EXHIBIT 10.19
MULTITENANT
OFFICE
LEASE AGREEMENT
SUNRISE LAKE, L.L.C., as Landlord
and
AIRSPAN NETWORKS, INC., as Tenant
OFFICE LEASE AGREEMENT
This Office Lease Agreement is made and entered into as of the Effective
Date by and between SUNRISE LAKE, L.L.C., a Delaware limited liability company,
as Landlord, and AIRSPAN NETWORKS, INC., a Washington corporation, as Tenant.
DEFINITIONS
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Capitalized terms used in this Lease have the meanings ascribed to them on
the attached EXHIBIT "A."
BASIC TERMS
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The following Basic Terms are applied under and governed by the particular
section(s) in this Lease pertaining to the following information:
1. Premises: Suite ____, consisting of approximately 8,941 rentable
square feet and located on the fourth (4/th/) floor of
the Building. The Premises is depicted on EXHIBIT "C."
(See Section 1.1)
2. Lease Term: A period commencing on the Commencement Date and
expiring October 14, 2007 (See Section 1.2)
Renewal Option: (See Section 1.2.5)
3. Delivery Date: November 7, 2000 (See Section 1.2)
4. Basic Rent:
Annual Basic Rent per rentable
Period square foot of the Premises Monthly Installments
------------------------ ------------------------------ --------------------
Rent Commencement Date - $15.95 $11,884.08
12/31/01
1/1/02 - 12/31/02 $16.35 $12,182.11
1/1/03 - 12/31/03 $16.76 $12,487.60
1/1/04 - 12/31/04 $17.18 $12,800.53
1/1/05 - 12/31/05 $17.61 $13,120.92
1/1/06 - 12/31/06 $18.05 $12,448.75
1/1/07 - 12/31/07 $18.50 $13,784.04
(See Section 2.1)
Renewal Term: Determined in accordance with Section 1.2.5
5. Initial Tenant's Share of
Operating Expenses
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Percentage: 3.74% (See Section 3.7)
6. Improvement Allowance: None (See Article 17).
7. Property Manager/Rent
Payment Address: Opus South Management Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
8. Address of Landlord for Notices:
Sunrise Lake, L.L.C.
c/o Opus South Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Opus L.L.C.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Property Manager at the address
described above.
9. Address of Tenant for Notices:
_________________________________
_________________________________
_________________________________
Attn: ___________________________
Telephone: (___)_________________
Facsimile: (___)_________________
With a copy to: ________________________________
________________________________
________________________________
Attn: __________________________
Telephone: (___) _______________
Facsimile: (___) _______________
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10. Broker(s): CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
(See Section 18.11)
11. Guarantor(s): None.
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ARTICLE 1.
LEASE OF PREMISES AND LEASE TERM
1.1 Premises.
In consideration of the mutual covenants this Lease describes and other
good and valuable consideration, Landlord leases the Premises to Tenant and
Tenant leases the Premises from Landlord, upon and subject to the terms,
covenants and conditions set forth in this Lease. The rentable area of the
Premises is the rentable area specified in the Basic Terms. Landlord determined
the rentable area of the Premises substantially in accordance with BOMA
Standards. If Landlord or Tenant determines, in accordance with BOMA Standards,
that the rentable area of the Premises differs from the rentable area specified
in the Basic Terms, Landlord and Tenant will amend this Lease accordingly;
provided, however, that any such amendment will operate prospectively only.
Landlord and Tenant will not make any retroactive adjustments to Rent payments
on account of any difference between the rentable area of the Premises specified
in the Basic Terms and the rentable area of the Premises as may be determined
after the date of this Lease.
1.2 Term, Delivery and Commencement.
1.2.1 Commencement and Expiration of Term.
The Term of this Lease is the period stated in the Basic Terms. The
Term commences on the Commencement Date and expires on October 14, 2007.
1.2.2 Tender of Possession.
Landlord will use commercially reasonable efforts to achieve
Substantial Completion of the Tenant's Improvements and tender possession of the
Premises to Tenant on or before the Delivery Date, subject to Force Majeure and
Tenant Delay. If Landlord is unable to tender possession of the Premises to
Tenant on or before the Delivery Date for any reason beyond its reasonable
control, this Lease remains in full force and effect and Landlord is not liable
to Tenant for any resulting loss or damage; provided, however, that unless the
delay is caused by Tenant Delay, Landlord will appropriately adjust the
Commencement Date and Rent Commencement Date. Notwithstanding the foregoing, if
Landlord is unable to tender possession of the Premises to Tenant on or before
the Delivery Date for reasons other than delays caused by Force Majeure or
Tenant Delays, then Tenant, as its sole and exclusive remedy, shall receive a
credit against the first accruing payments of Basic Rent and Tenant's Share of
Operating Expenses due hereunder in an amount equal to two (2) days of prorata
Basic Rent for each one (1) day after the Delivery Date until Landlord tenders
possession of the Premises to Tenant. If the delay in tendering possession of
the Premises is caused by a Tenant Delay, the Commencement Date and Rent
Commencement Date shall not be adjusted, and Tenant shall receive no credit
against Basic Rent. If the delay in tendering possession of the Premises is
caused by Force Majeure, the Commencement Date and Rent Commencement Date shall
be adjusted day-for-day for the period of existence of the Force Majeure, but
Tenant shall receive no credit against Basic Rent.
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1.2.3 Commencement Date Memorandum.
Within a reasonable time after the Commencement Date, Landlord
will deliver to Tenant the Commencement Date Memorandum with all blanks relating
to dates completed with dates Landlord derives in accordance with this Lease.
Tenant, within ten (10) days after receipt from Landlord, will execute and
deliver to Landlord the Commencement Date Memorandum. Tenant's failure to
execute and deliver to Landlord the Commencement Date Memorandum does not affect
any obligation of Tenant under this Lease. If Tenant does not timely execute and
deliver to Landlord the Commencement Date Memorandum, Landlord and any
prospective purchaser or encumbrancer may conclusively rely on the information
contained in the unexecuted Commencement Date Memorandum Landlord delivered to
Tenant.
1.2.4 Early Occupancy.
Tenant will not occupy the Premises before Substantial Completion
without Landlord's prior written consent, which consent Landlord may grant,
withhold or condition in its sole and absolute discretion. If Landlord consents,
Tenant, during the early occupancy period, may only install Tenant's furniture,
fixtures and equipment in the Premises and must comply with and observe all
terms and conditions of this Lease (other than Tenant's obligation to pay Basic
Rent and Tenant's Share of Operating Expenses).
1.2.5 Renewal Term.
Tenant shall have the right, to be exercised as hereinafter
provided, to extend the term of this Lease for one (1) extension period
commencing on October 15, 2007, and expiring on October 14, 2012 (the "Renewal
Term"). Tenant's rights under this Section 1.2.5 shall be upon the following
terms and conditions and subject to the limitations hereinafter set forth:
(a) Tenant acknowledges that the Premises are
encumbered by an expansion option maintained by ▇▇▇▇ South Business Systems,
Inc. ("▇▇▇▇ South"), another tenant of the Building. If ▇▇▇▇ South exercises its
expansion option, Tenant's option to renew for the Renewal Term pursuant to this
Section 1.2.5 shall automatically terminate and be of no further force and
effect. If ▇▇▇▇ South does not exercise its expansion option, Tenant's option to
renew for the Renewal Term pursuant to the terms of this Section 1.2.5 shall
remain in full force and effect. Landlord shall give notice to Tenant whether or
not ▇▇▇▇ South has exercised its expansion option on or before March 14, 2007.
(b) At the time hereinafter set forth for the exercise
of a Renewal Term, this Lease shall be in full force and effect and Tenant shall
not be in default in the performance of any of the terms, covenants and
conditions herein contained which has not been remedied within the curd period
in this Lease as of the commencement of the Renewal Term.
(c) Except as in this Lease otherwise specifically
provided, the Renewal Term shall be upon the same terms, covenants and
conditions contained in this Lease, except that the annual Base Rent for the
Renewal Term shall be as follows:
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Annual Basic Rent
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per rentable square Monthly
------------------- -------
Period foot of the Premises Installments
------ -------------------- ------------
10/15/07 - 10/14/08 $18.96 $14,126.78
10/15/08 - 10/14/09 $19.43 $14,476.97
10/15/09 - 10/14/10 $19.92 $14,842.06
10/15/10 - 10/14/11 $20.42 $15,214.60
10/15/11 - 10/14/12 $20.93 $15,594.59
All other payments on the part of Tenant to be made as provided in this Lease
shall continue to be made during the Renewal Term including, without limiting
the generality of the foregoing, impositions, insurance premiums and other
expenses and charges paid by Tenant hereunder.
(d) Tenant shall exercise its right to extend the term of this
Lease for the Renewal Term by notifying Landlord, in writing, of its election to
exercise the right to renew and extend the term of this Lease on or before April
14, 2007.
(e) There shall be no further or additional right to renew
this Lease other than as is herein set forth. Any termination of this Lease
shall terminate any later right of renewal hereunder.
1.2.6 Acceleration of Expiration Date.
Notwithstanding anything contained in this Lease to the contrary,
Tenant may modify and accelerate the expiration date of the Term of this Lease
to December 31, 2004 (the "Accelerated Expiration Date"), so that the term of
this Lease shall expire on the Accelerated Expiration Date, by (a) providing
Landlord with written notice on or before March 31, 2004 (the "Notification
Date"), of its intent to modify the term of this Lease so that this Lease shall
expire as of the Accelerated Expiration Date, and (b) paying on or before the
Notification Date a fee (the "Termination Fee") in consideration for Landlord's
agreement to modify the term of this Lease in an amount equal to all real estate
commissions paid by Landlord in connection with this Lease multiplied by a
fraction, the numerator of which is 33 (i.e., the number of full calendar months
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remaining in the initial term as of the Accelerated Expiration Date), and the
denominator of which is the number of full calendar months in the Lease Term
described in the Basic Terms. Failure of Tenant to either (a) provide written
notice of its intent to accelerate on or before the Notification Date or (b) pay
the Termination Fee due hereunder on or before the Notification Date, shall
constitute a waiver of Tenant's right to accelerate the expiration date
hereunder. Tenant may accelerate the expiration of this Lease only for the
entire (and not a portion of) the Premises. The Termination Fee payable by
Tenant hereunder shall not be deemed to be Rent, but rather, shall be a fee paid
to Landlord in consideration of Landlord's agreement to permit the acceleration
of the expiration date of the Term of this Lease as provided in this Section
1.2.6.
1.3 Effect of Occupancy.
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Subject to the Warranty Terms, Tenant's occupancy of the Premises conclusively
establishes that Landlord completed the Improvements as required by this Lease
in a manner satisfactory to Tenant. Tenant's failure to strictly comply with the
Warranty Terms with respect to any item included as part of the Improvements
constitutes Tenants waiver and release of any and all rights, benefits, claims
or warranties available to Tenant trader this Lease, at law or in equity in
connection with each such item.
ARTICLE 2.
RENTAL AND OTHER PAYMENTS
2.1 Basic Rent.
Tenant will pay Basic Rent in monthly installments to Landlord, in advance,
without offset or deduction, commencing on the Rent Commencement Date and
continuing on the first day of each and every calendar month after the Rent
Commencement Date during the Term. Tenant will make all Basic Rent payments to
Property Manager at the address specified in the Basic Terms or at such other
place or in such other manner as Landlord may from time to time designate in
writing. Tenant will make all Basic Rent payments without Landlord's previous
demand, invoice or notice for payment. Landlord and Tenant will prorate, on a
per diem basis, Basic Rent for any partial month within the Term.
2.2 Additional Rent.
Article 3 of this Lease requires Tenant to pay certain Additional Rent
pursuant to estimates Landlord delivers to Tenant. Tenant will make all payments
of estimated Additional Rent in accordance with Sections 3.3 and 3.4 without
deduction or offset and without Landlord's previous demand, invoice or notice
for payment. Tenant will pay all other Additional Rent described in this Lease
that is not estimated under Sections 3.3 mid 3.4 within 10 days after receiving
Landlord's invoice for such Additional Rent. Tenant will make all Additional
Rent payments to the same location and, except as described in the previous
sentence, in the same manner as Tenant's Basic Rent payments.
2.3 Delinquent Rental Payments.
If Tenant does not pay any installment of Basic Rent or any Additional Rent
within five (5) Business Days after the date the payment is due, Tenant will pay
Landlord a late payment charge equal to 5% of the amount of the delinquent
payment. Landlord's right to such compensation for the delinquency is in
addition to all of Landlord's rights and remedies under this Lease, at law or in
equity.
2.4 Independent Obligations.
Notwithstanding any contrary term or provision of this Lease, Tenant's
covenant and obligation to pay Rent is independent from any of Landlord's
covenants, obligations, warranties or representations in tiffs Lease. Tenant
will pay Rent without may right of offset or deduction.
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2.5 Tax on Rent.
Tenant shall pay, also as Additional Rent, any sales tax or excise tax on
rents, gross receipts or other tax, (however described [excluding income
taxes]), which is levied or assessed by the United States of America or the
State or any political subdivision thereof, against Landlord in respect to the
Basic Rent, Additional Rent, or other charges reserved under this Lease or as a
result of Landlord's receipt of such rents or other charges accruing under this
Lease.
2.6 Letter of Credit.
To secure Tenant's obligations under this Lease, Tenant must provide a letter of
credit in the principal amount of $142,608.95 in accordance with the terms and
conditions set forth on EXHIBIT "G". Notwithstanding the foregoing, once Tenant
has paid to Landlord forty-eight full months of both Basic Rent and Additional
Rent pursuant to the terms and conditions of this Lease, this Section 2.6 shall
automatically terminate, and thereafter, Tenant shall not be required to provide
a letter of credit to Landlord.
ARTICLE 3.
PROPERTY TAXES AND OPERATING EXPENSES
3.1 Payment of Operating Expenses.
Tenant will pay, as Additional Rent and in the manner this Article 3
describes, Tenant's Share of Operating Expenses due and payable during any
calendar year of the Term. Landlord will prorate Tenant's Share of Operating
Expenses due and payable during the calendar year in which the Lease commences
or terminates as of the Commencement Date or termination date, as applicable, on
a per diem basis based on the number of days of the Term within such calendar
year.
3.2 Estimation of Tenant's Share of Operating Expenses.
Landlord will deliver to Tenant a written estimate of tile following for each
calendar year of the Term: (a) Operating Expenses, (b) Tenant's Share of
Operating Expenses Percentage and (c) the annual and monthly Additional Rent
attributable to Tenant's Share of Operating Expenses.
3.3 Payment of Estimated Tenant's Share of Operating Expenses.
Tenant will pay the amount Landlord estimates as Tenant's Share of Operating
Expenses under Section 3.2 for each calendar year of the Term in equal monthly
installments, in advance, on the first day of each month during such calendar
year. If Landlord has not delivered the estimates to Tenant by the first day of
January of the applicable calendar year, Tenant will continue paying Tenant's
Share of Operating Expenses based on Landlord's estimates for the previous
calendar year. When Tenant receives Landlord's estimates for the current
calendar year, Tenant will pay the estimated amount (less amounts Tenant paid to
Landlord in accordance
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with the immediately preceding sentence) in equal monthly installments over the
balance of such calendar year, with the number of installments being equal to
the number of full calendar months remaining in such calendar year.
3.4 Re-Estimation of Operating Expenses.
Landlord may re-estimate Operating Expenses from time to time during the Term.
In such event, Landlord will re-estimate the monthly Additional Rent
attributable to Tenant's Share of Operating Expenses to an amount sufficient for
Tenant to pay the re-estimated monthly amount over the balance of the calendar
year. Landlord will notify Tenant of the re-estimate and Tenant will pay the re-
estimated amount in the manner provided in the last sentence of Section 3.3.
3.5 Confirmation of Tenant's Share of Operating Expenses.
Within ninety (90) day after the end of each calendar year within the Term,
Landlord will determine the actual amount of Operating Expenses and Tenant's
Share of Operating Expenses for the expired calendar year and deliver to Tenant
a written statement of such amounts. If Tenant paid less than the actual amount
of Tenant's Share of Operating Expenses specified in the statement for the
previous year, Tenant will pay the difference to Landlord as Additional Rent in
the manner Section 2.2 describes. If Tenant paid more than the actual amount of
Tenant's Share of Operating Expenses specified in the statement for the previous
year, Landlord, at Landlord's option, will either (a) refund the excess amount
to Tenant, or (b) credit the excess amount against Tenant's next due monthly
installment or installments of estimated Additional Rent. If Landlord is delayed
in delivering such statement to Tenant, such delay does not constitute
Landlord's waiver of Landlord's rights under this section.
3.6 Tenant's Inspection and Audit Rights.
If Tenant is not in default in the performance of any of its Obligations under
this Lease beyond any applicable cure period, and Tenant disputes Landlord's
determination of the actual amount of Operating Expenses or Tenant's Share of
Operating Expenses for any calendar year and Tenant delivers to Landlord written
notice of the dispute within 30 days after Landlord's delivery of the statement
of such amount under Section 3.5, then Tenant (but not any subtenant), at its
sole cost and expense, upon prior written notice and during regular business
hours at a time and place reasonably acceptable to Landlord (which may be the
location where Landlord or Property Manager maintains the applicable records),
may cause a certified public accountant to audit Landlord's records relating to
the disputed amounts. Tenant's objection to Landlord's determination of
Operating Expenses or Tenant's Share of Operating Expenses is deemed withdrawn
unless Tenant completes and delivers the audit to Landlord within 60 days after
the date Tenant delivers its dispute notice to Landlord under this section. If
the audit shows that the amount Landlord charged Tenant for Tenant's Share of
Operating Expenses was greater than the amount this Article 3 obligates Tenant
to pay, then, unless Landlord reasonably contests the audit, Landlord will
refund the excess amount to Tenant, together with interest on the excess amount
at the Maximum Rate (computed from the date Tenant delivers its dispute notice
to Landlord) within 10 days after Landlord receives a copy of the audit report.
If the audit shows
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that the amount Landlord charged Tenant for Tenant's Share of Operating Expenses
was less than the amount this Article 3 obligates Tenant to pay, Tenant will pay
to Landlord, as Additional Rent, the difference between the amount Tenant paid
and the amount determined in the audit. Pending resolution of any audit under
this section, Tenant will continue to pay to Landlord the estimated amounts of
Tenant's Share of Operating Expenses in accordance with Sections 3.3 and 3.4.
Tenant must keep all information it obtains in any audit strictly confidential
and may only use such information for the limited purpose this section describes
and for Tenant's own account. If the audit reveals that the amount charged by
Landlord was five percent (5%) or more in excess of the audited amount, Landlord
shall pay the reasonable cost of such audit.
3.7 Annual Amendment to Tenant's Share of Operating Expenses Percentage.
Notwithstanding any contrary language in this Lease, Landlord may change
Tenant's Share of Operating Expenses Percentage each calendar year to the
percentage Landlord calculates by dividing the rentable area of the Premises by
the greater of (a) 95% of the rentable area of the Building for such calendar
year; or (b) the rentable area of the Building actually leased pursuant to
leases under which the terms have commenced for such calendar year. In no event
will Landlord include basement storage space or garage space in Landlord's
calculation of the rentable area of the Building. Landlord will notify Tenant of
such change, if any, at the time Landlord delivers its estimates to Tenant under
Section 3.2.
3.8 Personal Property Taxes.
Tenant, prior to delinquency, will pay all taxes charged against Tenant's
trade fixtures and other personal property. Tenant will use all reasonable
efforts to have such trade fixtures and other personal property taxed separately
from the Property. If any of Tenant's trade fixtures and other personal property
are taxed with the Property, Tenant will pay the taxes attributable to Tenant's
trade fixtures and other personal property to Landlord as Additional Rent.
3.9 Landlord's Right to Contest Property Taxes.
Landlord is not obligated to but may contest the amount or validity, in whole
or in part, of any Property Taxes. Landlord's contest will be at Landlord's sole
cost and expense, except that if Property Taxes are reduced (or if a proposed
increase is avoided or reduced) because of Landlord's contest, Landlord may
include in its computation of Property Taxes the costs and expenses Landlord
incurred in connection with the contest, including, but not limited to,
reasonable attorney's fees, up to the amount of any Property Tax reduction
Landlord realized from the contest or any Property Tax increase avoided or
reduced in connection with the contest, as the case may be. Tenant may not
contest Property Taxes.
3.10 Adjustment for Variable Operating Expenses.
Notwithstanding any contrary language in this Article 3, if 95% or more of the
rentable area of the Building is not occupied at all times during any calendar
year pursuant to leases under which the terms have commenced for such calendar
year, Landlord will reasonably and equitably
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adjust its computation of Operating Expenses for that calendar year to obligate
Tenant to pay all components of Operating Expenses that vary based on occupancy
in an amount equal to the amount Tenant would have paid for such components of
Operating Expenses had 95% of the rentable area of the Building been occupied at
all times during such calendar year pursuant to leases under which the terms
have commenced for such calendar year. Landlord will also equitably adjust
Operating Expenses to account for any Operating Expense any tenant of the
Building pays directly to a service provider.
3.11 Controllable Operating Expenses.
Notwithstanding anything contained in Article 3 to the contrary, the amount of
Controllable Operating Expenses (as hereinafter defined) included within the
calculation of Operating Expenses for the purpose of calculating Tenant's Share
of Operating Expenses for any given Lease Year shall not exceed one hundred five
and one-half percent (105.5%) of the Controllable Operating Expenses Cap (as
hereinafter defined) for the immediately preceding Lease Year. As used herein,
the term "Controllable Operating Expenses" shall mean all Operating Expenses
other than costs and expenses for Property Taxes, assessments (including, but
not limited to any office park assessments or association fees), utilities
(including, but not limited to electricity, fuel, water and sewer), phone
maintenance, refuse and/or trash removal, insurance and capital costs permitted
to be included in Operating Expenses. The term "Controllable Operating Expenses
Cap" shall mean the actual amount of Controllable Operating Expenses (as
adjusted pursuant to the provisions of Sections 3.7 and 3.10 hereof) for the
initial Lease Year, and for each succeeding Lease Year, one hundred five and
one-half percent (105.5%) of the Controllable Operating Expenses Cap for the
immediately preceding Lease Year, with the annual five and one-half percent
(5.5%) increase in the Controllable Operating Expenses Cap to be compounded each
year on a cumulative basis.
ARTICLE 4.
4.1 Permitted Use.
Tenant will not use the Premises for any purpose other than general office
purposes. Tenant will not use the Property or knowingly permit the Premises to
be used in violation of any Laws or in any manner that would (a) violate any
certificate of occupancy affecting the Property; (b) make void or voidable any
insurance now or after the Effective Date in force with respect to the Property;
(c) cause injury or damage to the Property or to the person or property of any
other tenant on the Property; or (d) constitute a public or private nuisance or
waste. Tenant will obtain and maintain, at Tenant's sole cost and expense, all
permits and approvals required under the Laws for Tenant's use of the Premises.
4.2 Acceptance of Premises.
Except for the Warranty Terms, Tenant acknowledges that neither Landlord nor
any agent, contractor or employee of Landlord has made any representation or
warranty of any kind with respect to the Premises, the Building or the Property,
specifically including, but not limited to, any representation or warranty of
suitability or fitness of the Premises, Building or the
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Property for any particular purpose. Subject to the Warranty Terms and any
latent defects, Tenant accepts the Premises, the Building and the Property in an
"AS IS - WHERE IS" condition.
4.3 Increased Insurance.
Tenant will not do on the Property or permit to be done on the Premises
anything that will (a) increase the premium of any insurance policy Landlord
carries coveting the Premises or the Property; (b) cause a cancellation of or be
in conflict with any such insurance policy; (c) result in any insurance
company's refusal to issue or continue any such insurance in amounts
satisfactory to Landlord; or (d) subject Landlord to any liability or
responsibility for injury to any person or property by reason of Tenant's
operations in the Premises or use of the Property. Tenant, at Tenant's sole cost
and expense, will comply with all rules, orders, regulations and requirements of
insurers and of the American Insurance Association or any other organization
performing a similar function. Tenant will reimburse Landlord, as Additional
Rent, for any additional premium charges for such policy or policies resulting
from Tenant's failure to comply with the provisions of this Section 4.3.
4.4 Laws/Building Rules.
This Lease is Subject and subordinate to all Laws. A copy of the current
Building Rules is attached to this Lease as EXHIBIT "E." Landlord may amend the
Building Rules from time to time in Landlord's sole and absolute discretion,
provided that they are uniformly applied to all tenants.
4.5 Common Area.
Landlord grants Tenant the non-exclusive right, together with all other
occupants of the Building and their agents, employees and invitees, to use the
Common Area during the Term, subject to all Laws. Landlord, at Landlord's sole
and exclusive discretion, may make changes to the Common Area. Landlord's rights
regarding the Common Area include, but are not limited to, the right to (a)
restrain unauthorized persons from using the Common Area; (b) place permanent or
temporary kiosks, displays, carts or stands in the Common Area and lease the
same to tenants; (c) temporarily close any portion of the Common Area (i) for
repairs, improvements or Alterations, (ii) to discourage unauthorized use, (iii)
to prevent dedication or prescriptive rights, or (iv) for any other reason
Landlord deems sufficient in Landlord's judgment; (d) change the shape and size
of the Common Area; (e) add, eliminate or change the location of any
improvements located in the Common Area and construct buildings or other
structures in the Common Area; and (f) impose and revise Building Rules
concerning use of the Common Area, including, but not limited to, any parking
facilities comprising a portion of the Common Area, provided that the parking
requirements of Section 4.7 are satisfied.
4.6 Signs.
Landlord will provide to Tenant (a) one building standard tenant
identification sign adjacent to the entry door of the Premises and (b) one
standard building directory listing. The
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signs will conform to Landlord's sign criteria. Landlord will maintain the signs
in good condition and repair during the Term at Tenant's sole cost and expense.
Tenant will not install or permit to be installed in the Premises any other
sign, decoration or advertising material of any kind that is visible from the
exterior of the Premises. Landlord may immediately remove, at Tenant's sole cost
and expense, any sign, decoration or advertising material that violates this
section.
4.7 Parking.
Tenant's rights to use the parking facilities in the Common Area shall be for
spaces in an amount equal to five (5) spaces per each one thousand (1,000)
rentable square feet of the Premises (i.e., a total of 45 spaces), forty-one
(41) of which shall be unreserved and four (4) of which shall be reserved spaces
in a location to be mutually agreed upon by Landlord and Tenant, on the first
(1st) floor of the parking facilities. Such parking spaces shall be provided to
Tenant at no charge throughout the Term of this Lease. Tenant agrees that its
use of such parking facilities shall not exceed the number of spaces provided in
this Section 4.7.
4.8 Additional Use Restrictions.
Tenant shall not permit the Premises to be used or occupied by any of the
following entities or by any entity, individual, corporation, partnership, or
limited liability company, which is established or exists to allow any one of
the following to occupy space in the Building: AT&T; Lucent Technologies;
Intermedia Communications (ICI); MCI WorldCom; TCG; Adelphia; WinnStar;
Nextlink; and e.spire.
Tenant shall not permit the Premises to be used for the operation of a
restaurant or food service operation; provided, however, this restriction is not
intended to and does not apply to or prohibit vending machines or outside
catering within the Premises by Tenant.
ARTICLE 5.
HAZARDOUS MATERIALS
5.1 Compliance with Hazardous Materials Laws.
Tenant will not cause any Hazardous Material to be brought upon, kept or used
on the Property in a manner or for a purpose prohibited by or that could result
in liability, under any Hazardous Materials Law. Tenant, at its sole cost and
expense, will comply with all Hazardous Materials Laws and prudent industry
practice relating to the presence, treatment, storage, transportation, disposal,
release or management of Hazardous Materials in, on, under or about the Property
required for Tenant's use of the Premises and will notify Landlord of any and
all Hazardous Materials Tenant brings upon, keeps or uses on the Property (other
than small quantities of office cleaning or other office supplies as are
customarily used by a tenant in the ordinary course in a general office
facility). On or before the expiration or earlier termination of this Lease,
Tenant, at its sole cost and expense, will completely remove from the Property
(regardless whether any Hazardous Materials Law requires removal), in compliance
with all Hazardous Materials Laws, all Hazardous Materials Tenant causes to be
present in, on, under or
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about the Property. Tenant will not take any remedial action in response to the
presence of any Hazardous Materials in on, under or about the Property, nor
enter into any settlement agreement, consent decree or other compromise with
respect to any Claims relating to or in any way connected with Hazardous
Materials in, on, under or about the Property, without first notifying Landlord
of Tenant's intention to do so and affording Landlord reasonable opportunity to
investigate, appear, intervene and otherwise assert and protect Landlord's
interest in the Property.
5.2 Notice of Actions.
Tenant will notify Landlord of any of the following actions affecting
Landlord, Tenant or the Property that result from or in any way relate to
Tenant's use of the Property immediately after receiving notice of the same: (a)
any enforcement, clean-up, removal or other governmental or regulatory action
instituted, completed or threatened under any Hazardous Materials Law; (b) any
Claim made or threatened by any person relating to damage, contribution,
liability, cost recovery, compensation, loss or injury resulting from or claimed
to result from any Hazardous Material; and (c) any reports made by any person,
including Tenant, to any environmental agency relating to any Hazardous
Material, including may complaints, notices, warnings or asserted violations.
Tenant will also deliver to Landlord, as promptly as possible and in any event
within five Business Days after Tenant first receives or sends the same, copies
of all Claims, reports, complaints, notices, warnings or asserted violations
relating in any way to the Premises or Tenant's use of the Premises. Upon
Landlord's written request, Tenant will promptly deliver to Landlord
documentation acceptable to Landlord reflecting the legal and proper disposal of
all Hazardous Materials removed or to be removed from the Premises. All such
documentation will list Tenant or its agent as a responsible party and will not
attribute responsibility for any such Hazardous Materials to Landlord or
Properly Manager.
5.3 Disclosure and Warning Obligations.
Tenant acknowledges and agrees that all reporting and wanting obligations
required under Hazardous Materials Laws resulting from or in any way relating to
Tenant's use of the Premises or Property are Tenant's sole responsibility,
regardless whether the Hazardous Materials Laws permit or require Landlord to
report or warn.
5.4 Indemnification.
Tenant will release, indemnify, defend (with counsel reasonably acceptable to
Landlord), protect and hold harmless the Landlord Parties from and against any
and all Claims whatsoever arising or resulting, in whole or in part, directly or
indirectly, from the presence, treatment, storage, transportation, disposal,
release or management of Hazardous Materials in, on, under, upon or from the
Property (including water tables and atmosphere) resulting from or in any way
related to Tenant's use of the Premises or Property. Tenant's obligations under
this section include, without limitation and whether foreseeable or
unforeseeable, (a) the costs of any required or necessary repair, clean-up,
detoxification or decontamination of the Property; (b) the costs of implementing
any closure, remediation or other required action in connection therewith as
stated above; (c) the value of any loss of use and any diminution in value of
the Property; and
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(d) consultants' fees, experts' fees and response costs. The obligations of
Tenant under this section survive the expiration or earlier termination of this
Lease.
5.5 Landlord's Representation Regarding Hazardous Materials
Landlord hereby represents and warrants to Tenant that to the actual knowledge
of Landlord, no Hazardous Materials exist on or within the Property in
quantities or amounts which would require remediation under applicable laws. The
term "actual knowledge" shall mean the actual knowledge of ▇▇▇▇ ▇▇▇▇ and ▇▇▇
▇▇▇▇▇▇ who are the parties directly responsible for the development of the
Building.
ARTICLE 6.
SERVICES
6.1 Landlord's Obligations.
Landlord will provide the following services, the costs of which are Operating
Expenses:
6.1.1 Janitorial Service.
Janitorial service in the Premises, five times per week, including
cleaning, trash removal, necessary dusting and vacuuming, maintaining towels,
tissue and other restroom supplies and such other work as is customarily
performed in connection with nightly janitorial services in office complexes
similar in construction, location, use and occupancy to the Property. Landlord
will also provide periodic interior and exterior window washing and cleaning and
waxing of uncarpeted floors in accordance with Landlord's schedule for the
Building.
6.1.2 Electrical Energy.
Electrical energy to the Premises for lighting and for operating office
machines for general office use. Electrical energy will be sufficient for Tenant
to operate personal computers and other equipment of similar low electrical
consumption, but will not be sufficient for lighting in excess of 6 ▇▇▇▇▇ per
square foot installed or for electrical convenience outlets in excess of 2 ▇▇▇▇▇
per square foot installed. Tenant will not use any equipment requiting
electrical energy in excess of the above standards without receiving Landlord's
prior written consent, which consent Landlord will not unreasonably withhold but
may condition on Tenant paying all costs of installing the equipment and
facilities necessary to furnish such excess energy and an amount equal to the
average cost per unit of electricity for the Building applied to the excess use
as reasonably determined either by an engineer selected by Landlord or by
submeter installed at Tenant's expense. Landlord will replace all lighting
bulbs, tubes, ballasts and starters within the Premises at Tenant's sole cost
and expense unless the costs of such replacement are included in Operating
Expenses. If such costs are not included in Operating Expenses, Tenant will pay
such costs as Additional Rent.
6.1.3 Heating, Ventilation and Air Conditioning.
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Hours, heating, ventilation and air conditioning to the
Premises sufficient to maintain, in Landlord's reasonable judgment, comfortable
temperatures in the Premises. During other times, Landlord will provide heat and
air conditioning upon Tenant's reasonable advance notice (not less than 3
hours). Tenant will pay Landlord, as Additional Rent, for such extended service
on an hourly basis at the prevailing rates Landlord reasonably establishes. If
extended service is not a continuation of the service Landlord furnished during
Business Hours, Landlord may require Tenant to pay for a minimum of one (1) hour
of such service. Landlord will provide air conditioning to the Premises based on
standard lighting and general office use only.
6.1.4 Water.
Hot and cold water from standard building outlets for lavatory, restroom
and drinking purposes.
6.1.5 Elevator Service.
Elevator service to be used by Tenant in common with other tenants.
Landlord may restrict Tenant's use of elevators for freight purposes to the
freight elevator and to hours Landlord reasonably determines. Landlord may limit
the number of elevators in operation at times other than Business Hours.
6.2 Tenant's Obligations.
Tenant is solely responsible for paying directly to the applicable utility
companies, prior to delinquency, all separately metered or separately charged
utilities, if any, to the Premises or to Tenant. Such separately metered or
charged amounts are not Operating Expenses. Except as provided in Sections 6.1
and 17.1, Tenant will also obtain and pay for all other utilities and services
Tenant requires with respect to the Premises (including, but not limited to,
hook-up and connection charges).
6.3 Other Provisions Relating to Services.
Except as otherwise provided in this Section 6.3, no interruption in, or
temporary stoppage of, any of the services this Article 6 describes is to be
deemed an eviction or disturbance of Tenant's use and possession of the
Premises, nor does any interruption or stoppage relieve Tenant from any
obligation this Lease describes, render Landlord liable for damages or entitle
Tenant to any Rent abatement. Landlord is not required to provide any heat, air
conditioning, electricity or other service in excess of that permitted by
voluntary or involuntary governmental guidelines or other Laws. Landlord has
the exclusive right and discretion to select the provider of any utility or
service to the Property and to determine whether the Premises or any other
portion of the Property may or will be separately metered or separately
supplied. Landlord reserves the right, from time to time, to make reasonable
and non-discriminatory modifications to the above standards for utilities and
services. Notwithstanding anything to the contrary set forth herein, in the
event that the essential services to the Premises (which the parties hereby
agree are electricity, water, sanitary sewer, elevator mad HVAC
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service) are interrupted and (i) the interruption continues for three (3) or
more consecutive business days from the date Landlord receives notice of such
interruption; (ii) the interruption is not caused by Tenant, the applicable
utility provider or other cause beyond Landlord's reasonable control; (iii) the
interruption renders all or a portion of the Premises untenantable; and (iv)
Tenant actually discontinues use of all or a portion of the Premises, then
commencing as of the fourth (4th) business day after such interruption begins,
Tenant shall be entitled to an abatement of Basic Rent and Additional Rent based
on the portion of the Premises which is untenantable and which Tenant has
discontinued using with such abatement to continue until the applicable services
have been materially restored by Landlord. Landlord shall use commercially
reasonable efforts to restore interrupted services.
6.4 Tenant Devices.
Tenant will not, without Landlord's prior written consent, use any apparatus
or device in or about the Premises that causes substantial noise, odor or
vibration. Tenant will not connect any apparatus or device to electrical current
or water except through the electrical and water outlets Landlord installs in
the Premises.
ARTICLE 7.
MAINTENANCE AND REPAIR
7.1 Landlord's Obligations.
Except as otherwise provided in this Lease, Landlord will repair and maintain
the following in first-class condition and repair: (a) the foundations, exterior
walls and roof of the Building; and (b) the electrical, mechanical, plumbing,
heating and air conditioning systems, facilities and components located in the
Building and used in common by all tenants of the Building. Landlord will also
maintain and repair Common Area (subject to all other terms and conditions of
this Lease relating to Common Area) and the windows, doors, plate glass and the
exterior surfaces of walls that are adjacent to Common Area. Landlord's repair
and maintenance costs under this Section 7.1 are Operating Expenses. Neither
Basic Rent nor Additional Rent will be reduced, nor will Landlord be liable, for
loss or injury to or interference with Tenant's property, profits or business
arising from or in connection with Landlord's performance of its obligations
under this Section 7.1.
7.2 Tenant's Obligations.
7.2.1 Maintenance of Premises.
Except as otherwise specifically provided in this Lease, Landlord is not
required to furnish any services or facilities, or to make, my repairs or
Alterations, in, about or to the Premises or the Property. Except as
specifically described in Section 7.1, Tenant assumes the full and sole
responsibility for the condition, operation, repair, replacement, maintenance
and management of the Premises. Except as specifically described in Section 7.1,
Tenant, at Tenant's sole cost and expense, will keep and maintain the Premises
(including, but not limited to, all non-structural interior portions, systems
and equipment; interior surfaces of exterior walls;
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interior moldings, partitions and ceilings; and interior electrical, lighting
and plumbing fixtures) in good order, condition mad repair, reasonable wear and
tear and damage from insured casualties excepted. Tenant will keep the Premises
in a neat and sanitary condition and will not commit any nuisance or waste in,
on or about the Premises or the Property. If Tenant damages or injures the
Common Area or any part of the Property other than the Premises, Landlord will
repair the damage and Tenant will pay Landlord for all uninsured costs and
expenses of Landlord in connection with the repair as Additional Rent. Tenant is
solely responsible for and to the fullest extent allowable under the Laws, will
release, indemnify, protect and defend Landlord against (with counsel reasonably
acceptable to Landlord) and hold Landlord harmless from, the cost of repairing,
and any Claims resulting from, any penetrations or perforations of the roof or
exterior walls of the Building Tenant causes. Tenant will maintain the Premises
in a first-class and fully operative condition. Tenant's repairs will be at
least equal in quality and workmanship to the original work and Tenant will make
the repairs in accordance with all Laws.
7.2.2 Alterations Required by Laws.
If any governmental authority requires any Alteration to the Building or
the Premises as a result of Tenant's particular use of the Premises or as a
result of any Alteration to the Premises made by or on behalf of Tenant, or if
Tenant's particular use of the Premises subjects Landlord or the Property to any
obligation under any Laws, Tenant will pay the cost of all such Alterations or
the cost of compliance, as the case may be. If any such Alterations are
Structural Alterations, Landlord will make the Structural Alterations; provided,
however, that Landlord may require Tenant to deposit with Landlord an amount
sufficient to pay the cost of the Structural Alterations (including, without
limitation, reasonable overhead and administrative costs). If the Alterations
are not Structural Alterations, Tenant will make the Alterations at Tenant's
sole cost and expense in accordance with Article 8.
ARTICLE 8.
CHANGES AND ALTERATIONS
8.1 Landlord Approval.
Tenant will not make any Structural Alterations to the Premises or any
Alterations to the Common Area. Tenant will not make any other Alterations
without Landlord's prior written consent, which consent Landlord will not
unreasonably withhold or delay; provided, however, that Landlord may impose
conditions in its reasonable discretion. Along with any request for Landlord's
consent, Tenant will deliver to Landlord plans and specifications for the
Alterations and names and addresses of all prospective contractors for the
Alterations. If Landlord approves the proposed Alterations, Tenant, before
commencing the Alterations or delivering (or accepting delivery of) any
materials to be used in connection with the Alterations, will deliver to
Landlord for Landlord's reasonable approval copies of all contracts, proof of
insurance required by Section 8.2, copies of any contractor safety programs,
copies of all necessary permits and licenses and such other information relating
to the Alterations as Landlord reasonably requests. Tenant will not commence the
Alterations before Landlord, in Landlord's reasonable discretion, approves the
foregoing deliveries. Tenant will construct all approved Alterations or cause
all approved Alterations to be constructed (a) promptly by a contractor Landlord
approves in writing
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in Landlord's reasonable discretion, (b) in a good and workmanlike manner, (c)
in compliance with all Laws, (d) in accordance with all orders, rules and
regulations of the Board of Fire Underwriters having jurisdiction over the
Premises and any other body exercising similar functions, and (e) in full
compliance with all of Landlord's rules and regulations applicable to third
party contractors, subcontractors and suppliers performing work at the Property.
8.2 Tenant's Responsibility for Cost and Insurance.
Tenant will pay the cost and expense of all Alterations, including, without
limitation, a reasonable charge for Landlord's review, inspection and
engineering time, and for any painting, restoring or repairing of the Premises
or the Building the Alterations occasion. Prior to commencing the Alterations,
Tenant will deliver the following to Landlord in form and amount reasonably
satisfactory to Landlord: (a) demolition (if applicable) and payment and
performance bonds, (b) builder's "all risk" insurance, (c) evidence that Tenant
and each of Tenant's contractors have in force liability insurance insuring
against construction related risks, in at least the form, amounts and coverages
required of Tenant under Article 10 and (d) copies of all applicable contracts
and of all necessary permits and licenses. The insurance policies described in
clauses (b) and (c) of this section must name Landlord, Landlord's lender (if
any) and Property Manager as additional insureds.
8.3 Construction Obligations and Ownership.
Landlord may inspect construction of the Alterations. Immediately after
completing the Alterations, Tenant will furnish Landlord with contractor
affidavits, full and final lien waivers and receipted bills coveting all labor
and materials expended and used in connection with the Alterations. Tenant will
remove any Alterations Tenant constructs in violation of this Article 8 within
10 days after Landlord's written request and in any event prior to the
expiration or earlier termination of this Lease. All Alterations Tenant makes or
installs (including all telephone, computer and other wiring and cabling located
within the walls of and outside the Premises, but excluding Tenant's movable
trade fixtures, furniture and equipment) become the property of Landlord upon
installation and, unless Landlord requires Tenant to remove the Alterations,
Tenant will surrender the Alterations to Landlord upon the expiration or earlier
termination of this Lease at no cost to Landlord.
8.4 Liens.
Tenant will keep the Property free from any mechanics', materialmens',
designers' or other liens arising out of any work performed, materials furnished
or obligations incurred by or for Tenant or any person or entity claiming by,
through or trader Tenant. Tenant will notify Landlord in writing 30 days prior
to commencing any Alterations in order to provide Landlord the opportunity to
record and post notices of non-responsibility or such other protective notices
available to Landlord under the Laws. If any such liens are filed and Tenant,
within 30 days after such filing, does not release or bond off the same of
record or provide Landlord with a bond or other surety satisfactory to Landlord
protecting Landlord and the Property against such liens, Landlord may, without
waiving its rights and remedies based upon such breach by Tenant and without
releasing Tenant from any obligation under this Lease, cause such liens to be
released by
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any means Landlord deems proper, including, but not limited to, paying the claim
giving rise to the lien or posting security to cause the discharge of the lien.
In such event, Tenant will reimburse Landlord, as Additional Rent, for all
amounts Landlord pays (including, without limitation, reasonable attorneys' fees
and costs).
NOTHING IN THIS LEASE SHALL BE DEEMED TO BE, OR CONSTRUED IN ANY WAY AS
CONSTITUTING, THE CONSENT OR REQUEST OF LANDLORD, EXPRESSED OR IMPLIED, BY
INFERENCE OR OTHERWISE, TO ANY PERSON, FIRM OR CORPORATION FOR THE PERFORMANCE
OF ANY LABOR OR THE FURNISHING OF ANY MATERIALS FOR ANY CONSTRUCTION,
REBUILDING, ALTERATION OR REPAIR OF OR TO THE PREMISES OR ANY PART THEREOF, NOR
AS GIVING TENANT ANY RIGHT, POWER OR AUTHORITY TO CONTRACT FOR OR PERMIT THE
RENDERING OF ANY SERVICES OR THE FURNISHING OF ANY MATERIALS WHICH MIGHT IN ANY
WAY GIVE RISE TO THE RIGHT TO FILE ANY LIEN AGAINST THE BUILDING OR LANDLORD'S
INTEREST IN THE PREMISES. TENANT SHALL NOTIFY ANY CONTRACTOR PERFORMING ANY
CONSTRUCTION WORK IN THE PREMISES ON BEHALF OF TENANT THAT THIS LEASE
SPECIFICALLY PROVIDES THAT THE INTEREST OF LANDLORD IN THE PREMISES SHALL NOT BE
SUBJECT TO LIENS FOR IMPROVEMENTS MADE BY TENANT, AND NO MECHANIC'S LIEN OR
OTHER LIEN FOR ANY SUCH LABOR, SERVICES, MATERIALS, SUPPLIES, MACHINERY,
FIXTURES OR EQUIPMENT SHALL ATTACH TO OR AFFECT THE STATE OR INTEREST OF
LANDLORD IN AND TO THE PREMISES, THE BUILDING, OR ANY PORTION THEREOF. IN
ADDITION, LANDLORD SHALL HAVE THE RIGHT TO POST AND KEEP POSTED AT ALL
REASONABLE TIMES ON THE PREMISES ANY NOTICES WHICH LANDLORD SHALL BE REQUIRED SO
TO POST FOR THE PROTECTION OF LANDLORD AND THE PREMISES FROM ANY SUCH LIEN.
TENANT AGREES TO PROMPTLY EXECUTE SUCH INSTRUMENTS IN RECORDABLE FORM IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF FLORIDA STATUTE 713.10.
8.5 Indemnification.
To the fullest extent allowable under the Laws, Tenant will release,
indemnify, protect, defend (with counsel reasonably acceptable to Landlord) and
hold harmless the Landlord Parties and the Property from and against any Claims
in any manner relating to or arising out of any Alterations or any other work
performed, materials furnished or obligations incurred by or for Tenant or any
person or entity claiming by, through or under Tenant.
ARTICLE 9.
RIGHTS RESERVED BY LANDLORD
9.1 Landlord's Entry.
Landlord and its authorized representatives may at all reasonable times and
upon reasonable notice to Tenant enter the Premises to: (a) inspect the
Premises; (b) show the Premises to prospective purchasers, mortgagees and
tenants; (c) post notices of non-responsibility or other protective notices
available under the Laws; or (d) exercise and perform
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Landlord's rights and obligations under this Lease. Landlord, in the event of
any emergency, may enter the Premises without notice to Tenant. Landlord's entry
into the Premises is not to be construed as a forcible or unlawful entry into,
or detainer of, the Premises or as an eviction of Tenant from all or any part of
the Premises. Tenant will also permit Landlord (or its designees) to erect,
install, use, maintain, replace and repair pipes, cables, conduits, plumbing and
vents, and telephone, electric and other wires or other items, in, to and
through the Premises if Landlord determines that such activities are necessary
or appropriate for properly operating and maintaining the Building, provided
Landlord shall use commercially reasonable efforts to minimize any interference
with Tenant's business operations.
9.2 Control of Property.
Landlord reserves all rights respecting the Property and Premises not
specifically granted to Tenant under this Lease, including, without limitation,
the right to: (a) change the name of the Building; (b) designate and approve all
types of signs, window coverings, internal lighting and other aspects of the
Premises and its contents that may be visible from the exterior of the Premises;
(c) grant any party the exclusive right to conduct any business or render any
service in the Building, provided such exclusive right to conduct any business
or render any service in the Building does not prohibit Tenant from any
permitted use for which Tenant is then using the Premises; (d) prohibit Tenant
from installing vending or dispensing machines of any kind in or about the
Premises other than those Tenant installs in the Premises solely for use by
Tenant's employees; (e) close the Building after Business Hours, except that
Tenant and its employees and invitees may access the Premises after Business
Hours in accordance with such rules and regulations as Landlord may prescribe
from time to time for security purposes; (f) install, operate and maintain
security systems that monitor, by closed circuit television or otherwise, all
persons entering or leaving the Building; (g) install and maintain pipes, ducts,
conduits, wires and structural elements in the Premises that serve other parts
or other tenants of the Building; and (h) retain and receive master keys or pass
keys to the Premises and all doors in the Premises. Notwithstanding the
foregoing, or the provision of any security-related services by Landlord,
Landlord is not responsible for the security of persons or property on the
Property and Landlord is not and will not be liable in any way whatsoever for
any breach of security not directly caused by the gross negligence of Landlord,
its agents or employees.
9.3 Lock Box Agent/Rent Collection Agent.
Landlord, from time to time, may designate a lock box collection agent or
other person to collect Rent. In such event, Tenant's payment of Rent to the
lock box collection agent or other person is deemed to have been made (a) as of
the date the lock box collection agent or other person receives Tenant's payment
(if the payment is not dishonored for any reason); or (b) if Tenant's payment is
dishonored for any reason, the date Landlord or Landlord's agent collects the
payment. Neither Tenant's payment of any amount of Rent to the lock box
collection agent or other person nor Landlord's or Landlord's agent's collection
of such amount if the payment is dishonored constitutes Landlord's waiver of any
default by Tenant in the performance of Tenant's obligations under this Lease or
Landlord's waiver of any of Landlord's rights or remedies under this Lease. If
Tenant pays any amount to the lock box collection agent or other person other
than the actual amount due Landlord, then Landlord's or Landlord's agent's
receipt
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or collection of such amount does not constitute an accord and satisfaction,
Landlord is not prejudiced in collecting the proper amount due Landlord and
Landlord may retain the proceeds of any such payment, whether restrictively
endorsed or otherwise, and apply the same toward amounts due and payable by
Tenant under this Lease.
9.4 Space Planning Substitution.
Upon not less than 45 days prior written notice to Tenant, Landlord may
relocate Tenant to other space of comparable size (and substantially identical
quality improvements) within the Building. Landlord will move or pay for moving
Tenant's personal property and equipment to the new space and will reimburse
Tenant for reasonable, documented out-of-pocket costs Tenant incurs in
connection with the relocation. Landlord will use its commercially diligent
efforts to ensure that any such move occurs outside of Business Hours and in a
manner which minimizes disruption to Tenant's business operations. Prior to or
concurrently with the relocation, Landlord will prepare, and the parties will
execute, an amendment to this Lease to evidence the relocation and make any
necessary changes to the Basic Terms resulting from the relocation.
ARTICLE 10.
INSURANCE
10.1 Tenant's Insurance Obligations.
Tenant, at all times during the Term and during any early occupancy period, at
Tenant's sole cost and expense, will maintain the insurance this Section 10.1
describes.
10.1.1 Liability Insurance.
Commercial general liability insurance (providing coverage at least as broad
as the current ISO form) with respect to the Premises and Tenant's activities in
the Premises and upon and about the Property, on an "occurrence" basis, with
minimum limits of $1,000,000 each occurrence and $3,000,000 general aggregate.
Such insurance must include specific coverage provisions or endorsements (a) for
broad form contractual liability insurance insuring Tenant's obligations under
this Lease; (b) naming Landlord and Property Manager as additional insureds by
ma "Additional Insured - Managers or Lessors of Premises" endorsement (or
equivalent coverage or endorsement); (c) waiving the insurer's subrogation
rights against all Landlord Parties; (d) providing Landlord with at least 30
days prior notice of modification, cancellation, non-renewal or expiration; and
(e) expressly stating that Tenant's insurance will be provided on a primary and
non-contributory basis. If Tenant provides such liability insurance under a
blanket policy, the insurance must be made specifically applicable to the
Premises and this Lease on a "per location" basis. `
10.1.2 Property Insurance.
At Tenant's option, property insurance providing coverage at least as broad as
the current ISO Special Form ("all-risks") policy in an amount not less than the
full insurable replacement cost of all of Tenant's trade fixtures and other
personal property within the Premises and
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including business income insurance coveting at least nine months loss of income
from Tenant's business in the Premises. If Tenant provides such property
insurance under a blanket policy, the insurance must include "agreed amount, no
coinsurance" provisions.
10.1.3 Other Insurance.
Such other insurance as may be required by any Laws from time to time or may
reasonably be required by Landlord from time to time. If insurance obligations
generally required of tenants in similar space in similar office buildings in
the area in which the Premises is located increase or otherwise change, Landlord
may likewise increase or otherwise change Tenant's insurance obligations under
this Lease.
10.1.4 Miscellaneous Insurance Provisions.
All of Tenant's insurance will be written by companies rated at least "Best A-
VII" and licensed in the State. Tenant will deliver a certified copy of each
policy, or other evidence of insurance satisfactory to Landlord, (a) on or
before the Commencement Date (and prior to any earlier occupancy by Tenant), (b)
not later than 30 days prior to the expiration of any current policy or
certificate, and (c) at such other times as Landlord may reasonably request
(provided Landlord shall make such a request no more frequently than 2 times in
any 12-month period and only in connection with a sale, financing, or
refinancing of the Land or Building). If Landlord allows Tenant to provide
evidence of insurance by certificate, Tenant will deliver an ▇▇▇▇▇ Form 27
certificate and will attach or cause to be attached to the certificate copies of
the endorsements this Section 10.1 requires (including specifically, but without
limitation, the "additional insured" endorsement). Tenant's insurance must
permit releases of liability and provide for waiver of subrogation as provided
in Section 10.1.5.
10.1.5 Tenant's Waiver and Release of Claims and Subrogation.
To the extent not prohibited by the Laws, Tenant, on behalf of Tenant and its
insurers, waives, releases and discharges the Landlord Parties from all Claims
arising out of personal injury or damage to or destruction of the Premises,
Property or Tenant's trade fixtures, other personal property or business, and
any loss of use or business interruption, occasioned by any fire or other
casualty or occurrence whatsoever (whether similar or dissimilar), regardless
whether any such Claim results from the negligence or fault of any Landlord
Party or otherwise, and Tenant will look only to Tenant's insurance coverage
(regardless whether Tenant maintains any such coverage) in the event of any such
Claim. Tenant's trade fixtures, other personal property and all other property
in Tenant's care, custody or control, are located at the Property at Tenant's
sole risk. Landlord is not liable for any damage to such property or for any
theft, misappropriation or loss of such property. Tenant is solely responsible
for providing such insurance as may be required to protect Tenant, its employees
and invitees against any injury, loss, or damage to persons or property
occurring in the Premises or at the Property, including, without limitation, any
loss of business or profits from any casualty or other occurrence at the
Property.
10.1.6 No Limitation.
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Landlord's establishment of minimum insurance requirements is not a
representation by Landlord that such limits are sufficient and does not limit
Tenant's liability under this Lease in any manner.
10.2 Landlord's Insurance Obligations.
Landlord will (except for the optional coverages and endorsements Section
10.2.1 describes) at all times during the Term maintain the insurance this
Section 10.2 describes. All premiums and other costs and expenses Landlord
incurs in connection with maintaining such insurance are Operating Expenses.
10.2.1 Property Insurance.
Property insurance on the Building in an amount not less than the full
insurable replacement cost of the Building insuring against loss or damage by
fire and such other risks as are covered by the current ISO Special Form policy.
Landlord, at its option, may obtain such additional coverages or endorsements as
Landlord deems appropriate or necessary, including, without limitation,
insurance covering foundation, grading, excavation and debris removal costs;
business income and rents insurance; earthquake insurance; flood insurance; and
other coverages. Landlord may maintain such insurance in whole or in part under
blanket policies. Such insurance will not cover or be applicable to any property
of Tenant within the Premises or otherwise located at the Property.
10.2.2 Liability Insurance.
Commercial general liability insurance against claims for bodily injury,
personal injury, and property damage occurring at the Property in such amounts
as Landlord deems necessary or appropriate. Such liability insurance will
protect only Landlord and, at Landlord's option, Landlord's lender and some or
all of the Landlord Parties, and does not replace or supplement the liability
insurance this Lease obligates Tenant to carry.
10.2.3 Landlord's Waiver and Release of Claims and Subrogation.
To the extent not expressly prohibited by the Laws, Landlord, on behalf of
Landlord and its insurers, waives, releases and discharges Tenant from all
claims or demands whatsoever arising out of damage to or destruction of the
Property, or loss of use of the Property, occasioned by fire or other casualty,
regardless whether any such claim or demand results from the negligence or fault
of Tenant, or other, vise, and Landlord will look only to Landlord's insurance
coverage (regardless whether Landlord maintains any such coverage) in the event
of any such claim. Notwithstanding the foregoing, Tenant will continue paying
Rent without any right of abatement, to the extent Landlord does not receive
rent interruption insurance proceeds, and to the extent Tenant's negligence or
fault causes or contributes to any damage to the Premises or the Property.
Landlord's policy or policies of property insurance will permit releases of
liability and will provide for waiver of subrogation as provided in this
section.
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10.3 Tenant's Indemnification of Landlord.
In addition to Tenant's other indemnification obligations in this Lease but
subject to Landlord's agreements in Section 10.2, Tenant, to the fullest extent
allowable under the Laws, will release, indemnify, protect, defend (with counsel
reasonably acceptable to Landlord) and hold harmless the Landlord Parties from
and against all Claims arising from (a) any breach or default by Tenant in the
performance of any of Tenant's covenants or agreements in this Lease, (b) any
act, omission, negligence or misconduct of Tenant, (c) any accident, injury,
occurrence or damage in, about or to the Premises, and (d) to the extent caused
in whole or in part by Tenant, any accident, injury, occurrence or damage in,
about or to the Property.
10.4 Tenant's Waiver.
In addition to the other waivers of Tenant described in this Lease and to the
extent not expressly prohibited by the Laws, Landlord and the other Landlord
Parties are not liable for, and Tenant waives, any and all Claims against
Landlord and the other Landlord Parties for any damage to Tenant's trade
fixtures, other personal property or business, and any loss of use or business
interruption, resulting directly or indirectly from (a) any existing or future
condition, defect, matter or thing in the Premises or on the Property, (b) any
equipment or appurtenance becoming out of repair, (c) any occurrence, act or
omission of any Landlord Party, any other tenant or occupant of the Building or
any other person. This section applies especially, but not exclusively, to
damage caused by the flooding of basements or other subsurface areas and by
refrigerators, sprinkling devices, air conditioning apparatus, water, snow,
frost, steam, excessive heat or cold, falling plaster, broken glass, sewage,
gas, odors, noise or the bursting or leaking of pipes or plumbing fixtures. The
waiver this section describes applies regardless whether any such damage results
from an act of God, an act or omission of other tenants or occupants of the
Property or an act or omission of any other person.
10.5 Tenant's Failure to Insure.
Notwithstanding `may contrary language in this Lease and any notice and cure
rights this Lease provides Tenant, if Tenant fails to provide Landlord with
evidence of insurance as required under Section 10.1.4, Landlord may assume that
Tenant is not maintaining the insurance Section 10.1 requires Tenant to maintain
and Landlord may, but is not obligated to, without further demand upon Tenant or
notice to Tenant and without giving Tenant any cure right or waiving or
releasing Tenant from any obligation contained in this Lease, obtain such
insurance for Landlord's benefit. In such event, Tenant will pay to Landlord, as
Additional Rent, all costs and expenses Landlord incurs obtaining such
insurance. Landlord's exercise of its rights under this section does not relieve
Tenant from any default under this Lease.
ARTICLE 11.
DAMAGE OR DESTRUCTION
11.1 Tenantable Within 180 Days.
Except as provided in Section 11.3, if fire or other casualty renders the
whole or any
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material part of the Premises untenantable and Landlord determines (in
Landlord's reasonable discretion) that it can make the Premises tenantable
within 180 days alter the date of the casualty, then Landlord will notify Tenant
that Landlord will repair and restore the Building and the Premises to as near
their condition prior to the casualty as is reasonably possible within the 180
day period(subject to delays caused by Tenant Delays or Force Majeure). Landlord
will provide the notice within 30 days after the date of the casualty. In such
case, this Lease remains in full force and effect, but, except as provided in
Section 10.2.3, Basic Rent and Tenant's Share of Operating Expenses for the
period during which the Premises are untenantable ▇▇▇▇▇ pro rata (based upon the
rentable area of the untenantable portion of the Premises as compared with the
rentable area of the entire Premises).
11.2 Not Tenantable Within 180 Days.
If fire or other casualty renders the whole or any material part of the
Premises untenantable and Landlord determines (in Landlord's reasonable
discretion) that it cannot make the Premises tenantable within 180 days after
the date of the casualty, then Landlord will so notify Tenant within 30 days
alter the date of the casualty and may, in such notice, terminate this Lease
effective on the date of Landlord's notice. If Landlord does not terminate this
Lease as provided in this section, Tenant may terminate this Lease by notifying
Landlord within 30 days after the date Of Landlord's notice, which termination
will be effective 30 days after the date of Tenant's notice (subject to Tenant's
abatement rights described in this Article 11).
11.3 Building Substantially Damaged.
Notwithstanding the terms and conditions of Section 11.1, if the Building is
damaged or destroyed by fire or other casualty (regardless whether the Premises
is affected) and either (a) fewer than 15 months remain in the Term, or (b) the
damage reduces the value of the improvements on the Property by more than 50%
(as Landlord reasonably determines value before and after the casualty), then,
regardless whether Landlord determines (in Landlord's reasonable discretion)
that it can make the Building tenantable within 180 days after the date of the
casualty, Landlord, at Landlord's option, by notifying Tenant within 30 days
after the casualty, may terminate tiffs Lease effective on the date of
Landlord's notice (subject to Tenant's abatement rights described in this
Article 11).
11.4 Insufficient Proceeds.
Notwithstanding any contrary language in this Article 11, if this Article 11
obligates Landlord to repair damage to the Premises or building caused by afire
or other casualty and Landlord does not receive sufficient insurance proceeds
(excluding any deficiency caused by the amount of any policy deductible) to
repair all of the damage (provided that such insufficiency is not due to
Landlord's failure to carry the insurance required under Section 10 above), or
if Landlord's lender does not allow Landlord to use sufficient proceeds to
repair all of the damage, then Landlord, at Landlord's option, by notifying
Tenant within 30 days after the casualty, may terminate this Lease effective on
the date of Landlord's notice.
11.5 Landlord's Repair Obligations.
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If this Lease is not terminated under Sections 11.2 through 11.4 following
a fire or other casualty, then Landlord will repair and restore the Premises and
the Building to as near their condition prior to the fire or other casualty as
is reasonably possible with all commercially reasonable diligence and speed
(subject to delays caused by Tenant Delay or Force Majeure) and, except as
provided in Section 10.2.3, Basic Rent and Tenant's Share of Operating Expenses
for the period during which the Premises are untenantable will ▇▇▇▇▇ pro rata
(based upon the rentable area of the untenantable portion of the Premises as
compared with the rentable area of the entire Premises). In no event is Landlord
obligated to repair or restore any Alterations or Tenant's Improvements that are
not covered by Landlord's insurance, any special equipment or improvements
installed by Tenant, any personal property, or any other property of Tenant.
Landlord will, if necessary, equitably adjust Tenant's Share of Operating
Expenses Percentage, subject to Section 3.7, to account for any reduction in the
rentable area of the Premises or Building resulting from a casualty.
11.6 Rent Apportionment Upon Termination.
If either Landlord or Tenant terminates this Lease under this Article 11,
Landlord will apportion Basic Rent and Tenant's Share of Operating Expenses on a
per diem basis and Tenant will pay the Basic Rent and Tenant's Share of
Operating Expenses to the date of the fire or other casualty (provided that if a
portion of the Premises is rendered untenantable, but the remaining portion is
tenantable, then, except as provided in Section 10.2.3, Tenant's obligation to
pay Basic Rent and Tenant's Share of Operating Expenses abates pro rata [based
upon the rentable area of the untenantable portion of the Premises divided by
the rentable area of the entire Premises] from the date of the casualty and
Tenant will pay the unabated portion of the Rent to the date of such
termination).
11.7 Exclusive Casualty Remedy.
The provisions of this Article 11 are Tenant's sole and exclusive rights
and remedies in the event of a casualty. To the extent permitted by the Laws,
Tenant waives the benefits of any Law that provides Tenant any abatement or
termination rights (by virtue of a casualty) not specifically described in this
Article 11.
ARTICLE 12.
EMINENT DOMAIN
12.1 Termination of Lease.
If a Condemning Authority desires to effect a Taking of all or any material
part of the Property, Landlord will notify Tenant and Landlord and Tenant will
reasonably determine whether the Taking will render the Premises unsuitable for
Tenant's intended purposes. If Landlord and Tenant conclude that the Taking
will render the Premises unsuitable for Tenant's intended purposes, Landlord and
Tenant will document such determination and this Lease will terminate as of the
date the Condemning Authority takes possession of the portion of the Property
taken. Tenant will pay Rent to the date of termination. If a Condemning
Authority
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takes all or any material part of the Building or if a Taking reduces the value
of the Property by 50% or more (as reasonably determined by Landlord),
regardless whether the Premises is affected, then Landlord, at Landlord's
option, by notifying Tenant prior to the date the Condemning Authority takes
possession of the portion of the Property taken, may terminate this Lease
effective on the date the Condemning Authority takes possession of the portion
of the Property taken.
12.2 Landlord's Repair Obligations.
If this Lease does not terminate with respect to the entire Premises under
Section 12.1 and the Taking includes a portion of the Premises, this Lease
automatically terminates as to the portion of the Premises taken as of the date
the Condemning Authority takes possession of the portion taken and Landlord
will, at its sole cost and expense, restore the remaining portion of the
Premises to a complete architectural unit with all commercially reasonable
diligence and speed and will reduce the Basic Rent for the period after the date
the Condemning Authority takes possession of the portion of the Premises taken
to a sum equal to the product of the Basic Rent provided for in this Lease
multiplied by a fraction, the numerator of which is the rentable area of the
Premises after the Taking and after Landlord restores the Premises to a complete
architectural unit, and the denominator of which is the rentable area of the
Premises prior to the Taking. Landlord will also equitably adjust Tenant's
Share of Operating Expenses Percentage for the same period, subject to Section
3.7, to account for the reduction in the rentable area of the Premises or the
Building resulting from the Taking. Tenant's obligation to pay Basic Rent and
Tenant's Share of Operating Expenses will ▇▇▇▇▇ on a proportionate basis with
respect to that portion of the Premises remaining after the Taking that Tenant
is unable to use during Landlord's restoration for the period of time that
Tenant is unable to use such portion of the Premises.
12.3 Tenant's Participation.
Landlord is entitled to receive and keep all damages, awards or payments
resulting from or paid on account of a Taking. Accordingly, Tenant waives and
assigns to Landlord any interest of Tenant in any such damages, awards or
payments. Tenant may prove in any condemnation proceedings and may receive any
separate award for damages to or condemnation of Tenant's movable trade fixtures
and equipment and for moving expenses; provided however, that Tenant has no
right to receive any award for its interest in this Lease or for loss of
leasehold.
12.4 Exclusive Taking Remedy.
The provisions of this Article 12 are Tenant's sole and exclusive rights
and remedies in the event of a Taking. To the extent permitted by the Laws,
Tenant waives the benefits of any Law that provides Tenant any abatement or
termination rights or any right to receive any payment or award (by virtue of a
Taking) not specifically described [n this Article 12.
ARTICLE 13.
TRANSFERS
13.1 Restriction on Transfers.
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13.1.1 General Prohibition.
Except as set forth in Section 13.1.2, Tenant will not cause or suffer a
Transfer without obtaining Landlord's prior written consent, which shall not be
unreasonably withheld, conditioned, or delayed. Landlord may also, at
Landlord's option by notifying Tenant, recapture any portion of the Premises
that would be affected by such Transfer. Tenant's request for consent to a
Transfer must describe in detail the parties, terms and portion of the Premises
affected. Landlord will notify Tenant of Landlord's election to consent,
withhold consent and/or recapture within 20 days after receiving Tenant's
written request for consent to the Transfer. Tenant will, in connection with
requesting Landlord's consent, provide Landlord with a copy of any and all
documents and information regarding the proposed Transfer and the proposed
transferee as Landlord reasonably requests. No Transfer, including, without
limitation, a Transfer trader Section 13.1.2, releases Tenant from any liability
or obligation under this Lease and Tenant remains liable to Landlord after such
a Transfer as a principal and not as a surety. In no event may Tenant cause or
suffer a Transfer to another tenant of the Building. Any attempted Transfer in
violation of this Lease is null and void and constitutes a breach of this Lease.
13.1.2 Transfers to Affiliates.
Tenant, without Landlord's consent (provided that Tenant is not in default
in the performance of its obligations under this Lease beyond any applicable
cure period), may cause a Transfer to an Affiliate if Tenant (a) notifies
Landlord at least 30 days prior to such Transfer; (b) delivers to Landlord, at
the time of Tenant's notice, current financial statements of Tenant and the
proposed transferee that are reasonably acceptable to Landlord; and (c) the
transferee assumes and agrees in a writing reasonably acceptable to Landlord to
perform Tenant's obligations under this Lease and to observe all terms and
conditions of this Lease. Landlord's right described in Section 13.1.1 to share
in any profit Tenant receives from a Transfer permitted under this Section
13.1.2 mad Landlord's recapture right under Section 13.1.1 does not apply to any
Transfer this Section 13.1.2 permits.
13.2 Costs.
Tenant will pay to Landlord, as Additional Rent, all costs and expenses
Landlord incurs in connection with any Transfer, including, without limitation,
reasonable attorneys' fees and costs (not to exceed $1,000), regardless whether
Landlord consents to the Transfer.
ARTICLE 14.
DEFAULTS; REMEDIES
14.1 Events of Default.
The occurrence of any of the following constitutes an "Event of Default" by
Tenant under this Lease:
14.1.1 Failure to Pay Rent.
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Tenant fails to pay Basic Rent, any monthly installment of Tenant's Share
of Operating Expenses or any other Additional Rent amount as and when due and
such failure continues for ten (10) days after Landlord notifies Tenant in
writing; provided however, Landlord shall only be required to give one notice of
late payment and opportunity to cure to Tenant in any 12 month period, and a
second late payment (i.e., not paid by the 1st of the month) within any 12 month
period shall constitute an Event of Default without right of notice or
opportunity to cure.
14.1.2 Failure to Perform.
Tenant breaches or fails to perform any of Tenant's nonmonetary obligations
under this Lease and the breach or failure continues for a period of 30 days
after Landlord notifies Tenant of Tenant's breach or failure; provided that if
Tenant cannot reasonably cure its breach or failure within a 30 day period,
Tenant's breach or failure is not an Event of Default if Tenant commences to
cure its breach or failure within the 30 clay period and thereafter diligently
pursues the cure and effects the cure within a period of time that does not
exceed 75 days after the expiration of the 30 day period. Notwithstanding any
contrary language contained in this Section 14.1.2, Tenant is not entitled to
any notice or cure period before an incurable breach of this Lease (or failure)
becomes an Event of Default.
14.1.3 Misrepresentation.
The existence of any material misrepresentation or omission in any
financial statements, correspondence or other information provided to Landlord
by or on behalf of Tenant or any Guarantor in connection with (a) Tenant's
negotiation or execution of this Lease; (b) Landlord's evaluation of Tenant as a
prospective tenant at the Property; (c) any proposed or attempted Transfer; or
(d) any consent or approval Tenant requests under this Lease.
14.1.4 Intentionally Deleted.
14.1.4 Other Defaults.
(a) Tenant makes a general assignment or general arrangement for the
benefit of creditors;
(b) a petition for adjudication of bankruptcy or for reorganization or
rearrangement is filed by Tenant;
(c) a petition for adjudication of bankruptcy or for reorganization or
rearrangement is filed against Tenant and is not dismissed within 60 days;
(d) a trustee or receiver is appointed to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease and possession is not restored to Tenant within 30 days; or
(e) substantially all of Tenant's assets, substantially all of Tenant's
assets located at
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the Premises or Tenant's interest in this Lease is subjected to attachment,
execution or other judicial seizure not discharged within 30 days. If a court of
competent jurisdiction determines that any act described in this section does
not constitute an Event of Default, and the court appoints a trustee to take
possession of the Premises (or if Tenant remains a debtor in possession of the
Premises) and such trustee or Tenant Transfers Tenant's interest hereunder, then
Landlord is entitled to receive, as Additional Rent, the amount by which the
Rent (or any other consideration) paid in connection with the Transfer exceeds
the Rent otherwise payable by Tenant under this Lease.
14.1.5 Notice Requirements.
The notices required by this Section 14.1 are intended to satisfy any and
all notice requirements imposed by the Laws and are not in addition to any such
requirements.
14.2 Remedies.
In the event any default or breach specified above in Section 14.1 occurs
and is not cured within any applicable cure period, Landlord may at ,any time
thereafter, with or without notice or demand and without limiting Landlord in
the exercise of any other right or remedy which Landlord may have by reason of
such default or breach:
14.2.1 Termination of Tenant's Right to Possession of the Premises.
Terminate Tenant's right to possession of the Premises by any lawful means,
in which case this Lease shall terminate and Tenant shall immediately surrender
possession of the Premises to Landlord. In such event Landlord shall be entitled
to recover from Tenant all damages incurred by Landlord by reason of Tenant's
default including, but not limited to, the cost of recovering possession of the
Premises, expenses of reletting, including necessary renovation and alteration
of the Premises, reasonable attorney's fees, and any real estate commission
actually paid or required to be paid.
14.2.2 Right of Re-Entry and Reletting.
Reenter And take possession of the Premises and relet the same for Tenant's
account, holding Tenant liable for all damages and expenses incurred by Landlord
in any such reletting and for any difference between the amount of rents
received from such reletting and those due and payable under the terms of this
Lease. Landlord shall have the right, and shall use its commercially reasonable
efforts, to lease or let the Premises or portions thereof (provided any
subdivision shall be undertaken only if Landlord, in Landlord's reasonable
discretion, determines that such subdivision is economically and physically
prudent) for such periods of time and such rentals and for such use and upon
such covenants and conditions as Landlord, in its sole discretion, may elect,
and Landlord may make such repairs and improvements to the Premises as may be
necessary. Landlord shall be entitled to bring such actions or proceedings for
the recovery of any deficits due to Landlord as it may deem advisable, without
being obligated to wait until the end of the term, and commencement or
maintenance of any one or more actions shall not bar Landlord from bringing
other or subsequent actions for further accruals, nor shall
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anything in this Subsection 14.2.2 limit or prohibit Landlord's right at any
time to accelerate all rents and charges due from Tenant to the end of the term,
or to terminate this Lease by giving notice to Tenant;
14.2.3 Acceleration of Rent.
Declare all rents and charges due hereunder to be immediately due and
payable and thereupon all such amounts due to the end of the term shall
thereupon be accelerated; provided, however, such accelerated amounts shall be
discounted to their then present value on the basis of a five percent (5%) per
annum discount from the respective dates that such amounts would have been paid
hereunder. In the event that any charges due hereunder cannot be exactly
determined as of the date of acceleration, the amount of such charges shall be
determined by Landlord in a reasonable manner based on historical increases in
such charges.
14.2.4 Other Remedies.
Pursue any other remedy now or hereafter available to Landlord under the
laws or judicial decisions of the State.
14.3 Costs.
Tenant will reimburse and compensate Landlord on demand and as Additional
Rent for any actual loss Landlord incurs in connection with, resulting from or
related to any breach or default of Tenant under tiffs Lease, regardless whether
the breach or default constitutes an Event of Default, and regardless whether
suit is commenced or judgment is entered. Such loss includes all reasonable
legal fees, costs and expenses (including paralegal fees and other professional
fees and expenses) Landlord incurs investigating, negotiating, settling or
enforcing any of Landlord's rights or remedies or otherwise protecting
Landlord's interests under this Lease. Tenant will also indemnify, defend (with
counsel reasonably acceptable to Landlord), protect and hold harmless the
Landlord Parties from and against all Claims Landlord or any of the other
Landlord Parties incurs if Landlord or any of the other Landlord Parties becomes
or is made a party to any claim or action (a) instituted by Tenant or by or
against any person holding any interest in the Premises by, under or through
Tenant; (b) for foreclosure of any lien for labor or material furnished to or
for Tenant or such other person; or (c) otherwise arising out of or resulting
from any act or omission of Tenant or such other person. In addition to the
foregoing, Landlord is entitled to reimbursement of all of Landlord's fees,
expenses and damages, including, but not limited to, reasonable attorneys' fees
and paralegal and other professional fees and expenses, Landlord incurs in
connection with protecting its interests in any bankruptcy or insolvency
proceeding involving Tenant, including, without limitation, any proceeding under
any chapter of the Bankruptcy Code; by exercising and advocating rights under
Section 365 of the Bankruptcy Code; by proposing a plan of reorganization and
objecting to competing plans; and by filing motions for relief from stay. Such
fees and expenses are payable oil demand, or, in any event, upon assumption or
rejection of this Lease in bankruptcy.
14.4 Waiver and Release by Tenant.
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Tenant waives and releases all Claims Tenant may have resulting from
Landlord's reentry and taking possession of the Premises by any lawful means and
removing and storing Tenant's property as permitted under this Lease, regardless
whether this Lease is terminated, and, to the fullest extent allowable under the
Laws, Tenant will release, indemnify, defend (with counsel reasonably acceptable
to Landlord), protect and hold harmless the Landlord Parties from and against
any and all Claims occasioned thereby. No such reentry is to be considered or
construed as a forcible entry by Landlord.
14.5 Landlord's Default.
If Landlord defaults in the performance of any of its obligations under
this Lease, Tenant will notify Landlord of the default and Landlord will have 30
days after receiving such notice to cure the default. If Landlord is not
reasonably able to cure the default within a 30 day period, Landlord will have
an additional reasonable period of time to cure the default as long as Landlord
commences the cure within the 30 day period and thereafter diligently pursues
the cure. In no event is Landlord liable to Tenant or any other person for
consequential, special or punitive damages, including, without limitation, lost
profits. Upon Landlord's failure to cure or undertake to cure any failure of its
performance of its obligations as set forth in this Lease beyond the grace and
cure periods set forth in this Section 14.5 Tenant, at its option, but without
obligation, may, upon an additional five (5) days notice to Landlord and
Landlord's failure to cure or commencing to cure such default within said five
(5) day period and thereafter reasonably and diligently pursue to cure such
matter within such five (5) day period, perform such acts and pay such amounts
as are reasonably necessary to cure such default by Landlord, and Landlord shall
reimburse Tenant for the costs reasonably incurred in connection therewith
within thirty (30) days following receipt of Tenant's invoice together with
supporting backup documentation including paid receipts as reasonably required
by Landlord. If such amounts are not paid by Landlord within said thirty (30)
days following Tenant's request for same, Tenant shall have the right to offset
such sums against the basic rent under this Lease subject to the following:
(a) The monthly amount of such offset shall not exceed the greater of (i)
twenty-five percent (25%) of the monthly Basic Rent payable by Tenant hereunder,
or (ii) an amount of the monthly Basic Rent payable hereunder which is necessary
to fully amortize, on a straight-line basis the amounts owed by Landlord to
Tenant hereunder over the remaining term of the Lease, together with interest at
the Maximum Rate.
(b) Any amounts not paid by Landlord to Tenant within thirty (30) days of
Tenant's request for the same as provided herein shall bear interest at the
Maximum Rate.
14.6 No Waiver.
Except as specifically set forth in this Lease, no failure by Landlord or
Tenant to insist upon the other party's performance of any of the terms of this
Lease or to exercise any right or remedy upon a breach thereof, constitutes a
waiver of any such breach or of any breach or default by the other party in its
performance of its obligations under this Lease. No acceptance by Landlord of
full or partial Rent from Tenant or any third party during the continuance of
any
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breach or default by Tenant of Tenant's performance of its obligations under
this Lease constitutes Landlord's waiver of any such breach or default. Except
as specifically set forth in this Lease, none of the terms of this Lease to be
kept, observed or performed by a party to this Lease, and no breach thereof, are
waived, altered or modified except by a written instrument executed by the other
party. One or more waivers by a party to this Lease is not to be construed as a
waiver of a subsequent breach of the same covenant, term or condition. No
statement on a payment check from a party to this Lease or in a letter
accompanying a payment check is binding on the other party. The party receiving
the check, with or without notice to the other party, may negotiate such check
without being bound to the conditions of any such statement.
ARTICLE 15.
CREDITORS; ESTOPPEL CERTIFICATES
15.1 Subordination.
Subject to Tenant receiving a non-disturbance agreement from each Mortgage
holder, this Lease, all rights of Tenant in this Lease, and all interest or
estate of Tenant in the Property, is subject and subordinate to the lien of any
Mortgage. Tenant, on Landlord's demand, will execute and deliver to Landlord or
to any other person Landlord designates ,'my instruments, releases or other
documents reasonably required to confirm the self-effectuating subordination of
this Lease as provided in this section to the lien of any Mortgage. The
subordination to any future Mortgage provided for in this section is expressly
conditioned upon the mortgagee's agreement that as long as Tenant is not in
default in the payment of Rent or the performance and observance of any
covenant, condition, provision, term or agreement to be performed and observed
by Tenant under this Lease, beyond any applicable grace or cure period this
Lease provides Tenant, the holder of the Mortgage will not disturb Tenant's
rights under this Lease. The lien of any existing or future Mortgage will not
cover Tenant's moveable trade fixtures or other personal property of Tenant
located in or on the Premises.
15.2 Attornment.
If any ground lessor, holder of any Mortgage at a foreclosure sale or any
other transferee acquires Landlord's interest in this Lease, the Premises or the
Property, Tenant will at-▇▇▇ to the transferee of or successor to Landlord's
interest in this Lease, the Premises or the Property (as the case may be) and
recognize such transferee or successor as landlord trader this Lease.
Tenant waives the protection of any statute or rule of law that gives or
purports to give Tenant any right to terminate this Lease or surrender
possession of the Premises upon the transfer of Landlord's interest.
15.3 Mortgagee Protection Clause.
Tenant will give the holder of any Mortgage, by registered mail, a copy of
any notice of default Tenant serves on Landlord, provided that Landlord or the
holder of the Mortgage previously notified Tenant (by way of notice of
assignment of rents and leases or otherwise) of the address of such holder.
Tenant further agrees that if Landlord fails to cure such default
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within the time provided for in this Lease, then Tenant will provide written
notice of such failure to such holder and such holder will have an additional 15
days within which to cure the default. If the default cannot be cured within the
additional 15 day period, then the holder will have such additional time as may
be necessary to effect the cure if, within the 15 day period, the holder has
commenced and is diligently pursuing the cure (including without limitation
commencing foreclosure proceedings if necessary to effect the cure).
15.4 Estoppel Certificates.
15.4.1 Contents.
Upon Landlord's written request, Tenant will execute, acknowledge and
deliver to Landlord a written statement in form satisfactory to Landlord
certifying: (a) that this Lease (and all guaranties, if any) is unmodified and
in full force and effect (or, if there have been any modifications, that the
Lease is in full force and effect, as modified, and stating the modifications);
`(b) that this Lease has not been canceled or terminated; (c) the last date of
payment of Rent and the time period covered by such payment; (d) whether there
are then existing any breaches or defaults by Landlord under this Lease known to
Tenant, and, if so, specifying the same; (e) specifying any existing claims or
defenses in favor of Tenant against the enforcement of this Lease (or of any
guaranties); and (f) such other factual statements as Landlord, any lender,
prospective lender, investor or purchaser may request. Tenant will deliver the
statement to Landlord within 10 Business Days after Landlord's request. Landlord
may give any such statement by Tenant to any lender, prospective lender,
investor or purchaser of all or any part of the Property and any such party may
conclusively rely upon such statement as true and correct.
15.4.2 Failure to Deliver.
If Tenant' does not timely deliver the statement referenced in Section
15.4.1 to Landlord, (a) Landlord may execute and deliver the statement to any
third party on behalf of Tenant and (b) such failure constitutes an Event of
Default raider this Lease. Further, if Tenant so fails to timely deliver the
statement, Landlord and any lender, prospective lender, investor or purchaser
may conclusively presume and rely, except as otherwise represented by Landlord,
(i) that the terms and provisions of this Lease have not been changed; (ii) that
this Lease has not been canceled or terminated; (iii) that not more than one
month's Rent has been paid in advance; and (iv) that Landlord is not in default
in the performance of' any of its obligations under this Lease. In such event,
Tenant is estopped from denying the truth of such facts.
ARTICLE 16.
TERMINATION OF LEASE
16.1 Surrender of Premises.
Tenant will surrender the Premises to Landlord at the expiration or earlier
termination of this Lease in good order, condition and repair, reasonable wear
and tear, permitted Alterations and damage by casualty or condemnation excepted,
and will sin-render all keys to the Premises
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to Property Manager or to Landlord at the place then fixed for Tenant's payment
of Basic Rent or as Landlord or Property Manager otherwise direct. Tenant will
also inform Landlord of all combinations on locks, safes and vaults, if any, in
the Premises or on the Property. Tenant will at such time remove all of its
property from the Premises and (if Landlord so notified Tenant at the time
Landlord approved such Alterations) all specified Alterations and improvements
Tenant placed on the Premises. Tenant will promptly repair any damage to the
Premises caused by such removal. If Tenant does not surrender the Premises in
accordance with this section, Tenant will release, indemnify, defend (with
counsel reasonably acceptable to Landlord) protect and hold harmless Landlord
from and against any Claim resulting from Tenant's delay in so surrendering the
Premises, including, without limitation, any Claim made by any succeeding
occupant founded on such delay. All property of Tenant not removed on or before
the last day of the Term is deemed abandoned. Tenant appoints Landlord as
Tenant's agent to remove, at Tenant's sole cost mad expense, all of Tenant's
property from the Premises upon termination of this Lease and to cause its
transportation and storage for Tenant's benefit, all at the sole cost and risk
of Tenant, and Landlord will not be liable for damage, theft, misappropriation
or loss thereof or in any manner in respect thereto.
16.2 Holding Over.
If Tenant possesses the Premises after the Term expires or is otherwise
terminated without executing a new lease but with Landlord's written consent,
Tenant is deemed to be occupying the Premises as a tenant from month-to-month,
subject to all provisions, conditions mad obligations of this Lease applicable
to a month-to-month tenancy, except that (a) Basic Rent will equal the greater
of Basic Rent payable by Tenant in the last Lease Year of the Term or Landlord's
then current basic rent for the Premises according to Landlord's rental rate
schedule for prospective tenants, and (b) either Landlord or Tenant may
terminate the month-to-month tenancy at any time upon 30 days prior written
notice to the other party. If Tenant possesses the Premises after the Term
expires or is otherwise terminated without executing a new lease and without
Landlord's written consent, Tenant is deemed to be occupying the Premises
without claim of right (but subject to all terms and conditions of this Lease)
and, in addition to Tenant's liability for failing to surrender possession of
the Premises as provided in Section 16.1, Tenant will pay Landlord a charge for
each day of occupancy after expiration of the Term in an amount 150% of Tenant's
then-existing Rent (on a daily basis).
ARTICLE 17.
ADDITIONAL PROVISIONS
17.1 Initial Improvements.
17.1.1 Landlord's Improvements.
Landlord will provide, at no cost to Tenant, the Landlord's Improvements.
Landlord will either stockpile or install, as applicable, Landlord's
Improvements.
17.1.2 Tenant's Improvements.
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Landlord will cause to be constructed, in accordance with the Plans (as
hereinafter defined), all Tenant's Improvements'
17.1.3 Construction of Tenant's Improvements.
Landlord shall construct, or cause to be constructed, in the Premises, in
accordance with all applicable laws, rules, regulations and ordinances
(including ADA, as it currently exists and as currently interpreted by local
building code requirements), the Tenant's Improvements described in and shown on
the Plans and Specifications as attached hereto as EXHIBIT "H" (the "Plans").
Upon execution of the Lease, Landlord shall prepare, or cause to be prepared,
working drawings (including mechanical, electrical and plumbing) for the
construction of the Tenant's Improvements. The working drawings (and any
modifications thereof) shall comply with all governmental standards, regulations
and requirements and shall be subject to Tenant's approval (which approval shall
not be unreasonably withheld). Tenant's failure to approve or disapprove the
working drawings within five (5) Business Days of submission shall be deemed an
approval. If Tenant desires any changes in the Plans after executing the Lease,
Tenant shall be required to sign such field order changes as requested by
Landlord or Landlord's contractors or agents to evidence any such change desired
by Tenant, and Tenant shall be responsible for any and all costs associated with
any such change in the Plans.
Any other work desired by Tenant, such as furniture, fixturing and
telecommunications and computer cabling ("Additional Work"), shall be performed
by Tenant, at Tenant's sole expense, using contractors and pursuant to plans
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Landlord will approve or disapprove (with reasonable
detail thereof) within five (5) Business Days after submission.
17.1.4 Tenant's Representative.
Tenant designates [__________________] as Tenant's representative to notify
Landlord of any approvals and revisions to the Plans as described in Section
17.1 3 and to provide any notices or directions to Landlord regarding the
Tenant's Improvements.
17.1.5 Punch List.
Within 20 days after Substantial Completion, Landlord and Tenant will
inspect the Premises and develop a Punch List. Landlord will complete (or
repair, as the case may be) the items described on the Punch List with
commercially reasonable diligence and speed, subject to delays caused by Tenant
Delays and Force Majeure. If Tenant refuses to inspect the Premises with
Landlord within the 20 day period, Tenant is deemed to have accepted the
Premises as delivered, subject to Section 17.1.6. Nothing herein shall be deemed
to diminish Landlord's obligation to make any repairs required in this Lease to
be made by Landlord (including without limitation remedying any latent defects
in the Landlord's Improvements or the Tenant's Improvements).
17.1.6 Construction Warranty.
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Landlord warrants Tenant's Improvements against defective workmanship and
materials for a period of one year after the date of Substantial Completion.
Landlord's sole obligation under this warranty is to repair or replace, as
necessary, any defective item occasioned by poor workmanship or materials if
Tenant notifies Landlord of the defective item within such one year period.
Landlord has no obligation to repair or replace any item after such one year
period expires. THE WARRANTY TERMS PROVIDE TENANT WITH ITS SOLE AND EXCLUSIVE
REMEDIES FOR LANDLORD'S INCOMPLETE OR DEFECTIVE CONSTRUCTION OF THE IMPROVEMENTS
OR USE OF DEFECTIVE MATERIALS IN THE PREMISES IN LIEU OF ANY CONTRACT, WARRANTY
OR OTHER RIGHTS, WHETHER EXPRESSED OR IMPLIED, THAT MIGHT OTHERWISE BE AVAILABLE
TO TENANT UNDER APPLICABLE LAW.
ARTICLE 18.
MISCELLANEOUS PROVISIONS
18.1 Notices.
All Notices must be in writing and must be sent by personal delivery,
United States registered or certified mail (postage prepaid) or by an
independent overnight courier service, addressed to the addresses specified in
the Basic Terms or at such other place as either party may designate to the
other party by written notice given in accordance with this section. Notices
given by mail are deemed delivered within three Business Days after the party
sending the Notice deposits the Notice with the United States Post Office.
Notices delivered by courier are deemed delivered on the next Business Day after
the day the party delivering the Notice timely deposits the Notice with the
courier for overnight (next day) delivery.
18.2 Transfer of Landlord's Interest.
If Landlord Transfers any interest in the Premises for any reason other
than collateral security purposes, the transferor is automatically relieved of
all obligations on the part of Landlord accruing under this Lease from and after
the date of the Transfer, provided that the transferor will deliver to the
transferee any funds the transferor holds in which Tenant has an interest (such
as the Security Deposit, if any). Landlord's covenants and obligations in this
Lease bind each successive Landlord only during and with respect to its
respective period of ownership. However, notwithstanding any such Transfer, the
transferor remains entitled to the benefits of Tenant's indemnity and insurance
obligations (mad similar obligations) under this Lease with respect to matters
arising or accruing during the transferor's period of ownership.
18.3 Successors.
The covenants and agreements contained in this Lease bind and inure to the
benefit of Landlord, its successors and assigns, bind Tenant and its successors
and assigns and inure to the benefit of Tenant and its permitted successors and
assigns.
18.4 Captions and Interpretation.
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The captions of the articles and sections of this Lease are to assist the
parties in reading this Lease and are not a part of the terms or provisions of
this Lease. Whenever required by the context of this Lease, the singular
includes the plural and the plural includes the singular.
18.5 Relationship of Parties.
This Lease does not create the relationship of principal and agent, or of
partnership, joint venture, or of may association or relationship between
Landlord and Tenant other than that of landlord and tenant.
18.6 Entire Agreement; Amendment.
The Basic Terms and all exhibits, addenda and schedules attached to this
Lease are incorporated into this Lease as though fully set forth in this Lease
and together with this Lease contain the entire agreement between the parties
with respect to the improvement and leasing of the Premises. All preliminary and
contemporaneous negotiations, including, without limitation, any letters of
intent or other proposals and any drafts and related correspondence, are merged
into and superseded by this Lease. No subsequent alteration, amendment, change
or addition to this Lease (other than to the Building Rules) is binding on
Landlord or Tenant unless it is in writing and signed by the party to be charged
with performance.
18.7 Severability.
If any covenant, condition, provision, term or agreement of this Lease is,
to any extent, held invalid or unenforceable, the remaining portion thereof and
all other covenants, conditions, provisions, terms and agreements of this Lease,
will not be affected by such holding, and will remain valid and in force to the
fullest extent permitted by law.
18.8 Landlord's Limited Liability.
Tenant will look solely to Landlord's interest in the Property for
recovering any judgment or collecting any obligation from Landlord or any other
Landlord Party. Tenant agrees that neither Landlord nor any other Landlord Party
will be personally liable for any judgment or deficiency decree.
18.9 Survival.
All of Tenant's obligations under this Lease (together with interest on
payment obligations at the Maximum Rate) accruing prior to expiration or other
termination of this Lease survive the expiration or other termination of this
Lease. Further, all of Tenant's release, indemnification, defense and hold
harmless obligations under this Lease survive the expiration or other
termination of this Lease, without limitation.
18.10 Attorneys' Fees.
If either Landlord or Tenant commences any litigation or judicial action to
determine or
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enforce any of the provisions of this Lease, the prevailing party in any such
litigation or judicial action is entitled to recover all of its costs and
expenses (including, but not limited to, reasonable attorneys' fees, paralegals'
charges, costs and expenditures) from the nonprevailing party.
18.11 Brokers.
Landlord and Tenant each represents and warrants to the other that it has not
had any dealings with any realtors, brokers, finders or agents in connection
with this Lease (except as may be specifically set forth in the Basic Terms) and
agrees to release, indemnify, defend and hold the other harmless from and
against any Claim based on the failure or alleged failure to pay any realtors,
brokers, finders or agents (other than any brokers specified in the Basic Terms)
and from any cost, expense or liability for any compensation, commission or
changes claimed by any realtors, brokers, finders or agents (other than any
brokers specified in the Basic Terms) claiming by, through or on behalf of it
with respect to this Lease or the negotiation of this Lease. Landlord will pay
any brokers named in the Basic Terms in accordance with the applicable listing
agreement for the Property.
18.12 Governing Law.
This Lease is governed by, and must be interpreted under, the internal laws of
the State. Any suit arising from or relating to this Lease must be brought in
the County; Landlord and Tenant waive the right to bring suit elsewhere.
18.13 Time is of the Essence.
Time is of the essence with respect to the performance of every, provision of
this Lease in which time of performance is a factor.
18.14 Joint and Several Liability.
All parties signing this Lease as Tenant and any Guarantor(s) of this Lease
are jointly and severally liable for performing all of Tenant's obligations
under this Lease.
18.15 Tenant's Waiver.
Any claim Tenant may have against Landlord for default in performance of any
of Landlord's obligations under this Lease is deemed waived unless Tenant
notifies Landlord of the default within six (6) months after Tenant knew or
should have known of the default.
18.16 Authority.
Tenant and each individual signing this Lease on behalf of Tenant represents
and warrants that they are duly authorized to sign on behalf of and to bind
Tenant and that this Lease is a duly authorized obligation of Tenant. Landlord
and each individual signing this Lease on behalf of Landlord represents and
warrants that they are duly authorized to sign on behalf of and to bind Landlord
and that this Lease is a duly authorized obligation of Landlord.
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18.17 Provisions are Covenants and Conditions.
All provisions of this Lease, whether covenants or conditions, are deemed both
covenants and conditions.
18.18 Force Majeure.
If Landlord is delayed or prevented from performing any act required in this
Lease (excluding, however, the payment of money) by reason of Tenant Delay or
Force Majeure, Landlord's performance of such act is excused for the longer of
the period of the delay or the period of delay caused by such Tenant Delay or
Force Majeure and the period of the performance of any such act will be extended
for a period equivalent to such longer period.
18.19 Management.
Property Manager is authorized to manage the Property. Landlord appointed
Property Manager to act as Landlord's agent for leasing, managing and operating
the Property. The Property Manager then serving is authorized to accept service
of process and to receive and give notices and demands on Landlord's behalf.
18.20 Financial Statements.
Tenant will, prior to Tenant's execution of this Lease and within 10 days
after Landlord's request at any time during the Term, deliver to Landlord
complete, accurate and up-to-date financial statements with respect to Tenant
and any Guarantor(s) or other parties obligated upon tiffs Lease, which
financial statements must be (a) prepared according to generally accepted
accounting principles consistently applied, and (b) certified by an independent
certified public accountant or by Tenant's (or Guarantor's, as the case may be)
chief financial officer that the same are a true, complete and correct statement
of Tenant's (or Guarantor's) financial condition as of the date of such
financial statements.
18.21 Quiet Enjoyment.
Landlord covenants that Tenant will quietly hold, occupy and enjoy the
Premises during the Term, subject to the terms and conditions of this Lease,
free from molestation or hindrance by Landlord or any person claiming by,
through or under Landlord, if Tenant pays all Rent as and when due and keeps,
observes and fully satisfies all other covenants, obligations and agreements of
Tenant under this Lease.
18.22 No Recording.
Tenant will not record this Lease or a Memorandum of this Lease without
Landlord's prior written consent, which consent Landlord may grant or withhold
in its sole and absolute discretion.
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18.23 Nondisclosure of Lease Terms.
The terms and conditions of this Lease constitute proprietary information
of Landlord that Tenant will keep confidential. Tenant's disclosure of the terms
and conditions of this Lease could adversely affect Landlord's ability to
negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant, without Landlord's consent (which consent Landlord may
grant or withhold in its sole and absolute discretion), will not directly or
indirectly disclose the terms and conditions of this Lease to any other tenant
or prospective tenant of the Building or to any other person or entity other
than Tenant's employees and agents who have a legitimate need t6 know such
information (and who will also keep the same in confidence).
18.24 Construction of Lease and Terms.
The terms and provisions of this Lease represent the results of
negotiations between Landlord and Tenant, each of which are sophisticated
parties and each of which has been represented or been given the opportunity to
be represented by counsel of its own choosing, and neither of which has acted
under any duress or compulsion, whether legal, economic or otherwise.
Consequently, the terms and provisions of this Lease must be interpreted and
construed in accordance with their usual and customary meanings, and Landlord
and Tenant each waive the application of any rule of law that ambiguous or
conflicting terms or provisions contained in this Lease are to be interpreted or
construed against the party who prepared the executed Lease or any earlier draft
of the same. Landlord's submission of this instrument to Tenant for examination
o]" signature by Tenant does not constitute a reservation of or an option to
lease and is not effective as a lease or otherwise until Landlord and Tenant
both execute and deliver this Lease. The parties agree that, regardless of which
party provided the initial form of this Lease, drafted or modified one or more
provisions of this Lease, or compiled, printed or copied this Lease, this Lease
is to be construed solely as an offer from Tenant to lease the Premises,
executed by Tenant and provided to Landlord for acceptance on the terms set
forth in this Lease, which acceptance and the existence of a binding agreement
between Tenant and Landlord may then be evidenced only by Landlord's execution
of this Lease.
18.25 Radon Gas.
The following disclosure is required by Florida law:
Radon is a naturally occurring radioactive gas that, when it has accumulated in
a structure in sufficient quantities, may present health risks to persons who
are exposed to it. Levels of radon that exceed federal and state guidelines have
been found in buildings in the State of Florida. Additional information
regarding radon and radon testing may be obtainable from the county public
health unit. Landlord makes no representation to Tenant concerning the presence
or absence of radon gas in the Premises or the Building at any time or in any
quantity. By executing this Lease, Tenant expressly releases Landlord from any
loss, claim, liability, or damage now or hereafter arising from or relating to
the presence at any time of such substances in the Premises or the Building.
[Signature Page Follows]
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Landlord and Tenant each caused this Lease to be executed and delivered by
its duly authorized representative to be effective as of the Effective Date.
LANDLORD:
SUNRISE LAKE, L.L.C., a Delaware
limited liability company
_________________________________ By _____________________________
Name:____________________________ Name:___________________________
(Print or Type Name) Title:__________________________
Dated:__________________________
_________________________________
Name:____________________________
(Print or Type Name)
TENANT:
AIRSPAN NETWORKS, INC., a Washington
corporation
_________________________________ By ______________________________
Name:____________________________ Name:____________________________
(Print or Type Name) Title:___________________________
Dated:___________________________
_________________________________
Name:____________________________
(Print or Type Name)
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EXHIBIT "A"
-----------
DEFINITIONS
-----------
"Additional Rent" means any charge, fee or expense (other than Basic Rent)
payable by Tenant under this Lease, however denoted.
"Affiliate" means any person or corporation that, directly or indirectly,
controls, is controlled by or is under common control with Tenant. For purposes
Of this definition, "control" means possessing the power to direct or cause the
direction of the management and policies of the entity by the ownership of a
majority of the voting securities of the entity.
"Alteration" means any change, alteration, addition or improvement to the
Premises or Property.
"Bankruptcy Code" means the United States Bankruptcy Code as the same now
exists and as the same may be amended, including any and all rules and
regulations issued pursuant to or in connection with the United States
Bankruptcy Code now in force or in effect after the Effective Date.
"Basic Rent" means the basic rent amounts specified in the Basic Terms.
"Basic Terms" means the terms of this Lease identified as the "Basic Terms"
before Article 1 of the Lease.
"BOMA Standards" means the "Standard Method for Measuring Floor Area in Office
Buildings" approved June 7, 1996 by the American National Standards Institute,
Inc. and the Building Owners and Managers Association International ("NSI/BOMA
Z65.1-1996).
"Building" means that certain office building to be constructed on the Land.
"Building Rules" means those certain rules attached to this Lease as EXHIBIT
"E," as Landlord may amend the same from time to time.
"Business Days" means any day other than Saturday, Sunday or a legal holiday
in the State.
"Business Hours" means Monday through Friday from 7:00 a.m. to 6:00 p.m. and
on Saturdays from 8:00 a.m. to 1:00 p.m., excluding holidays.
"City" means Sunrise, Florida.
"Claims" means all claims, actions, demands, liabilities, damages, costs,
penalties, forfeitures, losses or expenses, including, without limitation,
reasonable attorneys' fees and the costs and expenses of enforcing any
indemnification, defense or hold harmless obligation under the Lease.
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"Commencement Date" means the later of (a) the Delivery Date specified in the
Basic Terms or (b) the date of Substantial Completion of the Tenant's
Improvements, unless Landlord did not achieve Substantial Completion of the
Tenant's Improvements on or before the Delivery Date because of Tenant Delay, in
which event the Commencement Date is the later of (c) the Delivery Date or (d)
the date the Tenant's Improvements would have been substantially completed in
accordance with the definition of Substantial Completion but for the Tenant
Delay.
"Commencement Date Memorandum" means the form of memorandum attached to the
Lease as EXHIBIT "D."
"Common Area" means the parking area, driveways, lobby areas, and other areas
of the Property Landlord may designate from time to time as common area
available to all tenants.
"Condemning Authority" means any person or entity with a statutory or other
power of eminent domain.
"Contractor" means Opus South Corporation or one of its affiliates.
"County" means Broward County, Florida.
"Delivery Date" means the target date for Landlord's delivery of the Premises
to Tenant, which is the delivery date specified in the Basic Terms.
"Effective Date" means the date Landlord executes this Lease, as indicated on
the signature page.
"Event of Default" means the occurrence of any of the events specified in
Section 14.1 of the Lease.
"Final Plans" means the final working drawings and specifications Landlord
prepares for the Tenant's Improvements after receiving Tenant's space plan for
the Tenant's Improvements.
"Floor Plan" means the floor plan attached to the Lease as EXHIBIT "C."
"Force Majeure" means acts of God; strikes; lockouts; labor troubles;
inability to procure materials; governmental laws or regulations; casualty;
orders or directives of any legislative, administrative, or judicial body or by
governmental department; inability to obtain any governmental licenses,
permissions or authorities (despite commercially reasonable pursuit of such
licenses, permissions or authorities); and other similar or dissimilar causes
beyond Landlord's reasonable control.
"Guarantor" means any person or entity at any time providing a guaranty of all
or any part of Tenant's obligations under this Lease.
"Hazardous Materials" means any of the following, in ,any amount: (a) any
petroleum
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or petroleum product, asbestos in any form, urea formaldehyde and
polychlorinated biphenyls; (b) any radioactive substance; (c) any toxic,
infectious, reactive, corrosive, ignitable or flammable chemical or chemical
compound; and (d) any chemicals, materials or substances, whether solid, liquid
or gas, defined as or included in the definitions of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous Wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants," "solid
waste," or words of similar import in any federal, state or local statute, law,
ordinance or regulation now existing or existing on or after the Effective Date
as the same may be interpreted by government offices and agencies.
"Hazardous Materials Laws" means any federal, state or local statutes, laws,
ordinances or regulations now existing or existing after the Effective Date that
control, classify, regulate, list or define Hazardous Materials.
"Improvement Allowance" means the amount (per rentable square foot of the
Premises) specified in the Basic Terms for the cost of designing and installing
Tenant's Improvements.
"Improvements" means, collectively, the Landlord's Improvements and the
Tenant's Improvements.
"Land" means that certain parcel of land legally described on the attached
EXHIBIT "B."
"Landlord" means only the owner or owners of the Property at the time in
question.
"Landlord Parties" means Landlord and Property Manager and their respective
officers, directors, partners, shareholders, members and employees.
"Landlord's Improvements" means the base building improvements to the Premises
described on the attached EXHIBIT "F."
"Laws" means rely law, regulation, rule, order, statute or ordinance of any
governmental or private entity in effect on or after the Effective Date and
applicable to the Property or the use or occupancy of the Property, including,
without limitation, Hazardous Materials Laws, Building Rules and Permitted
Encumbrances.
"Lease" means this Office Lease Agreement, as the same may be amended or
modified after the Effective Date.
"Lease Year" means each consecutive 12-month period during the Term,
commencing on the Commencement Date, except that if the Commencement Date is not
the first day of a calendar month, then the first Lease Year is a period
beginning on the Commencement Date and ending on the last day of the calendar
month in which the Commencement Date occurs plus the following 12 consecutive
calendar months.
"Maximum Rate" means interest at a rate equal to the lesser of (a) 18% per
annum or
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(b) the maximum interest rate permitted by law.
"Mortgage" means any mortgage, deed of trust, security interest or
other security document of like nature that at any time may encumber all or any
part of the Property and any replacements, renewals, amendments, modifications,
extensions or refinancings thereof, and each advance (including future
advances), made under any such instrument.
"Net Rent" means, all rental Landlord actually receives from any
reletting of all or any part of the Premises, less ,any indebtedness from Tenant
to Landlord other than Rent (which indebtedness is paid first to Landlord) and
less the Re-entry Costs (which costs are paid second to Landlord).
"Notices" means all notices, demands or requests that may be or are
required to be given, demanded or requested by either party to the other as
provided in the Lease.
"Operating Expenses" means all expenses Landlord incurs in collection
with maintaining, repairing and operating the Property, as determined by
Landlord's accountant in accordance with generally accepted accounting
principles consistently followed, including, but not limited to, the following:
Property Taxes, insurance premiums and deductible amounts under any insurance
policy; maintenance and repair costs; steam, electricity, water, sewer, gas and
other utility charges; fuel; lighting; window washing; janitorial services;
trash and rubbish removal; property association fees and dues and all payments
under any Permitted Encumbrance (except Mortgages) affecting the Property; wages
payable to persons at the level of manager and below whose duties are connected
with maintaining and operating the Property (but only for the portion of such
persons' time allocable to the Property), together with all payroll taxes,
unemployment insurance, vacation allowances and disability, pension, profit
sharing, hospitalization, retirement and other so-called "fringe benefits" paid
in connection with such persons (allocated in a manner consistent with such
persons' Wages); amounts paid to contractors or subcontractors for work or
services performed in connection with maintaining and operating the Property;
all costs of uniforms, supplies and materials used in connection with
maintaining, repairing and operating the Property; any expense imposed upon
Landlord, its contractors or subcontractors pursuant to law or pursuant to any
collective bargaining agreement coveting such employees; all services, supplies,
repairs, replacements or other expenses for maintaining and operating the
Property; costs of complying with Laws; reasonable management fees and the costs
(including rental) of maintaining a building or management office in the
Building; and such other expenses as may ordinarily be incurred in connection
with maintaining and operating an office complex similar to the Property. The
term "Operating Expenses" also includes expenses Landlord incurs in collection
with public sidewalks adjacent to the Property, any pedestrian walkway system
(either above or below ground) and any other public facility to which Landlord
or the Property is from time to time subject in connection with operating the
Property. The term "Operating Expenses" does not include the cost of any capital
improvement to the Property other than replacements required for normal
maintenance and repair; the cost of repairs, restoration or other work
occasioned by fire, windstorm or other insured casualty other than the amount of
any deductible under rely insurance policy (regardless whether the deductible is
payable by Landlord in connection with a capital expenditure); expenses Landlord
incurs in connection with leasing or procuring tenants or renovating space for
new or existing tenants;
-48-
legal expenses incident to Landlord's enforcement of any lease; interest or
principal payments on any mortgage or other indebtedness of Landlord; or
allowance or expense for depreciation or amortization. Notwithstanding the
foregoing, if Landlord installs equipment in, or makes improvements or
alterations to, the Property to reduce energy, maintenance or other costs, or to
comply with any Laws, Landlord may include in Operating Expenses reasonable
charges for interest paid on the investment and reasonable charges for
depreciation of the investment so as to amortize the investment over the
reasonable life of the equipment, improvement or alteration on a straight line
basis.
"Permitted Encumbrances" means all current and future Mortgages,
easements, declarations, encumbrances, covenants, conditions, reservations,
restrictions and other matters now or alter the Effective Date affecting title
to the Property.
"Premises" means that certain space situated in the Building shown and
designated on the Floor Plan and described in the Basic Terms.
"Property" means, collectively, the Land, Building and all other
improvements on the Land.
"Property Manager" means the property manager specified in the Basic
Terms or any other agent Landlord may appoint from time to time to manage the
Property.
"Property Taxes" means any general real property tax, improvement tax,
assessment, special assessment, reassessment, commercial rental tax, tax, in
lieu tax, levy, charge, penalty or similar imposition imposed by any authority
having the direct or indirect power to tax, including but not limited to, (a)
tiny city, county, state or federal entity, (b) any school, agricultural,
lighting, drainage or other improvement or special assessment district, (c) any
governmental agency, or (d) any private entity having the authority to assess
the Property under any of the Permitted Encumbrances. The term "Property Taxes"
includes all charges or burdens of every kind and nature Landlord incurs in
connection with using, occupying, owning, operating, leasing or possessing the
Property, without particularizing by any known name and whether any of the
foregoing are general, special, ordinary, extraordinary, foreseen or unforeseen;
any tax or charge for fire protection, street lighting, streets, sidewalks, road
maintenance, refuse, sewer, water or other services provided to the Property.
The term "Property Taxes" does not include Landlord's state or federal income,
franchise, estate or inheritance taxes. If Landlord is entitled to pay, and
elects to pay, any of the above listed assessments or charges in installments
over a period Of two or more calendar years, then only such installments of the
assessments or charges (including interest thereon) as are actually paid in a
calendar year will be included within the term "Property Taxes" for such
calendar' year.
"Punch List" means a list of Tenant's Improvements items that were
either (a) not properly completed by Contractor or (b) in need of repair, which
list is prepared in accordance with Section 17.1.5.
"Re-entry Costs" means all costs and expenses Landlord incurs re-
entering or reletting all or any part of the Premises, including, without
limitation, all costs and expenses Landlord
-49-
incurs (a) maintaining or preserving the Premises after an Event of Default; (b)
recovering possession of the Premises, removing persons and property from the
Premises (including, without limitation, court costs and reasonable attorneys'
fees) and storing such property; (c) reletting, renovating or altering the
Premises; and (d) real estate commissions, advertising expenses and similar
expenses paid or payable in connection with reletting all or any part of the
Premises. "Re-entry Costs" also includes the value of free rent and other
concessions Landlord gives in connection with reentering or reletting all or any
part of the Premises.
"Rent" means, collectively, Basic Rent and Additional Rent.
"Rent Commencement Date" means the sixtieth (60/th/) day after the
earlier of (a) the Commencement Date; or (b) the date Tenant commences business
operations in the Premises.
"State" means the State of Florida.
"Structural Alterations" means any Alterations involving the
structural, mechanical, electrical, plumbing, fire/life safety or heating,
ventilating and air conditioning systems of the Building.
"Substantial Completion" means the date that the City or other
appropriate authority issues a conditional or unconditional Certificate of
Occupancy or similar document for the Premises (unless such a certificate or
similar document is not required) and that Tenant is reasonably able to occupy
and use the Premises for its intended purposes.
"Taking" means the exercise by a Condemning Authority of its power of
eminent domain on all or any part of the Property, either by accepting a deed in
lieu of condemnation or by any other manner.
"Tenant" means the tenant identified in the Lease and such tenant's
permitted successors and assigns. In any provision relating to the conduct, acts
or omissions of "Tenant," the term "Tenant" includes the tenant identified in
the Lease and such tenant's agents, employees, contractors, invitees,
successors, assigns and others using the Premises or on the Property with
Tenant's expressed or implied permission.
"Tenant Delays" means any delays to the extent caused or contributed
to by Tenant, including, without limitation, with respect to Tenant's
Improvements, Tenant's failure to submit a space plan for Tenant's Improvements,
Tenant's failure to timely approve the Final Plans and any delays caused by any
revisions Tenant proposes to the Final Plans.
"Tenant's Improvements" means all initial improvements to the Premises
(other than Landlord's Improvements) to be designed and installed by Landlord
and paid for by Tenant, subject to the Improvement Allowance.
"Tenant's Share of Operating Expenses" means the product obtained by
multiplying the amount of Operating Expenses for the period in question by the
Tenant's Share of Operating Expenses Percentage.
-50-
"Tenant's Share of Operating Expenses Percentage" means the percentage
specified in the Basic Terms, as such percentage may be adjusted in accordance
with the terms and conditions of this Lease.
"Term" means the initial term of this Lease specified in the Basic
Terms and, if applicable, any renewal term then in effect.
"Transfer" means an assignment, mortgage, pledge, transfer, sublease
or other encumbrance or conveyance (voluntarily, by operation of law or
otherwise) of this Lease or the Premises or any interest in this Lease or the
Premises. The term "Transfer" also includes any assignment, mortgage, pledge,
transfer or other encumbering or disposal (voluntarily, by operation of law or
otherwise) of any ownership interest in Tenant or any Guarantor that results or
could result in a change of control of Tenant or any Guarantor.
"Warranty Terms" means, collectively, the punch list and warranty
provisions of Section 17.1 of the Lease.
-51-
EXHIBIT "B"
LEGAL DESCRIPTION
-----------------
-▇▇-
▇▇▇▇▇▇▇ "▇"
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ CALCULATIONS
-----------------------------
-53-
EXHIBIT "D"
----------
COMMENCEMENT DATE MEMORANDUM
----------------------------
THIS MEMORANDUM is made and entered into as of [____________, _____] by and
between SUNRISE LAKE, L.L.C. ("Landlord") and AIRSPAN NETWORKS, INC. ("Tenant").
RECITALS:
1. Landlord and Tenant are party to a certain Multitenant Office Lease
Agreement dated as of [____________] ("Lease"), relating to certain premises
("Premises") located in the building commonly known as "Sawgrass Lake Center,"
located in Sunrise, Florida ("Building").
2. Landlord and Tenant desire to confirm the Commencement Date and Rent
Commencement Date (as such terms are defined in the Lease) and the date the
[initial] Term of the Lease expires [and the notice date(s) and expiration
date(s) of any renewal Term(s) provided to Tenant under the Lease].
ACKNOWLEDGMENTS:
Pursuant to Section 1.2.3 of the Lease and in consideration of the facts
set forth in the Recitals, Landlord and Tenant acknowledge and agree as follows:
1. All capitalized terms not otherwise defined in this Memorandum have
the meanings ascribed to them in the Lease.
2. The Commencement Date under the Lease is [_____________].
3. The Rent Commencement Date under the Lease is [______________].
4. The [initial] Term of the Lease expires on [________________], unless
the Lease is sooner terminated in accordance with the terms and
conditions of the Lease.
[5. Tenant must exercise its right to the ________________ renewal Term,
if at all, by notifying Landlord no later than ____________, subject
to the conditions and limitations set forth in the Lease.]
[6. The ___________ renewal Term expires on _____________.]
Landlord and Tenant each caused this Memorandum to be executed by its duly
authorized representative as of the day and date written above. This Memorandum
may be executed in counterparts, each of Which is an original and all of which
constitute one instrument.
LANDLORD:
SUNRISE LAKE, L.L.C.
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By:___________________________
Name:_________________________
Its:__________________________
TENANT:
AIRSPAN NETWORKS, INC.
By:___________________________
Name:_________________________
Its:__________________________
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EXHIBIT "E"
----------
BUILDING RULES
--------------
1. Any sign, lettering, picture, notice or advertisement installed on or
in any part of the Premises and visible from the exterior of the Building, or
visible from the exterior of the Premises, shall be installed at Tenant's sole
cost and expense, and in such manner, character and style as Landlord may
approve in writing. In the event of a violation of the foregoing by Tenant,
Landlord may reasonably remove the same without any liability and may charge the
expense incurred by such removal to Tenant.
2. No awning or other projection shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens visible from the
exterior of the Building or visible from the exterior of the Premises, shall be
attached to or hung in, or used in connection with any window or door of the
Premises without the prior written consent of Landlord. Such curtains, blinds,
shades, screens or other fixtures must be of a quality, type, design and color,
and attached in the manner approved by Landlord.
3. Tenant, its servants, employees, customers, invitees and guests shall
not obstruct sidewalks, entrances, passages, corridors, vestibules, halls,
elevators, or stairways in and about the Building which are used in common with
other tenants and their servants, employees, customers, guests and invitees, and
which are not a part of the Premises of Tenant. Tenant shall not place objects
against glass partitions or doors or windows that would be unsightly from the
Building corridors or from the exterior of the Building and will promptly remove
any such objects upon notice from Landlord.
4. Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create noxious odors, any of
which may be offensive to the other tenants and occupants of the Building, or
that would Interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Building or elsewhere
and shall not place or install any projections, antennas, aerials or similar
devices inside or outside of the Premises or on the Building.
5. Tenant shall not waste electricity, water or air conditioning and
shall cooperate fully with Landlord to insure the most effective operation of
the Building's heating and air conditioning systems and shall refrain from
attempting to adjust any controls other than unlocked room thermostats, if any,
installed for Tenant's use. Tenant shall keep corridor doors closed.
6. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business hours.
7. No person or contractor not employed by Landlord shall be used to
perform janitorial work, window washing, cleaning, maintenance, repair or
similar work in the Premises without the written consent of Landlord, which
shall not be unreasonably withheld or delayed.
-56-
8. In no event shall Tenant bring into the Building inflammables, such as
gasoline, kerosene, naphtha and benzene, or explosives or any other article of
an intrinsically dangerous nature. If, by reason of the failure of Tenant to
comply with the provisions of this subparagraph, any insurance premium for all
or any part of the Building shall at any time be increased, Tenant shall make
immediate payment of the whole of the increased insurance premium, without
waiver of any of Landlord's other rights at law or in equity for Tenant's breach
of this Lease.
9. Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and Building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of the
foregoing or which may be dangerous to persons or property or may increase the
cost of insurance or, require additional insurance coverage.
10. Landlord shall have the right to prohibit any advertising by Tenant
that in Landlord's reasonable opinion tends to impair the reputation of the
Building, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
11. The Premises shall not be used for cooking (except normal break room
use such as coffee machines and microwave ovens for warming, but in no event
shall any open flame or electric element cooking take place), lodging, sleeping
or for any immoral or illegal purpose.
12. Tenant and Tenant's servants, employees, agents, visitors and
licensees shall observe faithfully and comply strictly with the foregoing rules
and regulations and such other and further appropriate rules and regulations as
Landlord or Landlord's agent may from time to time adopt. Reasonable notice of
any additional rules and regulations shall be given in such manner as Landlord
may reasonably elect.
13. Unless expressly permitted by the Landlord, no additional locks or
similar devices shall be attached to any door or window and no keys other than
those provided by the Landlord shall be made for any door. Upon termination of
this Lease or of the Tenant's possession, the Tenant shall surrender all keys of
the Premises and shall explain to the Landlord all combination locks on safes,
cabinets and vaults.
14. Any carpeting cemented down by Tenant shall be installed with a
releasable adhesive. In the event of a violation of the foregoing by Tenant,
Landlord may charge the expense incurred for or in connection with the removal
of such carpeting and adhesive, and any related repairs that may be necessary as
a result thereof, to Tenant.
15. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other substances
shall be thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by the Tenant who, or whose servants, employees, agents, visitors
or licensees shall have caused the same. No person shall waste water by
interfering or tampering with the faucets or otherwise.
16. No electric circuits for any purpose shall be brought into the
Premises without
-57-
Landlord's permission specifying the manner in which some may be done.
17. No bicycle or other vehicle, and no dog (except Seeing Eye dogs) or
other animal shall be allowed in offices, halls, corridors, or elsewhere in the
Building.
18. Tenant shall not throw anything out of the door or windows, or down
any passageways or elevator shafts.
19. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryways and freight
elevators provided for such purposes and indicated by Landlord. Unless caused
by the negligence or willful misconduct of Landlord, its agents or employees,
Tenant shall be responsible for any damage to the Building or the property of
its employees or others and injuries sustained by any person whomsoever
resulting from the use or moving of such articles in or out of the Premises, and
shall make all repairs and improvements required by Landlord or governmental
authorities in connection with the use or moving of such articles..
20. All safes, equipment or other heavy articles shall be carried in or
out of the Premises only at such time and in such manner as shall be prescribed
in writing by Landlord. and Landlord shall in all cases have the right to
specify the proper position of any such safe equipment or other heavy article,
which shall only be used by Tenant in a manner which will not interfere with or
cause damage to the Premises or the Building in which they are located, or to
--
the other tenants or occupants of said Building. Tenant shall be responsible for
any damage to the Building or the property of its employees or others and
injuries sustained by any person whomsoever resulting from the use or moving of
such articles in or out of the Premises, and shall make all repairs and
improvements required by Landlord or governmental authorities in connection with
the use or moving of such articles.
21. Canvassing, soliciting, and peddling in the Building is prohibited and
each Tenant shall cooperate to prevent the same.
22. Vending machines (other than those in break rooms which are
exclusively for the use of Tenant's employees and guests) shall not be installed
without permission of the Landlord.
23. Wherever in these Building Rules and Regulations the word "Tenant"
occurs, it is understood and agreed that it shall mean Tenant's associates,
agents, employees, clerks, and servants, contractors and visitors. Wherever the
word "Landlord" occurs, it is understood and agreed that it shall mean
Landlord's assigns, agents, employees, clerks, servants, contractors and
visitors.
24. Landlord shall have the right to enter upon the Premises upon
reasonable prior notice (except in emergencies) at all reasonable hours for the
purpose of inspecting the same.
25. Landlord shall have the right to enter the Premises at hours
convenient to the Tenant for the purpose of exhibiting the same to prospective
tenants within the one hundred eighty (180) day period prior to the expiration
of this Lease and at any time while an uncured
-58-
event of default exists under this Lease.
26. Tenant, its agents, servants, employees, customers, invitees and
guests shall, when using the common parking facilities, if any, in and around
the Building, observe and obey all signs regarding fire lanes, reserved parking
areas, and no parking zones, and when parking always park between the designated
lines. Landlord reserves the right to tow away, at the expense of the owner, any
vehicle which is improperly parked or parked in a reserved parking area or no
parking zone. All vehicles shall be parked at the sole risk of the owner, and
Landlord assumes no responsibility for any damage to or loss of vehicles. No
vehicles shall be parked on an overnight basis for any extended period of time.
27. At all times the Property shall be in charge of Landlord's employee in
charge and (a) persons may enter the Property only in accordance with Landlord's
regulations, (b) persons entering or departing from the Property may be
questioned as to their business in the Property, and the right is reserved to
require the use of an identification card or other access device and the
registering of such persons as to the hour of entry and departure, nature of
visit, and other information deemed necessary for the protection of the
Property, and (c) all entries into and departures from the Property will take
place through such one or more entrances as Landlord shall from time to time
designate provided, however, anything herein to the contrary notwithstanding,
Landlord shall not be liable for any lack of security in respect to the Property
whatsoever. Landlord will normally not enforce clauses (a), (b) and (c) above
from 8:00 a.m. to 5:30 p.m., Monday through Friday, and from 8:00 a.m. to 1:00
p.m. on Saturdays, but it reserves the right to do so or not to do so at any
time and from time to time at its sole discretion. In case of invasion, mob,
riot, public excitement, or other commotion, Landlord reserves the right to
prevent access to the Property during the continuance of the same by closing and
locking the doors or otherwise, for the safety of the tenants or the protection
of the Property and the property therein. Landlord shall in no case be liable
for damages for any error or other action taken with regard to the admission to
or exclusion from the Property of any person.
28. All entrance doors to the Premises shall be locked when the Premises
are not in use. All corridor doors shall also be closed during times when the
air conditioning equipment in the Property is operating so as not to dissipate
the effectiveness of the system or place an overload thereon.
29. Landlord reserves the right to adopt and enforce traffic regulations
(including speed limits), and to install traffic calming devices within the
driveways and common parking facilities. Tenant, and its employees, customers
and invitees shall obey and comply with all traffic regulations, and shall at
all times operate their vehicles in a safe manner. Any traffic regulations
adopted by Landlord shall be in addition to any Laws. Landlord shall in no case
be liable for any Claims arising out of or related to any traffic regulations
adopted by Landlord, or the enforcement thereof.
30. Landlord reserves the right, upon reasonable prior notice to Tenant,
at any time and from time to time to rescind, alter or' waive, in whole or in
part, any of these Rules and Regulations when it is deemed necessary, desirable,
or proper, in Landlord's reasonable judgment, for its best interest or for the
best interest of the tenants of the Property.
-59-
31. To the extent that any of the Rules and Regulations contradict the
specific provisions elsewhere in this Lease, the specific provisions of the
Lease will control and prevail.
Initials:
Landlord:_______________
Tenant:_________________
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EXHIBIT "F"
-----------
LANDLORD'S IMPROVEMENTS
-----------------------
Opus South Corporation
Construction and Design Outline Specifications
SAWGRASS LAKE CENTER
Base Building- General This outline specification prepared by Opus South
Corporation (Contractor), defines the scope of work
for the design and construction of an approximate
249,080 S.F. (gross) six-story base building office
facility at Bellsouth Center, Sunrise, Florida.
General Conditions Permits, Licensing, Fees
------------------------
Contractor will give to the proper authorities all
notices required by law relative to the work of the
project: obtain and pay for all building permits,
licenses; and apply for the other permits.
Environmental use permits and permits required in
conjunction with data processing or office activities
will be the responsibility of the Client.
-61-
Codes
-----
Contractor will be responsible :for complying with
local, state and federal building codes and
diversified aspects of zoning ordinances which apply
to the project, including the Standard Building Code
and the Occupations Safety and Health Act provisions
applicable to construction sites and the American
Disabilities Act.
Warranty
--------
All materials and equipment incorporated into this
project shall be new. The Contractor shall guarantee
all work to be free from defects of workmanship and
material for one (1) year after completion of the
base building. The Contractor shall obtain a
manufacturer's "no dollar limit" roofing system
warranty guaranteeing the roof to be free from leaks
for a period of ten (10) years. All compressors will
have five (5) year warranties for the manufacturer.
Insurance
---------
Contractor will maintain the following insurance
coverage's for the project with limits as required by
the contract:
. ▇▇▇▇▇▇▇'▇ Compensation Insurance
. Comprehensive Public Liability Insurance,
including auto liability contractor's operations,
broad form contractual liability, and blanket XCU
if applicable
. Builders' Risk Insurance, "All Risk" form
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Project Management Project Meetings
----------------
Owner progress meetings shall be held at the job site
on a monthly basis. The meetings will include a
representative from the Owner, the Design/Builder
Project Manager, Field Superintendent, selected
subcontractors, suppliers and the Architect/Engineer
as required. The following items will be discussed:
1. Review the Monthly Progress Report
2. Field observations, problems and conflicts
3. Problems which impede the construction schedule
4. Review of off-site fabrication and delivery
schedules
5. Corrective measures and procedures to regain
project schedule
6. Contract Documents update review
7. Maintenance of quality control standards
8. Review of contract change orders
9. Review outstanding information to/from the owner,
engineer, contractor
10. Contractors Requisition for payment review
The contractor shall establish an agenda and
distribute meeting minutes from the progress
meetings.
Monthly Progress Reports:
------------------------
A monthly progress report shall be prepared for and
distributed at the monthly owners meeting. The
progress report shall serve as an executive summary
of the project progress and outstanding issues. The
report shall include the following sections:
1. Executive summary of the progress of work
2. Contract summary and listing of outstanding
change order requests
3. Information required from/to the Owner
4. Schedule narrative and summary
5. Photographic documentary
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Submittals and Shop Drawings:
-----------------------------
Construction materials and equipment, which will be
incorporated in the project, shall be specifically
addressed by the project specifications and drawings.
Subcontractors and vendors will be required to submit
manufacturers literature and fabrication/-
installation shop drawings prior to incorporating the
work into the project. The submittal data shall be
reviewed by the Design/-Builder and returned to the
subcontractor vendor within adequate time so as not
to delay the progress of the work. A copy of the
reviewed submittal data will be forwarded to the
Owner for his records.
Requests for substitution shall be submitted to the
Design/Builder in writing with appropriate
manufacturers backup so that a proper analysis may be
performed. The owner shall approve all product
substitutions.
Quality Control:
----------------
The project quality control plan will identify key
building systems and components that will be
monitored during the construction phase. Monitoring
shall be performed by a combination of outside
consultants, inspection firms and the Design/Builders
project management and field representatives. An
inspection guideline plan will be developed prior to
the commencement of construction that will specify
the individual responsible for monitoring the
particular activity, the inspection requirements and
the testing parameters.
Laboratory reports shall be submitted to the
subcontractor performing the work, all pertinent
government agencies, the Design/Builder and the
Owners representative. All materials which fail to
meet specified standards shall be corrected or
removed from the project.
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Temporary Construction Facilities:
----------------------------------
The Design/Builder shall establish and construct
temporary construction facilities as necessary to
manage and coordinate the construction work. The
facilities shall consist of, but are not limited to
the following.
1. Construction office and conference trailer
2. Temporary construction phone system
3. Temporary construction electric
4. Temporary construction water and sanitary
facilities
5. Facsimile and reprographic machines
6. Temporary safety and public protection
barricades/enclosures
7. Trash dumpster for construction debris
8. Temporary heat and enclosures for weather
protection
9. Construction material yard and storage compound
10. Project identification signs
11. Temporary security barricades and services
Project Management:
-------------------
The Design/Builder shall be responsible for employing
personnel to manage the construction operations. The
Design/Builder shall assign to the project a
competent project manager who will be responsible for
all Owner coordination and correspondence, project
procurement, scheduling and contract administration.
The project manager shall be the Owners single point
representative for all construction matters.
An on site project superintendent shall be assigned
to the project who has performed work of similar size
and nature. The project superintendent will be
responsible for all day to day field operation and
coordination issues. The project superintendent will
hold! mandatory weekly subcontractor coordination and
scheduling meetings.
The Owner has the fight to request that the
Design/Builder remove from the project any employee
whom the Owner feels is not performing
satisfactorily.
-65-
Clean-up
--------
Excessive accumulation of waste materials and rubbish will
be avoided by periodic removal from building and
construction site. When the building project is
substantially completed, Contractor will remove all debris,
tools, scaffolding and surplus materials, leaving the
project in "wiped clean" condition. Contractor will clean
all exterior windows and curtainwall; vacuum all carpeting;
damp mop one time all ceramic, granite and vinyl composition
tile; clean all bathroom mirrors, fixtures and toilet
partitions. All other cleaning, if desired, will be provided
by the Client.
Trade Name Reference
--------------------
Identification herein of items by trade names indicates the
quality standards; the words "or equal" are to apply to any
such references.
Materials
---------
All materials will be good quality, new materials, unless
specified otherwise. Colors and finishes will be selected
from manufacturer's standards.
Design Design and Engineering
----------------------
Contractor in conjunction with Opus Architects & Engineers,
Inc., will cause to be prepared a complete set of working
drawings to include civil, structural, architectural,
plumbing, HVAC, electrical, fire protection and landscape
for the base building.
Tenant improvement design will be part of the tenant
improvement allowance.
-66-
Site Development Grading and EarthWork
---------------------
Contractor will rough and fine-grade the building pad. The
building elevation will be set to allow for drainage,, which
will be handled by means of catch basins, storm sewers and
surface run-off as appropriate.
The scope of the earthwork and the foundation system design
will be in accordance with the subsurface :soil report to be
provided by the developer. The building foundation system
will be conventional spread footing foundation or deep
foundation system (i.e. auger cast ▇▇▇▇▇, vibrofloation or
dynamic compaction) and will be based on a soil bearing
capacity of 2500 psf which will be confirmed by the
geotechnical report.
All earthwork will be observed, tested, and approved by an
independent soils engineer. Fill areas will be compacted to
95% Procter in both the building and parking garage and
roadway areas. Areas to receive bituminous paving outside
the areas of the building structures will be graded for
proper drainage.
Exterior Concrete Sidewalks, Curb and Gutter
--------------------------------------------
Contractor will furnish and install all exterior concrete
work. Concrete sidewalks will be broom-finished unless
otherwise noted. Contractor will also furnish concrete curbs
to border all asphalt areas.
Colored concrete pavers will be installed at the main entry.
They will extend from the building to the garage.
All exterior concrete work will be constructed using a
3,000-psi, air-entrained concrete mixture. All work will be
jointed for thermal movements and placed on compacted soil.
Bituminous Paving and Striping
------------------------------
The paved areas subject to car and truck traffic will
consist of a 1" or 1 1/2" layer Type III bituminous over 6"
base of limerock.
All bituminous pavements will be striped to indicate parking
stalls, handicapped parking locations, median lines and
traffic control features, in accordance with the site
design.
-67-
Telephone and Electric Utilities
--------------------------------
Contractor will coordinate the service entrances with the
electric utility company to provide a complete and operable
system. An underground telephone service will be coordinated
with the construction of the building and the building
service entrance conduit will be provided. The actual
telephone service to the building will be provided by the
telephone utility and the cost of the phone system will be
borne by the Tenant. The telephone conduit will be routed
into the building from two directions.
Water Service
-------------
A water service main will be provided from the main located
in the public fight of way along the north side of the site.
Actual tie-in points will be determined upon agreement with
the City of Sunrise. The main will be 3" diameter for the
domestic services within the building and 8" diameter for
the interior and exterior fire protection systems. Service
mains will be PVC pipe.
Sanitary Sewerage
-----------------
A 8" minimum gravity sanitary sewer line will be extended
from the building to the north side of the site for tie-in.
The sanitary sewer line will be standard polyvinyl chloride
plastic sewer pipe with code-approved manholes and castings.
Storm Drainage
--------------
Contractor will set adequate grades so that drainage and
surface water run-off will be handled through catch basins
and storm drainage as required. The Storm drainage will be
reinforced concrete pipe with catch basins and manholes as
required by code and the governing watershed district. The
water will percolate into the ground via "French Drains".
Lawns and Landscaping
---------------------
Landscaping and an automatic lawn irrigation system will be
designed and installed to meet or exceed all code and park
requirements.
-68-
Parking Structure Scope
-----
The Design/Builder shall design and construct a five-level
parking garage.
Structural System
-----------------
The foundation will be shallow spread footings supporting a
precast column, beam and double tee system. The first floor
clear height will be as required by code for handicap vans.
The first floor shall be a 6" slab-on-grade. The upper
levels will be pre-topped double tees.
Exterior
--------
The fiat precast concrete spandel panel will be painted to
match the color of the office building.
Stormwater Drains
-----------------
The floors shall be sloped to floor drains that are piped to
the exterior storm water collection system.
Fire Protection - None.
----------------------
Elevators - Two hydraulic elevators.
-----------------------------------
Staffs
------
Three sets of open concrete stairs with metal handrails
shall be provided for egress.
Lighting
--------
The contractor shall install metal halide HID fixtures that
provide an average of 1.5-foot candles.
-69-
Covered Pedestrian Scope
Parkway -----
The contractor shall design and construct a pedestrian
canopy from the parking structure to the office
building entrance.
Canopy Structure
----------------
Shallow concrete footings shall support a pre-
manufactured metal canopy system beams.
Exterior Lighting
-----------------
At building entrances and in parking areas, Contractor
will install lighting conforming to code and municipal
requirements and controlled by the computerized energy
management system. Exterior lighting for parking areas
will be metal halide lamps. Light standards will be 25'
high painted steel in parking and traffic areas. These
standards and wall packs at truck docks will be located
to provide a minimum level of lighting equal to one
foot-candle maintained throughout the parking and drive
areas.
Building Structure and Building Structural System
Exterior Envelope --------------------------
The base building structural system will conform to the
standards of ACI, ASTM and SFBC, and applicable
building regulations. The general construction will be
cast in place concrete columns supporting cast in place
beams and slab. The beams and slab will be post-
tensioned concrete. Standard bay size will be
approximately 30'-0" x 44'-6".
Floor to floor heights are 14'-6"` on level one and
13'-6" on all other floors.
Live Load Design Criteria
-------------------------
Floors: 80 psf, plus 20 psf for the partition load and
5 psf for mechanical and ceiling loads. The floor will
be 8" thick. Floors shall have a two (2) hour fire
rating.
All interior concrete is designed for a minimum
compressive strength of 4000 psi at 28 days. Concrete
slab-on grade will be 4" thick and will have control
joint spaces 15'-0" x 15'-0" and shall be sealed.
-70-
Building Exterior
-----------------
The office building wall system will consist of precast
concrete wall panels fabricated with beige tinted cement and
granite aggregate, having a sand blast finish with accent
reveals. Precast panels will be provided in one (1) color of
concrete but will incorporate textured highlight areas. The
wall panel system will be used in combination with ribbon
glass and aluminum windows. Windowsill height varies from
112" to 30".
Semi-rigid insulation for exterior walls will have a minimum
rating of R-8.5.
All exterior soffits and window overhangs will be insulated
in a similar manner
All exterior entrance doors and :frames will be prefinished
aluminum framing members to match the windows.. All exterior
doors will have aluminum thresholds. The doors at the main
entrance and exits will be aluminum members to match windows
and have 1" diameter pulls.
Windows will be 9/16" thick laminated standard color
reflective glazing units set in painted aluminum frames.
Glass will have U-values of 1.02 and 1.04 and with a shading
coefficient of .36- .34.
Ribbon window units will be fixed, with no operating sash.
Exterior glass in doors and sidelights will be clear glass.
-71-
Roofing
-------
The roof over the entire facility `will be a hot mopped
modified bitumen roofing system equal to ▇▇▇▇▇▇▇▇
specification 3FID utilizing two plies of Glasply Premier
felt and a mineral surfaced cap sheet of Dynaglas FR.
Lightweight insulating concrete (Elastizel) will be
installed to yield an average U-value of .05. Roof shall be
attached to meet FM-I-90 wind uplift.
Roofing and flashing will be guaranteed against leaks by the
roofing subcontractor for three years. The membrane system
will be guaranteed by the membrane manufacturer for ten (10)
years with no dollar limit.
All roof areas will slope to roof drains with interior rain
leaders. A minimum of 1/8" per floor slope will be
established for all roof area.
Roof access will be provided at one of the stairwells.
Roofing construction joints and an expansion-contraction
joint will be used as required.
Clear Height
------------
The clear height on level one is 12'-0". The clear height on
all other levels will be 11 `-6".
Doors Wood Doors
----------
Interior doors will be 3'-0" x 8'-0" premium grade solid
core plain sliced cherry veneer, with a stained, sealed and
varnished finish. Wood doors will be provided with a painted
standard profile 2" wide hollow metal frame. Base building
doors will be provided as shown on the drawings. Doors
required for the tenant will be part of the tenant
improvement allowance.
-72-
Hollow Metal Doors and Frames
-----------------------------
Exterior hollow metal doors at the truck dock will be
3'-0" x 6'-8". Other required exterior hollow metal
doors will be 3'-0" wide and height will be selected to
be compatible with adjacent architectural features.
Exterior hollow metal doors will be flush face panel
design.
Interior hollow metal doors in service areas will be
3'-0" x 6'-8", flush face panel design. All exterior
and interior frames will be standard profile 2" wide
hollow metal frame. All hollow metal doors and frames
will be painted.
Finish Hardware
---------------
All door hardware will be as manufactured by Schlage,
Russwin or ▇▇▇▇▇▇ to meet ADA requirements, with
function appropriate to intended usage. Base building
locksets will be lever style hardware equal to Schlage
L Series, mortised type with a bright stainless steel
finish. A complete keying system tied into a building
master and grand master system will be furnished.
Interior Finishes Main Lobby and First Floor Elevator Lobby
-----------------------------------------
The ground floor lobby will be built-out with the
following materials:
. Floor- combination of granite accent with carpet
. Walls- combination of raised wood paneling, fabric
wrapped acoustical wall panels and Zolotone
. Ceilings - coffered and vaulted drywall
The upper floor lobbies will be built-out with the
following materials:
. Floor - carpet with borders
. Walls - fabric wall covering adhered to drywall
. Ceiling - drywall ceiling (vaulted) with concealed
fluorescent lights
-73-
Common/Tenant Areas
-------------------
A. Tenant Area Floors: Floor finishes are provided under
tenant improvement cost allowance.
Unless otherwise specified, all floor areas will be troweled
smooth exposed concrete.
-74-
Partitions Base Building Partitions: As shown on the attached contract
plans.
. All base building walls will be finished drywall ready
for paint.
. Two-hour rated partitions extending full height from
floor to underside of deck will be provided at the first
floor exit corridor. The walls will be constructed of 3-
5/8" metal studs with two layers of 5/8" gypsum board on
each side, sound attenuation blankets, fire taped and
sanded.
. Two-hour rated shaft walls extending full height from
floor to underside of deck will !be provided at elevators
and mechanical shafts.
. Walls enclosing toilet rooms, lobby, phone closets, and
electrical will be non-rated partitions extending from
floor to underside of deck. The walls will be constructed
of 3-5/8" metal studs with one layer of 5/8" gypsum board
on each side.
. Two hour rated stair shafts will be constructed of 2 1/2"
metal studs with one layer of 5/8" gypsum board on each
side, sound attenuation blankets, fire taped and sanded.
. All other partitions shown on the drawings shall extend
from floor to ceiling grid and will be constructed of 3-
5/8" metal studs with one layer of 5/8" gypsum board on
each side, fire-taped and sanded.
. Exterior windowsill walls will be constructed of 2 1/2"
metal studs, insulation and one layer of finished 5/8"
gypsum board.
. Interior columns will be faced with finished gypsum board
to ceiling height and sanded.
. Two and one-half inch thick batt insulation for sound
attenuation will be provided in the wall construction
surrounding the toilet rooms, first floor corridor and
receiving area.
. Mechanical room walls will be double walled with
staggered metal studs and extend to the underside of the
deck.
-75-
Ceilings Ceiling height will be 9'-0" in the tenant areas and 8' in
the toilet rooms.
A 2x2 tegular acoustical tile ceiling with fine textured
cast panels equal to Celotex "Nu-Tex" in a white painted
steel suspended grid system will be installed in all common
areas as part of the base building costs. In tenant areas,
the grid and tile will be installed as part: of base
building costs while modifications for the tenant partitions
will be installed as part of the Tenant Buildout Allowance.
The lobby ceilings shall be painted drywall.
Toilet Rooms (Base Building)
----------------------------
A. Floors: The toilet room floors will receive a standard,
domestic ceramic file.
▇. ▇▇▇▇▇/Base: All toilet room walls will be floor to
floor height drywall partitions with acoustical batt
insulation. The wet walls will receive 6'- 0" high
ceramic file. All other walls will receive vinyl wall
covering.
C. Ceilings: A 2' x 2' acoustical tile ceiling will be
provided.
D. Vanities: Granite with a 4" front return will be
installed in each toilet room.
E. Toilet partitions will be plastic laminate and ceiling
hung. Each toilet partition door will have a chrome
latch, coat hook and rubber bumper. Matching screens
will be installed between each urinal. Handicapped
toilet stalls will be provided with grab bars as
required by code. A tissue dispenser will be installed
for each toilet stall, with sanitary napkin disposal
for each woman's toilet stall. Tissue dispenser in
women's toilet stalls will be dual dispenser with
stainless steel shelf above, (A.S.I. Model #0697-GAL).
A soap dispenser, paper towel cabinet, and mirror in each
toilet room and a sanitary napkin dispenser in each women's
toilet room will be provided. A 48" high full-length mirror
will be provided in each men's and women's toilet room.
-76-
Stairs (Base Building):
-----------------------
A. Floors: Exposed sealed concrete.
▇. ▇▇▇▇▇: All stair-side gypsum board will be
painted.
C. Ceilings: The underside of the exposed stairway
structure will be painted.
D. Metals: All handrails, stringers, etc. will be
painted steel.
E. Base: 4" rubber will be installed around each
stairway landing.
Electrical/Telephone Rooms (Base Building):
------------------------------------------
A. Floors: The floors in these rooms will be sealed
concrete.
▇. ▇▇▇▇▇: The walls will be painted sheetrock or
concrete block. No rubber will be provided in
these areas.
C. Ceiling: The exposed structure will remain
unfinished.
Janitor's Closet (Base Building):
---------------------------------
A. Floors: The janitor's closet floor will be
exposed sealed concrete.
▇. ▇▇▇▇▇: The sheetrock walls will be painted. Vinyl
base will be installed around the perimeter of
the room.
C. Ceiling: The exposed structure will remain
unfinished.
-77-
Special Systems Life Safety System
------------------
The building shall be designed and constructed to
comply with Chapter 39 of the South Florida Building
Code Hi Rise Fire Protection and Life Safety".
The following life safety systems shall be installed
in accordance with Chapter 39:
.Fire sprinkler system
.Fire detection, alarm and communication systems
.Fire command center
.Smoke control system
.Elevator for firemen's use
.Standby power, light and emergency systems
Annunciator, detectors, strobe lights and any other
life safety equipment required in the tenant spaces
due to the addition of partitions will be part of
the Tenant Improvement Allowance.
Security System
---------------
A controlled access system will be installed at the
main entry for after hours access. It will be a
keypad or card key system.
-78-
Specialties Pedimats
--------
Built-in entry mats at main entries.
Fire Extinguishers
------------------
Twelve (12) 4A60BC fire extinguishers and cabinets
will be provided for the common areas.
Miscellaneous Metals
--------------------
An access ladder will be provided to elevator pit.
Mini Blinds
-----------
1" mini blinds equal to Bali are included in base
building for all of the windows except the lobby.
Exterior and interior signage
-----------------------------
. Base building: Parking lot and driveway signage,
interior door signage of public space (Base
Building).
. Tenant signage - Exterior and interior signage
will be provided as part of the Tenant Building
Allowance.
-79-
Interior Circulation Elevators Passenger Elevator
----------------------------
Contractor will furnish and install four (4)
traction passenger elevators with a capacity of 3500
lbs. at a speed of 350 ft. per minute. The clear
platform dimensions will be 6'-8" x 5'-5". The doors
will be center opening 3'-6" x 8'- 0". All elevators
will be Finished with materials to match and
compliment the lobby Finishes. A $9,000.00/cab
allowance is included for the interior elevator cab
Finishes.
Service Elevator
----------------
Contractor will furnish and install one (1)
hydraulic service elevator with a capacity of 3000
lbs. at 150 ft. per minute, the platform dimensions
will be 6'- 0" x 8'-4" with 9'-0" clear ceiling
height. The interior cab finish will be
manufacturer's standard plastic laminate wall
panels, lay in ceiling and vinyl floor.
Stairs
------
Interior stairs will be steel ▇▇▇▇▇▇▇▇ and concrete
filled metal pan treads with metal risers. Handrails
and supports at all walls will be metal sections.
One stairwell will be extended to the roof for
access to the HVAC equipment.
-80-
Protection System Fire Protection System
----------------------
Contractor will install a wet pipe base building
automatic fire protection system for the facility to
comply with the written requirements of the Fire
▇▇▇▇▇▇▇▇ and applicable codes.
The automatic fire protection sprinkler system is
designed for the following density:
Light hazard 0.10 GPM/1500 SF
The base building sprinkler system will include a
reduced pressure backflow preventor, riser piping
and control valve for each floor. The sprinkler
system will contain a flow alarm connected to a fire
alarm panel for remote alarm monitoring. An electric
fire pump is included.
The system will include a free-standing 2 1/2" Fire
Department Siamese connection adjacent to the main
entrance, risers and main line loops on each floor.
Base Building vs. T.I.:
Chrome semi-recessed heads will be installed in the
tenant space based on light hazard coverage for an
open floor plan. Modifications or additions required
by the tenant wall layout are not included in the
base building.
Sprinkler heads in the lobby areas (including upper
level elevator lobbies) will be flush-concealed
heads placed in the gypsum board ceiling.
All sprinkler heads will be spaced in accordance
with a layout based on light hazard coverage per
NFPA 13.
Plumbing System System Description
------------------
Contractor will design and install a complete base
building plumbing system. Included will be all
outside sewer and water work, interior waste and
vent, hot and cold water piping system, and common
area plumbing fixtures as shown on the drawings.
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇ and Water Work
----------------------------
Contractor will make all necessary connections to
the municipal utilities and flush and test all
piping systems.
Interior Piping Systems
-----------------------
A complete sanitary waste and vent piping system,
and hot and cold water piping system will be
provided, using code approved materials and methods.
An interior roof drainage system will be connected
to the exterior storm drain system.
All hot water piping and all roof drain sumps and
horizontal runs of metal roof drainage piping will
be insulated to energy code thickness'.
Stop valves are included at each fixture in addition
to the required unions and isolating valves at each
floor to create an easily serviceable system. All
piping systems will be flushed and tested.
Drainage Specialties
--------------------
Floor drains will be provided in the toilet rooms
--
and mechanical room. Drains and cleanouts will be
equal to ▇▇▇▇▇, ▇▇▇▇ or ▇▇▇▇.
Service Water Heating System
----------------------------
Hot water will be delivered to lavatories at 110
degrees Fahrenheit by means of electric water heater
on a shelf above the mop sink in the Janitor's
closet to serve the plumbing fixtures on that wing.
Water heaters will be equal to ▇.▇. ▇▇▇▇▇.
-82-
Plumbing Fixtures and Equipment
---------------------
Plumbing fixtures will be commercial quality equal
to American Standard, Kohler or Eljer. Lavatories
will be vitreous china bowels with lever style
faucets set in a granite vanity. Water closets
will be wall mounted, flush valve type. Urinals
will be wall mounted, flush valve units. All
fixtures will conform to the water and energy
saving provisions of the Plumbing Code. Fixture
counts will also conform to local code
requirements.
Wet stacks for future tenant connections will be
installed at the remote stairs.
A janitor's mop sink will be furnished in each
--
floor.
Six wall hydrants equal to Woodford, Josam or ▇▇▇▇
will be installed, one per elevation with one at
the dock area.
Electric water coolers will be installed at toilet
room entrance locations. The quality will be equal
to ▇▇▇▇▇▇ ▇▇▇▇▇▇, Westinghouse or Oasis.
The building will not be provided with a water
softener system or water distillation system.
Heating, Ventilating and A complete variable air volume systems designed in
Air Conditioning System accordance with applicable local code and ASHRAE
requirements will be provided to serve the
building heating, ventilating and air conditioning
requirements. Primary cooling system will consist
of self contained water-cooled air conditioning
units located in the mechanical rooms on each
floor (2 per floor). The cooling tower will be
located on the roof.
The HVAC Systems will be designed to maintain 72
degrees F. at ASHRAE 99% design conditions for
heating and to maintain 75 degrees F. dry build at
ASHRAE 1% design conditions for cooling. For HVAC
load calculations, average occupancy will be based
upon 140 rsf per person, 2 ▇▇▇▇▇ per rsf for
lightings, and 6 ▇▇▇▇▇ with 33% diversity per rsf
for office equipment loads.
Fresh air will be provided through the air
handling units in accordance with ASHRAE Standard
#62-89 but, in any case, in sufficient quantity to
provide a minimum of 20 CFM per person or to make-
up all required exhaust, whichever is greater.
Humidification is not included within the scope of
the base building work,
-83-
Primary trunk ducts from the air handlers,
secondary ductwork, VAV boxes, diffusers and
return air grilles as well as the sensors and
connections to terminal devices for the
direct digital control energy management
system will be provided for each zone as
called for herein. Fire dampers will be
provided as required by applicable codes.
VAV boxes will be pressure independent type,
Environmental Technologies SSd-II or
equivalent ▇▇▇▇▇, Carries or Trane units.
Each VAV box minimum limit shall be set to
deliver the minimum amount of outside air
required by the number of people programmed
for each zone. VAV box controls and damper
operators shall be electric.
VAV boxes will be zoned by exposure and
occupancy requirements. One zone is to be
provided for each 1600 sf (approximately) at
interior zones and 1000 sf at perimeter
zones. Each VAV box will be served by an
individual direct digital controller/sensor
combination. Zone sensors may be located in
private office, conference and training
rooms, or in the open office areas as
determined by the mechanical engineer. VAV
boxes will be located above the lay-in
ceilings in easily accessible spaces,
avoiding lights and plumbing. Air
distribution downstream of each VAV box will
be through, low pressure, sheet metal duct
work.
Base Building vs. T.I.:
The air distribution system will consist of
medium pressure duct mains to the VAV boxes.
The tenant's space VAV boxes and the low
pressure duct from the VAV boxes out to the
lay-in diffusers will be installed based on
an open floor plan. Modifications or
additions to the system for tenant
improvements shall be part of the T.I. The
common areas will be complete with VAV boxes
low pressure ducts and diffusers (lobbies &
toilets).
A direct digital control system will be
provided complete and will be ▇▇▇▇▇▇▇
Controls, ▇▇▇▇▇▇-▇▇▇▇▇▇, Andover, ▇▇▇▇▇▇ &
Gyr/Powers, Honeywell or Trane. It will
include a central system controller/PC
workstation combination and will provide the
following control functions:
-84-
. On-Off scheduling and status of all HVAC
equipment
. Operating hours optimization
. Supply air temperature optimization
. Zone temperature control and monitoring
System control point monitoring
. Ventilation (outside) air controls
. Exhaust systems
. Lighting
Exhaust systems will be provided for the
toilet rooms and janitors closets as required
by code.
Variable Air Volume Boxes: Trane VariTrane
air valve boxes with DDC/VAV controllers will
be installed for interior common areas. The
VAV perimeter boxes will be fan powered and
have electric heat.
Air Distribution: All medium pressure
ductwork will be sheet metal in accordance
with SMACNA standards. Air will return from
the conditioned space to the self-contained
units through ceiling grilles into the plenum
space.
A smoke evacuation and stair pressurization
system will be designed and installed in
accordance with the South Florida building
code.
Contractor will design, furnish and install
base building heating, ventilation and air
conditioning system meeting local codes
ASHRAE 90-80.
The elevator machine room is air conditioned
for the electronic equipment.
-85-
Electrical System Power Distribution
------------------
Contractor will design and install a complete
building power distribution system to supply
heating, ventilating, air conditioning,
lighting, convenience outlets, elevators,
etc.
A 480/277 volt, 3-phase, 4-wire, pad mounted
transformer will be furnished by the
electrical utility. Base building electrical
installation will be completed from the
transformer to centrally located power and
lighting panels, throughout the building. A
480/277-volt distribution will be provided to
the heating and air conditioning system
equipment and the light fixtures.
Service entrance capacity shall be 7400 amps
with single main service disconnect. All
distribution over current devices will be of
the circuit breaker type. Bolt on type
circuit breakers will be used on panelboards.
Panelboards and panelboard feeders for
lighting and convenience power will be
oversized for 20% future load.
One (1) secondary surge arrestor and one (1)
TVSS will be provided at the main switch
location (▇▇▇▇▇▇ relay or equivalent).
Vertical electrical distribution will be two
bus ducts rising vertically through stacked
electrical rooms. Each :room container (2)
bus taps - one high and one low voltage. Two
(each) 112.5 KVA step down transformers per
floor for low voltage power.
-86-
Contractor will provide, as part of the
tenant improvement cost, power distribution
on each floor from the base building panels
for the tenant 120/208-volt power
distribution, including convenience
receptacles.
Contractor shall supply 120/2',08 V
transformers anti distribution panels as part
of the base building. Four (4) each 120/208 V
3ph 4 wire- 42 circuit panels will be
installed on each floor as part of the base
building. There will be two electrical
closets on each floor with two panels in
each. The 120v power provided for tenant
equipment will be 5 ▇▇▇▇▇ per square foot.
Base Building vs. T.I.:
Contractor will provide power distribution on
each floor from the base building panels for
the tenant 120/208-volt power distribution,
including convenience receptacles as part of
the Tenant Buildout Allowance.
Equipment Connections
---------------------
All electrically powered base building
mechanical equipment as described will be
connected as required. This will include but
not be limited to, elevators, HVAC equipment,
VAV boxes, exhaust fans, water heaters, and
ventilation fans. Electrically powered tenant
area equipment will be connected as part of
the Tenant Buildout Allowance.
Miscellaneous Power
-------------------
Miscellaneous use duplex 120-volt receptacles
will be provided in equipment rooms and
storage areas and corridors. Exterior service
outlets will be provided near the roof
mounted HVAC equipment and at grade level as
described on the drawings. A waterproof
convenience outlet will be provided at the
loading area.
-87-
Lightning Control
-----------------
The lighting control system shall be
integrated into the building management
system. The direct digital control (DDC) will
consist of 5 zones per floor with an
additional zone for the parking lot lighting.
One zone on each floor will be dedicated to
controlling the common area lights. The
remaining four zones will be available for
tenant buildout requirements. Purchase of
modules for additional zones and hook up of
contacts for tenant lighting will be part of
the tenant improvement cost.
Telephone Service
-----------------
A diverse entry underground telephone service
conduit will be provided and extended to the
building telephone service room and the
telephone service will be coordinated with
the construction of the building. Service
conduit into the building shall consist of
three 4" conduits with diversified routes.
Telephone equipment and wiring to the
individual floors and tenant spaces will be
part of the Tenant Building Allowance.
Lighting System Tenant Areas
------------
Tenant area lighting fixtures will be 2' x
4', 3 lamp, 18 cell, 3" deep parabolic
fixtures with T8 lamps and electronic
ballasts, will be furnished and installed as
part of the base building at a rate of I per
80 rsf. Additional fixtures required by the
tenant design will be part of the tenant
improvement.
Elevator Lobbies
----------------
Lay-in 2' x 2' three lamp, nine cell
parabolic fluorescent fixtures or PL
downlight fixtures will be provided at the
ceiling as part of the Lobby. Cove lighting
will also be provided.
Electrical Rooms, Mechanical Rooms, Janitors
--------------------------------------------
Closets and Loading Areas
-------------------------
Lighting in these spaces will be 4' and 8'
fluorescent strip fixtures. The structure
shall be left exposed.
-88-
Exterior
--------
Lighting at the building exterior exits will
consist of soffit mounted, recessed metal
halide fixtures. Wall mounted fixtures will
also be provided as required at the receiving
area. All exterior lighting is included as
part of base building costs.
Emergency/Exit
--------------
Emergency lighting will consist of emergency
battery powered selected fixtures and exit
lights in the stairwells, corridors and other
public areas unless powered by an emergency
generator (included as part of the base
building costs). Exit lights in public spaces
shah be edge lit with green letters. Exit
lights in tenant areas will lie back lit
type.
Level One Corridor
------------------
The lighting in the level one exit corridor
as well as other miscellaneous finished
spaces on level one will be 2' x 4' three
lamp, eighteen cell lay-in parabolic
fluorescent fixtures or PL downlight
fixtures, included as part of base building
costs.
Toilet Rooms
------------
Lay-in 2' x 2' and 2' x 4' three lamp,
eighteen cell parabolic fluorescent fixtures
will be provided in each toilet room as part
of base building costs. A light cove will be
provided over lavatories.
-89-
Exceptions Items Not Included
------------------
The following items are specifically excluded
from Contractor's base building proposal:
. Setting, wiring, plumbing, or
connections of tenant equipment
including the Client's equipment such as
computers, CRT's, computer peripherals,
cameras, process equipment, telephone
equipment
. Central time clock and music, paging,
night bells, telephone or other internal
communications systems
. Furniture and office furnishings
including but not limited to demountable
landscape office partitioning, lockers,
kitchen equipment, appliances, vending
machines, racking and shelving,
audio-visual equipment and projection
screens except as provided for in the
fitness center
. Underfloor power/communication duct
system, compressed air system, process
ventilation
. Window cleaning swing stages and washing
equipment
. Trash containers or compactors
. Exterior building accent lighting
. Flag poles
Tenant Buildout Notwithstanding anything Allowance herein to
Allowance the contrary, the following items are to be
accommodated by the Tenant Build-Out noted
above:
. Interior Finishes on floors and walls
throughout the tenant space Tenant Area
Partitions, doors, frames, windows and
hardware Modification to the base
building mechanical system, VAV boxes,
distribution, controls, fixtures and
trim required by the tenant layout
Additional Sprinkler system branches,
drops and heads in tenant areas required
by the tenant: layout
. Electrical distribution and trim in
tenant areas
. Lighting fixtures and trim other than
2'x4' fluorescent fixtures (except
common area and parking lot lighting)
. Specialty interior items
. General Conditions for Tenant Buildout
(permits, insurance, cleanup,
supervision, etc.)
-90-
Base Building Costs Notwithstanding anything herein to the
contrary, the following items are included in
base building costs:
. Sitework and Landscape
. Building foundations
. Building Superstructure
. Building Envelope (i.e. skin ,and roof)
. Common area partitions finished on common
area side (minus finishes on tenant side)
. Common area ceilings
. Ceiling throughout tenant space
. Central Plant Mechanical, Electrical and
Plumbing and Fire Protection equipment
risers and main lines
. Toilet Room and Stab: Finishes
. Lobby Finishes Allowance
. Elevators
. Card Key security system
. Completed HVAC, fire sprinkler, lighting,
and ceiling based on an open floor plan in
the tenant areas
Initials:
Landlord:
Tenant:
-91-
EXHIBIT "G"
-----------
LETTER OF CREDIT TERMS AND CONDITIONS
1. Letter of Credit. Within fifteen (15) Business Days after the
execution of this Lease, Tenant must deliver to Landlord an unconditional,
irrevocable standby letter of credit ("Letter of Credit") which:
(a) conforms in form and substance to the attached Schedule "1" or is
otherwise reasonably acceptable to Landlord;
(b) is issued by a United States federal or state chartered bank that (i)
is either a member of the New York Clearing House Association or is a
commercial bank or trust company reasonably acceptable to Landlord
("Issuer");
(c) names Landlord as beneficiary thereunder; and
(d) has a term ending not less that one year after the date of issuance.
The Letter of Credit (as transferred, extended, renewed or replaced) must
be maintained during the entire Lease Term, as extended or renewed, and for
a period of 45 days thereafter, subject to the terms of Sections 1.2.6 and
2.6.
2. Transfer; Fees. Landlord may freely transfer the Letter of Credit in
connection with an assignment of tile Lease without (i) Tenant's consent, (ii)
restriction on the number of transfers or (iii) condition, other than
presentment to Issuer of the original Letter of Credit and a duly executed
transfer document conforming to the form attached as Exhibit "B" to the Letter
of Credit. Tenant is solely responsible for any bank fees or charges imposed by
Issuer in connection with the issuance of the Letter of Credit or any transfer,
renewal, extension or replacement thereof. Landlord may, at its option and
without notice to Tenant, elect to pay any transfer fees to Issuer when due, and
upon payment, such amount will become immediately due and payable from Tenant to
Landlord as Additional Rent Under this Lease.
3. Definition of Draw Event. "Draw Event" means the occurrence of any of
the following events:
(a) An Event of Default; or
(b) Tenant holds over or remains in possession of the Premises after the
expiration of the Term or termination of this Lease, without Landlord's
consent.
4. Draw and Use of Draw Proceeds. Immediately upon the occurrence of any
one or more Draw Events, and at any time thereafter, Landlord may draw on the
Letter of Credit, in whole or in part (if partial draw is made, Landlord may
make multiple draws) in an amount sufficient to cure such Event of Default, as
Landlord may determine in Landlord's sole and absolute discretion. The term
"Draw Proceeds" means the cash proceeds of any draw or draws made by Landlord
under the Letter of Credit. Any delays by Landlord in drawing on the Letter
-92-
of Credit or using the Draw Proceeds will not constitute a waiver by Landlord of
any of its rights hereunder with respect to the Letter of Credit or the Draw
Proceeds.
In addition to any other rights and remedies Landlord may have, Landlord
may use and apply all or any portion of the Draw Proceeds to pay Landlord for
any one or more of the following:
(a) Rent or any other sum :which is past due, due or becomes due, or to
which Landlord is otherwise entitled under the terms of this Lease, whether
due to the passage of time, the existence of a default or otherwise
(including, without limitation, late payment fees or charges and any
amounts which Landlord is or would be allowed to collect under Sections
14.2 or 14.3 of this Lease, and without deducting therefrom any offset for
proceeds of any potential reletting or other potential mitigation which has
not in fact occurred at the time of the draw);
(b) any and all amounts incurred or expended by Landlord in connection
with the exercise and pursuit of any one or more of Landlord's rights or
remedies under this Lease, including, without limitation, reasonable
attorneys' fees and costs;
(c) any and all amounts incurred or expended by Landlord in obtaining the
Draw Proceeds, including, without limitation, reasonable attorneys' fees
and costs; or
(d) any and all other damage, injury, expense or liability caused to or
incurred by Landlord as a result of any Event of Default, Draw Event or
other breach or default by Tenant under this Lease.
Following any use or application of the Draw Proceeds, Tenant, if requested by
Landlord in writing, must, within 10 days after receipt of Landlord's request,
cause a replacement Letter of Credit to be issued and delivered to Landlord in
accordance with Section 1 above. Upon Landlord's receipt of the replacement
Letter of Credit, Landlord will deliver the prior original Letter of Credit to
Issuer for cancellation (if not theretofore fully drawn).
If it is determined or adjudicated by a court of competent jurisdiction
that Landlord was not entitled to draw on the Letter of Credit or apply any Draw
Proceeds, Tenant may, as its sole and exclusive remedy, (i) cause Landlord to
deliver the prior original Letter of Credit to Issuer for cancellation (if not
theretofore fully drawn) and (ii) recover from Landlord all out-of-pocket fees,
costs (including reasonable attorneys' fees and costs) and interest expenses
actually incurred by Tenant as a direct result of Landlord's draw on the Letter
of Credit or application of any Draw Proceeds; provided, however, Tenant may
exercise its exclusive remedy only after Tenant has caused a replacement Letter
of Credit to be issued and delivered to Landlord in accordance with this Section
1. Landlord will not be liable for ,any indirect, consequential, special or
punitive damages incurred by Tenant in connection with either a draw by Landlord
on the Letter of Credit or the use or application by Landlord of the Draw
Proceeds. Nothing in this Lease or in the Letter of Credit will Confer upon
Tenant any property right or interest in any Draw Proceeds.
-93-
5. Renewal and Replacement. If the Letter of Credit provides that it will
be automatically renewed unless Issuer provides written notice of nonrenewal to
Landlord, the Letter of Credit must require that Issuer provide such written
notice of nonrenewal to Landlord at least 60 days prior to the expiration date
of the Letter of Credit. If the Letter of Credit does not provide for such
automatic renewal (or if written notice of nonrenewal is received from Issuer),
Tenant must renew the Letter of Credit or replace it with a new Letter of
Credit, at least 30 days prior to the stated expiration date of the then-current
Letter of Credit. Any renewal or replacement Letter of Credit must meet the
criteria set forth in Section 2.6 and have a term commencing at least one day
prior to the stated the expiration date of the immediately prior Letter of
Credit.
6. Issuer Quality Event. If an Issuer Quality Event occurs, Tenant, upon
30 days advance written notice from Landlord, must, at its own cost and expense,
provide Landlord with a replacement Letter of Credit meeting all of the
requirements of Section 1. The term "Issuer Quality Event" means the occurrence
of the following event: Issuer's ability to pay is downgraded below an
investment grade rating.
7. Additional Agreements of Tenant. Tenant expressly acknowledges and
agrees that:
(a) the Letter of Credit constitutes a separate and independent contract
between Landlord and Issuer, and Tenant has no right to submit a draw to
Issuer under the Letter of Credit;
(b) Tenant is not a third-party beneficiary of such contract, and
Landlord's ability to either draw under the Letter of Credit for the full
or any partial amount thereof or to apply Draw Proceeds may not, in any
way, be conditioned, restricted, limited, altered, impaired or discharged
by virtue of any Laws to the contrary, including, but not limited to, any
Laws that restrict, limit, alter, impair, discharge or otherwise affect any
liability that Tenant may have under this Lease or any claim that Landlord
has or may have against Tenant;
(c) neither the Letter of Credit nor any Draw Proceeds will be or become
the property of Tenant, and Tenant does not and will not have any property
right or interest therein;
(d) Tenant is not entitled to any interest on any Draw Proceeds;
(e) neither the Letter of Credit nor any Draw Proceeds constitute an
advance payment of Rent, security deposit or rental deposit;
(f) neither the Letter of Credit nor any Draw Proceeds constitute a
measure of Landlord's damages resulting from any Draw Event, Event of
Default or other breach or default (past, present or future) under this
Lease; and
(g) Tenant will cooperate with Landlord, at Tenant's own expense, in
promptly executing and delivering to Landlord all modifications,
amendments, renewals,
-94-
extensions and replacements of the Letter of Credit, as Landlord may
reasonably request to carry out the terms and conditions of this Exhibit G.
-95-
SCHEDULE 1
TO
EXHIBIT "G" OF THE LEASE
FORM OF LETTER OF CREDIT
[LETTERHEAD OF ISSUING BANK]
IRREVOCABLE STANDBY LETTER DATE OF ISSUANCE:________________
OF CREDIT NO:____________________________ EXPIRATION DATE:_________________
BENEFICIARY:_____________________________ APPLICANT:_______________________
(LANDLORD) (TENANT)
----------------------------------------- ---------------------------------
_________________________________________ _________________________________
_________________________________________ _________________________________
AS THE ISSUING BANK ("ISSUER"), WE HEREBY ESTABLISH THIS IRREVOCABLE STANDBY
LETTER OF CREDIT NO. ______________ IN FAVOR OF THE ABOVE-NAMED BENEFICIARY
("BENEFICIARY") FOR THE ACCOUNT OF THE ABOVE-NAMED APPLICANT ("APPLICANT") IN
THE AMOUNT OF USD $________________ (___________________________) U.S. DOLLARS).
BENEFICIARY MAY DRAW ALL OR ANY PORTION OF THIS LETTER OF CREDIT AT ANY TIME AND
FROM TIME TO TIME AND ISSUER WILL, MAKE FUNDS IMMEDIATELY AVAILABLE TO
BENEFICIARY UPON PRESENTATION OF BENEFICIARY'S DRAFT(S) AT SIGHT IN
SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT "A") ("SIGHT DRAFT"), DRAWN ON
ISSUER AND ACCOMPANIED BY THIS LETTER OF CREDIT. ALL SIGHT DRAFT(S) MUST BE
SIGNED AND ENDORSED ON BEHALF OF BENEFICIARY AND SIGNATOR MUST INDICATE HIS OR
HER TITLE OR OTHER OFFICIAL CAPACITY AND CERTIFY THE EVENT OF DEFAULT FOR WHICH
THE DRAW IS BEING ISSUED. NO OTHER DOCUMENTS WILL BE REQUIRED TO BE PRESENTER).
THE ISSUER WILL EFFECT PAYMENT UNDER THIS LETTER OF CREDIT WITHIN 24 HOURS AFTER
PRESENTMENT OF THE SIGHT DRAFT(S).
ISSUER WILL HONOR ANY SIGHT DRAFT(S) PRESENTED IN SUBSTANTIAL COMPLIANCE WITH
THE TERMS OF THIS LETTER OF CREDIT AT THE ISSUER'S LETTERHEAD OFFICE, THE OFFICE
LOCATED AT _______________________ OR ANY OTHER FULL SERVICE OFFICE OF THE
ISSUER ON OR BEFORE THE ABOVE STATED EXPIRATION DATE, AS SUCH EXPIRATION DATE
MAY BE EXTENDED HEREUNDER. PARTIAL AND MULTIPLE DRAWS AND PRESENTATIONS ARE
PERMITTED ON ANY NUMBER OF OCCASIONS. FOLLOWING ANY PARTIAL DRAW, ISSUER WILL
ENDORSE THIS LETTER OF CREDIT AND RETURN THE ORIGINAL TO BENEFICIARY.
-96-
ISSUER ACKNOWLEDGES THAT THIS LETTER OF CREDIT IS ISSUED PURSUANT TO THE
PROVISIONS OF THAT CERTAIN LEASE AGREEMENT BETWEEN THE BENEFICIARY AND THE
APPLICANT FOR SPACE LOCATED AT
_________________________________________________________________.("LEASE").
NOTWITHSTANDING ANY REFERENCE IN THIS LETTER OF CREDIT TO THE LEASE OR ANY OTHER
DOCUMENTS, INSTRUMENTS OR AGREEMENTS, OR REFERENCES IN THE LEASE OR ANY OTHER
DOCUMENTS, INSTRUMENTS OR AGREEMENTS TO THIS LETTER OF CREDIT, THIS LETTER OF
CREDIT CONTAINS THE ENTIRE AGREEMENT BETWEEN BENEFICIARY AND ISSUER RELATING TO
THE OBLIGATIONS OF ISSUER HEREUNDER..
THIS LETTER OF CREDIT WILL BE AUTOMATICALLY" EXTENDED EACH YEAR WITHOUT
AMENDMENT FOR A PERIOD OF ONE YEAR FROM THE EXPIRATION DATE HEREOF, AS EXTENDED,
UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO THE EXPIRATION DATE, ISSUER NOTIFIES
BENEFICIARY BY REGISTERED MAIL THAT IT ELECTS NOT TO EXTEND THIS LETTER OF
CREDIT FOR SUCH ADDITIONAL PERIOD. NOTICE OF NON-EXTENSION WILL BE GIVEN BY
ISSUER TO BENEFICIARY AT BENEFICIARY'S ADDRESS SET FORTH HEREIN OR AT SUCH OTHER
ADDRESS AS BENEFICIARY MAY DESIGNATE TO ISSUER IN WRITING AT ISSUER'S LETTERHEAD
ADDRESS
THIS LETTER OF CREDIT IS FREELY TRANSFERABLE IN WHOLE OR IN PART, AND THE NUMBER
OF TRANSFERS IS UNLIMITED. ISSUER AGREES THAT IT WILL EFFECT ANY TRANSFERS
IMMEDIATELY UPON PRESENTING TO ISSUER THIS LETTER OF CREDIT AND A WRITTEN
TRANSFER REQUEST SUBSTANTIALLY IN THE FORM OF THE COMPLETED TRANSFER FORM
ATTACHED HERETO AS EXHIBIT "B". SUCH TRANSFER WILL BE EFFECTED AT NO COST TO
BENEFICIARY. ANY TRANSFER FEES ASSESSED BY ISSUER
WILL BE PAYABLE SOLELY BY APPLICANT, AND THE PAYMENT OF ANY TRANSFER FEES WILL
NOT BE A CONDITION TO THE VALIDITY OF THE TRANSFER OR THE EFFECTIVENESS OF THIS
LETTER OF CREDIT.
EXCEPT AS OTHERWISE EXPRESSLY MODIFIED HEREIN, THIS STANDBY LETTER OF CREDIT IS
SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998, PUBLISHED BY THE
INTERNATIONAL CHAMBER OF COMMERCE.
ISSUER:
By:___________________________
AUTHORIZED SIGNATURE
Its:__________________________
-97-
EXHIBIT "A"
TO LETTER OF CREDIT
SIGHT DRAFT
-----------
Sight Draft
$_______________
Beneficiary hereby certifies to Issuer that Applicant is in default under
the terms of the Lease in the following respect(s):
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
At sight, pay to the order of [Name of Beneficiary to be inserted], the
amount of USD $__________________ (_______________and 00/100ths U.S. Dollars).
Drawn under [Name of Issuer to be inserted] Standby Letter of Credit No.
_________.
Dated: _______________________, 20___
[Name of Beneficiary to be inserted]
By:_______________________________________
Its Authorized Representative and [Title or
Other Official Capacity to be inserted]
To: [Name and Address of Issuer to be inserted]
-98-
EXHIBIT "B"
TO LETTER OF CREDIT
FORM OF TRANSFER REQUEST
IRREVOCABLE STANDBY LETTER OF
CREDIT NO:_____________________
CURRENT BENEFICIARY: APPLICANT:
_______________________________________ _________________________________
_______________________________________ _________________________________
_______________________________________ _________________________________
TO: [NAME OF ISSUING BANK] [THIS TRANSFER REQUEST MAY BE PRESENTED AT ISSUER'S
LETTERHEAD OFFICE OR ANY OTHER FULL SERVICE OFFICE OF THE ISSUER]
The undersigned, as the current "Beneficiary" of the above referenced Letter of
Credit, hereby requests that you reissue the Letter of Credit in favor of the
transferee named below [INSERT TRANSFEREE NAME AND ADDRESS BELOW]:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
From and after the date this transfer request is delivered to the Issuer, the
transferee shall be the "Beneficiary" under the Letter of Credit for all
purposes and shall be entitled to exercise and enjoy all of the rights,
privileges and benefits thereof.
DATED:_______________________ [NAME OF BENEFICIARY]
By_______________________________
Name_____________________________
Title____________________________
[NOTARY ACKNOWLEDGMENT]
[TO BE SIGNED BY A PERSON PURPORTING TO BE AN AUTHORIZED REPRESENTATIVE OF THE
BENEFICIARY AND INDICATING THEIR TITLE OR OTHER OFFICIAL CAPACITY, AND
ACKNOWLEDGED BY A NOTARY PUBLIC.]
-99-