenant shall indemnify and hold Landlord
harmless from and against any and all expenses, liens, claims, liabilities and
damages based on or arising, directly or indirectly, by reason of any
Alterations within or upon the Premises. If any Alterations are undertaken or
permitted by Tenant without the prior written consent of Landlord, Landlord
shall have the right to remove and correct such Alterations and restore the
Premises to its condition immediately prior thereto, and Tenant shall be liable
for all costs and expenses incurred by Landlord in connection therewith, which
shall be paid by Tenant to Landlord as Additional Rent.
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ARTICLE IX
LANDLORD'S INTEREST NOT SUBJECT TO LIENS
9.1 Liens, Generally. Tenant shall not create or cause to be imposed,
claimed or filed upon the Premises, the Office Complex or the Land or upon any
portion or portions thereof, or upon the interest of Landlord therein, any lien,
claim of lien, order for the payment of money, charge or other encumbrance
whatsoever. If any such lien, order, charge or other encumbrance shall be
imposed, claimed or filed, Tenant shall, at its sole cost and expense, cause the
same to be fully paid and satisfied or otherwise discharged of record by bonding
or otherwise not later than seven (7) days following the earlier of (a) demand
from Landlord that the same be paid and satisfied or discharged of record or (b)
the filing for record of such lien, order, charge or other encumbrance. Tenant
shall indemnify and save and hold Landlord harmless from and against any and all
costs, liabilities, suits, penalties, claims and demands whatsoever, and from
and against any and all attorneys' fees, at both trial and all appellate levels,
resulting or on account thereof and therefrom. In the event that Tenant shall
fail to comply with the foregoing provisions of this Section, such failure shall
constitute a default hereunder and Landlord shall have, in addition to its other
rights under this Lease, the option of paying, satisfying or otherwise
discharging (by bonding or otherwise) such lien, charge or encumbrance and
Tenant agrees to reimburse Landlord, upon demand and as Additional Rent, for all
sums so paid and for all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon, until paid.
9.2 Mechanics Liens. Landlord's interest in the Premises shall not be
subjected to liens of any nature by reason of Tenant's construction, alteration,
repair, restoration, replacement or reconstruction of any improvements on or in
the Premises, including those arising in connection with or as an incident to
the construction of any tenant improvements or permitted Alterations, or by
reason of any other act or omission of Tenant (or of any person claiming by,
through or under Tenant) including, but not limited to, mechanics' and
materialmen's liens. All persons dealing with Tenant are hereby placed on notice
that such persons shall not look to Landlord or to Landlord's credit or assets
(including Landlord's interest in the Premises or the Office Complex) for
payment or satisfaction of any obligations incurred in connection with the
construction, alteration, repair, restoration, replacement or reconstruction
thereof by or on behalf of Tenant. Tenant has no power, right or authority to
subject Landlord's interest in the Premises, the Office Complex or the Land to
any mechanics' or materialmen's lien or claim of lien or any other encumbrance
whatsoever. If a lien, a claim of lien or an order for the payment of money
shall be imposed against the Premises or any improvement thereon, therein or
thereto, on account of work performed, or alleged to have been performed, for or
on behalf of Tenant, Tenant shall, within seven (7) days after written notice of
the imposition of such lien, claim or order, cause the Premises and such
improvements, to be released therefrom by the payment of the obligation secured
thereby or by furnishing a bond or by any other method prescribed or permitted
by law. If a lien is released, Tenant shall thereupon furnish Landlord with a
written instrument of release in form for recording in the office of the Clerk
of the Circuit Court, Dade County, Florida, and otherwise sufficient to
establish the release as a matter of record.
9.3 Notices of Commencement. Prior to commencement by Tenant of any
Alterations for which a Notice of Commencement is required pursuant to Chapter
713, Florida Statutes (or its successor), Tenant shall record such a notice in
the office of the Clerk of the Circuit Court, Dade County, Florida, identifying
Tenant as the party for whom such work is being performed and requiring the
service of copies of all notices, liens or claims of lien upon Landlord. Any
such Notice of Commencement shall clearly reflect that the interest of Tenant in
the Premises is that of a leasehold estate and shall also clearly reflect that
the interest of Landlord as the fee simple owner of the Premises shall not be
subject to mechanics' materialmen's liens on account of the work which is the
subject of such Notice of Commencement. A copy of any such Notice of
Commencement shall be furnished to and approved by Landlord and its attorneys
prior to the recording thereof, as aforesaid.
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ARTICLE X
KEYS, SIGNS, FURNISHINGS AND EQUIPMENT
10.1 Keys. Landlord shall provide two (2) keys to the front door of the
office and two (2) keys to the restrooms on the floor. Additional keys will be
provided at the cost of Three DOLLARS ($3.00) per key.
10.2 Signs. No sign, advertisement or notice (collectively "Signs")
shall be inscribed, painted, affixed or otherwise displayed on any part of the
exterior or the interior of the Premises or the Office Complex, except on the
directories and the doors of office and such other areas as are designated by
Landlord, and then only in such place, number, size, color and style as are
approved by Landlord in its sole discretion. All of Tenant's Signs which are
approved by Landlord shall be installed and maintained by Landlord, at Tenant's
sole cost and expense. If any Sign that had not been approved by Landlord is
exhibited, displayed or installed by Tenant, Landlord shall have the right to
remove the same at Tenant's expense.
10.3 Landlord's Signage Rights. Landlord reserves the right to affix,
install and display signs, advertisements and notices on any part of the
exterior or interior of the Office Complex.
10.4 Removal of Signage. At the end of the Lease Term or earlier
termination of this Lease, Tenant shall remove all Signs from the Premises or
Office Complex and, at its expense, repair any damage to the Premises or Office
Complex on account thereof, or at Landlord's option, Landlord may remove such
Signs and repair such damage, if any, at Tenant's expense, which shall be repaid
to Landlord upon demand.
10.5 Furnishings. Landlord shall have the right to prescribe the weight
and position of safes and other heavy equipment and fixtures in the Premises,
which, if permitted by Landlord, shall be installed in such manner so as to
adequately and safely distribute their weight. Any and all damage or injury to
the Premises or the Office Complex caused by moving the same into or upon the
Premises, shall be repaired by Tenant at its sole cost and expense, or, at
Landlord's option, Landlord may repair such damage at Tenant's expense, which
shall be repaid to Landlord upon demand. No furniture, equipment or other bulky
material of any description will be received into the Office Complex or carried
in the elevators except as approved by Landlord, and all such furniture,
equipment and other bulky material shall be delivered only through the
designated delivery entrance of the Office Complex and the designated freight
elevator. Landlord may, but shall not be obligated to, supervise all moving of
furniture, equipment and other materials, but Landlord shall not, however, be
responsible for any damage to or charges for moving the same. Tenant agrees to
remove promptly from the sidewalks adjacent to or the hallways or walkways
within the Office Complex any of Tenant's furniture, equipment or other material
there delivered or deposited.
10.6 Equipment. Tenant will not install or operate in the Premises any
electrically operated equipment or machinery that operates on greater than 110
volt power without first obtaining the prior written consent of the Landlord.
Landlord may condition such consent as it deems appropriate and may require the
payment by Tenant of an amount, as Additional Rent, in compensation for the
excess consumption of electricity or other utilities and for the cost of any
additional wiring or apparatus that may be occasioned by the operation of such
equipment or machinery, together with applicable sales tax, if any. Tenant shall
not install any equipment of any type or nature that will or may necessitate any
changes, replacements or additions to, or in the use of, the water system,
heating system, plumbing system, air conditioning system or electrical system of
the Premises or the Office Complex without first obtaining the prior written
consent of the Landlord, which consent may be withheld in Landlord's sole and
absolute discretion. Tenant shall not permit business machines and mechanical
equipment belonging to Tenant to cause noise or vibration that may be
transmitted to the structure of the Office Complex or to any space therein to
such a degree as to be objectionable to Landlord or to any tenant in the Office
Complex.
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ARTICLE XI
INSPECTION BY LANDLORD
Landlord and its agents and representatives, shall have the right,
after reasonable advance notice and during normal business hours, to enter the
Premises, without charge therefor to Landlord and without diminution of the rent
payable by Tenant, to examine, inspect and protect the Premises and the Office
Complex, to make such a alterations and/or repairs as in the sole judgment of
Landlord may be deemed necessary, or to exhibit the same to prospective tenants
during the last one hundred eighty (180) days of the Lease Team, provided,
however, that Landlord shall not thereby assume any responsibility for the
performance of any of Tenant's obligations hereunder, nor any liability for the
improper performance thereof. In connection with any such entry, Landlord shall
endeavor to minimize the disruption to Tenant's use of the Premises. In the
event of emergency, Landlord shall have the right to enter the Premises without
notice.
ARTICLE XII
INSURANCE
12.1 Liability Insurance. Throughout the Lease Term, Tenant shall
obtain and maintain, at Tenant's sole cost, comprehensive general public
liability insurance including fire, legal liability and contractual liability
coverage in a company or companies licensed to do business in the State of
Florida, and approved by Landlord. Said insurance shall be in minimum amounts
approved by Landlord from time to time and shall name Landlord as an additional
insured thereunder. Initially, Tenant agrees to maintain general liability
insurance in the minimum amount of $1,000,000 combined single limit for injury
to any number of persons in a single occurrence and for damage to property. The
limit of said insurance shall not, however, limit the liability of the Tenant
hereunder. Tenant shall furnish to Landlord evidence of such insurance together
with evidence of any excess liability insurance which Tenant may carry. In
addition, if requested by the holder of any mortgage against the Office Complex
or the Land, or any portion thereof, said insurance shall also include such
mortgagee as an additional insured as its interest may appear. If requested by
Landlord, receipts evidencing payment of the premium for such insurance shall be
delivered by Tenant at least annually, and each such policy shall contain an
endorsement prohibiting cancellation or reduction of coverages without first
giving Landlord thirty (30) days prior written notice of such proposed action.
12.2 Property Insurance. Tenant shall also maintain insurance upon all
property situated in the premises owned by Tenant or for which Tenant is legally
liable and on fixtures and improvements installed in the Premises by or on
behalf of Tenant. Such policies shall be for an amount equal to not less than
100% of the full replacement cost, with coverage against at least fire, and with
standard extended coverage, vandalism, malicious mischief, sprinkler leakage and
water damage coverage. If there is a dispute as to the replacement cost amount,
the decision of the Landlord shall be conclusive.
12.3 Other Insurance. Worker's compensation insurance for all Tenant's
employees working in or at the Premises in an amount sufficient to comply with
applicable laws or regulations shall be maintained by Tenant. Tenant shall
maintain insurance against such other perils and in such amounts as Landlord and
any mortgagee of Landlord may from time to time reasonably require in writing.
12.4 Requirements. All policies of insurance required of Tenant
hereunder shall contain a severability of interest clause, a cross-liability
clause, shall be primary and shall not call into contribution any other
insurance available to Landlord.
12.5 Failure to Procure Insurance. In the event Tenant shall fail to
procure insurance required under this Article and fail to maintain the same in
full force and effect continuously during the term of this Lease, Landlord shall
be entitled to procure the same
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and Tenant shall immediately reimburse Landlord upon demand for such premium
expense as Additional Rent.
12.6 Waiver of Subrogation. Each of Landlord and Tenant hereby
releases-the other to the extent of its insurance coverage, from any and all
liability for any loss or damage caused by fire or any of the extended coverage
casualties, even if such fire or other casualty shall be brought about by the
fault or negligence of the other party, or any person under such other party,
provided, however, this release shall be in force and effect only with respect
to loss or damage occurring during such time as the releaser's policies of fire
and extended coverage insurance shall contain a clause to the effect that this
release shall not affect such policies or the right of the releaser to recover
thereunder. Each of Landlord and Tenant agrees that its fire and extended
coverage insurance policies shall include such a clause so long as the same is
obtainable and is includable without extra cost, or if such extra cost is
chargeable therefor, so long as the other party pays such extra cost. If extra
cost is chargeable therefor, each party will advise the other thereof and of the
amount thereof, and the other party, at its election, may pay the same but shall
not be obligated to do so.
12.7 Insurance by Landlord. Landlord shall, as part of Operating
Expenses, obtain any and all insurance coverage in connection with the use and
operation of the Office Complex, which shall include, but not be limited to,
fire and extended coverage at full replacement value; comprehensive general
public liability; difference in conditions; rental interruption insurance for no
less than one (1) year's annual operating income; excess limits of liability
insurance (umbrella coverage); and any and all other insurance, including boiler
and machinery insurance as Landlord may require to adequately protect the
interest of Landlord in the Office Complex and Land against liability afforded
by such insurance coverage.
12.8 Increase in Landlord's Insurance Premium. Tenant shall not conduct
or permit to be conducted any activity, or place any equipment, sign or
furnishing, in or about the Premises or the Office Complex, which will in any
way increase the rate of fire insurance or other insurance on the Office
Complex. If any increase in the rate of fire insurance or other insurance is
stated by any insurance company or by the applicable Insurance Rating Bureau to
be due to any activity or equipment of Tenant in or about the Premises or the
Office Complex, such statement shall be conclusive evidence that the increase in
such rate is due to such activity or equipment and, as a result thereof, Tenant
shall be liable for the amount of such increase. Tenant shall, reimburse
Landlord for such amount upon written demand by Landlord and such sum shall be
considered Additional Rent payable hereunder.
ARTICLE XIII
SERVICES AND UTILITIES
13.1 Services and Utilities. Landlord shall furnish to the Premises
year-round ventilation and air-conditioning and heat during the seasons when
they are required, as determined in Landlord's reasonable judgement. Landlord
shall also provide reasonably adequate electricity, water, exterior
window-cleaning service and janitorial service after 6:00 p.m. on Monday through
Friday only (excluding legal holidays), as determined in Landlord's reasonable
judgement and in accordance with standards customarily provided in first-class
office buildings in the greater metropolitan Miami area. Landlord will also
provide elevator service; provided, however, that Landlord shall have the right
to remove elevators from service from time to time as may be required for moving
freight or for servicing or maintaining the elevators and/or the Office Complex,
or in the event of emergencies. The Office Complex shall be open during normal
business hours. Thereafter, all entrance points to the interior of the Office
Complex shall be locked. Tenant shall have 24 hour access to the Premises via an
electronic cardkey system.
13.2 Normal Hours. The services and utilities required to be furnished
by Landlord, other than electricity and water, will be provided only during the
normal hours of operation of the Office Complex, except as otherwise specified
herein. The normal hours of
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operation of the Office Complex will be 7:00 a.m. to 7:00 p.m. on Monday through
Friday (except legal holidays) and 8:00 a.m. to 12:00 p.m. on Saturdays. There
will be no normal hours of operation of the Office Complex on Sundays or legal
holidays and Landlord shall not be obligated to maintain or operate the Office
Complex at such times unless special arrangements are made by Tenant. If Tenant
requires air-conditioning or heat beyond the normal hours of operation set forth
herein, Landlord will furnish such air-conditioning or heat, provided Tenant
gives Landlord's agent no less than six (6) hours advance notice of such
requirement, which notice must be given during normal business hours and Tenant
agrees to pay for the cost of such extra service in accordance with Landlord's
then current schedule of costs and assessments for such extra service, which is
currently twenty five DOLLARS ($25.00) per hour per floor.
13.3 Interruptions. Landlord shall have no liability to Tenant
whatsoever as a resulting of Landlord's failure or inability to furnish any of
the utilities or services required to be furnished by Landlord hereunder,
whether resulting from breakdown, removal from service for maintenance or
repairs, strikes, scarcity of labor or materials, acts of God, governmental
requirements or from any other cause whatsoever. No such failure or inability of
Landlord to furnish the utilities or services required hereunder shall be deemed
or considered to be or constitute an eviction, actual or constructive, of the
Tenant from the Premises, nor shall it entitle Tenant to terminate this Lease or
to receive an abatement of any rent payable hereunder.
13.4 Energy Conservation Control. Tenant shall comply with all
mandatory energy conservation controls and requirements applicable to office
buildings that are imposed or instituted by any federal, state or local
governmental body, including, without limitation, controls on the permitted
range of temperature settings in office buildings, and requirements
necessitating curtailment of the volume of energy consumption or the hours of
operation of the Office Complex. Any terms or conditions of this Lease that
conflict or interfere with compliance with such controls or requirements shall
be suspended for the duration of such controls or requirements. Tenant's
compliance with such controls or requirement shall not be deemed or considered
to be or constitute an eviction, actual or constructive, of the Tenant from the
Premises, nor shall such compliance entitle Tenant to terminate this Lease or to
receive an abatement of any rent payable hereunder.
13.5 Landlord's Responsibilities. During the Lease Term, Landlord shall
define, set, and maintain the level of repairs and maintenance for the Office
Complex, including the common area and all other areas serving the Office
Complex, in a manner comparable to office buildings of similar quality to and in
the immediate geographic area of the Office Complex, and such that the common
areas of the Office Complex are in compliance with all relevant government
requirements. Landlord's responsibilities with respect to this Section are as
follows: (1) the structural and roof systems of the Office Complex and parking
garage(s), (2) the standard electrical and mechanical systems serving the Office
Complex and common areas, (3) the primary water and sewer systems, (4) the
common areas and the common area furniture, fixtures, and equipment, (5) the
landscaped areas in and about the Office Complex, (6) the parking lot(s) and
garage(s) of the Office Complex, and (7) replacement of standard light bulbs in
the common areas.
ARTICLE XIV
LIABILITY OF LANDLORD, INDEMNIFICATION BY TENANT
14.1 Liability of Landlord. Landlord shall not be liable to Tenant, its
employees, agents, business invitees, licensees, customers, clients, family
members or guests for any damage, injury, loss, compensation or claim, including
but not limited to claims for the interruption of or loss to Tenant's business,
based on, arising out of or resulting from any cause whatsoever, including, but
not limited to (a) repairs to any portion of the Premises or the Office Complex;
(b) interruption in Tenant's use of the Premises; (c) any accident or damage
resulting from the use or operation (by Landlord, Tenant or any other person or
persons) of elevators, or of heating, cooling, electrical or plumbing equipment
or apparatus;
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(d) the termination of this Lease by reason of the condemnation or destruction
of the Premises or the Office Complex in accordance with the provisions of this
Lease; (e) any fire, robbery, theft, mysterious disappearance or other casualty;
(f) the actions of any other tenants of the Office Complex or of any other
person or persons; and (g) any leakage in any part or portion of the Premises or
the Office Complex, whether from water, rain or other precipitation that may
leak into, or flow from, any part of the Premises or the Office Complex, or from
drains, pipes or plumbing fixtures in the Office Complex.
Any goods, property or personal effects stored or placed by the Tenant
or its employees in or about the Premises or Office Complex shall be at the sole
risk of the Tenant, and the Landlord shall not in any manner be held responsible
therefor. It is understood that the employees of the Landlord are prohibited
from receiving any packages or other articles delivered to the Office Complex
for Tenant, and if any such employee receives any such package or articles, such
employee shall be acting as the agent of the Tenant for such purposes and not as
the agent of the Landlord. Notwithstanding the foregoing provisions of this
Section, Landlord shall not be released from liability to Tenant for any damage
or injury caused by the willful misconduct of Landlord or its employees;
provided, however, in no event shall Landlord have any liability to Tenant for
any claims based on the interruption of or loss to Tenant's business.
14.2 Indemnification of Landlord. Tenant shall defend, indemnify and
save and hold Landlord harmless from and against any and all liabilities,
obligations, losses, damages, injunctions, suits, actions, fines, penalties,
claims, demands, costs and expenses of every kind or nature, including
reasonable attorneys' fees (but not against any of the same to the extent that a
negligent or willful act or omission of Landlord, its agents, contractors or
employees gave rise thereto), arising directly or indirectly from our out of (a)
any failure by Tenant to perform any of the terms, provisions, covenants or
conditions of this Lease on Tenant's part to be performed including, without
limitations, the failure to comply with the rules and regulations for which
provisions are made in Article XV; (b) any accident, injury, or damage which
shall happen at, in or upon the Premises, however occurring; (c) any matter or
thing growing out of the condition, occupation, maintenance, alteration, repair,
use or operation by any person of the Premises, or the operation of the business
conducted therefrom; (d) any failure of Tenant, and/or its employees, agents,
invitees, customers, licensees, or contractors, to comply with any laws,
ordinances, requirements, orders, directions, rules or regulations of any
governmental authority; (e) any contamination of the Premises or the Office
Complex occasioned by the use, transportation, storage, spillage or discharge
thereon, therein or therefrom of any toxic or hazardous chemicals, compounds,
materials or substances, whether by Tenant or by its employees, agents,
invitees, customers, licensees or contractors; (f) any use, generation,
manufacture, storage, or release of any Hazardous Materials in or about the
Premises, the Office Complex or the Land, or the groundwater thereof, or any
discharge of toxic or hazardous sewage or waste materials from the Premises into
any sanitary sewer system serving the Premises or the Office Complex, whether by
Tenant, its employees, agents, invitees, customers, licensees or contractors;
and (g) any other act or omission of Tenant, its employees, agents, invitees,
customers, licensees, or contractors.
Landlord shall defend, indemnify, save and hold Tenant harmless from
and against any and all liabilities, obligations, losses, damages, injunctions,
suits, actions, fines, penalties, claims, demands, costs and expenses of every
kind or nature, including reasonable attorneys' fees (but not against any of the
same to the extent that a negligent or willful act or omission of Tenant, its
agents, contractors or employees gave rise thereto), arising directly or
indirectly from our out of (a) any failure by Landlord to perform any of the
terms, provisions, covenants or conditions of this Lease on Landlord's part to
be performed; (b) any accident, injury, or damage which shall happen at, in or
upon the Office Complex, but not upon the Premises, however occurring; (c) any
matter or thing growing out of the condition, occupation, maintenance,
alteration, repair, use or operation by any person of the Office Complex other
than the Premises, or the operation of the business conducted therefrom; (d) any
failure of Landlord, any/or its employees, agents, invitees, customers,
licensees, contractors, or other tenants of the Office Complex to comply with
any laws, ordinances,
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requirements, orders, directors, rules or regulations of any mutual governmental
authority; (e) any contamination of the Premises or the Office Complex
occasioned by the use, transportation, storage, spillage or discharge thereon,
therein or therefrom of any toxic or hazardous chemicals, compounds, materials,
or substances by Landlord, its employees, agents or contractors; (f) any use,
generation, manufacture, storage, or release of any Hazardous Materials in or
about the Premises, the Office Complex or the Land, or the groundwater thereof,
or any discharge of toxic or hazardous sewage or waster materials from the
Premises into any sanitary sewer system serving the Premises or the Office
Complex, by Landlord, its employees, agents or contractors; and (g) any other
act or omission of Landlord, its employees, agents, invitees, customers,
licensees, or contractors or other tenants of the Office Complex.
Each party's indemnity obligations under this Section and elsewhere in
this Lease arising prior to the termination or assignment of this Lease shall
survive any such termination or assignment.
14.3 Notice of Claim or Suit. (a) Tenant shall promptly notify Landlord
of any claim, action, proceeding or suit instituted or threatened against
Landlord of which Tenant received notice or of which Tenant acquires knowledge.
In the event Landlord is made a party to any action for damages or other relief
against which Tenant has indemnified Landlord, as aforesaid, Tenant shall defend
Landlord, pay all costs and shall provide effective counsel to Landlord in such
litigation or, at Landlord's option, shall pay all reasonable and actual
attorney's fees and costs incurred by Landlord's counsel, which counsel shall be
reasonably accepted to Tenant, in connection with its own defense or settlement
of said litigation.
(b) Landlord shall promptly notify Tenant of any claim,
action, proceeding or suit instituted or threatened against Tenant of which
Landlord received notice or of which Landlord acquires knowledge. In the event
Tenant is made a party to any action for damages or other relief against which
Landlord has indemnified Tenant, as aforesaid, Landlord shall defend Tenant, pay
all costs and shall provide effective counsel to Tenant in such litigation or,
at Tenant's option, shall pay all reasonable and actual attorneys' fees and
costs incurred by Tenant's counsel, which counsel shall be reasonably acceptable
to Landlord, in connection with its own defense or settlement of said
litigation.
14.4 Transfer of Office Complex. In the event that at any time Landlord
shall sell or transfer the Office Complex, or that portion thereof which
includes the Premises, provided the purchaser or transferee assumes the
obligations of the Landlord hereunder, the Landlord named herein shall not be
liable to Tenant for any obligations or liabilities based on or arising out of
events or conditions occurring on or after the date of such sale or transfer.
Furthermore, Tenant agrees to attorn to any such purchaser or transferee upon
all terms and conditions of this Lease.
14.5 No Offset Against Rent. In the event that Tenant shall at any time
during the Lease Term have a claim against Landlord, Tenant shall not have the
right to offset or deduct the amount allegedly owed to Tenant from any rent or
other sums payable to Landlord hereunder, it being understood that Tenant's sole
remedy for recovering upon such claim shall be to institute an independent
action against Landlord.
14.6 Limitation on Liability of Landlord. In the event Tenant is
awarded a money judgment against Landlord, Tenant's sole recourse for
satisfaction of such judgment shall be limited to execution against the Office
Complex assets of Landlord. In no event shall any partner of Landlord or any
other person be held to have any personal liability for satisfaction of any
claims or judgments that Tenant may have against Landlord.
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ARTICLE XV
RULES AND REGULATIONS
Tenant and its agents, employees, invitees, licensees, customer,
client, family members, guests and permitted subtenants shall at all times abide
by and observe the rules and regulations for the Office Complex attached hereto
as Exhibit E and made a part hereof by this reference, Landlord shall have the
right from time to time to amend, modify, delete or add new and additional rules
and regulations with respect to the safety, operation and maintenance of the
Premises and the Office Complex and the comfort, quiet and convenience of the
other tenants in the Office Complex, provided that notice thereof is given to
Tenant and that such new or modified rules and regulations are not inconsistent
with the provisions of this Lease. Nothing contained in this Lease shall be
construed as imposing upon Landlord any duty or obligation to enforce any such
rules and regulations, or the terms conditions or covenants contained in any
other lease, as against any other tenant, and Landlord shall not be liable to
Tenant for the violation of any such rules or regulations by any other tenant or
its employees, agents, business invitees, licensees, contractors, customers,
clients, family member or guests. The failure by Landlord to enforce any such
rules and regulations against Tenant or any other tenant of the Center shall not
constitute a waiver of Landlord's right to do so in the future nor any default
hereunder by Landlord. If there is any inconsistency between this Lease and such
rules and regulations, the provisions of this Lease shall govern.
ARTICLE XVI
DAMAGES OR DESTRUCTION
16.1 Damage of Destruction. If, during the Lease Term, the Premises or
the Office Complex are totally or partially damaged or destroyed from any cause,
so as to render the Premises totally or partially inaccessible or unusable,
Landlord shall diligently (taking into account the time necessary to effectuate
a satisfactory settlement with any insurance company involved) repair and
restore the Premises and the Office Complex to substantially the same condition
they were in prior to such damage; provided, however, if the repairs and
restoration cannot be completed within ninety (90) days after the occurrence of
such damage or destruction, including the time needed for the removal of debris,
preparation of plans for such repair and restoration and issuance of all
required governmental permits for such repair and restoration, Landlord shall
have the right, in its sole discretion, to terminate this Lease by giving
written notice of such termination to Tenant within forty-five (45) days after
the occurrence of such damage or destruction. If this Lease is terminated by
Landlord pursuant to this Section, all rent payable hereunder shall be
apportioned and paid to the date of such termination of Lease, and Tenant shall
have no further rights or remedies as against Landlord pursuant to this Lease,
or otherwise. If this Lease is not terminated pursuant to this Section, then
until the repair and restoration of the Premises is completed Tenant shall be
required to pay Base Rent and Additional Rent only for that part of the Premises
that Tenant is able to use while repairs are being made, based on the ratio that
the amount of usable rentable area bears to the total rentable area in the
Premises; provided, however, that there shall be no such reduction in Base Rent
or Additional Rent if such damage was caused by the act or omission of Tenant or
any of its employees, agents, licensees, subtenants, invitees, customers,
clients, family members or guests. If such repairs and restorations are with
respect to any such damage or destruction which was caused by the act or
omission of Tenant or any of its employees, agents, licensees, subtenants,
contractors, invitees, customers, clients, family members or guests, upon
written demand from Landlord, Tenant shall pay to Landlord the amount by which
such costs and expenses exceed the insurance proceeds, if any, received by
Landlord on account of such damage or destruction together with such other
losses or damages which Landlord may suffer or sustain on account thereof.
16.2 Limitation of Landlord's Obligation. Landlord's obligation of
repair, reconstruction or replacement hereunder shall be limited to the Building
Standard Work described on Exhibit C, if any. In no event shall Landlord be
obligated to expend for such repairs, reconstruction or replacement an amount in
excess of the insurance proceeds recovered or recoverable on account of any such
damage or destruction. Moreover,
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Landlord shall not be liable for delays occasioned by adjustment or losses with
insurance carriers or by any other cause so long as Landlord shall proceed in
good faith and with due diligence.
In the event either Landlord or Tenant sustain a loss by reason of a
risk insured or insurable under insurance required to be maintained under this
Lease, and such loss is caused, in whole or in part, by acts or omissions of the
other party or his or its agents, employees or representatives,then the party
incurring such loss agrees to look solely to the proceeds, if any, accruing from
its own insurance and such party shall have no right of action against the other
party to this Lease or the agents, employees or representatives of such other
party, and no third party (including any insurance carrier) shall have any such
right by way of assignment, subrogation or otherwise. The foregoing provisions
of this Section 16.3 shall apply only to the extent the same do not result in
the inability to obtain (and maintain) the required insurance coverage. If
either party shall be unable to obtain (and maintain) insurance coverage because
of the foregoing provisions, immediate notice thereof shall be given to the
other party.
16.3 Landlord's Termination Option. Notwithstanding anything to the
contrary contained herein, if the Officer Complex is damaged or destroyed,
whether or not the Premises are damaged or destroyed, from any cause to such an
extent that the costs of repairing and restoring the Office Complex would exceed
fifty percent (50%) of the replacement value of the Office Complex, Landlord
shall have the right to terminate this Lease by written notice to Tenant,
provided the leases with all other tenants in the Office Complex are similarly
terminated. This right of termination shall be in addition to any other right of
termination provided in this Lease.
ARTICLE XVII
CONDEMNATION
17.1 Condemnation. If the whole or a substantial part (as hereinafter
defined) of the Premises, or the use or occupancy of the Premises, shall be
taken or condemned for any public or quasi-public use or purpose (including a
sale thereof under threat of such a taking), then this Lease shall terminate on
the date title thereto vests in the condemning authority, and all rent payable
hereunder shall be apportioned as of such date. If less than a substantial part
of the Premises, or the use or occupancy thereof, is taken or condemned for any
public or quasi-public use or purpose (including a sale thereof under threat of
such a taking), then this Lease shall continue in full force and effect, except
that the rent payable hereunder shall be equitably adjusted (on the basis of the
ratio of the number of square feet of rentable area taken to the total rentable
area in the Premises prior to such condemnation) as of the date title vests in
the condemning authority. For the purposes of this Section, a substantial part
of the Premises shall be considered to have been taken if more than one-third
(1/3) of the Premises is rendered unusable as a result of such condemnation.
17.2 Award. All awards, damages and other compensation paid by the
condemning authority on account of such taking or condemnation (or sale under
threat of such taking) shall belong to Landlord, and Tenant hereby assigns to
Landlord all rights to such awards, damages and compensation. Tenant agrees not
to make any claim against Landlord or the condemning authority for any portion
of such award or compensation attributable to damages to the Premises, the value
of the unexpired term of this Lease, the loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall
prevent Tenant from pursuing a separate claim against the condemning authority
for the value of furnishings, equipment and trade fixtures installed in the
Premises at the Tenant's expense and for relocation expenses, provided that such
claim does not in any way diminish the award or compensation payable to or
recoverable by Landlord in connection with such taking or condemnation.
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ARTICLE XVIII
DEFAULT BY TENANT
18.1 Events of Default. The occurrence of any of the following ("Events
of Default") shall constitute a breach of and default under this Lease:
(a) If Tenant shall fail to pay any installment of Base Rent
or Additional Rent when due, or shall fail to pay when due any other
payment required under this Lease;
(b) If Tenant shall continue to violate or fails to comply
with or perform any other term, condition, covenant or agreement to be
performed or observed by Tenant under this Lease, for a period of
fifteen (15) days after receipt of notice of such failure; provided,
however, that if such violation or failure to comply or perform cannot
reasonably be cured within fifteen (15) days and Tenant is diligently
proceeding to cure same, Tenant shall have such period of time as is
reasonably necessary under such circumstances to cure the same.
(c) If Tenant shall generally not pay its debts as they become
due, or shall admit in writing its inability to pay its debts, or shall
make a general assignment for the benefit of creditors;
(d) If Tenant shall commence any case, proceeding or other
action seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property;
(e) If Tenant shall take any corporate action to authorize any
of the actions set forth in paragraphs (c) or (d) above; or
(f) If any case, proceeding or other action against the Tenant
shall be commenced seeking to have an order for relief entered against
it as debtor, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its
property, and such case, proceeding or other action (i) results in the
entry of an order for relief against it which is not fully stayed
within fifteen (15) business days after the entry thereof or (ii)
remains undismissed for a period of sixty (60) days;
(g) If Tenant's leasehold interest in the Premises or property
therein shall be seized under any levy, execution, attachment or other
process of court where the same shall not be vacated or stayed on
appeal or otherwise disposed of within seven (7) days thereafter, or if
Tenant's leasehold interest in the Premises is sold by judicial sale or
otherwise.
(h) If Tenant shall abandon the Premises;
(i) If Tenant removes or attempts to remove, or manifests an
intention to remove Tenant's goods, merchandise or property from or out
of the Premises, other than in the usual and ordinary course of
Tenant's business, without having given prior notice to Landlord of
such planned removal and of the anticipated length of time the Premises
shall be empty.
(j) If the Premises continue to be used or permitted to be
used for any purpose, or for the conduct of any business or activity,
not permitted by this Lease for a period of fifteen (15) days after
receipt of notice of such failure; provided, however, that if such
violation or failure to comply or perform cannot reasonably be
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cured within fifteen (15) days and Tenant is diligently proceeding to
cure same, Tenant shall have such period of time as is reasonably
necessary under such circumstances to cure the same.
(k) If any assignment, sublease or transfer shall be made or
deemed to be made that is in violation of the provisions of Article VI
of this Lease;
(l) If Tenant shall fail to abide by, comply with or conform
to any of the rules and regulations established and promulgated by
Landlord for and with respect to the Premises and the Office Complex
for a period of fifteen (15) days from Tenant's receipt of notice from
Landlord specifying such failure.
18.2 Remedies on Default. If any of the Events of Default hereinabove
specified in Section 18.1 of this Lease shall occur, Landlord, at any time
thereafter, shall have and may exercise any of the following rights and
remedies:
(a) Landlord may, pursuant to written notice thereof to
Tenant, terminate this Lease and, peaceably or pursuant to appropriate
legal proceedings, re-enter, retake and resume possession of the
Premises for Landlord's own account and, for Tenant's breach of and
default under this Lease, recover immediately from Tenant any and all
rents and other sums and damages due or in existence at the time of
such termination, including, without limitation, (i) all Base Rent and
Additional Rent (ii) all other sums, charges, payments, costs and
expenses agreed and/or required to be paid by Tenant to Landlord
hereunder, (iii) all costs and expenses of Landlord in connection with
the recovery of possession of the Premises, including reasonable
attorneys' fees and court costs, (iv) all free rent credits and rental
abatements, if any, granted to Tenant as concessions in connection with
this Lease, and (v) all costs and expenses of Landlord in connection
with any reletting or attempted reletting of the Premises or any part
or parts thereof, including, without limitation, brokerage fees,
attorneys' fees and the cost of any alterations or repairs which may be
reasonably required to so relet the Premises, or any part or parts
thereof; and
(b) Landlord may, pursuant to any prior notice required by
law, and without terminating this Lease, peaceably or pursuant to
appropriate legal proceedings, re-enter, retake and resume possession
of the Premises for the account of Tenant, make such alterations of and
repairs to the Premises as may be reasonably necessary in order to
relet the same or any part or parts thereof and relet or attempt to
relet the Premises or any part or parts thereof for such term or terms
(which may be for a term or terms extending beyond the term of this
Lease), at such rents and upon such other terms and provisions as
Landlord, in its sole, but reasonable discretion, may deem advisable.
If Landlord relets or attempts to relet the Premises, Landlord shall be
the sole judge as to the terms and provisions of any new lease or
sublease and of whether or not a particular proposed new tenant or
subtenant is acceptable to Landlord. Upon any reletting, all rents,
whether Base Rent or Additional Rent, received by the Landlord from
such reletting shall be applied, (a) first, to the payment of all costs
and expenses of recovering possession of the Premises, (b) second, to
the payment of any costs and expenses of such reletting, including
brokerage fees, attorneys' fees and the cost of any alterations,
restorations and repairs reasonably required for such reletting; (c)
third, to the payment of any indebtedness, other than rent, due
hereunder from Tenant to the Landlord, (d) fourth, to the repayment of
Landlord of all free rent credits and rental abatements, if any,
granted to Tenant as concessions in connection with this lease, (e)
fifth, to the payment of all rents due and unpaid hereunder, and (f)
sixth, the residue, if any shall be held by the Landlord and applied in
payment of future rents the same may become due and payable hereunder.
If the rents received from such reletting during any period shall be
less than that required to be paid during that period by the Tenant
hereunder, Tenant shall pay any such deficiency to the Landlord within
ten (10) days after demand therefor and upon Tenant's failure to do so,
Landlord shall immediately be entitled to institute legal proceedings
for the recovery and collection of the same.
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Such deficiency shall be calculated and paid at the time each payment
of rent shall otherwise become due under this Lease, or, at the option
of Landlord, at the end of the term of this Lease. Landlord shall, in
addition, be immediately entitled to ▇▇▇ for and otherwise recover from
Tenant any other damages occasioned by or resulting from any
abandonment of the Premises or other breach of or default under this
Lease other than a default in the payment of rent. No such re-entry,
retaking or resumption of possession of the Premises by the Landlord
for the account of Tenant shall be construed as an election on the part
of Landlord to terminate this Lease unless a written notice of such
intention shall be given to the Tenant. Notwithstanding any such
re-entry and reletting or attempted reletting of the Premises or any
part or parts thereof for the account of Tenant without termination,
Landlord may at any time thereafter, upon written notice to Tenant,
elect to terminate this Lease or pursue any other remedy available to
Landlord for Tenant's previous breach of or default under this Lease;
and
(c) Landlord may, without re-entering, retaking or resuming
possession of the Premises, ▇▇▇ for all rents, including Base Rent and
Additional Rent, and all other sums, charges, payments, costs and
expenses due from Tenant to Landlord hereunder, either: (i) as they
become due under this Lease, or (ii) at Landlord' s option, Landlord
may accelerate the maturity and due date of the whole or any part of
Base Rent and Additional Rent for the entire then remaining unexpired
balance of the term of this Lease, together with the amount of all free
rent credits and rental abatements, if any, granted to Tenant as
concessions in connection with this Lease, as well as all other sums,
charges, payments, costs and expenses required to be paid by Tenant to
Landlord hereunder, including, without limitation, damages for breach
or default of Tenant's obligations hereunder in existence at the time
of such acceleration, such that all sums due and payable under this
Lease shall, following such acceleration, be treated as being and, in
fact, be due and payable in advance as of the date of such
acceleration. For purposes of determining the total amount due from
Tenant to Landlord upon any such acceleration, Base Rent and Additional
Rent shall each be treated as being subject to increase in each
remaining Lease Year of the entire then remaining balance of the Lease
Term at the rate of five percent (5%) per year. However, all
accelerated sums due from Tenant to Landlord pursuant to the foregoing
provisions of this subparagraph (c) shall be subject to adjustment to
the then-present value of such accelerated sums at the time of their
actual payment by Tenant to Landlord based upon a twelve percent (12%)
discount rate, which discount rate is agreed upon by, and acceptable
to, each party hereto as evidenced by each party's execution of this
Lease. Landlord may recover and collect all such unpaid rents and other
sums so sued for by Tenant by distress, levy, execution or otherwise.
Regardless of which of the alternative remedies is chosen by Landlord
under the foregoing provisions of this subparagraph (c), Landlord shall
not be required to relet the Premises nor exercise any other right
granted to Landlord pursuant to this Lease, nor shall Landlord be under
any obligation to minimize or mitigate Landlord's damages or Tenant's
loss as a result of Tenant's breach of or default under this Lease.
18.3 Additional Remedies. In addition to the remedies hereinabove
specified and enumerated in Section 18.2 Landlord shall have the right of
injunction and shall have and may exercise the right to invoke any other
remedies allowed at law or in equity as if the remedies or re-entry, unlawful
detainer proceedings and other remedies were not herein provided. Accordingly,
the mention in this Lease of any particular remedy shall not preclude Landlord
from having or exercising any other remedy set forth in this Lease or at law or
in equity. Nothing herein contained shall be construed as precluding the
Landlord from having or exercising such lawful remedies as may be and become
necessary in order to preserve the Landlord's right or the interest of the
Landlord in the Premises and in this Lease, even before the expiration of the
notice periods provided for in this Lease, if under the particular circumstances
then existing the allowance of such notice periods will prejudice or will
endanger the rights and estate of the Landlord in this Lease and in the
Premises.
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18.4 No Waiver. If the Landlord shall institute proceedings against
Tenant and a compromise or settlement thereof shall be made, the same shall not
constitute a waiver of the same or of any other covenant, condition or agreement
set forth herein, nor of any of Landlord's rights hereunder. Neither the payment
by Tenant of a lesser amount than the installments of Base Rent, Additional Rent
or of any sums due hereunder nor any endorsement or statement on any check or
letter accompanying a check for payment of rent or other sums payable hereunder
shall be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
rent or other sums or to pursue any other remedy available to Landlord. No
re-entry by Landlord, and. no acceptance by Landlord of keys from Tenant, shall
be considered an acceptance of a surrender of this Lease.
18.5 Landlord May Cure Tenant's Defaults. If Tenant defaults in the
making of any payment or in the doing of any act herein required to be made or
done by Tenant, then Landlord may, but shall not be required to, make such
payment or do such act. If Landlord elects to make such payment or do such act,
all costs and expenses incurred by Landlord, plus interest thereon at the
highest rate allowable under the laws of the State of Florida from the date paid
by Landlord to the date of payment thereof by Tenant, shall be immediately paid
by Tenant to Landlord; provided however, that nothing contained herein shall be
construed as permitting Landlord to charge or receive interest in excess of the
maximum legal rate then allowed by law. The taking of such action by Landlord
shall not be considered as a cure of such default by Tenant or bar Landlord from
pursuing any remedy to which it is otherwise entitled on account of such
default.
ARTICLE XIX
ATTORNMENT AND NONDISTURBANCE
19.1 Nondisturbance. In its sole and absolute discretion, Landlord
shall have the right to mortgage and encumber all or any part of the Premises
and the Office Complex at any time and from time to time, in such amounts and
with such lenders as Landlord sees fit. This Lease, Tenant's interest hereunder,
and Tenant's leasehold interest in and to the Premises shall not be junior,
inferior, subordinate, or subject to the right, title, interest, lien,
encumbrance or priority of any mortgage, lien or other encumbrance now or
hereafter affecting the Premises or the Office Complex, and no holder of such an
encumbrance shall have the right to name Tenant in any foreclosure or
enforcement action which it may bring against Landlord or the Office Complex.
Landlord agrees that it shall use reasonable efforts to obtain, for the benefit
of Tenant, a written confirmation from any holder of such an encumbrance of its
acceptance of and agreement to the provisions of this Article XIX, which
confirmation shall be in form and content reasonably acceptable to Tenant.
Landlord acknowledges that the provisions of this Article XIX are material
considerations for an inducement of the execution of this Lease by Tenant.
Accordingly, any breach of default by Landlord of its covenants and obligations
under this Article XIX shall be deemed to be and constitute a material and
substantial breach and default of this Lease by Landlord.
Notwithstanding any foreclosure of any such encumbrance or any
conveyance in lieu of foreclosure, neither the holder of such encumbrance nor
any purchaser at a foreclosure sale shall disturb the possession of Tenant
hereunder so long as Tenant pays the rent and no default has occurred and is
continuing hereunder beyond any applicable period of notice and grace.
Tenant agrees that, upon request from Landlord at any time or times
while Landlord is not in default hereunder, Tenant will enter into an agreement
with "Landlord's Lender," as defined and Landlord providing that, should there
be a collateral assignment of Landlord's rights under this Lease to Landlord's
Lender and should a copy of the same be provided to Tenant, Tenant agrees that
none of the following actions shall be taken without the prior written consent
of Landlord's Lender:
(a) This Lease will not be modified, altered or amended in any way;
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(b) Landlord and Tenant will not agree to a cancellation of this Lease,
nor will Tenant surrender its rights hereunder to Landlord;
(c) Landlord will not convey its estate in the Office Complex to Tenant
in a manner which will result in merger, nor take any other action which would
result in merger, of Landlord's estate in the Office Complex with Tenant's
leasehold estate under this Lease; and
(d) Tenant will not prepay and Landlord will not accept prepayment of
any installment or payment of rent more than thirty (30) days in advance of the
due date thereof.
"Landlord's Lender" means an institutional lender having a first or
second mortgage on the Office Complex.
Landlord and Tenant each acknowledge and agree that the provisions of
this Article XIX are for the benefit of Landlord, Tenant, and Landlord's Lender,
and shall be enforceable by any one or more of such parties.
19.2 Attornment and Waiver. Tenant agrees that, in consideration of the
nondisturbance agreement granted to it in this Article XIX, Tenant shall attorn
to any party which succeeds to Landlord's interest in the Premises, without
change in the terms and provisions of this Lease.
In the event that any holder of a lien on the Premises succeeds to
Landlord's interest in the Premises or in the event another party becomes
Landlord's successor in interest to the Premises as a result of the enforcement
of a lien by its holder, then Tenant agrees that, as to such successor in
interest:
(a) Tenant shall waive any and all claims which it might
otherwise have against such successor in interest for events arising prior to
the date such successor in interest succeeded to Landlord's interest in the
Office Complex, including any claim Tenant may have to any security deposit held
by Landlord; and
(b) Such successor in interest shall not be bound by any
prepayment of rent for more than one month in advance which Tenant may have made
to any prior Landlord; and
(c) Tenant shall, upon the request of any such successor in
interest, confirm in writing the provisions of this Article XIX as to such
successor in interest, and delivery to such successor in interest an estoppel
certificate as provided in Section 22.5 hereof free of any claims based upon
events arising prior to the date such successor in interest succeeded to
Landlord's interest in to the Office Complex.
19.3 Quiet Enjoyment. Tenant, upon paying the minimum rent, additional
rent and other charges herein provided for, and observing and keeping all
covenants, agreements and conditions of this Lease on its part to be kept, shall
quietly have and enjoy the Premises during the Lease Term without hindrance of
molestation by anyone claiming by or through Landlord, subject, however, to the
exceptions, reservations and conditions of this Lease. Landlord hereby reserves
the right to prescribe, at its sole discretion, reasonable rules and regulations
(herein called the "Rules and Regulations" having uniform applicability to all
similarly situated tenants of the Building and governing the use and enjoyment
of the Premises and the remainder of the Property; provided that the Rules and
Regulations shall not materially interfere with Tenant's use and enjoyment of
the Premises in accordance with the provisions of this Lease for the permitted
uses. Tenant shall adhere to the Rules and Regulations and shall cause its
agents, employees, invitees, visitors and guests to do so. A copy of the Rule
and Regulations in affect on the date hereof is attached hereto as Exhibit "F".
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ARTICLE XX
END OF TERM
20.1 Surrender of Premises. Upon the expiration or other termination of
the Lease Term, Tenant shall surrender the Premises, broom clean, in the same
order and condition in which they are in on the Lease Commencement Date,
ordinary wear and tear excepted. All improvements to the Premises or the Office
Complex made by either party shall remain upon and be surrendered with the
Premises as a part thereof at the end of the Lease Term, except that if Tenant
is not in default under this Lease, Tenant shall have the right to remove, prior
to the expiration of the Lease Term, all movable furniture, furnishings and
equipment installed in the Premises solely at the expense of Tenant. All damage
and injury to the Premises or the Office Complex caused by such removal shall be
repaired by Tenant, at Tenant's sole expense, or, at the Landlord's option,
Landlord may repair such damage at Tenant's expense, which shall be repaid to
Landlord upon demand. If such property of Tenant is not removed by Tenant prior
to the expiration or termination of this Lease, the same shall become the
property of Landlord and shall be surrendered with the Premises as a part
thereof. Notwithstanding any covenant or condition of this Article to the
contrary, however, Landlord may require, in its sole discretion, that any or all
improvements made by or on behalf of Tenant within or upon the Premises be
removed upon the termination of this Lease, or upon any default by Tenant, and
Tenant hereby agrees to cause same to be removed and the Premises to be
restored, at Tenant's sole cost and expense, or, at Landlord's option, Landlord
may remove and restore the same at Tenant's expense, which shall be repaid to
Landlord upon demand, together with any and all damages Landlord may suffer or
sustain by reason of the failure of Tenant to remove the same.
20.2 Holding Over. If Tenant or any other person or party shall remain
in possession of the Premises or any part thereof following the expiration of
the term or earlier termination of this Lease without an agreement in writing
between Landlord and Tenant with respect thereto, the person or party remaining
in possession shall be deemed to be a tenant at sufferance, and during any such
holdover, the rents and other amounts payable under this Lease by such tenant at
sufferance shall be double the rate or rates in effect immediately prior to the
expiration of the term or earlier termination of this Lease. In no event,
however, shall such holding over be deemed or construed to be or constitute a
renewal or extension of this Lease
ARTICLE XXI
PARKING
21.1 Parking, Generally. During the Lease Term and any extensions
thereof, Landlord shall make available to Tenant up to forty (40) monthly
parking permits for the parking of passenger automobiles in those parking areas
designated by Landlord in the Parking Garage for tenants and invitees of the
Office Complex (the "Parking Areas") of which three (3) shall be reserved
parking spaces displaying the Tenant's name in a location chosen by the
Landlord. During the first twelve (12) months of the Lease Term, Landlord shall
make available to Tenant forty (40) free parking spaces. Thereafter during the
Lease Term, Tenant shall be entitled to twenty (20) free parking spaces,
including the three reserved spaces. Tenant may use additional parking spaces on
a month-to-month basis as available, free of charge; provided, however, that
after the first twelve (12) months of the Lease Term, Landlord shall have a
right to charge for spaces in addition to the twenty (20) spaces at the
prevailing rate charged from time to time by Landlord or the operator of the
Parking Areas, as the case may be.
21.2 No Specified Spaces. Except as provided in Section 21.1 above, the
Parking Garage will be operated on a non-exclusive self-parking basis. No
specified parking spaces within the Parking Areas will be allocated for use by
Tenant. Each user of the Parking Areas will have the right to park in any
available stall or space on a first come - first served basis, unless such space
is specifically designated or reserved by Landlord or designated for handicapped
parking.
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21.3 Parking Garage Rules. Tenant and its employees shall observe
reasonable safety precautions in the use of the Parking Garage and shall at all
times abide by all rules and regulations from time to time promulgated by
Landlord or the Parking Garage operator governing the size of permitted
automobiles in the Parking Garage and the general use of the Parking Garage,
including the requirement that an identification or parking sticker shall be
displayed at all times in all cars parked in the Parking Garage. Any car not
displaying such a sticker, if so required, may be towed away at the car owner's
expense.
21.4 Parking Garage Hours. The Parking Garage will remain open during
the normal hours of operation of the Office Complex.
21.5 No Liability of Landlord. Landlord does not assume any
responsibility for, and shall not be held liable for, any damage or loss to any
automobiles or other vehicles parked in the Parking Garage or to any personal
property located therein, or for any inquiry sustained by any person in or about
the Parking Garage.
ARTICLE XXII
RELOCATION OF TENANT
22.1 Entire Agreement; Modification. This Lease and Exhibits "A" - "G"
attached hereto contain and embody the entire agreement of the parties hereto
and supersede all prior agreements, negotiations and discussions between the
parties hereto. Any representation, inducement or agreement that is not
contained in this Lease shall not be of any force or effect, and no rights,
privileges, easements or licenses are being or shall be acquired by Tenant
except as expressly set forth herein. Tenant hereby waives, as a material part
of the consideration hereof, all claims against Landlord for recision, damages
or any other form or relief by reason of any alleged covenant, warranty,
representation, agreement or understanding not contained in this Lease. This
Lease may not be modified or changed in whole or in part in any manner other
than by an instrument in writing duly signed by both parties hereto. This Lease
is being executed in multiple counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same document.
22.2 No Partnership. Nothing contained in this Lease shall be construed
as creating a partnership or joint venture of or between Landlord and Tenant, or
to create any other relationship between the parties hereto other than that of
Landlord and Tenant.
22.3 Determination of Rentable Area. The rentable area in the Office
Complex and in the Premises shall be determined in accordance with the Building
Owners and Managers Association ("BOMA") standard method of office space
calculation.
22.4 Brokers. Landlord recognizes ▇▇▇▇▇▇▇▇▇ Corporation as the sole
broker procuring this Lease and shall pay said broker a commission pursuant to a
separate agreement between said broker and Landlord. Landlord and Tenant each
represent and warrant to the other that, except as provided above, neither of
them has employed or dealt with any broker, agent or finder in carrying on the
negotiations relating to this Lease. Tenant shall indemnify and hold Landlord
harmless from and against any claim or claims for brokerage or other commissions
asserted by any broker, agent or finder engaged by Tenant or with whom Tenant
has dealt, other than the broker named in the first sentence of this Section.
22.5 Estoppel Certificates. Tenant shall, at any time from time to
time, not less than ten (10) days after written request from Landlord, execute,
acknowledge and deliver to Landlord an estoppel certificate in writing
certifying (a) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the Lease is in full force and effect as
modified and stating the modifications) ; (b) the dates to which the rent and
any other charges hereunder have been paid by Tenant; (c) that Tenant is not in
default in the payment of rent or any additional charges to Landlord or in the
performance of any of Tenant's obligations hereunder, or, if in default, stating
such default; (d) whether or not, to
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the best knowledge of Tenant, Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease, and if so, specifying
the nature of such default; (e) that so far as Tenant knows, no event has
occurred which authorizes, or with the lapse of time will authorize, Landlord or
Tenant to terminate this Lease or, if such event has occurred, stating such
event; (f) that so far as Tenant knows, neither party has any such offsets,
counterclaims or defenses or, if either party has any such offsets,
counterclaims or defenses, stating them; (g) the address to which notices to
Tenant are to be sent, and (h) any other matters which may be reasonably
requested by Landlord.
Landlord shall, at any time and form time to time, not less than then
(10) days after written request from Tenant, execute, acknowledge and deliver to
Tenant an estoppel certificate in writing certifying (a) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications; (b) the dates to which the rent and any other charges hereunder
have been paid by Tenant; (c) that Tenant is not in default in the payment of
rent or any additional charges to Landlord or in the performance of any of
Tenant's obligations hereunder, or, if in default, stating such default; (d)
whether or not, to the best knowledge of Landlord, Landlord is in default in the
performance of any covenant, agreement or condition contained in this Lease, and
if so, specifying the nature of such default; (e) that so far as Landlord knows,
no event has occurred which authorizes, or with the lapse of time will
authorize, Landlord or Tenant to terminate this Lease or, if such event has
occurred, stating such event; (f) that so far as Landlord knows, neither party
has any such offsets, counterclaims or defenses or, if either party has any such
offsets, counterclaims or defenses, stating them; (g) the address to which
notices to Landlord are to be sent, and (h) any other matters which may be
reasonably requested by Tenant.
Landlord may, at its option, from time to time prepare and submit to
Tenant for its execution an estoppel certificate setting forth those matters
specified in this Section, in substantially the same form as the form of
estoppel certificate attached hereto as Exhibit F (the "Form Estoppel
Certificate") . If Tenant fails to return to Landlord an executed estoppel
certificate within fifteen (15) days after receipt from Landlord of the
completed Form Estoppel Certificate, then Tenant shall be deemed to have
certified, agreed to and accepted the terms and provisions of such completed
Form Estoppel Certificate, and all statements and certifications set forth
therein shall be and become binding upon Tenant as if Tenant had fully and
properly executed and delivered such completed Form Estoppel Certificate within
the time provided therefor.
Any such certificate delivered by Tenant may be relied upon by any
owner of the Office Complex or the Land, any prospective purchaser of the Office
Complex or the Land, any mortgagee or prospective mortgagee of the Office
Complex or the Land, or any prospective assignee of any such mortgagee.
22.6 Waiver of Jury Trial. Landlord and Tenant each hereby waive trial
by jury in any action, proceeding or counterclaim brought by either of them
against the other in connection with any matter arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Tenant's use or occupancy of the Premises, and/or any claim of injury-or damage.
22.7 Waiver of Right of Redemption. Tenant, for itself and for all
persons claiming by, through or under it, hereby expressly waives any and all
rights which are or may be conferred upon Tenant by any present or future law to
redeem the Premises.
22.8 Venue. The venue of any suit or proceeding brought for the
enforcement of or otherwise with respect to this Lease shall always be lodged in
the State Courts of the Eleventh Judicial Circuit in and for Dade County,
Florida regardless of whether, under any applicable principle of law, venue may
also be properly lodged in the courts of any other Federal, State or County
jurisdiction.
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22.9 Notices.All notices or other communications required hereunder
shall be in writing and shall be deemed duly given on the date delivered, if in
person (with receipt therefor) , or three (3) days following posting with the
United States Mail, if sent by certified or registered mail, return receipt
requested, postage prepaid, to the following address: (i) If to Landlord: K/B
Opportunity Fund I, L.P., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, with a copy to: ▇▇▇▇▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇; (ii) if to Tenant, at the Premises, except that
prior to Lease Commencement Date, notices to Tenant shall be sent to such
address as Tenant shall have designated and informed Landlord. Tenant may
designate an additional, separate notice address upon ten (10) days written
notice to Landlord. Either party may change its address for the giving of
notices by notice given in accordance with this Section. Any notice mailed to
the last designated address of any person of party to which a notice may be or
is required to be delivered pursuant to this Lease shall not be deemed
ineffective if actual delivery cannot be made due to a change of address of the
person or party to which the notice is directed or the failure or refusal of
such person to accept delivery to the notice.
22.10 Rules of Construction. If any provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
Feminine or neuter pronouns shall be substituted for those of the masculine
form, and the plural shall be substituted for the singular number, in any place
or places herein in which the context may require such substitution. Article and
section headings are used herein for the convenience of reference and shall not
be considered when construing or interpreting this Lease.
22.11 Successors and Assigns. The provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective representatives, successors and assigns, subject to the
provisions hereof restricting assignment, transfer or subletting by Tenant.
22.12 Waiver. No release, discharge or waiver of any provision hereof
shall be enforceable against or binding upon Landlord or Tenant unless in
writing and executed by Landlord or Tenant, as the case may be. Neither the
failure of Landlord or Tenant to insist upon a strict performance of any of the
terms, provisions, covenants, agreements and conditions hereof, nor the
acceptance of rent by Landlord with knowledge of a breach of this Lease by
Tenant in the performance of its obligations hereunder, shall be deemed a waiver
of any rights or remedies that Landlord or Tenant may have or a waiver of any
subsequent breach or default in any of such terms, provisions, covenants,
agreements and conditions. .
22.13 Costs and Attorneys' Fees. If either party shall bring an action
to recover any sum due hereunder, or for any breach hereunder, the court may
award to the prevailing party its reasonable costs and reasonable attorneys'
fees, specifically including reasonable attorneys' fees incurred in connection
with any appeals, whether or not taxable as such by law.
22.14 Time of the Essence. Time is of the essence of each provision of
this Lease.
22.15 Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Florida.
22.16 No Recording. This Lease shall not be recorded.
22.17 Radon Gas Notification. In accordance with the requirements of
Florida Statutes Section 404.056(8) the following notice is hereby given:
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
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persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be
obtained from your County Public Health Unit.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal on
or as of the day and year first above written.
Signed, sealed and delivered K/B Opportunity Fund I, L.P.,
in the presence of: a Delaware Limited Partnership,
acting through ▇▇▇▇ Investment
Management, Owner's Representative
By: (SEAL)
---------------------------------- ----------------------
Witness ▇▇ ▇▇▇▇
Title:
---------------------------------- ----------------------------
Witness
Signed, sealed and delivered Preferred Employers Group, Inc.
in the presence of:
By: (SEAL)
---------------------------------- ----------------------
Witness
Title:
---------------------------------- ----------------------------
Witness
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EXHIBIT A
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
K/B OPPORTUNITY FUND I, L.P., AS LANDLORD
AND PREFERRED EMPLOYERS GROUP, INC., AS TENANT
LEGAL DESCRIPTION OF LAND
Bayshore:
According to the records at the Dade County Property Records Office, the subject
property is located in Section 32, Township 52 South, Range 42 East, and is
legally described as, "Lots, 8, 9, and ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ RIDGE,
according to the Plat thereof as recorded in Plat Book 20 at Page 8, together
with; Block 2, less the West 75 feet thereof, REVISED AMENDED AND CORRECTED PLAT
OF BISCAYNE SHORES UNIT #2, according to the plat thereof as recorded in Plat
Book 40 at Page 81, both of the Public Records of Dade County, Florida."
EXHIBIT B
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
K/B OPPORTUNITY FUND I, L.P., AS LANDLORD
AND PREFERRED EMPLOYERS GROUP, INC., AS TENANT
[DIAGRAM OF FLOOR PLAN]
EXHIBIT C
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
K/B OPPORTUNITY FUND I, L.P., AS LANDLORD
AND PREFERRED EMPLOYERS GROUP, INC., AS TENANT
EXHIBIT D
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
K/B OPPORTUNITY FUND I. L.P., AS LANDLORD
AND PREFERRED EMPLOYERS GROUP, INC., AS TENANT
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT, made this day of , 19__ by and
between K/B OPPORTUNITY FUND I, L.P. a Delaware Limited Partnership ("Landlord")
and, Preferred Employers Group, Inc. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office Space
Lease Agreement, dated , the ("Lease") with respect to the demise of certain
premises (the "Premises") , as more particularly described in the Lease; and
WHEREAS, all terms defined in the Lease shall have the same meanings
when referred to herein; and
WHEREAS, Landlord and Tenant desire to confirm and acknowledge (i) the
actual Lease Commencement Date, (ii) the commencement of Tenant's obligations
attendant upon such Lease Commencement Date, (iii) the Lease Expiration Date,
and (iv) the actual square footage of the Premises, as described and defined by
the Lease.
NOW, THEREFORE, in consideration of the premises hereof and the mutual
promises and covenants contained herein and in the Lease, Landlord and Tenant
hereby agree as follows:'
1. The Lease Commencement Date shall be and the Lease Expiration Date
shall be . It is understood and agreed by Landlord and Tenant that any and all
of Tenant's covenants and obligations set forth in the Lease shall become
effective as of the said Lease Commencement Date, including, but not limited to,
(i) Tenant's obligation to pay Base Rent and Additional Rent, (ii) Tenant's
obligation to maintain insurance, and (iii) all other monetary or non-monetary
covenants of Tenant set forth in the Lease.
2. The number of square feet comprising the Premises is confirmed to be
square feet, and such number of square feet shall be substituted for the
approximate square footage as set forth in Article I of the Lease, and in each
and every other Article of the Lease wherein reference is made to the
approximate number of square feet comprising the Premises.
EXCEPT as hereby modified and amended, all other terms, provisions,
covenants and conditions of the Lease shall remain unmodified and in full force
and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment to Lease to be executed by their duly authorized representations on or
as of the day and year first above written.
Signed, sealed and delivered K/B Opportunity Fund I, L.P.,
in the presence of: a Delaware Limited Partnership,
acting through ▇▇▇▇ Investment
Management, Owner's Representative
By: (SEAL)
---------------------------------- -------------------------
Witness ▇▇ ▇▇▇▇
Title:
---------------------------------- ----------------------------
Witness
Signed, sealed and delivered Preferred Employers Group, Inc.
in the presence of:
By: (SEAL)
---------------------------------- -------------------------
Witness
Title:
---------------------------------- ----------------------------
Witness
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EXHIBIT E
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
K/B OPPORTUNITY FUND I, L.P., AS LANDLORD
AND PREFERRED EMPLOYERS GROUP, INC., AS TENANT
RULES AND REGULATIONS
The following rules and regulations ("Rules and Regulations") have been
formulated for the safety, comfort and well-being of all tenants of the Office
Complex. Strict adherence to the Rules and Regulations is necessary to guarantee
that each and every tenant will enjoy a sa e and undisturbed occupancy of its
premises in the Office Complex. Any continuing violation of the Rules and
Regulations by any tenant shall constitute a default by such tenant under its
Lease. Unless the context otherwise requires, the terms used in this Exhibit
that are defined in the Lease shall have the same meaning as provided in the
Lease.
1. Landlord's Right to Control, Generally. Landlord shall have the
right to control and.operate the public portions of the Office Complex, and the
facilities furnished for the common use of the tenants of the Office Complex, in
such manner as Landlord deems best for the benefit of the tenants generally.
2. Use. The use of its premises by any tenant shall not be changed
without the prior written approval of Landlord. No space in the Office Complex
shall be used for the manufacture of goods for sale in the ordinary course of
business, or for the sale at auction of merchandise, goods or property of any
kind. The premises shall not, at any time, be used for lodging or sleeping or
for any immoral or illegal purposes.
3. No Obstructions. The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors, halls and other parts of the Office
Complex not exclusively occupied by any tenant shall not be obstructed or
blocked by any tenant or used for any purpose other than ingress and egress to
and from each tenant's premises. If a tenant's premises are situated on the
ground floor of the Office Complex, the tenant thereof shall, at such tenant's
own expense, keep the sidewalks and curb directly in front of its premises clean
and free from trash and debris. Mats, trash or other objects shall not be placed
in any public corridors of the Office Complex. No tenant shall permit the
congregation of persons in its premises in such numbers or under such conditions
as to interfere with the use and enjoyment of the entrances, corridors,
elevators and other public portions or facilities of the Office Complex by other
tenants. No tenant shall throw anything out of the doors or windows or down the
corridors or stairs of the Office Complex.
4. No Disturbances. No Tenant shall make any unseemly or disturbing
noises or disturb or interfere with the occupants of the Office Complex or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, whistling, signing,
or in any other way. No tenant shall construct, maintain, use or operate within
its respective premises any electrical device, wiring or apparatus in connection
with a loudspeaker or other sound system, except as reasonably required as part
of a communication system approved prior to the installation thereof by
Landlord. No such loudspeaker or sound system shall be constructed, maintained,
used or operated outside the premises. Tenant may ▇▇▇▇ or heat food within the
kitchen area of its premises. Tenant shall not cause or permit any unusual or
objectionable odors to be produced upon or permeate from its premises.
5. No Canvassing. Canvassing, soliciting and peddling in the Office
Complex is prohibited and each tenant shall cooperate to prevent the same.
6. No Awnings, Etc. No awnings or other projections shall be attached
to the outside walls of the Office Complex or to the exterior of any tenant's
premises without the prior written consent of Landlord. No drapes, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of any tenant's premises without the prior written consent of
Landlord. All awnings, projections, curtains, blinds, shades, screens and other
fixtures must be of a quality, type, design and color, and must be attached in
the manner, approved by Landlord. Any drapes in any tenant's premises which are
visible from the exterior of the Office Complex, whether installed by such
tenant or Landlord, must be cleaned by such tenant, at its expense, at least
once per year without notice from Landlord.
7. No Showcases, Markings, Etc. No showcases or other articles shall be
put in front of or affixed to any part of the exterior of the Office Complex,
nor placed in the halls, corridors or vestibules without the prior written
consent of Landlord. There shall be no marking, painting, drilling into or
defacement of the Office Complex or any part of the premises that is visible
from public areas of the Office Complex.
8. Restrooms. The restrooms, water and wash closets and other plumbing
fixtures in the Office Complex shall not be used for any purposes other than
those for which they were constructed, and no debris, rubbish, rags or other
foreign substances of any kind shall be disposed of therein. Any damage
resulting from misuse of the restrooms, water and wash closets and other
plumbing fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the same.
9. Bicycles, Animals. No bicycles or vehicles and no animals, birds or
pets of any kind shall be brought into or kept in or about the Office Complex or
any tenant's premises, except that this rule shall tot prohibit the parking of
bicycles or vehicles in the garage in the Office Complex.
10. Flammable Materials. No flammable, combustible or explosive fluid,
chemical or substance shall be brought into or kept upon any tenant's premises.
11. Locks. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any tenant, nor shall any changes be made in
any existing locks or the locking mechanism therein without prior notice to
Landlord and Tenant providing Landlord copies of the keys to such locks or bolts
at the same time are installed or changed. All doors leading to the corridors or
main halls shall be kept closed during business hours except as they may be used
for ingress or egress. Each tenant shall, upon the termination of its tenancy,
restore to the Landlord all keys of stores, offices, storage and toilet rooms
either furnished, to, or otherwise procured by such tenant, and in the event of
the loss of any keys so furnished, such tenant shall pay to Landlord the
replacement cost thereof.
Tenant, at its expense will have the right to install various security
devices, including, but not limited to: keyless entry on exterior and interior
doors; burglar, sonic and/or smoke detectors/alarms. Tenant to provide codes and
disarming procedure to Landlord who shall keep same confidential.
12. Theft or Loss. Each tenant shall be responsible for the protection
and security of its premises and all property therein from robbery, theft,
vandalism, pilferage or other loss. Each tenant, before closing and leaving the
premises at any time, shall see that all windows and doors are closed and locked
and all lights are turned off. Tenant shall furnish Landlord with "after-hours"
emergency telephone numbers, for the sole use of Landlord at its discretion.
Except for emergency purposes, Landlord will use its best efforts to keep such
telephone numbers confidential.
13. Freight, Hand Trucks. Landlord reserves the right to inspect all
freight to be brought into the Office Complex and to exclude from the Office
Complex all freight which violates any of these Rules and Regulations or the
Lease. There shall not be used in any tenant's premises, or in any halls or
corridors of the Office Complex, either by any tenant or
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by any other persons in the delivery or receipt of merchandise, any hand trucks,
except those equipped with rubber tires and side guards. Each tenant shall be
responsible to Landlord for any loss or damage resulting from any deliveries
made by or for such tenant to the Office Complex.
14. Maintenance of Nonstandard Finishes. Landlord shall not maintain
any suite finishes which are non-standard, such as kitchens, bathrooms,
wallpaper, special lights, etc. However, should the need arise for repairs of
items not maintained by Landlord, Landlord will arrange for the work to be done
at the expense of the tenant for which the work was performed.
15. Landlord's Employees. Landlord's employees shall not perform any
work or do anything outside of their regular duties, unless under special
instruction from the management of the Office Complex. The requirements of
tenants will be attended to only upon application to Landlord, and any such
special requirements shall be billed to the tenant for which such work is
performed (and paid by such tenant with its next installment of rent) in
accordance with the schedule of charges maintained by Landlord from time to time
or at such charge as is agreed upon in advance by Landlord and such tenant.
16. Landlord's Reserved Rights. Landlord reserves the right to exclude
from the Office Complex at all times any person who is not known or does not
properly identify himself to the Office Complex management or watchman on duty.
Landlord may, at its option, require all persons admitted to or leaving the
Office Complex between the hours of 6:00 p.m. and 7:30 a.m., Monday through
Friday, and at any hour on Saturdays, Sundays and legal holidays, to register.
Each tenant shall be responsible for all persons for whom it authorizes entry
into the Office Complex, and shall be liable to Landlord for all acts or
omissions of such persons.
17. Compliance. Tenant shall be responsible for the compliance by its
employees and agents with the foregoing Rules and Regulations, and, with respect
to Tenant's customers, invitees and guests, Tenant shall exercise due diligence
in the enforcement and observation of these Rules and Regulations.
18. Enforcement by Landlord. If any tenant violates or fails to comply
with any of its obligations as set forth in these Rules and Regulations or the
Lease promptly after written notice from Landlord of such violation or
non-compliance, then Landlord or its duly appointed employees, agents or
contractors shall have the right to undertake such acts as may be reasonably
necessary to cure or eliminate such violation or non-compliance at the sole cost
of such tenant, which cost shall constitute Additional Rent under such tenant's
lease.
19. Waiver. No release or waiver by Landlord of any provisions herein
shall be enforceable by the tenant in whose favor such waiver is granted unless
in writing and executed by Landlord. The failure by Landlord to insist upon the
strict performance of any of the terms or provisions hereof shall not be deemed
a waiver of any rights or remedies of Landlord or a waiver of any subsequent
violation or failure of compliance with these Rules and Regulations as the same
may be amended from time to time.
20. Amendment. Landlord shall have the right to promulgate additional
Rules and Regulations, amend or rescind any of the foregoing Rules and
Regulations from time to time as Landlord, in its sole discretion, deems
suitable for the safety, care and cleanliness of the Office Complex and the
conduct of a first class office building therein. Each tenant shall comply with
all new or amended Rules and Regulations upon receipt of written notice of the
same from Landlord.
21. Consent. Whenever the consent or approval of Landlord is required
pursuant to these Rules and Regulations, such consent shall be in writing, and
may be given or withheld by Landlord in its sole discretion.
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22. Conflict with Lease. These Rules and Regulations are in addition
to, and shall not be construed to in any way modify or amend the terms,
provisions, agreements, covenants and conditions of the Lease. In the event of
any conflict between the Rules and Regulations and the Lease, the terms and
provisions of the Lease shall prevail.
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EXHIBIT F
TO OFFICE SPACE LEASE AGREEMENT BETWEEN
K/B OPPORTUNITY FUND I, L.P., AS LANDLORD
AND PREFERRED EMPLOYERS GROUP, INC., AS TENANT
TENANT ESTOPPEL CERTIFICATE
Re: Property Address:___________________________________________________________
Lease Date:_____________________________________________________________________
Between K/B OPPORTUNITY FUND I, L.P., a Delaware Limited Partnership,
Landlord
and PREFERRED EMPLOYERS GROUP, INC., Tenant
Square Footage _____________
Leased: _____________
Suite No. _____________
Floor _____________
The undersigned, Tenant under the above referenced lease ("Lease") , certifies
to K/B Opportunity Fund I L.P. the following:
1. The above-described Lease has not been canceled, modified, assigned, extended
or amended except as follows:___________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. Rent has been paid to the first day of the current month and all additional
rent"'has been paid and collected in a current manner. There is no prepaid rent,
except $_______________ and the amount of security deposit is $________________.
3. We took possession of the leased premises on ______________ and commenced to
pay rent on ____________ in the amount of $_________________________.
4. The Lease terminates on ___________________________ and we have the following
renewal option(s):_____________________________________________________________.
5. All work to be performed for us under the Lease has been performed as
required and has been accepted by us, except __________________________________.
________________________________________________________________________________
6. The Lease is in full force and effect and free from default thereunder by
Landlord or Tenant, and we have no claims or defenses against the Landlord or
offsets against rents or other sums due under the Lease.
7. No event has occurred which authorizes, or with the passage of time will
authorize, Landlord or Tenant to terminate this Lease.
8. The undersigned has received no notice of prior sale, transfer or assignment,
hypothecation or pledge of the said Lease or of the rents received therein,
except ________________________________________________________________________.
9. The undersigned has not assigned, or transferred the said Lease or sublet all
or any portion of the demised premises ("Premises") nor does the undersigned
hold the Premises under assignment or sublease, except ________________________.
10. The base year for operating expenses and real estate taxes, as defined in
the said Lease, is ____________________________________________________________.
11. The undersigned has no other interest in any other part of the building of
which the Premises form a part or to any personal property appurtenant thereto
or used in connection therewith except ________________________________________.
12. The undersigned has no right or option pursuant to the said Lease or
otherwise to purchase all or any part of the Premises or the building of which
the Premises are a part.
13. There are no other agreements written or oral between the undersigned and
the Landlord with respect to the Lease and/or the leased premises and building.
14. The statements contained herein may be relied upon by the Landlord under the
said Lease by any prospective purchaser of the fee of the Premises, and by any
prospective mortgagee of Landlord's interest in the Premises.
If we are a corporation, the undersigned is a duly appointed officer of
the corporation signing this certificate and is the incumbent in the office
indicated under his name.
In any event, the undersigned individual is duly authorized to execute this
certificate.
Dated this _________ day of _____________________, 19__.
Tenant: PREFERRED EMPLOYERS GROUP, INC.
By:_____________________________________
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A D D E N D U M
This Addendum is to and forms a part of the Lease dated August 1, 1994 between
K/B Opportunity Fund I, L.P., a Delaware Limited Partnership ("Landlord") and
Preferred Employers Group Inc. ("Tenant"). To the extent the terms of this
Addendum conflict with those contained in the Lease, the terms of this Addendum
shall control. The terms of the Lease which are not modified by the terms of
this Addendum shall remain the same and in effect.
1. Base Rent: The annual base rent to be paid in accordance with Paragraph
3 of the Lease shall be as follows:
Months: 1-12: $ 7.00 per square foot
13-24: $14.00 per square foot
25-36: $14.70 per square foot
37-48: $15.30 per square foot
49-60: $16.00 per square foot
61-84: $17.00 per square foot
2. Option to Renew: Provided that Tenant is not in default of any of the
terms or conditions of this Lease at the time Tenant gives notice that
it wishes to exercise the renewal option or at the time the option term
is scheduled to commence, then the Tenant shall have the option, to be
exercised by written notice to Landlord at least six (6) months prior
to the expiration of the original term of this Lease, and first renewal
term respectively, to renew this Lease for one (1) additional five year
term ("First Renewal Term"), and then one (1) additional five year term
("Second Renewal Term") upon the terms and conditions provided in the
original Lease. Notwithstanding the foregoing, however, the base rent
payable during the First Renewal Term shall be 95% of the market value
for equivalent space in the Office Complex, as determined by the
average of the latest three leases for office space in the Office
Complex, which leases shall be for space of at least 6,000 contiguous
square feet and on a floor higher that the sixth floor of the Office
Complex, as of the date Tenant exercises the option. However, if there
have not been three leases for such space within the 18 month period
prior to the date Tenant exercises its option for the First Renewal
Term, then the market value for equivalent space in the Office Complex
shall be determined by the average of the latest three leases for
office space in the same class building within a two mile radius of the
Office Complex and which will be for space of at least 6,000 contiguous
square feet and on a floor higher than the sixth floor of such
building, together with any leases written for office space in the
Office Complex for space of at least 6,000 contiguous square feet and
on a floor higher than the sixth floor of the Office complex during the
18 month period prior to the date Tenant exercises its option for the
First Renewal Term. The base rent payable during the Second Renewal
Term shall be 95% of the market value for equivalent space in the
Office Complex, as determined by the average of the latest three leases
for office space in the Office Complex, which leases shall be for space
of at least 6,000 contiguous square feet and on a floor higher than the
sixth floor of the Office Complex, as of the date Tenant exercises its
Option for the Second Renewal Term. However, if there have not been
three leases for such space within the 18 month period prior to the
date Tenant exercises its Option for the Second Renewal Term, then the
market value for equivalent space in the Office Complex shall be
determined by the average of the latest three leases for office space
in the same class building within a two mile radius of the Office
Complex and which will be for space of at least 6,000 contiguous square
feet and on a floor higher than the sixth floor of such building,
together with any leases written for office space in the Office Complex
for space of at least 6,000 contiguous square feet and on a floor
higher than the sixth floor of the Office Complex during the 18 month
period prior to the date Tenant exercises its option for the Second
Renewal Term.
Notwithstanding the foregoing, if Tenant fails or is unable to exercise
its Option for the First Renewal Term, then Tenant's Option for the
Second Renewal Term, shall become void. There shall be no further right
of renewal.
3. Building Signage: Tenant shall have the right to install a single
channel sign on the exterior of the property displaying the Tenant's
corporate name. Signage type and location shall be at the sole
discretion of the Landlord and in accordance with all zoning
requirements. The construction and installation of the sign shall be at
the Tenant's sole cost and expense.
4. Tenant Improvements. Within seven (7) business days of full execution
of this Lease, Landlord shall commence a formal bid process to obtain
competitive pricing for construction of improvements as set forth
herein. Thereafter, Landlord shall build the premises with building
standard materials and substantially in accordance with the space plan
prepared by Tenant. Said space plan shall be attached as Exhibit "C" no
later than one (1) week after the lease is fully executed. Landlord
shall contribute up to $20.00 per rentable square foot towards the
construction, construction management, architectural and other fees. In
no event shall Landlord's financial obligation towards the construction
exceed this amount. Tenant shall pay all costs in excess of this
amount.
5. Delivery and Acceptance of Premises. Tenant shall accept the Premises
from Landlord "as is". Tenant's taking of possession of the Premises
shall conclusively establish that Tenant has accepted the Premises,
that the Premises are in satisfactory condition, and that the Premises
are acceptable for Tenant's contemplated use.
6. Right of First Refusal. Before entering a Lease for all or a portion of
the space in the area shown in Exhibit B-2 ("Additional Space"),
Landlord shall notify Tenant in writing of the status of the proposed
Lease and the terms of that Lease. Within five (5) business days of
Landlord's written notice, Tenant may provide Landlord a written offer
(which shall be delivered by recognized overnight courier or facsimile
with a confirmation of transmission)to Lease Additional Space that is
the subject of the proposed Lease according to the terms of the
proposed Lease , as evidenced by a signed letter of intent to Landlord
from the proposed Tenant of the additional space. The Lease Term for
the Additional Space shall run concurrently with the Term of this
Lease, including all extensions and renewals, if applicable. Within
thirty (30) days after Tenant has exercised its Right of First Refusal,
Landlord and Tenant shall execute a Lease Modification Agreement
reflecting the modifications of the Lease, with the Lease Term of the
Additional Space commencing upon Tenant's occupancy of the Additional
Space. Notwithstanding the terms of this paragraph to the contrary,
Tenant may not exercise this right of First Refusal at a time when it
is in default under this Lease.
7. Lease Interpretation: The portions of the Lease which are crossed out
shall be omitted form the Lease and those which are shaded shall be
added.
Landlord and Tenant have executed this Addendum on the date stated above.
Signed, sealed and delivered K/B Opportunity Fund I, L.P.,
in the presence of: a Delaware Limited Partnership,
acting through ▇▇▇▇ Investment
Management, Owner's Representative
By: (SEAL)
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Witness ▇▇ ▇▇▇▇
Title:
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Witness
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Signed, sealed and delivered Preferred Employers Group, Inc.
in the presence of:
By: (SEAL)
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Witness
Title:
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Witness
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