SURRENDER OPTION. (a) Tenant shall have the right to surrender all or any portion of the Leased Premises (in units of not less than 15,000 RSF of contiguous space, provided however, that Tenant shall have the right to surrender that portion of the ground floor of the Building that is occupied by Tenant, in accordance with the terms and conditions of this Section 1.05, notwithstanding that Tenant's ground floor premises may comprise less than 15,000 RSF), in reasonably leasable configuration and good condition, on either the sixth (6th) anniversary (the "First Surrender Date") or eighth (8th) anniversary (the "Second Surrender Date"), of the Rent Commencement Date (hereinafter defined) (each, a "Surrender Date"), by delivering written notice to Landlord (specifying the space to be surrendered and whether such space shall be surrendered on the First or Second Surrender Date) not later then nine (9) months preceding the applicable Surrender Date (time being of the essence). In the event of a surrender of all of the Leased Premises, then this Lease shall terminate as of the applicable Surrender Date as if such date were the Expiration Date hereof. Time shall be of the essence as to Tenant's obligation to deliver any space surrendered pursuant to this Section 1.05 by the applicable Surrender Date in vacant, broom-clean condition (provided, however, that the foregoing shall not require Tenant to remove any permanent leasehold improvements that it may have installed in the surrendered space in compliance with the terms hereof). (b) If Tenant shall surrender less than the entire Leased Premises pursuant to this Section 1.05, then provided that Tenant shall have timely vacated the surrendered space in the condition required hereby and is not otherwise in monetary default hereunder beyond any applicable grace, notice and cure period, effective as of the applicable Surrender Date: (i) the surrendered space shall be deemed deleted from the Leased Promises for all purposes, and (ii) "Tenant's Share" shall be decreased the percentage of rentable space in the Building constituting the surrendered space. Additionally, if Tenant shall surrender a portion of the Leased Premises on the First Surrender Date, then effective. as of such First Surrender Date, the Annual Rentals specified in Section 4.01 (b) (ii) hereof shall be decreased by an amount equal to $24.50 multiplied by the RSF of the surrendered space. If Tenant shall surrender a portion of the Leased Premises on the Second Surrender Date, then effective as of such Second Surrender Date the Annual Rental specified in Section 4.01 (b) (ii) hereof shall be further reduced by an amount equal to $24.50 multiplied by the RSF of the space surrendered on the Second Surrender Date. (c) The RSF of any space surrendered by Tenant in accordance with this Section 1.05 shall be reasonably determined by Landlord utilizing the standards and practices that Landlord currently employs at Executive Park to determine RSF and shall be deemed to include any additional square footage which was allocated to the surrendered space by reason of common corridors. For purposes of this Section 1.05 only, the entire Building shall be deemed to comprise 94,016 RSF. Within seven (7) days following Landlord's notification of Tenant of any surrendered space's RSF, Landlord and Tenant shall execute and deliver to each other an agreement supplementary hereto setting forth the surrendered space's RSF and the appropriate modifications to Sections 4.01 and 4.02 described in Section (b) above. Except as expressly provided in this section 1.05, Tenant shall have no other right to surrender any portion of the Leased Premises to Landlord.
Appears in 1 contract
SURRENDER OPTION. (a) Tenant shall have the right a one-time option to surrender all or any portion up to ten percent (10%) of the Leased Premises Premises, the exact location and dimensions of such space to be mutually agreed upon by Landlord and Tenant (in units so that such space surrendered is of not a reasonably marketable size and configuration) within thirty (30) days after Landlord receives the Surrender Notice (the “Surrender Space”), effective as of the end of the full sixtieth (60th) month after Commencement Date (the “Surrender Date”) by providing Landlord with written notice of such election (the “Surrender Notice”) no less than 15,000 RSF of contiguous spacesix (6) months prior to the Surrender Date (the “Surrender Notice Deadline”). If Tenant has not given the Surrender Notice to Landlord prior to the Surrender Notice Deadline, provided howeverthe Surrender Option shall terminate and be null and void, that and Tenant shall have the no right or option to surrender that portion the Surrender Space pursuant to this Section 26.28(a). As a condition precedent to any surrender of the ground floor Surrender Space pursuant to the provisions of this Section 26.28(a), Tenant must deliver to Landlord, within thirty (30) days after delivery of the Building Surrender Notice, in addition to any and all due but unpaid Rent due from Tenant to Landlord under this Lease as of the date of such delivery (include any Default Rate interest payable on such Rent as of the date of such delivery), a surrender fee equal to the sum of (i) four (4) months of Monthly Base Rent and Tenant’s Share of Operating Expenses and Taxes for the Surrender Space at the rate payable immediately prior to the Surrender Date, (ii) the unamortized prorated Tenant Improvement Allowance and the Additional Tenant Improvement Allowance for the Surrender Space as of the Surrender Date, amortized on a straight-line basis using an interest rate of eight percent (8%), and (iii) the unamortized prorated leasing commissions for the Surrender Space as of the Surrender Date, amortized on a straight-line basis using an interest rate of eight percent (8%). It is hereby acknowledged that any such amount required to be paid by Tenant in connection with such early surrender of the Surrender Space is occupied not a penalty but a reasonable pre-estimate of the damages which would be incurred by Landlord as a result of such early surrender of the Surrender Space (which damages are impossible to calculate more precisely) and, in that regard, constitutes liquidated damages with respect to such loss. Tenant shall continue to be liable for Tenant’s obligations under this Lease with respect to the Surrender Space to and through the Surrender Date including, with all of such obligations surviving the Surrender Date. As of the Surrender Date, Tenant shall surrender and relinquish the Surrender Space in accordance with the terms and conditions of this Section 1.05, notwithstanding that Tenant's ground floor premises may comprise less than 15,000 RSF), in reasonably leasable configuration Lease and good condition, on either the sixth shall therefore have no further rights with respect thereto. Within thirty (6th30) anniversary (the "First Surrender Date") or eighth (8th) anniversary (the "Second Surrender Date"), days after delivery of the Rent Commencement Date (hereinafter defined) (eachSurrender Notice to Landlord, a "Landlord and Tenant shall execute an amendment modifying the terms of this Lease to reflect the surrender of the Surrender Date"), by delivering written notice to Landlord (specifying the space to be surrendered and whether such space shall be surrendered Space on the First or Second Surrender Date) not later then nine (9) months preceding the applicable Surrender Date (time being of the essence). In the event of a surrender of all of the Leased Premises, then this Lease shall terminate as of the applicable Surrender Date as if such date were the Expiration Date hereof. Time shall be of the essence as to Tenant's obligation to deliver any space surrendered pursuant to terms set forth in this Section 1.05 by the applicable Surrender Date in vacant, broom-clean condition (provided, however, that the foregoing shall not require Tenant to remove any permanent leasehold improvements that it may have installed in the surrendered space in compliance with the terms hereof26.28(a).
(b) If Tenant shall surrender less than Notwithstanding anything to the entire Leased Premises pursuant to contrary in this Section 1.0526.28, then provided as a condition to the surrender of the Surrender Space to be effective, (i) any Surrender Space shall be located entirely on the same floor of the Building, (ii) in the event that Tenant the Premises contain a partial floor in the Building as of the date of the Surrender Notice, such Surrender Space shall have timely vacated the surrendered only contain space in the condition required hereby Premises on such partial floor, and is such Surrender Space, as well as any other space on such partial floor not leased to Tenant shall be a marketable unit, as reasonably determined by Landlord, and otherwise in monetary default hereunder beyond compliance with all Laws, and (iii) in the event that the Premises does not contain any applicable grace, notice and cure period, effective partial floors in the Building as of the applicable date of the Surrender Date: (i) the surrendered Notice, such Surrender Space, as well as any other space on such floor not leased to Tenant shall be deemed deleted from the Leased Promises for all purposesa marketable unit, as reasonably determined by Landlord, and (ii) "Tenant's Share" shall be decreased the percentage of rentable space otherwise in the Building constituting the surrendered space. Additionally, if Tenant shall surrender a portion of the Leased Premises on the First Surrender Date, then effective. as of such First Surrender Date, the Annual Rentals specified in Section 4.01 (b) (ii) hereof shall be decreased by an amount equal to $24.50 multiplied by the RSF of the surrendered space. If Tenant shall surrender a portion of the Leased Premises on the Second Surrender Date, then effective as of such Second Surrender Date the Annual Rental specified in Section 4.01 (b) (ii) hereof shall be further reduced by an amount equal to $24.50 multiplied by the RSF of the space surrendered on the Second Surrender Datecompliance with all Laws.
(c) The RSF If Landlord consents to any assignment or subletting of any space surrendered by Tenant in accordance this Lease, except for a transfer permitted pursuant to Section 10.01(d) of this Lease, Tenant’s rights with this Section 1.05 shall be reasonably determined by Landlord utilizing the standards and practices that Landlord currently employs at Executive Park to determine RSF and shall be deemed to include any additional square footage which was allocated respect to the surrendered space by reason Surrender Option shall not be transferable or assignable to an assignee or subtenant without the express prior written consent of common corridors. For purposes of this Section 1.05 onlyLandlord, the entire Building shall which consent may be deemed to comprise 94,016 RSF. Within seven (7) days following granted, withheld or conditioned in Landlord's notification of Tenant of any surrendered space's RSF, Landlord ’s sole and Tenant shall execute and deliver to each other an agreement supplementary hereto setting forth the surrendered space's RSF and the appropriate modifications to Sections 4.01 and 4.02 described in Section (b) above. Except as expressly provided in this section 1.05, Tenant shall have no other right to surrender any portion of the Leased Premises to Landlordabsolute discretion.
Appears in 1 contract
Samples: Lease Agreement (PBSJ Corp /Fl/)
SURRENDER OPTION. 4.01. Upon not less than fifteen (a15) months prior written notice to Landlord (each herein called a “Surrender Notice”) which may be given one or more times during the period commencing on September 20, 2009 up to and including September 30, 2011 (herein called the “Surrender Notice Period”), Tenant may elect to surrender portions of the Premises (each such portion of the Premises so surrendered is herein called “Surrender Space”) consisting of two (2) or more full Office Floors on or above the 6th floor of the Building and containing not more than 280,326 rentable square feet in the aggregate, all of which shall consist of full Office Floors. For example and without limitation, Tenant may initially elect to surrender three full Office Floors containing 90,510 rentable square feet of the Premises, and thereafter send one or more Tranche 1 Surrender Notices during the Surrender Notice Period surrendering additional full Office Floors (but not less than two (2) full Office Floors in any Surrender Notice) comprising up to an additional 189,816 rentable square feet (i.e., the Surrender Space shall not exceed 280,326 rentable square feet in the aggregate, inclusive of any space surrendered under the Original Lease). Any Surrender Notice shall identify the Surrender Space and indicate the date on which such Surrender Space will be surrendered, which date(s) may be no earlier than December 20, 2010, no later than December 31, 2012 and must correspond with the last day of a month (any such date is herein called a “Surrender Date”). Any Surrender Space that is identified in a particular Surrender Notice must be contiguous but such space need not be contiguous with any Surrender Space identified in a subsequent Surrender Space Notice; provided, that, Tenant shall give consideration to keeping Surrender Space contiguous within all or any of the four elevator banks but shall have absolutely no obligation whatsoever to do so. Notwithstanding any of the right foregoing, or anything to surrender the contrary contained in the Amended and Restated Lease, if all or any portion of the Leased Premises (in units of not less than 15,000 RSF of contiguous spaceSurrender Space or Building Systems which service the Surrender Space shall be partially or totally damaged or destroyed by fire or other casualty prior to the Surrender Date, provided however, that Tenant shall have then the right Surrender Date with respect to surrender that any full floor portion of the ground floor Surrender Space so affected shall be postponed until such time as Tenant fully satisfies its restoration obligations with respect thereto in accordance with Section 19.02 and such affected portion of the Building that Surrender Space is occupied no longer untenantable (as such term is defined in Section 19.04.)
4.02. In the event of the giving of any Surrender Notice and provided the Surrender Fee has been paid to Landlord in accordance with Section 4.04, then, effective as of the Surrender Date:
(a) this lease shall automatically, without further action or execution by Tenantthe parties, be deemed to be restated and amended as of the Surrender Date, to reflect all of the terms and conditions set forth in the form of Restated and Amended Lease annexed hereto as Exhibit J (the “Amended and Restated Lease”) modified only to complete, in accordance with the terms hereof, those items left blank by necessity on the Amended and conditions of this Section 1.05Restated Lease, notwithstanding that Tenant's ground floor premises may comprise less than 15,000 RSF), in reasonably leasable configuration and good condition, on either such as the sixth (6th) anniversary (the "First Surrender Date") or eighth (8th) anniversary (the "Second Surrender Date"), description of the Rent Commencement Date (hereinafter defined) (each, a "Surrender Date"), by delivering written notice to Landlord (specifying the space to be surrendered and whether such space shall be surrendered on the First or Second Surrender Date) not later then nine (9) months preceding the applicable Surrender Date (time being of the essence). In the event of a surrender of all of the Leased Premises, then this Tenant’s Share and the amount of Fixed Rent. Upon the request of either party, Landlord and Tenant shall sign and deliver the Amended and Restated Lease shall terminate annexed hereto, with the completion of items as of the applicable Surrender Date as if such date were the Expiration Date hereof. Time shall be of the essence as to Tenant's obligation to deliver any space surrendered pursuant to this Section 1.05 by the applicable Surrender Date in vacant, broom-clean condition (aforesaid; provided, however, that without limiting the foregoing remedies available to either party for the other party’s failure or refusal to so sign and deliver said Amended and Restated Lease, such failure by either party shall not require Tenant to remove in any permanent leasehold improvements that it may have installed in way affect the surrendered space in compliance with the terms hereof).aforesaid automatic restatement and amendment of this lease;
(b) If Tenant shall surrender less than the entire Leased Premises pursuant to this Section 1.05, then provided that Tenant shall have timely vacated the surrendered space Surrender Space in the condition required hereby under Section 21.01 together with all equipment, tools and is not otherwise supplies then currently used in monetary default hereunder beyond any applicable grace, notice and cure period, effective as the operation of the applicable Surrender Date: Real Property (i) the surrendered space shall be deemed deleted from the Leased Promises for all purposes, and (ii) "Tenant's Share" shall be decreased the percentage of rentable space as opposed to those used in the Building constituting operation of Tenant’s business at the surrendered spacePremises) as well as all lobby fixtures (but excluding any art work). AdditionallyUpon reasonable request by Landlord, if Tenant shall surrender a portion of the Leased Premises on the First Surrender Date, then effective. as of such First Surrender Date, the Annual Rentals specified in Section 4.01 (b) (ii) hereof shall be decreased by an amount equal to $24.50 multiplied by the RSF of the surrendered space. If Tenant shall surrender a portion of the Leased Premises on the Second Surrender Date, then effective as of such Second Surrender Date the Annual Rental specified in Section 4.01 (b) (ii) hereof shall be further reduced by an amount equal to $24.50 multiplied by the RSF of the space surrendered on the Second Surrender Date.
(c) The RSF of any space surrendered by Tenant in accordance with this Section 1.05 shall be reasonably determined by Landlord utilizing the standards and practices that Landlord currently employs at Executive Park to determine RSF and shall be deemed to include any additional square footage which was allocated to the surrendered space by reason of common corridors. For purposes of this Section 1.05 only, the entire Building shall be deemed to comprise 94,016 RSF. Within seven (7) days following Landlord's notification of Tenant of any surrendered space's RSF, Landlord and Tenant shall execute and deliver to Landlord any instrument reasonably requested by Landlord to evidence the transfer of Tenant’s right, title and interest in any such equipment, tools, supplies and fixtures (collectively, “ETS&F”) to Landlord; it being understood and agreed that Tenant is not making any guarantees, representations or warranties with respect to the ETS&F and Landlord shall accept the ETS&F “as is” and with all faults and defects and without any liability to Tenant whatsoever with respect thereto. However, to the extent assignable and in Tenant’s possession, on or prior to the Surrender Date, Tenant shall deliver to Landlord all third party guaranties, warranties and manuals relating to the ETS&F. Tenant shall be entitled to retain the use of any horizontal and vertical cabling, conduit and/or any mechanical and electrical equipment located in the common and/or non-rentable areas of the Building (or such other areas outside of the common and/or non-rentable areas of the Building so long as same do not adversely affect the use of the Surrender Space) which is used in operating the portion of the Premises not so surrendered; and
(c) Tenant shall, at its sole cost and expense (but subject to its right to off-set the cost thereof against the Surrender Fee in accordance with Section 4.04), install separate submeters (i) on each Office Floor of the Building and any equipment that exclusively services any such Office Floor, and (ii) for each separately demised retail and licensed space in or on the Building and any equipment that exclusively services any such areas, so that consumption of electricity in the Building can be measured (i) on a floor by floor basis with respect to each Office Floor and (ii) separately for each separately demised retail and licensed space in or on the Building, all in substantial conformance with the methodology set forth in that certain Comprehensive Sub-Metering System Installation Proposal dated April 6, 2005 from MCE Metering Services, Inc. or such other an agreement supplementary hereto setting forth reasonable system recommended by Landlord provided the surrendered space's RSF cost to install and implement such system does not exceed $500,000 unless Landlord agrees to incur such excess cost and such system provides equal or better functionality at similar on-going operating costs (such work herein called the “Submetering Work”, and the appropriate modifications cost thereof is herein called the “Submetering Cost”).
4.03. Landlord and Tenant agree that, as of expiration of the term of this lease or as of the Surrender Date, as applicable, Landlord may either (x) offer the same employment by Landlord (or by the property manager engaged by Landlord) to Sections 4.01 any or all employees set forth on Schedule 2 (as such list may be updated from time to time by Tenant so as to appropriately reflect the employees employed as of the end of the term of this lease or as of the Surrender Date, as the case may be) who are union employees under their then current employment contracts or agreements, including any collective bargaining agreements or (y) terminate the employment of any or all such employees at the Real Property; provided, that, Landlord shall give consideration to (but in no event be bound by) the recommendations of Tenant with respect to the retention of any such employees. Landlord acknowledges that, (i) if Landlord terminates any of such union employees or (ii) if Landlord terminates any of the cleaning contractor, building engineer or xxxxxxxxx of the Building or requires those companies to reduce their employees at the Real Property from those listed on Schedule 2 and, as a result, any of the union employees engaged by such companies are terminated, then certain termination benefits may be payable with respect to such terminated employees. Landlord agrees that it shall be liable for the payment of all such termination benefits and 4.02 described hereby agrees to indemnify and hold harmless Tenant and any other Tenant Party from and against any loss, cost, damage, liability or expense (including, without limitations, reasonable attorneys’ fees, court costs and disbursements) incurred by Tenant or any other Tenant Party arising from or by reason of Landlord’s failure to pay such termination benefits as and when due and payable; provided, that, Tenant shall be responsible for the payment of termination benefits payable to any of such employees who provided services that solely benefited Tenant (as opposed to the Building or Real Property as a whole), and Tenant shall indemnify and hold Landlord harmless from and against any loss, cost, damage, liability or expense (including, without limitations, reasonable attorneys’ fees, court costs and disbursements) incurred by Landlord arising from or by reason of Tenant’s failure to pay such termination benefits as and when due and payable. Notwithstanding anything to the contrary contained in this Section 4.03, Landlord and Tenant agree that Tenant shall not have any liability hereunder with respect to the termination of employment of any employees who do not spend the predominance of their time providing services to the base building operations at the Real Property.
4.04. As a condition to the effectiveness of the exercise of the Surrender Option and the termination of this lease as it relates to the Surrender Space as of the Surrender Date, Tenant shall pay to Landlord an amount equal to (1) the product of (x) the then annual Fixed Rent per rentable square foot attributable to the Surrender Space, and (y) the rentable square feet of the Surrender Space, less (2) the Submetering Cost (not to exceed $500,000.00) (such amount is herein called the “Surrender Fee”). One-half of the Surrender Fee (without taking into account the off-set of the Submetering Cost) shall be payable by Tenant to Landlord upon the exercise of the Surrender Option and the other half (after taking into account the off-set of the Submetering Cost) upon the Surrender Date. To the extent the Submetering Cost is not fully applied against the Surrender Fee as of the Surrender Date (i.e., the Submetering Cost, subject to the $500,000.00 cap, exceeds the Surrender Fee, such excess herein called “Unapplied Submetering Cost”), the Unapplied Submetering Cost may be offset against the Surrender Fees payable under the Amended and Restated Lease with respect to all additional Tranche 1 Surrender Space and Tranche 2 Surrender Space (as such terms are defined in the Amended and Restated Lease). The Surrender Fee shall be accounted for by the parties and considered for all purposes as a fee for the termination of this lease as it relates to the Surrender Space and not as payment or consideration for the use or occupancy of the Premises. Landlord shall have the right to dispute the amount of Submetering Cost as being prudent (but not the scope of the Submetering Work set forth in Section 4.02(c)) and economical by submitting the matter to a binding, expedited arbitration in accordance with the provisions of Article 37. If Tenant shall in good faith competitively bid the Submetering Work to at least three (b3) above. Except as expressly provided in this section 1.05, independent non-affiliated bidders (but Tenant shall have no other right obligation hereunder to surrender any portion of bid such work), the Leased Premises next-to-lowest bid obtained shall be deemed to be reasonably prudent and economical (provided however that, subject to Landlord’s dispute rights set forth herein, it shall not be construed that a bid that is higher than such next-to-lowest bid is automatically deemed not to be reasonably prudent or economical).
4.05. The provisions of this Article 4 shall survive the termination of this lease and of any restatement of this lease into the Amended and Restated Lease.
Appears in 1 contract
Samples: Lease Agreement (Citigroup Inc)
SURRENDER OPTION. 4.01. Upon not less than fifteen (a15) months prior written notice to Landlord (each herein called a "Surrender Notice") which may be given one or more times during the period commencing on September 20, 2009 up to and including September 30, 2011 (herein called the "Surrender Notice Period"), Tenant may elect to surrender portions of the Premises (each such portion of the Premises so surrendered is herein called "Surrender Space") consisting of two (2) or more full Office Floors on or above the 6th floor of the Building and containing not more than 280,326 rentable square feet in the aggregate, all of which shall consist of full Office Floors. For example and without limitation, Tenant may initially elect to surrender three full Office Floors containing 90,510 rentable square feet of the Premises, and thereafter send one or more Tranche 1 Surrender Notices during the Surrender Notice Period surrendering additional full Office Floors (but not less than two (2) full Office Floors in any Surrender Notice) comprising up to an additional 189,816 rentable square feet (i.e., the Surrender Space shall not exceed 280,326 rentable square feet in the aggregate, inclusive of any space surrendered under the Original Lease). Any Surrender Notice shall identify the Surrender Space and indicate the date on which such Surrender Space will be surrendered, which date(s) may be no earlier than December 20, 2010, no later than December 31, 2012 and must correspond with the last day of a month (any such date is herein called a "Surrender Date"). Any Surrender Space that is identified in a particular Surrender Notice must be contiguous but such space need not be contiguous with any Surrender Space identified in a subsequent Surrender Space Notice; provided, that, Tenant shall give consideration to keeping Surrender Space contiguous within all or any of the four elevator banks but shall have absolutely no obligation whatsoever to do so. Notwithstanding any of the right foregoing, or anything to surrender the contrary contained in the Amended and Restated Lease, if all or any portion of the Leased Premises (in units of not less than 15,000 RSF of contiguous spaceSurrender Space or Building Systems which service the Surrender Space shall be partially or totally damaged or destroyed by fire or other casualty prior to the Surrender Date, provided however, that Tenant shall have then the right Surrender Date with respect to surrender that any full floor portion of the ground floor Surrender Space so affected shall be postponed until such time as Tenant fully satisfies its restoration obligations with respect thereto in accordance with Section 19.02 and such affected portion of the Building that Surrender Space is occupied no longer untenantable (as such term is defined in Section 19.04.)
4.02. In the event of the giving of any Surrender Notice and provided the Surrender Fee has been paid to Landlord in accordance with Section 4.04, then, effective as of the Surrender Date:
(a) this lease shall automatically, without further action or execution by Tenantthe parties, be deemed to be restated and amended as of the Surrender Date, to reflect all of the terms and conditions set forth in the form of Restated and Amended Lease annexed hereto as Exhibit J (the "Amended and Restated Lease") modified only to complete, in accordance with the terms hereof, those items left blank by necessity on the Amended and conditions Restated Lease, such as the description of this Section 1.05the Premises, notwithstanding that Tenant's ground floor premises may comprise less than 15,000 RSF)Share and the amount of Fixed Rent. Upon the request of either party, in reasonably leasable configuration Landlord and good conditionTenant shall sign and deliver the Amended and Restated Lease annexed hereto, on either with the sixth (6th) anniversary (the "First Surrender Date") or eighth (8th) anniversary (the "Second Surrender Date"), completion of the Rent Commencement Date (hereinafter defined) (each, a "Surrender Date"), by delivering written notice to Landlord (specifying the space to be surrendered and whether such space shall be surrendered on the First or Second Surrender Date) not later then nine (9) months preceding the applicable Surrender Date (time being of the essence). In the event of a surrender of all of the Leased Premises, then this Lease shall terminate items as of the applicable Surrender Date as if such date were the Expiration Date hereof. Time shall be of the essence as to Tenant's obligation to deliver any space surrendered pursuant to this Section 1.05 by the applicable Surrender Date in vacant, broom-clean condition (aforesaid; provided, however, that without limiting the foregoing remedies available to either party for the other party's failure or refusal to so sign and deliver said Amended and Restated Lease, such failure by either party shall not require Tenant to remove in any permanent leasehold improvements that it may have installed in way affect the surrendered space in compliance with the terms hereof).aforesaid automatic restatement and amendment of this lease;
(b) If Tenant shall surrender less than the entire Leased Premises pursuant to this Section 1.05, then provided that Tenant shall have timely vacated the surrendered space Surrender Space in the condition required hereby under Section 21.01 together with all equipment, tools and is not otherwise supplies then currently used in monetary default hereunder beyond any applicable grace, notice and cure period, effective as the operation of the applicable Surrender Date: Real Property (i) as opposed to those used in the surrendered space shall be deemed deleted from the Leased Promises for all purposes, and (ii) "operation of Tenant's Share" shall be decreased business at the percentage of rentable space in the Building constituting the surrendered spacePremises) as well as all lobby fixtures (but excluding any art work). AdditionallyUpon reasonable request by Landlord, if Tenant shall surrender a portion of the Leased Premises on the First Surrender Date, then effective. as of such First Surrender Date, the Annual Rentals specified in Section 4.01 (b) (ii) hereof shall be decreased by an amount equal to $24.50 multiplied by the RSF of the surrendered space. If Tenant shall surrender a portion of the Leased Premises on the Second Surrender Date, then effective as of such Second Surrender Date the Annual Rental specified in Section 4.01 (b) (ii) hereof shall be further reduced by an amount equal to $24.50 multiplied by the RSF of the space surrendered on the Second Surrender Date.
(c) The RSF of any space surrendered by Tenant in accordance with this Section 1.05 shall be reasonably determined by Landlord utilizing the standards and practices that Landlord currently employs at Executive Park to determine RSF and shall be deemed to include any additional square footage which was allocated to the surrendered space by reason of common corridors. For purposes of this Section 1.05 only, the entire Building shall be deemed to comprise 94,016 RSF. Within seven (7) days following Landlord's notification of Tenant of any surrendered space's RSF, Landlord and Tenant shall execute and deliver to Landlord any instrument reasonably requested by Landlord to evidence the transfer of Tenant's right, title and interest in any such equipment, tools, supplies and fixtures (collectively, "ETS&F") to Landlord; it being understood and agreed that Tenant is not making any guarantees, representations or warranties with respect to the ETS&F and Landlord shall accept the ETS&F "as is" and with all faults and defects and without any liability to Tenant whatsoever with respect thereto. However, to the extent assignable and in Tenant's possession, on or prior to the Surrender Date, Tenant shall deliver to Landlord all third party guaranties, warranties and manuals relating to the ETS&F. Tenant shall be entitled to retain the use of any horizontal and vertical cabling, conduit and/or any mechanical and electrical equipment located in the common and/or non-rentable areas of the Building (or such other areas outside of the common and/or non-rentable areas of the Building so long as same do not adversely affect the use of the Surrender Space) which is used in operating the portion of the Premises not so surrendered; and
(c) Tenant shall, at its sole cost and expense (but subject to its right to off-set the cost thereof against the Surrender Fee in accordance with Section 4.04), install separate submeters (i) on each Office Floor of the Building and any equipment that exclusively services any such Office Floor, and (ii) for each separately demised retail and licensed space in or on the Building and any equipment that exclusively services any such areas, so that consumption of electricity in the Building can be measured (i) on a floor by floor basis with respect to each Office Floor and (ii) separately for each separately demised retail and licensed space in or on the Building, all in substantial conformance with the methodology set forth in that certain Comprehensive Sub-Metering System Installation Proposal dated April 6, 2005 from MCE Metering Services, Inc. or such other an agreement supplementary hereto setting forth reasonable system recommended by Landlord provided the surrendered space's RSF cost to install and implement such system does not exceed $500,000 unless Landlord agrees to incur such excess cost and such system provides equal or better functionality at similar on-going operating costs (such work herein called the "Submetering Work", and the appropriate modifications cost thereof is herein called the "Submetering Cost").
4.03. Landlord and Tenant agree that, as of expiration of the term of this lease or as of the Surrender Date, as applicable, Landlord may either (x) offer the same employment by Landlord (or by the property manager engaged by Landlord) to Sections 4.01 any or all employees set forth on Schedule 2 (as such list may be updated from time to time by Tenant so as to appropriately reflect the employees employed as of the end of the term of this lease or as of the Surrender Date, as the case may be) who are union employees under their then current employment contracts or agreements, including any collective bargaining agreements or (y) terminate the employment of any or all such employees at the Real Property; provided, that, Landlord shall give consideration to (but in no event be bound by) the recommendations of Tenant with respect to the retention of any such employees. Landlord acknowledges that, (i) if Landlord terminates any of such union employees or (ii) if Landlord terminates any of the cleaning contractor, building engineer or xxxxxxxxx of the Building or requires those companies to reduce their employees at the Real Property from those listed on Schedule 2 and, as a result, any of the union employees engaged by such companies are terminated, then certain termination benefits may be payable with respect to such terminated employees. Landlord agrees that it shall be liable for the payment of all such termination benefits and 4.02 described hereby agrees to indemnify and hold harmless Tenant and any other Tenant Party from and against any loss, cost, damage, liability or expense (including, without limitations, reasonable attorneys' fees, court costs and disbursements) incurred by Tenant or any other Tenant Party arising from or by reason of Landlord's failure to pay such termination benefits as and when due and payable; provided, that, Tenant shall be responsible for the payment of termination benefits payable to any of such employees who provided services that solely benefited Tenant (as opposed to the Building or Real Property as a whole), and Tenant shall indemnify and hold Landlord harmless from and against any loss, cost, damage, liability or expense (including, without limitations, reasonable attorneys' fees, court costs and disbursements) incurred by Landlord arising from or by reason of Tenant's failure to pay such termination benefits as and when due and payable. Notwithstanding anything to the contrary contained in this Section 4.03, Landlord and Tenant agree that Tenant shall not have any liability hereunder with respect to the termination of employment of any employees who do not spend the predominance of their time providing services to the base building operations at the Real Property.
4.04. As a condition to the effectiveness of the exercise of the Surrender Option and the termination of this lease as it relates to the Surrender Space as of the Surrender Date, Tenant shall pay to Landlord an amount equal to (1) the product of (x) the then annual Fixed Rent per rentable square foot attributable to the Surrender Space, and (y) the rentable square feet of the Surrender Space, less (2) the Submetering Cost (not to exceed $500,000.00) (such amount is herein called the "Surrender Fee"). One-half of the Surrender Fee (without taking into account the off-set of the Submetering Cost) shall be payable by Tenant to Landlord upon the exercise of the Surrender Option and the other half (after taking into account the off-set of the Submetering Cost) upon the Surrender Date. To the extent the Submetering Cost is not fully applied against the Surrender Fee as of the Surrender Date (i.e., the Submetering Cost, subject to the $500,000.00 cap, exceeds the Surrender Fee, such excess herein called "Unapplied Submetering Cost"), the Unapplied Submetering Cost may be offset against the Surrender Fees payable under the Amended and Restated Lease with respect to all additional Tranche 1 Surrender Space and Tranche 2 Surrender Space (as such terms are defined in the Amended and Restated Lease). The Surrender Fee shall be accounted for by the parties and considered for all purposes as a fee for the termination of this lease as it relates to the Surrender Space and not as payment or consideration for the use or occupancy of the Premises. Landlord shall have the right to dispute the amount of Submetering Cost as being prudent (but not the scope of the Submetering Work set forth in Section 4.02(c)) and economical by submitting the matter to a binding, expedited arbitration in accordance with the provisions of Article 37. If Tenant shall in good faith competitively bid the Submetering Work to at least three (b3) above. Except as expressly provided in this section 1.05, independent non-affiliated bidders (but Tenant shall have no other right obligation hereunder to surrender any portion of bid such work), the Leased Premises next-to-lowest bid obtained shall be deemed to be reasonably prudent and economical (provided however that, subject to Landlord's dispute rights set forth herein, it shall not be construed that a bid that is higher than such next-to-lowest bid is automatically deemed not to be reasonably prudent or economical).
4.05. The provisions of this Article 4 shall survive the termination of this lease and of any restatement of this lease into the Amended and Restated Lease.
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SURRENDER OPTION. In the event that, at any time during the Term or any subsequent extension term, greater than fifty percent (a50%) of Tenant’s common stock is acquired by a third party other than an existing shareholder of Tenant, with the result that there is a change in the control of the Tenant, then upon notice to Landlord and delivery to Landlord of documentation evidencing such acquisition (“Surrender Notice”), Landlord and Tenant shall enter into an amendment to this Lease to reduce the square footage of the Premises by up to thirty percent (30%) (“Released Space”) of the then existing square footage. The location of the Released Space shall be designated by Tenant, but subject to Landlord’s approval, which shall not be unreasonably withheld, conditioned, or delayed. In order for Tenant to exercise the option to terminate this Lease as to the Released Space, Tenant shall provide Landlord with six (6) months prior written notice. Upon the effective date of the termination of the Lease as to the Released Space (i.e., six (6) months following delivery of written notice evidencing the acquisition and change in control), Tenant shall be required to pay to Landlord a fee (“Surrender Fee”) equal to the sum of (i) an amount equal to six (6) months of Base Rent and Tenant’s proportionate share of Operating Costs which would have been payable with respect to the Released Space during the next six (6) months following the due date of the Surrender Fee payment, (ii) the unamortized value of the Allowance expended by Landlord for the Landlord’s Work attributable to the Released Space, amortized over the original Term of the Lease, and (iii) the unamortized value of the leasing commissions expended by Landlord with respect to the Released Space, amortized over the original Term of the Lease. Tenant’s right to give Landlord the Surrender Notice shall commence upon the forty-second (42nd) month anniversary of the Lease Commencement Date (with the result that the earliest that Tenant would have the right to surrender all or any portion and vacate the Released Space and cease paying rent thereon would be the fourth (4th) anniversary of the Leased Premises (Lease Commencement Date. The parties intending to be bound hereby execute or cause this Lease to be executed this day of , 2004. OTR, an Ohio general partnership By: Signature Printed Name: Printed Name: Title: Date: Signature Printed Name: Signature Printed Name: CYBERGUARD CORPORATION, a Florida corporation By: Signature Printed Name Printed Name: Title: Date: Approximately 30,148 square feet of office and/or warehouse space located in units a building containing approximately 37,800 square feet situated on a tract of not land containing approximately 5.4377 acres on Parcel A of Intercenter II, according to the Plat thereof, as recorded in Plat Book 114, Page 1, of the Public Records of Broward County, Florida, together with Parcel B of Intercenter according to the Plat thereof, as recorded in Plat Book 106, Page 2, of the Public Records of Broward County, Florida, less than 15,000 RSF of contiguous space, provided however, that Tenant shall have the right to surrender and except therefrom that portion of the ground floor of the Building that is occupied by Tenantsaid Parcel A and said Parcel B as recorded in O.R. Book 9812, in accordance with the terms Pages 123 and conditions of this Section 1.05, notwithstanding that Tenant's ground floor premises may comprise less than 15,000 RSF), in reasonably leasable configuration and good condition, on either the sixth (6th) anniversary (the "First Surrender Date") or eighth (8th) anniversary (the "Second Surrender Date")124, of the Rent Commencement Date (hereinafter defined) (eachPublic Records of Broward County, a "Surrender Date"), by delivering written notice to Landlord (specifying the space to be surrendered and whether such space shall be surrendered on the First or Second Surrender Date) not later then nine (9) months preceding the applicable Surrender Date (time being of the essence). In the event of a surrender of all of the Leased Premises, then this Lease shall terminate as of the applicable Surrender Date as if such date were the Expiration Date hereof. Time shall be of the essence as to Tenant's obligation to deliver any space surrendered pursuant to this Section 1.05 by the applicable Surrender Date in vacant, broom-clean condition (provided, however, that the foregoing shall not require Tenant to remove any permanent leasehold improvements that it may have installed in the surrendered space in compliance with the terms hereof).
(b) If Tenant shall surrender less than the entire Leased Premises pursuant to this Section 1.05, then provided that Tenant shall have timely vacated the surrendered space in the condition required hereby and is not otherwise in monetary default hereunder beyond any applicable grace, notice and cure period, effective as of the applicable Surrender Date: (i) the surrendered space shall be deemed deleted from the Leased Promises for all purposesFlorida, and (ii) "Tenant's Share" shall be decreased the percentage being more particularly described as 000 X.X. 00xx Xxxxxx as shown in Exhibit B. Further described as Quadrant #7 situated within a development known as Quadrant Business Center Phase II consisting of rentable space in the Building constituting the surrendered space. Additionally, if Tenant shall surrender a portion of the Leased Premises on the First Surrender Date, then effective. as of such First Surrender Date, the Annual Rentals specified in Section 4.01 (b) (ii) hereof shall be decreased by an amount equal to $24.50 multiplied by the RSF of the surrendered space. If Tenant shall surrender a portion of the Leased Premises on the Second Surrender Date, then effective as of such Second Surrender Date the Annual Rental specified in Section 4.01 (b) (ii) hereof shall be further reduced by an amount equal to $24.50 multiplied by the RSF of the space surrendered on the Second Surrender Date.
(c) The RSF of any space surrendered by Tenant in accordance with this Section 1.05 shall be reasonably determined by Landlord utilizing the standards and practices that Landlord currently employs at Executive Park to determine RSF and shall be deemed to include any additional approximately 73,576 square footage which was allocated to the surrendered space by reason of common corridors. For purposes of this Section 1.05 only, the entire Building shall be deemed to comprise 94,016 RSF. Within seven (7) days following Landlord's notification of Tenant of any surrendered space's RSF, Landlord and Tenant shall execute and deliver to each other an agreement supplementary hereto setting forth the surrendered space's RSF and the appropriate modifications to Sections 4.01 and 4.02 described in Section (b) above. Except as expressly provided in this section 1.05, Tenant shall have no other right to surrender any portion of the Leased Premises to Landlord.feet
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Samples: Lease Agreement (Cyberguard Corp)
