EXHIBIT 10(g)
LEASE AGREEMENT
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TABLE OF CONTENTS
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Page
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1. Definitions; Lease Provisions...........................................68
2. Lease Grant.............................................................71
3. Lease Term..............................................................71
4. Use.....................................................................72
5. Rent....................................................................72
6. Services to be Furnished by Landlord....................................73
7. Improvements to be Made by Landlord.....................................74
8. Graphics................................................................74
9. Maintenance and Repair of Premises by Landlord..........................75
10. Repair and Maintenance Obligations of Tenant............................75
11. Alterations by Tenant...................................................76
12. Structural Overload.....................................................76
13. Laws and Regulations....................................................77
14. Building Rules and Regulations..........................................77
15. Entry by Landlord.......................................................77
16. Assignment and Subletting...............................................77
17. Construction Liens......................................................78
18. Landlord's Insurance....................................................79
19. Tenant's Insurance and Requirements.....................................79
20. Indemnity; Limitation of Liability......................................81
21. Waiver of Subrogation Rights............................................81
22. Casualty Damage.........................................................81
23. Condemnation............................................................83
24. Events of Default; Remedies.............................................83
25. Peaceful Enjoyment......................................................85
26. Surrender; Holding Over.................................................86
27. Subordination to Mortgage; Attornment...................................86
28. Estoppel Certificates...................................................87
29. Parking.................................................................87
30. Attorney's Fees.........................................................87
31. No Implied Waiver.......................................................87
32. Landlord's Liability....................................................88
33. Security Deposit........................................................88
34. Notice..................................................................88
35. Severability............................................................89
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36. Recordation.............................................................89
37. Governing Law...........................................................89
38. Force Majeure...........................................................89
39. Time of Performance.....................................................89
40. Transfers by Landlord...................................................89
41. Brokers.................................................................89
42. Effect of Delivery of This Lease........................................90
43. Exhibits................................................................90
44. Captions; Construction..................................................90
45. Prior Agreements and Amendments.........................................90
46. Binding Effect Usage;...................................................90
47. Statutory Notice Requirement............................................90
48. Waiver of Trial by Jury.................................................91
49. Financial Statements....................................................91
50. Representations; Authority..............................................91
51. Tenant's Acceptance Letter..............................................91
52. Bankruptcy..............................................................91
53. No Partnership..........................................................92
54. Third Party Rights......................................................92
55. Days....................................................................92
56. Reservations............................................................92
57. Counterparts, Facsimiles................................................92
58. Survival................................................................92
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EXHIBIT LIST
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EXHIBIT "A" DESCRIPTION OF PROPERTY
EXHIBIT "B" FLOOR PLAN OF PREMISES
EXHIBIT "C" ANNUAL RENT ADJUSTMENTS AND OPERATING EXPENSES
EXHIBIT "D" BUILDOUT OF PREMISES
EXHIBIT "E" RULES AND REGULATIONS
EXHIBIT "F" LETTER OF CREDIT
EXHIBIT "G" TENANT ACCEPTANCE LETTER
EXHIBIT "H" AUTOMATIC DEBIT TRANSACTION
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), is made and entered into as of AUGUST
___, 2001, by and between ACP OFFICE I LLC, a Delaware limited liability company
("Landlord"), and LEGAL ▇▇▇▇.▇▇▇, a Florida corporation, ("Tenant").
WITNESSETH:
1. Definitions; Lease Provisions
(a) Basic Lease Provisions and Certain Definitions. For purposes of this
Lease and any attached exhibits, the following terms shall have the following
meanings:
(i) "Building" shall mean the building located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, which is located upon the Property.
(ii) "Premises" shall mean Suite No. 301 located in the Building and
outlined on the floor plan attached to this Lease as Exhibit "B", which is
incorporated into this Lease.
(iii) "Initial Base Rent" shall mean the sum of $81,823.50 per
annum.
(iv) "Rent Commencement Date" shall mean the earlier of: (A) the
date that Tenant actually occupies the Premises or substantially completes the
Tenant Improvements, if any, in accordance with Exhibit "D"; (B) the date that
Landlord substantially completes the Landlord's Work, if any, in accordance with
Exhibit "D" attached to this Lease; or (C) October 1, 2001 (all except as the
same may be modified pursuant to Paragraph 3 hereof).
(v) "Rentable Area of the Premises" or "Square Foot(age) of the
Premises" shall be conclusively deemed to mean 4,959 square feet and is
calculated using a stipulated common area factor.
(vi) "Lease Term" shall mean a term commencing on the Rent
Commencement Date and continuing for 60 calendar months (plus any partial
calendar month in which the Rent Commencement Date falls).
(vii) "Security Deposit" shall mean the sum of $0.00.
(viii) "Common Area Expense Stop" shall mean $0.00 per square foot.
(ix) "Prepaid Rent" shall mean $0.00.
(x) "Tenant's Proportionate Share" shall mean the percentage which
the Rentable Area of the Premises bears to the Rentable Area of the Complex;
Tenant's Proportionate Share is specified to be 8.24%.
(xi) "Parking Spaces" shall mean 25 unassigned parking spaces in the
Parking Facility.
(xii) "Cost of a Parking Space" shall mean $0.00 for each of the
Parking Spaces subject to provisions of Paragraph 29 hereof.
(xiii) "Percentage Increase" shall mean 4% per year.
(xiv) "Permitted Use" shall mean for general office use and for no
other use or purpose.
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(xv) "Name and Address of Tenant for Notices" shall mean
▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(xvi) Purposefully Omitted.
(xvii) "All of the Exhibits" shall mean Exhibits "A", "B", "C", "D",
"E", "F", "G" and "H" attached to this Lease.
(b) Other Lease Definitions.
(i) "Base Rent" shall mean the Initial Base Rent, payable at the
rate of one twelfth of the Initial Base Rent per month, subject to the
provisions of Paragraph 5, as adjusted pursuant to Exhibit "C".
(ii) "Common Areas" shall mean collectively, the Tenant
Non-Exclusive Common Areas and the Service Areas.
(iii) "Complex" shall mean the Building and all other office
buildings, the Parking Facility and all other parking areas, the Common Areas
and all other improvements located in, on, under or adjacent to the Property
designated as the Complex from time to time by Landlord. At the option of
Landlord, from time to time, any of the properties in the Complex other than the
Building, may be included or excluded from the definition of Complex and the
Tenant's Proportionate Share under this Lease shall be adjusted accordingly.
(iv) "Hazardous Material(s)" shall mean any substances defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "toxic substances", "contaminants" or words of similar
import under applicable Legal Requirements, including, without limitation, oil
and petroleum products, natural or synthetic gas, polychlorinated biphenyls,
asbestos in any form, urea formaldehyde, radon gas, or the emission of
non-ionizing radiation, microwave radiation or electromagnetic fields at levels
in excess of those, if any, specified by any Legal Authority or which may cause
a health hazard or danger to property, or the emission of any form of ionizing
radiation, or any substance which is toxic, explosive, corrosive, flammable,
infectious, radioactive, mutagenic or otherwise hazardous or any other pollution
under any applicable Legal Requirements. Hazardous Materials shall not include
reasonable quantities of conventional cleaning and office supplies used in a
normal office environment and in compliance with all Legal Requirements.
(v) "Landlord's Broker" shall mean ACP Realty Services LLC, the
broker for Landlord.
(vi) "Lease Year" shall mean each consecutive 12 full calendar month
period of the Lease Term, beginning on the Rent Commencement Date, except that
the first Lease Year shall include any portion of a calendar month during which
the Rent Commencement Date occurs (if the Rent Commencement Date does not occur
on the first day of the month) and the last Lease Year of the Lease Term shall
be the Lease Year during which the Lease Term expires, regardless of its length.
(vii) "Legal Authority" means any domestic or foreign federal,
state, county, municipal, or other government or governmental or
quasi-governmental department, commission, board, bureau, court, agency, or
instrumentality having jurisdiction or authority over Landlord, Tenant and/or
all or any part of the Premises or the Property.
(viii) "Legal Requirements" means any law, statute, code, rule,
regulation, ordinance, order, judgment, decree, writ, injunction, franchise,
permit, certificate, license (including any beer, wine or liquor license),
authorization, registration, or other direction or requirement of any Legal
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Authority, including, without limitation, the Americans with Disabilities Act
("ADA"), which is now or in the future applicable to the Premises or the
Property, including those not within the present contemplation of the parties;
and the provisions of any applicable insurance policies in effect with respect
to the Premises or the Property.
(ix) "Normal Business Hours" for the Building shall mean (i) 8:00
a.m. to 6:00 p.m. Mondays through Fridays and 9:00 a.m. to 1:00 p.m. Saturdays,
exclusive of normal business holidays and state and federal holidays. Subject to
emergency and force majeure, Tenant shall have limited access to the Premises,
Building and Parking Facility, subject to compliance with Landlord's security
procedures for access (e.g. through a card reader system) during other than
Normal Business Hours.
(x) "Parking Facility" shall mean either a parking garage attached
to and/or a parking lot in close proximity to the Building. The Parking Facility
is a part of the Complex and may include, without limitation, and any off-site
property acquired (by purchase or lease) by Landlord for the purpose of
providing additional parking for the Tenant, their employees and/or customers.
(xi) "Property" means the real property described in Exhibit "A"
attached to and incorporated into this Lease.
(xii) "Rentable Area of the Complex" shall mean the sum of all
rentable areas of all tenant premises.
(xiii) "Service Areas" shall mean those areas within the exterior
walls of the buildings in the Complex used for building stairs, elevator shafts,
flues, vents, stacks, pipe shafts, risers, raceways, and other vertical
penetrations, mechanical rooms (containing machinery, equipment or controls for
the air conditioning, security, telecommunications, elevators, and other systems
in the Complex), janitorial closets, electrical and telephone closets, and other
similar facilities required to operate the Complex or for the benefit of tenants
of the Complex generally, but which access is not granted to the tenants in
common without prior permission from Landlord, and other areas or spaces,
improvements, facilities, utility systems, equipment, signs (as the same may be
enlarged, reduced, replaced, increased, removed or otherwise altered by Landlord
in a manner not inconsistent with this Lease) of the Property, which may
include, without limitation, (but shall not be deemed a representation as to
their availability) utility systems, roofs, loading docks, landscaped areas,
serviceways, ramps, and vertical or horizontal chases, risers, ducts, shafts or
similar passageways (but shall not include any such areas designated for the
exclusive use of a particular Building tenant or other tenant of the Complex)
plus any area of the Complex that is not: (A) Tenant Non-Exclusive Common Areas:
(B) areas leased to tenants of the Complex, including Tenant; or (C) areas that
are held to be leased to future tenants of the Complex.
(xiv) "Tenant Improvements" shall include those improvements
constructed or installed on the Premises by or for Tenant as provided in Exhibit
"D."
(xv) "Tenant Non-Exclusive Common Areas" (as initially constructed
or as the same may at any time thereafter be enlarged or reduced) shall mean
facilities or areas and improvements in the Property that are designed or made
available from time to time by Landlord, as appropriate, for the common use or
benefit of Landlord, Tenant and other tenants, occupants and users of the
Property, or the general public, including, but not limited to: (A) all such
areas within the exterior walls of the buildings in the Complex devoted to
corridors, elevator foyers, vending areas, restrooms, and (B) any such common
roadways, service areas, driveways, access roads, decks, parking areas and
facilities (including the Parking Facility) areas of ingress and egress,
sidewalks and other pedestrian ways, tunnels, bridges, corridors, enclosed or
exterior malls, elevators, escalators, stairways, comfort and first aid
stations, public washrooms, lobby areas (whether at ground level or otherwise),
courts, parcel pick-up stations and other facilities or areas and improvements
in the Property.
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(xvi) "Work Letter" means the work letter referenced in Exhibit "D"
attached to this Lease.
2. Lease Grant. Subject to and upon the terms herein set forth, Landlord
leases to Tenant and Tenant leases from Landlord the Premises. Tenant shall also
have a license to use on a non-exclusive basis, the Tenant Non-Exclusive Common
Areas made available from time to time by Landlord, but not the Service Areas.
Tenant agrees and acknowledges that the Rentable Area of the Premises is
conclusively deemed to be the stipulated Square Footage of the Premises.
3. Lease Term.
(a) This Lease shall continue in force during a period beginning on the
Rent Commencement Date and continuing until the expiration of the Lease Term,
unless this Lease is sooner terminated or extended to a later date under any
other term or provision hereof.
(b) If Landlord, for any reason whatsoever, cannot deliver possession of
the Premises to Tenant on any given date, this Lease shall not be void or
voidable, no obligation of Tenant shall be affected thereby, and neither
Landlord nor Landlord's agents shall be liable to Tenant for any loss or damage
resulting from the delay in delivery of possession; provided, however, that in
such event, except to the extent of any Tenant's Delay (as hereinafter defined)
the Rent Commencement Date of this Lease and all other dates that may be
affected by their change, shall be revised to conform to the date of Landlord's
delivery of possession to Tenant.
(c) Notwithstanding anything contained in this Lease to the contrary,
Tenant shall observe and perform all of its obligations under this Lease,
including, without limitation, its obligation to pay charges for utilities and
to provide insurance (excepting its obligation to pay any Rent required under
the Lease or to operate its business within the Premises), from the date upon
which the Premises are made available to Tenant for Tenant Improvements or the
date Tenant commences to perform Tenant Improvements, whichever is earlier,
until the actual Rent Commencement Date. For purposes of tendering possession of
the Premises to Tenant as aforesaid, Landlord shall not be required to have
completed or substantially completed any work to be performed outside of the
Premises.
(d) If Landlord is obligated to complete any of the Tenant Improvements,
then if by the date specified as the Rent Commencement Date in Subparagraph
1(a)(iv) of this Lease, Landlord has not substantially completed any of the
Tenant Improvements to the Premises set forth in the Work Letter required to be
made by the Landlord, if any, then, except to the extent of any Tenant's Delay
(as hereinafter defined), Tenant's sole remedy shall be that the Rent
Commencement Date shall be postponed (and the Rent herein provided shall not
commence) until the earlier of either: (i) the date of actual occupancy of the
Premises by Tenant; or (ii) the date immediately following the day Landlord
would have achieved substantial completion of such improvements but for Tenant's
Delay, if any. Other than postponing the Rent Commencement Date as provided in
this Subparagraph (b), Landlord shall have no further liability for failure to
achieve substantial completion by the Rent Commencement Date specified in
Subparagraph 1(a)(iv) of this Lease.
(e) Notwithstanding anything contained in this Lease to the contrary, if,
and to the extent, Landlord's substantial completion of the Tenant Improvements
to the Premises required to be made by the Landlord, if any, pursuant to Exhibit
"D" hereto and/or delivery of the Premises is materially delayed due to any act,
omission or default by Tenant or anyone acting under or for Tenant (any such
delay being referred to herein as "Tenant Delay"), then the Rent Commencement
Date shall be moved forward (earlier) one day for each day of delay caused by
such Tenant Delay.
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4. Use. The Premises shall be used in a manner consistent with the Permitted Use
and for no other use or purpose whatsoever. Tenant agrees not to use or permit
the use of the Premises for any purpose which is illegal, dangerous to life,
limb, or property or which, in Landlord's opinion, creates a nuisance or which
would increase the cost of insurance coverage with respect to the Building, the
Complex or the Property.
5. Rent.
(a) Tenant agrees to pay during the Lease Term, to Landlord, without any
setoff or deduction whatsoever, the Base Rent and all such other sums of money
("Additional Rent" and collectively with Base Rent, "Rent") as shall become due
hereunder, for the nonpayment of which Landlord shall be entitled to exercise
all such rights and remedies as are herein provided or as are available at law
or in equity in the case of the nonpayment of Base Rent. Except as otherwise
provided herein, the annual Base Rent for each calendar year or portion thereof
during the Lease Term, together with any adjustment thereto pursuant to Section
I of Exhibit "C" attached hereto and incorporated herein, shall be due and
payable in advance in 12 equal installments on the first day of each calendar
month during the initial Lease Term and any extensions or renewals thereof, and
Tenant hereby agrees to pay such Base Rent and any adjustments thereto to
Landlord at Landlord's address provided herein (or such other address as may be
designated by Landlord in writing from time to time) monthly, in advance, and
without demand. All sums due Landlord shall be payable only in lawful money of
the United States of America and shall be drawn against a financial institution
with an office in the United States of America. If the Lease Term commences on a
day other than the first day of a calendar month or terminates on a day other
than the last day of a calendar month, then the installments of Base Rent and
any adjustments thereto for such month or months shall be prorated, based on the
number of days in such month.
(b) All installments of Rent and any Additional Rent not paid when due and
payable shall bear interest at 18% per annum from the date due until paid and
shall be subject to a late charge in the amount equal to 5% of the amount due.
In the event any check, bank draft or negotiable instrument given for any
payment under this Lease shall be dishonored at any time for any reason
whatsoever not attributable to Landlord, Landlord shall be entitled, in addition
to any other remedy that may be available, to an administrative charge of
$250.00.
(c) The Base Rent payable hereunder shall be adjusted upward from time to
time in accordance with the provisions of Exhibit "C", Section I.
(d) In addition to the Base Rent, as same may be adjusted from time to
time, Tenant shall pay as Additional Rent Tenant's Proportionate Share of Taxes
and the Operating Expenses incurred by Landlord in connection with the operation
and maintenance of the Building, the Complex and the Property. Tenant's
obligations with respect to the payment of such Additional Rent are set forth in
full in Exhibit "C", Section II.
(e) Prepaid Rent shall be paid by Tenant to Landlord upon execution of
this Lease and shall be used to pay Rent as Rent comes due.
(f) Tenant shall pay all sales and use taxes and surcharges levied or
assessed against all portions of Rent and other payments due under this Lease,
simultaneously with each such Rent payment (including, without limitation, the
payment of Prepaid Rent).
(g) Tenant shall pay before delinquency all taxes, assessments, license
fees and public charges levied, assessed or imposed upon its business operation,
as well as upon all Tenant's fixtures, equipment and personalty, leasehold
improvements, equipment, stock-in-trade and other personal property in, placed
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in or on the Premises. Any such taxes included in Landlord's tax bills and paid
by Landlord shall be due and payable within 10 days after ▇▇▇▇▇▇▇▇ therefor are
rendered to Tenant.
(h) Upon Landlord's request following an event of default for two
incidences of non-payment of rent, Tenant agrees to permit and arrange for the
payment of Base Rent and/or additional rent by automatic electronic funds
transfer directly from Tenant's bank account into Landlord's designated account.
Tenant agrees to execute an ACH form in the form attached hereto as Exhibit "I"
upon the execution of this Lease and from time to time as requested by Landlord,
but Landlord agrees to not deliver such ACH Form until an event of default for
non-payment of rent has occurred.
6. Services to be Furnished by Landlord.
Landlord agrees to furnish Tenant the following services:
(a) Unheated water at those points of supply for drinking and lavatory
purposes for the general use of tenants of the Building and the Complex;
(b) Routine maintenance and electric lighting service for the Common Areas
in the manner and to the extent deemed by Landlord to be standard.
(c) Janitorial service, 5 days per week, exclusive of normal business
holidays; provided, however, if Tenant's floor covering or other improvements
require special treatment, Tenant shall pay the additional cleaning cost
attributable thereto as Additional Rent upon presentation of a statement
therefor by Landlord.
(d) Facilities to provide all electrical current required for general
office use and occupancy of the Premises, including the cost of the electrical
current with limitation for a separately metered HVAC system serving Tenant's
computer room. Tenant's usage of electrical current for the Premises for a
separately metered HVAC system, shall be separately metered or sub-metered at
Tenant's expense and paid by Tenant. At the option of Landlord, all such charges
shall be either: (i) paid by Tenant directly to the provider thereof prior to
delinquency; or (ii) paid by Tenant to Landlord as additional rent promptly
after being invoiced therefor.
(e) Fluorescent and incandescent bulb replacement in the Common Areas.
(f) Passenger elevator service in common with other Building tenants for
ingress to and egress from the Premises.
(g) Landlord shall have no obligation to provide any security whatsoever
for the Complex, Common Areas, Parking Facility, the Premises and/or Tenant's
business therein. Tenant does hereby acknowledge and agree that it shall provide
and be solely responsible for its own security, at Tenant's sole cost and
expense, as may be required for the operation of Tenant's business within the
Premises and Landlord shall have no liability to Tenant, its employees, agents,
invitees, or licensees for losses due to theft or burglary, or for damages done
by unauthorized persons in the Premises, Common Areas, Parking Facility, or the
Complex or for any injury, trauma or other harm to any person, and neither shall
Landlord be required to insure against any such losses. Tenant shall be
responsible for all repairs and replacements of damage and/or destruction of the
Premises necessitated by burglary or attempted burglary, or any other illegal or
forcible entry into the Premises. Notwithstanding the foregoing, Tenant
acknowledges and agrees Landlord may, but will not be required to, adopt and
provide security services for the Complex from time to time. Tenant shall
cooperate fully in any efforts of Landlord to maintain security in the Complex
and shall follow all rules and regulations promulgated by Landlord with respect
thereto. However, any security services that are voluntarily undertaken by
Landlord may be changed or discontinued from time to time in Landlord's sole and
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absolute discretion, without liability to Tenant, its employees, agents,
customers and invitees. Tenant waives any claims it may have against Landlord
arising out of any security services provided by Landlord, or the inadequacy or
absence thereof, specifically including Landlord's negligence with respect to
the providing or failure to provide such services.
(i) Air-conditioning during Normal Business Hours, as Landlord in its
reasonable discretion considers to be standard for similarly situated buildings
or as required by governmental authority; provided, however, heating and
air-conditioning service at times other than for Normal Business Hours for the
Building and the Complex shall be furnished only upon the written request of
Tenant delivered to Landlord prior to 11:00 a.m. at least one business day in
advance of the date for which such usage is requested. Such usage shall be at
Tenant's expense at the rate as reasonably determined by Landlord from time to
time, which charge shall be considered as additional rent and which Tenant shall
pay promptly upon being invoiced therefor. Tenant will not be responsible for
any over time air-conditioning used during months 1-6 of the initial lease term.
Thereafter, Tenant will be billed a flat $500.00 per month for all over time
air-conditioning usage.
The failure by Landlord to any extent to furnish, or the interruption or
termination of these defined services, in whole or in part, resulting from
causes beyond the reasonable control of Landlord, shall not render Landlord
liable in any respect nor be construed as an eviction of Tenant, nor work an
abatement of rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used in
the provision of such services for any cause cease to function properly, Tenant
shall have no claim for offset or abatement of rent or damages on account of an
interruption in service occasioned thereby or resulting therefrom.
Except as may be specifically provided for herein to the contrary, no
abatement, diminution or reduction of Base Rent or any Additional Rent, or any
other charges or compensation, shall be claimed by or allowed to Tenant, or any
persons claiming under Tenant, under any circumstances, whether for
inconvenience, discomfort, interruption of business or otherwise, arising from
any cause or reason.
7. Improvements to be Made by Landlord. It is specifically understood and
agreed that Landlord has no obligation and has made no promises to alter or
improve the Premises or the Complex except as specifically set forth in this
Lease or in the Work Letter. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, Tenant shall be
responsible for and shall procure and maintain such license or permit. Tenant
agrees to take the Premises in an "AS IS" condition as of the date possession is
tendered, subject to any punchlist items to which Landlord may agree.
8. Graphics
(a) Landlord shall provide and install, at Tenant's cost, all letters or
numerals on doors of the Premises that face the Tenant Non-Exclusive Common
Areas. All such letters and numerals shall be in the standard graphics for the
Building, and no other signs or graphic displays shall be used or permitted on
the Premises without Landlord's prior written consent. Landlord shall have the
right at any time to change the name of the Building or the Complex and to
install, affix and maintain any and all signs on the exterior and on the
interior of the Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the name of the Building or use pictures or illustrations
of the Building in advertising or other publicity or for any purpose other than
as the address of the business to be conducted by Tenant in the Premises,
without the prior written consent of Landlord.
(b) If there is a directory of the Building's tenants located in the
Building's lobby, Landlord shall provide and install, at Tenant's cost, a
listing of Tenant on such directory.
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9. Maintenance and Repair of Premises by Landlord. Except as otherwise
expressly provided herein, Landlord shall not be required to make any repairs to
the Premises other than repairs to the Building exterior and load-bearing walls
and the floors and the roof of the Building, which may be required from time to
time, but only after such required repairs have been requested by Tenant in
writing and to the extent not caused by the acts of Tenant, its employees,
agents, contractors, invitees, licensees, concessionaires, subtenants and/or
assigns or resulting, directly or indirectly, from the installation of any
Tenant Improvements. In no event shall Landlord be responsible for the
maintenance or repair of improvements that are not composed of Building grade
construction or materials. It is further agreed that this Lease is made by
Landlord and accepted by Tenant with the distinct understanding and agreement
that Landlord shall have the right and privilege to make and build additions to
the Building, the Complex and Common Areas, and make such alterations and
repairs to said Building, Complex and Common Areas as it may deem wise and
advisable without any liability to the Tenant therefor.
10. Repair and Maintenance Obligations of Tenant.
(a) Subject to the provisions in Paragraph 9, 22 and 23, Tenant agrees, at
Tenant's cost and expense, to keep and maintain the Premises and each and every
part thereof in good order and condition and to make all repairs thereto, and
the fixtures and equipment therein and the appurtenances thereto (including such
as are installed or located outside of the Premises and which exclusively serve
the Premises). Tenant shall initiate and carry out a program of regular
maintenance and repair of the Premises, including, without limitation, the
painting and decorating of all areas of the interior, so as to impede, to the
extent possible, deterioration by ordinary wear and tear, and to keep the
Premises in a first class, clean, neat and attractive condition. Tenant shall
keep the inside of all glass in the doors and windows of the Premises clean and
shall replace any glass broken with glass of the same kind, size and quality.
Upon Landlord's written request, Tenant shall be responsible for maintaining any
HVAC system and equipment serving the Premises in good condition at all times,
and to make any repairs or replacements to such HVAC system and equipment.
Tenant's responsibilities hereunder include any repairs that are required to be
made during the Lease Term by any Legal Authority or which are required to
comply with any Legal Requirement applicable during the Lease Term.
(b) Tenant agrees not to commit or allow to be committed any waste on any
portion of the Premises or Complex and, at the termination of this Lease, to
deliver up the Premises to Landlord in as good condition as at the date of
delivery by Landlord of the Premises to Tenant, ordinary wear and tear excepted,
and subject to the provisions of Paragraphs 11, 22, and 23 hereof. Tenant
covenants and agrees with Landlord, at Tenant's own cost and expense, to repair
or replace any damage done to the Premises, Building or Complex, or any part
thereof, caused by Tenant or Tenant's agents, contractors, employees, invitees,
or visitors, and such repairs shall restore the same to as good a condition as
it was in prior to such damage, and shall be effected in compliance with all
Legal Requirements.
(c) Nothing contained in this Lease shall imply any duty on the part of
Landlord to do any work that Tenant is required to perform nor shall it
constitute a waiver of Tenant's default in failing to do the same.
Notwithstanding any other terms of this Lease to the contrary, Landlord shall
have the right, in Landlord's sole and absolute discretion, with notice to
Tenant except in the case of emergency in Landlord's reasonable judgment, to
perform any of the repairs, maintenance and/or replacements described in this
Lease to be performed by Tenant (including Tenant's failure to properly perform
such obligations in Landlord's sole opinion), whereupon Tenant shall immediately
reimburse Landlord for all costs and expenses incurred by Landlord, as
Additional Rent, in the performance thereof, upon Tenant's receipt of a ▇▇▇▇
therefor. Tenant shall have the obligation to make repairs, maintenance or
replacements to any area of the Complex or to the Premises that are made
necessary by any act, omission or negligence of Tenant, its agents, employees,
assignees, concessionaires, contractors, invitees or licensees. Landlord's
performance of Tenant's obligations under this Lease shall be without liability
to Tenant for any loss or damage that may accrue to Tenant's merchandise,
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fixtures or other property or to Tenant's business by reason thereof. The term
"repairs," as used in this Lease, shall mean all maintenance, repairs, and
replacements, of whatever kind.
11. Alterations by Tenant.
(a) Tenant agrees with Landlord not to make or allow to be made any
alterations to the Premises or place signs, furnishings, equipment, or any
window coverings on any part of the Premises which are visible from outside the
Premises, without first obtaining the written consent of Landlord in each such
instance, which consent may be given on such conditions as Landlord may elect;
provided however, Landlord shall not unreasonably withhold its consent to any
alterations so long as: (i) the cost thereof does not exceed $5,000 and (ii)
such alterations do not affect the structure or exterior or the portion of the
Building, or the electrical, mechanical, HVAC, telecommunications, plumbing or
other Building systems. Any and all alterations to the Premises shall become the
property of Landlord upon termination of this Lease (except for movable
equipment, personal property or furniture owned by Tenant). Landlord may,
nonetheless, require Tenant to remove any portion of or all of the Tenant
Improvements, fixtures, equipment, and other improvements installed on the
Premises (the "Additional Improvements"), and restore the Premises to its
original condition, reasonable wear and tear excepted. In the event that
Landlord so elects, and Tenant fails to remove the Additional Improvements,
Landlord may remove the Additional Improvements at Tenant's cost, and Tenant
shall pay Landlord on demand all costs incurred in removing Additional
Improvements and restoration of the Premises as required.
(b) Whether or not Landlord grants its consent to Tenant's proposed
alterations or improvements, all alterations and improvements shall nevertheless
be conditioned upon Tenant: (i) acquiring all applicable governmental permits;
(ii) furnishing Landlord with copies of any permits, if required, and the plans
and specifications prior to commencement of the work; (iii) Tenant reimbursing
Landlord within 10 days of Tenant's receipt of a ▇▇▇▇ or estimate therefor for
all reasonable costs and expenses incurred by Landlord in connection with the
review and inspection of alterations improvements and/or additions for which
consent may be required, including, but not limited to, architect's and
engineer's fees and costs, it being agreed that the foregoing shall be limited
to alterations which shall require Landlord's consent; and (iv) complying with
all conditions of any permits and with other Legal Requirements and all
provisions of this Lease applicable to Tenant Improvements in a prompt and
expeditious manner.
(c) Whether or not Landlord grants its consent to Tenant's proposed
alterations or improvements: (i) all alterations, improvements and additions
installed by Tenant shall be installed in a good workmanlike and lien free
manner and in a manner that minimizes inconvenience to and disruption of the
other occupants of the Complex (including, but not limited to the Building) and
their businesses, shall be performed by a contractor approved by Landlord (which
approval shall not unreasonably be withheld), shall be of a quality not less
than Building Grade and, once commenced, shall be prosecuted continuously, in
good faith and with due diligence until completed; and (ii) Tenant shall
promptly upon completion of any alterations or improvements furnish Landlord
with as-built plans and specifications regardless of whether or not consent was
required.
(d) In the event that Landlord reasonably determines that any alterations
or improvements by Tenant would disrupt the other tenants in the Complex,
Landlord may require that all work performed by or on behalf of Tenant be
performed only during non-Normal Business Hours.
12. Structural Overload . Tenant shall not place a load upon any floor of
the Premises exceeding the floor load per square foot area that such floor was
designed to carry and which may be allowed by law. Landlord reserves the right
to prescribe the weight limitations and position of all heavy equipment and
similar items, and to prescribe the reinforcing necessary, if any, which in the
opinion of the Landlord may be required under the circumstances, such
reinforcing to be at Tenant's expense.
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13. Laws and Regulations. Tenant agrees to comply with all Legal
Requirements of every Legal Authority. Tenant shall: (a) neither cause nor
permit the Premises to be used to generate, manufacture, refine, transport,
treat, store, handle, dispose, transfer, produce, or process Hazardous
Materials, except in compliance with all Legal Requirements; (b) neither cause
nor permit a release or threatened release of Hazardous Materials onto the
Premises or any other property as a result of any intentional or unintentional
act or omission on the part of Tenant; (c) comply with all Legal Requirements
related to Hazardous Materials; (d) conduct and complete all investigations,
studies, sampling, and testing, and all remedial, removal, and other actions on,
from, or affecting the Premises in accordance with such Legal Requirements and
to the satisfaction of Landlord; (e) upon the expiration or termination of this
Lease, deliver the Premises to Landlord free of all Hazardous Materials; and (f)
defend, indemnify, and hold harmless Landlord and Landlord's employees and other
agents from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs, or expenses of any kind or nature, known or
unknown, contingent or otherwise (including, without limitation, accountants'
and attorneys' fees (including fees for the services of paralegals and similar
persons), consultant fees, investigation and laboratory fees, court costs, and
litigation expenses at the trial and all appellate levels), arising out of, or
in any way related to (i) the presence, disposal, release, or threatened
release, by or caused by Tenant or its agents, of any Hazardous Materials which
are on, from, or affecting the soil, water, vegetation, buildings, personal
property, persons, animals or otherwise; (ii) any personal injury, including
wrongful death, or damage to property, real or personal, arising out of or
related to such Hazardous Materials; (iii) any lawsuit brought, threatened, or
settled by Legal Authorities or other parties, or order by Legal Authorities,
related to such Hazardous Materials or otherwise; and/or (iv) any violation of
Legal Requirements related in any way to such Hazardous Materials.
Notwithstanding clauses (d), (e) and (f), Tenant shall have no obligation under
clauses (d), (e) and (f) arising from or related to Hazardous Materials, to the
extent, if any, such Hazardous Materials were (i) located in or about the
Premises, the Building, the Complex or the Property prior to the Rent
Commencement Date and (ii) Tenant does not cause, contribute to or participate
in, as the case may be, the handling, generation, storage, disposal or release
of same. Tenant will participate in periodic fire brigade instruction and drills
at the request of Landlord and will supply, maintain, repair and replace for the
Premises any fire extinguishers or other fire prevention equipment and safety
equipment required by the aforementioned rules, regulations, standards and
recommendations.
14. Building Rules and Regulations. Tenant will comply with the rules and
regulations of the Building (the "Rules and Regulations") as adopted and altered
by Landlord from time to time and will cause all of its agents, employees,
invitees and visitors to do so. The current Rules and Regulations of the
Landlord are attached to this Lease as Exhibit "E" and are incorporated herein
by reference. Landlord shall give Tenant written notice of the Rules and
Regulations as adopted and revised from time to time, and Tenant shall be
obligated to comply with same as of the date of Tenant's receipt of such notice.
15. Entry by Landlord. Tenant agrees to permit Landlord or its agents or
representatives to enter into and upon any part of the Premises at all
reasonable hours (and in emergencies at all times) to inspect the same, to show
the Premises to prospective purchasers, Landlord's mortgagees or ground lessors
(collectively, "Mortgagee"), tenants or insurers, and to clean, maintain or make
repairs, alterations or additions to the Premises, the Building or the Complex.
Except in the case of an emergency, Landlord shall give Tenant verbal notice
prior to any such entry. Landlord shall use reasonable efforts to not materially
interfere with Tenant's use of the Premises.
16. Assignment and Subletting.
(a) Tenant shall not, voluntarily, involuntarily, or by operation of law,
assign, sublease, transfer, mortgage, pledge or encumber this Lease or any
interest therein except with Landlord's prior written consent, but no consent to
any of the foregoing shall relieve Tenant of any liability hereunder. Landlord's
consent to any assignment or sublease shall not be unreasonably withheld. Any
attempted assignment, sublease, transfer or encumbrance of this Lease by Tenant
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in violation of the terms and covenants of this Paragraph shall be void ab
initio. Any consent given by Landlord shall not be considered to be a consent to
any other or further proposed assignment, sublease, transfer or encumbrance. In
the event Tenant or Guarantor, if any, is a corporation, limited liability
company or a partnership, the conveyance, assignment, transfer or alienation of
20% or more of the corporate stock, membership interests or partnership
interests, as the case may be, or the change in management or controlling
interest in Tenant or Guarantor shall be deemed an assignment for the purposes
hereof unless such entity is a Reporting Company under the Securities Exchange
Act of 1934. Tenant shall reimburse Landlord's actual attorneys' fees and
expenses incurred in connection with Tenant's assignment, subletting, transfer,
or encumbrance of this Lease or any interest therein.
(b) If Tenant requests Landlord's consent to an assignment of this Lease
or subletting of all or part of the Premises, Landlord may, at its option,
recapture the Premises or applicable portion thereof from Tenant and terminate
this Lease (in part or in whole, as appropriate) upon 20 days' notice in which
case Landlord shall be permitted to lease the Premises to any third party.
(c) All cash or other consideration, including any excess Rent beyond the
Rent set forth herein, received by Tenant as the proceeds of, or resulting from,
any assignment, sale, or sublease of Tenant's interest in this Lease and/or the
Premises, whether consented to by Landlord or not, shall be paid to Landlord,
notwithstanding the fact that such proceeds exceed the Rent called for
hereunder, unless Landlord agrees to the contrary in writing, and Tenant hereby
assigns all rights it might have or ever acquire in any such proceeds to
Landlord. This covenant and assignment shall benefit Landlord and its successors
in ownership of the Building and /or the Complex and shall bind Tenant and
Tenant's heirs, executors, administrators, personal representatives, successors
and assigns. Any assignee, sublessee or purchaser of Tenant's interest in this
Lease (all such assignees, sublessees or purchasers being hereinafter referred
to as "Successors"), by occupying the Premises and/or assuming Tenant's
obligations hereunder, shall be deemed to have assumed liability to Landlord for
all amounts paid to persons other than Landlord by such Successor in
consideration of any such sale, assignment or subletting, in violation of the
provisions hereof, but Tenant shall remain fully liable to Landlord for all
obligations hereunder.
(d) The interest of Tenant in this Lease and/or the Premises is not
subject to execution, levy and/or sale, and is not otherwise subject to transfer
by Tenant in any manner whatsoever, except as expressly provided and permitted
in this Lease and/or except as may be effectuated by Landlord under this Lease.
17. Construction Liens. The interest of Landlord in and to the Property,
the Building, the Complex, the Premises, and/or any part of either, and the
income therefrom, shall not be subject to liens for improvements made, or caused
to be made, by Tenant. Tenant will not permit any construction liens, mechanic's
liens or other liens to be placed upon the Premises, the Building the Complex or
the Property, and nothing in this Lease shall be deemed or construed in any way
as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any person for the performance of any labor or the
furnishing of any materials to the Premises or any part thereof, nor as giving
Tenant any right, power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give rise to any
construction, mechanic's or other liens against the Premises, the Building, the
Complex or the Property. If any such lien is recorded against or attached to the
Premises, the Building, the Complex or the Property, Tenant shall bond against
or discharge same within 10 days after Tenant's receipt of actual notice that
the same has been so recorded or attached. Should any such lien not be
discharged or bonded off within such 10 day period, then, in addition to any
other right or remedy of Landlord, Landlord may, but shall not be obligated to,
cause the same to be discharged (including the advancement of monies for such
purpose). Any monies advanced or costs incurred by Landlord for any of the
aforesaid purposes shall be paid by Tenant to Landlord on demand as Additional
Rent. Should a Notice of Commencement be filed in the public records for work by
or on behalf of Tenant, the Legal Description shall specifically be limited to
Tenant's leasehold interest in the Premises, and then Tenant shall be
responsible for having a corresponding Notice of Termination timely recorded in
the county which the Property is located upon the completion of such work.
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18. Landlord's Insurance.
(a) Landlord shall, as part of the Operating Expenses, maintain fire and
extended coverage insurance on the Building and the Premises (which may include
vandalism and malicious mischief coverage) and such endorsements as Landlord may
require or is otherwise reasonably consistent with other similarly situated
buildings) in an amount not less than the full replacement value thereof (which
may be exclusive of foundations), or in such amounts as Mortgagee shall require,
with such deductibles as shall be determined by Landlord from time to time.
Landlord reserves the right to self-insure the Building so long as a financial
institution such as an insurance company, bank, savings and loan association, or
pension fund having a net worth of at least $100 million owns an interest in the
Building of 50% or more. All insurance obtained by Landlord in connection with
the Building shall be passed through to the tenants of the Building, including
Tenant, as part of the Operating Expenses, and payments for losses thereunder
shall be made solely to Landlord or Mortgagee as their interests shall appear.
In the event of self-insurance, the premium cost equivalency of such policy or
policies shall be a part of the Operating Expenses.
(b) Landlord shall, as part of the Operating Expenses, maintain a policy
or policies of commercial general liability insurance with respect to the Common
Areas and the activities thereon in such amounts as Landlord or any Mortgagee
may require. In the event of self-insurance (as referenced in Paragraph 18(a)
above), the premium cost equivalency of such policy or policies shall be part of
the Operating Expenses.
(c) Landlord may purchase insurance for windstorm, flood, plate glass,
sign, automobile, sinkhole, business income, rent loss, liquor liability and
such other insurance which Landlord or any Mortgagee may require in their sole
discretion and with such deductibles as Landlord may desire. The costs of all
such insurance shall be part of the Operating Expenses.
(d) Landlord may hereafter raise or lower such coverage in such amounts as
may from time to time be prudent to Landlord within its sole discretion.
19. Tenant's Insurance and Requirements.
(a) Tenant agrees to secure and keep in force from and after the date
Landlord shall deliver possession of the Premises to Tenant (or the earlier date
Tenant enters the Premises for any purpose) and throughout the Lease Term, at
Tenant's own cost and expense:
(i) Commercial general liability insurance with a single combined
limit, including any umbrella or excess commercial policy, with a broad form
commercial general liability endorsement applicable to the Premises and its
appurtenances, the sidewalks, if any, abutting and/or adjoining the Premises,
and the business operated by Tenant and/or any party, in or from the Premises,
on an occurrence basis in an amount of not less than $1,000,000 and $2,000,000
aggregate or such additional amount as may be reasonably required by Landlord
from time to time, which shall include insurance for personal injury, death or
property damage occurring upon, in or about the Premises, including water damage
and sprinkler leakage legal liability, and shall include products and completed
operations coverage with a reasonable deductible consistent with standard
industry practice.
(ii) Special Form property insurance covering all the items included
in Tenant Improvements, Tenant's leasehold improvements, the HVAC equipment
serving the Premises, and all trade fixtures, furniture, decorations, equipment,
inventory, merchandise and personal property from time to time in, on or upon
the Premises, and alterations, additions or changes made by Tenant, in an amount
not less than one 100% percent of their replacement cost from time to time
during the Lease Term without co-insurance, providing protection against perils
79
included within a standard Florida form of fire and extended coverage insurance
policy, together with insurance against sprinkler damage (if sprinklers are
installed), vandalism, theft, and malicious mischief, and shall also include
plate glass coverage for all plate glass along the exterior walls of the
Premises, with a reasonable deductible consistent with standard industry
practice. At Landlord's option, any proceeds from such insurance shall be held
by an escrow agent approved by Landlord for the repair, restoration,
reconstruction or replacement of the property damaged or destroyed unless this
Lease shall cease and terminate as hereinafter provided.
(iii) Workers' Compensation insurance in the amount required by law,
and employer's liability insurance in an amount of not less than $100,000 with a
reasonable deductible consistent with standard industry practice.
(iv) Intentionally waived due to Tenant's contingency relocation
plan for emergency situations. Business income and interruption insurance
respecting Tenant's operations from the Premises sufficient to cover Tenant's
overhead and payroll for at least 12 months.
(v) During any period when Tenant Improvements or any other
construction work is being performed within the Premises or on the Property by
or for Tenant, Tenant or its contractor(s) shall provide builder's risk
insurance equal to the replacement cost of any improvements being constructed,
naming Landlord as a loss payee, and owner's and contractor's protective
liability insurance in an amount of not less than $1,000,000 with a reasonable
deductible consistent with standard industry practice; and each contractor shall
maintain worker's compensation insurance as required by law, and Landlord shall
be provided with certificates evidencing same.
(b) Tenant's Insurance - Special Requirements. All policies of insurance
provided for in Paragraph 19(a) above shall: (i) be issued in form and by an
insurance company approved by Landlord rated A VII or better by the then current
Best's Guide, and qualified to do business in the State of Florida; (ii) name
the following parties (the "Interested Parties") as additional insureds (or as
loss payee, as applicable): Landlord, Landlord's agents and managers, any ground
lessor or Mortgagee, and any other parties in interest from time to time
designated in writing by notice from Landlord to Tenant; (iii) be delivered (or,
at Landlord's option, a certificate thereof acceptable to Landlord) to the
Interested Parties upon or before delivery of possession of the Premises to
Tenant and thereafter within 30 days prior to the expiration of each such
policy, and, as often as any such policy shall expire or terminate, renewal or
additional policies shall be procured and maintained by Tenant in like manner
and to like extent; (iv) shall contain a provision that the insurer will give
the Interested Parties at least 30 days notice in writing in advance of any
cancellation, termination or lapse, or the effective date of any reduction in
the amounts of insurance or any other material change; (v) shall be written as a
primary policy which does not contribute to and is not in excess of coverage
which the Interested Parties may carry, and (vi) shall contain a provision that
the Interested Parties, although added as additional insureds or named as loss
payees, shall nevertheless be entitled to recover under said policies for any
loss occasioned to them, or their servants, agents and employees by reason of
the negligence of Tenant. The limit of any insurance maintained by Tenant shall
not limit the liability of Tenant hereunder. Tenant shall also maintain at its
expense such other insurance as is customarily carried by businesses similar to
Tenant's business, in such amounts and conditions as Landlord may reasonably
require.
(c) Proceeds. All insurance proceeds payable with respect to the Premises, and
the Additional Improvements shall belong to and shall be payable to Landlord,
provided that in the event of any damage or destruction to the Premises and the
Lease is not terminated pursuant to any right hereunder, and Tenant completes
its obligation to repair, redecorate and refixture the Premises in accordance
with Paragraph 22, Tenant shall be entitled to the proceeds of the insurance
carried by Tenant covering the Additional Improvements, but such insurance
proceeds shall be held in trust by or on behalf of Tenant for such purposes in a
manner reasonably acceptable to Landlord. If Tenant shall fail to complete the
repairs, redecoration and refixturing which it is obligated to perform under
Paragraph 22, or if this Lease is terminated prior to completion of such work,
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Tenant shall have no right or claim to such proceeds, and all such proceeds
shall be turned over to Landlord and disposed of as Landlord, in its sole and
absolute discretion, may determine. Upon termination of this Lease by Tenant
pursuant to Paragraph 22, Tenant shall also pay to Landlord any deductible of
any Tenant insurance policy with respect to the Premises and if the proceeds are
insufficient to complete any restoration work, Tenant shall pay Landlord any
deficiency.
20. Indemnity; Limitation of Liability.
(a) Landlord shall not be liable for, and Tenant will indemnify, defend,
and save Landlord harmless of and from, all fines, suits, damages, claims,
demands, losses, and actions (including attorneys' fees) for any injury to
person or damage to or loss of property on or about the Premises, the Building,
Property, and the Complex caused by the negligence or misconduct or breach of
this Lease by Tenant, its employees, subtenants, invitees, licensees, or by any
other person entering the Premises, the Building, the Complex, or the Property
under express or implied invitation of Tenant, or arising out of Tenant's use of
the Premises.
(b) Landlord shall not be responsible for any of its or any other person's
acts or omissions including, without limitation, its negligence, or the acts,
omissions or negligence of any party for whom Landlord could be responsible or
liable including, without limitation, its agents, employees, invitees, lessees,
licensees or independent contractors, that causes any loss or damage to any
property or the death or injury to any person, whether occasioned: (i) by theft,
fire, act of God or public enemy, injunction, riot, strike, insurrection, war,
court order, requisition of other governmental body or authority; (ii) due to
the Premises, the Building, the Complex, or the Property or any part thereof
becoming out of repair; (iii) by the happening of any accident in or about the
Premises, the Building, the Complex or the Property; (iv) due to any act of
neglect of any tenant or occupant of the Building, the Complex, or the Property
or of any other person; or (v) otherwise. This provision shall apply especially
(but not exclusively) to damage caused by water, frost, weather, steam,
sewerage, electricity, gas, sewer gas or odors, or by the bursting or leaking of
pipes or plumbing work, and shall apply equally whether such damage be caused by
act or neglect of Landlord or any of the other tenants, occupants, or
maintenance personnel of the Building, the Complex, or of the Property, or of
any other person. Notwithstanding the foregoing, but subject to ▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ shall be liable for any such loss, damage, death or injury, which is
proximately caused by the Landlord's gross negligence or willful misconduct.
21. Waiver of Subrogation Rights. Except as otherwise provided in
Paragraph 22(b) of this Lease, Landlord and Tenant each waives on behalf of
itself and its insurers (none of which shall ever be assigned any such claim or
be entitled thereto due to subrogation or otherwise) any and all rights of
recovery, claim, action, or cause of action against the other, its agents,
officers, or employees, for any loss or damage that may occur to the Premises,
or any improvements thereto or the Building, the Complex, or the Property of
which the Premises are a part, or any improvements thereto, or any personal
property of such party therein, by reason of fire, the elements, or any other
causes which are, or could or should be insured against under the terms of the
standard fire and extended coverage insurance policies referred to in Paragraphs
18 or 19 hereof, regardless of whether such insurance is actually maintained and
regardless of the cause or origin of the damage involved, including negligence
of the other party hereto, its agents, officers, or employees.
22. Casualty Damage.
(a) If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. If: (i)
the Building or the Complex shall be so damaged that substantial alteration or
reconstruction of the Building, Complex or the Property shall, in Landlord's
sole opinion, be required (whether or not the Premises shall have been damaged
by such casualty); (ii) any Mortgagee's interest in the Building, the Complex or
the Property requires that the insurance proceeds payable as a result of a
casualty be applied to the payment of the mortgage debt; (iii) there is any
material uninsured loss to the Building, the Complex, the Property or any part
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thereof; Landlord may, at its option, terminate this Lease by notifying Tenant
in writing of such termination within 90 days after the date of such casualty;
and may, at its option, not repair, reconstruct, or restore the Premises or the
Building, whether or not the Premises have suffered from the casualty.
If the Landlord estimates that it can repair the Shell Improvements (as
hereinafter defined) within 360 days from receipt of all insurance proceeds, the
Lease will continue unless otherwise terminated by Landlord as provided above.
If Landlord estimates that it cannot make the necessary repairs in 360 days from
receipt of all insurance proceeds, it will advise Tenant of its estimate of how
long the repairs will take and Tenant will have 30 days from Landlord's estimate
to elect whether to terminate the Lease or not. If Tenant fails to terminate the
Lease at that juncture, it cannot thereafter terminate the Lease in connection
with the casualty, provided that Landlord is proceeding in good faith to repair,
and provided that the repairs do not take longer than 60 days more than
Landlord's estimate. Landlord's estimate of the length of time necessary to
complete repairs shall be given to Tenant the later of: (i) 30 days after a
written request from Tenant is received by Landlord; and (ii) 60 days after the
occurrence of a casualty. However, if Landlord is prevented by force majeure
("Delays"), from completing the restoration within said applicable period, and
if Landlord provides Tenant with written notice of such cause for the Delays
within 15 days of the occurrence thereof, said notice to contain the reason for
the Delays and a good faith estimate of the period of the delay caused thereby,
then Landlord shall have an additional period beyond said applicable period,
equal to the Delays in which to restore the damaged areas of the Building; and
Tenant may not elect to terminate this Lease until said additional period
required for completion has expired with the Building not having been
substantially restored. Landlord's obligation to restore shall not require
Landlord to spend for such work an amount in excess of the insurance proceeds
actually received by Landlord as a result of the casualty and Landlord's
restoration obligations shall be limited to the Building shell and the Shell
Improvements located in the Premises.
When the Landlord's repairs have been substantially completed by Landlord,
Tenant shall promptly complete the restoration of all improvements to the
Premises in excess of the Shell Improvements (including, without limitation, all
Tenant Improvements unless Landlord elects to restore any such Tenant
Improvements, which restoration shall in all events be at the expense of Tenant)
which are necessary to permit Tenant's reoccupancy of the Premises and to
restore the Premises to the condition immediately before such casualty or
damage, in accordance with plans and specifications approved by Landlord and
Tenant pursuant to the provisions applicable to Tenant Improvements. Landlord
shall have the right, but not the obligation, to bid such work on behalf of
Tenant and shall become Tenant's contractor in the event: (i) its bid is the low
bid; or (ii) Landlord elects to match the low bid received by Tenant from any
other qualified contractor. In any event Landlord shall have the right to
approve any contractor Tenant selects to perform such work. Tenant shall also be
responsible for the restoration of Tenant's furniture, equipment, and fixtures.
All cost and expense of reconstructing the Premises to a level in excess of
Shell Improvements shall be borne by Tenant.
(b) Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such
casualty damage or the repair thereof; except that, subject to the provisions of
the next sentence, Landlord shall allow Tenant a fair diminution of Rent until
the Shell Improvements are substantially completed by Landlord and a reasonable
period of time has elapsed for Tenant to restore the Tenant Improvements, but
such time period not to exceed 60 days from the date Landlord substantially
completes the Shell Improvements. If the Premises or any other portion of the
Building, Complex or the Property be damaged by fire or other casualty resulting
from the fault or negligence of Tenant or any of Tenant's agents, contractors,
employees, or invitees, the Rent hereunder shall not be diminished during the
repair of such damage, and Tenant shall be liable to Landlord for the cost of
the repair and restoration of the Premises, the Building, the Complex and/or the
Property caused thereby to the extent such cost and expense is not covered by
insurance proceeds. "Shell Improvements" shall mean the Building as initially
constructed, but shall not include any of the Tenant Improvements or other
improvements made to the Premises or any other premises leased by tenants of
Landlord.
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23. Condemnation. If the whole or substantially the whole of the Complex,
Building or the Premises should be taken for any public or quasi-public use, by
right of eminent domain or otherwise or should be sold in lieu of condemnation,
then this Lease shall terminate as of the date when physical possession of the
Building or the Premises is taken by the condemning authority. If less than the
whole or substantially the whole of the Property, Complex, Building or Premises
is thus taken or sold, Landlord (whether or not the Premises are affected
thereby) may, at its option, terminate this Lease by giving written notice
thereof to Tenant; in which event this Lease shall terminate as of the date when
physical possession of such portion of the Property, Complex, Building or
Premises is taken by the condemning authority. If this Lease is not so
terminated upon any such taking or sale, and if a portion of the Building or the
Premises is taken, the Base Rent payable hereunder shall be diminished by an
equitable amount, and Landlord shall, to the extent Landlord deems feasible,
restore the Building and, if affected, the Premises to substantially their
former condition, but such work shall not exceed the scope of the work done by
Landlord in originally constructing the Shell Improvements and the Landlord's
portion of the Tenant Improvements in the Premises, nor shall Landlord in any
event be required to spend for such work an amount in excess of the amount
received by Landlord as compensation for such taking. All amounts awarded upon a
taking of any part or all of the Property, Building, Complex or Premises shall
belong to Landlord, and Tenant shall not be entitled to and expressly waives all
claims to any such compensation.
24. Events of Default; Remedies.
(a) The following events shall be deemed to be, but are not exclusively,
"Events of Default" by Tenant under this Lease: (i) Tenant shall fail to pay any
Rent or other sum of money when due under this Lease; (ii) Tenant shall fail to
comply with any provision of this Lease or any other agreement between Landlord
and Tenant (including, without limitation, the Work Letter) not requiring the
payment of money (all of which terms, provisions, and covenants shall be deemed
material) and such failure shall continue for a period of 15 days after written
notice of such default is delivered to Tenant, or if such failure could not
reasonably be cured within such period, Tenant shall have failed to commence
such cure within such period or thereafter failed to prosecute with diligence
such cure to completion, but in not event later than 60 days after Landlord's
initial notice to Tenant of such failure; (iii) the leasehold hereunder demised
shall be taken by execution or other process of law in any action against
Tenant; (iv) Tenant notifies Landlord, at any time prior to the Rent
Commencement Date, that Tenant does not intend to take occupancy of the Premises
upon the Rent Commencement Date, or Tenant shall fail to promptly move into and
take possession of the Premises when the Premises are ready for occupancy or
shall cease to do business in or abandon any substantial portion of the
Premises; (v) Tenant shall become insolvent or unable to pay its debts as they
become due, or Tenant notifies Landlord that it anticipates either condition;
(vi) Tenant or any guarantor takes any action to, or notifies Landlord that
Tenant or any guarantor intends to file a petition under any section or chapter
of the Bankruptcy Code, as amended from time to time, or under any similar law
or statute of the United States or any State thereof, or a petition shall be
filed against Tenant or any guarantor under any such statute, or Tenant or any
guarantor or any creditor of Tenant notifies Landlord that it knows such a
petition will be filed, or Tenant or any guarantor notifies Landlord that it
expects such a petition to be filed; (vii) a receiver or trustee shall be
appointed for Tenant's leasehold interest in the Premises or for all or a
substantial part of the assets of Tenant or any guarantor; (viii) Tenant shall
make any assignment of this Lease or sublease of all or any portion of the
Premises without Landlord's prior consent in violation of the terms of this
Lease; (ix) Tenant shall remove or permit the removal of any furniture, fixtures
or equipment from the Premises other than in the ordinary course of its
business; (x) if Tenant fails more than twice within any 12 month period to
observe or perform any covenant, condition, or agreement of this Lease
(including without limitation the payment of Rent), regardless of whether such
defaults shall have been cured by Tenant, the third default shall at the
election of Landlord, in its sole and absolute discretion, be deemed a
noncurable Event of Default; (xi) Tenant or any agent of Tenant falsifies any
report or misrepresents other information required to be furnished to Landlord
pursuant to this Lease; (xii) the death of Tenant or any guarantor of Tenant's
obligations; or the commencement of steps or proceedings toward the dissolution,
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winding up, or other termination of the existence of the Tenant or of any
guarantor of the Tenant's obligations, or toward the liquidation of either of
their respective assets; or (xiii) the occurrence of any other event described
as a default elsewhere in the Lease or any amendment thereto, regardless of
whether such event is defined as one of the Events of Default in this Paragraph.
(b) Upon the occurrence of any of the Events of Default enumerated above,
or any other event of default by Tenant under this Lease Landlord shall have the
option to pursue any one or more of the following remedies without any notice
(except for that expressly required by Subparagraph 24(a)) or demand for
possession whatsoever (and without limiting the generality of the foregoing,
Tenant hereby specifically waives notice and demand for payment of Rent or other
obligations due): (i) terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord; (ii) terminate Tenant's right to
occupy the Premises and re-enter and take possession of the Premises (without
terminating this Lease); (iii) Landlord shall have the right, with or without
terminating or canceling this Lease or Tenant's right to possession of the
Premises, to declare all amounts and Rents due under this Lease for the
remainder of the Lease Term (or any extension or renewal thereof) to be
immediately due and payable, and thereupon all rents and other charges due
hereunder to the end of the Lease Term (or any extension or renewal term, if
applicable) shall be accelerated, but such accelerated amount shall be
discounted to the then present value at the discount rate of the Federal Reserve
Bank of the district within which the Premises is located; (iv) Landlord may
elect to enter and repossess the Premises and relet all or part of the Premises
for Tenant's account, for a term or terms which may, at Landlord's option, be
equal to, less than, or greater than the period which would otherwise have
constituted the balance of the Lease Term, holding Tenant liable in damages for
all expenses incurred in any such reletting including, without limitation, any
Tenant improvement allowance, expenditures in connection with renovation,
maintenance, repairs and/or alterations for the new tenant, broker's
commissions, legal fees, etc. and for any difference between the amount of rent
received from such reletting and the Rent due and payable under the terms of
this Lease; (v) enter upon the Premises and do whatever Tenant is obligated to
do under the terms of this Lease, and Tenant agrees to reimburse Landlord on
demand for any expense which Landlord may incur in effecting compliance with
Tenant's obligations under this Lease, and Tenant further agrees that Landlord
shall not be liable for any damages resulting to the Tenant from such action;
and (vi) exercise all other remedies available to Landlord at law or in equity,
including, without limitation, injunctive relief of all varieties.
In the event Landlord elects to re-enter or take possession of the
Premises after Tenant's default, Tenant hereby waives notice of such re-entry or
repossession. Landlord may make such alterations and/or decorations in the
Premises as Landlord, in Landlord's sole discretion, considers advisable and
necessary for the purpose of reletting, securing or maintaining the Premises.
Landlord, in addition to all other rights and remedies it may have, shall have
the right to keep in place and use all of the inventory, furniture, fixtures,
equipment and other personal property in the Premises and/or remove any or all
of Tenant's property from the Premises which may then be sold, disposed of, or
stored at the cost of and for the account of Tenant. Landlord shall not be
responsible for the care or safekeeping of any such property and Tenant waives
any claim against Landlord relating thereto. No re-entry or taking possession of
the Premises by Landlord shall be construed as an election on Landlord's part to
terminate this Lease unless written notice of such intention is given to Tenant.
Notwithstanding any reletting without termination of this Lease, Landlord may at
any time thereafter elect to terminate this Lease. In any event, Landlord shall
not be liable for, nor shall Tenant's obligations hereunder be diminished by
reason of, any failure by Landlord to relet the Premises or any failure by
Landlord to collect any sums due upon such reletting, and the refusal, failure
or inability of Landlord to relet the Premises or any part or parts thereof
shall not release or affect Tenant's liability for damages, the Tenant hereby
specifically waiving any duty on the part of Landlord to mitigate damages that
may otherwise be imposed by law. Landlord may, without prejudice to any other
remedy which it may have for possession or arrearages in rent, expel or remove
Tenant and any other person who may be occupying said Premises or any part
thereof. In addition, the provisions of Paragraph 26 hereof shall apply with
respect to the period from and after the giving of notice of such termination to
Tenant. All of Landlord's remedies shall be cumulative and not exclusive.
Forbearance by Landlord to enforce one or more of the remedies herein provided
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upon an event of default shall not be deemed or construed to constitute a waiver
of such default. Without limiting the generality of the foregoing, the
maintenance of any action or proceeding to recover possession of the Premises or
any Rent or any other monies that may be due or become due from Tenant to
Landlord shall not preclude Landlord from thereafter instituting and maintaining
subsequent actions or proceedings for the recovery of possession of the Premises
or of any other Rent or monies that may be due or become due from Tenant. Any
entry or re-entry into the Premises by Landlord shall not be deemed to absolve
or discharge Tenant from liability under this Lease.
(c) In addition to any other rights and remedies available to Landlord
under this Lease and/or at law and/or in equity, Tenant shall reimburse Landlord
upon demand the unamortized portion of: (i) any Tenant Improvement Allowance;
(ii) brokerage fees paid by Landlord in connection with this Lease; (iii) costs
expended by Landlord in connection with any Tenant Improvements made by
Landlord; and (iv) all other costs, expenses and other sums incurred by Landlord
in connection with preparing and/or improving the Premises for Tenant's
occupancy under this Lease.
(d) Tenant hereby expressly waives any and all rights of redemption and
rights to relief from forfeiture granted by or under any present or future laws,
if Tenant shall be evicted or dispossessed from the Premises for any cause, or
Landlord reenters the Premises following the occurrence of any Event of Default
hereunder, or this Lease is terminated before the expiration date thereof
originally fixed herein. For the enforcement of Landlord's remedies, Landlord
may have recourse to any applicable legal or equitable process for the recovery
of possession of the Premises and the right to seek an injunction or a
declaratory judgment as if no other remedies were provided herein for such
breach. Except as otherwise specifically required by this Lease, Tenant waives
any and all statutory and legal notice requirements.
25. Peaceful Enjoyment.
(a) Tenant shall, and may peacefully have, hold, and enjoy the Premises,
subject to the other terms hereof including, without limitation, Paragraph 27
hereof, provided that Tenant timely pays the Rent and other sums herein recited
to be paid by Tenant, and timely performs all of Tenant's covenants and
agreements contained in this Lease. This covenant and all other covenants of
Landlord shall be binding upon Landlord and its successors only with respect to
breaches occurring during its or their respective periods of ownership of
Landlord's interest hereunder. Landlord shall be entitled to cause Tenant to
relocate from the Premises to a comparable space (a "Relocation Space") within
the Complex at any time upon 30 days prior written notice to Tenant. The costs
of the physical relocation of Tenant (including its reasonable moving expenses)
shall be at the expense of Landlord. Such a relocation shall not terminate or
otherwise affect or modify this Lease except that from and after the date of
such relocation, the "Premises" shall refer to the relocation space into which
Tenant has been moved, rather than the original Premises as herein defined.
Landlord shall have the right in its sole discretion, at any time and from time
to time, without notice to Tenant, to undertake (i) renovation or (ii) further
development of the Property by way of expansion of the existing Building, the
Parking Facility, or any other part of the Complex; provided that such
renovation or development by Landlord shall not unreasonably interfere with
Tenant's use and occupancy of the Premises or access to the Building and the
Parking Facility.
(b) Notwithstanding anything contained in this Lease to the contrary,
should Landlord determine that an emergency exists that threatens the Complex,
Building or any of the tenants or persons therein, or any of their property
(e.g. an impending hurricane, a bomb threat to the Complex or Building),
including but not limited to emergencies caused by persons or natural conditions
outside of Landlord's control, Landlord shall have the right to close the
Complex and/or the Building and require all tenants, including Tenant, to
evacuate the Building and/or Complex until such emergency ceases to exist. Such
closure shall not affect Base Rent, any other Rent or the Lease Term.
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26. Surrender; Holding Over. This Lease shall terminate at 11:59 p.m. on
the day of the expiration of the Lease Term without the necessity of notice from
either Landlord or Tenant. Upon the expiration or termination of this Lease (or
such other time as Tenant may vacate the Premises, notwithstanding that so
vacating may constitute a default), Tenant shall peacefully surrender, quit and
vacate the Premises and deliver up same to Landlord in accordance with the terms
of this Lease and in good order, condition and repair, as the same shall be on
the date Tenant opens for business in the Premises, or the date any subsequent
improvements to the Premises are completed, ordinary wear and tear and damage by
fire or other insured casualty for which Landlord has received the applicable
proceeds excepted, broom clean, with all trash removed. Tenant shall also
deliver to Landlord all keys to the Premises and shall inform Landlord of all
combinations and codes on any locks, alarms, safes and vaults in the Premises.
In the event of holding over by Tenant after expiration or other termination of
this Lease, or in the event Tenant continues to occupy the Premises after the
termination of Tenant's right of possession pursuant to Paragraph 24(b) hereof,
Tenant shall, throughout the entire holdover period, pay Rent equal to twice the
Base Rent and Additional Rent which would have been applicable had the Lease
Term continued through the period of such holding over by Tenant. No holding
over by Tenant after the expiration of the Lease Term shall be construed to
extend the term of this Lease, and Tenant shall be deemed to be a
tenant-at-sufferance during such holdover period. If, as a direct result of
Tenant's holding over in the Premises after expiration or other termination of
this Lease, Landlord suffers damages or incurs additional obligations to any
third party who has leased part or all of the Premises, Tenant shall indemnify
Landlord to the extent of such damages or additional obligations, including
without limitation Landlord's attorneys' fees.
27. Subordination to Mortgage; Attornment .
(a) Tenant accepts this Lease subject and subordinate to any mortgage,
deed of trust, ground lease, or other lien presently existing or hereafter
arising upon the Premises, or upon the Building, the Complex or the Property and
to any renewals, refinancing and extensions thereof or of any ground leases
(collectively, a "Mortgage"), and Tenant agrees that any Mortgagee shall have
the right at any time to subordinate such Mortgage to this Lease on such terms
and subject to such conditions as Mortgagee may deem appropriate in its
discretion. The terms of this Lease are subject to approval by Mortgagee, and
such approval is a condition precedent to Landlord's obligations under this
Lease. Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any Mortgage now existing or hereafter placed upon the
Premises, or the Building, the Complex or the Property, and Tenant agrees upon
demand to execute such further instruments (collectively, "Subordination
Instrument") subordinating this Lease or attorning to the holder of any such
Mortgage as Landlord may request. Tenant's failure to execute the Subordination
Instrument promptly as requested shall not be grounds for Tenant to terminate
this Lease or afford Tenant any right or remedy against Landlord. If Tenant
fails to execute the Subordination Instrument promptly upon request, Tenant
hereby irrevocably constitutes Landlord as its attorney-in-fact to execute the
Subordination Instrument in Tenant's name, place, and stead, it being agreed
that such power is one coupled with an interest. Tenant shall be responsible for
paying any legal fees or charges required by Mortgagee to execute and deliver
the Subordination Instrument and any legal fees and charges incurred by Landlord
in connection with the Subordination Instrument.
(b) If a Mortgagee, or any other person claiming under a Mortgage,
succeeds to Landlord's interest in this Lease whether by purchase, foreclosure,
deed in lieu of foreclosure, power of sale, termination of lease or otherwise,
Tenant will recognize and attorn to said Mortgagee or other person as its
Landlord under this Lease. In the event of a termination of any Mortgage,
foreclosure or deed in lieu (as applicable), any new owner shall not: (i) be
liable for any act or omission of Landlord or with respect to events occurring
prior to acquisition of ownership to the extent applicable to the period prior
to the date such new owner succeeds to Landlord's interest under this Lease;
(ii) be subject to any offsets or defenses which Tenant might have against
Landlord to the extent applicable to the period prior to the date such new owner
succeeds to Landlord's interest under this Lease; or (iii) be bound by
prepayment of more than one month's Rent.
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28. Estoppel Certificates. Tenant agrees that it will from time to time
within 5 days of each request by Landlord, execute and deliver to such persons
as Landlord shall request, a statement (each, a "Tenant Estoppel Certificate")
in recordable form certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as so modified), stating the dates to which Rent and other charges
payable under this Lease have been paid, stating that Landlord is not in default
hereunder (or if Tenant alleges a default, stating the nature of such alleged
default), and further stating such other matters as Landlord shall reasonably
require. Landlord shall provide the form of each such statement. Any Tenant
Estoppel Certificate may be relied upon by Landlord or any prospective
purchaser, Mortgagee, or prospective Mortgagee of the Complex or any portion
thereof. If Landlord submits an estoppel certificate to Tenant and Tenant fails
to return same duly executed and acknowledged, or fails to object to its
contents, within said 5 day period, the matters set forth therein shall
conclusively be deemed to be correct.
29. Parking.
(a) During the Lease Term, Tenant shall have the non-exclusive use in
common with Landlord, other Building tenants, other Complex tenants and/or other
parties and their respective guests and invitees, of the driveways of and
pedestrian access to the Parking Facility and the Property, subject to the Rules
and Regulations promulgated by Landlord from time to time. During the Lease
Term, Landlord shall at all times provide for: (i) the use of Tenant and its
employees (including part-time employees), officers and directors the Parking
Spaces in the Parking Facility; and (ii) for Tenant's guests and invitees (but
not for Tenant's employees, officers or directors) non-exclusive use of the
Parking Facility at the then current charges and fees, it being the intent of
the parties that Tenant's employees, officers and directors may occupy no more
than the number of unassigned Parking Spaces set forth in Paragraph 1(a) of this
Lease. The Parking Spaces shall be for no additional charge to Tenant Landlord
shall also have the right to establish or modify the methods used to control
parking in the Parking Facility, including, without limitation, the installation
of certain control devices or the hiring of parking attendants or a managing
agent or the installation of a valet parking system.
(b) Landlord shall have no liability whatsoever for any property damage or
personal injury which might occur as a result of, or in connection with, the use
of the Parking Spaces or the Parking Facility by Tenant, its employees, agents,
invitees, and licensees; and Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any and all costs, claims, expenses, or causes of
action which Landlord may incur in connection with or arising out of Tenant's
use of the Parking Spaces and the Parking Facility unless caused by the gross
negligence or willful misconduct of Landlord.
30. Attorneys' Fees. If any action or proceeding is commenced in which
Landlord intervenes or is made a party by reason of being the Landlord under
this Lease, Tenant shall reimburse Landlord for Landlord's costs and expenses
incurred as a result thereof, including without limitation, reasonable
attorneys' and paralegals' fees, provided that in the event of any litigation
between the parties under this Lease, the prevailing party shall be entitled to
receive from the other party full reimbursement of such prevailing party's
reasonable attorneys' and paralegals' fees and costs incurred therewith, whether
such fees or costs are incurred before, during, or after any trial or
administrative proceeding or on appeal or in bankruptcy.
31. No Implied Waiver. The failure of Landlord to insist at any time upon
the strict performance of any covenant or agreement contained herein or to
exercise any option, right, power, or remedy contained in this Lease shall not
be construed as a waiver or a relinquishment thereof for the future. No payment
by Tenant or receipt by Landlord of a lesser amount than the monthly installment
of Rent due under this Lease shall be deemed to be other than on account of the
earliest Rent due hereunder, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
in this Lease provided.
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32. Landlord's Liability. The term "Landlord," as used in this Lease,
shall mean only the owner or owners, at the time in question, of the fee title
to the Building. In the event of any transfer of such title or interest,
Landlord as named in this Lease (and in the case of any subsequent transfers,
then the grantor) shall be relieved from and after the date of such transfer of
all liability in respect of Landlord's obligations thereafter to be performed,
provided that any funds in the hands of Landlord or the then grantor at the time
of such transfer, in which Tenant has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Landlord
shall, subject to the above, be binding on Landlord's successors and assigns,
only during their respective periods of ownership. The obligations of Landlord
under this Lease do not constitute personal obligations of Landlord or the
individual partners, shareholders, members, managers, directors, officers, and
property managers, and Tenant shall look solely to Landlord's then existing
interest in the Building, and to no other assets of Landlord, for satisfaction
of any liability in respect of this Lease, and will not seek recourse against
the individual partners, shareholders, members, managers, directors, officers,
property managers, or any of their personal assets for such satisfaction. No
other properties or assets of Landlord shall be subject to levy, execution, or
other enforcement procedures for the satisfaction of any judgment (or other
judicial process) or for the satisfaction of any other remedy of Tenant arising
out of or in connection with this Lease, the relationship of Landlord and
Tenant, or Tenant's use of the Premises. Anything to the contrary contained in
this Lease notwithstanding, Landlord shall under no circumstances be liable for
injury to Tenant's business or for any loss of income, incidental or
consequential damages, or profit therefrom or for punitive damages, all of which
is expressly waived by Tenant.
33. Security Deposit. Intentionally deleted.
34. Notice. Unless otherwise provided in this Lease, all notices and
requests required or permitted under this Lease to Landlord or Tenant shall be
in writing and shall be addressed to the addresses indicated in this Lease or to
any other address that Landlord or Tenant may designate in a notice to the other
party given at least 15 days in advance. All notices shall be deemed to be
properly served if delivered to the appropriate address by registered or
certified mail (with postage prepaid and return receipt requested), courier,
express delivery service (such as FEDEX, D.H.L. or similar express services), or
by facsimile transmission (provided that there is independent verification of
delivery). Anything contained herein to the contrary notwithstanding, no notice
of default, termination or election of any right under this Lease by Tenant
(collectively "Material Notices") shall be deemed delivered to, or received by,
the receiving party if sent by the sending party only by facsimile. Such
Material Notices, if sent by facsimile, must also be sent by any other notice
method described in this Paragraph and shall only be deemed received by Landlord
pursuant to the provisions applicable to such applicable non-facsimile notice
method so utilized. The date of service of a notice served shall be the date of
actual receipt or refusal of delivery. If any Mortgagee shall notify Tenant that
it is the holder of a Mortgage affecting the Premises, no notice of default
thereafter sent by Tenant to Landlord shall be effective unless and until a copy
of the same shall also be sent to such Mortgagee in the manner prescribed in
this Paragraph and to such address as such Mortgagee shall designate. Until
further notice: (i) the address for Tenant shall be the Name and Address of
Tenant for Notices as set forth in Paragraph 1(a); and (ii) the address for
Landlord shall be as follows:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
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with a simultaneous copy of Material Notices only to:
Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP
2500 First Union Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Once Tenant has taken occupancy of the Premises, any notice from Landlord
to Tenant shall be effective if delivered to the Premises address in the manner
provided in this Paragraph. Although the parties may communicate from time to
time by email, email correspondence shall not be deemed to be effective notice
under this Lease. Notices may be given on behalf of any party by such party's
legal counsel. In the event of any litigation under this Lease, the foregoing
notice provisions shall in no way prohibit notices from being given as provided
in the rules of civil procedure of the State of Florida, as the same may be
amended from time to time and any notice so given in any such litigation shall
constitute notice herein.
35. Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be otherwise valid and enforced to the
fullest extent permitted by law.
36. Recordation. Tenant agrees not to record this Lease or any memorandum
hereof. At Landlord's request, Tenant agrees to promptly execute a memorandum of
this Lease in recordable form, and Landlord may, at its option, record such
memorandum in the Public Records of the County in which the Property is located.
37. Governing Law. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Florida. Landlord and Tenant agree to submit to the
personal jurisdiction of and that the venue for any proceeding under or relating
to this Lease shall be in any court serving the county where the Property is
located.
38. Force Majeure. Whenever a period of time is herein prescribed for the
taking of any action by either party, neither Landlord nor Tenant shall be
liable or responsible for, and there shall be excluded from the computation of
such period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations or restrictions, or any
other cause whatsoever beyond the control of Landlord or Tenant; provided,
however, no permitted delay by Tenant may, in any event, exceed 30 days and
provided further, that the foregoing shall not excuse Tenant from the prompt
payment of any Rent or delay the date on which Tenant's obligation to commence
to pay Rent shall begin.
39. Time of Performance. Except as expressly otherwise herein provided,
with respect to all required acts of Tenant, time is of the essence of this
Lease.
40. Transfers by Landlord. Landlord shall have the right to transfer and
assign, in whole or in part, all its rights and obligations hereunder and in the
Complex and the Property referred to herein, and in such event and upon such
transfer, Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to such successor in interest of Landlord for the
performance of such obligations.
41. Brokers. Landlord and Tenant each represent and warrant one to the
other that except as may be hereinafter set forth, neither of them has
contracted with any broker in connection with the negotiations of the terms of
this Lease or the execution thereof. Landlord and Tenant hereby agree to
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indemnify and to hold each other harmless against any loss, expense or liability
with respect to any claims for commissions, finder's fees or brokerage fees
arising from or out of any breach of the foregoing representation and warranty.
Landlord has advised Tenant that Landlord has contracted with as its broker the
Landlord's Broker, which entity may be related to Landlord, and Landlord shall
be responsible for any commission due Landlord's Broker in connection with this
transaction pursuant to a separate written agreement. If Tenant's Broker has
been defined in Paragraph 1(a) of this Lease, then Tenant has advised Landlord
that Tenant has contracted with Tenant's Broker as its broker and Landlord shall
be responsible for the Commission for Tenant's Broker subject to the existence
of a separate written agreement between Tenant's Broker and Landlord.
42. Effect of Delivery of This Lease. Landlord has delivered a copy of
this Lease to Tenant for Tenant's review only, and the delivery hereof does not
constitute an offer to Tenant or option to lease. This Lease shall not be
effective until a copy executed by both Landlord and Tenant is delivered to and
accepted by Landlord.
43. Exhibits. All of the Exhibits are incorporated herein and made a part
of this Lease for all purposes.
44. Captions; Construction. The Paragraph captions used herein are for
convenience and reference only and in no way add to or detract from the
interpretation of the provisions of this Lease. Landlord, Tenant and their
separate advisors believe and agree that this Lease is the product of their
joint efforts, that it expresses their agreement, and that this Lease shall be
construed without regard to any presumption or other rule permitting
construction against the party causing this Lease to be drafted and shall not be
construed more strictly in favor of or against either of the parties hereto
merely because of their efforts in its preparation, but this Lease shall be
interpreted in accordance with the general tenor of the language in an effort to
reach the intended result.
45. Prior Agreements and Amendments. This Lease contains the sole and
entire agreement between the parties hereto and supersedes all previous written
and oral negotiations and agreements between the parties with respect to the
subject matter of this Lease. All prior agreements, understandings,
representations and/or promises made or entered into by the parties hereto are
superseded by and replaced with this Lease, so that this Lease is the sole
agreement between the parties. The provisions of this Lease may not be modified
or amended, except by an instrument in writing and signed by both parties
hereto.
46. Binding Effect; Usage . This Lease shall be binding upon and inure to
the benefit of Landlord, its successors and assigns, and Tenant, its successors
and, to the extent assignment is permitted under the provisions hereof, Tenant's
assigns. The word "Tenant" shall be deemed and taken to mean each and every
person or party mentioned as a Tenant herein, be the same one or more; and if
there shall be more than one Tenant, any notice required or permitted by the
terms of this Lease may be given by or to any one thereof, and shall have the
same force and effect as if given or to all thereof. If more than one party has
executed this Lease as "Tenant," the liability of each party hereunder is joint
and several. The use of the neuter singular pronoun to refer to Landlord or
Tenant shall be deemed a proper reference even though Landlord or Tenant may be
an individual, a partnership, a limited liability company, a firm, a
corporation, or a group of 2 or more individuals or corporations. The necessary
grammatical changes required to make the provisions of this Lease apply in the
plural sense where there is more than one Landlord or Tenant and to either
corporations, associations, partnerships, or individuals, males or females,
shall in all instances be assumed as though in each case fully expressed.
47. Statutory Notice Requirement. Tenant hereby acknowledges receipt of
the following notice as required by Chapter 88-285, Laws of Florida:
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RADON GAS: Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
48. Waiver of Trial by Jury. IT IS MUTUALLY AGREED BY AND BETWEEN LANDLORD
AND TENANT THAT THE RESPECTIVE PARTIES HERETO SHALL AND THEY DO HEREBY WAIVE
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY
MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP
OF LANDLORD AND TENANT, AND TENANT'S USE OR OCCUPANCY OF THE PREMISES, WHETHER
SUCH CLAIM IS IN CONTRACT, TORT OR OTHERWISE. TENANT FURTHER AGREES THAT IT
SHALL NOT INTERPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS IN A SUMMARY PROCEEDING.
49. Financial Statements. Tenant shall furnish Landlord, within 5 business
days after Landlord's request therefor, an updated, current financial statement
of Tenant and any guarantors of this Lease. Unless requested by any Mortgagee,
other current or proposed lender, investor or purchaser of Landlord or the
Building, such financial statement(s) shall not be required to be furnished more
than twice each calendar year.
50. Representations; Authority.
(a) Tenant represents and warrants that: (i) there are no proceedings
pending or, to the knowledge of Tenant, threatened before any court or
administrative agency that would materially adversely affect the ability of
Tenant to enter into this Lease or the validity or enforceability of this Lease;
(ii) there is no provision of any existing mortgage, indenture, contract or
agreement binding on Tenant which would conflict with or in any way prevent the
execution, delivery or performance of the terms of this Lease; (iii) if Tenant
is a corporation, partnership (general or limited), limited liability company,
or other entity, then the person executing this Lease on behalf of Tenant has
been duly authorized to execute this Lease on behalf of Tenant by the
appropriate officers, directors, shareholders, partners (general or limited)
members, managers, principals or other persons or entities; (iv) Tenant is in
good standing, qualified to do business in the State of Florida; and (v) Tenant
has full right, power and lawful authority to execute, deliver and perform its
obligations under this Lease, in the manner and upon the terms contained herein,
and to grant the estate herein demised, with no other person needing to join in
the execution hereof in order for this Lease to be binding on Tenant.
(b) Unless otherwise specifically provided for in this Lease, Landlord
represents to Tenant that to Landlord's actual knowledge and belief Landlord has
full right, power and lawful authority to execute, deliver and perform its
obligations under this Lease, in the manner and upon the terms contained herein,
and to grant the estate herein demised, with no other person needing to join in
the execution hereof in order for this Lease to be binding on Landlord.
51. Tenant's Acceptance Letter. Tenant agrees to execute and deliver to
Landlord a Tenant Acceptance Letter in the form attached hereto as Exhibit "G"
within 5 days of a request by Landlord.
52. Bankruptcy. Landlord and Tenant understand that, notwithstanding
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the Bankruptcy Code may have certain rights to assume or assign
this Lease. Landlord and Tenant further understand that, in any event, Landlord
is entitled under the Bankruptcy Code to adequate assurances of future
performance of the provisions of this Lease. The parties agree that, with
respect to any such assumption or assignment, the term "adequate assurance"
shall include at least the following:
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(a) In order to assure Landlord that the proposed assignees will have the
resources with which to pay all Base Rent and any Additional Rent payable
pursuant to the provisions of this Lease, any proposed assignee must have, as
demonstrated to Landlord's satisfaction, a net worth (as defined in accordance
with generally accepted accounting principles consistently applied) of not less
than the net worth of Tenant or any guarantor (whichever is greater) on the date
this Lease became effective, increased by 7%, compounded annually, for each year
from the Rent Commencement Date through the date of the proposed assignment. It
is understood and agreed that the financial condition and resources of Tenant
were a material inducement to Landlord in entering into this Lease.
(b) Any proposed assignee must have been engaged in the conduct of
business for the 5 years prior to any such proposed assignment, which business
does not violate the Permitted Uses, and such proposed assignee shall continue
to engage in the Permitted Use and will not cause Landlord to be in violation or
breach of any provision in any other lease, financing agreement, operating
agreement or other agreement relating to the Complex. It is understood and
agreed that Landlord's asset will be substantially impaired if the trustee in
bankruptcy or any assignee of this Lease makes any use of the Premises other
than the Permitted Use.
(c) Any proposed assignee of this Lease must assume and agree to be
personally bound by the provisions of this Lease.
53. No Partnership. Nothing contained herein, nor any actions of the
parties hereto shall be deemed or construed to create the relationship of
principal and agent, partnership, joint venture, or any relationship between
Landlord and Tenant other than that of landlord and tenant, it being understood
and agreed that neither any other provision contained in this Lease nor any acts
of Landlord or Tenant shall be deemed to create any relationship between the
Landlord and Tenant other than that of landlord and tenant nor cause either
Landlord or Tenant to be responsible in any way for the acts, debts or
obligations of the other.
54. Third Party Rights. The parties hereto do not intend to grant
directly, indirectly or by implication or by any other means any third party
beneficiary rights to any persons or entities.
55. Days. Unless otherwise specifically indicated to the contrary, the
word "days" as used in this Lease shall mean and refer to calendar days.
56. Reservations. Landlord reserves to itself the right, from time to
time, to grant, without the consent or joinder of Tenant, such easements, rights
and dedications that Landlord deems necessary and to cause the recordation of
easements, dedications, parcel maps/plats and restrictions so long as same do
not adversely and materially: (a) interfere with the use of the Premises by
Tenant; (b) increase Tenant's obligations hereunder; or (c) decrease Tenant's
rights hereunder. Tenant agrees to promptly execute and deliver in recordable
form any documents reasonably requested by Landlord to effectuate any such
easements, rights, dedications, parcel maps/plats and or restrictions.
57. Counterparts, Facsimiles. This Lease may be executed in multiple
counterparts, all of which together shall constitute one and the same original
instrument. A facsimile signature shall be deemed for all purposes to be an
original.
58. Survival. Anything contained in this Lease to the contrary
notwithstanding, the expiration or termination of the Lease Term of the Lease,
whether by lapse of time or otherwise, shall not relieve Tenant from Tenant's
obligations accruing prior to the expiration or termination of the Lease Term,
all of which shall survive the same, whether or not same is expressly stated in
the particular Paragraph of this Lease, including, without limitation, Tenant's
obligations with respect to: (a) the payment of Base Rent and all items of
Additional Rent; (b) any provisions of this Lease with respect to indemnities of
92
Landlord made by Tenant; and (c) the removal of all property of Tenant required
to be removed hereunder and the repair of all damage to the Premises caused by
such removal at the expiration or termination of this Lease to the extent
required hereunder.
59. Termination of Old Lease. Tenant acknowledges that it is currently
occupying Suite 200 In Building A of the Landlord's building located at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Suite 200") pursuant to the terms of a
Lease dated June 8, 1999 between Landlord and Tenant (as amended the "Old
Lease"). Prior to the Rent Commencement Date, Tenant shall continue to occupy
Suite 200 pursuant to the terms of the Old Lease, however the base rent shall be
modified to $0.00 for the months of June, July, August & September 2001. Tenant
shall still be responsible for operating expenses "Additional Rent," for said
months. Effective as of the Rent Commencement Date, (a) Tenant shall surrender
possession of Suite 200 to Landlord in the condition required under the Old
Lease as if such date of surrender were the rescheduled expiration date of the
Old Lease set forth in the Old Lease, and (b) the Old Lease shall terminate and
neither Landlord nor Tenant shall have any rights, liabilities or obligations
thereunder, except to the extent (i) they expressly survive the expiration of
the Old Lease or (ii) Tenant fails to surrender Suite 200 at the time and in the
condition required above. Notwithstanding the foregoing, as of the effective
date of the termination of the Old Lease, Tenant waives and releases Landlord
from and against any and all claims, liabilities, damages, actions or expenses
arising out of, in connection with or related to the Old Lease or Tenant's lease
of Suite 200 pursuant to the Old Lease. In this regard Tenant waives all rights
it has or may hereafter have that any claim, demand, obligation or cause of
action has, through ignorance, oversight or error, been omitted from the terms
of this Paragraph.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
Witnesses as to Landlord: LANDLORD:
ACP OFFICE I LLC, a Delaware limited
liability company
By: ACP South Florida LLC, a Florida
------------------------------ limited liability company, its
Print Name operating member
------------------------------
Print Name By: ACP South Florida Corp., a
Florida corporation, its
managing member
By:
--------------------------
Name:
-------------------------
Title:
------------------------
Witnesses as to Tenant: TENANT:
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
------------------------------ -------------------
Print Name
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
------------------------------ -------------------------------------
Print Name As its: PRESIDENT
-----------------------------------
94
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Building Name: Pine Island Commons
Building Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Property Legal Description: Tracts A & B of Jaracanda Parcel 320 as shown on
plat recorded in Plat Book 115, Page 16 of the Public Records of Broward County,
Florida.
95
EXHIBIT "B"
FLOOR PLAN OF PREMISES
[TO BE ATTACHED HERE]
(Sketches, cross-hatching, dimensions and area calculations are for illustrative
purposes only and are not intended to detail the actual physical boundaries,
dimensions or square footage of the Premises.)
96
EXHIBIT "C"
ANNUAL RENT ADJUSTMENTS AND OPERATING EXPENSES
I. Adjustment of Base Rent
Tenant shall pay the monthly installments of the Base Rent as same come
due through the end of the first Lease Year, and thereafter the Base Rent shall
be increased annually at the commencement of each successive Lease Year to an
amount equal to the Base Rent in effect during the prior Lease Year plus an
amount equal to the Base Rent multiplied by the Percentage Increase, as follows:
RENT SCHEDULE
Rent PSF Annual Rent Monthly Rent
---------------------------------------------------------
Year 1: $16.50 $81,823.50 $6,818.63*
--------
Year 2: $17.16 $85,096.44 $7,091.37*
--------
Year 3: $17.85 $88,518.15 $7,376.51*
--------
Year 4: $18.56 $92,039.04 $7,669.92*
--------
Year 5: $19.30 $95,720.60 $7,976.72*
--------
*plus applicable state sales tax
II. Payment of Tenant's Share of Operating Expenses.
A. In addition to the Base Rent, Tenant shall pay to Landlord as
"Additional Rent" an amount equal to Tenant's Proportionate Share of the sum of
the Operating Expenses, which are currently estimated at $7.92 per rentable
square foot, (hereinafter defined) and the Taxes (hereinafter defined) in excess
of the Common Area Expense Stop multiplied by the Rentable Area of the Premises
for each calendar year, which amount shall be prorated for any partial calendar
year at the beginning or end of the Lease Term.
As used herein the term:
(i) "Operating Expenses" shall mean all expenses, costs and
disbursements, of every kind and nature that Landlord shall pay or become
obligated to pay because of or in connection with the ownership, operation,
leasing, securing, maintenance and management of the Building, the Complex and
Common Areas (including any part of the Parking Facility) and the Property. By
way of explanation and clarification, but not by way of limitation, these
Operating Expenses will include the following:
(a) All wages, salaries, withholdings and benefits of all
employees and personnel, including without limitation, security and maintenance
personnel, engaged in connection with the operation, maintenance and repair of
the Complex and Property;
(b) All costs and expenses of operating, equipping, upgrading,
maintaining, repairing, replacing, lighting, cleaning, painting and stripping
of, and removing garbage, snow, ice, trash and debris from, the Complex and
Property, including without limitation, preventative maintenance, operating,
maintaining, repairing and replacing ducts, conduits and similar items, fire
protection systems, sprinkler systems, irrigation systems, security alarm
systems, storm and sanitary drainage systems and other utility systems, energy
saving devices, signs and markers, on and off-site traffic regulation and
control signs and devices, hurricane shutters and other storm protection devices
and costs associated with storm cleanup, and costs and expenses of complying
with any environmental standards, and any Legal Requirements (including, without
limitation, the ADA), including without limitation, the costs and expenses of
removing Hazardous Materials from the Complex or any part thereof;
97
(c) All costs and expenses of interior and exterior planting,
replanting and replacing flowers, shrubbery, plants, trees and other gardening
and landscaping;
(d) All costs and expenses of all repairs, equipping,
operation, maintenance, replacement and improvements of or to the Complex,
including without limitation, floors, ceilings, roofs, skylights, windows,
escalators, elevators, any structures of any portion of the Complex, if any,
which are enclosed by walls and roof, as may exist from time to time, all
parking areas and structures, paving, curbs, walkways, entranceways, lines,
roads, driveways, heating, ventilating and air conditioning systems, floor
coverings, canopies, skylights, lighting fixtures, lamps, decorative coverings,
fountains, and electrical lines, transportation equipment and systems and
similar facilities and reserves for repairs.
(e) All cost and expenses of all supplies and materials used
in the operation and maintenance of Complex, and the cost and expense of all
maintenance, repair, inspection and depreciation of all machinery and equipment
used in the operation or maintenance of the Complex and all personal property
taxes and other charges incurred in connection with such machinery and
equipment, plus interest on the unamortized portion of the original cost of such
machinery and equipment;
(f) Cost of all utilities, including without limitation water,
sewer, electricity, gas and fuel oil used by the Building or the Complex and not
charged directly to another tenant;
(g) Cost of Building and Complex management, including
management fees and office rental, janitorial services, accounting, legal,
architectural, engineering and other consultant fees and costs, ground lease
payments, trash and garbage removal, servicing and maintenance of all systems
and equipment including, but not limited to, elevators, plumbing, heating (if
provided), air conditioning, ventilating, lighting, electrical, security, fire
and other alarms, fire pumps, fire extinguishers and hose cabinets, mail chutes,
guard service, pest control, alarm system, painting, window cleaning,
landscaping and gardening, any maintenance or service agreements, landscape
maintenance, elevator, and heating, ventilation, and air-conditioning service;
(h) Cost of all insurance relating to the Building, Complex
and Property and Landlord's personal property used in connection therewith
including, without limitation, casualty and liability insurance applicable to
same plus the amount of any deductible paid by Landlord;
(i) Cost of capital improvements to the extent they are
amortized over their deemed useful life together as determined by GAAP, but only
to the extent such capital improvement is required by Legal Requirements or
reduces any of these Operating Costs with interest thereon, provided that
Landlord may elect to instead create a reserve for replacement of major capital
items such as the roof, HVAC equipment etc., in which event reserves for
replacements for such items shall be included in Operating Expenses, and the
amortized cost of any capital improvement for which a reserve has been
established shall be limited to the extent that the reserve at the time of the
replacement is insufficient to pay for the entire capital improvement.
(j) All costs and expenses of all license and permit fees and
any and all parking surcharges that may result from any Legal Requirements;
(k) All costs and expenses of all rental and/or purchase of
sweepers, trucks and other equipment and machinery;
(l) The operation, management and maintenance of the
Landlord's office in the Complex;
Landlord may cause any or all of said services to be provided by an
independent contractor or contractors.
98
Notwithstanding the foregoing, the following expenses shall not be
Operating Expenses:
(a) The cost of mortgage financing, interest or amortization
payments on any mortgage payment;
(b) The costs of repairs incurred by reasons of fire or other
casualty or condemnation to the extent that Landlord is compensated therefor
through proceeds of insurance or condemnation awards;
(c) All other expenses for which Landlord has actually
received reimbursement (such as by insurance and by other tenants of the
Building) except as Additional Rent under comparable provisions in this
Subparagraph of this Exhibit to the Lease;
(d) Income or franchise taxes or such other taxes imposed upon
or measured by Landlord's net income for the operation of the Building;
(e) Electricity costs or overtime HVAC costs, if charged
separately to and actually paid by any other tenant in the Building;
(f) Taxes;
(g) The cost of any additions to the Building that result in a
larger building; and
(h) Costs or payments associated with Landlord's obtaining air
rights or development rights.
(i) Costs of enforcement of leases;
(j) Leasing commissions, advertising and promotional expenses
and any other comparable expenses directly related to leasing or procuring
tenants or negotiating with prospective tenants; and
(k) Costs allocable to properties other than the Building in
which Landlord or any principal thereof has a direct or indirect interest and
which do not create a direct benefit to the Building.
(ii) "Taxes" shall mean all impositions, taxes, surcharges,
assessments (special or otherwise), water and sewer charges and rents, and other
governmental liens or charges of any and every kind, nature and sort whatsoever,
ordinary and extraordinary, foreseen and unforeseen, and substitutes therefor,
including all taxes whatsoever (except only those taxes of the following
categories: any inheritance, estate succession, transfer or gift taxes imposed
upon Landlord or any income taxes specifically payable by Landlord as a separate
tax paying entity without regard to Landlord's income source as arising from or
out of the Building, the Complex and/or the land on which it is located)
attributable in any manner to the Building, the Complex, the land on which the
Complex is located, the ground leasehold interest of Landlord, or the rents
(however the term may be defined) receivable therefrom or any part thereof, or
any use thereof, or any facility located therein or thereon or used in
conjunction therewith or any charge or other payment required to be paid to any
governmental authority, whether or not any of the foregoing shall be designated
"real estate tax", "sales tax", "rental tax", "excise tax", "business tax", or
designated in any other manner. In the event Landlord shall retain any
consultant to negotiate the amount of taxes, tax rate, assessed value or other
factors influencing the amount of Taxes, or shall institute any administrative
or legal proceedings challenging the tax rate, assessed value or other factors
influencing the amount of taxes, then the aggregate of all such reasonable
third-party fees (including, without limitation, reasonable attorneys' and
appraisers' fees) and all disbursements, court costs and other items paid or
99
incurred by Landlord during the applicable Tax year with respect to such
proceedings shall be included in Taxes. Tenant shall not institute any
proceedings with respect to the assessed valuation of the Building, Complex, or
the Property or any part thereof for the purpose of seeking or securing a tax
reduction.
Landlord shall notify Tenant within 30 days of the date hereof and
within 30 days after the end of each calendar year hereafter ensuing or earlier
during the Lease Term, of the amount which Landlord estimates (as evidenced by
budgets prepared by or on behalf of Landlord) will be the amount of Tenant's
Proportionate Share of Operating Expenses and Taxes for the then current
calendar year and Tenant shall pay such sum in advance to Landlord in equal
monthly installments, during the balance of said calendar year, on the first day
of each remaining month in said calendar year commencing on the first day of the
first month following Tenant's receipt of such notification. Following the end
of each calendar year during the Lease Term hereof, Landlord shall submit to
Tenant a statement showing the actual amount which should have been paid by
Tenant with respect to Operating Expenses and Taxes for the past calendar year,
the amount thereof actually paid during that year by Tenant and the amount of
the resulting balance due thereon, or overpayment thereof, as the case may be.
Within 30 days after receipt by Tenant of said statement, Tenant or its designee
shall have the right in person to inspect Landlord's books and records, at
Landlord's office, during normal business hours, after 4 days' prior written
notice, showing the Operating Expenses and Taxes for the Building and the
Complex for the calendar year covered by said statement. Said statement shall
become final and conclusive between the parties, their successors and assigns as
to the matters set forth therein unless Landlord receives written objections
with respect thereto within said 30 day period. Any balance shown to be due
pursuant to said statement shall be paid by Tenant to Landlord within 30 days
following Tenant's receipt thereof and any overpayment shall be credited against
the next installments of Rent or against any sums due and owing to Landlord by
Tenant or, if by reason of any termination of the Lease no such future
obligation exists, refunded to Tenant. Anything herein to the contrary
notwithstanding, Tenant shall not delay or withhold payment of any balance shown
to be due pursuant to a statement rendered by Landlord to Tenant, pursuant to
the terms hereof, because of any objection which Tenant may raise with respect
thereto and Landlord shall immediately credit any overpayment found to be owing
to Tenant against the next installments of Rent or against any sums due and
owing to Landlord by Tenant upon the resolution of said objection or, if at the
time of the resolution of said objection the Lease Term has expired, refund to
Tenant any overpayment found to be owing to Tenant if Tenant is not otherwise
indebted to Landlord.
With respect to the current calendar year, Landlord has notified
Tenant of the amount that Landlord estimates will be Tenant's Proportionate
Share of Operating Expenses and Taxes for the remainder of the current calendar
year.
In determining the amount of Operating Expenses, for the purpose of
this Section, if less than 95% of the Complex shall have been occupied by
tenants and fully used by them, at any time during the year, Operating Expenses
that vary with occupancy of the Building may be increased to an amount equal to
the like operating expense which would normally be expected to be incurred had
such occupancy been 95% and had such full utilization been made during the
entire period.
B. Additional Rent due by reason of the provisions of paragraph A above
and this paragraph B for the final months of the Lease is due and payable even
though it may not be calculated until subsequent to the termination date of the
Lease; the Operating Expenses and Taxes for the calendar year during which the
Lease terminates shall be prorated according to that portion of said calendar
year that the Lease was actually in effect. Tenant expressly agrees that
Landlord, at Landlord's sole discretion, may apply the Security Deposit, if any,
in full or partial satisfaction of any Additional Rent due for the final month
of the Lease by reason of the provisions of paragraph A above and this paragraph
B. If said Security Deposit is greater than the amount of any such Additional
Rent and there are no other sums or amounts owed Landlord by Tenant by reason of
any other terms, provisions, covenants or conditions of the Lease, then Landlord
shall refund the balance of said Security Deposit to Tenant as provided in
Paragraph 33 of the Lease. Nothing herein contained shall be construed to
relieve Tenant, or imply that Tenant is relieved, of the liability for or the
obligation to pay any Additional Rent due for the final month of the Lease by
100
reason of the provisions of paragraph A above and this paragraph B if said
Security Deposit is less than such Additional Rent, nor shall Landlord be
required to first apply said Security Deposit to such Additional Rent if there
are any other sums or amounts owed Landlord by Tenant by reason of any other
terms, provisions, covenants or conditions of the Lease.
C. Any reference in the Lease or any exhibit to the Lease to "Rent" or
"rent" includes Base Rent and Additional Rent. Any term that is not defined in
any exhibit shall have the meaning ascribed to it in the Lease.
101
EXHIBIT "D"
BUILDOUT OF PREMISES
Landlord is not required to perform any work on the Premises and Tenant accepts
the Premises "AS IS".
Tenant shall have the right to install their own separately metered HVAC system
for their computer room at Tenant's sole expense. Tenant shall be responsible
for payment of all electricity directly to Florida Power and Light generated to
operate said HVAC system.
102
EXHIBIT "D"
BUILDOUT OF PREMISES
I. LANDLORD'S WORK
[Landlord shall perform the following improvements to the Premises
("Landlord's Work"):
SPACEPLAN ATTACHED.
II. Tenant acknowledges that Landlord's obligations to make improvements to
the Premises is limited to the foregoing, and otherwise as set forth above,
Tenant accepts the Premises "AS IS."
III. Tenant shall pay Landlord a fee for construction supervision in connection
with the performance of the Landlord's Work equal to 10% of the cost of the
Landlord's Work, architectural and engineering costs and cost of permits.
103
EXHIBIT "E"
RULES AND REGULATIONS
The following Rules and Regulations, hereby accepted by Tenant, are prescribed
by Landlord to enable Landlord to provide, maintain, and operate, to the best of
Landlord's ability, orderly, clear and desirable premises, Building, Complex and
Parking Facility for the Tenants therein at as economical a cost as reasonably
possible and in as efficient a manner as reasonably possible, to assure security
for the protection of Tenants so far as reasonably possible, and to regulate
conduct in and use of said Premises, Building Complex and Parking Facility in
such manner as to minimize interference by others in the proper use of same by
Tenant.
1. Tenant, its officers, agents, servants and employees shall not block or
obstruct any of the entries, passages, doors, elevators, elevator doors,
hallways or stairways of the Complex or garage, or place, empty or throw any
rubbish, litter, trash or material of any nature into such areas, or permit such
areas to be used at any time except for ingress or egress of Tenant, its
officers, agents, servants, employees, patrons, licensees, customers, visitors
or invitees.
2. The movement of furniture, equipment, machines, merchandise or
materials within, into or out of the Premises, the Building the Complex or
Parking Facility shall be restricted to time, method and routing of movement as
determined by Landlord upon request from Tenant and Tenant shall assume all
liability and risk to property, Premises, Building and Complex in such movement.
Tenant shall not move furniture, machines, equipment, merchandise or materials
within, into or out of the Complex, the Building, Premises or garage facilities
without having first obtained written permission from Landlord 24 hours in
advance. Safes, large files, electronic data processing equipment and other
heavy equipment or machines shall be moved into Premises, Building, Complex or
Parking Facility only with Landlord's written permission and placed where
directed by Landlord.
3. No sign, door plaque, advertisement or notice shall be displayed,
painted or affixed by Tenant, its officers, agents, servants, employees,
patrons, licensees, customers, visitors, or invitees in or on any part of the
outside or inside of the Building, the Complex, garage facilities or Premises
without prior written consent of Landlord and then only of such color, size,
character, style and materials and in such places as shall be approved and
designated by Landlord.
4. Landlord will not be responsible for lost or stolen property,
equipment, money or any article taken from Premises, Building, the Complex or
Parking Facility regardless of how or when loss occurs, except in the case of
gross negligence by Landlord and its agents.
5. No additional locks shall be placed on any door or changes made to
existing locks in the Building without the prior written consent of Landlord.
Landlord will furnish 2 keys to each lock on doors in the Premises and Landlord,
upon request of Tenant, shall provide additional duplicate keys at Tenant's
expense. Landlord may at all times keep a pass key to the Premises. All keys
shall be returned to Landlord promptly upon termination of the Lease.
6. Tenant, its officer, agents, servants or employees shall do no painting
or decorating in the Premises, or ▇▇▇▇, paint or cut into, drive nails or screw
into or in any way deface any part of Premises, the Building or the Complex
without the prior written consent of Landlord. If Tenant desires signal,
communication, alarm or other utility or service connection installed or
changed, such work shall be done at expense of Tenant, with the approval and
under the direction of Landlord.
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7. Tenant, its officers, agents, servants and employees shall not permit
the operation of any musical or sound producing instruments or device which may
be heard outside the Premises or which may emanate electrical waves which will
impair radio, television broadcasting or reception or interfere with the use of
computers or telephonic equipment from or in the Building.
8. Tenant, its officers, agents, servants and employees shall, before
leaving the Premises unattended, close and lock all doors and shut off all
utilities; damage resulting from failure to do so shall be paid by Tenant. Each
Tenant before the closing of the day and leaving the Premises shall see that all
blinds and/or draperies are pulled and drawn.
9. All plate and other glass now in the Premises, Building or Complex
which is broken through the cause which is attributable to Tenant, its officers,
agents, servants, employees, patrons, licensees, customers, visitors or invitees
shall be replaced by and at expense of Tenant under the direction of Landlord.
10. 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 Premises.
11. The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be thrown therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by Tenant, who
shall, or whose officers, employees, agents, servants, patrons, customers,
licensees, visitors or invitees shall have caused it.
12. All contractors and/or technicians performing work for Tenant within
the Premises, Building, Complex or Parking Facility shall be referred to
Landlord for approval before performing such work. This shall apply to all work
including, but not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and all installations affecting floors,
walls, windows, doors, ceiling, equipment or any other physical feature of the
Building, the Complex, the Premises or the Parking Facility. None of this work
shall be done by Tenant without Landlord's prior written approval.
13. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building; nor placed in the halls, corridors or
vestibules without the prior written consent of Landlord.
14. Glass panel doors that reflect or admit light into the passageways or
into any place in the Building shall not be covered or obstructed by the Tenant,
and Tenant shall not permit, erect, and/or place drapes, furniture, fixtures,
shelving, display cases or tables, lights or signs and advertising devices in
front of or in proximity of interior and exterior windows, glass panels, or
glass doors providing a view into the interior of the Premises unless same shall
have first been approved in writing by Landlord.
15. Canvassing, soliciting and peddling in the Complex (including the
Parking Facility) is prohibited and each Tenant shall cooperate to prevent the
same. Tenant shall not distribute any handbills or other advertising matter in
automobiles parked in the Parking Facility. Tenant shall promptly report any
such activities to the Building Manager's office.
16. No hand trucks, except those equipped with rubber tires and side
guards, shall be used in any space, or in the public halls of the Building,
either by any Tenant or by jobbers or others, in the delivery or receipt of
merchandise or otherwise.
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17. The work of Landlord's janitors or cleaning personnel shall not be
hindered by Tenant after 5:30 P.M. and such work may be done at any time when
the offices are vacant. The windows, doors and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles, cabinets,
bookcases, map cases, etc., necessary to prevent unreasonable hardship to
Landlord in discharging its obligation regarding cleaning service. In this
regard, Tenant shall also empty all glasses, cups and other containers holding
any type of liquid whatsoever.
18. If Tenant must dispose of crates, boxes, etc., which will not fit into
office wastepaper baskets, it will be the responsibility of Tenant with
Landlord's assistance to dispose of same. In no event shall Tenant set such
items in the public hallways or other areas of Complex, excepting Tenant's own
Premises, for disposal.
19. Tenants may not bring furniture and equipment into the Premises that
does not fit in the elevators for the Building and that does not pass through
the doorways of the Premises or Building unless such furniture or equipment is
made in parts and set up in the Premises. Landlord reserves the right to refuse
to allow to be placed in the Building any furniture or equipment of any
description which does not comply with the above conditions.
20. Tenant will be responsible for any damage to the Premises, including
carpeting and flooring, caused by rust or corrosion of file cabinets, roller
chairs, metal objects or spills of any type of liquid.
21. Tenant shall not install any antenna or aerial wires, or radio or
television equipment, or any other type of equipment, inside or outside of the
Building or the Complex, without Landlord's prior approval in writing, and upon
such terms and conditions as may be specified by Landlord in each and every
instance, including the payment of a rental fee for such space.
22. Tenant shall not use the name of the Building for any purpose other
than that of the business address of Tenant or use any letterheads, envelopes,
circulars, notices, advertisements, containers or wrapping material without
Landlord's express consent in writing.
23. Tenant shall not conduct its business in such manner as to create any
nuisance, or interfere with, annoy or disturb any other tenant in the Complex or
Landlord in its operation of the Complex or commit waste or suffer or permit
waste to be committed in the Premises or Complex. In addition, Tenant shall not
allow its officers, agents, employees, servants, patrons, customers, licensees
and visitors to conduct themselves in such manner as to create any nuisance or
interfere with, annoy or disturb any other tenant in the Complex or Landlord in
its operation of the Complex or commit waste or suffer or permit waste to be
committed in the Premises or the Complex. Tenant shall not permit its employees
to loiter on the Property outside of the Premises.
24. Tenant, its officers, agents, servants and employees shall not install
or operate any refrigerating, heating (if provided) or air conditioning
apparatus or carry on any mechanical operation or bring into Premises, Building
or Parking Facility any inflammable fluids or explosives without written
permission of Landlord.
25. Tenant, its officers, agents, servants or employees shall not use
Premises, or any portion of the Complex for housing, lodging or sleeping
purposes or for the cooking or preparation of food without the prior written
consent of the Landlord.
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26. Tenant, its officers, agents, servants, employees, patrons, licensees,
customers, visitors or invitees shall not bring into the Parking Facility,
Building, Premises or any other part of the Complex, or keep on the Premises any
fish, fowl, reptile, insect, or animal or any bicycle or other vehicle without
the prior written consent of Landlord. Wheel chairs and baby carriages are
excepted from this rule.
27. Neither Tenant nor any officer, agent, employee, servants, patron,
customer, visitor, licensee or invitee of any Tenant shall go upon the roof of
the Building without the written consent of the Landlord.
28. No smoking shall be permitted anywhere in the Building or in any other
building in the Complex except in Landlord designated smoking areas.
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EXHIBIT "F"
LETTER OF CREDIT
Tenant will provide Landlord an irrevocable, unconditional sight draft
letter of credit on an institution and in form acceptable to Landlord equal to
the sum of $40,000. This letter of credit will be delivered to Landlord at
execution of this Lease. The letter of credit will be renewed annually by
Tenant, and Landlord may draw the letter of credit upon any event of default by
Tenant, or in the event the letter of credit ever has less than 30 days
remaining before expiration. In the event Tenant is not in default on the first
day of the fifth year of the Lease Term and the letter of credit has not been
drawn by Landlord, the letter of credit will be returned to Tenant.
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EXHIBIT "G"
TENANT ACCEPTANCE LETTER
This declaration is hereby attached to and made part of the lease
agreement dated ____________, 2001 entered into by and between ACP OFFICE I, LLC
as Landlord and ▇▇▇▇▇▇▇▇▇.▇▇▇, INC. as Tenant.
The undersigned, as Tenant, hereby confirms as of the _____ day of
________, 2001 the following:
1. Tenant has accepted possession of the Premises on __________, 2001 and
is currently able to occupy the same.
2. The Rent Commencement Date and the obligation to commence the payment
of rent commenced or will commence on __________, 2001.
3. All alterations and improvements required to be performed by Landlord
pursuant to the terms of the Lease to prepare the entire Premises for Tenant's
initial occupancy have been satisfactorily completed, except for the following:
__________________________________________________.
4. As of the date hereof, Landlord has fulfilled all of its obligations
under the Lease.
5. The Lease is in full force and effect and has not been modified,
altered, or amended, except pursuant to any instruments described above, if any.
6. There are no offsets or credits against Base Rent or Additional Rent,
nor has any Base Rent or Additional Rent been prepaid except as provided
pursuant to the terms of the Lease.
7. Tenant has no notice of any prior assignment, hypothecation, or pledge
of the Lease or any Rent due under the Lease.
WITNESS: TENANT:
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
-------------------
By:
---------------------------------- ---------------------------------
As:
---------------------------------- ---------------------------------
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EXHIBIT "H"
FORM OF AUTOMATIC DEBIT TRANSACTION
Date
Tenant
Address
Re: ACH Authorization
Dear ___________________:
Please be advised that, in terms of your lease agreement, we will be collecting
your rent through an " Automatic Clearing House"(ACH). Please complete the
information below and return this authorization to ACP Office I LLC, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; Suite 900; Attention: Controller. When
your rent increases, we shall have the right to notify your bank of such
increase and you authorize us to contact the bank and request that the automatic
deduction be increased in accordance with the lease. We may request that you
complete this form again to confirm your agreement with the new dollar amounts
to be deducted from your bank.
Authorization from (tenants bank name address) Copy of actual check
________________________________________________
________________________________________________
________________________________________________
ABA # __________________________________________
Tenant's Account # _________________________ Amount to be deducted
$_______________ on the first day of every month until further notice.
Signed by Authorized signatory on the account to disburse funds.
Tenant______________________________ dated ______/_____/_____
Deposit to:
For ACP Office I, LLC
City National Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA ▇▇▇▇▇▇▇▇▇
Credit Account #1753208456
Thank you for your prompt attention to this matter.
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Sincerely,
Witnesses as to Landlord: LANDLORD:
ACP OFFICE I LLC, a Delaware limited
liability company
By: ACP South Florida LLC, a Florida
------------------------------ limited liability company, its
Print Name: operating member
---------------------------------
Print Name: By: ACP South Florida Corp., a
Florida corporation, its
managing member
By:
---------------------------
Name:
-------------------------
Title:
------------------------
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