EXHIBIT 10.46
LEASE
00 XXXXX XXXX XXXXXX XXXXXX, X.X.X.
XXXXXXXX
STARTEC GLOBAL COMMUNICATIONS CORPORATION
TENANT
TABLE OF CONTENTS
ARTICLE PAGE
1. USE, RESTRICTIONS ON USE AND COMPLIANCE WITH LAWS .......... 1
2. TERM ....................................................... 2
3. RENT ....................................................... 3
4. RENT ADJUSTMENTS ........................................... 3
5. SECURITY DEPOSIT ........................................... 5
6. ALTERATIONS ................................................ 5
7. REPAIR ..................................................... 6
8. LIENS ...................................................... 7
9. ASSIGNMENT AND SUBLETTING .................................. 7
10. INDEMNIFICATION ........................................... 8
11. INSURANCE ................................................. 9
12. WAIVER OF SUBROGATION ..................................... 9
13. SERVICES AND UTILITIES .................................... 9
14. HOLDING OVER .............................................. 10
15. SUBORDINATION ............................................. 10
16. RULES AND REGULATIONS ..................................... 10
17. REENTRY BY LANDLORD ....................................... 10
18. DEFAULT ................................................... 11
19. REMEDIES .................................................. 11
20. TENANT'S BANKRUPTCY FOR INSOLVENCY ........................ 13
21. QUIET ENJOYMENT ........................................... 13
22. DAMAGE BY FIRE, ETC. ...................................... 14
23. EMINENT DOMAIN ............................................ 14
24. SALE BY LANDLORD .......................................... 15
25. ESTOPPEL CERTIFICATES ..................................... 15
26. SURRENDER OF PREMISES ..................................... 15
27. NOTICES ................................................... 15
28. TAXES PAYABLE BY TENANT ................................... 15
29. DEFINED TERMS AND HEADINGS ................................ 16
30. TENANT'S AUTHORITY ........................................ 16
ARTICLE PAGE
31. COMMISSIONS ............................................... 16
32. TIME AND APPLICABLE LAW ................................... 16
33. SUCCESSORS AND ASSIGNS .................................... 16
34. ENTIRE AGREEMENT .......................................... 16
35. EXAMINATION NOT OPTION .................................... 16
36. RECORDATION ............................................... 16
37. LIMITATION OF LANDLORD'S LIABILITY ........................ 17
38. MISCELLANEOUS ............................................. 17
EXHIBIT A -- PREMISES
EXHIBIT B -- INITIAL ALTERATIONS
EXHIBIT C -- RULES AND REGULATIONS
EXHIBIT D -- LIST OF APPROVED CONTRACTORS
EXHIBIT E -- LOCATION OF DESIGNATED AREAS
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the
Premises in the Building as set forth and described on the Reference Page. The
Reference Page, including all terms defined thereon, is incorporated as part of
this Lease.
1. USE, RESTRICTIONS ON USE AND COMPLIANCE WITH LAWS.
1.1 The Premises are to be used solely for the operation, installation,
maintenance, repair and replacement of telecommunications equipment and its
related facilities and for general office use. Tenant shall not do or permit
anything to be done in or about the Premises or the Building which will in any
way obstruct or interfere with the rights of other tenants or occupants of the
Building or injure, annoy, or disturb them or allow the Premises to be used for
any improper or unlawful or objectionable purpose. Tenant shall not do, permit
or suffer in, on, or about the Premises the sale of any alcoholic liquor without
the written consent of Landlord first obtained, or the commission of any waste.
Tenants shall comply with all government laws, ordinances and regulations
applicable to the use of the Premises and its occupancy and shall promptly
comply with all governmental orders and directions for the correction,
prevention and abatement of any violations in or upon, or in connection with,
the Premises, related to Tenant's use of the Premises, all at Tenant's sole
expense. Tenant shall not do or permit anything to be done on or about the
Premises or the Building or bring or keep anything into the Premises which will
in any way increase the rate of, invalidate or prevent the procuring of any
insurance protecting against loss or damage to the Building or any of its
contents by fire or other casualty or against liability for damage to property
or injury to persons in or about the Building or any part thereof, provided,
however, that Landlord represents and warrants that Tenant's intended use as a
telecommunications center as provided for in this Lease shall not cause any
increase in the rate or, invalidate or prevent the procuring of any such
protections. Landlord acknowledges and agrees that Tenant may enter into
agreements with its customers and/or end users ("Collocation Agreements")
providing for physical location of telecommunication equipment and facilities
within the Premises, maintained and serviced by Tenant and placed in the
Premises and Tenant's sole cost, expenses and risk, provided that such
Collocation Agreements shall be subordinate to the Lease and to any mortgages,
deeds of trust, or land sale contracts now or in the future, against the
Building. Tenant may enter into Collocation Agreements with third parties, for
the use of the Premises at the sole discretion of Tenant, and any provision of
the subletting and assignment provisions of this Lease to the contrary
notwithstanding, such Collocation Agreements shall not be construed as an
assignment or sublet.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees to at any time handle,
use, manufacture, store or dispose of in or about the Premises or the Building
any (collectively "Hazardous Materials") flammables, explosives, radioactive
materials, hazardous wastes or materials, toxic wastes or materials, or other
similar substances, petroleum products or derivatives or any substance subject
to regulation by or under any Environmental Laws, except if handled, used,
stored and disposed of in accordance with applicable Environmental Laws. Tenants
shall protect, defend, indemnify and hold each and all of the Landlord Entities
(as defined in Article 29) harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney's fees) incurred by
reason of any actual or asserted failure of Tenant to fully comply with all
applicable Environmental Laws, or the presence, handling, use or disposition in
or from the Premises of any Hazardous Materials (even though permissible under
all applicable Environmental Laws or the provisions of this Lease), or by reason
of any actual or asserted failure of Tenant to keep, observe, or perform any
provision of this Section 1.2. Tenant's use of batteries, generator and fuel
tank are acceptable, provided such items comply with all applicable
Environmental Laws and provided further Tenant removes all such items on or
prior to the termination or expiration of this Lease. Tenant agrees to indemnify
Landlord from and against any loss, cost, damage, lawsuit, claim or liability
arising from the presence of these items in the Premises, except if caused by
Landlord's negligence or willful misconduct. Landlord represents that prior to
November 4, 1998, any known friable asbestos shall be removed from the Premises,
ground floor and all risers of the Building and all known non-friable asbestos
in such locations shall be removed or encapsulated, all at Landlord's cost by a
party licensed to remove asbestos. No other Hazardous Materials are known by
Landlord to exist in the Building. Landlord shall, prior to the Commencement
Date, deliver to Tenant a Certificate of Environmental Compliance, if available,
or other similar document.
Landlord shall comply with and shall cause the Building to be in
compliance with all applicable Laws (as hereinafter defined) as of the date of
this Lease. Subject to the preceding sentence, Tenant shall comply with all
applicable Laws with respect to its use and occupancy of the Premises and in
its construction of Tenant's Improvements; provided, however, Tenant shall only
be responsible for making improvements to the Premises (capital or otherwise)
required by applicable Laws if the necessity arises from Tenant's use of the
Premises. As used herein, "Laws" shall mean all federal, state, county and
local governmental laws, statutes, codes, ordinances, rules, regulations,
decrees, orders and other such requirements now or hereafter imposed, including
but not limited to, the ADA and any and all Environmental Law. As used herein,
"ADA" means the Americans With Disabilities Act of 1990 (42 U.S.C. '1201 et
seq.) and the regulations and guidelines promulgated or published thereunder,
as any of the foregoing may from time to time be amended. As used herein,
"Environmental Law" means all legal requirements relating to (a) the protection
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of the environment, the safety and health of persons (including employees) or
the public welfare from actual or potential exposure (or effects of exposure)
to any actual or potential release, discharge, disposal or omission (whether
past or present) of any Hazardous Materials (as hereinafter defined) or (b) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of any Hazardous Materials, including, but not limited
to, the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act
of 1986, 42 U.S.C. '9601 et seq., the Solid Waste Disposal Act, as amended by
the Resource Conversation and Recovery Act of 1976, as amended by the Solid and
Hazardous Waste Amendments of 1984, 42 U.S.C. '6901 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C.
'1251 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. '2601 et
seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
'1101 et seq., the Clean Air Act of 1966, as amended, 42 U.S.C. '7401 et seq.,
the National Environmental Policy Act of 1975, 42 U.S.C. '4321, the Rivers and
Harbors Act of 1899, 33 U.S.C. '401 et seq., the Endangered Species Act of
1973, as amended, 16 U.S.C. '1531 et seq., the Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. '651 et seq., and the Safe Drinking Water
Act of 1974, as amended, 42 U.S.C. '300(f) et seq., and all rules, regulations
and guidance promulgated or published thereunder, as any of the foregoing may
from time to time be amended.
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be February 1, 1999, provided the Commencement Date shall be
extended one (1) day for each day after November 4, 1998 that Landlord's Work is
not substantially completed unless delayed because of Tenant's act or omission.
Landlord shall tender possession of the Premises on the Commencement Date with
all the work, if any, to be performed by Landlord pursuant to Exhibit B to this
Lease ("Landlord's Work") substantially completed. Unless Tenant advises
Landlord in writing to the contrary within ten (10) days of the Commencement
Date, it shall be assumed that Landlord's Work is substantially complete upon
delivery of the Premises to Tenant. Tenant may commence any work to be performed
by Tenant while Landlord is performing Landlord's work, provided Tenant does not
cause any delay in Landlord's work and Tenant indemnifies Landlord from and
against any loss, cost, claim, lawsuit, damage or liability incurred by Landlord
as a result of Tenant's entry onto the Premises prior to the Commencement Date,
or the entry of Tenant's agents, employees or contractors. On or before the date
that Landlord substantially completes Landlord's Work and deliver possession of
the Premises to Tenant, Landlord shall provide Tenant with temporary power to
enable Tenant to complete its tenant finish in the Premises. Prior to performing
any actual construction work in the Premises, Tenant must procure any necessary
building permits. Landlord and Tenant shall execute a memorandum setting forth
the actual Commencement Date and Termination Date. Subject to delays caused by
Tenant, or its agents or employees, in the event that Landlord is unable to
deliver the Premises with Landlord's Work substantially completed before
November 4, 1998, the Commencement Date specified above shall be extended as
provided in the first sentence of this Section 2.1. After twenty-one (21) days
of delay, Tenant shall have the right to terminate the lease upon written notice
to Landlord within ten (10) days of the accrual of such right and Landlord shall
reimburse Tenant for any third-party architectural/engineering fees and legal
expenses, up to a maximum of $50,000.00, incurred by Tenant after September 15,
1998 through the termination date.
2.2 Landlord shall permit Tenant to occupy the Premises prior to the
Commencement Date to complete Tenant Improvements. Such occupancy shall be
subject to all the provisions of this Lease. Said early possession shall not
advance the Commencement Date or Termination Date.
2.3 Landlord grants Tenant the right and option to extend the Term for the
option periods indicated in the Renewal Option Section of the Reference Pages
(each a "Renewal Term"). Tenant shall notify Landlord in writing of its election
to extend this Lease for each Renewal Term not less than nine (9) months nor
more than twelve (12) months prior to the expiration date of the then existing
Term. Tenant's failure to timely exercise any option hereunder shall cause the
automatic extinguishment thereof, time being of the essence. Each Renewal Term
shall be upon all of the terms, covenants, and conditions of this Lease except
that the Annual Rent payable during the Renewal Term shall be ninety five
percent (95%) of the then current fair market rental ("Market Rate") for
comparable space in the Building and in other telecommunication buildings in the
downtown Miami, Florida area at the time of the exercise of the renewal option.
Landlord shall advise Tenant of the fair market rental within fifteen (15) days
after receipt of written request therefor. Thereafter, Landlord and Tenant shall
agree as to fair market value. Said request shall be made no earlier than thirty
(30) days prior to the first date on which Tenant may exercise its option under
this paragraph. Notwithstanding the above, Tenant shall have no right to extend
or renew this Lease if (i) it is in default beyond the curative period at the
time of giving its notice of renewal; (ii) Tenant is in default and beyond any
applicable cure period as of the first day of the extended Term which was the
subject of such notice; or (iii) neither Tenant nor any of Tenant's Permitted
Assignees is not occupying the Premises.
2.4 Within thirty (30) days after Landlord's receipt of Tenant's renewal
notice, Landlord shall provide to Tenant its determination of the Market Rate
("Landlord's Determination"). Within fifteen (15) days of Tenant's receipt of
Landlord's Determination, Tenant shall either accept Landlord's Determination or
propose a different Market Rate to Landlord. If Landlord and Tenant are unable
to agree upon a Market Rate within thirty (30) days after Tenant's receipt of
Landlord's Determination, then Landlord and Tenant shall, within fifteen (15)
days of Tenant's receipt of Landlord's Determination, each simultaneously submit
to the other in writing its good faith estimate of the Market Rate.
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If the higher of said estimates is not more than one hundred and five percent
(105%) of the lower of such estimates, the Market Rate in question shall be
deemed to be the average of the submitted rates. If otherwise, within fifteen
(15) days thereafter, Tenant may either terminate this Lease effective as of the
Expiration Date or establish the rate by an arbitration to be held in Miami,
Florida in accordance with the Real Estate Valuation Arbitration Rules of the
American Arbitration Association, except that the arbitration shall be conducted
by a single arbitrator, selected jointly by Landlord and Tenant, and shall be on
the basis that the arbitrator shall pick one of the two rates submitted, being
the rate which is closer to the Market Rate as determined by the arbitrator. The
parties agree to be bound by the decision of the Arbitrator, which shall be
final in this and non-appealable, and shall share equally the costs of
arbitration, and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. During each of the Renewal
Terms (if applicable), Tenant shall pay Direct Expenses and Taxes in accordance
with the provision of Paragraph 4.
3. RENT.
3.1 Commencing on the Rent Commencement Date, Tenant agrees to pay to
Landlord the Annual Rent in effect from time to time by paying the Monthly
Installment of Rent then in effect on or before the first day of each full
calendar month during the Term. The Monthly Installment of Rent in effect at any
time shall be one-twelfth of the Annual Rent in effect at such time. Rent for
any period during the Term which is less than a full month shall be a prorated
portion of the Monthly Installment of Rent based upon a thirty (30) day month.
Said rent shall be paid to Landlord, without deduction or offset and without
notice or demand, at the Landlord's address, as set forth on the Reference Page,
or to such other person or at such other place as Landlord may from time to time
designate in writing. Notwithstanding the above and subject to Section 2.1
above, Tenant's rent commencement date shall begin sixty (60) days after the
Commencement Date ("Rent Commencement Date"). Landlord and Tenant shall execute
an amendment to the Lease setting forth the final Rent Commencement Date.
Commencing on the first anniversary of the Rent Commencement Date and on each
anniversary thereafter, including during any Renewal Term, the Annual Rent shall
increase Fifty Cents ($0.50) per rentable square foot.
3.2 Tenant recognizes that the late payment of any rent or other sum due
under this Lease will result in administrative expense to Landlord, the extent
of which additional expense is extremely difficult and economically impractical
to ascertain. Tenant therefore agrees that if rent or any other sum is not paid
by the tenth (10th) day of each month, a late charge shall be imposed in an
amount equal to a sum equal to five percent (5%) of the unpaid rent or other
payment. The amount of the late charge to be paid by Tenant shall be reassessed
and added to Tenant's obligation for each successive monthly period until paid.
The provisions of this Section 3.2 in no way relieve Tenant of the obligation to
pay rent or other payments on or before the date on which they are due, nor do
the terms of this Section 3.2 in any way affect Landlord's remedies pursuant to
Article 19 of this Lease in the event said rent or other payment is unpaid after
date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined as
follows:
4.1.1 LEASE YEAR: Each calendar year falling partly or wholly within
the Term.
4.1.2 DIRECT EXPENSES : All direct costs of operation, maintenance,
repair and management of the Building (including the amount of any credits which
Landlord may grant to particular tenants of the Building in lieu of providing
any standard services or paying any standard costs described in this Section
4.1.2 for similar tenants), as determined in accordance with generally accepted
accounting principles, including the following costs by way of illustration, but
not limitation: water and sewer charges; insurance charges of or relating to all
insurance policies and endorsements deemed by Landlord to be reasonably
necessary or desirable and relating in any manner to the protection,
preservation, or operation of the Building or any part thereof; utility costs,
including, but not limited to, the cost of heat, light, electricity, power,
steam, gas, and waste disposal; the cost of janitorial services; the cost of
security and alarm services; window cleaning costs; labor costs; costs and
expenses of managing the Building including management fees (not to exceed
normal and customary management fees for similar buildings); air conditioning
maintenance costs; elevator maintenance fees and supplies; material costs; the
cost of maintenance, repair and service agreements; purchase costs of equipment
other than capital items; tool costs; licenses, permits and inspection fees;
wages and salaries of on-site Building personnel; employee benefits and payroll
taxes; accounting and legal fees (except legal fees in connection with specific
tenant leases); any sales, use or service taxes incurred in connection
therewith. Notwithstanding the above, Direct Expenses shall not include:
(a) commission payable to any real estate broker(s) for the
leasing of space in the Building;
(b) the cost of any work done by Landlord for and at the expense
of any particular tenant(s) in the Building which do not benefit Tenant;
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(c) interest or penalties for overdue payments of Taxes;
(d) the cost to Landlord of repairs made, or other work done, by
Landlord as a result of fire, windstorm or other insurable casualty to the
extent for which Landlord has received insurance proceeds, or by the exercise of
eminent domain, provided, however, that this exclusion for eminent domain is
limited to the amount of the condemnation award received by Landlord in
compensation for such repairs or other work;
(e) attorney's fees and court costs and other such expenses
incurred by Landlord in connection with the negotiation of disputes with
existing or prospective tenants of the Building;
(f) the costs to Landlord of renovating, decorating, painting or
redecorating interior space for the actual premises of tenants of the Building;
(g) amounts for which reimbursement has been made to Landlord by
tenants of the Building for "extra hours" services rendered to them by Landlord
for which Tenant does not benefit;
(h) interest on debt or amortization payments on any mortgages
and/or rental under any ground or underlying leases covering Landlord's
Property;
(i) compensation paid by Landlord to persons engaged in
commercial concessions operated by Landlord (and not by a third party) on
Landlord's Property (e.g., a newspaper stand or shoeshine service or valet
parking);
(j) expenses paid by Landlord for the advertising and promotion
of rental space in the Building;
(k) fines, penalties or other costs incurred by Landlord due to
its violation of any governmental laws;
(l) costs incurred by Landlord for the purchase of sculptures,
paintings or other objects of art for Landlord's Property, if any;
(m) depreciation expense on the Building;
(n) the overtime hours charges for electricity used and paid for
by other tenants;
(o) salaries, wages and benefits of Landlord's employees above
the level of "Building Manager".
4.1.3 TAXES: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the land
appurtenant to the Building, or with respect to any improvements, fixtures and
equipment or other property of Landlord, real or personal, located in the
Building and used in connection with the operation of the Building and said
land, any payments to any ground lessor in reimbursement of tax payments made by
such lessor; and all fees, expenses and costs incurred by Landlord in
investigating, protesting, contesting or in any way seeking to reduce or avoid
increase in any assessments, levies or the tax rate pertaining to any Taxes to
be paid by Landlord in any Lease Year. Taxes shall not include any corporate
franchise, or estate, inheritance or federal or state income tax, or tax imposed
upon any transfer by Landlord of its interest in this Lease or the Building. In
the event that during the Base Year, as hereafter defined, the Building is not
fully rented and occupied Landlord shall make an appropriate adjustment in Taxes
for such year for the purpose of avoiding distortion of the amount of such
Taxes, and the adjustment so determined shall be deemed to have been Taxes for
such year. Base Year, as used in this Lease shall mean the calendar year 1999
for the original Term; the calendar year 2009 for the first Renewal Option; and
the calendar year 2014 for the second Renewal Option.
4.2 Tenant shall pay as additional rent for each calendar year Tenant's
Proportionate Share of any increase in Direct Expenses and Taxes incurred for
such calendar year, above the amount of such Direct Expenses and Taxes for the
Base Year. Notwithstanding anything herein to the contrary, Tenant's
Proportionate Share of Direct Expenses (excluding common area utilities and
insurance) for any calendar year after the Base Year shall not exceed 105% of
Tenant's Proportionate Share of Direct Expenses (excluding common area utilities
and insurance) for the immediately preceding calendar year ("CAM Cap");
provided, however, if the Tenant's Proportionate Share of Direct Expenses
(excluding common area utilities and insurance) in any calendar year as
calculated as if there were no CAM Cap ("Uncapped CAM Costs") is greater than
Tenant's Proportionate Share of Direct Expenses (excluding common area utilities
and insurance) as calculated pursuant to the CAM Cap ("Capped CAM Costs"), the
difference between the Uncapped CAM Costs and the Capped CAM Costs may be
accumulated and applied toward Tenant's Proportionate Share of Direct Expenses
(excluding utilities and insurance) in any future calendar year in which
Tenant's Uncapped CAM Costs are less than the Capped CAM Costs. However,
Tenant's Proportionate Share of Direct Expenses
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(excluding utilities and insurance) in any given calendar year shall not exceed
the Capped CAM Costs for the given calendar year.
4.3 The annual determination of Direct Expenses shall be made by Landlord
and if certified by a nationally recognized firm of public accountants selected
by Landlord. In the event that during the Base Year, the Building is not fully
rented and occupied Landlord shall make any appropriate adjustment in occupancy
related Direct Expense for such year for the purpose of avoiding distortion of
the amount of such Direct Expenses to be attributed to Tenant by reason of
variation in total occupancy of the Building, by employing sound accounting and
management principals to determine Direct Expenses that would have been paid or
incurred by Landlord had the Building been fully rented and occupied, and the
amount so determined shall be deemed to have been Direct Expenses for such
calendar year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may once a year estimate Tenant's liability for Direct Expenses and/or Taxes
under Section 4.2 and Article 28 for the Lease Year or portion thereof. Landlord
will give Tenant written notification of the amount of such estimate and Tenant
agrees that it will pay, by increase of its Monthly Installments of Rent due in
such Lease Year, additional rent in the amount of such estimate. Any such
increased rate of Monthly Installments of Rent pursuant to this Section 4.4
shall remain in effect until further written notification to Tenant pursuant
hereto.
4.5 When the above mentioned actual determination of Tenant's liability for
Direct Expenses and/or Taxes is made for any Lease Year and when Tenant is so
notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to
Section 4.4 on account of Direct Expenses and/or Taxes for the Lease Year is
less than Tenant's liability for Direct Expenses and/or Taxes, then Tenant shall
pay such deficiency to Landlord as additional rent in one lump sum within (30)
days of receipt of Landlord's xxxx therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to
Section 4.4 on account of Direct Expenses and/or Taxes for the Lease Year is
more than Tenant's liability for Direct Expenses and/or Taxes, then Landlord
shall credit the difference against the then next due payments of Rent and
Direct Expenses and Taxes, if the Term has ended, shall be paid to Tenant within
thirty (30) days after the date Landlord makes any such determination.
4.6 If the Commencement Date is other than January 1 or if the Termination
Date is other than December 31, Tenant's liability for Direct Expenses and Taxes
for the Lease Year in which said Date occurs shall be prorated based upon a
three hundred sixty-five (365) day year.
4.7 In the event any dispute arises between Landlord and Tenant, as to
Direct Expenses, Tenant shall have the right, upon reasonable notice, to inspect
Landlord's records concerning the Direct Expenses of the Building. If, after
such inspection, Tenant continues to dispute Direct Expenses, Tenant shall be
entitled to retain an independent accountant or accountancy frim that has a
specialty in auditing operting expenses to conduct an audit. If Tenant's audit
reveals that Landlord has overchanged Tenant, after Landlord has been afforded
an opportunity to explain any contrary position on the matter to Tenant's
accounting frim (with any disputes being resolved in good faith by the parties),
then Tenant shall receive a credit against the next month's Rent in the amount
of such overcharge. If the audit reveals that Tenant was undercharged, then
within five (5) days after the results of such audit are made available to
Tenant, Tenant shall reimburse Landlord for the amount of such undercharge.
Tenant shall pay the cost of any audits requested by Tenant, unless any audit
reveals that Landlord's determination of the Direct Expenses was in error by
more than five percent (5%), in which case, Landlord shall pay the cost of such
audit. Except in the event of fraud by Landlord, failure on the part of tenant
to object to the Direct Expense Statement within one (1) year after its receipt
thereof shall be conclusively deemed Tenant's approval of such Direct Expense
Statement. All inspections shall be made at Landlord's offices, during normal
business hours, with at least ten (10) days prior written notice.
5. SECURITY DEPOSIT. Intentionally Omitted.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, the attachment of any fixtures or
equipment in, on, or to the Premises or any part thereof or the making of any
improvements as required by Article 7 ("Alterations"), without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by landlord, furnish complete plans and specifications for such alterations,
additions and improvements, if applicable. Landlord's consent shall not be
unreasonably withheld, conditioned or delayed for nonstructural Alterations
which are not visible from the exterior of the Premises.
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6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made by a licensed, bonded
and insured contractor approved by Landlord, such approval not be unreasonably
withheld, conditioned or delayed, at Tenant's sole cost and expense. If Tenant
shall employ any contractor other than Landlord's pre-approved contractor, and
such other contractor or any subcontractor of such other contractor shall employ
labor and/or suppliers, then Tenant shall be responsible for and hold Landlord
harmless from any and all delays, damages and extra costs suffered by Landlord
as a result of any dispute with any labor concerning the wage, hours, terms or
conditions of the employment of any such labor.
6.3 All alterations, additions, and improvements proposed by Tenant shall
be constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant shall, prior to construction, provide the additional
insurance required under Article 11 in such case, and also all such assurances
to Landlord, including but not limited to, waivers of lien, as Landlord shall
require to assure payment of the costs thereof and to protect Landlord and the
Building and appurtenant land against any loss from any mechanic's,
materialmen's or other liens. Tenant shall pay in addition to any sums due
pursuant to Article 4, any increase in real estate taxes attributable to any
such alteration, addition or improvement for so long, during the Term, as such
increase is ascertainable; at Landlord's election said sums shall be paid in the
same way as sums due under Article 4.
6.4 All alterations, additions, and improvements, in, on , or to the
Premises or in, on or to the Building made or installed by Tenant, including
carpeting, shall be and remain the property of Tenant during the Term but,
excepting furniture, furnishings, telecommunication switch equipment, batteries,
generators, condensers, dry coolers, conduits, cabling, pull boxes, and other
telecommunication related facilities, movable partitions of less than full
height from floor to ceiling and other trade fixtures, all of which shall be
removed from the Premises and the Building at Tenant's expense if required to be
removed by Landlord in a written document delivered to Tenant at the time
Landlord approves Tenant's plans and specifications and the Premises restored to
its original condition, and any remaining improvements, shall become a part of
the realty and belong to Landlord without compensation to Tenant upon the
expiration or sooner termination of the Term, at which time title shall pass to
Landlord under this Lease as by a xxxx of sale, unless Landlord elects
otherwise. Upon such election by Landlord, Tenant shall upon demand by Landlord,
at Tenant's sole cost and expense, forthwith and with all due diligence remove
any such alterations, additions or improvements, including any which are
designated by Landlord to be removed, and Tenant shall forthwith and with all
due diligence, at its sole costs and expense, repair and restore the Premises
and the Building to their original condition, reasonable wear and tear and
damage by fire or other casualty excepted.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises or the Building, except as specified in Exhibit B
if attached to this Lease and except that Landlord shall repair and maintain the
structural portions of the Building, including the roof and the basic plumbing,
common area air conditioning, heating and electrical systems installed or
furnished by Landlord and all common areas of the Building in working order and
condition. By taking possession of the Premises, Tenant accepts them as being in
good order condition and repair and in the condition in which Landlord is
obligated to deliver them subject to the items set forth on the punchlist
prepared in accordance with Section 2.1. It is hereby understood and agreed that
no representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, expect as specifically set forth in this Lease.
7.2 Tenant shall at its own cost and expense keep and maintain all parts of
the Premises and improvements therein in good condition, promptly making all
necessary repairs and replacements, whether ordinary or extraordinary, with
materials and workmanship of the same character, kind and quality as the
original (including, but not limited to, repair and replacement of all fixtures
installed by Tenant, windows, glass and plate glass, doors, any special office
entries, interior walls and finish work, floors and floor coverings, heating and
air conditioning systems serving the Premises, electrical systems and fixtures
and sprinkler systems), if applicable. Tenant as part of its obligations
hereunder shall keep the Premises in a clean and sanitary condition. Tenant
will, as far as possible keep all such parts of the Premises from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will deliver the Premises to
Landlord in good condition and repair, loss by fire or other casualty excepted
and ordinary wear and tear excepted. Tenant shall, at its own cost and expense,
repair any damage to the Premises or the Building resulting from and/or caused
in whole or in part by Tenant, its agents, employees, invitees, or any other
person entering upon the Premises as a result of Tenant's business activities or
caused by Tenant's default hereunder.
7.3 Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time which shall be determined in Landlord's reasonable discretion after written
notice of the need of such repairs or maintenance is given to Landlord by
Tenant.
7.4 Except as provided in Articles 22, there shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building unless due to Landlord's
negligence or willful misconduct, in which event, after three (3) days, Tenant
shall receive one (1) day of Rent abatement for each day Tenant is unable to
operate in the Premises until Tenant can again
6
operate in the Premises. Except to the extent, if any, prohibited by law, Tenant
waives the right to make repairs at Landlord's expense under any law, statute or
ordinance now or hereafter in effect.
7.5 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
and/or an employee certified by manufacturer, selected by Tenant and approved by
Landlord for servicing all heating and air conditioning systems and batteries,
generators and fuel tanks serving the Premises (and a copy thereof shall be
furnished to Landlord). The service contract must include all services suggested
by the equipment manufacturer in the operation/maintenance manual and must
become effective within thirty (30) days after the Commencement Date.
7.6 In recognition of Tenant's use, Landlord shall use good-faith efforts
to provide Tenant (except in the case of emergency, in which event Landlord
shall use reasonable efforts, but shall not be required, to provide Tenant with
prior notice) not less than twenty four (24) hours prior written notice of
Landlord's intent to enter the Premises provided such entry shall not disrupt
Tenant's service to its clients, and not less than forty eight (48) hours prior
written notice of Landlord's intention to enter the Premises to effect planned
repairs (including, but not limited to electrical, mechanical or plumbing work)
if such work will materially disrupt and/or interfere with the business of
Tenant within the Premises or Building in a manner which will, in Landlord's
reasonable opinion, affect Tenant's use. In such circumstances Tenant and
Landlord will cooperate to determine an appropriate time. Further, in emergency
situations Landlord shall use reasonable care and precaution in order to
minimize the disruptions in Tenant's business.
8. LIENS. Tenant shall keep the Premises, the Building and appurtenant land
and Tenant's leasehold interest in the Premises free from any liens arising out
of any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. Notice is hereby given that Landlord
shall not be liable for any work performed or to be performed on the Premises,
or for any materials furnished or to be furnished at or to the Premises, or any
building or improvements thereon, for Tenant or any subtenant, and that no
mechanic's or other lien for such work or materials shall attach to the interest
of Landlord. This Lease specifically prohibits the subjecting of the Premises,
or any part of it, to any liens for improvements Tenant makes or causes to be
made or for which Tenant is directly or indirectly responsible for payment.
Pursuant to Section 713.10, Florida Statutes, all persons dealing with Tenant
are hereby given notice of this provision, and Tenant hereby covenants and
agrees to provide all persons dealing with Tenant with a copy of this Section 8.
If, in connection with any work being performed by Tenant or any subtenant or in
connection with any materials being furnished to Tenant or any subtenant, any
mechanic's lien or other lien or charge shall be filed or made against the
Premises or any building or improvements thereon or any part thereof, or if any
such lien or charge shall be filed or made against Landlord as owner, then
Tenant, at Tenant's cost and expense, within thirty (30) days after such lien or
charge shall have been filed or made (but in any event prior to foreclosure),
shall cause the same to be cancelled and discharged of record by payment thereof
or filing a bond or otherwise, and shall also defend any action, suit or
proceeding which may be brought for the enforcement of such lien or charge, and
shall pay any damages, costs and expenses, including attorneys' fees, suffered
or incurred therein by Landlord, and shall satisfy and discharge any judgment
entered therein within thirty (30) days from entering of such judgment by
payment thereof or filing of a bond, or otherwise. In the event of the failure
of Tenant to discharge within the above-mentioned thirty (30)-day period, any
lien, charge or judgment herein required to be paid or discharged by Tenant,
Landlord may pay such items or discharge such liability by payment or bond or
both, and Tenant will repay to Landlord, upon demand, any and all amounts paid
by Landlord therefor, or by reason of any liability on any such bond, and also
any and all incidental expenses, including attorneys' fees and costs, incurred
by Landlord in connection therewith.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord not to be unreasonably
withheld or delayed and said restrictions shall be binding upon any and all
assignees of the Lease and subtenants of the Premises. In the event Tenant
desires to sublet, or permit such occupancy of, the Premises, or any portion
thereof, or assign this Lease, Tenant shall give written notice thereof to
Landlord at least thirty (30) days prior to the proposed commencement date of
such subletting or assignment, which notice shall set forth the name of the
proposed subtenant or assignee, the relevant terms of any sublease or assignment
and copies of financial reports and other relevant financial reports and other
relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet, Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect
directly from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due
7
to Landlord from Tenant under this Lease, and no such collection shall be
construed to constitute a novation or release of Tenant from the further
performance of Tenant's obligations under this Lease.
9.3 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to fifty
percent (50%) of any Increased Rent (as defined below) when and as such
Increased Rent is received by tenant. As used in this Section, "Increased Rent"
shall mean the excess of (i) all rent and other consideration which Tenant is
entitled to receive by reason of any sale, sublease, assignment or other
transfer of this Lease, over (ii) the rent otherwise payable by Tenant under
this Lease at such time. For purposes of the foregoing, any consideration
received by Tenant in form other than cash shall be valued at its fair market
value as determined by Landlord in good faith. Tenant's expenses of assigning or
subletting (including brokerage commissions, reasonable legal fees and
reasonable costs of redecorating the space for the assignee or subtenant) shall
also be deducted in determining the "Increased Rent".
9.4 Notwithstanding any other provision hereof, Tenant shall have no right
to make any assignment of this Lease or sublease of any portion of the Premises
if at the time of either Tenant's notice of the proposed assignment or sublease
or the proposed commencement date thereof, there shall exist any Event of
Default of Tenant or matter which will become a default of Tenant with passage
of time unless cured, or if the proposed assignee or sublessee is an entity: (a)
with which Landlord is already in negotiation as evidenced by the issuance of a
written proposal; (b) is already an occupant of the Building; (c) is a
governmental agency; (d) is incompatible with the character or occupancy of the
Building; or (e) would subject the Premises to a use which would: (i) violate
any exclusive right granted to another tenant of the Building; (ii) require any
addition to or modification of the Premises or the Building in order to comply
with building code or other governmental requirements; or, (iii) involve a
violation of Section 1.2.
9.5 The assignment or other transfer of Tenant's interest under this Lease
or the sublease of the Premises of an affiliate, subsidiary or successor of
Tenant shall not be deemed an assignment or subletting of the Premises as to
which Tenant must obtain Landlord's consent (however, Tenant must provide thirty
(30) days prior written notice to Landlord). The terms affiliate and subsidiary
and successor shall have the following meaning:
(a) any corporation which directly or indirectly controls or is
controlled by or is under common control with Tenant.
(b) any subsidiary, meaning any corporation not less than 50% of whose
outstanding stock shall, at the time, be owned directly or indirectly by Tenant.
(c) any successor, meaning:
(i) A corporation into which or with which Tenant, its corporate
successors or assigns, is merged or consolidated in accordance with applicable,
statutory provisions for merger or consolidation of corporations, but only if,
by operation of law or by effective provisions contained in the instruments of
merger or consolidation, the liabilities of the corporations participating in
such merger or consolidation are assumed by the corporation surviving such
merger or created by such consolidation; or,
(ii) Any corporation acquiring this Lease and the Premises hereby
demised and a substantial portion of the property and assets of Tenant, its
corporate successors or assigns; or
(iii) Any corporation or successor corporation becoming such by
either of the methods described in Subsections (a) or (b) above, but only if, on
the completion of such merger, consolidation, acquisition, or assumption, the
successor has a net worth in excess of Tenant's immediately prior to such
merger, consolidation, acquisition or assumption. Acquisition by Tenant, its
corporate successors or assigns, of a substantial portion of the assets,
together with the assumption of all or substantially all the obligations and
liabilities of any corporation, shall be deemed a merger of such corporation
into Tenant for purposes of this Section.
10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant
hereby waives all claims against them for any damage to any property or any
injury to any person in or about the Premises or the Building by or from any
cause whatsoever (including without limiting the foregoing, rain or water
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas, fire, oil, electricity or theft), except to the extent caused by or
arising from the negligence or willful misconduct of Landlord or its agents,
employees or contractors. Tenant shall protect, indemnify and hold the Landlord
Entities harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of (a) any damage
to any property (including but not limited to property of any Landlord Entity)
or any injury (including but not limited to death) to any person occurring in,
on or about the Premises or the Building to the extent that such injury or
damage shall be caused by or arise from any act or omission of Tenant, its
agents, servants, employees, invitees, or visitors; (b) the conduct or
management of any work or thing whatsoever done by the Tenant in or about the
Premises; or (c) Tenant's failure to comply with any and all governmental laws,
ordinances and regulations applicable to the condition or use of the Premises or
its occupancy which are Tenant's responsibility under
8
the Lease. The provisions of this Article shall survive the termination of this
Lease with respect to any claims or liability accruing prior to such
termination. Tenant shall not be liable and Landlord hereby waives all claims
against Tenant for any damage to any property or any injury to any person in or
about the Premises or the Building by or from any cause whatsoever (including
without limiting the foregoing, rain or water leakage of any character from the
roof, windows, walls, basement, pipes, plumbing works or appliances, the
Building not being in good condition or repair, gas, fire, oil, electricity or
theft), except to the extent caused by or arising from the negligence or willful
misconduct of Tenant or its agents, employees or contractors. Landlord shall
protect, indemnify and hold Tenant harmless from and against any and all loss,
claims, liability or costs (including court costs and attorney's fees) incurred
by reason of (a) any damage to any property or any injury (including but not
limited to death) to any person occurring in, on or about the Premises or the
Building to the extent that such injury or damage shall be caused by or arise
from any act or omission of Landlord, its agents, servants, employees, invitees,
or visitors; or (b) the conduct or management of any work or thing whatsoever
done by the Landlord in or about the Premises. The provisions of this Article
shall survive the termination of this Lease with respect to any claims or
liability accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $2,000,000.00 per occurrence and
not less than $4,000,000.00 in the annual aggregate (part of which may come from
an umbrella insurance policy), or such larger amount as Landlord may prudently
require from time to time, covering bodily injury and property damage liability
and $1,000,000 products/completed operations aggregate; (b) Business Auto
Liability covering owned, non-owned and hired vehicles with a limit of not less
than $1,000,000 per accident; (c) insurance protecting against liability under
Worker's Compensation Laws with limits at least as required by statute; (d)
Employers Liability with limits of $500,000 each accident, $500,000 disease
policy limit, $500,000 disease--each employee; (e) All Risk or Special Form
coverage protecting Tenant against loss of or damage to Tenant's alterations,
additions, improvements, carpeting, floor coverings, paneling, decorations,
fixtures, inventory and other business personal property situated in or about
the Premises to the full replacement value of the property so insured; and, (f)
Business Interruption Insurance with limit of liability representing loss of at
least approximately six months of rent.
11.2 Each of the aforesaid policies shall (a) be provided at Tenant's
expense; (b) name the Landlord Entities and building management company, if any,
as additional insureds as their interests may appear; (c) be issued by an
insurance company with a minimum Best's rating of "A:VII" during the Term; and
(d) provide that said insurance shall not be canceled unless thirty (30) days
prior written notice (ten days for non-payment of premium) shall have been given
to the Landlord; and said policy or policies or certificates thereof shall be
delivered to the Landlord by Tenant upon the Commencement Date and at least
thirty (30) days prior to each renewal of said insurance.
11.3 Whenever Tenant shall undertake any Alterations in, to or about the
Premises ("Work") the aforesaid insurance protection must extend to and include
injuries to persons and damage to property arising in connection with such Work,
without limitation including liability under any applicable structural work act,
and such other insurance as Landlord shall require; and the policies of or
certificates evidencing such insurance must be delivered to Landlord prior to
the commencement of any such Work.
12. WAIVER OF SUBROGATION. So long as their respective insurers so permit,
Tenant and Landlord hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage, All Risks or
other insurance now or hereafter existing for the benefit of the respective
party but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their
insurer to evidence compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES.
13.1 Subject to the other provisions of this Lease, Landlord agrees to
furnish to the common areas of the Building, the following services and
utilities subject to the rules and regulations of the Building prescribed from
time to time: (a) water suitable for normal office use of the Premises; (b) heat
and air conditioning required in Landlord's judgment for the use and occupation
of the common areas of the Building; (c) cleaning and janitorial service for
common areas; (d) elevator service by nonattended automatic elevators; (e) such
window washing as may from time to time in Landlord's judgment by reasonably
required; and, (f) provisions to bring electricity to the floor of the Premises
an amount equal to no less than 800 amps @ 480V on or before the Commencement
Date with ultimate requirement of 1,250 amps @ 480V on or before one hundred
eighty (180) days after the Rent Commencement Date. To the extent that Tenant is
not billled directly by a public utility, Tenant shall pay, upon demand, as
additional rent, for all electricity used by Tenant in the Premises, including
the usage of any temporary power supplied to Tenant prior to the Commencement
Date. The charge shall be at the pro rata rates charged for such services by the
local public utility. Landlord shall not be liable for, and Tenant shall not be
entitled to, any abatement or reduction of rental by reason of Landlord's
failure to furnish any of the foregoing, unless such failure shall persist for
an unreasonable time after written
9
notice of such failure is given to Landlord by Tenant and provided further that
Landlord shall not be liable when such failure is caused by accident, breakage,
repairs, labor disputes of any character, energy usage restrictions or by any
other cause, similar or dissimilar, beyond the reasonable control of Landlord.
If the disruption of services is due to Landlord's negligence or willful
misconduct and, as a result thereof, Tenant is unable to operate in the Premises
more than five (5) days, then Tenant shall receive an abatement of Rent after
the fifth (5th) day until Tenant is again able to operate in the Premises.
Landlord shall use reasonable efforts to remedy any interruption in the
furnishing of services and utilities. Landlord shall not (except in the event of
an emergency or a force majeure event) exercise any right of Landlord to reduce,
interrupt or cease service of the heating, air conditioning, ventilation,
elevator, plumbing, electrical systems, telephone systems and/or utilities
services of the Premises, the Building or the Property, without advising Tenant
in advance of Landlord's requirements so that Landlord and Tenant may arrange
procedures for accomplishing Landlord's goals and minimize the interruption to
Tenant's use, possession and occupancy of the Premises for the purpose of
conducting its business on a continuing basis.
13.2 Should Tenant require any additional work or service, as described
above and in Paragraph 38, Landlord may, on terms to be agreed, upon reasonable
advance notice by Tenant, furnish such additional service and Tenant agrees to
pay Landlord such charges as may be agreed upon, including any tax imposed
thereon, but in no event at a charge less than Landlord's actual cost for such
additional service and, where appropriate, a reasonable allowance for
depreciation of any systems being used to provide such service.
13.3 If Tenant shall require water or electric current in excess of that
required to be furnished or supplied for use in the Premises as set forth in the
Lease, Landlord may cause a water meter or electric current meter to be
installed so as to measure the amount of such excess water and electric current.
The cost of any such meters and any additional installations or expense required
or incurred as a result of the increased capacity shall be paid for by Tenant.
Tenant agrees to pay as additional rent to Landlord promptly upon demand
therefor, the cost of all such excess water and electric current consumed (as
shown by said meters, if any, or, if none, as reasonably estimated by Landlord)
at the rates charged for such services by the local public utility or agency, as
the case may be, furnishing the same, plus any additional expense incurred in
keeping account of the water and electric current so consumed.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or part of them after termination of this Lease by
lapse of time or otherwise at the rate ("Holdover Rate") which shall be (a) 150%
of the amount of the Annual Rent for the last period prior to the date of such
termination plus (b) 150% of all Rent Adjustments under Article 4. If Landlord
gives notice to Tenant of Landlord's election to that effect, such holding over
shall constitute renewal of this Lease for a period from month to month. In any
event, no provision of this Article 14 shall be deemed to waive Landlord's right
of reentry or any other right under this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to ground or underlying leases and
to the lien of any mortgages or deeds of trust now or hereafter placed on,
against or affecting the Building, Landlord's interest or estate in the
Building, or any ground or underlying lease; provided, however, that if the
lessor, mortgagee, trustee, or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this Lease be superior to any such
instrument, then, by notice to Tenant, this Lease shall be deemed superior,
whether this Lease was executed before or after said instrument. Notwithstanding
the foregoing, Tenant covenants and agrees to execute and deliver upon demand
such further instruments evidencing such subordination or superiority of this
Lease as may be required by Landlord. As a condition precedent to the
effectiveness of any such subordination of this Lease to any future ground or
underlying lease or the lien of any future mortgages, deeds of trust, or like
encumbrances. Landlord shall provide to Tenant within thirty (30) days of the
recording of the lien, a commercially reasonable non-disturbance and attornment
agreement in favor of Tenant executed by such future ground lessor, master
lessor, mortgagee or deed of trust beneficiary, as the case may be, which shall
provide that Tenant's quiet possession of the premises shall not be disturbed on
account of such subordination to such future lease or lien so long as Tenant is
not in default following the expiration of any applicable cure period under any
provisions of this Lease. In addition, within thirty (30) days of execution of
this Lease, Landlord shall provide to Tenant a commercially reasonable
non-disturbance and attornment agreement in favor of Tenant executed by any
existing ground lessor, master lessor, mortgagee or deed of trust beneficiary,
as the case may be, which shall provide that Tenant's quiet possession of the
Premises shall not be disturbed on account of such subordination to such
existing lease or lien so long as Tenant is not default following the expiration
of any applicable cure period under any provisions of this Lease.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all
the rules and regulations as set forth in Exhibit C to this Lease and all
reasonable modifications of and additions to them from time to time put into
effect by Landlord. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Building of any such
rules and regulations.
10
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall at all times have the right upon
reasonable notice to re-enter the Premises to inspect the same, to supply
janitorial service and any other service to be provided by Landlord to Tenant
under this Lease, to show said Premises to prospective purchasers, mortgagees or
tenants, and to alter, improve or repair the Premises and any portion of the
Building, without abatement of rent, and may for that purpose erect, use and
maintain scaffolding, pipes, conduits and other necessary structures and open
any wall, ceiling or floor in and through the Building and Premises where
reasonably required by the character of the work to be performed, provided
entrance to the Premises shall not be blocked thereby, and further provided that
the business of Tenant shall not be interfered with unreasonably.
17.2 Landlord shall have the right at any time to change the arrangement
and/or location of entrances, or passageways, doors and doorways, and corridors,
windows, elevators, stairs, toilets or other public parts of the Building and to
change the name, number or designation by which the Building is commonly known.
In the event that Landlord damages any portion of any wall or wall covering,
ceiling, or floor or floor covering within the Premises, Landlord shall repair
or replace the damaged portion to match the original as nearly as commercially
reasonable but shall not be required to repair or replace more than the portion
actually damaged.
17.3 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), except as required by law, and Landlord shall have the right to use
any and all means which Landlord may deem proper to open said doors in an
emergency to obtain entry to any portion of the Premises. As to any portion to
which access cannot be had by means of a key or keys in Landlord's possession,
Landlord is authorized to gain access by such means as Landlord shall elect and
the cost of repairing any damage occurring in doing so shall be borne by Tenant
and paid to Landlord as additional rent upon demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events shall
be deemed to be Events of Default under this Lease:
18.1.1 Tenant shall fail to pay within ten (10) days any sum of money
becoming due to be paid to Landlord under this Lease, whether such sum be any
installment of the rent reserved by this Lease, any other amount treated as
additional rent under this Lease, or any other payment or reimbursement to
Landlord required by this Lease, whether or not treated as additional rent under
this Lease, and such failure shall continue for a period of five days after
written notice that such payment was not made when due, but if any such notice
shall be given, for the twelve month period commencing with the date of such
notice, the failure to pay within five days after due any additional sum of
money becoming due to be paid to Landlord under this Lease during such period
shall be an Event of Default, without notice.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant. Any nonmonetary defaults which cannot be cured within twenty (20)
days for reasons beyond Tenant's reasonable control, Tenant will be given such
additional time as is reasonably necessary to cure such default, so long as
Tenant commences such cure within twenty (20) days after receipt of Landlord's
notice and thereafter diligently proceeds withthe same.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in bankruptcy or
a petition to take advantage of any insolvency statute, make an assignment for
the benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside or stayed within
thirty (30) days from the date of entry thereof.
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19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of any
of the Events of Default described or referred to in Article 18, Landlord shall
have the option to pursue any one or more of the following remedies without any
notice or demand whatsoever, concurrently or consecutively and not
alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
waiving any right to claim damages for such re-entry and expulsion, and without
relinquishing Landlord's right to rent or any other right given to Landlord
under this Lease or by operation of law.
19.1.3 Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent, including
any amounts treated as additional rent under this Lease, and other sums due and
payable by Tenant on the date of termination, plus as liquidated damages and not
as a penalty, an amount equal to the sum of: (a) an amount equal to the then
present value of the rent reserved in this Lease for the residue of the stated
Term of this Lease including any amounts treated as additional rent under this
Lease and all other sums provided in this Lease to be paid by Tenant, minus the
fair rental value of the Premises for such residue; (b) the value of the time
and expense necessary to obtain a replacement tenant or tenants, and the
estimated expenses described in Section 19.1.4 relating to recovery of the
Premises, preparation for reletting and for reletting itself; and (c) the cost
of performing any other covenants which would have otherwise been performed by
Tenant.
19.1.4 Upon any termination of Tenant's right to possession only
without termination of the Lease:
19.1.4.1 Neither such termination of Tenant's right to possession
nor Landlord's taking and holding possession thereof as provided in Section
19.1.2 shall terminate the Lease or release Tenant, in whole or in part, from
any obligation, including Tenant's obligation to pay the rent, including any
amounts treated as additional rent, under this Lease for the full Term, and if
Landlord so elects Tenant shall pay forthwith to Landlord the sum equal to the
entire amount of the rent, including any amounts treated as additional rent
under this Lease, for the remainder of the Term plus any other sums provided in
this Lease to be paid by Tenant for the remainder of the Term.
19.1.4.2 Landlord may, but need not, relet the Premises or any
part thereof for such rent and upon such terms as Landlord, in its sole
discretion, shall determine (including the right to relet the premises for a
greater or lesser term than that remaining under this Lease, the right to relet
the Premises as a part of a larger area, and the right to change the character
or use made of the Premises). In connection with or in preparation for any
reletting, Landlord may, but shall not be required to, make repairs, alterations
and additions in or to the Premises and redecorate the same to the extent
Landlord deems necessary or desirable, and Tenant shall, upon demand, pay the
cost thereof, together with Landlord's expenses of reletting, including, without
limitation, any commission incurred by Landlord. If Landlord decides to relet
the Premises or a duty to relet is imposed upon Landlord by law, Landlord and
Tenant agree that nevertheless Landlord shall at most be required to use only
the same efforts Landlord then uses to lease premises in the Building generally
and that in any case that Landlord shall not be required to give any preference
or priority to the showing or leasing of the Premises over any other space that
Landlord may be leasing or have available and may place a suitable prospective
tenant in any such other space regardless of when such other space becomes
available. Landlord shall not be required to observe any instruction given by
Tenant about any reletting or accept any tenant offered by Tenant unless such
offered tenant has a creditworthiness acceptable to Landlord and leases the
entire Premises upon terms and conditions including a rate of rent (after giving
effect to all expenditures by Landlord for tenant improvements, broker's
commissions and other leasing costs) all no less favorable to Landlord than as
called for in this Lease, nor shall Landlord be required to make or permit any
assignment or sublease for more than the current term or which Landlord would
not be required to permit under the provisions of Article 9. Landlord will use
such efforts to relet the Premises as required by law. In the event Tenant is in
default in this Lease and is not occupying the Premises, but tenders a
replacement occupant to Landlord, Landlord must use the same standard for
accepting such replacement occupant as set forth in the assignment and
subletting sections of this Lease, notwithstanding the fact that there is an
Event of Default.
19.1.4.3 Until such time as Landlord shall elect to terminate the
Lease and shall thereupon be entitled to recover the amounts specified in such
case in Section 19.1.3, Tenant shall pay to Landlord upon demand the full amount
of all rent, including any amounts as additional rent under this Lease and other
sums reserved
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in this Lease for the remaining Term, together with the costs of repairs,
alterations, additions, redecorating and Landlord's expenses of reletting and
the collection of the rent accruing therefrom (including attorney's fees and
broker's commissions), as the same shall then be due or become due from time to
time, less only such consideration as Landlord may have received from any
reletting of the Premises; and Tenant agrees that Landlord may file suits from
time to time to recover any sums falling due under this Article 19 as they
become due. Any proceeds of reletting by Landlord in excess of the amount then
owed by Tenant to Landlord from time to time shall be credited against Tenant's
future obligations under this Lease but shall not otherwise be refunded to
tenant or inure to Tenant's benefit.
19.2 Landlord may, at Landlord's option, enter into and upon the Premises
if Landlord determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything for which
Tenant is not acting within a commercially reasonable time to maintain, repair
or replace anything for which Tenant is responsible under this Lease and correct
the same, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for any damage
or interruption of Tenant's business resulting therefrom. If Tenant shall have
vacated the Premises, Landlord may at Landlord's option re-enter the Premises at
any time and make any and all such changes, alterations, revisions, additions
and tenant and other improvements in or about the Premises as Landlord shall
elect, all without any abatement of any of the rent otherwise to be paid by
Tenant under this Lease.
19.3 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies arising
under this Lease, Tenant agrees to pay all Landlord's attorney's fees and costs
so incurred. Tenant expressly waives any right: (a) trial by jury; and (b)
service of any notice required by any present or future law or ordinance
applicable to Landlords or tenants but not required by the terms of this Lease.
19.4 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by law or equity (all such remedies being cumulative), nor shall pursuit of any
remedy provided in this Lease constitute a forfeiture or waiver of any rent due
to Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
19.5 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or any acceptance of the surrender of the
Premises, and except as expressly provided for in this Lease, no agreement to
terminate this Lease or accept a surrender of said Premises shall be valid,
unless in writing signed by Landlord. No waiver by Landlord or Tenant of any
violation or breach of any of the terms, provisions and covenants contained in
this Lease shall be deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions and covenants contained in
this Lease. Landlord's acceptance of the payment of rental or other payments
after the occurrent of an Event of Default shall not be construed as a waiver of
such Default, unless Landlord so notifies Tenant in writing. Forbearance by
Landlord in enforcing one or more of the remedies provided in this Lease upon an
Event of Default shall not be deemed or construed to constitute a waiver of such
Default or of Landlord's right to enforce any such remedies with respect to such
Default or any subsequent Default.
19.6 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord to Tenant.
20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
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20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's Representative
shall have timely exercised and Tenant's Representative shall have fully cured
any default of Tenant under this Lease.
20.1.1.2 Tenant's Representative or the proposed assignee, as the
case shall be, shall have deposited with Landlord as security for the timely
payment of rent an amount equal to the larger of: (a) three months' rent and
other monetary charges accruing under this Lease; and (b) any sum specified in
Article 5; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption
of this Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant's Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such assignee of
all of the Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case, will not
breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the proposed
assignment or sublease by reason of the identity or nature of the proposed
assignee or sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right
and authority to enter into this Lease and that Tenant, while paying the rental
and performing its other covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, unless resulting from Landlord's negligence or
wrongful misconduct.
22. DAMAGE BY FIRE, ETC.
22.1 In the event the Premises or the Building are damaged by fire or other
cause and in Landlord's reasonable estimation such damage can be materially
restored within one hundred twenty (120) days of the casualty, Landlord shall
forthwith repair the same and this Lease shall remain in full force and effect,
except that Tenant shall be entitled to a proportionate abatement in rent from
the date of such damage. Such abatement of rent shall be made pro rata in
accordance with the extent to which the damage and the making of such repairs
shall interfere with the use and occupancy by Tenant of the Premises from time
to time. Within sixty (60) days from the date of such damage, Landlord shall
notify Tenant, in writing, of Landlords's reasonable estimation of the length of
time within which material restoration can be made, and Landlord's determination
shall be binding on Tenant. For purposes of this Lease, the Building or Premises
shall be deemed "materially restored" if they are in such condition as would
allow Tenant to use the Premises for the purpose for which it was being used
immediately before such damage. Rent abatement will also apply during the period
when the Tenant is performing its restoration work to the Premises, not to
exceed ninety (90) days.
22.2 If such repairs cannot, in Landlord's architects or engineers
reasonable estimation, be made within one hundred twenty (120) days from the
date of the casualty, Landlord and Tenant shall each have the option of giving
the other, at any time within sixty (60) days after Landlord's notice of its
estimate of the time within which restoration can be made, notice terminating
this Lease as of the date of such damage. In the event of the giving of such
notice, this Lease shall expire and all interest of the Tenant in the Premises
shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term. In the event that
neither Landlord nor Tenant exercises its option to terminate this Lease, then
Landlord shall repair or restore such damage, this Lease continuing in full
force and effect, and the rent and additional payments due hereunder shall be
proportionately abated as provided in Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or loss
by or from fire or other cause to any paneling, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises or belonging to Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
22.4 In the event that Landlord does not commence such repairs and material
restoration within forty five (45) days after the date estimated by Landlord
therefor as extended by this Section 22.4, and, diligently complete within forty
five (45) days of such estimation, Tenant may at its option and as its sole
remedy terminate this Lease by delivering written notice to Landlord, within
fifteen (15) days after the expiration of said period of time, whereupon the
Lease shall
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end on the date of such notice or such later date fixed in such notice as if the
date of such notice was the date originally fixed in this Lease for the
expiration of the Term; provided, however, that if construction is delayed
because of changes, deletions or additions in construction requested by Tenant,
strikes, lockouts, casualties, Acts of God, war, material or labor shortages,
government regulation or control or other causes beyond the reasonable control
of Landlord, the period for restoration, repair or rebuilding shall be extended
for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 22, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion or all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be
taken or appropriated by any public or quasi-public authority under the power of
eminent domain, or conveyance in lieu of such appropriation, either party to
this Lease shall have the right, at its option, of giving the other, at any time
within thirty (30) days after such taking, notice terminating this Lease, except
that Tenant may only terminate this Lease by reason of taking or appropriation,
if such taking or appropriation shall be so substantial as to materially
interfere with Tenant's use and occupancy of the Premises. If neither party to
this Lease shall so elect to terminate this Lease, the rental thereafter to be
paid shall be adjusted on a fair and equitable basis under the circumstances. In
addition to the rights of Landlord above, if any substantial part of the
Building shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain or conveyance in lieu thereof, and regardless
of whether the Premises or any part thereof are so taken or appropriated,
Landlord shall have the right, at its sole option, to terminate this Lease.
Landlord shall be entitled to any and all income, rent, award, or any interest
whatsoever in or upon any such sum, which may be paid or made in connection with
any such public or quasi-public use or purpose, and Tenant hereby assigns to
Landlord any interest it may have in or claim to all or any part of such sums,
other than any separate award which may be made with respect to Tenant's trade
fixtures and moving expenses and which does not reduce Landlord's award; Tenant
shall make no claim for the value of any unexpired Term.
24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the
Building, the same shall operate to release Landlord from any future liability
upon any of the covenants or conditions, expressed or implied, contained in this
Lease, and in such event Tenant agrees to look solely to the successor in
interest of Landlord in and to this Lease. Except as set forth in this Article
24, this Lease shall not be affected by any such sale and Tenant agrees to
attorn to the purchaser or assignee. If any security has been given by Tenant to
secure the faithful performance of any of the covenants of this Lease. Landlord
shall transfer or deliver said security, as such, to Landlord's successor in
interest and thereupon Landlord shall be discharged from any further liability
with regard to said security.
25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request
which Landlord may make from time to time, in connection with the sale,
financing or refinancing of the Building, Tenant shall execute and deliver to
Landlord or its mortgagee or prospective mortgagee a sworn statement certifying:
(a) the date of commencement of this Lease; (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been modifications to
this Lease, that this lease is in full force and effect, as modified, and
stating the date and nature of such modifications); (c) the date to which the
rent and other sums payable under this Lease have been paid; (d) the fact that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (e) such other matters as may be
requested by Landlord. Landlord and Tenant intend that any statement delivered
pursuant to this Article 25 may be relied upon by any mortgagee, beneficiary or
purchaser and Tenant shall be liable for all loss, cost or expense resulting
from the failure of any sale or funding of any loan caused by any material
misstatement contained in such estoppel certificate.
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26. SURRENDER OF PREMISES.
26.1 Landlord shall, at least thirty (30) days before the last day of the
Term, arrange to meet Tenant for a joint inspection of the Premises.
26.2 At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, whether in the Premises or in, on or
to the Building, in the same conditions received or first installed, broom clean
and free of all debris, excepting only ordinary wear and tear and damage by fire
or other casualty. Tenant may, and at Landlord's request shall, at Tenant's sole
cost, remove upon termination of this Lease, any and all furniture, furnishings,
movable partitions of less than full height from floor to ceiling, trade
fixtures and other property installed by Tenant, including, but not limited to,
raised flooring, conduits, cabling, condensers, dry coolers, generators, pull
boxes, junction boxes, supplemental HVAC units, electrical equipment, fire
suppression systems, etc., title to which shall not be in or pass automatically
to Landlord upon such termination, repairing all damage caused by such removal.
Property not so removed shall, unless requested to be removed, be deemed
abandoned by the Tenant and title to the same shall thereupon pass to Landlord
under this Lease as by a xxxx of sale. All other alterations, additions and
improvements in, on or to the Premises shall be dealt with and disposed of as
provided in Article 6 hereof.
26.3 All obligations of Landlord and Tenant under this Lease not fully
performed as of the expiration or earlier termination of the Term shall survive
the expiration or earlier termination of the Term.
27. NOTICES. Any notice or document required or permitted to be delivered under
this Lease shall be addressed to the intended recipient, shall be transmitted
personally, by fully prepaid registered or certified United States Mail return
receipt requested by facsimile transmission, or by reputable independent
contract delivery service furnishing a written record of attempted or actual
delivery, and shall be deemed to be delivered when tendered for delivery to the
addressee at its address set forth on the Reference Page, or at such other
address as it has then last specified by written notice delivered in accordance
with this Article 27, or if to Tenant at either its aforesaid address or its
last known registered office or home of a general partner or individual owner,
whether or not actually accepted or received by the addressee.
28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid
by Tenant under this Lease, Tenant shall reimburse to Landlord, upon demand, any
and all taxes payable by landlord (other than net income taxes) whether or not
now customary or within the contemplation of the parties to this Lease: (a)
upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any rental tax or excise tax levied by
the State, any political subdivision thereof, or the Federal Government with
respect to the receipt of such rent; (b) upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy of the Premises or any portion thereof, including any sales, use or
service tax imposed as a result thereof; (c) upon or measured by the Tenant's
gross receipts or payroll or the value of Tenant's equipment, furniture,
fixtures and other personal property of Tenant or leasehold improvements,
alterations or additions located in the Premises; or (d) upon this transaction
or any document to which Tenant is a party creating or transferring any interest
of Tenant in this Lease or the Premises. In addition to the foregoing, Tenant
agrees to pay, before delinquency, any and all taxes levied or assessed against
Tenant and which become payable during the term hereof upon Tenant's equipment,
furniture, fixtures and other personal property of Tenant located in the
Premises.
29. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are
for convenience of reference and shall in no way define, increase, limit or
describe the scope or intent of any provision of this Lease. Any indemnification
or insurance of Landlord shall apply to and inure to the benefit of all the
following "Landlord Entities", being Landlord, and the trustees, boards of
directors, officers, general partners, beneficiaries, stockholders, employees
and agents of each of them. In any case where this Lease is signed by more than
one person, the obligations under this Lease shall be joint and several. The
terms "Tenant" and "Landlord" or any pronoun used in place thereof shall
indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their and each of their respective
successors, executors, administrators and permitted assigns, according to the
context hereof. The term "rentable area" shall mean the rentable area of the
Premises or the Building as calculated by the Landlord on the basis of the plans
and specifications of the Building including a proportionate share of any common
areas.
30. TENANT'S AUTHORITY. If Tenant signs as a corporation each of the persons
executing this Lease on behalf of Tenant represents and warrants that Tenant has
been and is qualified to do business in the state in which the Building is
located, that the corporation has full right and authority to enter into this
Lease, and that all persons signing on behalf of the corporation were authorized
to do so by appropriate corporate actions. If Tenant signs as a partnership,
trust or other legal entity, each of the persons executing this Lease on behalf
of Tenant represents and warrants that Tenant has complied with all applicable
laws, rules and governmental regulations relative to its right to do business in
the state and that such entity on behalf of the Tenant was authorized to do so
by any and all appropriate partnership, trust or other actions. Tenant agrees to
furnish promptly upon request a corporate resolution, proof of due authorization
by partners, or other appropriate documentation evidencing the due authorization
of Tenant to enter into this Lease.
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31. COMMISSIONS. Each of the parties represents and warrants to the other that
it has not dealt with any broker or finder in connection with this Lease, except
as described on the Reference Page. Tenant represents and warrants that it has
not dealt with a real estate broker, agent or finder in connection with this
Lease with the exception of the broker named in the Reference Pages to this
Lease whose commission Landlord agrees to pay. Landlord shall not pay a
commission or fee due any other brokers, agents or finders as a result of this
Lease. Tenant and Landlord agree to indemnify, defend and hold harmless the
other party hereto against and from all liabilities claims and damages arising
from any claim by any broker (other than said named broker), finder or agent
claiming to have dealt with Tenant in connection with this Lease.
32. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of
its provisions. This Lease shall in all respects be governed by the laws of the
state in which the Building is located.
33. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of the heirs, successors, executors, administrators and assigns
of the parties to this Lease.
34. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all
agreements of the parties to this Lease and supersedes any previous
negotiations. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this Lease
and its exhibits. This Lease may not be modified except by a written instrument
duly executed by the parties to this Lease.
35. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be
a reservation of the Premises. Neither Tenant nor Landlord shall be bound by
this Lease until each has received a copy of this Lease duly executed by Tenant
and has delivered to Tenant a copy of this Lease duly executed by Landlord, and
until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants. Notwithstanding anything to the contrary,
Landlord may withhold delivery of possession of the Premises from Tenant until
such time as Tenant has paid to landlord any security deposit required by
Article 5, the first month's rent as set forth in Article 3 and any sum owed
pursuant to this Lease.
36. RECORDATION. Tenant may not record or register this lease or a short form
memorandum of this Lease without the prior written consent of Landlord.
37. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claim against Landlord
under this Lease shall be limited to and enforceable only against and to the
extent of Landlord's interest in the Building. The obligations of Landlord under
this Lease are not intended to and shall not be personally binding on, nor shall
any resort be had to the private properties of, any of its members, or its or
their trustees or board of directors and officers, as the case may be, its
manager, the general partners thereof, or any beneficiaries, stockholders,
employees, or agents of Landlord, the manager or the members.
38. MISCELLANEOUS.
38.1 Subject to compliance with all applicable governmental codes,
regulations and ordinances, including approval of Tenant's plans, Landlord
hereby grants Tenant the right to install up to a 500KW diesel fuel emergency
generator in a location deemed feasible by Landlord and Tenant, including an
associated 500 gallon diesel fuel-tank as necessary to support the generator on
the ground floor or roof of the Building. Subject to Landlord's approval of
Tenant's detailed plans as to method of installation and location, Landlord
shall permit Tenant, at its sole cost and expense, to install, use, operate and
maintain electrical and telecommunications conduits, condenser and fuel piping,
in the riser or other locations in, on or to the Building (as noted in Exhibit E
attached hereto (the "Designated Areas"), as necessary to connect to Tenants':
(a) emergency generator and fuel to each other and to the Premises; (b)
generator transfer switch for portable "roll-up" generator; (c)
telecommunication service providers, CLEC's, IXC's, and ILEC, etc.; (d) Telco
and Xxxxx grounds and; (e) GPS antenna on the roof. Tenant shall have the
ability to test its generator on a reasonable basis as recommended by the
manufacturer. In addition, Landlord may install a diesel fuel tank and/or
emergency generator and/or fuel pump (the "Emergency Facilities") to service
multiple Tenants of the Building. Should Tenant request to utilize Landlord's
Emergency Facilities, Tenant shall pay its proportionate share of the
installation, maintenance, repair and operation of the Emergency Facilities, in
which case Landlord and Tenant shall enter into a separate agreement which
governs its use, rules and regulations. Landlord will permit Tenant to install,
use, operate and maintain condensing units or dry coolers (sized to meet
Tenant's air conditioning requirements for operation of its system in a
designated area of the roof). In addition, Tenant shall have the right to tie
into the Building's existing ground field or, if the existing grid does not meet
Tenant's requirement, to install its own ground system. Nothing permitted in
this paragraph shall permit Tenant to interfere with other occupants' use of
similar facilities in their designated locations. Tenant's preapproved vertical
riser locations are designated on Exhibit E.
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38.2 Subject to compliance with all applicable governmental codes,
regulations and ordinances, including approval of Tenant's plans, Tenant shall
have the right to construct a dry pipe, pre-action system for the Premises,
including the right to relocate or encase any water mains or other water pipes
(whether or not related to fire safety) running through the Premises, at
Tenant's sole cost and expense and subject to Landlord's approval, not to be
unreasonably withheld. Tenant shall also have the right to install a FM 200 fire
suppression system in the Premises. Tenant shall not penetrate the floor or
ceiling on any floor of the Building with any water or liquid piping, supply or
drains, or install any pull boxes or junction boxes, without the Landlord's
expressed written approval of Tenant's detailed plans, which consent shall not
be be unreasonably withheld, conditioned or delayed.
38.3 Tenant shall be permitted to erect and operate, at its sole cost and
expense, and if Tenant does so erect, Tenant shall be required to maintain,
operate, repair and replace, at its sole cost and expense, one (1) GPS antenna
on the roof of the Building and to run necessary conduit and cabling from the
antenna to the Premises, provided that Tenant installs any screening device
requested by Landlord to insure the antenna cannot be viewed by the public.
Tenant shall have access to roof at all times, subject to Section 38.4, to
install, maintain, operate and repair the antenna and to the risers, floor space
and ceiling space to run the necessary cabling and conduit. Any antenna shall be
installed in a good and workmanlike manner and in compliance with all applicable
laws and plans approved by Landlord. Tenant shall indemnify and hold Landlord
harmless from and against any loss, cost, damage, claim or liability, including
loss or diminution of any roof warranties, that Landlord may suffer as a result
of Tenant's actions pursuant to this section. Landlord's approval shall not be
deemed to give Tenant the exclusive right to use the roof and shall not preclude
Landlord from granting similar rights to others. The rights of other tenants or
licensees shall be exercised without causing unreasonable interference with the
antennae and associated activities being carried on by Tenant. Similarly, the
rights of Tenant shall be exercised without causing interference with antennae
and associated activities being carried on by other tenants or licensees. Tenant
shall not change, substitute or materially alter the antennae or related
equipment agreed to herein without the prior written consent of Landlord, which
consent shall not be be unreasonably withheld, conditioned or delayed.
38.4 Landlord hereby grants Tenant access to the Premises, the roof, the
tunnel and the risers housing Tenant's wiring, conduit and cabling twenty four
(24) hours per day, three hundred sixty-five (365) days per year. However, if
access is needed to areas not otherwise available to Tenant during normal
business hours, Tenant must notify Landlord and Landlord will provide escorted
access, at Tenant's expense (if Landlord incurs any actual expenses). In
addition, Landlord shall give Tenant reasonable access to prearranged and
demised vertical risers exclusively allocated to such purposes to enable Tenant
to provide Tenant's telecommunications services and to interconnect to tenants
and other occupants of the Building in Designated Areas as shown on Exhibit E.
Tenant may install in the aforementioned risers, conduit and other such cabling
as set forth in Section 38.6(b) for its services within the Building. Tenant
shall have the right to permit its customers to collocate telecommunications
equipment in the Premises that are serviced and maintained by Tenant.
38.5 Tenant may use Landlord's approved contractors in connection with
Tenant's Improvements and may competitively bid to tenant finish contractors
acceptable to Landlord and to select and/or approve the successful contractor.
In the event of a renovation, Tenant shall have the right to use any of the
approved contractors and competitively bid the renovations in the same manner.
Landlord shall not charge any supervision or management fee, however, Tenant
shall be responsible for and reimburse Landlord for any actual and reasonable
out of pocket expenses relating to the approval, or review of Tenant's plans.
38.6 Landlord shall make the following available for Tenant's installation
or use which, if Tenant accepts, shall be installed, performed or used at
Tenant's sole cost and expense:
(a) 480/277 volt three-phase, 4 wire electrical service at the bus duct to
the floor of the Building in which the Premises is located, at
Landlord's costs (however Tenant shall pay all costs associated with
its connection to the electrical service, the disconnect switch,
meter, and associated utility costs. Pursuant to Paragraph 9 of
Exhibit B, the cost to provide 1250 amp service shall be borne by
Landlord. Tenant shall, prior to Landlord providing any electricity
for Tenant's use at the Premises (as described in subparagraph 13.1(f)
above), and installing the disconnect switch, supply Landlord with its
certified electrical load calculations and Landlord shall arrange for
the installation of a multimeter (in the case of a multi-tenant floor)
for the recording of electrical usage, and Tenant agrees to reimburse
Landlord for tenant's proportionate share of the cost of said
multimeter and disconnect switch if purchased and installed by
Landlord or Landlord's contractor. Notwithstanding the above, should
Tenant, during the term of the Lease, require additional electrical
service over and above its initial electrical load calculations,
Landlord shall cooperate and coordinate with Tenant to provide the
increased requirements, all in the same manner as described above for
Tenant's initial requirements.
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(b) Riser capacity, shown on Exhibit E, to enable Tenant to interconnect
with other occupants of the building without any additional cost or
fees from Tenant to Landlord. This does not imply that Landlord is
providing any conduit, cabling or other facilities for Tenant's
interconnection purposes. All of Tenant's conduits and cabling shall
be clearly labeled and tagged with Tenant's name and an emergency
contact phone number at each floor and at a maximum of twenty feet
apart. Tenant shall not allow any cabling or loose wiring to exist in
the Building, outside the Premises, except as otherwise permitted in
this Lease to be field verified and approved by Landlord, such
approval not to be unreasonably withheld. Landlord may also install
dedicated pull boxes (one or more for each tenant) for Tenant's
conduits at the floor of the Premises and at the basement level for
the purposes of coordinating and segregating the telecommunications
conduits within the Building. Tenant shall pay Landlord's actual costs
for the pull boxes.
(c) Ability to ventilate supplemental HVAC through louvers to the exterior
of the south side of the Building and Landlord shall provide Tenant
with Tenant's Proportionate Share of available space in the common
areas on the roof of the Building for Tenant's condenser/dry coolers
and generator on the roof of the Building. There shall be no
additional costs or feees from Tenant to Landlord for this service.
(d) Location for A/C grounding for Tenant's main distribution cabinets and
transformers. The ground will be chosen and installed by Tenant in a
grounding area selected by Landlord and feasible for Tenant's use in
accordance with Bellcore standards. There shall be no additional costs
or feees from Tenant to Landlord for this service.
(e) Existing slab to underside of concrete deck above has been measured at
a minimum 13'-0" clearance. There shall be no additional costs or
feees from Tenant to Landlord for this service.
(f) 5000# capacity freight elevator approximately 10'0"w x 6'0" interior.
There shall be no additional costs or feees from Tenant to Landlord
for this service.
(g) Loading dock. There shall be no additional costs or feees from Tenant
to Landlord for this service.
(h) Permission for Tenant to have diverse dual entrances into the Premises
for fiber optic cable service. Landlord will permit the use of or
installation of all conduits reasonably necessary to connect the fiber
optic cable service to the Premises, provided within the permissible
area shown on Exhibit E. Landlord shall not limit Tenant in its choice
of which telecommunication carrier to utilize. There shall be no
additional costs or feees from Tenant to Landlord for this service.
(i) Permission for Tenant to install and maintain on the roof of the
Building (in a location and manner reasonably approved by Landlord)
protection against damage by lightning to Tenant's telecommunications
equipment. There shall be no additional costs or feees from Tenant to
Landlord for this service.
38.7 Landlord's and Tenant's work shall each be performed in compliance
with the ADA.
38.8 Landlord shall provide within the passenger and freight elevators
accommodations to separately lock-out Tenant's floor subject to Landlord's
security and aesthetic requirements. Landlord shall provide a guard twenty-four
(24) hours a day, and a security system for the Building operated seven (7) days
per week 24 hours a day. Tenant shall have the right to install its own security
system in the Premises. Building shall be fully sprinkled, to the extent
required by applicable law.
38.9 Prior to the commencement of Tenant's initial alterations to the
Premises and the Building (collectively, the "Initial Alterations"), Tenant
shall deliver the plans and specifications to Landlord for its written approval,
which approval shall not be unreasonably withheld or delayed. Tenant's plans and
specifications for Tenant's Initial Alterations must comply with all applicable
laws, introduce no hazardous materials into the Building (other than batteries
and diesel fuel to be stored in the tank and generator permitted hereunder),
impose on Landlord no additional ADA compliance requirements within the Building
or the Premises, and be reasonable and compatible with the systems and structure
of the Building. Tenant shall deliver to Landlord a report from a structural
engineer that all of Tenant's Initial Alterations comply with building
structural capacities, applicable laws and codes. Landlord shall respond to
Tenant's request for approval of Tenant's plans and specifications within ten
(10) business days after receipt thereof. In the event Landlord shall not
approve the plans and specifications, Landlord shall notify Tenant of its
objections thereto. Landlord and Tenant shall thereafter work cooperatively and
in good faith to reach agreement upon mutually acceptable plans and
specifications. Tenant shall pay all Landlord's reasonable third party
engineering and out of pocket expenses relating to the review of Tenant's plans
and specifications related to the Initial Alterations. Tenant at its sole cost
and expense shall obtain any permits, licenses, variances, or other approvals
required with respect to the installation or operation of the improvement,
equipment, cabling or wiring to be installed by Tenant or to the alterations to
be
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performed by Tenant. Tenant shall deliver true and complete copies thereof to
Landlord prior to permit application and commencing any improvement or
alteration. Tenant, its contractors and/or agents shall not tie into, disrupt,
disengage, terminate, or violate any building systems, fire protection, fire
alarm, security, HVAC, electrical, etc., unless coordinated, scheduled in
advanced and approved with the Buildings' engineer, manager and contractor to
assure integrity with the system and continued applicability of the Buildings'
warranties and guaranties. Any violation of the above is subject to default
under this Lease.
38.10 Provided no Event of Default hereunder has occurred and is
continuing, Tenant shall have continuing rights of first offer to lease the
balance of the 3rd floor, in the Building which is contiguous to the Premises
and which may become available on and after the date of this Lease. At such time
that Landlord has knowledge that such space ("Offered Space") is or will become
available, Landlord will give Tenant notice (the "Offering Notice") of the terms
and conditions Landlord would be willing to accept with respect to the Offered
Space (including, without limitation, the proposed rent, additional rent, scope
of Landlord's proposed tenant improvements, location and floor area), and Tenant
shall have five (5) business days within which to respond to Landlord's offer.
In the event Tenant elects to accept Landlords' offer, then Tenant shall notify
Landlord of such election by giving notice to Landlord during such five (5) days
period and Landlord and Tenant shall thereupon enter into an amendment to this
Lease for the leasing of the Offered Space, which amendment shall contain (i)
the terms and conditions set forth in the Offering Notice, (ii) provide that the
term thereunder shall expire or sooner terminate contemporaneously with the
expiration or sooner termination of the Term hereof, and (iii) contain such
other terms and provisions as either Landlord or Tenant may reasonably require
in order to effectuate the incorporation of the Offered Space into the Premises
and to otherwise effectuate the intent of this Section 38.10. Should Tenant
decline Landlord's offer or fail to respond thereto, then, and in such event,
Tenant shall have been deemed to have waived any prospective rights of first
offer to the Offered Space and Landlord may lease the Offered Space to any other
party on the same terms and conditions set forth in the Offering Notice. If
Tenant declines Landlord's offer or fails to respond thereto, Landlord may not
lease the Offered Space to any other party on any terms other than those set
forth in the Offering Notice without first offering it to Tenant on those terms.
38.11 Thirty (30) days after fulfillment of the requirements set forth
below, Landlord agrees to pay to Tenant $240,000.00 ($20.00/sf) as and for
Landlord's contribution to Tenant's Work ("Construction Allowance").
A) Completion of Tenant's work in accordance with approved plans and
specifications in a manner reasonably satisfactory to Landlord or
Landlord's Architect.
B) Presentation to Landlord of the following:
i) General Contractor's executed and notarized final waiver of
Lien/affidavit form listing all subcontractors and material
suppliers and the amounts they were paid for work and materials
supplied for the Premises which equal or exceed the Construction
Allowance;
ii) Executed and notarized final Waiver of Lien/Affidavit form from
HVAC, plumbing, electrical, drywall/carpentry subcontractors and
material suppliers;
iii) Waivers/Affidavits must be satisfactory to Landlord.
C) Presentation to Landlord of a Certificate of Occupancy.
D) Tenant shall have paid to Landlord the first monthly installment of
Annual Rent.
E) Tenant shall have not been in default under the terms and conditions
of this Lease.
38.12 Tenant shall have the right to display its signage at the entrance to
its Premises. In addition, Landlord shall provide and pay for all standard
building directory ground floor lobby signage for Tenant.
38.13 Tenant acknowledge there is no on-site parking, and Landlord shall
arrange for four (4) parking spaces off-site for Tenant at Tenant's sole cost
and expense, within a one (1) block radius of the Premises.
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38.14 As required by Section 404.56(6), Florida Statutes, the following
notification is made regarding 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.
LANDLORD: TENANT:
00 Xxxxx Xxxx Xxxxxx Xxxxxx, X.X.X. Startec Global Communications Corporation
By:
By: /s/ By: /s/ Xxxxxxx X. Xxxxxxx
Title: Manager Title: Secretary, Sr. VP & CFO
Dated: 10/29/98 Dated: 10/28/98
Witnesses: Witnesses:
/s/ /s/
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