EXHIBIT 10.4
COMMERCIAL LEASE
By and between
FG 2200, LLC
as Landlord
and
▇▇▇▇▇▇▇▇.▇▇▇, INC.
as Tenant
Date: November 30, 2000
COMMERCIAL LEASE
INDEX
PAGE
1. DEFINED TERMS...........................................................2
2. TERM....................................................................6
3. USE.....................................................................6
4. RENT....................................................................6
5. OPERATING EXPENSES......................................................7
6. SALES TAXES............................................................10
7. ASSIGNMENT OR SUBLETTING...............................................10
8. INSURANCE..............................................................13
9. DEFAULT................................................................15
10. ALTERATIONS............................................................18
11. LIENS..................................................................19
12. ACCESS TO PREMISES.....................................................20
13. LANDLORD'S LIEN........................................................20
14. INTENTIONALLY OMITTED..................................................20
15. ENVIRONMENTAL LAWS.....................................................20
16. CASUALTY DAMAGE........................................................21
17. CONDEMNATION...........................................................22
18. REPAIR AND MAINTENANCE.................................................23
19. ESTOPPEL CERTIFICATES..................................................23
20. SUBORDINATION..........................................................24
21. INDEMNIFICATION........................................................25
22. ANTIWAIVER.............................................................25
23. NO REPRESENTATIONS BY LANDLORD.........................................25
24. SERVICES AND UTILITIES.................................................25
25. SECURITY DEPOSIT.......................................................26
26. GOVERNMENTAL REGULATIONS...............................................27
27. SIGNS..................................................................28
28. SURVIVAL...............................................................28
29. BROKER.................................................................28
30. QUIET ENJOYMENT........................................................28
31. END OF TERM............................................................29
32. RECORDATION............................................................29
33. LEASE NOT BINDING UNLESS EXECUTED......................................30
34. ATTORNEYS' FEES........................................................30
35. NOTICES................................................................30
36. RADON GAS..............................................................31
37. SUCCESSORS AND ASSIGNS; PERSONS BOUND..................................31
38. JURY WAIVER; COUNTERCLAIMS.............................................31
39. INTENTIONALLY OMITTED..................................................31
40. IMPOSSIBILITY OF PERFORMANCE...........................................31
41. GUARANTY...............................................................32
42. TENANT'S REPRESENTATIONS...............................................32
43. LANDLORD'S REPRESENTATION..............................................32
44. INTENTIONALLY OMITTED..................................................32
45. PARKING................................................................32
46. GENERAL PROVISIONS.....................................................32
47. INTENTIONALLY OMITTED..................................................33
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EXHIBIT "A" - LEGAL DESCRIPTION OF BUILDING PROJECT
EXHIBIT "B" - SKETCH OF PREMISES
EXHIBIT "C" - SCHEDULE OF BASE RENT
EXHIBIT "D" - INTENTIONALLY OMITTED
EXHIBIT "E" - RULES AND REGULATIONS
EXHIBIT "F" - TENANT IMPROVEMENTS
EXHIBIT "G" - LETTER OF CREDIT
EXHIBIT "H" - WAIVER OF LANDLORD'S LIEN AGREEMENT
EXHIBIT "I" - INTENTIONALLY OMITTED
EXHIBIT "J" - GUARANTY
RIDER NO. 1 - OPTION TO EXTEND
RIDER NO. 2 - INTENTIONALLY OMITTED
RIDER NO. 3 - LICENSE TO USE ROOFTOP SPACE
ii
LEASE
THIS LEASE (the "Lease")is made and entered into as of the Date of this
Lease, by and between FG 2200, LLC, a Florida limited liability company (the
"Landlord"), and ▇▇▇▇▇▇▇▇.▇▇▇, INC., a Florida corporation (the "Tenant").
W I T N E S S E T H:
Subject to the terms and conditions of this Lease, Landlord leases to
Tenant and Tenant hires from Landlord the Premises, together with any and all
rights, benefits, privileges, and easements now or hereafter appurtenant
thereto, except as reserved to Landlord under the terms of this Lease.
Landlord and Tenant covenant and agree:
1. DEFINED TERMS: The following terms, as used in this Lease, shall
have the following meanings in this Lease and all exhibits and riders to this
Lease:
(.1) "ADA" shall mean the Americans with Disabilities Act of 1990
and all similar present or future laws, together with all regulations
promulgated under any of the laws.
(.2) "Alterations" shall mean any alteration, addition, or
improvement in or on or to the Premises of any kind or nature, including the
Tenant Improvements.
(.3) "Bankruptcy Code" shall mean the Bankruptcy Code of 1978, 11
U.S.C. Section 101 et seq., as amended from time to time, or any successor
statute.
(.4) "Base Rent" shall mean the amounts set forth in the schedule
attached as EXHIBIT "C". The Base Rent is a flat amount and has not been
calculated based on a price per square foot of space in the Premises.
(.5) "Building" shall mean the commercial building containing
approximately 50,000 rentable square feet of space and located at ▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. The Building is located within the
Building Project. No representation or warranty is made as to the size of the
Building and neither Tenant nor Landlord shall have any rights against the other
should the actual size of the Building differ from 50,000 rentable square feet.
(.6) "Building Project" shall mean all of the land (the "Land")
together with the improvements thereon located at ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and more particularly described in the legal description
attached as EXHIBIT "A" to this Lease.
(.7) "Business Days" shall mean all days other than Saturdays,
Sundays, or Legal Holidays.
(.8) "Commencement Date" shall mean the Date of this Lease.
(.9) Intentionally omitted.
(.10) "Common Areas" shall have the definition set forth in
Section 14.
(.11) "Communication" shall mean any notice demand, request,
election, or other communication required or permitted to be given or made to or
by any party of this Lease or otherwise given or made under or pursuant to this
Lease (See Section 35).
(.12) "Date of this Lease" shall mean the date when the last one
of the Landlord and Tenant has signed this Lease.
(.13) "Default Rate" shall mean the lesser of: (i) the Prime Rate
in effect as of the date when the obligation accrued, plus 300 basis points, or
(ii) the Maximum Rate.
(.14) "Emergency" shall mean the threat of imminent injury or
damage to persons or property or the imminent imposition of a civil or criminal
fine or penalty.
(.15) "Environmental Laws" shall mean all applicable environmental
ordinances, rules, regulations, statutes, orders, and laws of all local, state,
or federal agencies or bodies with jurisdiction over the Premises or the
activities conducted on the Premises (See Section 15).
(.16) "Expenses" shall mean the total of all of the costs and
expenses (including capital expenditures, subject to the limitations and
provisions contained in Section 5C below) incurred or borne by Landlord with
respect to the operation and maintenance of the Building Project and the
services provided to Tenant, including but not limited to, the costs and
expenses incurred with respect to: Real Estate Taxes; steam and any other fuel;
water rates and sewer rates; heating; air conditioning; ventilation; window
washing (exterior only); pest control (exterior only); trash and garbage removal
(including dumpster rental); protection and security; repairs and maintenance to
the Building Project; fees or dues including, but not limited to, payments under
easements affecting the Land in existence as of the Date of this Lease; repairs,
maintenance, replacements, and improvements which are appropriate for the
continued operation of the Building Project as a first class building; exterior
landscaping: fertilization and irrigation supply; parking area maintenance and
supply; property management fees; all utilities serving the Building Project and
not separately billed to or reimbursed by any tenant of the Building Project;
painting of the Building Project; fire, extended coverage, all risks,
earthquake, change in condition, sprinkler apparatus, plate glass, rental
guaranty or interruption, public liability and property damage, flood, and any
other additional insurance customarily carried by owners of comparable buildings
or required by any mortgagee of the Building Project; supplies; service and
maintenance contracts for the Building Project; wages, salaries, disability
benefits, hospitalization, group insurance and other benefits respecting
employees of the Landlord up to and including the building manager (including a
pro rata share only of the wages and benefits of employees who are employed at
more than one building; which pro rata share shall be determined by Landlord and
shall be based on Landlord's estimate of the percentage of time spent by such
employees at the Building Project); worker's compensation insurance; and
payroll, social security, unemployment, and other similar taxes relating to
employees. Landlord may contract for the performance of some or all of the
management and maintenance functions generally described in this subsection with
such persons or entities as Landlord shall deem appropriate, including persons
or entities which are affiliated with Landlord.
Notwithstanding anything to the contrary contained in this
Lease, expenses shall exclude, or have deducted from them, as the case may be
and as shall be appropriate:
(a) Insurance proceeds received by Landlord to the extent
the proceeds are reimbursement for expenses included in Expenses;
(b) Depreciation, amortization, or interest payments, except
as specifically provided in this subsection and except on materials, tools,
supplies, and vendor-type equipment purchased by Landlord to enable Landlord to
supply services Landlord might otherwise contract for with a third party, where
such depreciation, amortization, and interest payments would otherwise have been
included in the charge for such third party's services, and when depreciation or
amortization is permitted or required, the item shall be depreciated or
amortized, as the case may be, over its reasonably anticipated useful life;
(c) Interest, principal, points, and fees on any mortgage or
other debt instrument encumbering the Building Project;
(d) Interest or other penalties for the late payment of any
Real Estate Taxes;
(e) Property management fees in excess of 5% of the total
annual Base Rent payable for the Building Project;
(f) Any ground lease rental;
(g) The rentals for items (except when needed in connection
with normal repairs and maintenance of permanent systems and except items rented
on a temporary or emergency basis) which if purchased, rather than rented, would
constitute a capital improvement (excluding, however, equipment not affixed to
the Building which is used in providing janitorial or similar services and
except for rentals of items
which would otherwise be capital items includable in Expenses under the terms of
this Lease);
(h) Costs incurred by Landlord due to the violation by
Landlord of the terms and conditions of this Lease;
(i) Overhead and profit paid to Landlord or to subsidiaries
or affiliates of Landlord for goods and/or services provided to the Building
Project to the extent the same exceeds the costs of such goods and/or services
customarily charged for similar goods or services by providers of equal or
better qualifications for buildings of like class and character;
(j) Landlord's general corporate overhead and general
administrative expenses;
(k) Except for making repairs or keeping permanent systems
in operation while repairs are being made, rentals and other related expenses
incurred in leasing air conditioning systems, elevators, or other equipment
ordinarily considered to be of a capital nature (other than on a short-term
basis) except equipment not affixed to the Building which is used in providing
janitorial or similar services;
(l) Advertising and promotional expenditures, and costs of
signs in or on the Building identifying the owner of the Building or other
tenants;
(m) Costs incurred in connection with upgrading the Building
to comply with handicap, life, fire, and safety, or any other governmental law,
code, ordinance or regulation in effect prior to the Date of this Lease.
Notwithstanding the foregoing, if the Building is not complying with any such
governmental requirement in effect prior to the Date of this Lease, but Landlord
is not required to make changes to bring the Building into compliance because of
a "grandfather" exemption or any other legal exemption excusing current
compliance, but, as a result of any Alterations made by Tenant (including the
Tenant Improvements), compliance with such governmental requirement is then
mandated, all costs of such compliance shall be borne by Tenant;
(n) Costs associated with the operation of the business of
the limited liability company or entity which constitutes Landlord as the same
are distinguished from the costs of the Building, including partnership,
accounting, and legal matters, costs of defending any lawsuits with any
mortgagee (except as the actions of Tenant may be an issue), costs of selling,
syndicating, financing, mortgaging, or hypothecating any of Landlord's interest
in the Building, costs of any disputes between Landlord and its employees (if
any) not engaged in Building Project operations, disputes of Landlord with the
Building Project's management company, or outside fees paid in connection with
disputes with other tenants;
(o) Costs directly resulting from the negligence of Landlord
or its agents, or any vendors, contractors, or providers of materials or
services selected, hired, or engaged by Landlord or its agents including the
selection of building materials;
(p) Costs arising from Landlord's charitable or political
contributions; and
(q) Costs, other than maintenance costs, of sculpture,
paintings, or other objects of art.
(.17) "Guarantor(s)" shall mean BPNT I LLC, a Florida limited
liability company and any party who subsequently guaranties all or any part of
Tenant's obligations under this Lease (See Section 41).
(.18) "Guaranty Letter of Credit" shall have the definition set
forth in the Guaranty attached as EXHIBIT "J".
(.19) "Landlord's Notice Address" shall mean FG 2200, LLC, ▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(.20) "Lease Term" shall mean the period from the Commencement
Date through December 31, 2010, as extended or sooner terminated under the terms
of this Lease (See Section 2).
(.21) "Leasing Broker" shall mean ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of Florida,
Inc. and Lincoln Property Company (See Section 29).
(.22) "Legal Holidays" shall mean days on which national banks are
closed for business in the city
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where the Building Project is located.
(.23) "Material Alterations" shall mean any Alteration which (i)
affects the exterior of the Building; or (ii) is structural; or (iii) affects
any area outside the Building; or (iv) affects utility services or mechanical,
electrical, sanitary, plumbing, HVAC, life safety, or other systems of the
Building; or (v) has a cost in excess of $25,000.00.
(.24) "Maximum Rate" shall mean the highest rate of interest
permitted to be charged by applicable law.
(.25) "Monetary Default" shall have the definition set forth in
Subsection 9A.
(.26) "Nonmonetary Default" shall have the definition set forth in
Subsection 9A.
(.27) "Parking Areas" shall mean all of the areas available on the
Land for automobile parking (See Section 45).
(.28) "Personal Property" shall have the definition set forth in
Section 13.
(.29) "Plans" shall have the definition set forth in Exhibit "F".
(.30) "Premises" shall mean the Building Project. However,
Landlord reserves the right to locate telecommunications equipment or antennae
on the roof or exterior of the Building or on any portion of the Land outside
the Building for the use of third parties, provided that the location of any
such equipment shall be subject to Tenant's consent, not to be unreasonably
withheld, conditioned, or delayed and, without limiting the generality of the
foregoing, Tenant shall consent to the installation of any equipment or antenna
which will not substantially interfere with Tenant's use of the Premises.
Notwithstanding the foregoing, no telecommunications equipment or antenna may be
installed by Landlord which will interfere with transmissions to and from
telecommunications equipment of Tenant and the placement of any such equipment
or antenna shall not cause the loss of any parking spaces on the Land.
(.31) "Prime Rate" shall mean the per annum interest rate as
published in the Wall Street Journal from time to time as the "prime rate".
(.32) "Real Estate Taxes" shall mean the total of all of the
taxes, assessments, excises, levies, and other charges by any public authority,
which are general or special, ordinary or extraordinary, foreseen or unforeseen,
or of any kind and nature whatsoever, and which shall during or in respect to
the Lease Term, be assessed, levied, charged, confirmed, or imposed upon, or
become due and payable out of, or become a lien on the Building Project or
appurtenances or facilities used in connection with the Building Project. Real
Estate Taxes shall specifically include, without limitation, all ad valorem
taxes, personal property taxes, transit taxes, taxes or charges on vaults or
vault spaces (unless the tax or charge is payable by a tenant directly), special
or extraordinary assessments, government levies, and all other taxes or other
similar charges, if any, which are levied, assessed, or imposed upon, or become
due and payable in connection with the Building Project or appurtenances or
facilities used in connection with the Building Project; provided, however, that
the following taxes are excluded from Real Estate Taxes (unless they are or
shall become substitute taxes as provided in this subsection): any franchise,
excise, income, gross receipts, profits, or similar tax assessed on or relating
to the income of Landlord, and any capital levy, estate, gift, inheritance,
transfer, or similar tax assessed by reason of any inheritance, devise, gift, or
transfer of any estate in the Building Project by Landlord. If, because of a
future change in the method of taxation or in the taxing authority, or for any
other reason, a franchise, income, transit, gross receipts, profits, or other
tax or governmental imposition, however designated, shall be levied against
Landlord in substitution in whole or in part for the Real Estate Taxes, or
instead of additions to or increases of Real Estate Taxes, or otherwise as a
result of or based on or arising out of the ownership, use, or operation of the
Building Project, then the franchise, income, transit, gross receipts, profits,
or other tax or governmental imposition shall be deemed to be included within
the definition of "Real Estate Taxes". As to special assessments that are
payable over a period of time extending beyond the Lease Term, only a pro rata
portion of the special assessments, covering the portion of the Lease Term that
is unexpired at the time of the imposition of the assessment shall be included
in "Real Estate Taxes". If, by law, any assessment may be paid in installments,
then, for the purposes of this Lease, (a) the assessment shall be deemed to have
been payable in the maximum number of installments permitted by law, and (b)
there shall be included in Real Estate Taxes, for each year in which the
installments may be paid, the installments so becoming payable during that year,
together with any
5
interest payable on the assessments during the year. "Real Estate Taxes" shall
also include all costs and expenses incurred by Landlord in contesting the
amount of the assessment of the Building Project made for Real Estate Taxes,
including attorneys', accountants', consultants', and appraisers' fees, provided
that such costs and expenses may be included only to the extent that they do no
exceed the savings in Real Estate Taxes achieved as a result of such efforts.
"Real Estate Taxes" shall not include impact fees and special assessments levied
as a result of the initial development or any redevelopment or expansion of the
Building Project. The amount of Real Estate Taxes includable in Expenses for any
year shall not exceed the amount payable with the maximum discount for earliest
payment, provided that Tenant has paid the full amount of the current year's
Real Estate Taxes to Landlord prior to the last day for payment in order to
obtain the maximum discount.
(.33) "rent" shall have the definition set forth in Subsection 4E.
(.34) "Rules and Regulations" shall mean the reasonable rules and
regulations for the Building Project promulgated by Landlord from time to time,
provided that any subsequently promulgated rules and regulations shall not
conflict with the terms of this Lease or increase Tenant's obligations or
diminish Tenant's rights under this Lease. The Rules and Regulations which apply
as of the Date of this Lease are attached as EXHIBIT "E".
(.35) "Security Deposit" shall mean an irrevocable letter of
credit in the amount of $800,000.00, in the form attached hereto as EXHIBIT "G",
as that amount may be increased or decreased from time to time, which Security
Deposit shall be delivered to Landlord by Tenant on execution of this Lease by
Tenant (See Section 25).
(.36) Intentionally omitted.
(.37) "Tenant Improvements" shall have the definition set forth in
EXHIBIT "F".
(.38) "Tenant's Notice Address" shall, prior to Tenant's occupancy
of the Premises, mean ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, attention: Chief Financial Officer and after Tenant's occupancy of the
Premises, mean ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention:
Chief Financial Officer, with a simultaneous copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire,
Greenberg, Traurig, et al, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(.39) "Tenant's Property" shall have the definition set forth in
Section 31.
(.40) "Unavoidable Delay" shall have the definition set forth in
Section 40.
2. TERM: Tenant shall have and hold the Premises for the Lease Term.
The Lease Term shall commence on the Commencement Date. Exclusive possession of
the Premises shall be delivered by Landlord to Tenant on the Commencement Date.
3. USE: A. Subject to the provisions of this Lease, Tenant shall have
access to the Premises 24 hours a day seven days a week. Tenant shall use and
occupy the Premises only for general office and warehouse purposes including,
but not limited to, conference and computer facilities, data center, employee
kitchen and lunchroom - cafeteria, health-fitness facility, and other uses
customary to a corporate headquarters office building. Tenant shall not use or
permit or suffer the use of the Premises for any other business or purpose. This
provision is in the nature of a restrictive covenant affecting real estate and
it shall be unnecessary for Landlord to prove irreparable harm in order to
obtain an injunction mandating compliance with this restrictive covenant.
B. Notwithstanding anything contained or set forth in this Lease
to the contrary, nothing set forth in this Lease shall be construed, in any
manner whatsoever, as an implied covenant of continuous operation on the part of
Tenant, and Landlord specifically acknowledges that there is no covenant of
continuous operation on the part of Tenant, express or implied. In the event
that Tenant elects to cease its business operations at the Premises and vacates
the Premises, such vacating of the Premises shall not be deemed an event of
default under this Lease, nor shall such a vacating of the Premises relieve
Tenant of any of its liabilities or obligations under and pursuant to this
Lease.
4. RENT: A. Base Rent. Tenant shall pay to Landlord in lawful United
States currency the Base Rent. All Base Rent shall be payable in equal monthly
installments, in advance, beginning on the Rent
6
Commencement Date, and continuing on the first day of each and every calendar
month thereafter during the Lease Term. Rent payments for any fractional month
shall be paid on a per diem basis (calculated on the basis of a 30 day month).
B. Additional Rent. Unless otherwise expressly provided, all
monetary obligations of Tenant to Landlord under this Lease, of any type or
nature, other than Base Rent, shall be denominated as additional rent. Except as
otherwise provided, all additional rent payments are due ten days after delivery
of an invoice. Landlord shall have the same rights and remedies for defaults in
the payment of additional rent as provided in this Lease for defaults in the
payment of Base Rent.
C. First Month's Rent. On the earlier of the date when Tenant
takes possession of the Premises or any portion of the Premises for the conduct
of its business, or January 1, 2001, Tenant shall pay to Landlord the sum of
$72,654.17 (which includes sales tax) as payment in advance of the installments
of Base Rent and additional rent for Expenses for the first month of the Lease
Term.
D. Rent Abatement. Notwithstanding anything contained in this
Lease to the contrary, as an inducement to Tenant to enter into this Lease and
as consideration for the execution of this Lease by Tenant, Landlord agrees that
if and for as long as Tenant is not in default under this Lease beyond any
applicable grace period, Tenant shall have a rent credit in the amount of the
Base Rent owed for the period from the Commencement Date through December 31,
2000, which credit shall be applied to the Base Rent due for that period. In
addition, notwithstanding anything to the contrary contained in this Lease,
Tenant shall have a rent credit in the amount of the additional rent for
Expenses for the period from the Commencement Date through the earlier of the
date when Tenant takes possession of the Premises or any portion of the Premises
for the conduct of its business, or December 31, 2000, which credit shall be
applied to the additional rent due for that period. Tenant shall pay a flat
amount as additional rent for Expenses for the period after Tenant takes
possession of the Premises or any portion of the Premises for the conduct of its
business through December 31, 2000, in the amount of $472.60 per day.
E. General. The term "rent" when used in this Lease shall include
Base Rent and all forms of additional rent. All rent shall be paid to Landlord
without demand, setoff, or deduction whatsoever, except as specifically provided
in this Lease, at Landlord's Notice Address, or at such other place as Landlord
shall designate in writing to Tenant. Tenant's obligations to pay rent are
covenants independent of the Landlord's obligations under this Lease.
5. OPERATING EXPENSES: A. From the Commencement Date, Tenant shall pay
to Landlord all Expenses in accordance with the terms and provisions of this
section.
B. Expense Payment:
(1) Landlord shall reasonably estimate the Expenses which
will be payable for each calendar year during the Lease Term in advance and
Tenant shall pay one-twelfth (1/12) of such Expenses monthly in advance,
together with the payment of Base Rent. After the end of each calendar year and
after receipt by Landlord of all necessary information and computations,
Landlord shall furnish Tenant, no later than April 1st, a detailed statement of
the actual Expenses for the year; and an adjustment shall be made between
Landlord and Tenant with payment to or repayment by Landlord, as the case may
require, to the end that Landlord shall receive the entire amount actually owed
by Tenant for Expenses for such year and Tenant shall receive reimbursement for
any overpayments. Any payment adjustment owed by Tenant will be due within 30
days after Tenant's receipt of such statement. Any refund will be credited
against Tenant's monthly rent obligations or paid to Tenant if the Lease Term
has expired. Each time Landlord provides Tenant with an actual or estimated
statement of Expenses, such statement shall be itemized on a line item by line
item basis, showing the applicable expense for the applicable year and the prior
year (except during the first year of the Lease Term).
(2) Tenant shall have the right to "audit" Expenses as
provided in this subsection. Tenant waives and releases any and all objections
or claims relating to Expenses for any calendar year unless, within 180 days
after Landlord provides Tenant with the annual statement of the actual Expenses
for the calendar year, Tenant "audits" the Expenses for the year in question and
provides notice to Landlord of claimed overcharges within 60 days of
commencement of the "audit". Tenant shall conduct its "audit" by examining
Landlord's books and records pertaining to Expenses for the year in question.
The books and records which Tenant may examine are limited to the following: (i)
printouts of ledgers of Operating Costs for the period covered by the disputed
statement; (ii) supporting information as to any allocations of categories of
Operating Costs reflected
7
in the disputed statement when the applicable expense is not a direct payment of
a specific invoice; (iii) paid invoices supporting items of Operating Costs
reflected in the disputed statement, as selected by Tenant; (iv) contracts and
agreements relating to items of Operating Costs reflected in the disputed
statement, as selected by Tenant; (v) a recap of the payroll relating to
personnel expenses included in Operating Costs in the disputed statement with
the employees listed by job function and not by name. The examination shall be
conducted at the place where the books and records are maintained, shall be
conducted during regular business hours, shall be restricted to one examination
per calendar year, and shall be at the sole cost and expense of Tenant. Tenant
shall reimburse Landlord for the costs of photocopying any books and records
requested by Tenant in an amount equal to the actual cost charged to Landlord by
third party copy services or $.15 per page should the copies be made with
Landlord's photocopying equipment. If it is finally determined that the disputed
statement contains an error in an amount in excess of 5% of the total amount of
the statement, Landlord shall pay the reasonable out of pocket costs and
expenses of Tenant for the examination, unless the variance is attributable to
disputed items subject to differing interpretations as to which Landlord and
Tenant reach a compromise instead of resorting to formal dispute resolution
procedures. In no event shall Landlord be obligated to pay any of Tenant's costs
which are calculated on a percentage of the recovery by Tenant or any other
contingency based fees. Examinations may only be conducted by an employee of
Tenant or a certified public accountant who is not being compensated based on a
percentage of the recovery by Tenant or on any other contingency fee basis. The
certified public accountant performing the examination must be licensed to
practice in Florida. Upon Landlord's receipt of a timely objection notice from
Tenant, Landlord and Tenant shall work together in good faith to resolve the
discrepancy between Landlord's statement and Tenant's review. If Landlord and
Tenant determine that Operating Costs are less than reported, Landlord shall
promptly pay to Tenant, or provide Tenant with a credit against future rent in
the amount of, the difference. Likewise, if Landlord and Tenant determine that
Operating Costs are greater than reported, Tenant shall promptly pay the
difference to Landlord. If Landlord disputes the results of Tenant's examination
and Landlord and Tenant are unable to resolve the dispute by negotiation, the
dispute shall be submitted to arbitration in accordance with the non-expedited
procedures of the Commercial Arbitration Rules of the American Arbitration
Association then in force, with the following exceptions. Each arbitrator shall
each have at least ten years' experience in the supervision of the operation and
management of major office buildings in the South Florida area. The scope of the
arbitrators' inquiry and determination shall be limited to whether Operating
Costs as billed to Tenant are in accordance with the definitions and
computations provided in this Lease and the arbitrators shall not apply
principles of good faith and fair dealing, unconscionability, or any other
equitable principles in reaching their decision. The arbitrators must set forth
in any award findings of fact and conclusions of law supporting the decision.
C. All Expenses which are considered capital items under customary
real estate accounting practices shall be included in Expenses for the year in
which the costs are incurred and subsequent years, amortized on a straight line
basis over the useful life of the capital item, but in no event more than ten
years, within an interest factor equal to the Prime Rate in effect at the time
of Landlord's having incurred the expenditure, but in no event greater than the
Maximum Rate. Notwithstanding the foregoing, capital expenditures having a cost
of $5,000.00 or less shall not be amortized but instead the full cost of such
expenditure shall be included in Expenses for the year in which the cost is
incurred. Notwithstanding anything contained in this Lease to the contrary, in
no event may any costs of roof replacement be included in Expenses during the
first five years of the Lease Term. Before replacing any capital item which has
a replacement cost of $5,000.00 or more, Landlord shall obtain Tenant's
concurrence that replacement of the item, as opposed to repair, is prudent,
which concurrence by Tenant shall not be unreasonably withheld, conditioned, or
delayed. At Tenant's option, any capital expenditures having a cost in excess of
$5,000.00 shall be obtained through a competitive bidding process as to which
Tenant shall have the right to designate a qualified bidder. If Landlord selects
a bid other than the lowest responsive bid from a qualified bidder, the amount
applicable to such capital expenditure which may be included in Expenses shall
be not more than the amount of the lowest responsive bid from a qualified
bidder. Any dispute between Landlord and Tenant under this section shall be
settled by arbitration in accordance with the arbitration provisions set forth
in the Landlord Default section of this Lease.
D. The additional rent due under this section for the first year
of the Lease Term shall be a proportionate share of the additional rent for the
entire year, such proportionate share to be based upon the length of time that
the Lease Term will be in existence during such first year. Upon the date of any
expiration or termination of this Lease (except termination because of Tenant's
default), whether such date is the date set forth in this Lease for the
expiration of the Lease Term or any prior or subsequent date, a proportionate
share of the Expenses for the year during which such expiration or termination
occurs shall immediately become due and payable by Tenant to Landlord, if not
previously billed and paid. Such proportionate share shall be based upon the
number of days that this Lease shall have been in existence during such year.
Notwithstanding any expiration or sooner termination of this Lease, Landlord
shall, as soon as reasonably practicable, compute the
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additional rent due from Tenant, as aforesaid, which computations shall either
be based on that year's actual figures or be an estimate based upon the most
recent statements previously prepared by Landlord and furnished to Tenant under
this section. If an estimate is used, then Landlord shall cause statements to be
prepared on the basis of the year's actual figures promptly after they are
available, and within ten days after such statement or statements Landlord and
Tenant shall make appropriate adjustments of any estimated payments previously
made.
E. Any delay or failure of Landlord in billing for any additional
rent under this section shall not constitute a waiver of or in any way impair
the continuing obligation of Tenant to pay such additional rent. If any
statement of Expenses should not be determined on a timely basis, Tenant shall
continue to make payments at the rate in effect during the preceding period,
and, promptly following such final determination by Landlord, there shall be an
appropriate adjustment and payment by Tenant of all amounts on account of
Expenses which would have been made if such Expenses had been timely determined.
If any amount is owed Tenant pursuant to such final determination, then Tenant
shall deduct such amount from the Base Rent due for the month immediately
following the month in which such final determination is made, provided,
however, that if the Lease Term shall have expired in due course (and not
because of a default by Tenant) on the date when the final determination is
made, then Landlord shall promptly pay to Tenant all the amounts which are then
due and owing.
F. Notwithstanding anything contained in this section to the
contrary, in lieu of including certain utility charges or services in Expenses,
Landlord may ▇▇▇▇ Tenant and Tenant shall pay for such utilities or services
directly which are subject to quantification. In addition, Landlord may, in lieu
of including certain utility charges in Expenses, provide for direct delivery of
such utility services to Tenant by the utility providers. If so, all costs and
expenses incurred in connection with provision of the applicable utility
services directly to Tenant shall be includable in Expenses or paid by Tenant in
amounts as reasonably allocated by Landlord, and after the direct provision of
utility services has been effected, the applicable utility charges for ongoing
service shall not be included in Expenses.
G. Subject to the following conditions, Tenant may contest the
assessed value of the Premises for real estate tax purposes (the "Contest
Proceedings"):
(1) Tenant shall notify Landlord, in accordance with the
notice provisions in the Lease, prior to pursuing any Contest Proceedings.
(2) As of the date Tenant gives Landlord notice of its
intent to pursue Contest Proceedings, no event of default shall have occurred
under the Lease and there shall exist no event with which the passage of time or
giving of notice would constitute an event of default under the Lease.
(3) The Contest Proceedings do not involve any material
danger, in Landlord's reasonable opinion, of the sale, forfeiture, or loss of
the Premises or the imposition of civil or criminal liability on Landlord.
(4) The Contest Proceedings are commenced in good faith and
diligently prosecuted to completion through appropriate proceedings. Tenant
shall send Landlord monthly written status reports as to the Contest Proceedings
and will provide Landlord with such additional information and copies of
documents as Landlord may reasonable request.
(5) Tenant shall not commence a law suit to contest the
assessed value of the Premises without Landlord's consent, which will not be
unreasonably withheld. In the event any such suit is filed, Tenant shall provide
Landlord with a surety bond, letter of credit, or cash security in the amount of
the taxes claimed by the taxing authorities, unless Tenant has paid the full
amount of the contested taxes prior to or at the time of filing the suit.
(6) The consultants retained by Tenant to prosecute the
Contest Proceedings shall be subject to Landlord's approval, not to be
unreasonably withheld.
(7) The filing of Contest Proceedings shall not excuse
Tenant's liability for payment of additional rent for Expenses owed under the
Lease during the pendency of the Contest Proceedings. Tenant shall continue to
pay Landlord, on a timely basis, the monthly installments of Expenses otherwise
payable by Tenant under this Lease.
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(8) Tenant agrees to pay, indemnify, hold harmless, and
defend Landlord from and against all loss, liability, or damage and any sums,
fees, and costs, including reasonable attorneys' and paralegals' fees in
connection with the Contest Proceedings.
(9) Tenant shall pay and discharge any amounts that are
levied, assessed, or imposed including all penalties, fines, interest,
attorneys' fees, and costs as a result of the Contest Proceedings and shall
provide proof of payment to Landlord within 15 days of the termination of the
Contest Proceedings.
H. Notwithstanding anything contained in this article or elsewhere
in the Lease to the contrary, if Landlord's lender does not require Landlord to
pay Real Estate Taxes into escrow on a monthly installment basis, the Real
Estate Tax portion of the monthly Expenses payment made by Tenant will be
deposited by Landlord into a separate interest bearing account. To the extent
that, after the annual payment of the Real Estate Taxes by Landlord, there is
interest remaining in the account, Tenant shall be paid such interest on annual
basis. Landlord shall deposit the monthly tax payments into a money market or
similar form of interest bearing account maintained by the bank at which
Landlord does business, as selected by Landlord.
I. On or before November 1st of each year, Landlord shall prepare
and submit to Tenant for its approval an annual budget for the Expenses expected
to be incurred for the succeeding calendar year. Within 15 days after receipt of
the proposed budget, Tenant must either approve or disapprove it and, if
disapproved, specify the reasons therefor. Such approval shall not be
unreasonably withheld, conditioned, or delayed. The approval of the budget shall
authorize the Landlord to expend the sums reflected in it. If, after reasonable
efforts, a budget has not been approved by Tenant by December 1st, Tenant can
elect to have Landlord obtain competitive bids for line items in the budget
designated by Tenant. Tenant shall have the right to designate a properly
qualified bidder for each designated line item. If Landlord selects a bid other
than the lowest responsive bid from a qualified bidder, the amount applicable to
such line item which may be included in Expenses shall be not more than the
amount of the lowest responsive bid from a qualified bidder. After the budget
has been approved, the actual expenditures for Expenses for the calendar year to
which the budget applies shall not exceed 10% of the budgeted amount without
Tenant's consent, which consent shall not be unreasonably withheld, conditioned,
or delayed. Any dispute between Landlord and Tenant under this section shall be
settled by arbitration in accordance with the arbitration provisions set forth
in the Landlord Default section.
6. SALES TAXES: Tenant shall pay monthly to Landlord any sales, use, or
other tax (excluding state and federal income tax) now or hereafter imposed by
the United States of America, the State in which the Premises are located, or
any political subdivision of them, on any form of rent due under this Lease, or
in substitution for any rent, notwithstanding the fact that the law imposing the
tax may endeavor to impose it on Landlord.
7. ASSIGNMENT OR SUBLETTING:
A. General; Definition of Transfer. Neither Tenant nor Tenant's
legal representatives or successors in interest by operation of law or otherwise
shall transfer this Lease except as provided in this article. For purposes of
this article, a "transfer" shall mean any of the following: (i) an assignment of
this Lease; (ii) a collateral assignment, mortgage, or other encumbrance
involving this Lease; (iii) a sublease, license agreement, or other agreement
permitting all or any portion of the Premises to be used by others; (iv) a
reduction of Tenant's assets to the point that this Lease is substantially
Tenant's only asset; (v) a change or conversion in the form of entity of Tenant
or any transferee or any entity controlling any of them which has the effect of
limiting the liability of any of the partners, members, or other owners of the
entity; (vi) the agreement by a third party to assume, take over, or reimburse
Tenant for any of Tenant's obligations under this Lease in order to induce
Tenant to lease space from the third party; or (vii) any transfer of control of
Tenant, which shall be defined as any issuance or transfer of stock in any
corporate tenant or subtenant or any interest in any noncorporation entity
tenant or subtenant, by sale, exchange, merger, consolidation, operation of law,
or otherwise, or creation of new stock or interests, by which an aggregate of
50% or more of Tenant's stock or equity interests shall be vested in one or more
parties who are not stockholders or interest holders as of the Date of this
Lease, or any transfer of the power to direct the operations of any entity (by
equity ownership, contract, or otherwise), to one or more parties who are not
stockholders or interest holders as of the Date of this Lease, however
accomplished, and whether in a single transaction or in a series of related or
unrelated transactions. This section shall not apply to sales of stock which are
effected through any recognized securities exchange. Any modification or
amendment to any sublease of any portion of the Premises shall be deemed a
further sublease of this Lease. As
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used in this article, the term "transferee" shall include any assignee or
subtenant of Tenant or any other party involved in any of the other transactions
or events constituting a transfer.
B. Request for Consent. If Tenant requests Landlord's consent to a
transfer (other than a Permitted Transfer), it shall submit in writing to
Landlord, not later than 30 days before any anticipated transfer, (i) the name
and address of the proposed transferee, (ii) a duly executed letter of intent
(binding or non-binding) containing all of the material terms of the proposed
transaction, (iii) reasonably satisfactory information as to the nature and
character of the business of the proposed transferee, as to the nature and
character of its proposed use of the space, and otherwise responsive to the
criteria set forth in Reasonable Consent section of this article, and (iv)
banking, financial, or other credit information relating to the proposed
transferee reasonably sufficient to enable Landlord to reasonably determine the
financial responsibility and character of the proposed transferee, including
balance sheets and profit and loss statements for the transferee covering the
three years before the transfer, certified by the transferee, and a list of
personal, banking, business, and credit references for the transferee.
C. Recapture. Except in the event of a Permitted Transfer, if
Tenant proposes to assign this Lease or sublet all or substantially all of the
Premises, Landlord shall have the option to cancel and terminate this Lease as
of the proposed commencement date for the transfer which option is to be
exercised within 15 Business Days from submission of Tenant's request for
Landlord's consent to a specific transfer. If Landlord exercises its recapture
option under this section, Tenant shall have the right, to be exercised by
notice given within ten days of Landlord's notice of its exercise of its
recapture option, to rescind its request for Landlord's consent to the transfer
and, if so, this Lease shall remain in full force and effect.
D. Reasonable Consent. If Landlord does not elect the termination
option provided in the Recapture section of this article, Landlord shall not
unreasonably withhold or delay its consent to a proposed transfer. Landlord
shall be deemed to have reasonably withheld its consent to any proposed transfer
unless all of the following conditions have been established to Landlord's
reasonable satisfaction:
(1) The proposed transferee has sufficient financial
wherewithal to discharge its obligations under this Lease or its sublease, as
the case may be.
(2) The proposed transfer shall not, in Landlord's
reasonable judgment, cause physical harm to the Building Project or harm to the
reputation of the Building Project.
(3) The proposed use of the Premises by the proposed
transferee will be a use permitted under this Lease and not prohibited by the
Rules and Regulations, and will not violate any restrictive covenants affecting
the Building Project in effect as of the Commencement Date.
(4) The proposed use of the Premises by the proposed
transferee will not require alterations or additions to the Premises or the
Building Project to comply with applicable law or governmental requirements
(unless Tenant or the transferee pays the entire cost of the alterations or
additions) and will not negatively affect insurance requirements or involve the
introduction of materials to the Premises that are not in compliance with the
Environmental Laws.
(5) Any mortgagee of the Building Project will consent to
the proposed transfer if such consent is required under the relevant loan
documents.
(6) There shall be no default by Tenant, beyond any
applicable grace period, under any of the terms, covenants, and conditions of
this Lease at the time that Landlord's consent to a transfer is requested.
Tenant acknowledges that the foregoing is not intended to be an exclusive list
of the reasons for which Landlord may reasonably withhold its consent to a
proposed transfer.
E. Tenant Remedies. Tenant waives any remedy for money damages
(nor shall Tenant claim any money damages by way of setoff, counterclaim, or
defense) based on any claim that Landlord has unreasonably withheld, delayed, or
conditioned its consent to a proposed transfer under this Lease. Tenant's sole
remedy in such an event shall be to institute an action or proceeding seeking
specific performance, injunctive relief, or declaratory judgment. Whenever
Tenant alleges that Landlord has acted unreasonably as to a request for consent
to a transfer, then Tenant shall send Landlord a notice (a "Hearing Notice")
specifying the consent which it alleges has been unreasonably withheld or
delayed and electing to have the dispute resolved by an
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informal hearing ("Hearing") upon and subject to the following terms and
conditions:
(1) In the Hearing Notice Tenant shall designate an
arbitrator of its selection who meets the qualifications set forth below. Within
five days after receipt of the Hearing Notice, Landlord shall notify Tenant of
Landlord's designation of a second arbitrator. The two arbitrators so designated
shall select a third, neutral arbitrator (the "Chief Arbitrator") who shall, to
the extent practicable, be a party not generally known as predominately
representing landlords or tenants in commercial lease transactions. The Hearing
shall be held at the offices of the Chief Arbitrator.
(2) Each of the designated arbitrators shall be (i) an
attorney who is a member of The Florida Bar and has not less than ten years'
active experience in commercial leasing practice, and (B) a disinterested party
not then, nor previously, professionally engaged, nor shall the law firm with
which the individual is associated be then or have been previously
professionally engaged, by either Landlord or Tenant or any affiliate of either
of them nor shall the individual or his associated law firm have been advised of
any intention of Landlord or Tenant or any affiliate of either of them so to
engage the individual or law firm.
(3) The Hearing shall be held on the date specified in the
Hearing Notice (which shall be no less than ten nor more than 20 days after the
Hearing Notice is received) and pursuant to procedural rules to be established
by the Chief Arbitrator and the scope of the arbitrators' inquiry and
determination shall be strictly limited to whether Landlord has been reasonable
or unreasonable in applying the standards of Subsection 7D.
(4) The determination of a majority of the arbitrators shall
be conclusive upon the parties and shall be made within five days after the
Hearing is completed.
(5) No Hearing may be held and no evidence presented at the
Hearing unless the non serving party shall have received the Hearing Notice at
least five days prior to the date of the Hearing.
(6) Either party shall be entitled to a second hearing
before the same arbitrators to be held within five days after the Hearing in
order to respond to any claims, allegations, or assertions of fact made by the
other party during the Hearing which the party seeking the second hearing did
not know of or could not have reasonably known of.
(7) If the arbitrators selected by Landlord and Tenant are
unable to agree upon the third arbitrator, then a Chairman of the
Landlord/Tenant Committee of the Real Property, Probate and Trust Law Section of
The Florida Bar shall designate the third arbitrator, subject to the
qualification requirements of this section.
(8) The party against whom the arbitrators find shall pay
the fees and expenses of the arbitrators. If the arbitrators find that the
losing party has acted in bad faith, then the losing party shall pay the
reasonable attorneys' fees of the prevailing party.
(9) Upon a finding in favor of Tenant, Tenant shall be
permitted to complete the transfer in accordance with its terms. The
arbitrators' decision may also be entered as a final judgment in the court
records of the jurisdiction.
F. Subleases. Any sublease shall provide that: (i) the subtenant
shall not violate the applicable terms and conditions of this Lease to be
performed by Tenant; (ii) the sublease is expressly subject to all of the terms
and provisions of this Lease; and (iii) unless Landlord elects otherwise, the
sublease will not survive a termination of this Lease (whether voluntary or
involuntary) or resumption of possession of the Premises by Landlord following a
default by Tenant. Any assignment of lease shall contain an assumption by the
assignee of all of the terms, covenants, and conditions of this Lease to be
performed by the Tenant.
G. Consideration for Consent. If Tenant effects any transfer, then
Tenant thereafter shall pay to Landlord a sum equal to 50% of (a) the net rent,
additional rent, or other consideration paid to Tenant by any transferee that is
in excess of the rent then being paid by Tenant to Landlord under this Lease for
the portion of the Premises so transferred (on a prorated, square footage
basis), and (b) any other profit or gain (after deducting any necessary expenses
incurred) realized by Tenant from the transfer. The net rent, additional rent,
or other consideration paid to Tenant shall be calculated by deducting from the
gross rent, additional rent, or other consideration reasonable and customary
real estate brokerage commissions actually paid by Tenant to third parties,
tenant improvement allowances, rent concessions, the actual cost of improvements
to the Premises made by Tenant for the transferee, and other direct out of
pocket costs actually incurred by Tenant in connection with
12
the transfer (as long as the costs are commercially reasonable and are commonly
incurred by landlords in leasing similar space). Profit or gain shall
specifically include all sums paid for any asset of Tenant other than this Lease
which is in excess of the fair market value of the asset. Upon reasonable
notice, Landlord shall have the right to audit Tenant's books and records to
determine the amount payable to Landlord under this section. All sums payable by
Tenant under this section shall be payable to Landlord immediately on receipt by
Tenant.
H. Permitted Transfers. The option in favor of Landlord set forth
in the Recapture section of this article shall not apply to, and Landlord's
consent will not be required as to, a transfer to the parent corporation of
Tenant or to a wholly owned subsidiary corporation of Tenant or of the parent
corporation of Tenant, or to any corporation into or with which Tenant may be
merged or consolidated, or to any entity acquiring all or substantially all of
Tenant's assets, provided that, in the event of an assignment or merger (i) the
resulting entity shall own all or substantially all of the assets of Tenant, and
(ii) the resulting entity shall have sufficient financial wherewithal to
discharge its obligations under this Lease or its sublease, as the case may be;
provided further, that the form of any agreement of assignment or any sublease
shall otherwise comply with the terms and conditions of this article. Any
transfer described in this section may be referred to as a "Permitted Transfer".
I. No Waiver. Consent by Landlord to a transfer shall not relieve
Tenant from the obligation to obtain Landlord's written consent to any further
transfer. If Landlord consents to a transfer, in no event shall any permitted
transferee assign or encumber this Lease or its sublease, or further sublet all
or any portion of its sublet space, or otherwise suffer or permit the sublet
space or any part of it to be used or occupied by others, without Landlord's
prior written consent in each instance.
J. Acceptance of Payments. If this Lease is nevertheless assigned,
or the Premises are sublet or occupied by anyone other than Tenant, Landlord may
accept rent from the assignee, subtenant, or occupant and apply the net amount
received to the rent reserved in this Lease, but no such assignment, subletting,
occupancy, or acceptance of rent shall be deemed a waiver of the requirement for
Landlord's consent as contained in this article or constitute a novation or
otherwise release Tenant from its obligations under this Lease.
K. Continuing Liability. Except as provided in the Recapture
section of this article, following any transfer, Tenant shall remain liable to
Landlord for the prompt and continuing payment of all forms of rent payable
under this Lease. The joint and several liability of Tenant and any immediate
and remote successor in interest of Tenant (by assignment or otherwise), and the
due performance of the obligations of this Lease on Tenant's part to be
performed or observed, shall not in any way be discharged, released, or impaired
by any (i) agreement that modifies any of the rights or obligations of the
parties under this Lease, (ii) stipulation that extends the time within which an
obligation under this Lease is to be performed, (iii) waiver of the performance
of an obligation required under this Lease, or (iv) failure to enforce any of
the obligations set forth in this Lease.
L. Payment of Fees. If Landlord consents to any transfer, Tenant
shall pay to Landlord, on demand, all reasonable attorneys' fees and actual
costs associated with Landlord's consent to any transfer and the review and
preparation of all documents associated therewith.
M. Landlord Transfer. Landlord may assign or encumber its interest
under this Lease. If any portion of the Premises is sold, transferred, or
leased, or if Landlord's interest in any underlying lease of the Premises is
transferred or sold, Landlord shall be relieved of all future obligations and
liabilities under this Lease, provided that the purchaser, transferee, or tenant
of the Premises assumes in writing those obligations and liabilities.
N. Improper Transfer. Any transfer by Tenant, in violation of this
Article, shall be void, and shall at the option of Landlord constitute a default
under this Lease.
8. INSURANCE:
A. Tenant's Insurance. Tenant shall, on or before the earlier of
the Commencement Date or the date on which Tenant first enters the Premises for
any purpose, obtain and keep in full force and effect at all times thereafter
the following insurance coverages relating to the Premises:
(1) Commercial General Liability. Insurance against loss or
liability in connection with bodily injury, death, or property damage or
destruction, occurring on or about the Premises under one or more policies of
commercial general liability insurance. Each policy shall be written on an
occurrence basis and
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contain coverage at least as broad as that provided under the then most current
Insurance Services Office (ISO) commercial general liability insurance form
which provides the broadest coverage. Each policy shall specifically include the
Premises and all areas, including sidewalks and corridors, adjoining or
appurtenant to the Premises. The insurance coverage shall be in an initial
amount of not less than $3 million per occurrence limit, $3 million general
aggregate limit, $3 million personal and advertising limit, and $3 million
products/completed operations limit, which coverage limits may be effected with
umbrella coverage. Each policy shall also include the broad form comprehensive
general liability endorsement or equivalent and, in addition, shall provide at
least the following extensions or endorsements: (a) coverage for explosion,
collapse, and underground damage hazards, when applicable; (b) personal injury
coverage to include liability assumed under any contract; (c) a cross liability
or severability of interest extension or endorsement or equivalent so that in
the event that one insured files a claim against another insured under the
policy, the policy affords coverage for the insured against whom the claim is
made as if separate policies had been issued; (d) a knowledge of occurrence
extension or endorsement so that knowledge of an occurrence by the agent,
servant, or employee of the insured shall not in itself constitute knowledge by
the insured, unless a managing general partner or an executive officer, as the
case may be, shall have received the notice from the agent, servant, or
employee; (e) a notice of occurrence extension or endorsement so that if the
insured reports the occurrence of an accident to its workers' compensation
carrier and the occurrence later develops into a liability claim, the failure to
report the occurrence immediately to each or any other company when reported to
the workers' compensation carrier shall not be deemed a violation of the other
company's policy conditions; (f) an unintentional errors and omissions extension
or endorsement so that failure of the insured to disclose all hazards existing
as of the inception date of the policy shall not prejudice the insured as to the
coverage afforded by the policy, provided the failure or omission is not
intentional; and (g) a blanket additional insured extension or endorsement or
equivalent providing coverage for unspecified additional parties as their
interest may appear with the insured. Tenant may utilize a "blanket" or
"umbrella" policy of insurance to achieve the coverage amounts required by this
Lease, provided that Tenant provides Landlord with satisfactory evidence that
the blanket or umbrella policy: (i) expressly references the Premises, and (ii)
contains a guarantied amount of insurance for the Premises, which guarantied
amount shall equal the amounts of coverage required by this Lease.
(2) Automobile. Comprehensive automobile liability insurance
on an occurrence basis in an initial amount of not less than $1 million combined
single limit. This policy shall be on the then most current ISO form which
provides the broadest coverage written to cover all owned, hired, and non-owned
automobiles. The policy shall include cross liability and severability of
interest endorsements, and state that this insurance is primary insurance as
regards any other insurance carried by the Landlord.
(3) Property. All risk property insurance, including fire
and lightning, extended coverage, sprinkler damage, theft, vandalism and
malicious mischief, or the ISO causes of loss-special form, and flood insurance
(if required by Landlord, any mortgagee of the Building Project, or any
governmental authority) in an amount adequate to cover 100% of the replacement
costs, without co-insurance, of Tenant's Property.
(4) Workers' Compensation. Workers' compensation insurance
in the amount required by law and employer's liability coverage of $1 million
per occurrence and covering all persons employed, directly or indirectly, in
connection with Tenant's business or the Tenant Improvements or any future
Alterations.
(5) Business Interruption. Business income and extra expense
insurance covering the risks to be insured by the all risk property insurance
described above, on an actual loss sustained basis, but in all events in an
amount sufficient to prevent Tenant from being a co-insurer of any loss covered
under the applicable policy or policies.
(6) Other Insurance. Such other insurance as may be carried
on the Premises and Tenant's operation of the Premises, as may be reasonably
required by Landlord, provided same is required to be maintained by tenants in a
majority of the comparable suburban office buildings in Broward County, Florida.
B. Construction. Except for work to be performed by Landlord,
before any Alterations are undertaken by or on behalf of Tenant, Tenant shall
obtain and maintain, at its expense, or Tenant shall require any contractor
performing work on the Premises to obtain and maintain, at no expense to
Landlord, in addition to workers' compensation insurance as required by the law
of the State in which the Premises are located, all risk builder's risk
insurance in the amount of the replacement cost of the applicable Alterations
(or such other amount reasonably required by Landlord), automobile and
commercial general liability insurance (including contractor's liability
coverage, contractual liability coverage, completed operations coverage, broad
form property damage coverage, and contractor's protective liability) written on
an occurrence basis with a minimum
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limit of $2 million per occurrence limit, $2 million general aggregate limit, $2
million personal and advertising limit, and $2 million products/completed
operations limit; which limits may be accomplished by means of an umbrella
policy. The contractor's commercial general liability insurance shall cover
claims arising out of (i) the general contractor's operations, (ii) acts of
independent contractors, (iii) products/completed operations (with broad form
property damage), (iv) liability assumed under contract (on a broad form
property damage basis), (v) liability assumed under contract (on a broad form
blanket basis), (vi) explosion, collapse, and underground damage hazards, when
applicable, and (vii) owned/nonowned/hired vehicles.
C. Insurance Requirements. All insurance policies of Landlord and
Tenant shall be (i) in form reasonably satisfactory to Landlord; and (ii)
written with insurance companies reasonably satisfactory to Landlord and having
a policyholder rating of at least "A" and a financial size category of at least
"Class XII" as rated in the most recent edition of "Best's Key Rating Guide" for
insurance companies, and authorized to engage in the business of insurance in
the State in which the Premises are located. The commercial general liability
and comprehensive automobile liability insurance policies shall name Landlord
and Landlord's directors, officers, partners, agents, employees, and managing
agent as additional insureds and shall provide that they may not be terminated
or modified in any way that would materially decrease the protection afforded
Landlord under this Lease without 30 days' advance notice to Landlord. The
minimum limits of insurance specified in this article shall in no way limit or
diminish Landlord's or Tenant's liability under this Lease. Tenant and Landlord
shall furnish each other, not less than 15 days before the date the insurance is
first required to be carried, and thereafter at least 15 days before the
expiration of each policy, evidence of insurance (on ▇▇▇▇▇ 27 or other form
acceptable to Landlord), and such other evidence of coverages as Landlord may
reasonably request, and evidence of payment of all premiums and other expenses
owed in connection with the policies. On Tenant's default in obtaining or
delivering any required insurance or Tenant's failure to pay the charges for any
required insurance, Landlord may, at its option, on or after the tenth day after
notice is given to Tenant, procure or pay the charges for the insurance and the
total cost and expense (including attorneys' fees) incurred shall be paid by
Tenant to Landlord. Any minimum amount of coverage specified in this article
shall be subject to increase at any time, and from time to time, after
commencement of the third full year of the Lease Term, if Landlord shall
reasonably determine that an increase is necessary for adequate protection.
Within 30 days after demand by Landlord that the minimum amount of any coverage
be increased, Tenant shall furnish Landlord with evidence of the increased
coverage.
D. Waiver of Subrogation. Except as set forth below, Landlord and
Tenant each expressly, knowingly, and voluntarily waive and release any claims
that they may have against the other or the other's employees, agents, or
contractors for damage to its properties and loss of business (specifically
including loss of rent by Landlord and business interruption by Tenant) as a
result of the acts or omissions of the other party or the other party's
employees, agents, or contractors (specifically including the negligence of
either party or its employees, agents, or contractors and the intentional
misconduct of the employees, agents, or contractors of either party), which
claims are covered by the workers' compensation, employer's liability, property,
rental income, business income, or extra expense insurance described in this
Lease, or other property insurance that either party may carry at the time of an
occurrence. Landlord and Tenant shall each, on or before the earlier of the
Commencement Date or the date on which Tenant first enters the Premises for any
purpose, obtain and keep in full force and effect at all times thereafter a
waiver of subrogation from its insurer concerning the workers' compensation,
employer's liability, property, rental income, and business interruption
insurance maintained by it for the Building Project and the property located in
the Building Project. This section shall not apply to claims for damages of less
than $1,000 or to claims for personal injury or wrongful death.
E. Landlord's Insurance. Landlord shall maintain fire and extended
coverage insurance on the Building Project in an amount not less than 100% of
the replacement cost of the Building Project, rental guaranty or interruption,
and commercial general liability insurance relating to the Building Project and
its appurtenances in an amount not less than $3 million per occurrence. In
addition, Landlord may, at its option, maintain coverages in excess of the
minimum limits set forth in this section and additional coverages as specified
in the definition of Expenses. The total cost of all insurance maintained by
Landlord under this section shall be included in Expenses. Tenant shall have the
right to obtain bids for the fire and extended coverage insurance or commercial
general liability insurance, or both, on the Building Project from an insurer
meeting the qualifications provided in this section and which is acceptable to
Landlord's lender. Should Tenant obtain a bid from any such qualified insurer to
provide the required insurance at annual rates which are at least 10% less than
the annual rates being charged by Landlord's insurer, but Landlord declines to
purchase insurance from such bidder, then the amount includable in Expenses for
the applicable insurance shall not exceed the amount of the bid from the
qualified insurer obtained by Tenant.
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9. DEFAULT:
A. Events of Default. If (i) Tenant defaults in the payment of
Base Rent, any additional rent, or any other sums payable by it under this Lease
when due (a "Monetary Default"); or (ii) Tenant shall default in the performance
of any other covenant or agreement of this Lease or any rules and regulations
attached to this Lease or promulgated by Landlord pursuant to this Lease (a
"Non-Monetary Default"); or (iii) Tenant or any Guarantor or surety for Tenant's
obligations under this Lease shall become bankrupt or insolvent or make a
general assignment for the benefit of creditors or take the benefit of any
insolvency act, or if any debtor proceedings be taken by or against Tenant or
any such Guarantor or surety; or (iv) a receiver or trustee in bankruptcy be
appointed for the Tenant's property and such appointment be not vacated and set
aside within 60 days from the date of such appointment; or (v) the leasehold
estate granted to Tenant by this Lease shall be taken on execution or other
process of law or equity in any action against Tenant; then Tenant shall be in
default under this Lease.
▇. ▇▇▇▇▇ Periods.
(1) Monetary Defaults. Tenant shall have a period of ten
days after notice from Landlord of a Monetary Default in which to cure the
default.
(2) Nonmonetary Defaults. Provided the default does not
involve an Emergency that must be addressed in a shorter time frame, Tenant
shall have a period of 30 days after notice from Landlord of a Nonmonetary
Default in which to cure the default. In addition, provided that the default
does not involve an Emergency that must be addressed in a shorter time frame,
this grace period shall be extended if the default is of a nature that it cannot
be completely cured within the 30 day period solely as a result of nonfinancial
circumstances outside of Tenant's control, provided that Tenant has promptly
commenced all appropriate actions to cure the default within the 30 day period
and those actions are thereafter diligently and continuously pursued by Tenant
in good faith. In no event, however, shall the grace period exceed a total of 90
days. If the Nonmonetary Default is not cured before the expiration of the grace
period, as extended, then Landlord may pursue any or all of its remedies.
(3) Statutory Notices. The notices of defaults to be given
under this section may be the same as the notice required under Section 83.20,
Florida Statutes or any successor statute and this Lease shall not be construed
to require Landlord to give two separate notices to Tenant before proceeding
with any remedies.
(4) Default Status. Tenant shall not be considered in
default under this Lease until the applicable grace periods have expired without
the applicable event of default having been cured.
C. Landlord's Remedies. In the event of a default by Tenant, after
the expiration of any applicable grace period, Landlord may pursue all remedies
available to Landlord at law or in equity.
D. Acceleration. If Landlord exercises any of its remedies
provided in Subsection 9C above other than to terminate this Lease, Landlord may
declare the entire balance of all forms of rent due under this Lease for the
remainder of the Lease Term less the fair market rental value of the Premises
for the remainder of the Lease Term to be forthwith due and payable and may
collect the then present value of such rents (calculated using a discount rate
equal to the yield then obtainable from the United States Treasury ▇▇▇▇ or Note
with a maturity date closest to the date of expiration of the Lease Term) by
distress or otherwise. The accelerated additional rent for Expenses shall be
calculated by multiplying the highest additional rent amount for Expenses
payable by Tenant in any calendar year times the number of calendar years
(including any fractional calendar year) remaining in the Lease Term following
the date of default.
E. Bankruptcy.
(1) The meaning of "adequate assurance of future
performance" as used in the Bankruptcy Code shall include at least the
following: (a) the posting of a security deposit in, or increase of the existing
Security Deposit by, a sum equal to three months' installments of Base Rent and
additional rent for Expenses at the then current rate; (b) that the Tenant, if
it is seeking to assume this Lease without assigning it, or the proposed
assignee has sufficient financial wherewithal to discharge its obligations under
this Lease and the proposed agreement of assignment as determined by Landlord's
criteria for selecting Building Project tenants as of the date of the assumption
of this Lease and has a net worth, experience, and reputation that is not less
than the net worth, experience, and reputation that Tenant had on the
Commencement Date; and (c) that the
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conditions to Landlord's consent to a transfer set forth in the Assignment or
Subletting article of this Lease have all been met. If Tenant receives or is to
receive any valuable consideration for an assignment of this Lease, 50% of the
consideration, after deducting therefrom (1) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for the assignment, and (2) any
portion of the consideration reasonably designated by the assignee as paid for
the purchase of Tenant's Property, shall be and become the sole and exclusive
property of Landlord and shall be paid over to Landlord directly by the
assignee. If, under the provisions of the Bankruptcy Code, Tenant assumes this
Lease and proposes to assign it to any person or entity whom shall have made a
bona fide offer to accept an assignment of this Lease on terms acceptable to
Tenant, then notice of the proposed assignment setting forth: (i) the name and
address of the proposed assignee, (ii) all of the terms and conditions of the
proposed assignment, and (iii) the adequate assurance to be provided Landlord to
assure the proposed assignee's future performance under this Lease, shall be
given to Landlord by Tenant no later than 20 days after receipt by Tenant, but
in any event no later than ten days before the date that Tenant shall make
application to a court of competent jurisdiction for authority and approval to
enter into the assumption and assignment, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given at any time
before the relocation date of the proposed assignment, to accept an assignment
of this Lease on the same terms and conditions and for the same consideration,
if any, as the bona fide offer made by the proposed assignee, less any brokerage
commission that may be payable out of the consideration to be paid by the
assignee for the assignment of this Lease.
(2) For purposes of the Bankruptcy Code, "adequate
protection" of Landlord's interest in the Premises prior to assumption or
assignment of this Lease by Tenant shall include, but not be limited to, the
posting of a security deposit in, or increase of the existing Security Deposit
by, a sum equal to three months' installments of Base Rent and additional rent
for Expenses at the then current rate. Tenant acknowledges that absent full and
timely performance of its obligations under this Lease, Landlord's interest in
the Premises and this Lease will not be adequately protected. Consequently, if a
proceeding under any chapter of the Bankruptcy Code is instituted by or against
Tenant, Tenant shall, at all times subsequent to the filing of the case, be in
full and complete compliance with the provisions of Section 365(d)(3) of the
Bankruptcy Code. If Tenant fails to comply at all times and in all respects with
the provisions of Section 365(d)(3) of the Bankruptcy Code, the failure shall
constitute "cause" for modification of the automatic stay of Section 362 of the
Bankruptcy Code in order to permit Landlord to pursue whatever state law
remedies may be available to it, including eviction.
(3) All attorneys' fees incurred by Landlord in connection
with any bankruptcy proceedings involving Tenant or incurred by Landlord in
connection with any default by Tenant under this Lease shall be deemed an
"actual pecuniary loss" that Tenant must pay as a condition to assuming this
Lease.
(4) If a bankruptcy petition is filed by or against Tenant,
Tenant shall immediately execute a stipulation or other pleading evidencing
consent to a lifting or modification of the automatic stay of Section 362 of the
Bankruptcy Code, allowing Landlord to enforce the terms of this Lease.
(5) When, under the Bankruptcy Code, any trustee or debtor
in possession is obligated to pay reasonable use and occupancy charges for the
use of all or part of the Premises, the charges shall be not less than the Base
Rent and additional rent payable under this Lease as of that date.
(6) If a proceeding under any chapter of the Bankruptcy Code
is instituted by or against Tenant, Tenant shall not seek an extension of time
within which it must assume or reject this Lease under Section 365(d)(4) of the
Bankruptcy Code, and Tenant irrevocably waives and relinquishes any right it may
have to seek an extension to the fullest extent permitted by applicable law.
Failure of Tenant to assume this Lease within the 60 day time period provided in
Section 365(d)(4) of the Bankruptcy Code, without extension of that time period,
shall conclusively and irrevocably constitute the Tenant's rejection of this
Lease and waiver of any rights of Tenant to assume or assign this Lease.
(7) "Prompt cure" of any existing defaults for purposes of
assuming this Lease in any case under the Bankruptcy Code, includes, but not by
way of limitation: (a) in the case of Monetary Defaults, the payment of not less
than three months' rent delinquencies, and all other payments and charges
whatsoever, on the date of assumption, and not less than three additional
months' delinquencies in each succeeding month until all Monetary Defaults have
been cured; provided however, that in no event shall the period of cure exceed
three months from the date of assumption; (b) in the case of Nonmonetary
Defaults, any default that can be cured by a single act, circumstance, or event,
shall be cured no later than the date of assumption. To the extent any
Nonmonetary Default requires a series of acts, circumstances, or events, the
default shall be cured within 30 days of the date of assumption of this Lease,
unless the default cannot, in good faith, be completely remedied
17
during the 30 day period, in which event Tenant shall have a reasonable amount
of time to cure the default.
(8) Rejection of this Lease by Tenant under the Bankruptcy
Code shall constitute a substantial default and breach of this Lease by Tenant.
Upon the occurrence of any event such material default by Tenant, Landlord may
terminate this Lease by written notice to Tenant.
F. Landlord's Right to Perform. Should Tenant default in the
observance or performance of any term or covenant on Tenant's part to be
observed or performed pursuant to this Lease, Landlord may upon the expiration
of ten days after notice to Tenant, perform the obligations of Tenant, and if
Landlord, in connection therewith, makes any expenditures or incurs any
obligation for the payment of money, including, but not limited to, reasonable
attorneys' fees, such sums so paid or obligations incurred shall be deemed to be
additional rent under this Lease and shall be paid by Tenant to Landlord within
30 days of rendition of a ▇▇▇▇ or statement to Tenant therefor. If the Lease
Term shall have expired at the time of the making of such expenditures or
incurring of such obligations, such sums shall be recoverable by Landlord as
damages. This section shall survive the expiration or sooner termination of this
Lease.
G. Jurisdiction and Venue. Landlord and Tenant agree that any
legal action or proceeding arising out of or in any way connected with this
Lease shall be instituted in any court (federal or state) located in Broward
County Florida, and submits to the jurisdiction of such court in any such legal
action or proceeding instituted in that county. In addition, Landlord and Tenant
waive any objection which either may now or hereafter have to the laying of
venue of any action or proceeding in such courts, and further waives the right
to plead or claim that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
H. Remedies Cumulative. The remedies provided in this Lease or
presently or hereafter existing at law or in equity shall be cumulative and
concurrent, and may be exercised as often as occasion therefor shall occur. No
single or partial exercise by Landlord or Tenant of any remedy shall preclude
any other or further exercise of such remedy or of any other remedy.
I. Multiple Defaults. Tenant acknowledges that any rights or
options of first refusal, or to extend the Lease Term, to expand the size of the
Premises, to purchase the Premises or the Building Project, or other such or
similar rights or options which have been granted to Tenant under this Lease are
conditioned upon the prompt and diligent performance of the monetary terms of
this Lease by Tenant. Accordingly, should Tenant commit three or more Monetary
Defaults during any 12 month period, in addition to all other remedies available
to Landlord, all such rights and options shall automatically, and without
further action on the part of any party, expire and be deemed canceled and of no
further force and effect.
J. Late Charges. If any payment due Landlord under this Lease
shall not be paid within ten days of the date when due, Tenant shall pay, in
addition to the payment then due, an administrative charge equal to five 5% of
the past due payment.
K. Interest on Past Due Obligations. Any amount due from either
party to the other party under this Lease that is not paid within ten days of
written demand shall thereafter bear interest at the Default Rate from the date
due until paid.
L. Landlord Default. Landlord shall be in default under this Lease
if Landlord has not paid any amounts due Tenant within ten days after notice or
commenced and pursued with reasonable diligence the cure of any failure of
Landlord to meet its obligations under this Lease within 30 days of the receipt
by Landlord of written notice from Tenant of the alleged failure to perform.
Except as otherwise provided in this Lease, in the event of a default by
Landlord, Tenant shall be entitled to any remedies available at law or in
equity. None of Landlord's officers, employees, agents, directors, shareholders,
or partners shall ever have any personal liability to Tenant under or in
connection with this Lease. Tenant shall look solely to Landlord's estate and
interest in the Building Project for the satisfaction of any right or remedy of
Tenant under this Lease, or for the collection of any judgment (or other
judicial process) requiring the payment of money by Landlord, and no other
property or assets of Landlord or its principals shall be subject to levy,
execution, or other enforcement procedure for the satisfaction of Tenant's
rights or remedies under this Lease, the relationship of Landlord and Tenant
under this Lease, Tenant's use and occupancy of the Premises, or any other
liability of Landlord to Tenant of whatever kind or nature. No act or omission
of Landlord or its agents shall constitute an actual or constructive eviction of
Tenant unless Landlord shall have first received written notice of Tenant's
claim and shall have failed to cure it after having been afforded a reasonable
time to do so, which in no event shall be less than 30 days. In the event
18
of an uncured Landlord default which materially affects Tenant's use and
occupancy of the Premises, Tenant may take whatever actions are reasonably
necessary to perform the obligation of Landlord specified in the default notice
and if Tenant, in connection with such actions, makes any expenditures the
amounts so expended shall be reimbursed by Landlord to Tenant within 30 days of
rendition of a ▇▇▇▇ or statement to Landlord for them. If Landlord fails to pay
these costs and Tenant has received a final, nonappealable judgment for damages
against Landlord for the costs (following arbitration as provided in this
subsection), then Tenant shall have the right to deduct the unpaid amount of the
judgment from the Base Rent to become due under this Lease until fully credited.
Any dispute as to Tenant's exercise of any rights under this subsection shall be
submitted to arbitration in accordance with the non-expedited procedures of the
Commercial Arbitration Rules of the American Arbitration Association then in
force, with the following exceptions. Each arbitrator shall have at least ten
years' experience in the supervision of the operation and management of major
office buildings in the South Florida area. The scope of the arbitrators'
inquiry and determination shall be limited to whether Landlord is in compliance
with its obligations under this Lease in accordance with the express provisions
of this Lease and the arbitrators shall not apply principles of good faith and
fair dealing, unconscionability, or any other equitable principles in reaching
their decision. All work performed by Tenant under this subsection must be
performed at a reasonable and competitive cost. If any proposed actions by
Tenant will affect the electrical, plumbing, HVAC, mechanical, or other systems
of the Building, or the structural integrity of the Building, Tenant shall use
only those contractors used by Landlord in the Building to work on the
Building's systems or structure, unless those contractors are unwilling or
unable to perform the work, in which event Tenant may utilize the services of
another qualified, licensed, and insured contractor subject to Landlord's prior
approval, not to be unreasonably withheld. All work performed under this
subsection shall also be subject to the Alterations section of this Lease.
M. Damage Limitation. Notwithstanding anything in this Lease to
the contrary, except as expressly provided in this Lease, neither party shall
ever be liable to the other in the event of a default under this Lease or
otherwise under any provision of this Lease for any loss of business or profits
or other consequential damages or for punitive or special damages of any kind.
10. ALTERATIONS:
A. Consent Required. Tenant may make any Alterations which are not
Material Alterations without Landlord's consent. Tenant shall make no Material
Alterations without the prior written consent of Landlord, which consent will
not be unreasonably withheld, conditioned, or delayed. Notwithstanding the
foregoing, Landlord may condition its consent to any Material Alterations
(including the Tenant Improvements) on Tenant removing the Material Alterations,
and repairing all damages caused by the removal, prior to the end of the Lease
Term. In no event, however, may Landlord require Tenant to remove usual office
improvements such as drywall, partitions, ceiling grids and tiles, flourescent
lighting panels, doors, and carpeting.
B. Conditions. All Alterations shall be performed in accordance
with the following conditions:
(1) All Alterations requiring a building permit shall be
performed in accordance with plans and specifications first submitted to
Landlord for its prior written approval, which approval shall not be
unreasonably withheld. Landlord shall be given, in writing, a good description
of all other Alterations. Any changes in or deviations from the plans originally
approved by Landlord must be similarly approved by Landlord.
(2) All Alterations shall be done in a good and workmanlike
manner. Tenant shall, before the commencement of any Alterations, obtain and
exhibit to Landlord any governmental permit required for the Alterations.
(3) All Alterations shall be done in compliance with all
other applicable provisions of this Lease and with all applicable laws,
ordinances, directives, rules, and regulations of governmental authorities
having jurisdiction, including, without limitation, the ADA and all laws dealing
with the abatement, storage, transportation, and disposal of asbestos or other
hazardous materials, which work, if required, shall be effected by contractors
and consultants approved by Landlord and in strict compliance with all
applicable laws. Notwithstanding anything to the contrary contained in this
article, Tenant shall not penetrate or disrupt the structural columns of the
building located within the Premises or any area within three feet of any
structural column, in performing any Alterations.
(4) All work shall be performed by contractors having, in
the reasonable opinion of
19
Landlord, the proper qualifications. Tenant shall provide Landlord with the name
of the Tenant's contractor, a copy of the contractor's licenses to do work in
the subject jurisdiction(s), a Contractor's Qualification Statement in the most
current American Institute of Architects form, a copy of the executed contract
between the Tenant and its contractor, and a copy of the contractor's work
schedule. All contractors on projects having a cost in excess of $250,000.00
shall obtain a payment and performance bond in form complying with Section
713.23, Florida Statutes and deliver a copy of the bond to Landlord before
commencement of any Alterations.
(5) Before the commencement of any work by or for Tenant,
Tenant shall furnish to Landlord certificates evidencing the existence of
builder's risk, comprehensive general liability, and workers' compensation
insurance complying with the requirements of the Insurance article of this
Lease.
(6) Any damage to any part of the Building Project that
occurs as a result of any Alterations shall be promptly repaired by Tenant to
the reasonable satisfaction of Landlord.
(7) Tenant and its contractor and all other persons
performing any Alterations shall abide by Landlord's job site rules and
regulations and fully cooperate with Landlord's construction representative(s)
in coordinating all of the work in the Building Project.
(8) All Alterations will comply with the requirements of any
energy efficiency program offered by the electric service provider to the
Building Project.
(9) Landlord, or its agent or contractor, may supervise the
performance of any Alterations. As to all Material Alterations, Tenant shall pay
to Landlord an amount equal to 5% of the cost of the work, as a fee for
supervision and coordination of the work and as reimbursement for expenses
incurred by Landlord in connection with Landlord's supervision and coordination.
11. LIENS: Tenant agrees that it will make full and prompt payment of
all sums necessary to pay for the cost of repairs, alterations, improvements,
changes, or other work done by Tenant to the Premises and further agrees to
indemnify and hold harmless Landlord from and against any and all such costs and
liabilities incurred by Tenant, and against any and all mechanic's,
materialmen's or laborer's liens arising out of or from such work or the cost
thereof which may be asserted, claimed or charged against the Premises or the
Building or Property. Notwithstanding anything to the contrary in this Lease,
the interest of Landlord in the Premises shall not be subject to liens for
improvements made by or for Tenant, whether or not the same shall be done in
accordance with any agreement between Landlord and Tenant and it is specifically
understood and agreed that in no event shall Landlord or the interest of
Landlord in the Premises be liable for or subjected to any mechanic's,
materialmen's or laborer's liens for improvements or work made by or for Tenant.
This Lease specifically prohibits the subjecting of Landlord's interest in the
Premises to any mechanic's, materialmen's or laborer's liens for improvements
made by Tenant or for which Tenant is responsible for payment under the terms of
this Lease. All persons dealing with Tenant are hereby placed upon notice of
this provision. Tenant shall advise its contractors, subcontractors, materialmen
and any other lienors of this provision. In the event any notice or claim of
lien shall be asserted of record against the interest of Landlord in the
Premises or Building or the site on which it is located on account of or growing
out of any improvement or work done by or for Tenant, or any person claiming by,
through or under Tenant, for improvements or work the cost of which is the
responsibility of Tenant, Tenant agrees to have such notice of claim of lien
canceled and discharged of record as a claim against the interest of Landlord in
the Premises or the Building or Property (either by payment or bond as permitted
by law) within ten (10) days after notice to Tenant by Landlord, and in the
event Tenant shall fail to do so, Tenant shall be considered in default under
this Lease.
12. ACCESS TO PREMISES: A. Landlord may enter the Premises at any time
without notice to Tenant in the event of an Emergency. Landlord and persons
authorized by Landlord shall also have the right to enter the Premises at all
reasonable times and on reasonable advance oral or written notice for the
purposes of making repairs, replacements, and improvements that may be
Landlord's obligation under this Lease or that Landlord deems necessary for the
safety, protection, or preservation of the Building Project or when entry will
facilitate repairs, alterations, or additions to the Building Project. If
reasonably necessary for the protection and safety of Tenant and its agents and
employees, Landlord may temporarily close portions of the Premises to perform
repairs, alterations, or additions to the Building Project, provided that
Landlord shall use reasonable efforts to perform all work after normal business
hours. Landlord and persons authorized by Landlord shall also have the right to
enter the Premises at all reasonable times and on reasonable advance oral or
written notice to inspect the Premises and conduct such tests and investigations
(including a Phase I Indoor Air Quality audit) to evaluate the indoor air
quality in the Premises or the Building, or both.
20
B. Landlord may exhibit the Premises to prospective purchasers or
mortgagees of Landlord's interest in the Premises during normal business hours
after reasonable advance oral or written notice. During the last six months of
the Lease Term, Landlord or its agents may exhibit the Premises to prospective
tenants during normal business hours after reasonable advance oral or written
notice.
13. LANDLORD'S LIEN: As between Landlord and Tenant, Landlord waives
and releases all liens, security interests, and other rights of Landlord of any
type or nature, whether statutory or contractual, that Landlord may now have or
ever acquire in Tenant's Property. However, this waiver and release shall be
enforceable by a third party seeking to enforce its own security interest in the
Tenant's Property if such party has entered into a Waiver of Landlord's Lien
Agreement with Landlord and Tenant in the form of EXHIBIT "H" to this Lease.
14. INTENTIONALLY OMITTED.
15. ENVIRONMENTAL LAWS: A. Tenant's use of, and activities on, the
Premises shall be conducted in compliance with all Environmental Laws. If any of
Tenant's activities require the use of "hazardous" or "toxic" substances, as
those terms are defined by any of the Environmental Laws, then Tenant represents
and warrants to Landlord that Tenant has received all permits and approvals
required under the Environmental Laws concerning the toxic or hazardous
substances. Tenant, its agents, employees, and contractors shall not violate any
Environmental Laws applicable to the Premises. Tenant shall not be liable for
violations of Environmental Laws by Landlord or unrelated third parties for whom
Tenant has no legal responsibility.
B. If Tenant breaches any of its representations, warranties, or
covenants and agreements contained in this section or fails to notify Landlord
of the release of any hazardous or toxic substances from the Premises by Tenant,
its agents, employees, or contractors, then, in addition to all other rights and
remedies available to Landlord, Landlord shall have the right to initiate a
clean up of the Premises, in which case Landlord shall be reimbursed by Tenant
for, and indemnified by Tenant from, any and all costs, expenses, losses, and
liabilities incurred in connection with the clean up (including all reasonable
attorneys' fees) by Landlord. In the alternative, Landlord may require Tenant to
clean up the Premises and to fully indemnify and hold Landlord harmless from any
and all losses, liabilities, expenses (including but not limited to reasonable
attorneys' fees), and costs incurred by Landlord in connection with Tenant's
clean up action. Notwithstanding anything in this section, Tenant agrees to pay,
and shall indemnify Landlord from and against, any and all losses, claims,
liabilities, costs, and expenses (including reasonable attorneys' fees) incurred
by Landlord as a result of any breach by Tenant of this section, and as a result
of any contamination of the Premises because of Tenant's use of hazardous or
toxic substances on the Premises.
C. If Tenant's operations require the ongoing use of hazardous or
toxic substances, then Tenant shall supply Landlord with copies of reports and
any other monitoring information required by the Environmental Laws. As used in
this section, "Premises" shall mean and refer to the property that is the
subject of this Lease as well as any portion of the Building Project that may be
damaged or contaminated by the release of any toxic or hazardous substance.
D. Landlord has delivered to Tenant a copy of the environmental
report obtained by Landlord for the Building Project. Landlord represents, to
the best of its knowledge without investigation and except to the extent set
forth in this environmental report, that the Building Project and its existing
and prior uses comply with, and Landlord is not in violation of, and has not
violated, in connection with the ownership, use, maintenance, or operation of
the Building Project and the conduct of the business related thereto, any
Environmental Laws. Landlord shall, at its own expense, observe and comply with
all present and future Environmental Laws concerning its use of, and activities
on, the Building Project. Landlord represents that it has received no notices of
any violation or claimed violation of any Environmental Laws or of any pending
or contemplated investigation, lawsuit, or action relating to the Environmental
Laws. Landlord shall indemnify Tenant from and against any and all losses,
claims, liabilities, costs, and expenses (including reasonable attorneys' fees)
incurred by Tenant as a result of any hazardous or toxic substances existing on
or about the Premises, but only to the extent that (i) any such existence is
caused by the acts or omissions of Landlord or Landlord's past, present, or
future officers, directors, employees, agents, contractors, or any other persons
or entities reasonably within the control of Landlord while acting within the
scope of Landlord's control, and not as a result of any action by Tenant or any
party for whose actions Tenant is responsible or (ii) such existence was present
as of the Date of this Lease, and not as a result of any action by Tenant or any
party for whose
21
actions Tenant is responsible.
E. This section shall survive the expiration or sooner termination
of this Lease.
16. CASUALTY DAMAGE: A. Termination Rights. If: (i) there is any
material loss to the Building Project that is not covered by insurance required
to be maintained by Landlord under this Lease; or (ii) the Premises shall be
partially damaged by casualty during the last two years of the Lease Term, and
the estimated cost of repair exceeds 50% of the replacement cost; Landlord or
Tenant may, within 90 days after the casualty, give notice electing to terminate
this Lease, and the balance of the Lease Term shall automatically expire on the
fifth day after the notice is delivered. Notwithstanding the foregoing, if
Tenant elects to terminate this Lease on account of the occurrence of either of
the events described in Subsection (i) above, and Landlord gives notice to
Tenant within 90 days of the date of the casualty that Landlord will restore the
Building Project notwithstanding the occurrence of such event, then Tenant's
notice of termination shall be rescinded and this Lease shall remain in full
force and effect. In addition, if Landlord elects to terminate this Lease on the
basis of Subsection (ii) and Tenant has any remaining option to extend the Lease
Term, Tenant may, within ten days of Landlord's election to terminate, give
notice that it is exercising its option to extend, in which event Landlord's
Notice of Termination shall be rescinded.
B. Restoration. If neither party has the right to terminate this
Lease under the Termination Rights section of this article, or if either party
has the right to terminate and does not elect to do so, Landlord shall proceed
with reasonable diligence to restore the Building Project and the Premises to
substantially the same condition they were in immediately before the happening
of the casualty. However, Landlord shall not be required to restore any portion
of Tenant's Property. When repairs to the Premises that are Landlord's
obligation under this article, if any, have been completed by Landlord, Tenant
shall complete the restoration or replacement of the Premises and all of
Tenant's Property necessary to permit Tenant's reoccupancy of the Premises.
C. Rent Abatement. Rent shall ▇▇▇▇▇ in proportion to the portion
of the Premises not useable by Tenant as a result of any casualty covered by
insurance carried or required to be carried by Landlord under this Lease, as of
the date on which the Premises becomes unusable. Such abatement shall continue
for the period commencing with the date on which the Premises becomes unusable
and ending with: (i) the completion by Landlord of such work of repair and/or
restoration as Landlord is obligated to do; and (ii) the expiration of a
reasonable period of time (not to exceed 90 days) thereafter to enable Tenant to
re-fixture the Premises and reopen for business, but said period of time shall
be deemed to have ended if Tenant shall reopen for business prior to the
expiration thereof. In the event of the termination of this Lease under this
article, this Lease, and the Lease Term shall cease and come to an end as of the
date of such damage or destruction. Any Base Rent or other charges paid in
advance by Tenant shall be promptly refunded by Landlord. Landlord shall not be
liable to Tenant for any delay in restoring the Premises or any inconvenience or
annoyance to Tenant or injury to Tenant's business resulting in any way from the
damage or the repairs, Tenant's sole remedy being the right to an abatement of
rent.
D. Termination. Within 90 days of the date of any casualty which
requires substantial alteration or reconstruction of the Building Project,
Landlord shall notify Tenant of the outside date by which the Building Project
will be rebuilt. If the outside date indicated in this notice is more than 12
months after the date of issuance of the building permit for the rebuilding
work, Tenant may, within ten days of Landlord's notice, give Landlord notice
that Tenant elects to terminate this Lease, and the balance of the Lease Term
shall automatically expire on the fifth day after the notice is delivered.
Should Landlord's notice indicate that the Building Project can be rebuilt
within 12 months after issuance of the building permit for the work or if the
notice indicates that rebuilding will take more than 12 months after issuance of
the building permit for the work but Tenant does not elect to terminate this
Lease within ten days of Landlord's notice, Landlord shall proceed with
reasonable diligence to rebuild the Building Project in accordance with the
terms of this section. Should the rebuilding not be substantially completed
prior to the outside date indicated in Landlord's notice, then Tenant shall have
the right to terminate this Lease by giving not less than 30 days' prior written
notice to Landlord, which notice must be sent within ten days after the
expiration of the outside date, and this Lease shall terminate as of the date
specified in the notice with the same effect as if that date were the scheduled
expiration date of this Lease. Notwithstanding the foregoing, if Tenant sends a
notice of termination and Landlord, prior to the date of termination specified
in the notice, substantially completes the rebuilding, then Tenant's notice
shall be without force or effect and this Lease shall continue in full force and
effect. The outside date for completion shall be extended by the cumulative
periods of any delays caused by Tenant or any of the events described in the
Impossibility of Performance article of this Lease, or both.
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E. Disbursement of Insurance Proceeds. Notwithstanding anything
contained in this article or elsewhere in the Lease to the contrary, if Landlord
is rebuilding the Building Project following any casualty as to which the
insurance proceeds will exceed $250,000.00, such proceeds shall be paid to
Landlord's lender and disbursed by the lender to Landlord or its contractor as
the restoration progresses, rather than being paid to Landlord in a lump sum
prior to completion of the restoration.
F. Statutes Overridden. The rights given Tenant under this article
are in lieu of and override any rights that Tenant may have by statute.
17. CONDEMNATION: A. For purposes of this section, any of the following
three events shall be deemed a "Taking": (i) if any part of the Building Project
is taken or condemned through the exercise of the power of eminent domain by any
governmental or private board, body, or agency having the right to exercise such
power; or (ii) if any part of the Building Project is conveyed to any condemning
authority under threat of condemnation before or after proceedings have been
commenced to acquire the property by the condemning authority; or (iii) if a
"taking" is judicially declared in any proceeding in which Landlord is a party.
B. In the event of a Taking of all of the Premises, this Lease
shall terminate on the date on which possession of the Premises is delivered to
the condemning authority (the "Condemnation Date") and rent shall be apportioned
and paid to the Condemnation Date.
C. In the event of a Taking of more than 10% of the floor area of
the Building or more than 10% of the parking spaces on the Land as of the Date
of this Lease, then Tenant may elect to terminate this Lease effective as of the
Condemnation Date by providing notice of termination to Landlord not later than
30 days after the Condemnation Date, and rent shall be apportioned and paid to
the Condemnation Date. If Tenant sends a notice of termination because more than
10% of the parking spaces on the Land will be taken and Landlord, within 15 days
of receipt of the notice, notifies Tenant that Landlord will provide additional
parking on the Building Project or on property adjacent to the Building Project
so that the total number of spaces lost will be equal to or less than 10% of the
parking spaces on the Land as of the Date of this Lease, then Tenant's notice
shall be without force or effect and this Lease shall continue in full force and
effect.
D. If Tenant, having a right to terminate this Lease under
Subsection C above, fails to terminate this Lease within the time and in the
manner provided in Subsection C, or elects not to terminate this Lease, this
Lease shall continue in full force and effect but rent payable under this Lease
shall ▇▇▇▇▇ in direct proportion to the portion of the Premises not useable by
Tenant. Such abatement shall continue for the period commencing with the date on
which the Premises becomes unusable and ending with (i) the completion by
Landlord of such work of repair and/or restoration as Landlord is obligated to
do; and (ii) the expiration of a reasonable period of time (not to exceed 90
days) thereafter to enable Tenant to re-fixture the Premises and reopen for
business, but said period of time shall be deemed to have ended if Tenant shall
reopen for business prior to the expiration thereof. No rental abatement shall
be granted Tenant for a loss of parking spaces or for the loss of any other
portion of the Premises on which there are no above ground improvements.
E. In any case in which this Lease shall not terminate, but shall
continue as to the portion of the Premises remaining after the Taking, Landlord
shall restore that portion of the Premises so remaining to as near a complete
architectural unit as is practical. Notwithstanding the foregoing, if Landlord's
costs and expenses incurred or to be incurred in connection with the restoration
are reasonably estimated by Landlord to exceed the amount of the award to be
received by Landlord for any buildings or structures taken and for damages to
the remaining buildings or structures, unless Tenant delivers to Landlord the
shortfall in the estimated restoration costs within 30 days of receipt of
Landlord's notice as to the amount of the estimated shortfall, Landlord,
regardless of whether Landlord and Tenant have earlier elected to continue this
Lease as to the remaining Premises, may nevertheless terminate this Lease by
notice to Tenant within 30 days following Landlord's receipt of notice of the
amount of the award.
F. Except to the extent set forth in Subsection H below, all
awards in condemnation, whether recovered as a result of litigation, or in
settlement of litigation or threatened condemnation, or as part of a private
purchase in lieu of condemnation, and whether termed compensation or damages,
but payable in any event for the Taking of all or a portion of the Premises or
the Building Project shall belong solely to Landlord. Except to the extent set
forth in Subsection H below, Tenant assigns to Landlord all of Tenant's right,
title, and interest, if any, in and to all awards in condemnation, and all
rights to an apportionment of the awards, including all compensation and damages
representing the value of any property or improvements taken, damages by way of
the reduction in value of the remaining property not taken, damages on account
of any reduction in the value
23
of Tenant's leasehold estate or representing the value of Tenant's leasehold
improvements, damages for any loss or impairment of access, and, in general, all
compensation and damages of whatever kind, nature, or description that may be
payable on account of any Taking or on account of the use of the property so
taken by the condemning authority.
G. Tenant shall, accordingly, make no claim by way of
apportionment or otherwise to any awards in condemnation payable to Landlord
under the provisions of this Condemnation section and, therefore, consents to
Landlord's withdrawal of any sum deposited into the court registry of any court
of competent jurisdiction by a condemning authority, at any time during the
pendency of condemnation proceedings, should the proceedings be initiated
against Landlord, except to the extent to which any sums so deposited represent
damages or compensation that belongs to Tenant under the provisions of
Subsection H below.
H. Tenant shall have the right to claim and recover, provided
Tenant asserts and pursues its separate claims against the condemning authority,
only that compensation or damage representing Tenant's moving and relocation
expenses, the value of Tenant's Property, and the depreciated value of any
Alterations which are taken and which were permitted under this Lease and were
paid for by Tenant with its own funds (and not through use of the tenant
improvement allowance paid by Landlord). Tenant may also pursue its business
damage claim against the condemning authority. Tenant shall be entitled to
participate in all condemnation proceedings affecting the Premises.
18. REPAIR AND MAINTENANCE: A. Landlord shall repair, replace (if
necessary), and maintain in good order and condition, ordinary wear and tear
excepted, the roof, the outside walls, parking areas, landscaping, exterior
lighting, the structural portions of the Premises (exclusive of structural
elements constructed by Tenant), the HVAC systems (but not the energy management
system), the life safety systems (including fire sprinklers and alarms), and the
electrical and plumbing systems servicing the Premises. All costs associated
with the repair and maintenance obligations of Landlord under this section shall
be included in and constitute Expenses, except as otherwise expressly excluded
in this Lease.
B. Except as provided in Subsection A, Landlord shall have no
maintenance obligation concerning the Premises and no obligation to make any
repairs or replacements, in, on, or to the Premises. Tenant assumes the full and
sole responsibility for the condition, operation, repair, replacement, and
maintenance of the Premises, including all improvements, throughout the Lease
Term, except to the extent expressly set forth in Subsection A. Tenant shall
maintain the Premises in good repair and in a clean, attractive, first-class
condition, ordinary wear and tear excepted. Without limiting the generality of
foregoing, Tenant shall repair, replace, and maintain in good and operational
order and condition the non-structural interior portions of the Premises,
including interior doors, interior windows, plate and window glass, floor
coverings, trash removal, wall coverings, furniture, fixtures, plumbing
fixtures, lighting and light fixtures (including light bulbs and ballasts),
equipment, and appliances. All replacements shall be of equal quality and class
to the original items replaced. Tenant shall not commit or allow to be committed
any waste on any portion of the Premises.
19. ESTOPPEL CERTIFICATES: A. From time to time, Tenant, upon not less
than five days' prior written notice, shall execute and deliver to Landlord a
statement in writing certifying: (i) that this Lease is unmodified and in full
force and effect (or if there shall have been any modification, that the same is
in full force and effect as modified and stating the modification), (ii) the
amount of any prepaid rent or security deposit paid under this Lease, (iii) the
dates to which the rent and other charges have been paid, (iv) whether or not
Tenant claims any defenses or offsets with respect to its obligations under this
Lease and whether or not Landlord is in default in the performance of any
covenant, agreement, or condition contained in this Lease on its part to be
performed, and, if so, specifying each such defense, offset, or default of which
Tenant may have knowledge, and (v) such other factual matters concerning this
Lease as may be required by institutional lenders in similar estoppel
certificates. The estoppel certificate may be relied upon by any lender or
purchaser as to Landlord's interest in the Building Project but not by Landlord.
In addition, if requested, Tenant shall provide such financial information
concerning Tenant and Tenant's business operations and Guarantor as may be
reasonably requested by any mortgagee or prospective mortgagee or purchaser of
the Premises. Nothing contained in this section shall constitute a waiver by
Landlord of any default in payment of rent or other charges existing as of the
date of any notices or certificates under this section.
B. Should Tenant wish to assign this Lease or sublet the Premises,
as permitted under the terms of this Lease, or wish to obtain financing
concerning its business operations, Landlord shall provide the assignee,
subtenant, or lender, as the case may be, within 15 days following written
notice by Tenant specifying that it is given under this subsection, an estoppel
certificate certifying that this Lease is unmodified and in full force and
24
effect (or if there have been modifications, that this Lease is in full force
and effect and stating the modifications), and the date to which rent has been
paid in advance, if applicable, and stating whether or not, to the best
knowledge of Landlord, Tenant is in default under this Lease, and, if so,
specifying each such default of which Landlord may have knowledge, and
containing such other factual matters concerning this Lease as may be reasonably
required by an assignee, subtenant, or lender, as the case may be. The estoppel
certificate may be relied on by the assignee, subtenant, or lender, as the case
may be, and by no other parties, including Tenant.
20. SUBORDINATION: A. This Lease is and shall be subject and
subordinate to any ground, overriding, or underlying leases and the rights of
the landlords under those leases and to all mortgages that may now or hereafter
affect the leases or the Building Project, and to all renewals, modifications,
consolidations, replacements, and extensions of the leases and mortgages. This
section shall be self-operative and no further instrument of subordination shall
be necessary. However, in confirmation of this subordination, Tenant shall
execute promptly any certificate that Landlord may request. The failure of
Tenant to execute any certificate within ten days following written demand by
Landlord shall constitute a material default under the terms of this Lease. If
any ground or underlying lease is terminated, or any mortgage foreclosed, this
Lease shall not terminate or be terminable by Tenant unless Tenant was
specifically named in any termination or foreclosure judgment or final order. If
any ground or underlying lease is terminated, or if the interest of Landlord
under this Lease is transferred by reason of or assigned in lieu of foreclosure
or other proceedings for enforcement of any mortgage, or if the holder of any
mortgage acquires a lease in substitution for the mortgage, or if this Lease is
terminated by termination of any lease or by foreclosure of any mortgage to
which this Lease is or may be subordinate, then Tenant will, at the option to be
exercised in writing by the landlord under any ground or underlying lease or the
purchaser, assignee, or tenant, as the case may be, (i) attorn to it and will
perform for its benefit all the terms, covenants, and conditions of this Lease
on Tenant's part to be performed with the same force and effect as if the
landlord or the purchaser, assignee, or tenant were the landlord originally
named in this Lease, or (ii) enter into a new lease with the landlord or the
purchaser, assignee, or tenant for the remainder of the Lease Term and otherwise
on the same terms, conditions, and rents as provided in this Lease.
B. This Lease is contingent on delivery by Landlord to Tenant of a
subordination, non-disturbance, and attornment agreement as to the mortgage
currently encumbering the Building Project and held by Bank of America and in
which the lender agrees that casualty and condemnation proceeds relating to the
Premises shall be disbursed in the manner provided in this Lease,
notwithstanding any contrary provisions which may be contained in the loan
documents, and otherwise in a commercially reasonable form as would be
reasonably acceptable to both a lender, on the one hand, and a tenant, on the
other, as to a comparable lease, executed by Landlord and the lender. Tenant
shall execute the agreement promptly after it is submitted to Tenant and will
execute it before the lender does so if the lender so requires. Tenant shall be
responsible for any fees or costs charged by the lender in connection with the
negotiation of the subordination, non-disturbance and attornment agreement. This
Lease shall not be effective unless and until the fully executed subordination,
non-disturbance, and attornment agreement is delivered to Tenant. If the
subordination, non-disturbance, and attornment agreement has not been executed
by the current lender within 30 days of the Date of this Lease, Tenant may
terminate this Lease by notice to Landlord, which notice must be sent within 40
days of the Date of this Lease. If Tenant does not send a notice of termination
by such date, this Lease shall continue in full force and effect and the
contingency provided in this section shall be deemed satisfied and deleted from
this Lease.
C. Landlord, as a condition to Tenant's obligation to subordinate
its interest under this Lease to any future ground or underlying leases or
future mortgages, will cause any future lessor under any ground or underlying
lease or holder of a mortgage affecting the Building Project to provide Tenant
with a subordination, non-disturbance, and attornment agreement in which the
lessor or mortgagee agrees that, except during the last six months of the term
of the loan (provided that the loan has a term of ten years), casualty and
condemnation proceeds relating to the Premises shall be disbursed in the manner
provided in this Lease, notwithstanding any contrary provisions which may be
contained in the ground lease or loan documents, and otherwise in a commercially
reasonable form as would be reasonably acceptable to both a lessor or lender, on
the one hand, and a tenant, on the other, as to a comparable lease. The
agreement may provide that during the last six months of the term of the loan
(provided that the loan has a term of ten years), disposition of casualty and
condemnation proceeds shall be controlled by the terms of the loan documents,
notwithstanding any contrary provisions in this Lease. Tenant shall be
responsible for any fees or costs charged by the lessor or mortgagee.
21. INDEMNIFICATION: Landlord and Tenant shall each indemnify, defend,
and save harmless the other party and the other party's employees, agents, and
contractors (the "Indemnified Parties") from and against any and all loss,
damage, claim, demand, liability, or expense (including reasonable attorneys'
fees)
25
resulting from claims by third parties and based on any acts or omissions
(specifically including negligence) of the indemnitor, its employees, agents,
and contractors in connection with the Building Project and only to the extent
caused in whole or in part by acts or omissions of the indemnitor, its
employees, agents, and contractors, regardless of whether or not the claim is
caused in part by any of the Indemnified Parties. The indemnitor shall have the
right to assume the defense of any claim covered by this indemnity on behalf of
both itself and the Indemnified Parties, provided that the lawyers selected by
the indemnitor to handle the defense are reasonably satisfactory to the
Indemnified Parties and the representation will not result in a conflict of
interest for the lawyers. The Indemnified Parties may not settle any claim
covered by this Indemnity section without the consent of the indemnitor. When
any claim is caused by the joint acts or omissions of the indemnitor and the
Indemnified Parties, the indemnitor's duties under this section shall be in
proportion to the indemnitor's allocable share of the joint liability. This
Indemnification section shall not be construed to restrict, limit, or modify
either party's insurance obligations under this Lease. Either party's compliance
with the insurance requirements under this Lease shall not restrict, limit, or
modify that party's obligations under this Indemnification section.
Notwithstanding anything in this section to the contrary, neither party shall be
liable to the other under this indemnification for any loss of business or
profits or other consequential damages or for punitive or special damages of any
kind.
22. ANTIWAIVER: The failure of a party to insist on the strict
performance of any provision of this Lease or to exercise any remedy for any
default shall not be construed as a waiver. The waiver of any noncompliance with
this Lease shall not prevent subsequent similar noncompliance from being a
default. No notice to or demand on a party shall of itself entitle the party to
any other or further notice or demand in similar or other circumstances. No
waiver shall be effective unless expressed in writing and signed by the waiving
party. The receipt by Landlord of any rent after default on the part of Tenant
(whether the rent is due before or after the default) shall not be deemed to
operate as a waiver of any then existing default by Tenant or of the right of
Landlord to enforce the payment of any other rent reserved in this Lease that
may be due and owing at that time, or otherwise, or to pursue any other remedies
available to Landlord. No payment by Tenant, or receipt by Landlord, of a lesser
amount than the rent actually owed under the terms of this Lease shall be deemed
to be other than on account of the earliest stipulated rent, nor shall any
endorsement of, or statement on, any check or any letter accompanying any check
or payment of rent be deemed an accord and satisfaction. Landlord may accept the
check or payment without prejudice to Landlord's right to recover the balance of
the rent or to pursue any other remedy. No act of Landlord shall be deemed an
acceptance of a surrender of the Premises and no agreement to accept a surrender
shall be valid unless in writing and signed by Landlord. The acceptance of the
keys to the Premises by the Landlord from the Tenant before the termination of
this Lease will not operate as a termination of this Lease or a surrender of the
Premises unless done under a written agreement duly executed on behalf of
Landlord and specifically evidencing an express intention by Landlord so to
effect a termination or accept a surrender. It is the intention of the parties
that this section modify the common law rules of waiver and estoppel.
23. NO REPRESENTATIONS BY LANDLORD: Neither Landlord nor Landlord's
agents have made any representations or promises concerning the physical
condition of the Building Project or the Premises, the rents, leases, expenses
of operation, or any other matter affecting or relating to the Premises, except
as expressly set forth in this Lease and no rights, easements, or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
this Lease.
24. SERVICES AND UTILITIES: A. During the Lease Term and as long as
Tenant is entitled to possession of the Premises, Landlord shall furnish the
following services:
(1) Air conditioning and heating in season.
(2) Landscape maintenance and general cleaning services as
to all areas outside of the Building.
B. Tenant shall pay to Landlord the costs of any modification to
any Building Project utility or service system necessary to accommodate Tenant.
Notwithstanding the foregoing, Landlord shall not be required to make any
modification to any utility or service system of the Building Project on behalf
of Tenant.
C. Landlord shall not be liable to Tenant for any loss or damage
or expense which Tenant may sustain or incur if either the quantity or character
of electric service or any other utility service to the Premises is changed or
is no longer available or suitable for Tenant's requirements. Tenant's use of
electrical and heating, ventilating, and air conditioning services shall not
exceed, either in voltage, rated capacity, use, or overall load,
26
the capacity for the Building.
D. In no event shall Landlord be liable for damages resulting from
any of the fixtures or equipment in the Building Project being out of repair, or
for injury to persons, property, or business caused by any defects in the
electric, elevator, HVAC, or water apparatus, or for any damages arising out of
the failure to furnish HVAC or other service, unless due to the negligence or
intentional acts of Landlord, and any such interruption or failure shall in no
manner constitute an actual or constructive eviction of Tenant or entitle Tenant
to abatement of any rent due under this Lease, except as set forth in this
Lease. Notwithstanding anything to the contrary in this section, if (i) Landlord
ceases to furnish services to the Premises, and Tenant notifies Landlord of the
cessation in writing (the "Interruption Notice"), (ii) the cessation does not
arise as a result of an act or omission of Tenant, (iii) the cessation is not
caused by fire or other casualty (in which case Section 16 shall control), (iv)
the repair or restoration of the services is reasonably within the control of
Landlord, and (v) as a result of the cessation the Premises or a material
portion of the Premises is rendered untenantable (meaning that Tenant is unable
to use the Premises in the normal course of its business) and Tenant in fact
ceases to use the Premises or a material portion of the Premises, then Tenant's
sole remedy for the cessation shall be as follows: on the third consecutive
Business Day following the "Interruption Date", which shall be the later to
occur of the date the Premises (or a material portion of the Premises) becomes
untenantable, the date Tenant ceases to use the space, and the date Tenant
provides Landlord with an Interruption Notice, the rent payable under this Lease
shall be abated on a per diem basis for each day after the three Business Day
period based upon the percentage of the Premises so rendered untenantable and
not used by Tenant, and the abatement shall continue until the date the Premises
become tenantable again.
E. Landlord has advised Tenant that Florida Power & Light Company
is the utility company selected by Landlord to provide electricity service for
the Building. However, if permitted by law, Tenant may at any time and from time
to time during the Lease Term contract for service from a different company or
companies providing electricity service.
F. Landlord shall not provide or be obligated to cause any party
to provide any electrical services, water, sewer, telecommunications, cable
television, or any other utilities, janitorial and general cleaning services,
security services (including maintenance and repair of the security system in
the Premises as of the Date of this Lease), trash removal, or pest control to
the Premises. Tenant shall pay directly to the provider thereof all fees and
charges for janitorial and general cleaning services, security services
(including maintenance and repair of the security system in the Premises as of
the Date of this Lease), trash removal, and pest control and shall be solely
responsible for all charges for electrical services to the Premises, including
metering costs and electricity costs of HVAC services to the Premises.
25. SECURITY DEPOSIT: The Security Deposit shall be delivered to
Landlord on the execution of this Lease by Landlord and Tenant. The Security
Deposit shall be held by the Landlord as security for Tenant's payment of rent
or any other sum payable by Tenant under any of the provisions of this Lease,
including amounts payable by Tenant under Section 9F of this Lease. The Security
Deposit shall not be considered an advance payment of rent and is not intended
to serve as liquidated damages nor to be a measure of Landlord's damages for any
default by Tenant. The Security Deposit may be commingled with other funds of
Landlord and Landlord shall have no liability for the accrual or payment of any
interest on the Security Deposit.
A. Application of Security Deposit: Landlord may use, apply, or
retain the whole or any part of the Security Deposit to the extent required for
the payment of any rent or any other sum payable by Tenant under any of the
provisions of this Lease, including amounts payable by Tenant under Section 9F
of this Lease, which are not paid prior to the expiration of any notice and
grace periods provided in this Lease. Tenant expressly acknowledges that Tenant
shall not have the right to apply the Security Deposit to rent. Application of
the Security Deposit to rents owed shall be at the sole option of Landlord, and
the right to possession of the Premises by Landlord for nonpayment of rent or
for any other reason shall not in any event be affected by the existence of the
Security Deposit.
B. Replenishment of Security Deposit: If Landlord uses, applies,
or retains the whole or any part of the Security Deposit, Tenant shall deliver
to Landlord the amount necessary to replenish the Security Deposit to its
original sum within five days after notification from Landlord of the amount
due. The Security Deposit shall be replenished by delivering a replacement
letter of credit (in the same form and issued by the same bank as the original
Letter of Credit or by another bank approved by Landlord) restoring the amount
of the Letter of Credit back to $800,000.00 (or such lesser amount as applicable
under Section F below), in which event, and upon receipt of the replacement
letter of credit, Landlord shall return the original Letter of Credit to Tenant.
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Failure to pay the amount due within the required time period shall constitute a
material default under this Lease.
C. Transfer of Building Project: In the event of a sale, lease, or
encumbrance of the Building Project or any part of the Building Project,
Landlord shall have the right to transfer the Security Deposit to the purchaser,
landlord, tenant, or mortgagee and if the Security Deposit is transferred,
Landlord shall thereafter be relieved from any liability concerning the Security
Deposit.
D. Prohibition on Tenant Assignment: Tenant shall not assign or
encumber its rights concerning the Security Deposit. Landlord and its successors
or assigns shall not be bound by any purported assignment or have any liability
to any purported assignee.
E. When Returned: If Tenant pays all rent or other sums payable by
Tenant under any of the provisions of this Lease, including amounts payable by
Tenant under Section 9F of this Lease, any part of the Security Deposit not used
or retained by Landlord under the terms of this Lease shall be returned to
Tenant within 45 days after the expiration of the Lease Term and after Tenant's
delivery of possession of the Premises to Landlord. However, if at the
expiration of the Lease Term there are any amounts that may be due from Tenant
that have not yet been finally determined (for example, rent for Expenses for
the year in which the Lease Term expires or amounts which will potentially be
owed to Landlord under Section 9F of this Lease) then Landlord may estimate the
amounts which will be owed and deduct them from the Security Deposit. When the
actual amounts are finally determined, an adjustment shall be made between
Landlord and Tenant with payment to or repayment by Landlord, as the case may
require, to the end that Landlord shall receive the entire amount actually owed
by Tenant and Tenant shall receive reimbursement for any overpayments.
F. Letter of Credit. Anything in this Lease to the contrary
notwithstanding, Tenant, instead of depositing cash with Landlord as the
Security Deposit, shall instead provide a clean, unconditional, irrevocable,
negotiable commercial Letter of Credit (the "Letter of Credit"), which Letter of
Credit shall be issued by a bank which is reasonably acceptable to Landlord and
which is located in Broward County or Palm Beach County, Florida, naming
Landlord (or its successor as Landlord) as beneficiary and in the form of
EXHIBIT "G" to this Lease. Upon issuance of the Letter of Credit, a copy of it
shall be attached to this Lease. The Letter of Credit shall have a term of at
least 12 months, and it shall by its terms be renewed automatically each year by
the bank, unless the bank gives written notice to the beneficiary, at least 30
days prior to the expiration date of the then existing Letter of Credit, that
the bank elects that it not be renewed. If the Letter of Credit is ever not
renewed and has less than 30 days remaining in its term, Landlord may draw on it
and will then hold the proceeds as a cash Security Deposit in accordance with
the terms of this Lease. The Letter of Credit shall be transferable. Tenant
shall reimburse Landlord for all transfer fees incurred for both the Letter of
Credit and for the Guaranty Letter of Credit.
Provided Tenant has not been in Monetary Default under this Lease,
the Letter of Credit shall be reduced by 50% (or $400,000.00) as of January 1st
of the year following the year in which the Tenant under this Lease or any
Guarantor achieves a minimum net worth of not less than $50,000,000.00 and
annual income from operations (as defined and reflected in Tenant's filings with
the Securities and Exchange Commission) of not less than $2,000,000.00 for two
consecutive years as certified by an independent certified public accountant.
In addition to the above reduction, provided Tenant has not been
in Monetary Default under this Lease, the Letter of Credit shall be reduced by
an additional 25% (or $200,000.00) as of January 1st of the year following the
year in which the Tenant under this Lease or any Guarantor achieves a minimum
net worth of not less than $100,000,000.00 and annual income from operations (as
defined and reflected in Tenant's filings with the Securities and Exchange
Commission) of not less than $5,000,000.00 for two consecutive years as
certified by an independent certified public accountant.
In addition to the above reductions, provided Tenant has not been
in Monetary Default under this Lease, the Letter of Credit shall be cancelled
and returned to Tenant as of January 1st of the year following the year in which
the Tenant under this Lease or any Guarantor has maintained an investment grade
rating from Standard & Poors of BBB-- or better for one year without any
downgrades.
26. GOVERNMENTAL REGULATIONS: A. Tenant shall promptly comply with all
laws, orders, and regulations of all county, municipal, state, federal, and
other applicable governmental authorities, and all recorded covenants and
restrictions affecting the Building Project, now in force, or that may hereafter
be in force, pertaining to Tenant or its use of the Premises, and shall
faithfully observe, in the use of the Premises, all municipal and county
ordinances and state and federal laws now in force or that may hereafter be in
force, that shall impose any duty on Tenant concerning the Premises or the use
or occupancy of the Premises, including all
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laws relating to fire and safety, hazardous materials, indoor air quality, and
to persons with disabilities (whether the requirements be structural or
nonstructural), and specifically, but without limitation, installation and
maintenance of sprinklers, fire alarms, smoke detectors and other sensors, and
alterations and other measures necessary to comply with the ADA. At Landlord's
option, any required compliance, installation, and maintenance may be performed
by Landlord, at Tenant's expense, to be paid by Tenant promptly when billed by
Landlord.
B. Tenant shall comply with all requirements of the Board of Fire
Underwriters of the State where the Premises are located or any other similar
body affecting the Premises and shall not use the Premises in a manner that
shall increase the rate of fire insurance or other insurance of Landlord over
that in effect during the year before the Commencement Date. If the use of the
Premises by Tenant increases any insurance rate concerning the Building Project,
Tenant shall reimburse Landlord for the additional costs.
C. Tenant shall obtain all licenses and permits from time to time
required to enable Tenant to conduct its business under this Lease. No failure
of Tenant to obtain or maintain any licenses or permits, or extensions or
renewals of them, shall release Tenant from the performance and observance of
Tenant's obligations under this Lease.
D. Landlord represents and warrants that the Premises, as of the
Date of this Lease, substantially comply in all material respects with
applicable municipal, county, state, and federal laws, orders, and regulations
(collectively, the "Governmental Requirements"). Landlord, at its sole cost and
expense, subject to the provisions of Section 5 of this Lease, shall promptly
comply with all Governmental Requirements now in force or which may hereafter be
in force, pertaining to Landlord or its use of the Building Project, and which
are not the responsibility of Tenant or another tenant or occupant of the
Building Project, and shall faithfully observe, in the use of the Building
Project by Landlord, all Governmental Requirements now in force or which may
hereafter be in force, which shall impose any duty upon Landlord concerning the
Building Project or the use or occupancy of the Building Project, other than
requirements imposed on Tenant or on another tenant or occupant of the Building
Project, including, but not limited to, all Governmental Requirements relating
to fire and safety and hazardous materials (whether the requirements be
structural or nonstructural), and specifically, but without limitation,
installation and maintenance of sprinklers, fire alarms, smoke detectors, and
other sensors. Landlord need not comply with any laws as to which it has a
"grandfather" exemption or as to which Landlord has any other legal exemption
excusing it from current compliance. Notwithstanding the foregoing, Landlord
shall have the right to contest in good faith any alleged violation of any
Governmental Requirements if Landlord feels that it is not in violation of the
Governmental Requirements or is otherwise exempted from compliance, including,
without limitation, the right to apply for and obtain a waiver or deferment of
compliance, the right to assert any and all defenses allowed by law, and the
right to appeal any decisions, judgments, or rulings to the fullest extent
permitted by law. Landlord, after exhaustion of all rights to appeal or contest,
will make all repairs, additions, alterations, or improvements necessary to
comply with the terms of any final order or judgment.
27. SIGNS: Tenant may place on any portion of the Building Project,
including on any exterior door, wall, or window of the Premises, or within the
interior of the Premises any signage that complies with all applicable
governmental laws, orders, and regulations. Tenant will purchase, install,
maintain, and insure any signage at its sole cost and expense. Tenant shall
remove its signs upon the expiration or sooner termination of the Lease Term and
repair any damage caused by the removal, ordinary wear and tear and damage by
Landlord excepted.
28. SURVIVAL: Any liability or obligation of Landlord or Tenant arising
during the Lease Term shall survive the expiration or earlier termination of
this Lease, including obligations and liabilities relating to (i) the
adjustments of Expense rent referenced in the Expenses section of this Lease,
(ii) the condition of the Premises or the removal of Tenant's Property, and
(iii) the indemnity provisions of this Lease.
29. BROKER: Landlord and Tenant represent and warrant that they neither
consulted nor negotiated with any broker or finder regarding the Premises,
except the Leasing Broker. Landlord and Tenant agree to indemnify, defend, and
save the other harmless from and against any claims for fees or commissions from
anyone other than the Leasing Broker with whom they have dealt in connection
with the Premises or this Lease including attorneys' fees incurred in defending
any claim. Landlord shall indemnify and hold Tenant harmless against payment of
any leasing commission due the Leasing Broker in connection with this Lease.
30. QUIET ENJOYMENT: A. Landlord covenants and agrees that, on Tenant's
paying rent and performing all of the other provisions of this Lease on its part
to be performed, Tenant may peaceably and quietly hold and enjoy the Premises
for the Lease Term without material hindrance or interruption by Landlord
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or any other person claiming by, through, or under Landlord, subject,
nevertheless, to the terms, covenants, and conditions of this Lease and all
existing or future ground leases, underlying leases, mortgages, or deeds of
trust encumbering the Building Project.
B. Notwithstanding the foregoing, Landlord may temporarily close
the Building Project and preclude access to the Premises, but only to the extent
reasonably required, in the event of repairs, casualty, governmental
requirements, the threat of an emergency such as a hurricane, civil commotion,
war like operation, invasion, rebellion, hostilities, military or usurped power,
sabotage, floods, other natural disasters, or acts of God, or if Landlord
reasonably deems it necessary in order to prevent damage or injury to person or
property, and at all times subject to Landlord's security policies and
procedures.
31. END OF TERM: A. Tenant shall surrender the Premises to Landlord at
the expiration or sooner termination of this Lease in good order and condition,
broom clean, except for reasonable wear and tear and damage by fire or other
casualty (but recognizing Tenant's and Landlord's respective obligations to
maintain the Premises as provided in this Lease) and Tenant shall surrender all
keys for the Premises to Landlord. Unless Landlord shall have consented in
writing to Tenant's holding over, Tenant shall be liable to Landlord for all
damages, including any consequential damages, which Landlord may suffer by
reason of any holding over by Tenant, and Tenant shall indemnify, defend, and
save Landlord harmless against all costs, claims, loss, or liability resulting
from delay by Tenant in so surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay. No
holding over by Tenant or payments of money by Tenant to Landlord after the
expiration of the Lease Term shall be construed to extend the Lease Term or
prevent Landlord from immediate recovery of possession of the Premises.
B. The term "Landlord's Property" shall mean all fixtures,
equipment, improvements, appurtenances, and carpeting, attached to or built into
the Premises at the Commencement Date or during the Lease Term, whether or not
by or at the expense of Tenant, and any personal property in the Premises on the
Commencement Date, unless installed and paid for by Tenant. All Alterations,
whether temporary or permanent in character, including, but not limited to, HVAC
equipment (excluding supplemental package units installed by Tenant), wall
coverings, carpeting and other floor coverings, ceiling tiles, blinds and other
window treatments, lighting fixtures and bulbs, built-in or attached shelving,
built-in furniture, millwork, counter tops, cabinetry, all doors (both exterior
and interior), bathroom fixtures, sinks, kitchen area improvements, and wall
mirrors, made by Landlord or Tenant in or upon the Premises shall be deemed
Landlord's Property. All of Landlord's Property shall be and remain a part of
the Premises at the expiration or sooner termination of the Lease Term (without
compensation to Tenant) and shall not be removed or replaced by Tenant without
the prior written consent of Landlord.
C. The term "Tenant's Property" shall mean all moveable machinery
and equipment, including moveable communications equipment and moveable office
equipment, which are installed in the Premises by or for the account of Tenant
without expense to Landlord and which can be removed without damage to the
Premises or the Building Project, and all moveable furniture, furnishings, and
other articles of moveable personal property owned by Tenant and located in the
Premises. Tenant's Property may be removed by Tenant at any time during the
Lease Term; provided, however, Tenant shall repair or pay the cost of repairing
any damage to the Premises or to the Building Project resulting from the initial
installation or removal, or both, of Tenant's Property. Any machinery,
equipment, furniture, furnishings, or other property for which Landlord shall
have granted any allowance or credit to Tenant shall not be deemed to have been
installed by or for the account of Tenant without expense to Landlord and shall
not be considered Tenant's Property, but shall be deemed Landlord's Property.
D. Upon the expiration or sooner termination of the Lease Term,
Tenant, at its expense, shall remove from the Premises all of Tenant's Property
(except those items which Landlord shall have expressly permitted to remain,
which items shall become the property of Landlord) and all Alterations which
Landlord designates by notice to Tenant given at any time up to six months prior
to the termination of this Lease. Tenant, at Tenant's sole cost and expense,
shall also repair any damage to the Premises and the Building Project caused by
the removal. Any items of Tenant's Property which shall remain in the Premises
after the expiration or sooner termination of the Lease Term, may, at the option
of Landlord, be deemed to have been abandoned, and in such case, those items may
be retained by Landlord as its property to be disposed of by Landlord, without
accountability to Tenant or any other party, in the manner Landlord shall
determine, at Tenant's expense.
32. RECORDATION: After the Date of this Lease, Tenant may record a
memorandum of this Lease in a form reasonably approved by Landlord provided
Tenant pays all recording costs and that, prior to recording the memorandum,
Tenant delivers a notice of termination of the memorandum (the "Termination")
executed by Tenant in recordable form terminating the memorandum to Landlord's
lawyers, as escrow agents, to be held
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in escrow until such time, if ever, as Tenant defaults under this Lease beyond
all applicable notice and cure periods, as provided for in this Lease, or the
Lease Term expires or terminates in accordance with the terms of this Lease, in
which case the escrow agent shall then release the Termination to Landlord
within 15 days after receipt by both Tenant and the escrow agent of a written
request by Landlord for the release of the Termination and outlining in detail
the nature of the applicable uncured default or outlining the applicable terms
in this Lease concerning the termination or expiration. However, escrow agent
shall not release the Termination if Tenant notifies escrow agent within the 15
day period that Tenant is disputing the default (or termination or expiration),
as stated in Landlord's request. The escrow agent is acting as a stakeholder
only as to the Termination. If there is any dispute as to whether the escrow
agent is obligated to release the Termination, the escrow agent shall not be
required to make any delivery, and may continue to hold the Termination until
receipt by escrow agent of an authorization in writing, signed by all parties
having any interest in the dispute, directing the disposition of the
Termination, or, in the absence of such authorization, the escrow agent may hold
the Termination until the final determination of the rights of the parties in an
appropriate proceeding. If such written authorization is not given, or
proceedings for the determination are not begun by either of the parties or
diligently continued thereafter, the escrow agent may, but is not required to,
bring an appropriate action or proceeding for leave to deposit the Termination
in the registry of a court having appropriate jurisdiction pending the
determination. The escrow agent shall be reimbursed for all costs and expenses
of the action or proceeding, including, without limitation, reasonable
attorneys' fees, by the party determined not to be entitled to the Termination.
Upon making delivery of the Termination in the manner provided in this Lease,
the escrow agent shall have no further liability under this Lease. In the event
of any dispute or litigation between Landlord and Tenant arising under this
section or in connection with this Lease, the escrow agent may represent
Landlord in the dispute. The memorandum shall not disclose the Rent payable
under this Lease.
33. LEASE NOT BINDING UNLESS EXECUTED: Submission by Landlord of this
Lease for execution by Tenant shall not constitute an offer and shall confer no
rights nor impose any obligations on either party unless and until both Landlord
and Tenant shall have executed and delivered this Lease.
34. ATTORNEYS' FEES: In any suit, action, or other proceeding,
including arbitration or bankruptcy, arising out of or in any manner relating to
this Lease, the Premises, or the Building Project (including (i) the enforcement
or interpretation of either party's rights or obligations under this Lease
whether in contract, tort, or both, or (ii) the declaration of any rights or
obligations under this Lease) the prevailing party, as determined by the court
or arbitrator, shall be entitled to recover from the losing party reasonable
attorneys' fees and disbursements (including disbursements that would not
otherwise be taxable as costs in the proceeding). In addition, if Landlord
becomes a party to any suit or proceeding affecting the Premises or involving
this Lease or Tenant's interest under this Lease, other than a suit between
Landlord and Tenant, or if Landlord engages counsel to collect any of the
amounts owed under this Lease, or to enforce performance of any of the
agreements, conditions, covenants, provisions, or stipulations of this Lease,
without commencing litigation, then the costs, expenses, and reasonable
attorneys' fees and disbursements incurred by Landlord shall be paid to Landlord
by Tenant. All references in this Lease to attorneys' fees shall be deemed to
include all legal assistants', paralegals', and law clerks' fees and shall
include all fees incurred through all post-judgment and appellate levels and in
connection with collection, arbitration, and bankruptcy proceedings.
35. NOTICES:
A. General Requirements. Except as otherwise expressly provided,
any notice, demand, request, election, or other communication (a
"Communication") required or permitted to be given or made to or by any party to
this Lease or otherwise given or made under this Lease, shall be in writing. A
Communication shall be deemed to have been delivered and received on the earlier
of the day actually received (by whatever means sent, including means not
authorized by this article) if received before 5:00 PM on a Business Day (or, if
not received before 5:00 PM on a Business Day, on the first Business Day after
the day of receipt) or, regardless of whether or not received after the
following dates, (i) on the date of transmittal by telecopier to the addressee's
Notice Address, with the confirmation sheet obtained by the sender being deemed
conclusive proof of the transmission of the telecopy; (ii) on the date of
delivery or refusal of delivery, if by hand delivery; (iii) on the first
Business Day after having been delivered to a nationally recognized overnight
air courier service (such as Federal Express) for "next business day" delivery;
or (iv) on the third Business Day after having been deposited with the United
States Postal Service, Registered or Certified Mail, Return Receipt Requested;
in each case addressed to the respective party at the party's Notice Address,
which Notice Address may be changed by notice delivered to the other party in
accordance with the terms of this article; provided that if Tenant has vacated
the Premises or is in default of this Lease, Communications may be delivered by
any manner permitted by law for service of process. Any Communication
transmitted by telecopier after 5:00 p.m. shall be deemed to have been
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made on the next Business Day following the date on which it was transmitted.
Notwithstanding the foregoing, any Communication which is in fact received,
regardless of whether it is sent in compliance with the requirements of this
article, shall be effective as of the date received. If any Communication is
returned to the addressor because it is refused, unclaimed, or the addressee has
moved, or is otherwise not delivered or deliverable through no fault of the
addressor, effective notice shall still be deemed to have been given. If there
is more than one party constituting Tenant, any Communication may be given by or
to any one of them, and shall have the same force and effect as if given by or
to all of them.
B. Notices by and to Lawyers. Any lawyer representing Landlord or
Tenant may give any Communication under this Lease on behalf of the lawyer's
client. Any Communication so given by a lawyer shall be deemed to have been
given by the lawyer's client. Notwithstanding anything to the contrary in this
Lease, any obligation to send a copy of a Communication to a party's lawyer
shall only apply to Communications which are notices of a default under this
Lease. Failure to give a copy of any Communication to the lawyer for a party
will not affect the validity of the Communication provided that the
Communication has been given to the party represented by that lawyer.
C. Section 83.20, Florida Statutes. Any notices required under
Section 83.20, Florida Statutes, shall be deemed to have been fully given, made,
sent, and received if sent in compliance with this article.
D. Change of Notice Address. Either party may change its Notice
Address by notice to the other party. However, this will not permit a party to
add additional persons to receive Communications or copies of Communications so
that more than a maximum of two persons are entitled to receive any
Communication or copy of any Communication.
36. RADON GAS: The following notification is provided under Section
404.056(6), Florida Statutes: "Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit."
37. SUCCESSORS AND ASSIGNS; PERSONS BOUND: This Lease shall bind and
inure to the benefit of the heirs, personal representatives, administrators,
and, except as otherwise provided, the successors or assigns of the parties to
this Lease. If there is more than one party constituting Tenant, each party
shall be jointly and severally liable with the other parties constituting Tenant
for the performance of all of the obligations of Tenant under this Lease. If
Tenant is a partnership, each and every present and future general partner of
Tenant shall be and remain at all times jointly and severally liable under this
Lease and neither the death, resignation, or withdrawal of any partner, nor the
subsequent modification or waiver of any of the terms and provisions of this
Lease, shall operate to release any partner under this Lease.
38. JURY WAIVER; COUNTERCLAIMS: LANDLORD AND TENANT WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THIS LEASE, (ii) THE
RELATIONSHIP OF LANDLORD AND TENANT, (iii) TENANT'S USE OR OCCUPANCY OF THE
PREMISES, OR (iv) THE RIGHT TO ANY STATUTORY RELIEF OR REMEDY. TENANT FURTHER
WAIVES THE RIGHT TO INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY NATURE IN ANY
ACTION OR PROCEEDING COMMENCED BY LANDLORD TO OBTAIN POSSESSION OF THE PREMISES
DUE TO NON-PAYMENT OF RENT. IF TENANT VIOLATES THIS PROVISION BY FILING A
PERMISSIVE COUNTERCLAIM, WITHOUT PREJUDICE TO LANDLORD'S RIGHT TO HAVE THE
COUNTERCLAIM DISMISSED, THE PARTIES STIPULATE THAT SHOULD THE COURT PERMIT
TENANT TO MAINTAIN THE COUNTERCLAIM, THE COUNTERCLAIM SHALL BE SEVERED AND TRIED
SEPARATELY FROM THE ACTION FOR POSSESSION UNDER RULE 1.270(b) OF THE FLORIDA
RULES OF CIVIL PROCEDURE OR OTHER APPLICABLE LAW. THE ACTION FOR POSSESSION
SHALL THEN PROCEED UNDER THE SUMMARY PROCEDURES SET FORTH IN SECTION 51.011,
FLORIDA STATUTES. THE WAIVERS SET FORTH IN THIS SECTION ARE MADE KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY BY TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE
SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS
THESE WAIVERS WITH COUNSEL. THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD
IN AGREEING TO ENTER INTO THIS LEASE.
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39. INTENTIONALLY OMITTED.
40. IMPOSSIBILITY OF PERFORMANCE: For purposes of this Lease, the term
"Unavoidable Delay" shall mean any delays due to strikes, lockouts, civil
commotion, warlike operations, invasion, rebellion, hostilities, military or
usurped power, sabotage, government regulations or controls, inability to obtain
any material, utility, or service because of governmental restrictions,
hurricanes, floods, or other natural disasters, acts of God, or any other cause
beyond the direct control of the party delayed (not including the insolvency or
financial condition of that party or the increased cost of obtaining labor and
materials). Notwithstanding anything in this Lease to the contrary, if Landlord
or Tenant shall be delayed in the performance of any act required under this
Lease by reason of any Unavoidable Delay, then provided notice of the
Unavoidable Delay is given to the other party within ten days after its
occurrence, performance of the act shall be excused for the period of the delay
and the period for the performance of the act shall be extended for a reasonable
period, in no event to exceed a period equivalent to the period of the delay.
41. GUARANTY. Payment of all rents and charges and the performance of
all covenants of Tenant contained in this Lease are guaranteed by the Guarantor
under the Guaranty that is attached as an exhibit to this Lease. The Guaranty is
a part of this Lease and Tenant agrees to be bound by the terms of the Guaranty
that relate to this Lease.
42. TENANT'S REPRESENTATIONS: Tenant represents and warrants as
follows:
A. Tenant is duly organized, validly existing, and in good
standing under the laws of the State in which it was formed and is duly
qualified to transact business in the State in which the Premises are located.
B. Tenant has full power to execute, deliver, and perform its
obligations under this Lease.
C. The execution and delivery of this Lease, and the performance
by Tenant of its obligations under this Lease, have been duly authorized by all
necessary action of Tenant, and do not contravene or conflict with any
provisions of Tenant's Articles of Incorporation or Bylaws or any other
agreement binding on Tenant.
D. The individual executing this Lease on behalf of Tenant has
full authority to do so.
E. The scroll seal set forth immediately below the signature of
the individual executing this Lease on Tenant's behalf has been adopted by the
corporation as its seal for the purpose of execution of this Lease and the
scroll seal has been affixed to this Lease as the seal of the corporation and
not as the personal or private seal of the officer executing this Lease on
behalf of the corporation.
F. Tenant's financial statements and the information describing
Tenants' business and background previously furnished to Landlord were at the
time given true and correct in all material respects and there have been no
adverse material changes to the information subsequent to the date given.
43. LANDLORD'S REPRESENTATION: Landlord represents and warrants as
follows:
A. Landlord is duly organized, validly existing, and in good
standing under the laws of the state in which it was formed and is duly
qualified to transact business in the State of Florida.
B. Landlord has full power to execute, deliver, and perform its
obligations under this Lease.
C. The execution and delivery of this Lease, and the performance
by Landlord of its obligations under this Lease, have been duly authorized by
all necessary action of Landlord, and do not contravene or conflict with any
provisions of Landlord's Articles of Organization or Operating Agreement, or any
other agreement binding on Landlord. D. The individual executing this Lease on
behalf of Landlord has full authority to do so.
44. INTENTIONALLY OMITTED.
45. PARKING: As long as Tenant is entitled to possession of the
Premises, Tenant shall be entitled to use all of the parking spaces in the
Parking Areas for automobile parking.
46. GENERAL PROVISIONS:
33
A. Construction of Language: Whenever in this Lease the context
allows, the terms "Lease," "Lease Term," and "term of this Lease," or terms of
similar import, shall be deemed to include all renewals, extensions, or
modifications of this Lease or the Lease Term. The word "including" when used in
this Lease shall be deemed to mean "including, but not limited to," or
"including without limitation." The headings of sections or subsections in this
Lease are for convenience only and shall not be relevant for purposes of
interpretation of this Lease. This Lease has been negotiated "at arm's length"
by Landlord and Tenant, each having the opportunity to be represented by legal
counsel of its choice and to negotiate the form and substance of this Lease.
Therefore, this Lease shall not be more strictly construed against either party
by reason of the fact that one party may have drafted this Lease.
B. Drafts: No inference shall be drawn from the modification or
deletion of versions of the provisions of this Lease contained in any drafts
exchanged between the parties before execution of the final version of this
Lease that would be inconsistent in any way with the construction or
interpretation that would be appropriate if the prior drafts had never existed.
C. Severability: If any provision of this Lease or the application
of a provision to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of the invalid or
unenforceable provision to persons or circumstances other than those as to which
it is invalid or unenforceable shall not be affected, and the remainder of this
Lease shall otherwise remain in full force and effect. Moreover, the invalid or
unenforceable provision shall be reformed, if possible, so as to accomplish most
closely the intent of the parties consistent with applicable law.
D. Integration: This Lease shall constitute the entire agreement
of the parties concerning the matters covered by this Lease. All prior
understandings and agreements had between the parties concerning those matters,
including all lease proposals, letters of intent, and similar documents, are
merged into this Lease, which alone fully and completely expresses their
understanding.
E. Amendment: This Lease may not be amended, modified, altered, or
changed in any respect, except by further agreement in writing duly executed on
behalf of Landlord and Tenant.
F. Exhibits and Riders: All exhibits and riders attached to this
Lease shall, by this reference, be incorporated into this Lease.
G. Relationship of Parties: A fiduciary relationship shall not
exist between the parties and neither party shall owe fiduciary duties to the
other.
H. Governing Law: This Lease has been negotiated and executed in
Florida. It shall be construed and enforced in accordance with the laws of the
State of Florida, without application of conflicts of laws principles.
I. Fax Transmissions: This Lease may be transmitted between the
parties by facsimile machine. Landlord and Tenant intend that faxed signatures
constitute original signatures and that a faxed Lease containing the signatures
(original or faxed) of Landlord and Tenant is binding on Landlord and Tenant.
J. Counterparts: This Lease may be executed by the parties signing
different counterparts of this Lease, which counterparts together shall
constitute the agreement of the parties.
47. INTENTIONALLY OMITTED.
IN WITNESS WHEREOF, this Lease has been executed on behalf of Landlord
and Tenant as of the Date of this Lease.
WITNESSES: LANDLORD:
_______________________ FG 2200, LLC, a Florida limited liability company
_______________________ By:________________________________________
Print or type name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager
Date Executed:_____________________________
34
-----------------------
[CORPORATE SEAL]
-----------------------
Print or type name
TENANT:
▇▇▇▇▇▇▇▇.▇▇▇, INC.,
a Florida corporation
-----------------------
(Print or type name)
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
[CORPORATE SEAL]
(Print or type name) Date Executed:_________________________________
35
EXHIBIT "A"
LEGAL DESCRIPTION OF BUILDING PROJECT
The West 851.94 feet of Parcel "A", COLONNADE BUSINESS CENTER 1,
less and except the East 431.70 feet of the West 851.94 feet of
the South 162.00 feet of Parcel "A", Colonnade Business Center 1,
according to the Plat thereof recorded in Plat Book 139, at Page
49, of the Public Records of Broward, Florida.
LESS AND EXCEPT
Commencing at the Northwest corner of said Parcel "A"; thence
North 88(Degree) 21' 19" East, on the North line of said Parcel
"A", a distance of 420.24 feet; thence South 01(Degree)19' 31"
East, a distance of 107.30 feet, to the Point of Beginning; thence
continuing South 01(Degree) 18 '31" East, a distance of 248.97
feet; thence North 88(Degree) 21' 02" East, a distance of 431.71
feet; thence North 01(Degree) 18' 31" West, a distance of 356.23
feet, to a point on the North line of said Parcel "A", thence
South 88(Degree) 21' 19" West, on said North line, a distance of
240.38 feet, to a point of curve; thence Westerly through
Southerly on a curve to the left, with a radius of 25.00 feet, a
central angle of 94(Degree) 29' 37", an arc distance of 41.23
feet, to a point of reverse curve; thence Southerly through
Westerly on a curve to the right, with a radius of 75.00 feet, a
central angle of 94(Degree) 49' 47", an arc distance of 124.13
feet, to a point of tangency, thence South 88(Degree) 41' 29"
West, a distance of 91.82 feet, to the Point of Beginning.
36
EXHIBIT "B"
SKETCH OF PREMISES
37
EXHIBIT "C"
SCHEDULE OF BASE RENT
The Base Rent (excluding sales tax) during the initial Lease Term shall
be:
PERIOD MONTHLY RENT ANNUAL RENT
1/1/01-12/31/01 $54,166.67 $650,000.00
1/1/02-12/31/02 $54,166.67 $650,000.00
1/1/03-12/31/03 $54,166.67 $650,000.00
1/1/04-12/31/04 $54,166.67 $650,000.00
1/1/05-12/31/05 $54,166.67 $650,000.00
1/1/06-12/31/06 $60,416.67 $725,000.00
1/1/07-12/31/07 $62,250.00 $747,000.00
1/1/08-12/31/08 $64,125.00 $769,500.00
1/1/09-12/31/09 $66,041.67 $792,500.00
1/1/10-12/31/10 $68,041.67 $816,500.00
38
EXHIBIT "E"
RULES AND REGULATIONS
1. The sidewalks and public portions of the Building Project, such as
entrances, passages, courts, and parking areas, shall not be obstructed or
encumbered by Tenant or its employees, agents, invitees, or guests nor shall
they be used for any purpose other than ingress and egress to and from the
Premises.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades, louvered openings, or screens
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, unless installed
by Landlord. No aerial or antenna shall be erected on the roof or exterior walls
of the Premises or on the Building Project without the prior written consent of
Landlord in each instance.
3. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown in them. All
damages resulting from any misuse of fixtures shall be borne by the Tenant who,
or whose employees, agents, invitees, or guests, shall have caused the same.
4. Tenant shall not in any way deface any part of the Premises or the
Building Project. Tenant shall not lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the floor of the
Building, and, if linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall be first affixed to the
floor, by a paste or other material, soluble in water, the use of cement or
other similar adhesive material being expressly prohibited.
5. No animals of any kind (except dogs assisting disabled persons) shall
be brought on the Premises or Building Project.
6. No cooking shall be done or permitted by Tenant on the Premises except
in conformity to law and then only in the utility kitchen (if a utility kitchen
was provided for in approved plans for the Premises or if Landlord has consented
in writing to a kitchen), which is to be primarily used by Tenant's employees
for heating beverages and light snacks. No heating equipment may be placed
inside the Premises without the prior written consent of Landlord in each
instance. Tenant shall not cause or permit any unusual or objectionable odors to
be produced on or permeate from the Premises.
7. Neither Tenant nor any of Tenant's employees, agents, invitees, or
guests shall at any time bring or keep on the Premises any inflammable,
combustible, or explosive substance or any chemical substance, other than
reasonable amounts of cleaning fluids and solvents required in the normal
operation of Tenant's business, all of which shall only be used in strict
compliance with all applicable Environmental Laws.
8. Landlord shall have a valid pass key to all spaces within the Premises
at all times during the Lease Term. No additional locks or bolts of any kind
shall be placed on any of the doors or windows by Tenant, nor shall any changes
be made in existing locks or the mechanism of the locks, without the prior
written consent of the Landlord and unless and until a duplicate key is
delivered to Landlord. Tenant must, on the termination of its tenancy, restore
to the Landlord all keys to stores, offices, and toilet rooms, either furnished
to or otherwise procured by Tenant, and in the event of the loss of any keys so
furnished, Tenant shall pay Landlord for the replacement cost of them.
9. Tenant shall assume all liability and risk concerning deliveries,
removals, or the carrying in or out of any safes, freights, furniture, or bulky
matter of any kind.
10. Tenant shall not, unless otherwise approved by Landlord, occupy or
permit any portion of the Premises demised to it to be occupied as, by, or for a
public stenographer or typist, ▇▇▇▇▇▇ shop, bootblacking, beauty shop or
manicuring, beauty parlor, telephone or telegraph agency, telephone or
secretarial service, messenger service, travel or tourist agency, a personnel or
employment agency, public restaurant or bar, commercial document reproduction or
offset printing service, ATM or similar machines, retail, wholesale, or discount
shop for sale of merchandise, retail service shop, labor union, school, an
entertainment, sports, or recreation facility, an office or facility of a
foreign consulate or any other form of governmental or quasi-governmental
bureau, department, or agency, including an autonomous governmental corporation,
a place of public assembly (including a meeting center, theater, or public
forum), a facility for the provision of social
39
welfare or clinical health services, a telemarketing facility, a customer
service call center, a firm the principal business of which is real estate
brokerage, a company engaged in the business of renting office or desk space, a
public finance (personal loan) business, or manufacturing, unless Tenant's Lease
expressly grants permission to do so.
11. The Premises shall not be used for lodging or sleeping, or for any
immoral, disreputable, or illegal purposes, or for any purpose that may be
dangerous to life, limb, or property.
12. If, in Landlord's reasonable opinion, the replacement of ceiling
tiles becomes necessary after they have been removed on behalf of Tenant by
telephone company installers or others (in both the Premises and the public
corridors), the cost of replacements shall be charged to Tenant on a per tile
basis.
13. All paneling or other wood products not considered furniture that
Tenant shall install in the Premises shall be of fire retardant materials.
Before the installation of these materials, Tenant shall submit to Landlord a
satisfactory (in the reasonable opinion of Landlord) certification of the
materials' fire retardant characteristics.
14. Tenant shall be responsible for the removal and proper disposition of
all trash crates, oversized trash, boxes, and items termed garbage from the
Premises. The corridors and parking and delivery areas are to be kept clear of
these items. Tenant shall provide convenient and adequate receptacles for the
collection of standard items of trash.
15. Landlord shall not be responsible for lost or stolen personal
property, equipment, or money occurring within the Premises or Building Project,
regardless of how or when the loss occurs.
16. If Tenant desires a signal, communications, alarm, or other utility
or service connection installed or changed, the work shall be done at the
expense of Tenant, with the approval and under the direction of Landlord.
17. Tenant shall give Landlord prompt notice of all accidents to or
defects in air conditioning equipment, plumbing, electric facilities, or any
part or appurtenance of the Premises.
18. Tenant shall not install, operate, or maintain in the Premises or in
any other area of the Building Project, any electrical equipment that does not
bear the U/L (Underwriters Laboratories) seal of approval, or that would
overload the electrical system or any part of the system beyond its capacity for
proper, efficient, and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building Project. Tenant shall not furnish any
cooling or heating to the Premises, including the use of any electronic or gas
heating devices, without Landlord's prior written consent.
19. Tenant will take all steps necessary to prevent: inadequate
ventilation, emission of chemical contaminants from indoor or outdoor sources,
or both, or emission of biological contaminants. Tenant will not allow any
unsafe levels of chemical or biological contaminants (including volatile organic
compounds) in the Premises, and will take all steps necessary to prevent the
release of contaminants from adhesives (for example, upholstery, wallpaper,
carpet, machinery, supplies, and cleaning agents).
20. Tenant shall not obtain for use in the Premises, floor polishing,
lighting maintenance, cleaning, or other similar services from any persons not
authorized by Landlord in writing to furnish the services.
21. Landlord may, on request by any tenant, waive compliance by the
tenant with any of the Rules and Regulations provided that (i) no waiver shall
be effective unless in writing and signed by Landlord or Landlord's authorized
agent, and (ii) a waiver shall not relieve the tenant from the obligation to
comply with the rule or regulation in the future unless expressly consented to
by Landlord.
22. Whenever these Rules and Regulations directly conflict with any of
the terms, provisions, rights, or obligations of Tenant under this Lease, this
Lease shall govern.
40
EXHIBIT "F"
TENANT IMPROVEMENTS
Except as set forth in this Lease, Landlord has made no representation or
promise as to the condition of the Premises. Landlord shall not perform any
alterations, additions, or improvements in order to make the Premises suitable
and ready for occupancy and use by Tenant. Tenant has inspected the Premises, is
fully familiar with the physical condition of the Premises, and shall, except as
set forth herein, accept the Premises "as is," "where is," without any warranty,
express or implied, or representation as to fitness or suitability. Without
limiting the generality of the foregoing, Tenant shall be responsible for all
costs of bringing the Premises into compliance with current Governmental
Requirements, which compliance is required as a result of the Tenant
Improvements.
Tenant shall perform all work necessary or desirable for Tenant's
occupancy of the Premises (the "Tenant Improvements"). Tenant shall furnish to
Landlord, for Landlord's written approval, a permit set (final construction
drawings) of plans and specifications for the Tenant Improvements (the "Plans").
The Plans shall include the following: fully dimensioned architectural plan;
electric/telephone outlet diagram; reflective ceiling plan with light switches;
mechanical plan; furniture plan; electric power circuitry diagram; plumbing
plans; all color and finish selections; all special equipment and fixture
specifications; and fire sprinkler design drawings.
The Plans will be prepared by a licensed architect and the electrical and
mechanical plans will be prepared by a licensed professional engineer. The Plans
shall be produced on CAD. The architect and engineer will be subject to
Landlord's approval, which shall not be unreasonably withheld. The Plans shall
comply with all applicable laws, ordinances, directives, rules, regulations, and
other requirements imposed by any and all governmental authorities having or
asserting jurisdiction over the Premises. Landlord shall review the Plans and
either approve or disapprove them within ten days after receipt of them. Should
Landlord disapprove them, Tenant shall make any necessary modifications and
resubmit the Plans to Landlord in final form within ten days following receipt
of Landlord's disapproval of them. The approval by Landlord of the Plans and any
approval by Landlord of any similar plans and specifications for any other
Alterations or the supervision by Landlord of any work performed on behalf of
Tenant shall not: (i) imply Landlord's approval of the plans and specifications
as to quality of design or fitness of any material or device used; (ii) imply
that the plans and specifications are in compliance with any codes or other
requirements of governmental authority (it being agreed that compliance with
these requirements is solely Tenant's responsibility); (iii) impose any
liability on Landlord to Tenant or any third party; or (iv) serve as a waiver or
forfeiture of any right of Landlord. The Tenant Improvements shall be
constructed by a general contractor selected and paid by Tenant and approved by
Landlord. Tenant shall allow Pass International, Inc., an affiliate of Landlord,
to make a bid to provide services as the general contractor for the Tenant
Improvements. The following general contractors are pre-approved by Landlord:
Pass International, Inc., _____________, and _________________ (the
"Pre-Approved Contractors"). If the general contractor is not one of the
Pre-Approved Contractors, it shall obtain a payment and performance bond in form
complying with Section 713.23, Florida Statutes. A copy of the bond, the
contractor's license(s) to do business in the jurisdiction(s) in which the
Premises are located, the fully executed contract between Tenant and the general
contractor, the general contractor's work schedule, and all building or other
governmental permits required for the Tenant Improvements shall be delivered to
Landlord before commencement of the Tenant Improvements. Tenant shall cooperate
as reasonably necessary so that its general contractor will cause the Tenant
Improvements to be completed promptly and with due diligence. The Tenant
Improvements shall be performed in accordance with the Plans and shall be done
in a good and workmanlike manner using new materials. All work shall be done in
compliance with all other applicable provisions of this Lease and with all
applicable laws, ordinances, directives, rules, regulations, and other
requirements of any governmental authorities having or asserting jurisdiction
over the Premises. Before the commencement of any work by Tenant, Tenant shall
furnish to Landlord certificates evidencing the existence of builder's risk,
comprehensive general liability, and workers' compensation insurance complying
with the requirements set forth in the Insurance article of this Lease. Any
damage to any part of the Building Project that occurs as a result of the Tenant
Improvements shall be promptly repaired by Tenant.
Tenant shall also ensure compliance with the following requirements
concerning construction:
1. Tenant shall be responsible for cleaning up any refuse or other
materials left behind by construction personnel at the end of each work day.
2. Tenant shall deliver to Landlord all forms of approval provided by the
appropriate local governmental authorities to certify that the Tenant
Improvements have been completed and the Premises are
41
ready for occupancy, including a final, unconditional certificate of occupancy.
3. At all times during construction, Tenant shall allow Landlord access
to the Premises for inspection purposes. On completion of the Tenant
Improvements, Tenant's general contractor shall review the Premises with
Landlord and Tenant and secure Landlord's and Tenant's acceptance of the Tenant
Improvements.
If and for as long as Tenant is not in default under this Lease beyond
any applicable grace period, and as long as Tenant spends not less than
$500,000.00 on the costs of construction of the Tenant Improvements, Tenant
shall be entitled to a fixed price tenant improvement allowance in the amount of
$400,000.00 (i.e., if Tenant spends $500,000.00, Tenant will receive
$400,000.00, resulting in a net outlay of $100,000 by Tenant). If Tenant spends
less than $500,000.00 on the costs of construction of the Tenant Improvements,
the tenant improvement allowance shall be reduced by the difference between
$500,000.00 and the actual cost of construction of the Tenant Improvements. The
tenant improvement allowance shall be paid to Tenant in reimbursement for the
total out of pocket costs paid by Tenant for the design professional fees and
the "hard costs" of construction of the Tenant Improvements including, but not
limited to, demolition, permit fees, payment and performance bond premiums,
architectural space plans and permit drawings and a $15,000.00 construction
supervision and overhead fee payable by Tenant to Landlord. The allowance may
not be applied to any other costs such as, but not limited to, the costs of
Tenant's furniture, trade fixtures, and equipment, cabling and wiring costs, and
moving expenses. If the total amount paid by Tenant for the Tenant Improvements
is less than the tenant improvement allowance, Tenant shall not receive cash or
any credit against rent for the unused portion of the allowance. The tenant
improvement allowance shall be paid within 21 days after all of the following
events have occurred: (i) the Tenant Improvements have been substantially
completed; (ii) Tenant has delivered to Landlord final releases of lien from
Tenant's general contractor and all lienors giving notice as defined in the
Florida Construction Lien Law and a final contractor's affidavit from the
general contractor in accordance with the Florida Construction Lien Law, and all
other receipts and supporting information concerning payment for the work that
Landlord may reasonably request; (iii) Tenant has moved into the Premises and
opened for business in the Premises; and (iv) Tenant has paid the rent due for
the first month of the Lease Term. Tenant shall provide Landlord with true
copies of bills paid by Tenant for the Tenant Improvements, and Landlord shall
reimburse Tenant for the amount set forth in the bills up to the amount of the
allowance. At Landlord's option, the tenant improvement allowance or any portion
of it may be paid by Landlord directly to the general contractor performing the
Tenant Improvements or to any lienor giving notice as defined in the Florida
Construction Lien Law. If Tenant is in default under this Lease beyond any
applicable grace period, Landlord may, in addition to all its other available
rights and remedies, withhold payment of any unpaid portion of the tenant
improvement allowance, even if Tenant has already paid for all or a portion of
the cost of the Tenant Improvements. If the Tenant Improvements are not all
constructed all at one time but rather are constructed in phases, no portion of
the tenant improvement allowance shall be payable until Tenant has spent not
less than $500,000.00 on the cost of construction of the Tenant Improvements. In
addition, Landlord shall not be obligated to pay any portion of the tenant
improvement allowance as to any Tenant Improvements which are not substantially
completed by not later than December 31, 2001. This deadline shall be extended
by the cumulative periods of any delays to the Tenant Improvement work caused by
Landlord or any of the events described in the Impossibility of Performance
article of the Lease. The provisions of Section 9K of the Lease dealing with
Default Interest shall apply to Landlord's obligation to pay the tenant
improvement allowance as provided in this Exhibit. In addition, should Landlord
fail to pay the tenant improvement allowance within 30 days from notice from
Tenant that the allowance was not paid when due, Tenant may offset the unpaid
allowance plus interest at the Default Rate against rent thereafter coming due
under this Lease until the allowance has been exhausted. However, if Tenant
gives Landlord notice that the allowance was not paid when due and Landlord
responds by disputing that the allowance is due, Tenant shall remain obligated
to pay rent as it comes due and the provisions of the Landlord Default section
of the Lease shall apply, including the arbitration and offset provisions of
that section.
The tenant improvement allowance is being paid by Landlord as an
inducement to Tenant to enter into this Lease and as consideration for the
execution of this Lease by Tenant and the performance by Tenant under this Lease
for the full Lease Term.
The tenant improvement allowance provisions of this exhibit shall not
apply to any additional space added to the original Premises at any time after
the Date of this Lease, whether by any options under this Lease or otherwise, or
to any portion of the original Premises or any additions to the Premises in the
event of a renewal or extension of the initial Lease Term, whether under any
options under this Lease or otherwise, unless expressly so provided in this
Lease or an amendment to this Lease.
42
EXHIBIT "G"
LETTER OF CREDIT
$__________________
Letter of Credit #____________
To: FG 2200, LLC
▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By Order of: ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
__________________
__________________
Gentlemen:
We hereby establish in favor of you this irrevocable Letter of Credit
for the account of ______________ (the "Company") for an amount in U.S. Dollars
equal to $______________ (the "Commitment").
Drawings under this Letter of Credit shall be made by delivering to our
Letter of Credit department at its address specified in Annex A hereto, (i) a
draft in the form of Annex A, purportedly signed by a member or manager of your
limited liability company (or other similar officer) or by the president or any
vice president (or other similar officer) of the Transferee hereinafter referred
to, and specifying the amount of such drawing; and (ii) a sworn affidavit (in
the form of Annex B) proportedly signed by a member or manager of your limited
liability company (or other similar officer) or by the president or any
vice-president (or other similar officer) of the Transferee, under oath that all
requirements necessary to draw upon this Letter of Credit as set forth in your
Lease with ▇▇▇▇▇▇▇▇.▇▇▇, INC., dated ___________________, 2000, have been met.
Drafts so presented shall be payable at our counter in ___________,
Florida in immediately available _________, Florida funds no later than the next
business day following presentment in conformity with the provisions of this
Letter of Credit. We hereby waive any provisions of (the Uniform Commercial Code
as enacted in Florida), permitting us to defer honoring a draft drawn under this
Letter of Credit until the close of the seventh business day following receipt
of the draft and agree, as aforesaid, subject to compliance with the other terms
of this Letter of Credit, to honor each such draft no later than the next
business day following presentation to us.
If the undersigned does not honor a draft or demand for payment under
this Letter of Credit, the undersigned will, prior to the end of the business
day following the day on which such draft or demand is presented, deliver to you
(or other presenter) a written statement, specifying with particularity, the
grounds for such dishonor or non-payment; all grounds other than those expressly
set forth in such written statement shall be deemed waived to the extent
provided by law.
The undersigned warrants and represents to you that if the amount of
this Letter of Credit is treated as a loan by the undersigned to the aforesaid
customer, and such loan is aggregated with all other outstanding loans to such
customer, the undersigned has not exceeded its legal loan limit to such
customer, and the undersigned has complied with all other applicable laws, rules
and regulations relating to the issuance of this Letter of Credit. The
undersigned will indemnify and save and hold you harmless from all damages
resulting frm breach of this warranty and representation.
This Letter of Credit sets forth all of the terms and conditions of our
obligation to you and shall not be amended or modified except by written
instrument duly executed by you and us.
We engage with you that all drafts under and in compliance with the
terms of this Letter of Credit will be duly honored by us.
This Letter of Credit may be transferred, one or more times, in its
entirety by you or any transferee of this Letter of Credit (a "Transferee") and
any Transferee shall succeed to all of the rights hereunder of such Transferee's
transferor; provided, however, that no transfer shall be effective unless (A)
the transferor shall first have submitted to us (x) an instruction in the form
of the specimen attached hereto as Annex C and (y) a
43
verification by the transferor's bank of the correctness of the signature and
title of the person signing the instruction and (B) notice of such transfer has
been endorsed hereon by us. Upon submission to us of the items referred to in
clause (A) above, we will endorse a notice of transfer on this Letter of Credit.
The submission to us of the items referred to in clause (A) above shall be
conclusive as to the identity of any Transferee of this Letter of Credit. The
last Transferee hereof, from time to time, shall be the Transferee hereof for
purposes of the second paragraph of this Letter of Credit. Transfer charges will
be for the account of the opener - the Company.
We further consent to the assignment by you (or any Transferee) of the
proceeds of this Letter of Credit and agree to recognize any such assignment
provided that (1) you (or such Transferee) give written instruction to us in the
form of Annex D with verification by the assignor's bank of the correctness of
the signature and title of the person signing the instruction and (2) the
assignee possesses this Letter of Credit and presents same as a condition to
honor.
This Letter of Credit shall expire ___________________, unless extended
as provided herein.
It is a condition of this credit that it will be automatically extended
without amendment for an additional period of 12 months from the present and
each future expiration date, unless, not less than 30 days prior to the
then-relevant expiration date, we notify you by certified United States mail,
return receipt requested, at the address set forth above (or such other address
as to which you, or any Transferee, shall give us written notice by certified
United States mail, return receipt requested, and with a copy by certified
United States mail, return receipt requested, to your attorney, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esquire, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ [or such other attorney or other address as to which you, or
any Transferee, shall give us written notice by certified United States mail,
return receipt requested]) that we elect not to extend this credit for any
additional period. Upon your receipt of such a notification, you may draw your
sight draft on us prior to the then-relevant expiration date for the unused
balance of this credit.
Except as far as otherwise expressly stated, this Letter of Credit
shall be governed by laws of the State of Florida, including without limitation,
the Uniform Commercial Code as enacted in the State of Florida, as amended.
_________________________________Bank
By:______________________________
Name:____________________________
Title:_____________________________
44
ANNEX A TO LETTER OF CREDIT
City and Date of Draft _________________________________________________________
To the Order of ________________________________________________________________
(Name of Beneficiary or Transferee, as applicable)
Pay _____________________________ AND NO/100 DOLLARS at Sight.
For value received under Letter of Credit Number ___________________,
To: (Name and address of issuing bank)
(must be street address, not post office box)
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
___________________________
By:________________________
Name:______________________
Title:_____________________
45
ANNEX B TO LETTER OF CREDIT
STATE OF _____________)
COUNTY OF ___________)
Affidavit
I, _________________, being duly sworn according to law hereby depose
and say that:
1. I am a [Manager or Member] of FG 2200, LLC, a Florida limited
liability company; and
2. All requirements necessary to draw upon the attached
_________________________ [insert Bank] Letter of Credit No. ___________________
as set forth in that certain Lease dated _____________, 2000, between FG 2200,
LLC, a Florida limited liability company, as Landlord, and ▇▇▇▇▇▇▇▇.▇▇▇, INC., a
Florida corporation, as Tenant, have been met and the amount of this drawing is
in accordance with the Lease. Reference to the Lease is for identification
purposes only and such reference shall not be construed in any manner to permit
_________________________ [name of bank] to inquire into its terms and
conditions.
Signed by:__________________________________
(indicate name and title)
Sworn to, subscribed, and acknowledged before me this ___ day of __________,
200__, by _____________________________, who is personally known to me or who
has produced _________________________________________________ as
identification.
OFFICIAL NOTARIAL SEAL:
___________________________
___________________________
(Type, print, or stamp name)
Notary Public
Commission No. _____________
My Commission Expires:
46
ANNEX C TO LETTER OF CREDIT
________________________
________________________
________________________
________________________
Re: Your Irrevocable Letter of Credit Number _________________________
dated ________________ in original amount of $____________________
Gentlemen:
We hereby transfer to:
______________________________
______________________________
______________________________
(name and address of transferee)
all of the rights of the beneficiary of the letter of credit.
Yours very truly,
(Name of original beneficiary or other transferor)
By:__________________________________________
Signature Guaranteed: Acknowledged by:
_________________________ ___________________________________________
By:______________________ ___________________________________________
Authorized Signature
47
ANNEX D TO LETTER OF CREDIT
________________________
________________________
________________________
________________________
Re: Your Irrevocable Letter of Credit Number __________________ dated
__________________ in original amount of $________________________
Gentlemen:
We hereby transfer to:
______________________________
______________________________
______________________________
(name and address of transferee)
all of the proceeds of the letter of credit.
Yours very truly,
(Name of original beneficiary or other transferor)
By:__________________________________________
Signature Guaranteed: Acknowledged by:
_________________________ ___________________________________________
By:______________________ ___________________________________________
Authorized Signature Authorized Signature
48
EXHIBIT "H"
WAIVER OF LANDLORD'S LIEN AGREEMENT
This Landlord's Lien Agreement (the "Agreement") is entered into by FG
2200, LLC ("Landlord"), whose notification address is ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇.▇▇▇, INC.("Tenant"), whose
notification address is ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
and _________________________________________________________ ("Lender"), whose
notification address is
_______________________________________________________________________________.
1. Landlord owns the following Building: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇..
2. Tenant is leasing the Building from Landlord.
3. Tenant has granted Lender a security interest in the Collateral
consisting of the property listed on Exhibit "A" to this Agreement.
4. Landlord waives and releases all liens, security interests, and
other rights of Landlord of any type or nature, whether statutory or
contractual, that Landlord may now have or ever acquire in the Collateral.
5. Tenant agrees and warrants that none of the Collateral shall be
attached or affixed to the Building or Premises in such a manner that it cannot
be removed without damage to (a) floors, ceilings, walls, windows, or doors of
the Building or Premises, (b) the mechanical, electrical, plumbing, or other
systems of the Building, or (c) the proper functioning of the Building systems.
6. Lender shall have the right to remove the Collateral from the
Premises and sell or dispose of the Collateral under any security, loan, or
other agreement between Lender and Tenant as to the Collateral. As a condition
to the exercise of this right, Lender shall first notify Landlord's Building
manager of its intention to remove the Collateral, and shall comply with all
reasonable scheduling and removal procedures established by the Building
manager. Lender agrees, at its sole cost and expense, to repair all damage
(including replacement items as necessary) to the Building, the Premises, or to
property of Landlord or others located in the Building resulting from the
removal of the Collateral from the Premises. All repairs shall be accomplished
subject to such conditions as Landlord may reasonably require. If Lender fails
to complete the repairs within 30 days after removal of the Collateral, Landlord
may do so; and all costs incurred by Landlord in doing so, shall be due and
payable by Lender to Landlord on written demand. Any sum not paid by Lender
within 30 days of written demand from Landlord shall bear interest at the
Lender's prime general reference rate of interest until paid.
7. If Landlord retakes possession of the Premises following a default
by Tenant or on expiration or termination of the Lease, Landlord may notify
Lender in writing of such circumstance, and if the Collateral has not been
removed from the Premises within 30 days after the date of the written notice,
Lender shall be deemed to have abandoned all security interests and other rights
in the Collateral, and Landlord shall be free to hold, dispose of, or otherwise
deal with the Collateral however Landlord wishes. The foregoing 30 day period
shall be tolled during any period that Lender is unable to enforce its security
interest and other rights in the Collateral by virtue of any stay under the
United States Bankruptcy Code or other injunction of which Landlord has received
written notice from Lender prior to the expiration of the 30 day period.
8. Landlord shall never have any duty to Lender to insure, repair, or
otherwise care for the Collateral. Landlord shall have no duty to Lender to
prevent removal of the Collateral from the Premises by Tenant or others.
Landlord shall have no duty to notify Lender of any default or nonperformance by
Tenant, any modification or amendment of the Lease, or any other event or
circumstance relating to Tenant, the Collateral, or the Premises. Landlord shall
attempt in good faith to notify any purchaser of the Building from Landlord of
the existence of this Agreement.
9. Any party may change its notification address by sending written
notice to the other parties. Notice given in writing by certified United States
mail to a party's notification address will be effective beginning on the third
business day after being so mailed. Notice given in any other manner will be
effective when actually received.
10. This Agreement shall bind and benefit the respective successors and
assignees of Landlord,
49
Tenant, and Lender. This Agreement may be executed in multiple counterparts,
each of which shall have the force and effect of an original.
EXECUTED to be effective as of _______________________.
WITNESSES: LANDLORD:
FG 2200, LLC, a Florida limited liability company
_______________________
_______________________
Print or type name By:_______________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager
_______________________
[CORPORATE SEAL]
_______________________
Print or type name
Date Executed:____________________________________
TENANT:
▇▇▇▇▇▇▇▇.▇▇▇, INC.,
a Florida corporation
_______________________
(Print or type name)
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
[CORPORATE SEAL]
(Print or type name) Date Executed:____________________________________
LENDER:
_______________________ __________________________________________________
_______________________
(Print or type name) By:_______________________________________________
Name:_____________________________________________
_______________________ Title:____________________________________________
Date Executed:____________________________________
_______________________
(Print or type name)
50
EXHIBIT "A"
Description of Collateral
51
EXHIBIT "I"
INTENTIONALLY OMITTED
52
EXHIBIT "J"
GUARANTY
For value received and in consideration of and in order to induce FG
2200, LLC, a Florida limited liability company (the "Landlord") to enter into
that certain Lease dated _____ 2000, between Landlord and ▇▇▇▇▇▇▇▇.▇▇▇, INC, a
Florida corporation (the "Tenant"), for property located at ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Lease") and other good and valuable
considerations, the undersigned (the "Guarantor") , acting as principal and not
as surety merely, absolutely and unconditionally, for itself and its legal
representatives, successors, and assigns, guarantees to the Landlord and to its
legal representatives, successors, and assigns, the prompt payment by Tenant and
by its legal representatives, successors, and assigns of rent or any other sum
payable by Tenant under any provisions of the Lease, including amounts payable
by Tenant under Section 9F of the Lease.
Terms used in this Guaranty which are defined in the Lease shall have
the same definitions as those terms have in the Lease unless the context clearly
indicates a contrary intent.
Notice of all defaults is waived and consent is given to all extensions
of time that the Landlord may grant to Tenant in the performance of any of the
terms of the Lease or to the waiving in whole or in part of performance, or to
the releasing of Tenant in whole or in part from any performance, or to the
adjusting of any dispute concerning the Lease; and no defaults, extensions,
waivers, releases, or adjustments, with or without the knowledge of the
undersigned, shall affect or discharge the liability of the undersigned. In any
suit, action, or other proceeding, including arbitration or bankruptcy, arising
out of or in any manner relating to this Guaranty, the Lease, the Premises, or
the Building Project (including (i) the enforcement or interpretation of a
party's rights or obligations under this Guaranty whether in contract, tort, or
both, or (ii) the declaration of any rights or obligations under this Guaranty),
the prevailing party, as determined by the court or arbitrator, shall be
entitled to recover from the losing party reasonable attorneys' fees and
disbursements (including disbursements that would not otherwise be taxable as
costs in the proceeding).
This Guaranty shall not be impaired by, and the undersigned consents
to, any modification, supplement, extension, or amendment of the Lease to which
the parties to the Lease may hereafter agree. The liability of the Guarantor
hereunder is direct and unconditional and may be enforced without requiring the
Landlord first to resort to any other right, remedy, or security. The Guarantor
shall have no right of subrogation, reimbursement, or indemnity whatsoever, nor
any right of recourse to security for the debts and obligations of Tenant to
Landlord. Guarantor waives all defenses based on claims that Landlord has
impaired any collateral for the Tenant's obligations to Landlord or to
Guarantor, including any such claim based on Lender's failure to perfect or
maintain any security interest in Tenant's Property.
This Guaranty is a continuing guaranty that shall be effective before
the commencement of the Lease Term, and shall remain effective following the
Lease Term as to any surviving provisions that remain effective after the
termination of the Lease. The Guarantor's obligations under this Guaranty shall
also continue in full force and effect after any transfer of the Tenant's
interest under the Lease as defined in the Lease.
The liability of Guarantor under this Guaranty shall in no way be
affected, modified, or diminished by reason of (a) any assignment, renewal,
modification, amendment, or extension of the Lease, or (b) any modification or
waiver of or change in any of the terms, covenants, and conditions of the Lease
by Landlord and Tenant, or (c) any extension of time that may be granted by
Landlord to Tenant, or (d) any consent, release, indulgence, or other action,
inaction, or omission under or in respect of the Lease, or (e) any dealings or
transactions or matter or thing occurring between Landlord and Tenant, or (f)
any bankruptcy, insolvency, reorganization, liquidation, arrangement, assignment
for the benefit of creditors, receivership, trusteeship, or similar proceeding
affecting Tenant, or the rejection or disaffirmance of the Lease in any
proceedings, whether or not notice of the proceedings is given to Guarantor.
Should Landlord be obligated by any bankruptcy or other law to repay to
Tenant or to Guarantor or to any trustee, receiver, or other representative of
either of them, any amounts previously paid, this Guaranty shall be reinstated
in the amount of the repayments. Landlord shall not be required to litigate or
otherwise dispute its obligation to make any repayments if it in good faith
believes that the obligation exists.
For purposes of this Guaranty, on a default by Tenant in the payment of
any rent or any other sum
53
payable by Tenant under any of the provisions of the Lease, including the
amounts payable by Tenant under Section 9F of the Lease, the entire balance of
all forms of rent due under the Lease for the remainder of the Lease Term may be
declared to be forthwith due and payable in the amounts and as otherwise
provided in Section 9D of the Lease notwithstanding any stay, injunction, or
other prohibition preventing a similar declaration as against Tenant and, in the
event of any such declaration by Landlord, all of the obligations (whether or
not due and payable by Tenant) shall forthwith become due and payable by
Guarantor under this Guaranty in the amounts and as otherwise provided in
Section 9D of the Lease.
No delay on the part of Landlord in exercising any right under this
Guaranty or failure to exercise any right shall operate as a waiver of or
otherwise affect any right nor shall any single or partial exercise of a right
preclude any other or further exercise of the right or the exercise of any other
right.
No waiver or modification of any provision or this Guaranty nor any
termination of this Guaranty shall be effective unless in writing and signed by
Landlord; nor shall any such waiver be applicable except in the specific
instance for which given.
All of Landlord's rights and remedies under the Lease and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate, and cumulative and no exercise
or partial exercise of any right or remedy mentioned in the Lease or this
Guaranty is intended to be in exclusion of or a waiver of any of the others.
If Landlord assigns the Lease or sells the Building Project, Landlord
may assign this Guaranty to the assignee or transferee, who shall there on
succeed to the rights of Landlord under this Guaranty to the same extent as if
the assignee were an original guaranteed party named in this Guaranty, and the
same rights shall accrue to each subsequent assignee of this Guaranty. If Tenant
assigns or sublets the Premises, the obligations of the Guarantor under this
Guaranty shall remain in full force and effect.
From time to time, Guarantor, on not less than five days' prior notice,
shall execute and deliver to Landlord an estoppel certificate in a form
generally consistent with the requirements of institutional lenders and
certified to Landlord and any mortgagee or prospective mortgagee or purchaser of
the Building Project. In addition, if requested, Guarantor shall provide any
financial information concerning Guarantor that may be reasonably requested by
any mortgagee or prospective mortgagee or purchaser of the Building Project.
If any provision of this Guaranty or the application of any provision
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of that provision and this Guaranty and the application of the
provision to persons or circumstances other than those as to which it is invalid
or enforceable shall not be affected thereby, and the remainder of the provision
and this Guaranty shall otherwise remain in full force and effect.
As a further inducement to Landlord to make and enter into the Lease
and in consideration of Landlord's execution of the Lease, Landlord and
Guarantor waive trial by jury in any action or proceeding brought on, under, or
by virtue of this Guaranty.
Without regard to principles of conflicts of laws, the validity,
interpretation, performance, and enforcement of this Guaranty shall be governed
by and construed in accordance with the internal laws of the State of Florida
and shall be deemed to have been made and performed in the State of Florida.
Any legal action or proceeding arising out of or in any way connected
with this Guaranty shall be instituted in a court (federal or state) located in
Broward County or Palm Beach County, Florida, which shall be the exclusive
jurisdiction and venue for litigation concerning this Guaranty. Landlord and
Guarantor shall be subject to the personal jurisdiction of those courts in any
legal action or proceeding. In addition, Landlord and Guarantor waive any
objection that they may now have or hereafter have to the laying of venue of any
action or proceeding in those courts, and further waive the right to plead or
claim that any action or proceeding brought in any of those courts has been
brought in an inconvenient form.
The obligations of Guarantor under this Guaranty are secured by a
clean, unconditional, irrevocable, negotiable letter of credit (the "Guaranty
Letter of Credit"), which Guaranty Letter of Credit shall be issued by a bank
which is reasonably acceptable to Landlord and which is located in Broward
County or Palm Beach County, Florida, naming Landlord (or its successor as
Landlord) as beneficiary and in the form of EXHIBIT
54
"G" to the Lease. Upon issuance of the Guaranty Letter of Credit, a copy of it
shall be attached to the Lease. The Guaranty Letter of Credit shall have a term
of at least 12 months, and it shall by its terms be renewed automatically each
year by the bank, unless the bank gives written notice to the beneficiary, at
least 30 days prior to the expiration date of the then existing Guaranty Letter
of Credit, that the bank elects that it not be renewed. If the Guaranty Letter
of Credit is ever not renewed and has less than 30 days remaining in its term,
Landlord may draw on it and will then hold the proceeds as a cash security
deposit (separate from the Security Deposit under the Lease) and generally in
accordance with the terms of the Lease governing the Security Deposit. The
Guaranty Letter of Credit shall be transferable to any subsequent owner of the
Building Project. Guarantor shall reimburse Landlord for all transfer fees
incurred.
Commencing on January 1, 2002, the amount of the Guaranty Letter of
Credit shall be reduced by $70,000.00 per year effective on January 1st of each
year.
Notwithstanding anything contained in the Lease or this Guaranty to the
contrary, this a "non-recourse" guaranty and Landlord shall look solely to the
Guaranty Letter of Credit to satisfy any obligations owed by Guarantor under
this Guaranty and Guarantor shall have no personal liability to Landlord under
this Guaranty.
None of Guarantor's members, managers, officers, employees, agents, or
affiliates shall ever have any personal liability to Landlord under this
Guaranty.
If there is more than one Guarantor, the liability of each Guarantor
shall be joint and several with all other Guarantors.
BPNT I LLC, a Florida limited liability company
By:______________________________________________
Dated: ___________________________, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
__________________, 2000, by ____________________________, as manager of BPNT I
LLC, a Florida limited liability company, on behalf of the company, who is
personally known to me or who has produced _____________________________ as
identification.
OFFICIAL NOTARIAL SEAL: __________________________________________
__________________________________________
(type, print, or stamp name)
NOTARY PUBLIC
My commission expires: ___________________
Commission No. ___________________________
55
RIDER NO. 1 ANNEXED TO AND MADE A PART OF LEASE BETWEEN
FG 2200, LLC, AS LANDLORD,
AND
▇▇▇▇▇▇▇▇.▇▇▇, INC., AS TENANT
OPTION TO EXTEND
1. Tenant shall have the option to extend the Lease Term for an
additional period of 60 months, for the Premises as originally demised under the
Lease on the same terms and conditions as provided in the Lease (unless
hereafter changed or modified by a mutual agreement in writing), except that,
for the extended term:
(a) on exercise of this option to extend the Lease Term, the
Lease, as extended, shall not contain any further option to extend as provided
in this Rider;
(b) the Base Rent shall be determined in accordance with
Paragraph 3 of this Rider, but in no event shall it be less than the Base Rent
payable for the 12 month period immediately preceding the expiration of the
original term of the Lease; and
(c) except for Landlord's maintenance and repair obligations
under the Lease, Landlord shall have no obligation to perform any alterations or
tenant improvements or other work in the Premises and Tenant shall continue
possession of the Premises in its "as is," "where is," and "with all faults"
condition.
2. The exercise of the option set forth in this Rider shall only be
effective on, and in strict compliance with, the following terms and conditions:
(a) Notice of Tenant's exercise of the option (the "Extension
Notice") shall be given by Tenant to Landlord not later than December 31, 2009.
Time shall be of the essence as to the exercise of any election by Tenant under
this Rider.
(b) At the time of Tenant giving Landlord notice of its
election to extend the Lease Term and on the expiration of the initial term, the
Lease shall be in full force and effect and Tenant shall not be in default under
any of the terms, covenants, and conditions of the Lease beyond any applicable
grace period.
3. The Base Rent, exclusive of any sales and use taxes, shall be a sum
equal to the fair and reasonable market rental value of the Premises for the
extended term, taking into account the rentals at which extensions of leases are
being concluded for comparable space at that time and for such a term and taking
into account the terms and conditions of the Lease (the "Fair Market Rental
Value" or the "Value").
(a) Within 30 days after receipt of the Extension Notice,
Landlord shall advise Tenant of the applicable Base Rent for the extended term.
Tenant, within 30 days after the date on which Landlord advises Tenant of the
applicable Base Rent for the extended term, shall either (i) give Landlord final
binding notice ("Binding Notice") of Tenant's exercise of its option, or (ii) if
Tenant disagrees with Landlord's determination of the Fair Market Rental Value,
provide Landlord with notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a Binding Notice or Rejection Notice
within the 30 day period, Tenant's election of the option to extend the Lease
shall, at Landlord's option, be null and void and of no further force and
effect. If Tenant provides Landlord with a Binding Notice, Landlord and Tenant
shall enter into an amendment to the Lease extending the Lease Term in
accordance with the terms and conditions of this Rider.
(b) If Tenant provides Landlord with a Rejection Notice,
Landlord and Tenant shall work together in good faith to agree on the Fair
Market Rental Value for the Premises during the extended term. On agreement,
Landlord and Tenant shall enter into an amendment to the Lease extending the
Lease Term in accordance with the terms and conditions of this Rider.
(c) If Landlord and Tenant cannot agree on the Value within 30
days after receipt of the Rejection Notice, Tenant shall have the option to
withdraw its election to extend the Lease Term by giving Landlord notice of
withdrawal within ten days after the expiration of the 30 day period. If Tenant
elects to withdraw its election to extend, Tenant's right to extend the Lease
Term shall be null and void and of no further force and effect.
56
(d) If Landlord and Tenant cannot agree on the Value within 30
days after receipt of the Rejection Notice and, in addition, Tenant does not
elect to withdraw its election to extend the Lease Term, Landlord and Tenant,
within 20 days after the expiration of the 30 day period, shall each
simultaneously submit to the other, in a sealed envelope, its good faith
estimate of the Value (collectively referred to as the "Estimates"). If the
higher of the Estimates is not more than 105% of the lower of the Estimates,
then the Fair Market Rental Value shall be the average of the two Estimates. If
the higher of the Estimates is more than 105% of the lower of the Estimates,
Landlord and Tenant, within seven days after the exchange of the Estimates,
shall each select an MAI appraiser with experience in commercial real estate
activities, including at least ten years experience in appraising office space
in the local area in which the Building Project is located. On selection,
Landlord's and Tenant's appraisers shall work together in good faith to agree on
which of the two Estimates most closely reflects the Fair Market Rental Value.
The estimate that is selected by the appraisers shall be binding on both
Landlord and Tenant. If either Landlord or Tenant fails to appoint an appraiser
within the seven day period referred to above, the appraiser appointed by the
other party shall be the sole appraiser for the purposes of this section. If the
two appraisers cannot agree on which of the two Estimates most closely reflects
the Value within 20 days after their appointment, then, within ten days after
the expiration of the 20 day period, the two appraisers shall select a third
appraiser meeting the criteria stated above. Once the third appraiser has been
selected, then, as soon thereafter as practical but in any case within 14 days,
the third appraiser shall make his determination as to which of the Estimates
most closely reflects the Fair Market Rental Value. The determination by the
third appraiser shall be rendered in writing to both Landlord and Tenant and
shall be final and binding on them. If the third appraiser believes that expert
advice would materially assist him, he may retain one or more qualified persons
to provide expert advice. The parties shall share equally in the cost of the
third appraiser and of any experts retained by the third appraiser. Any fees of
any counsel or experts engaged directly by Landlord or Tenant, including the
appraisers selected by Landlord and Tenant, however, shall be borne by the party
retaining the counsel or expert.
(e) On a determination of the Value under the preceding
procedure, Landlord and Tenant shall enter into an amendment to the Lease
extending the Lease Term in accordance with the terms and conditions of this
Rider.
(f) If at the date of commencement of the extended term, the
Base Rent shall not have been determined, then, pending determination, Tenant
shall pay to Landlord Base Rent at a sum equal to (i) the Base Rent payable for
the immediately preceding 12 month period plus (ii) 20% of the Base Rent (the
"Temporary Rate"). After a determination of Base Rent is made (x) if the rate is
greater than the Temporary Rate, Tenant shall promptly pay to Landlord the
difference between the rent previously paid at the Temporary Rate and the
greater rate, as determined or (y) if the rate is less than the Temporary Rate,
Landlord shall promptly pay to Tenant the difference between the rent previously
paid at the Temporary Rate and the lesser rate, as determined.
IN WITNESS WHEREOF, this Rider has been executed on behalf of Landlord
and Tenant as of the Date of the Lease.
WITNESSES: LANDLORD:
_______________________ FG 2200, LLC, a Florida limited liability company
_______________________ By:__/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Print or type name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager
Date Executed:__________________________
_______________________
[CORPORATE SEAL]
_______________________
Print or type name
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
57
TENANT:
_____________________ ▇▇▇▇▇▇▇▇.▇▇▇, INC., a Florida corporation
_____________________ By: _____________________________________
(Print or type name) Name:____________________________________
Title:___________________________________
Date Executed:___________________________
[CORPORATE SEAL]
(Print or type name)
58
RIDER NO. 2 TO LEASE AGREEMENT
BETWEEN
FG 2200, LLC, AS LANDLORD,
AND
▇▇▇▇▇▇▇▇.▇▇▇, INC., AS TENANT
Intentionally Omitted
59
RIDER NO. 3 ANNEXED TO AND MADE A PART OF LEASE BETWEEN
FG 2200, LLC, AS LANDLORD,
AND
▇▇▇▇▇▇▇▇.▇▇▇, INC., AS TENANT
LICENSE TO USE ROOFTOP SPACE
1. License to Use Rooftop Space. Subject to the terms of this License,
Landlord grants to Tenant a license to locate the communications equipment
described in EXHIBIT "A" attached to this Rider (the "Equipment") in the area on
the roof of the Building Project indicated on EXHIBIT "B" attached to this Rider
(the "Equipment Space") during the Lease Term. The rights granted under this
License are non-exclusive, limited use rights, in the nature of a license, which
rights are personal to Tenant and may not be assigned. Tenant understands and
agrees that Landlord may, from time to time, upon not less than 90 days' written
notice, relocate the Equipment Space to another area of the roof of the Building
Project; provided that such relocation shall not materially, substantially, and
unreasonably interfere with Tenant's use of the Equipment and shall be made at
Landlord's sole cost and expense.
2. Installation of the Equipment. Tenant shall, at its sole cost and
expense, and at its sole risk, install the Equipment in a good and workmanlike
manner, and in compliance with all of the following (the "Codes"): building,
electric, communications, and safety codes, ordinances, standards, regulations,
and requirements of the Federal Government, including, without limitation, the
Federal Communications Commission (the "FCC") or any successor agency having
jurisdiction over radio or telecommunications, the Federal Aviation Association,
the State of Florida, Broward County, and all other governmental authorities
having jurisdiction. Prior to installation, Tenant shall deliver to Landlord
copies of Tenant's plans and specifications for the installation for the
Equipment and proof that all plans and specifications are in accordance with the
Codes. Tenant shall cause the plans and specifications for the Equipment to
conform to Landlord's design and engineering criteria provided to Tenant from
time to time in effect and shall make any reasonable changes required by
Landlord or its agents, engineers, or architects. In no event shall Tenant's
installation of the Equipment damage the Building Project or existing structures
on the Building Project, or interfere with the maintenance of the Building
Project, any system contained in the Building Project, any system currently
serving the Building Project, or any radio or telecommunication equipment
operated from the Building Project. Without limiting the generality of the
foregoing, Tenant shall not install the Equipment in any manner which would void
or limit any warranty or guaranty covering the roof of the Building Project.
Tenant shall notify Landlord upon completion of the installation of the
Equipment. Landlord's review and approval of the plans and specifications for
the installation of the Equipment and Landlord's supervision and inspection of
such installation shall not be construed in any way as approval by Landlord of
the adequacy or safety of the installation of the Equipment or as a waiver of
any of Landlord's rights under this License, and Tenant shall be solely
responsible for the adequacy and safety of the installation and operation of the
Equipment and solely liable for any damages or injury arising out of such
installation and operation, other than injury or damages arising out of the
negligence or willful misconduct of Landlord. Tenant shall pay to Landlord, upon
demand, the cost of repairing any damage to the Building Project caused by such
installation (including, but not limited to, all costs associated with any
impairment of any roof warranty or guaranty) other than damages occurring due to
the gross negligence or willful misconduct of Landlord.
3. Access to the Equipment. During the Lease Term, Landlord agrees that
Tenant shall have access to the Equipment Space as provided in this License for
the purpose of installing, operating, maintaining, repairing, and removing the
Equipment, provided however, that such access shall be limited to authorized
employees and agents of Tenant, or persons under their direct supervision. Upon
request, Tenant shall deliver to Landlord a list of Tenant's authorized
employees and agents prior to any access to the Equipment Space, and those
persons shall be required to give 48 hours' minimum advance notice prior to such
access (except in case of an Emergency). Landlord shall have no responsibility
or liability for the conduct or safety of any of Tenant's representatives, or
repair, maintenance, and engineering personnel while in any part of the Building
Project or the Equipment Space; it being understood and agreed that Tenant shall
be solely liable for any injury to or death of any such person from any cause
other than the gross negligence or willful misconduct of Landlord.
4. Operation of Equipment. Tenant shall operate the Equipment in strict
compliance with Landlord's rules and regulations, as communicated by Landlord to
Tenant, and the Codes. Tenant covenants that the design and plans of the
Equipment conform to the Codes. Tenant shall be solely responsible for obtaining
all required permits, licenses, and consents, and all renewals thereof, to
install and operate the
60
Equipment and shall provide copies thereof to Landlord upon request. In the
event Tenant shall not have all such permits, licenses, and consents upon the
execution date of this License, Tenant shall immediately commence the diligent
prosecution of applications to obtain them. Nothing herein shall imply any duty
or responsibility on the part of Landlord to obtain for Tenant any license or
permit or renewal or extension thereof which may be necessary or proper for the
conduct of Tenant's activities. The operation of the Equipment shall not
interfere with the maintenance or operation of the Building Project, or any
system now or hereafter contained in or serving the Building Project, or the
operation of any existing radio or telecommunication equipment operated on or
from the Building Project.
5. Other Radio or Telecommunication Equipment. During the Lease Term,
and subject to Landlord's rights under this License and under the Lease,
Landlord reserves the right to lease space in the Building Project and grant
licenses for space on the roof of the Building Project, for the operation of
radio, telecommunication, and other equipment by other licensees and may
relocate the Equipment Space in accordance with Paragraph 1 hereof, from time to
time to utilize the space on the roof in a manner satisfactory to Landlord;
provided, however, that such other equipment or relocation shall not
unreasonably interfere with Tenant's installation, operation, maintenance, or
repair of the Equipment.
6. Indemnification of Landlord and Tenant. Tenant hereby agrees to
indemnify and hold Landlord, its agents, and employees harmless from and against
any and all costs, claims, damages, causes of action, and liability which may
arise by reason of any occurrence attributable to or arising out of the
installation, maintenance, repair, operation, or removal of any of the
Equipment, including, without limitation, any claim or cause of action, or
demand against Landlord, its agents, and employees arising out of any such
occurrence, except when caused by the negligence or willful misconduct of
Landlord. Landlord hereby agrees to indemnify and hold Tenant, its agents and
employees, harmless from and against any and all costs, claims, damages, causes
of action, and liability which may arise out of any such occurrence when caused
by the negligence or willful misconduct of Landlord.
7. Non-Liability for Certain Matters.
(a) Except as set forth in Paragraph 6 above, Landlord shall
not be liable to Tenant by reason of inconvenience, annoyance, or injury to the
Building Project or Equipment Space or activities conducted by Tenant therefrom,
arising from the necessity of repairing any portion of the Building Project or
Equipment Space, whether due to fire or otherwise, or from the making of any
alterations or improvements in, or to, any portion of the Building Project or
Equipment Space or in, or to, its fixtures, appurtenance, or equipment.
(b) Tenant shall give Landlord prompt written notice of any
accident to any equipment or apparatus belonging to Landlord. Landlord shall not
be liable for any latent defect or change or modification in the Building
Project or Equipment Space, nor for any damage to property or persons caused by
any overflow or leakage of water, steam, gas, electricity, or any other
substance from any other source whatsoever except for such damage caused by the
gross negligence or willful misconduct of Landlord.
(c) Landlord has not made any representations as to the
condition or suitability of the Building Project of the Equipment Space for the
uses intended to be made of them by Tenant, nor does this License constitute any
representation or warranty that such use is a legal or allowable use.
8. Casualty. Tenant shall be solely responsible for any loss or damage
to the Equipment arising from casualty, fire, flood, tornado, or other acts of
God.
9. Landlord's Rules and Regulations. Landlord shall have the power,
from time to time, to promulgate by written notice to Tenant all reasonably
necessary or appropriate rules or regulations governing the operation of the
Equipment, access to the Equipment Space, and transportation of the Equipment
into and out of the Building Project, to insure the safe and orderly operation
of the Building Project; provided, that such rules and regulations shall not
unreasonably interfere with Tenant's use of the Equipment Space as contemplated
herein. Tenant covenants and agrees to comply with all such rules and
regulations.
10. Removal of Equipment. On the expiration or sooner termination of
this License, Tenant shall, at its sole cost and expense, remove from the
Equipment Space the Equipment and any or all other property of Tenant and Tenant
shall repair any damage to the Equipment Space and the Building Project
resulting from
61
such removal. Should Tenant fail to remove the Equipment or repair any damage
resulting from removal, Landlord may remove the Equipment and repair all damage
caused thereby and Tenant shall pay all costs incurred by Landlord upon demand.
11. Utilities. Tenant shall, at its sole cost and expense, obtain
electrical and telephone service and any other utilities necessary for
utilization of the Equipment Space, including the installation of a separate
meter and main breaker. Tenant shall pay the electrical utility provider
directly for the electricity it consumes for its operations at the Equipment
Space. Landlord shall not be liable to Tenant for any stoppages or shortages of
electrical power furnished to the Equipment Space because of any act, omission,
or requirement of the public utility serving the Building Project, or the act or
omission of any other licensee of the Building Project, or for any other cause
beyond the control of Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Rider as of the
day and year first above written.
WITNESSES: LANDLORD:
FG 2200, LLC, a Florida limited liability company
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Print or type name By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
[CORPORATE SEAL]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Print or type name
Date Executed: November 30, 2000
TENANT:
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇.▇▇▇, INC.,
a Florida corporation
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Print or type name)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP Business and Legal Affairs
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
[CORPORATE SEAL]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(Print or type name) Date Executed: November 30, 2000
62
EXHIBIT "A"
DESCRIPTION OF EQUIPMENT
63
EXHIBIT "B"
LOCATION OF EQUIPMENT SPACE
64
