Exhibit 10.9
AIRPORT CORPORATE CENTER
OFFICE LEASE
0000 XXXXXXXXX XXXXXX XXXXX
XXXXX, XX 00000
XXXXX 000 XXX XXXXX 000
MIAMI RPFIV AIRPORT CORPORATE CENTER
ASSOCIATES LIMITED LIABILITY COMPANY
A DELAWARE LIMITED LIABILITY COMPANY
AS LANDLORD
AND
CONTINUCARE CORPORATION,
A FLORIDA CORPORATION
AS TENANT
TABLE OF CONTENTS
SECTION PAGE
BASIC LEASE INFORMATION RIDER........................................... i
OFFICE LEASE............................................................ 1
1. PREMISES; RENTABLE SQUARE FEET; COMMON AREAS....................... 1
A. Premises.................................................. 1
B. Rentable Square Feet...................................... 1
C. Common Areas.............................................. 1
2. LEASE TERM; SPACE REDUCTION OPTIONS; RIGHTS OF FIRST OFFER;
RENEWAL OPTIONS.................................................... 1
X. Xxxxx Term................................................ 1
B. Space Reduction Options................................... 1
C. Renewal Options........................................... 3
D. Rights of First Offer..................................... 5
3. RENT............................................................... 8
A. Base Rent................................................. 8
B. Intentionally Omitted..................................... 9
C Overhead Rent............................................. 9
D. Definitions............................................... 10
E. Related Provisions....................................... 14
F. Rent Free Period......................................... 16
4. SECURITY DEPOSIT................................................... 16
5. USE................................................................ 17
6. IMPROVEMENTS....................................................... 17
7. POSSESSION......................................................... 17
A. Delivery of Possession.................................... 18
i
B. Initial Delay............................................. 18
C. Subsequent Delay.......................................... 18
D. Holdover Premium.......................................... 18
8. PARKING............................................................ 19
A. General................................................... 19
B. Rates..................................................... 19
C. Reservations.............................................. 19
D. Conditions................................................ 19
9. BUILDING SERVICES.................................................. 19
A. General................................................... 19
(1) Janitorial Service.................................. 20
(2) Electricity......................................... 20
(3) HVAC Services....................................... 20
(4) Water and Sewer..................................... 20
(5) Elevator Service.................................... 20
(6) Telecommunications.................................. 21
(7) Floor Load.......................................... 24
B. Interruption of Services.................................. 24
10. SECURITY........................................................... 24
A. Landlord's Responsibility................................. 24
B. Tenant's Responsibility................................... 24
C. Interruption of Security.................................. 24
11. REPAIRS AND MAINTENANCE............................................ 24
A. Landlord's Responsibilities............................... 25
B. Tenant's Responsibilities................................. 25
ii
C. Repairs and Maintenance; Miscellaneous.................... 25
12. TENANT'S ALTERATIONS............................................... 25
A. General................................................... 25
B. Administration Fee........................................ 26
13. LANDLORD'S ADDITIONS AND ALTERATIONS............................... 26
14. ASSIGNMENT AND SUBLETTING.......................................... 26
A. General................................................... 26
B. Recapture................................................. 28
C. Net Profit................................................ 28
15. TENANT'S INSURANCE COVERAGE........................................ 29
A. General................................................... 29
B. Evidence.................................................. 29
16. LANDLORD'S INSURANCE COVERAGE...................................... 29
A. General................................................... 29
B. Tenant's Acts............................................. 30
17. SUBROGATION........................................................ 30
X. Xxxxxx of Subrogation Rights.............................. 30
B. Exclusions................................................ 30
C. Notice to Insurance Companies; Indemnification............ 30
18. DAMAGE OR DESTRUCTION BY CASUALTY.................................. 30
A. Material Damage or Destruction............................ 31
B. Partial Damage or Destruction............................. 31
C. Rent Adjustments.......................................... 32
19. EMINENT DOMAIN..................................................... 32
A. Substantial Taking........................................ 32
iii
B. Insubstantial Taking...................................... 32
C. Landlord's Additional Right to Terminate.................. 33
D. Rent Adjustments.......................................... 33
E. Condemnation Award........................................ 33
20. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION................ 33
A. Personal Property......................................... 33
B. Limitations............................................... 33
C. Indemnification........................................... 34
21. RELOCATION OF TENANT............................................... 34
A. General................................................... 34
B. No Interference........................................... 35
C. Premises.................................................. 35
D. Costs..................................................... 35
E Notice.................................................... 35
22. COMPLIANCE WITH LAWS, PROCEDURES AND RESTRICTIVE
COVENANTS.......................................................... 35
A. Compliance................................................ 35
B. Notice Prior to Work...................................... 35
C Radon..................................................... 36
D. Occupational License...................................... 36
E. Premises Certificate of Use and Occupancy................. 36
23. RIGHT OF ENTRY..................................................... 36
24. DEFAULT............................................................ 36
A. Events of Default......................................... 36
B. Tenant's Grace Period..................................... 37
C. Landlord's Default........................................ 38
iv
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT........................... 38
A. Landlord's Remedies....................................... 38
B. Exercise of Landlord's Remedies........................... 39
C. Acceleration.............................................. 39
D. Attorneys' Fees........................................... 40
26. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT................... 40
27. LIENS.............................................................. 41
A. General................................................... 41
B. Default................................................... 41
28. NOTICES............................................................ 41
29. ESTOPPEL CERTIFICATE; SUBORDINATION................................ 41
A. Estoppel Certificate...................................... 41
B. Subordination............................................. 42
30. ATTORNMENT AND MORTGAGEE'S REQUEST................................. 42
X. Xxxxxxxxxx................................................ 42
B. Mortgage Modification..................................... 43
31. ASSIGNMENT BY LANDLORD............................................. 43
32. SURRENDER OF PREMISES; HOLDING OVER................................ 43
A. Surrender................................................. 43
B. Removal................................................... 43
C. Holdover.................................................. 43
D. No Surrender.............................................. 44
33. NO WAIVER; CUMULATIVE REMEDIES..................................... 44
A. No Waiver................................................. 44
B. Rent Payments............................................. 44
v
34. WAIVER............................................................. 44
35. CONSENTS AND APPROVALS............................................. 44
36. RULES AND REGULATIONS.............................................. 45
37. SUCCESSORS AND ASSIGNS............................................. 45
38. QUIET ENJOYMENT.................................................... 45
39. ENTIRE AGREEMENT................................................... 45
40. HAZARDOUS MATERIALS................................................ 45
A. Prohibition of Storage.................................... 45
B. Disclosure Warning and Notice Obligations................. 46
C. Environmental Tests and Audits............................ 46
D. Survival of Obligations................................... 47
41. BANKRUPTCY PROVISIONS.............................................. 47
A. Event of Bankruptcy....................................... 47
B. Additional Remedies....................................... 47
42. MISCELLANEOUS...................................................... 48
A. Severability; Governing Law............................... 48
B. No Offer..................,............................... 48
C. Entire Agreement.......................................... 48
D. Payment of Taxes.......................................... 48
E. Early Occupancy........................................... 48
F. Brokers................................................... 49
G. Recording................................................. 49
H. No Other Relationship..................................... 49
I. Interpretation; Construction.............................. 49
X. Xxxxxxxxx................................................. 49
vi
K. Landlord's Rights.................................................. 49
L. Delegation ........................................................ 49
M. Joint and Several Liability........................................ 49
X. Xxxxxx............................................................. 50
O. Force Majeure...................................................... 50
P. Time............................................................... 50
X. Xxxxx and UBTI Restrictions........................................ 50
R. Confidentiality.................................................... 51
S. Signage............................................................ 51
T. Storage Space............................... . .................... 51
EXHIBITS:
Exhibit "A" Floor Plans
Exhibit "B" Airport Corporate Center Office Lease
Landlord Work Letter Agreement
Exhibit "C-1" Intentionally Omitted
Exhibit "C-2" Building Standard
Exhibit "D" Building Rules and Regulations
Exhibit "E" Janitorial Specifications
Rider #1 Early Occupancy Agreement for Suite 405
Rider #2 Form of Subordination, Nondisturbance and Attornment Agreement
Rider #3 Form of Letter of Credit
vii
BASIC LEASE INFORMATION RIDER
Tenant: CONTINUCARE CORPORATION, a Florida corporation
Landlord: MIAMI RPFIV AIRPORT CORPORATE CENTER ASSOCIATES LIMITED LIABILITY
COMPANY, a Delaware limited liability company qualified to do business in the
State of Florida
Date of Lease: June 3, 2004
Section 1 Premises: Suite No. 600 and Suite No. 405 in Building Xx. 0
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Section 1 Total Rentable Area of the Premises: 8,227 rentable square feet in Suite 600
1,589 rentable square feet in Suite 405
-----
9,816 total rentable square feet
Section 2 Lease Commencement Date: Upon Landlord's Substantial Completion
of the Improvements to be constructed by Landlord under Exhibit "B"
hereto, made earlier on a day for day basis for Tenant's Delay, as
defined in Exhibit "B", targeted for October 1, 2004. See Rider #1
for provisions of early occupancy of Suite 405, which Xxxxx does
not either affect or modify the provisions of the foregoing or of
Section 2 of the Lease.
Section 2 Expiration Date: Sixty-three (63) months following the Lease
Commencement Date
Section 2 Lease Term: Sixty-three (63) months
Section 2 Rent Commencement Date: Three (3) months following the Lease
Commencement Date, but no sooner than January 1, 2005 with respect
to Suite 600.
Section 3 Initial Base Rent: $13,497.00 per month (plus all applicable
taxes), i.e., $161,464.00 for the twelve (12) month period for
following the Rent Commencement Date (plus all applicable taxes),
subject to increase by the Allowance Increase Rent as defined in
EXHIBIT "B" hereto.
Section 3 Tenant's Percentage Share: 10.598%
Section 3 Total Rentable Area of the Building: 92,621 rentable square feet
Section 4 Security Deposit: $30,000.00, to be reduced, provided Tenant is
not in default, to $15,000.00 on the last day of the thirty-ninth
(39th) month of the Lease Term. At Tenant's election, the Security
Deposit may be in the form of the Letter of Credit attached hereto
as Rider #3 hereto.
i
Section 5 Use of Premises: Tenant's general Office Use and any other
related use, subject to applicable law, code and ordinance
Xxxxxx's Address for Notices Prior to Lease Commencement Date:
80 S.W. 0xx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attention: CEO and President
And also, with respect to default notices:
Xxxxxx X.Xxxxxxxxx, Xx., Esq.
Xxxxxxx, Xxxxxx, Xxxxxx, Xxxxxxxx, Xxxxxxxx & Xxxxxxxxx P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Xxxxxx's Address for Notices After Lease Commencement Date:
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: CEO and President
And also, with respect to default notices:
Xxxxxx X. Xxxxxxxxx, Xx., Esq.
Xxxxxxx, Xxxxxx, Xxxxxx, Xxxxxxxx, Xxxxxxxx & Xxxxxxxxx P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Landlord's Address for Notices:
CB Xxxxxxx Xxxxx, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Senior Real Estate Manager
With copies to:
Miami RPFIV Airport Corporate Center Associates Limited Liability
Company
c/o GE Asset Management Incorporated
0000 Xxxxxx Xxxxxx, X. X. Box 7900
Stamford, CT 60904-7900
Attention: Xxxxxx X. Xxxxxx
Section 8 Number of surface parking spaces: 4
per 1,000 rentable square feet of the Premises
Monthly Rate Per Parking Space $0.00
ii
Number of covered and reserved parking spaces: 3 spaces in close
proximity to the east end of the parking garage appurtenant to the
building located at 0000 Xxxxxxxxx Xxxxxx Xxxxx. Tenant's reserved
parking spaces are included in the 4 parking spaces per 1,000
rentable square feet of the Premises allocated above.
Section 15 Amount of General Comprehensive Liability Insurance: $3 million
Section 42 Tenant's Real Estate Broker: CRESA Partners
Landlord's Real Estate Broker: CB Xxxxxxx Xxxxx, Inc.
Exhibit "B"
Xxxxxxxx's contribution: The lesser of (a) $188,657.00 or (b) the
actual cost to construct Tenant's improvements and the other
permissible costs under EXHIBIT "B".
Architecture Detail Date: May 14, 1004. The date by which Xxxx
Architectural Partnership ("Tenant's Architect"), shall provide
Landlord with Xxxxxx's proposed space plan for the Premises.
Xxxxxx's space plan was timely delivered by Xxxxxx and has been
accepted by Landlord. Tenant's Architect shall prepare Plans and
Specifications for Landlord's written consent within fifteen (15)
business days following Landlord's approval of Xxxxxx's proposed
space plan. Such fifteen (15) day period includes a period of ten
(10) business days for the work of Initial Engineers, P.A.
("Landlord's Engineer"), and shall be extended on a day for day
basis in the event of delay by Xxxxxxxx's Engineer. The time period
for performance by Xxxxxxxx's Engineer shall commence when it is in
receipt of all required information. Xxxxxxxx's Engineer shall
advise Tenant in writing within one (1) business day after receipt
of partial submittals if additional information is required. Tenant
hereby designates Xxxxxxx Xxxxxxxxx as its authorized
representative with respect to the approvals required of Tenant
under Exhibit "B" hereto and for other Tenant decisions required
under Exhibit "B". Tenant may change such authorized representative
by written notice to Landlord.
Certain of the information relating to the Lease, including many of the
principal economic terms, are set forth in the foregoing Basic Lease Information
Rider (the "BLI Rider"). In the event of any conflict between the terms of the
BLI Rider and the terms of the Lease, the Lease shall control.
iii
AIRPORT CORPORATE CENTER
OFFICE LEASE
THIS OFFICE LEASE ("Lease") is made as of the 3rd day of June, 2004, by
and between MIAMI RPFIV AIRPORT CORPORATE CENTER ASSOCIATES LIMITED LIABILITY
COMPANY, a Delaware limited liability company authorized to do business in the
State of Florida ("Landlord"), and CONTINUCARE CORPORATION, a corporate entity
formed under the laws of the State of Florida ("Tenant").
WITNESSETH:
1. PREMISES; RENTABLE SQUARE FEET; COMMON AREAS:
A. Premises. Landlord leases to Tenant and Tenant leases from Landlord
the premises in the building commonly referred to as "Building No. 4", located
at 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx, Xxxxxxx 00000 (the "Building"), known by
that certain suite number set forth in the Basic Lease Information Rider (the
"BLI Rider") attached to the front of this Lease and incorporated into this
Lease by this reference, which space is more particularly shown on the floor
plans attached hereto as EXHIBIT "A" and by this reference incorporated herein
(the "Premises"). The parties hereby acknowledge that the Building is located
within the project commonly known as "Airport Corporate Center" (the "Project").
B. Rentable Square Feet. The parties hereby agree that the Premises
contain the number of rentable square feet set forth in the BLI Rider.
C. Common Areas. In addition to the Premises, Tenant has the right to
use, in common with others, the lobby, public entrances, public stairways,
public restrooms and public elevators (if any) of the Building. The common areas
serving the Building, including those referenced above, the parking facilities,
and all others, shall at all times be subject to Landlord's exclusive but
reasonable control and management.
2. LEASE TERM: SPACE REDUCTION OPTIONS: RIGHTS OF FIRST OFFER; RENEWAL
OPTIONS:
A. Lease Term. The lease term ("Lease Term") is for the period of time
set forth in the BLI Rider, commencing on the Lease commencement date set forth
in the BLI Rider ("Lease Commencement Date") and ending on the Lease expiration
date set forth in the BLI Rider ("Expiration Date"). Tenant's obligation to pay
all rent, including Base Rent, Overhead Rent and Additional Rent (collectively,
"Rent"), as such terms are hereafter defined, shall commence on the rent
commencement date set forth in the BLI Rider ("Rent Commencement Date").
Notwithstanding the foregoing, the parties agree and acknowledge that the Lease
Commencement Date and/or the Rent Commencement Date are subject to change
pursuant to the work letter agreement attached hereto as EXHIBIT "B" ("Initial
Improvement Schedule") and by this reference incorporated herein.
B. Space Reduction Options. Effective only on the last day of the
twenty-seventh (27th) month following the Lease Commencement Date and the last
day of the forty-eighth (48th) month
following the Lease Commencement Date, Tenant shall have the right to eliminate
Suite 405 from the Premises ("Space Reduction Option"), subject to the following
conditions:
(a) Tenant shall provide to Landlord no less than two hundred ten
(210) days advance written notice ("Reduction Notice") of its
exercise of this Space Reduction Option.
(b) The number of parking spaces allocated to Tenant and Tenant's
Percentage Share shall be reduced in proportion to the reduced
size of the Premises.
(c) Tenant's Space Reduction Option shall expire and be of no
further force or effect upon the first to occur of the
following:
(1) Tenant exercises the Suite 406 Right of First Offer as
defined below, or,
(2) An Event of Default exists on either (i) the date Tenant
exercises its Space Reduction Option or, (ii) unless
waived in writing by Landlord, on the proposed effective
date of any Space Reduction Option.
(3) The parties shall, within thirty (30) days following
Tenant's exercise of this Space Reduction Option confirm
in writing by way of Lease amendment:
a. The effective date of the reduction in size of the
Premises;
b. Tenant's new, decreased percentage share,
decreased number of parking spaces; and
c. Any other terms related to the Space Reduction
Option or this Lease that Landlord or Tenant
reasonably requests to be confirmed which relates
to Tenant's exercise of this Space Reduction
Option.
d. Tenant shall tender to Landlord, as an agreed upon
and stipulated termination fee ("Termination Fee")
for Suite 405, within ten (10) business days
following Xxxxxx's receipt of Landlord's notice of
the amount (and associated calculation) of the
Termination Fee. The Termination Fee shall be
comprised of the following sums and components.
1. the sum of $6,554.62, representing the
amount of Rent having been subject to
abatement with respect to Suite 405; and
2. Xxxxxxxx's "Unamortized Up Front Costs" as
of the effective date of Xxxxxx's exercise
of the Space
2
Reduction Option. For purposes hereof,
"Landlord's Unamortized Up Front Costs"
shall mean (i) the unamortized portion of
costs expended by Landlord specifically for
improvements for Suite 405 under this Lease
(including any Allowance Increase Amount
paid by Landlord and any architectural,
engineering and other related costs), and
(ii) the unamortized portion of commissions
paid to the Brokers in connection with this
Lease for Suite 405 only. Landlord's
Unamortized Up Front Costs shall be
amortized as follows:
(1) First, Landlord's Unamortized Up Front
Costs in connection with this Lease
shall be divided by the number sixty
(60) and the resultant number shall be
deemed the "Monthly Amortization
Factor".
(2) Second, the Monthly Amortization
Factor shall be multiplied by the
number of months remaining in the
Lease Term between the effective date
of the Space Reduction Option and the
Expiration Date.
(3) Landlord's Unamortized Up Front Costs
shall be the sum of the number
obtained by the calculation set forth
in (1) and (2) above.
C. Renewal Options. If this Lease shall not have been terminated
pursuant to any provision hereof, and provided there shall then exist no Event
of Default under this Lease or event or condition which, with the lapse of the
applicable grace period (unless Tenant is using and continues to use until
completion, diligent and good faith efforts to correct such event or condition),
would mature into an Event of Default under this Lease, Tenant shall have the
option to renew this Lease (the "Renewal Option") for two (2) additional terms
of five (5) years each (each an "Extended Term"), upon the same terms and
conditions as in the initial Lease Term except that the Base Rent for the
renewal term shall be a mutually agreed upon negotiated rental rate. The Renewal
Option must be for all of the Premises leased by Xxxxxx on the date that Tenant
gives notice to Landlord of its exercise of the Renewal Option. Tenant shall
give Landlord not less than nine (9) months or more than twelve (12) months
notice of Xxxxxx's intent to renew prior to the expiration of the then
applicable term. If either Renewal Option is exercised, the Expiration Date
shall mean the last day of the renewed Lease Term. Landlord shall not provide
any tenant improvement work or allowance for any exercised Renewal Option.
Tenant shall not be entitled to exercise its second Renewal Option if Tenant has
not exercised its First Renewal Option. The Base Year for each renewal term
shall be the calendar year in which such renewal term first commences.
(a) Landlord shall notify Tenant of the proposed Fair Market Rent
for the applicable Extended Term within thirty (30) days of receiving Tenant's
notice. Landlord and
3
Tenant shall attempt to agree upon the Fair Market Rent by the date that is
seven (7) months prior to the initial Term expiration.
(b) The Fair Market Rent during each Extended Term shall be the sum
equal to the rent a willing Tenant and a willing Landlord would agree upon under
the then current market conditions for new leases of comparable space upon
comparable terms and conditions for comparable periods of time in office
buildings of same age and quality in the airport-west submarket of Miami-Dade
County, Florida, for the Extended Term, taking into account an updated Base Year
for the applicable Extended Term and the tenant improvements in the Premises and
the amount of any allowance granted by Landlord for such Extended Term (the
"Fair Market Rent"), as agreed by the parties to the Lease by no later than the
date that is seven (7) months prior to the expiration of the then current Term
or in the event the parties cannot agree, the Fair Market Rent as determined by
appraisers pursuant to the following procedure. In the event Landlord and Tenant
agree on Fair Market Rent, such agreement shall be reduced to a written form and
when executed and delivered by both parties will be binding on Landlord and
Tenant, and execution thereof by Tenant shall be deemed acceptance thereof.
(c) If Tenant has given the Extension Notice and no agreement has
been reached by the parties with respect to the Fair Market Rent by the date
that is seven (7) months prior to the first day of the Extended Term, both
parties shall appoint a Qualified Appraiser (as defined below) no later than the
tenth (10th) business day following such date. Each Qualified Appraiser shall
arrive at a determination of Fair Market Rent and submit their conclusions to
Landlord and Tenant within thirty (30) days after the appointment of the
Qualified Appraisers. If only one (1) appraisal is submitted within the
requisite time period, it shall be deemed the Fair Market Rent. If both
appraisals are submitted within such time period, and if the two (2) appraisals
so submitted differ by less than ten (10%) percent of the higher of the two, the
average of the two shall be the Fair Market Rent. If such appraisals are ten
(10%) percent or more apart, the appraisers shall promptly select a third
Qualified Appraiser (or if they cannot agree, a third Qualified Appraiser shall
be named by the head of the local Chapter of the Appraisal Institute or
comparable successor organization). Within thirty (30) days of the selection of
the third Qualified Appraiser, each Qualified Appraiser shall submit his or her
appraisal of the Fair Market Rent. In the event the third appraisal shall be
greater than the average of the first two (2) appraisals of Landlord and Tenant,
then the Fair Market Rent shall be the average of the two (2) highest
appraisals. In the event such third appraisal shall be lower than the average of
the first two (2) appraisals, then the Fair Market Rent shall be the average of
the two (2) lowest appraisals. The Qualified Appraisers shall submit their final
conclusion to Landlord and Tenant within such thirty (30) day period. In the
event either party to the Lease fails to name a Qualified Appraiser when
required hereunder, the Fair Market Rent shall be determined by the Qualified
Appraiser selected by the other party. Each party to this Lease shall pay all
fees of any Qualified Appraiser selected by it and any fees of a third Qualified
Appraiser shall be shared equally by each party hereto. As used herein the term
"Qualified Appraiser" shall refer to an independent appraiser holding an MAI
("Member of the Appraisal Institute") designation or its equivalent, having not
less than ten (10) years experience appraising class B office buildings in the
airport-west submarket of Miami-Dade County, Florida. The determination of Fair
Market Value by such appraisal process shall be binding on Landlord and Tenant
unless Tenant, within five (5) business days following its receipt of Fair
Market Rent from the Qualified Appraisers, gives Landlord written notice that it
cancels its exercise of the applicable Renewal Option and, in the event of such
timely notice by Tenant, such Renewal Option shall be cancelled.
4
D. Rights of First Offer.
(a) Tenant shall have the right to accept (i) Landlord's offer of
each available space on the sixth floor of the Building,
without regard to size or location (the "Sixth Floor Right of
First Offer") and Suite 406 in the Building, stipulated to
consist of 1,372 rentable square feet (the "Suite 406 Right of
First Offer"). The sixth floor of the Building and Suite 406
are together referred to as "Offer Space". Each portion of the
Offer Space is leased as of the date hereof. Xxxxxxxx's offer
to Tenant shall be for Tenant's Lease of such premises
effective when the current tenant or occupant of any portion
of Offer Space's right to lease such Offer Space expires or
has been terminated. Xxxxxxxx's offer shall include a proposed
commencement date taking into account any proposed period for
the construction of tenant improvements in such Offer Space.
(b) With regard to the Sixth Floor Right of First Offer and the
Suite 406 Right of First Offer, Tenant shall have seven (7)
business days (ending at 5:00 P.M. on the fifth business day
after the giving of Xxxxxxxx's written notice to Tenant) to
accept the space which is the subject of the applicable Right
of First Offer. Such offer shall, for any Offer Space for
which Xxxxxx's lease thereof commences within twenty-seven
(27) months following the Commencement Date, be on the terms
and conditions set forth in Subsection (5) c. below. In the
event Tenant's lease of any Offer Space commences after
twenty-seven (27) months following the Commencement Date,
Tenant's lease of such Offer Space shall be at the then
prevailing market conditions for similar tenants leasing space
in similar buildings in the location of the Building. With
respect to such Offer Space, Landlord shall notify Tenant of
the proposed Fair Market Rent for the Offer at the time of
extending the Right of First Offer to Tenant. Tenant shall
have ten (10) business days following Landlord's Offer to
accept or reject the subject Offer Space. Landlord and Xxxxxx
shall attempt to agree upon the Fair Market Rent for such
Offer Space for a fifteen (15) business day period following
Xxxxxx's acceptance of Landlord's offer. If they do not agree
within such fifteen (15) business day period, then the Fair
Market Rent for the subject Offer Space shall be determined as
set forth below.
(c) The Fair Market Rent for the Offer Space shall be the sum
equal to the rent a willing Tenant and a willing Landlord
would agree upon under the then current market conditions for
new leases of comparable space upon comparable terms and
conditions for comparable periods of time in office buildings
of same age and quality in the airport-west submarket of
Miami-Dade County, Florida, taking into account the
applicable Base Year under the Lease and the tenant
improvements constructed or to be constructed in the Offer
Space (the "Offer Space Fair Market Rent"), as agreed by the
parties to the Lease as set forth above or in the event the
parties cannot agree, the Fair Market Rent as determined by
appraisers pursuant to the following procedure.
5
(d) In the event Landlord and Tenant agree on Fair Market Rent for
the Offer Space, such agreement shall be reduced to a written
form and when executed and delivered by both parties will be
binding on Landlord and Xxxxxx, and execution thereof by
Tenant shall be deemed acceptance thereof.
(e) If no agreement is reached between Landlord and Tenant within
the fifteen (15) business day period set forth above, both
parties shall appoint a Qualified Appraiser (as defined below)
no later than the tenth (10th) business day following such
date. Each Qualified Appraiser shall arrive at a determination
of Fair Market Rent and submit their conclusions to Landlord
and Tenant within thirty (30) days after the appointment of
the Qualified Appraisers. If only one (1) appraisal is
submitted within the requisite time period, it shall be deemed
the Fair Market Rent. If both appraisals are submitted within
such time period, and if the two (2) appraisals so submitted
differ by less than ten (10%) percent of the higher of the
two, the average of the two shall be the Fair Market Rent. If
such appraisals are ten (10%) percent or more apart, the
appraisers shall promptly select a third Qualified Appraiser
(or if they cannot agree, a third Qualified Appraiser shall be
named by the head of the local Chapter of the Appraisal
Institute or comparable successor organization). Within thirty
(30) days of the selection of the third Qualified Appraiser,
each Qualified Appraiser shall submit his or her appraisal of
the Fair Market Rent. In the event the third appraisal shall
be greater than the average of the first two (2) appraisals of
Landlord and Tenant, then the Fair Market Rent shall be the
average of the two (2) highest appraisals. In the event such
third appraisal shall be lower than the average of the first
two (2) appraisals, then the Fair Market Rent shall be the
average of the two (2) lowest appraisals. The Qualified
Appraisers shall submit their final conclusion to Landlord and
Tenant within such thirty (30) day period, and upon such
submission the Fair Market Rent so determined shall be binding
upon Landlord and Tenant. In the event either party to the
Lease fails to name a Qualified Appraiser when required
hereunder, the Fair Market Rent shall be determined by the
Qualified Appraiser selected by the other party. Each party to
this Lease shall pay all fees of any Qualified Appraiser
selected by it and any fees of a third Qualified Appraiser
shall be shared equally by each party hereto. As used herein
the term "Qualified Appraiser" shall refer to an independent
appraiser holding an MAI ("Member of the Appraisal Institute")
designation or its equivalent, having not less than ten (10)
years experience appraising comparable office buildings in the
airport-west submarket of Miami-Dade County, Florida. The
determination of Fair Market Value by such appraisal process
shall be binding on Landlord and Tenant.
(f) In the event that Landlord and Tenant use the appraisal
process described above to determine Fair Market Rent for
Offer Space, but have not reached such determination by the
time that Tenant's lease of the subject Offer Space commences,
Tenant shall pay, as a temporary rate, the sums due for the
Premises under this Lease for the immediately preceding month
plus
6
(prorated on a square foot basis for such Offer Space) plus
(ii) 10% of the Base Rent (prorated on a square foot basis for
such offer Space) (the "Temporary Rate"). After a
determination of Fair Market Rent is made (x) if the rate is
greater than the Temporary Rate, Tenant shall promptly pay to
Landlord the difference between the rent previously paid at
the Temporary Rate and the greater rate, as determined or (y)
if the rate is less than the Temporary Rate, Landlord shall
promptly credit to Tenant the difference between the rent
previously paid at the Temporary Rate and the lesser rate, as
determined.
(g) Any Right of First Offer shall expire and be of no further
force or effect upon the first to occur of the following:
(1) with respect to the Suite 406 Right of First Offer, if
Tenant exercises the Space Reduction Option, or,
(2) With respect to the portion of the First Offer Space
that is the subject of Landlord's offer, Landlord offers
space to Tenant and Tenant fails to provide an
acceptance of same within the allotted time frame
unless, once leased by Landlord, such space again
becomes available after the expiration of such lease and
any extensions of such lease, or,
(3) An Event of Default exists, or an event or condition
exists which, with the lapse of the applicable grace
period would mature into an Event of Default under this
Lease either on the date Tenant exercises its Right of
First Offer or, unless waived in writing by Landlord, on
the proposed commencement date of the Right of First
Offer.
a. Financial Condition - At the time Tenant exercises
any Right of First Offer, Xxxxxx's current
financial condition, as revealed by its most
recent audited financial statements (quarterly and
annual financial statements including at least its
income statements, balance sheets, and cash flow
statement), must demonstrate that Xxxxxx's net
worth is equal to or greater than $4 million.
(4) Offer Space that has become available - Offer Space
shall be deemed to become available when the lease for
the current occupant of the space expires or is
otherwise terminated. Offer Space shall not be deemed to
be available if the space is:
a. Assigned or subleased by the current tenant of the
space;
b. Relet by the current tenant of the space by
renewal, extension, or renegotiation;
c. Intentionally Omitted.
7
d. Subject to a specific expansion right of another
tenant in the Building, existing as of the Lease
Commencement Date.
(5) The parties shall concurrently with Xxxxxx's exercise of
a Right of First Offer confirm in writing:
a. The commencement date for the Offer Space;
b. The Offer Space that was leased showing that space
crosshatched on an Exhibit;
c. The additional Base Rent to be paid for the Offer
Space; if the commencement date for the subject
Offer Space is within twenty-seven (27) months
following the Lease Commencement Date, then the
Base Rent for such Offer Space shall be the then
applicable amount per square foot for the
Premises, subject to adjustment as set forth in
the Lease; the Base Year shall be as set forth for
the Premises, the rent abatement period shall be
prorated, and the Improvement Allowance shall be
the Improvement Allowance for the Premises
prorated to reflect the commencement date for the
subject Offer Space (but the Improvement Allowance
shall not include any Allowance Increase Amount).
With respect to the Sixth Floor Right of First
Offer, the Improvement Allowance under this Lease
shall be deemed to have been in the amount of
$21.00 per rentable square foot. With respect to
the Suite 406 Right of First Offer, the
Improvement Allowance under this Lease shall be
deemed to have been in the amount of $10.00 per
rentable square foot. If the commencement date for
the subject Offer Space is after the twenty-
seventh (27th) month following the Lease
Commencement Date, then the Base Rent, Base Year
and improvement allowance for such Offer Space
shall be at the then prevailing market conditions
for similar tenants leasing space in similar
buildings in the location of the Building as set
forth in Landlord's notice to Tenant that such
Offer Space is available.
d. The increased tenant's percentage share allocated
to the Offer Space and the tenant improvement
allowance.
e. The Lease Term for any Offer Space shall be
coterminous with Tenant's lease of the Premises.
3. RENT:
A. Base Rent. Commencing on the ninety-first (91st) day following the
Lease Commencement Date and thereafter during the Lease Term, Tenant shall pay
as base rent for the Premises ("Base Rent") the amount set forth in the BLI
Rider plus applicable sales and other such taxes as are now or later enacted,
payable without demand, setoff or deduction, in advance, on or before the first
day of each month, subject to increase as set forth in the following schedule.
In the
8
event that Xxxxxx makes the written election, prior to Landlord's receipt of a
building permit for the Tenant Improvements, for Landlord to fund the Allowance
Increase Amount as defined in EXHIBIT "B" hereto, then commencing with the
fourth (4th) month following the Lease Commencement Date the following schedule
shall be revised to include the Allowance Increase Rent, also as defined in
EXHIBIT "B" and, in such event, Landlord shall recompute the following schedule
and tender such revised schedule to Tenant, by written notice, prior to the Rent
Commencement Date.
MONTHS BASE RENT/S.F./YEAR BASE RENT/YEAR BASE RENT/MONTH
------ ------------------- -------------- ---------------
1-3 NA NA Abated
4-15 $16.50 $161,964.00 $13,497.00
16-27 $17.00 $166,872.00 $13,906.00
28-39 $17.50 $171,780.00 $14,315.00
40-51 $18.00 $176,688.00 $14,724.00
52-63 $18.50 $181,596.00 $15,133.00
B. Intentionally Omitted.
C. Overhead Rent. Commencing with the period beginning on January 1,
2006 and thereafter during the Lease Term, Tenant shall pay as overhead rent
("Overhead Rent"), prorated for that part of the Lease Term within the
applicable calendar year, Tenant's percentage share ("Tenant's Percentage
Share"), as hereafter defined, of the total amount of (i) the annual operating
expenses ("Operating Expenses"), as hereafter defined, and (ii) the annual taxes
("Taxes"), as hereafter defined, to the extent that Operating Expenses exceed
Landlord's costs of Operating Expenses in the 2005 calendar year (the "Base
Year") and annual Taxes exceed the amounts of Taxes in the Base Year. For the
period beginning January 1, 2006 and thereafter during the Lease Term, Landlord
shall, in advance, reasonably estimate for each calendar year the total amount
of the Overhead Rent. One-twelfth (1/12) of the estimated Overhead Rent shall be
paid monthly by Tenant, with applicable sales tax in advance, with the monthly
payment of the Base Rent. Landlord shall use good faith efforts to make such
estimate on or before December 31 of each calendar year. On or before April 30
following a year for which Overhead Rent is payable hereunder, Landlord shall
use good faith efforts to provide Tenant with the amount of the actual Overhead
Rent for the previous year together with a reasonable breakdown of the items
included therein ("Landlord's Statement"). If the actual Overhead Rent for the
previous year exceeds the amount of Overhead Rent paid by Xxxxxx during the
previous year, then Tenant shall pay the difference to Landlord within thirty
(30) days after receipt of Landlord's Statement. If the actual Overhead Rent for
the previous year is less than the amount of Overhead Rent paid by Xxxxxx during
the previous year, then the difference shall be credited against Xxxxxx's next
required payments of Rent. For a period of sixty (60) days after receipt of
Landlord's Statement, Tenant or its designated accountant or other
representative under supervision of Xxxxxx's financial officer shall have the
right, upon reasonable advance notice, to visit Landlord's property management
office located in the Project during Business Hours, as hereafter defined, to
inspect Landlord's books and records concerning the Overhead Rent. When
calculating the amount of Taxes with respect to Overhead Rent, such calculation
shall, with respect
9
to ad valorem taxes, be calculated with reference to the gross amount set forth
in the official tax bill issued by the appropriate taxing authorities at the
maximum discount rate offered for early payment. In the event the Taxes for any
year are contested by Landlord and such contest results in a final unappealable
reduction in such Taxes for any year, the Tenant's Percentage Share of the
amount of such reduction, net of all costs paid or incurred to obtain such
reduction, shall be credited against Xxxxxx's next required payments of Rent.
The delivery of Landlord's estimate of the Overhead Rent after December 31
and/or Landlord's Statement after April 30 shall not be a Landlord default under
this Lease or be deemed a waiver of any of Landlord's rights to collect Taxes,
Overhead Rent or other monies and/or a waiver of any of the obligations of
Tenant as described in this Section or as provided elsewhere in this Lease.
Notwithstanding the foregoing, however, Landlord shall be obligated to deliver
Landlord's Statement not later than June 30th.
D. Definitions.
(a) The term "Operating Expenses" shall mean (i) any and all costs
of ownership, management, operation, repair and maintenance of the Building or
the common areas and the parking areas, including, without limitation, wages,
salaries, professionals' fees, taxes, insurance and insurance costs, benefits
and other payroll burdens of all employees, Building management fees, janitorial
maintenance, security and other services, property management office rent or
rental value, power, fuel, water, sewer, waste disposal, landscaping maintenance
and replacement, lighting, garbage removal, window cleaning, system maintenance,
parking area care, and any and all other utilities, materials, supplies,
maintenance, repairs, and insurance applicable to the Building, and Landlord's
personal property and depreciation on personal property, and (ii) the cost
(amortized over such period as Landlord shall determine based upon Generally
Accepted Accounting Principles ("GAAP") together with interest at a then-current
interest rate determined by Landlord not to exceed the rate of twelve percent
(12%) per annum on the unamortized balance) of any capital improvements made to
the Building by Landlord after the date of this Lease that reduce other
Operating Expenses or that are made to the Building by Landlord after the date
of this Lease that are required under any governmental law or regulation
effective following the date of this Lease, provided, however, that Operating
Expenses shall not include real property taxes, depreciation on the Building
other than depreciation on carpeting in public corridors and common areas, costs
of tenants' improvements, real estate broker's commissions, debt service and
capital items other than those referenced to in subsection (ii) above. With
respect to expenditures intended to reduce other Operating Expenses, Xxxxxxxx
agrees that such expenditures shall be reasonable in amount when compared to the
anticipated cost reduction. Landlord shall maintain books and records in
accordance with GAAP. In determining the amount of Operating Expenses for any
calendar year, if less than one hundred percent (100%) of the Building shall
have been occupied and fully used, Operating Expenses shall be increased to an
amount equal to the operating expenses normally expected to be incurred had
occupancy been ninety-five percent (95%) and full utilization been made during
the entire period. Landlord hereby agrees to deduct each year from the Operating
Expenses the total amount of any and all sums, amounts or charges paid by Tenant
or other tenants of the Building directly to Landlord or its agent for specific
tenant requested services, if applicable.
(b) The term "Taxes" shall mean the gross amount of all impositions,
taxes, assessments (special or otherwise), water and sewer assessments and other
governmental liens or charges of any and every kind, nature and sort whatsoever,
ordinary and extraordinary, foreseen and unforeseen, and substitutes therefor,
including all taxes whatsoever attributable in any manner to the
10
Building, the land on which the Building is located, or any facility located
therein or used in conjunction therewith or any charge or other amount required
to be paid to any governmental authority, whether or not any of the foregoing
shall be designated "real estate tax" or designated in any other manner.
Notwithstanding the foregoing, Taxes shall not include any inheritance, estate,
succession, transfer or gift taxes imposed upon Landlord or any income taxes
specifically payable by Landlord as a separate tax-paying entity without regard
to Landlord's income source as arising from or out of the Building and/or the
land on which the Building is located.
(c) The term "Tenant's Percentage Share" shall mean the percentage
set forth in the BLI Rider. Landlord and Tenant acknowledge that Xxxxxx's
Percentage Share has been obtained by dividing the rentable area of the
Premises, which Landlord and Tenant hereby stipulate for all purposes is the
amount set forth in the BLI Rider, by the total rentable area of the Building,
which Landlord and Tenant hereby stipulate for all purposes is the amount set
forth in the BLI Rider, and multiplying such quotient by 100. In the event of a
change in the rentable area of the Premises or the total rentable area of the
Building, Tenant's Percentage Share shall be recalculated as herein provided and
Landlord shall provide to Tenant a reasonable basis for such recalculation when
providing to Tenant its recalculated Percentage Share.
(d) The term "Rent" shall mean the sum of the Base Rent, the
Overhead Rent, and the Additional Rent, as hereafter defined.
(e) The term "Additional Rent" is sometimes used herein to refer to
any and all other sums payable by Xxxxxx, hereunder, including, without
limitation, parking charges (if any) or Tenant's storage (if any). Tenant agrees
to pay Additional Rent, plus applicable sales taxes, on the later of ten (10)
business days following Landlord's tender of an invoice or the first day of the
month following such invoice, and that Additional Rent is to be treated in the
same manner as Rent hereunder, both in terms of the lien for Rent provided by
Florida law and the default provisions contained in this Lease.
(f) Notwithstanding anything to the contrary herein, the
"Controllable Portion" of Overhead Rent shall not increase by more than five
percent (5%) from the Base Year to the following calendar year or from any other
calendar year to the next during the Lease Term (and any unutilized portion of
such five percent (5%) limitation shall accrue and be included in the amount of
the permitted increase in subsequent years.) For purposes hereof, the
"Controllable Portion" of Overhead Rent does not include Taxes, utilities,
insurance, and wages tied to the minimum wage. As an illustration of the manner
in which the foregoing limit on increases in the Controllable Portion of
Overhead Rent would be applied, and assuming for purposes of this illustration
that the Base Year is the first calendar year of the Lease Term, in the event
that the Controllable Portion of Overhead Rent increases by four percent (4%)
from the Base Year to the following calendar year and by four percent (4%)
between the second and third calendar year within the Lease Term, then Landlord
shall be permitted to increase the Controllable Portion of Overhead Rent by up
to seven percent (7%) between the third and fourth such calendar years, and
again by up to five percent (5%) between the fourth and fifth calendar years
within the Lease Term.
(g) Notwithstanding anything to the contrary herein, Overhead Rent
shall not include any of the following:
11
(1) Home office expenses of Landlord or the home office
expenses of the Building's property manager.
(2) Building leasing commissions and expenses of maintaining
a leasing office and, if one office houses both leasing
and management functions, only the proportional cost
associated with the management function may be included.
(3) Special services and specific costs incurred for the
benefit of specific tenants or other third parties
including, without limitation, any costs incurred by or
at the instance of any other tenants of the Building.
(4) Depreciation.
(5) Principal, interest and other costs of financing the
Building or the Project.
(6) All labor costs for personnel above the grade of senior
property management director for the Project, and, for
those employees whose responsibilities include more than
the Project, labor costs allocable to any part of such
employee's time spent on behalf of another project. The
costs of employees providing services to the Project
shall be reasonably prorated to reflect the percentage
of their time properly allocable to the Building.
(7) Legal, accounting and other professional fees incurred
by Landlord arising from a sale or financing of the
Building or the Project.
(8) The cost of membership in any professional or political
organization, other than the cost of professional or
trade associations which relate directly to the business
and affairs of Landlord as owner of the Building which
are customary memberships for other owners of similar
office buildings in the airport-west submarket of
Miami-Dade County, Florida including, by way of example,
BOMA, the Miami-Dade County Chamber of Commerce, or
other similar professional or trade organizations.
(9) The cost of any political campaign contributions.
(10) Brokerage commissions, leasing commissions, tenant
inducement payments and other tenant concessions,
marketing costs, and legal fees and other expenses in
connection with leasing, renovating or improving space
in the Building for individual tenants.
(11) Overtime and additional electricity costs for which
Landlord directly receives or is entitled to receive
reimbursement from another tenant.
12
(12) Costs incurred because Landlord or another tenant
violated the terms of any leases.
(13) Rentals and related expenses incurred in leasing air
conditioning systems, elevators or other equipment
normally considered to be of a capital nature; provided,
however, that the foregoing shall not preclude inclusion
as an Operating Expense of the rental of emergency
generators, air handling and other equipment on a
temporary basis.
(14) Costs incurred for services provided to Tenant or other
tenants of the Building or other third parties which are
directly reimbursed to Landlord as above-standard
services, this exclusion being intended to prevent
Tenant from substantially and materially subsidizing
extraordinary services provided to other tenants of the
Building.
(15) Costs incurred due to violation or failure of Landlord
to timely comply with or pay amounts due with respect to
any contractual requirement, legal requirement, building
code, ordinance, regulation, law or governmental
authority, except for interest which may accrue on
delinquent payments during the pendency of good faith
contests or challenges of the obligation of Landlord to
pay such costs or any portion thereof, and except for
costs incurred specifically because of Tenant's actions
or inaction.
(16) Costs incurred to test, survey, clean up, contain,
xxxxx, remove or otherwise remedy hazardous materials or
asbestos-containing materials or the cost of any
environmental audit, all as may be required by a
mortgagee, prospective mortgagee, purchaser or
prospective purchaser of the Building; provided,
however, the foregoing shall not be deemed to preclude
the inclusion as an Operating Expense of the cost of
periodic preventive testing for hazardous or toxic
materials, and further provided that the foregoing shall
not be construed to dilute or mitigate Tenant's
obligations for any breach of its obligations under
Section 40 of this Lease.
(17) Costs or fees paid to an affiliate of Landlord or
property manager which are materially in excess of
amounts which would otherwise be payable for the same
service, materials or supplies if rendered on an arm's
length basis.
(18) All capital expenditures, determined by reference to
GAAP, and all rents or use charges for any item, the
purchase price of which, if the same had been purchased,
would have constituted a capital expenditure, except,
however, that the following costs may be included: (i)
the cost of any capital improvement made by Landlord
which is required by a law effective following the date
of this Lease
13
that would, if made to any leasable space, would not be
the responsibility of Tenant under this Lease if
required to be made to the Premises, provided, however,
that the cost thereof shall be amortized, with interest
at Landlord's then-current rate not to exceed 12 percent
per annum, over the estimated useful life of such
capital improvement; (ii) capital improvements
reasonably intended to achieve a current savings in
operating expenses; (iii) the cost of any equipment
leased on a temporary basis (and not as a substitution
of a permanent improvement) for the purpose of avoiding
or remedying service interruptions.
(19) Rental replacement insurance except to the extent
included in casualty insurance.
(20) Costs and expenses arising from fire or other casualty
which have been reimbursed to Landlord.
(21) Costs and expenses arising from Landlord's breach of any
law or legal requirement;
(22) Costs and expenses arising from the breach of any lease
in the Building.
(23) Costs and expenses relating to any breach of contract,
except such costs and expenses may be included when in
connection with a contract dispute relating to the
provision of services that are components of Operating
Expenses.
(24) Ground lease rents, financing expenses, including
amortization, debt service and other financing expenses
relating to Xxxxxxxx's ownership of the Project but,
however, those included under Paragraph 18 above shall
be allowed.
(25) Costs actually reimbursed to Landlord by insurance.
E. Related Provisions.
(a) Tenant covenants and agrees to pay a late charge for any payment
of Base Rent or Overhead Rent not received by Landlord on or before the fifth
(5th) business day of each month and for any other payment, such as Additional
Rent, not received by Landlord on or before the date when due. The late charge
shall be computed from the first day of the month in the case of Base Rent and
Overhead Rent, and from the date when due in the case of Additional Rent. The
amount of the late charge shall be equal to three percent (3%) of the amount due
and unpaid. After the grace period, all payments not paid when due shall bear
interest at the default rate of 18% per annum on all unpaid amounts from the
date of nonpayment to the date received by Landlord. In the event any late
charge is due to Landlord, Landlord shall advise Tenant in writing, and Tenant
shall pay the late charge to Landlord with and in addition to the next payment
of Rent. Tenant and Landlord mutually agree that any late fee or default
interest due by Xxxxxx is not a penalty.
14
(b) All sums due and payable pursuant to the terms and provisions of
this Lease shall be paid by Tenant without offset, demand or other credit, and
shall be payable only in lawful money of the United States of America which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment. The Rent shall be paid by Tenant at Landlord's property
management office or elsewhere as designated by Landlord in writing to Tenant.
(c) In addition to Base Rent and Overhead Rent, Tenant shall and
hereby agrees to pay to Landlord each month a sum equal to any sales tax, tax on
rentals and any other similar charges now existing or hereafter imposed, based
upon the privilege of leasing the space leased hereunder or based upon the
amount of rent collected therefor.
(d) If the Rent Commencement Date is any day other than the first
day of the month, and/or the Expiration Date is any day other than the last day
of the month, the pro rata portion of the Rent shall be paid by Tenant for such
partial month.
(e) Overhead Rent for the final months of this Lease is due and
payable even though the Overhead Rent may not be finally calculated until
subsequent to the Expiration Date. Tenant expressly agrees that Landlord, at
Xxxxxxxx's sole discretion, may apply the Security Deposit, as hereafter
defined, in full or partial satisfaction of any Overhead Rent due for the final
months of this Lease. If the Security Deposit is greater than the amount of any
such Overhead Rent and there are no other sums or amounts owed Landlord by
Tenant by reason of any other terms, provisions, covenants or conditions of this
Lease, then Landlord shall refund the balance of the Security Deposit to Tenant
as provided herein. Nothing herein shall be construed to relieve Tenant, or
imply that Tenant is relieved, of the liability for or the obligation to pay any
Overhead Rent due for the final months of this Lease by reason of the provisions
of this paragraph, nor shall Landlord be required first to apply the Security
Deposit to such Overhead Rent if there are other sums or amounts owed Landlord
by Tenant by reason of other terms, provisions, covenants or conditions of this
Lease.
(f) Subject to and in furtherance of Tenant's rights under Section
3.C. above, Tenant hereby agrees that the Base Rent and the Overhead Rent
computed by Landlord shall be final and binding for all purposes of this Lease
unless, within sixty (60) days after Landlord provides Tenant with written
notice of the amount thereof, Tenant provides Landlord with written notice (i)
disputing the accuracy of such amount (the "Disputed Amount"), (ii) designating
an attorney, accountant, or representative acting under supervision of Xxxxxx's
chief financial officer accountant, reasonably acceptable to Landlord, and
appointed by Xxxxxx, at Tenant's sole cost and expense, to review the accuracy
of the Disputed Amount with Landlord and/or its designated representatives, and
(iii) agreeing to pay all of Landlord's commercially reasonable costs and
expenses in connection with such review, including, without limitation,
attorneys' fees and accountants' fees. Landlord hereby agrees, in the event it
receives such notice from Tenant, to cooperate in promptly completing such
review, and Landlord agrees to credit any excess portion of the Disputed Amount
against Xxxxxx's next required payment of Rent or, if at the end of the Lease
Term, refund such amount to Tenant (subject to offset by any amounts due from
Tenant to Landlord). Tenant's review must be completed, and its report delivered
to Landlord, within sixty (60) days following Xxxxxx's written notice to
Landlord. In the event that Xxxxxx's review, as finally determined, discloses
that Xxxxxxxx's statement of Overhead Rent overstated such amounts by four
percent (4%) or more, then notwithstanding Subsection (iii) above, Landlord
shall bear its own
15
expenses in connection with Xxxxxx's audit and shall reimburse Tenant for its
commercially reasonable and actual costs thereof.
F. Rent Free Period. The parties agree that as long as Tenant shall have
duly kept and performed all of the terms and conditions required of Tenant under
this Lease, for the time period beginning on the Lease Commencement Date and
ending on the Rent Commencement Date (hereinafter referred to as the "Rent Free
Period"), Tenant (this provision shall not apply to any assignee or subtenant of
Tenant) may occupy the Premises without obligation to pay Base Rent and Overhead
Rent (Tenant's obligation to pay Additional Rent is not relieved during the Rent
Free Period), provided, however, that (i) all of the other terms and provisions
of this Lease shall apply during the Rent Free Period; (ii) on the Rent
Commencement Date, Tenant shall begin paying Base Rent and Overhead Rent and
shall continue to pay Additional Rent pursuant to all of the terms of this
Lease; and (iii) Tenant hereby acknowledges and agrees that Landlord's waiver of
the Base Rent and Overhead Rent during the Rent Free Period, as well as
Landlord's giving of any other lease concessions to Tenant, including, without
limitation, tenant improvement work and funds, are conditioned upon Tenant not
being in default hereunder. Should an Event of Default by Tenant occur
hereunder, such amounts shall, without notice and in addition to all other
rights and remedies available to Landlord, become immediately due and payable by
Tenant to Landlord.
4. SECURITY DEPOSIT: Tenant, concurrently with the execution of this Lease, has
deposited with Landlord the amount set forth in the BLI Rider as the security
deposit ("Security Deposit"). This sum shall be retained by Xxxxxxxx as security
for the payment by Tenant of the Rent and for the faithful performance by Tenant
of all the other terms and conditions of this Lease, and Xxxxxx's obligation to
pay the Security Deposit is Additional Rent hereunder. In the event Tenant fails
to faithfully pay the Rent and perform the terms and conditions of this Lease,
Landlord, at Landlord's option, may at any time apply the Security Deposit or
any part thereof toward the payment of the Rent and/or toward the performance of
Tenant's obligations under this Lease; in such event, within five (5) days after
notice, Tenant shall deposit with Landlord cash sufficient to restore the
Security Deposit to its original amount. The Security Deposit is not liquidated
damages. Landlord shall return the unused portion of the Security Deposit to
Tenant within thirty (30) days after the Expiration Date if Tenant is not in
default under any of the provisions of this Lease. Landlord may (but is not
obligated to) exhaust any or all rights and remedies against Tenant before
resorting to the Security Deposit. Landlord shall not be required to pay Tenant
any interest with regard to the Security Deposit nor hold the Security Deposit
in a separate account. If Landlord assigns its interest in this Lease, then
Landlord shall deliver the Security Deposit or the unapplied portion thereof to
the new landlord. Xxxxxx agrees that if Xxxxxxxx turns over the Security Deposit
or the unapplied portion thereof to the new landlord, then Tenant shall look to
the new landlord only (and not to Landlord) for the return of the Security
Deposit upon expiration of the Lease Term. If Tenant assigns this Lease with the
consent of Landlord, the Security Deposit shall remain with Landlord for the
benefit of the new tenant and shall be returned to such new tenant upon the same
conditions as would have entitled Tenant to its return.
At Tenant's option, the Security Deposit may be in the form of a clean,
irrevocable letter of credit (the "Letter of Credit") in the amount of the
required Security Deposit issued by a bank satisfactory to Landlord in
substantially the form attached hereto as Rider #3. In the event that Tenant
elects to tender its Security Deposit in the form of the Letter of Credit, the
Letter of Credit shall at all times
16
be in effect throughout the Lease Term. Any termination or non-renewal of the
Letter of Credit prior thereto shall, unless Tenant earlier or concurrently
posts a cash security deposit in the then-applicable amount, constitute an
immediate default under this Lease and shall entitle Landlord to present the
Letter of Credit for payment in full. Any Event of Default under this Lease
pursuant to Section 24 hereof which has not been cured within any applicable
grace period and/or curative period shall entitle Landlord to present the Letter
of Credit for payment in the amount necessary to cure such default (or if such
default cannot be cured by the payment of money, for payment in full). Within
ten (10) days following any partial draw on the Letter of Credit, Tenant shall
replace the partially drawn Letter of Credit with a replacement letter of credit
identical in terms to the original Letter of Credit (or, alternatively, an
addendum to the original Letter of Credit), but in the amount of the Letter of
Credit prior to such partial draw, and that replacement letter of credit (or the
original Letter of Credit and such addendum) shall then become the "Letter of
Credit" for purposes of this provision. The Letter of Credit proceeds (other
than those used to cure a monetary default) shall be held by Landlord as a
Security Deposit under this Lease. The Letter of Credit will be endorsed
annually to reflect that it has been renewed at the then current face amount. If
Landlord assigns its interest in this Lease, then Landlord shall deliver the
Letter of Credit to the new landlord. Xxxxxx agrees that if Xxxxxxxx turns over
the Letter of Credit to the new landlord, then Tenant shall look to the new
landlord only (and not to Landlord) for the return of the original Letter of
Credit and any funds being held as a security deposit upon expiration of the
Lease Term. If Tenant assigns this Lease, the Letter of Credit shall remain with
Landlord for the benefit of the new tenant unless the new tenant tenders a
replacement Letter of Credit to Landlord from a bank approved by Landlord and
otherwise in conformity with the requirements for the Letter of Credit.
5. USE: Tenant shall use and occupy the Premises solely for the operation of the
business set forth in the BLI Rider and for no other use whatsoever. Tenant
acknowledges that its type of business, as specified in the BLI Rider, is a
material consideration for Xxxxxxxx's execution of this Lease. Tenant shall not
commit waste upon the Premises nor suffer or permit any part of the Premises to
be used in any manner, or suffer or permit anything to be done in or brought
into or kept in the Premises or the Building, which would: (i) violate any law
or requirement of public authorities, (ii) cause injury to the Building or any
part thereof, (iii) unreasonably annoy or offend other tenants or their patrons
or interfere with the normal operations of HVAC, plumbing or other mechanical or
electrical systems of the Building or the elevators in a multistoried building,
(iv) constitute a public or private nuisance, or (v) alter the appearance of the
exterior of the Building or of any portion of the interior other than the
Premises pursuant to the provisions of this Lease. Xxxxxx agrees and
acknowledges that Tenant shall be responsible for obtaining any special
amendments to the certificate of occupancy for the Premises and/or the Building
and any other governmental permits, authorizations or consents required solely
on account of Tenant's use of the Premises.
6. IMPROVEMENTS: Landlord shall, subject to the provisions of the Initial
Improvement Schedule attached hereto as EXHIBIT "B" and made a part hereof by
this reference, construct certain improvements in the Premises for Tenant's use
and occupancy as contemplated by this Lease (the "Improvements"). All attached
improvements (but not trade fixtures), including, without limitation the
Improvements made to the Premises, whether by Landlord or Tenant, shall become
the property of Landlord when attached to or incorporated into the Premises.
7. POSSESSION:
17
A. Delivery of Possession. Landlord shall deliver possession of the
Premises to Tenant on the Lease Commencement Date set forth in the BLI Rider, as
such date may be extended in accordance with the provisions of the Initial
Improvement Schedule. The taking of possession by Xxxxxx (or any permitted
assignee or subtenant of Tenant) of all or any portion of the Premises shall be
deemed conclusive evidence that Tenant has found the Premises fully acceptable,
subject, however, to Landlord's completion of punch-list items and to latent
defects discovered in the first year following the Lease Commencement Date. The
date on which Xxxxxxxx is scheduled to deliver possession of the Premises to
Tenant pursuant to this Section 7(A) is referred to in this Lease as the "Date
of Possession".
B. Initial Delay. If Landlord is unable to deliver possession of the
Premises to Tenant on the Date of Possession for any reason not solely
attributable to (i) Tenant's Delay (as defined in EXHIBIT "B"), or (ii) an event
or condition described in Section 42(O), then the Lease Commencement Date and
the Rent Commencement Date shall not occur until Landlord delivers possession of
the Premises to Tenant. The deferral of the Lease Commencement Date and the Rent
Commencement Date, if Landlord is unable to deliver possession (and any sums
payable under Subsection D. below) shall be the full extent of Landlord's
liability to Tenant, and Tenant shall make no claim against Landlord for any
damages whatsoever, actual or consequential, including, without limitation, any
claims or damages for Tenant's holdover rent in a prior tenancy or on account of
a delay in delivery of possession of the Premises under this Lease.
C. Subsequent Delay. Subject to Subsection D. below, Landlord shall not be
liable to Tenant in any respect in the event of delay in the Date of Possession.
D. Holdover Premium. Notwithstanding the second sentence of Subsection B
and Subsection C. above, Tenant is presently leasing premises located at 00 X.X.
0xx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the "Existing Lease"). Tenant
hereby represents and warrants to Landlord that the Existing Lease expires on
September 30, 2004, and, further, that the Existing Lease provides that if
Tenant does not vacate its premises under the Existing Lease on or before said
expiration date, that Tenant shall be obligated to pay the landlord under the
Existing Lease holdover rent, defined in the Existing Lease as rent that is 200%
of the base rent and additional rent payable by Tenant for the month prior to
the expiration date of the Existing Lease ("Existing Lease Holdover Rent").
Further, Tenant represents and warrants that its monthly base rent under the
Existing Lease for the month prior to its expiration date is in the amount of
$17,495.71, plus sales tax, and that additional rent attributable to operating
expenses is in the amount of $1,134.71, plus sales tax (together "Current
Existing Lease Rent"). The difference between the Existing Lease Holdover Rent
and the Current Existing Lease Rent is referred to herein as the "Existing Lease
Holdover Premium". To the extent that Xxxxxxxx's completion of the Improvements
requires more than ten (10) weeks following issuance of and Landlord's receipt
of a building permit by Miami-Dade County for the Improvements (but subject to
day by day extension for Unavoidable Delay and Xxxxxx Xxxxx as defined in
EXHIBIT "B" hereto), Landlord shall reimburse Tenant for months for which Xxxxxx
was actually charged and actually paid the Existing Lease Holdover Premium for
those months following October 1, 2004 on which the Lease Commencement Date
occurs. Notwithstanding the foregoing, such ten (10) week period shall be
extended, and no reimbursement shall be made, for those days of delay
attributable to Tenant's Delay and Unavoidable Delay as defined in EXHIBIT "B"
hereto. Landlord shall make the foregoing reimbursement within thirty (30) days
following Xxxxxx's tender to Landlord of evidence of its payment of the Existing
Lease
18
Holdover Premium together with an invoice from landlord under the Existing Lease
for the Existing Lease Holdover Premium.
8. PARKING:
A. General. As long as there is no Event of Default by Tenant under this
Lease, Landlord shall provide Tenant during the Lease Term with unassigned,
nonexclusive parking spaces for the number of automobiles set forth in the BLI
Rider. Such parking spaces may be used only by principals and employees of
Tenant. Tenant shall, subject to paragraph 8(B) below, pay Landlord parking rent
(plus all applicable taxes) each month, per parking space, in the amount set
forth in the BLI Rider.
B. Rates. Intentionally Omitted.
C. Reservations. So long as Tenant's access to and use of its parking
spaces is not impaired in any material respect, Landlord has and reserves the
right to alter the methods used to control parking and the right to establish
such controls and rules and regulations (such as parking stickers to be affixed
to vehicles) regarding parking that Landlord may deem desirable. Without
liability, Landlord shall have the right to tow or otherwise remove vehicles
improperly parked, blocking ingress or egress lanes, or violating parking rules,
at the expense of the offending tenant, including, without limitation, Tenant,
and/or owner of the vehicle. Tenant's principals and employees shall not park in
any of the surface parking spaces located around the Building designated as
visitor parking. Landlord reserves the right to redesignate the use of the
surface parking spaces in Landlord's sole discretion.
D. Conditions. Tenant's right to use, and its right to permit its
principals and employees to use, the parking facilities pursuant to this Lease
are subject to the following conditions: (i) except with respect to Tenant's
reserved parking spaces, Landlord has made no representations or warranties with
respect to the parking area, the number of spaces located therein or the
availability of parking spaces on any given day thereto; (ii) Landlord reserves
the right to change access to the parking area, provided that some manner of
reasonable access to the parking area remains after such change; (iii) Landlord
has no obligation to provide a parking lot attendant and Landlord shall have no
liability on account of any loss or damage to any vehicle or the contents
thereof, Tenant hereby agreeing to bear the risk of loss for same; (iv) Tenant,
its principals and employees, shall park their automobiles and other vehicles
only where and as designated from time to time by Landlord (subject, however, to
the designation of reserved parking spaces made in this Lease); (v) if requested
by Landlord, Tenant shall promptly furnish Landlord with the license numbers of
any vehicles of Tenant, its principals and employees; and (vi) Tenant, its
principals and employees, shall not park in parking spaces designated as
"reserved" unless approved in writing by Landlord.
9. BUILDING SERVICES:
A. General. The services set forth below shall be provided by Landlord at
a service level set, defined and regulated by Landlord. During the Lease Term,
the regular business hours ("Business Hours") of the Building will be 7:30 a.m.
to 6:00 p.m., Monday through Friday, and on Saturday, from 8:00 a.m. to 1:00
p.m. on a limited basis so long as Tenant provides Landlord with advance notice
of Tenant's requirement for same, except the days on which the following
holidays
19
are celebrated: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. The Building will be accessible to Tenant,
its agents, servants, employees, contractors, invitees or licensees
(collectively, "Tenant's Agents") at all times during Business Hours and to
Tenant's employees 24 hours per day, 7 days per week.
(1) Janitorial Service. Landlord agrees to provide during the Lease
Term janitorial service for the Premises in accordance with the Janitorial
Specifications attached hereto as Exhibit "E". Janitorial service shall be
provided after Business Hours, but no janitorial service shall be provided on
Saturdays, Sundays and the holidays enumerated in Section A, above. Should
Tenant require additional janitorial service beyond those customarily provided
by Landlord, Tenant may request same in writing from Landlord, and if Landlord
agrees to provide such services, Tenant shall be billed for same by Landlord at
a reasonable rate, as determined by Landlord, and those costs and expenses when
billed shall be Additional Rent due under this Lease.
(2) Electricity. During the Lease Term, electric power shall be
available to the Premises for the purposes of lighting and general office
equipment use in amounts consistent with the Building standard electrical
capacities (referred to in this Lease as the "Building Standard"). The Building
Standard electrical design parameters are 4 xxxxx per rentable square foot at
120 volts. Tenant shall not use, nor install any equipment in the Premises which
uses, more electric power than the Building Standard without the prior written
consent of Landlord, which consent may be withheld in Landlord's sole discretion
or under any circumstances, which exceeds the capacity of the risers or
electrical wiring. If Tenant's use of the Premises requires more electrical
power than the Building Standard, whether by voltage, rated capacity, or overall
load, Landlord shall bill Tenant for such additional use and all costs and
expenses thereby incurred as Additional Rent. At Landlord's option, Landlord, at
Xxxxxx's expense, may install a submeter for the purpose of monitoring Tenant's
excess power consumption.
(3) HVAC Services. Landlord agrees to provide, during Business
Hours, heating, ventilating and air conditioning ("HVAC") for the purposes of
comfort control for use as an office building consistent with the same standards
and temperature levels of other buildings in the Project. Landlord and Tenant
agree that Xxxxxxxx's HVAC system is not designed to cool the air to comply with
requirements of machinery or equipment. If Tenant requires additional HVAC
services at times other than during Business Hours, Landlord shall bill Tenant
for the number of hours used as Additional Rent at the rate of $30.00 per hour
per floor during the first year of the Lease Term. Thereafter Landlord shall
reset the hourly rate to an amount determined by Landlord in its sole but
reasonable discretion. The HVAC air distribution system and control system shall
remain under the control of Landlord, and Landlord will regulate the systems'
setting and adjustment. At Landlord's option, Landlord may place HVAC controls
(thermostats) in secure boxes to regulate the efficiency and use of the system.
Tenant agrees that Landlord shall have complete control over the setting and
regulation of all air distribution, vents, vanes and dampers.
(4) Water and Sewer. Landlord agrees to provide or cause to be
provided municipally supplied cold water and sewer services to the common areas
for lavatory purposes.
(5) Elevator Service. For multifloored buildings, Landlord shall
provide passenger elevator service 24 hours per day, 7 days per week, and
Landlord shall provide use of an elevator designated for freight use during
Business Hours. At Landlord's sole but reasonable
20
discretion, Landlord may provide restricted freight elevator service during
non-Business Hours. Landlord shall not impose a charge for use of the freight
elevator except to the extent that Landlord actually incurs costs for providing
freight elevator service as requested by Tenant outside of Business Hours.
(6) Telecommunications:
a. Limitation of Responsibility. Tenant acknowledges and
agrees that all telephone and telecommunications services desired by Tenant
shall be ordered and utilized at the sole expense of Tenant. Unless Landlord
otherwise requests or consents in writing, all of Tenant's telecommunications
equipment shall be and remain solely in the Premises and the telephone closet(s)
on the floor(s) on which the Premises is located, in accordance with the
applicable rules and regulations attached hereto as Exhibit "D" as reasonably
amended and supplemented from time to time by Landlord. Unless otherwise
specifically agreed to in writing, Landlord shall have no responsibility for the
maintenance of Tenant's telecommunications equipment, including wiring; nor for
any wiring or other infrastructure to which Tenant's telecommunications
equipment may be connected. Tenant agrees that, to the extent any such service
is interrupted, curtailed or discontinued, Landlord shall have no obligation or
liability with respect thereto and it shall be the sole obligation of Tenant at
its expense to obtain substitute service.
b. Necessary Service Interruptions. Landlord shall have the
right, upon reasonable prior notice to Tenant, to interrupt or turn off
telecommunications facilities in the event of emergency or as necessary in
connection with repairs to the Building or installation of telecommunications
equipment for other tenants of the Building. Landlord will make commercially
reasonable efforts to minimize the disruption to Tenant from all such
interruptions.
c. Removal of Equipment, Wiring and Other Facilities. Any and
all telecommunications equipment installed in the Premises or elsewhere in the
Building by or on behalf of Tenant, including wiring, or other facilities for
telecommunications transmittal, shall be removed prior to the expiration or
earlier termination of the Lease Term, by Tenant at its sole cost or, at
Xxxxxxxx's election, by Landlord at Tenant's sole cost, with the cost thereof to
be paid as additional rent. Landlord shall have the right, however, upon written
notice to Tenant given no later than thirty (30) days prior to the expiration or
earlier termination of the Lease Term, to require Tenant to abandon and leave in
place, without additional payment to Tenant or credit against rent, any and all
telecommunications wiring, or selected components thereof, whether located in
the Tenant's premises or elsewhere in the Building
d. New Provider Installations. In the event that Tenant wishes
at any time to utilize the services of a telephone or telecommunications
provider (the "Provider") whose equipment is not then servicing the Building, no
such Provider shall be permitted to install its lines or other equipment within
the Building without first securing the prior written approval of the Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed if
Landlord is able to enter into an access agreement with such provider, has
obtained from such provider the insurance generally required by Landlord for
such providers, and if such access does not, in Landlord's judgment,
unreasonably burden the Building or the Project. Landlord's approval shall not
be deemed any kind of warranty or representation by Landlord, including, without
limitation, any warranty or representation as to the suitability, competence, or
financial strength of the
21
Provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall incur
no expense whatsoever with respect to any aspect of the Provider's provision of
its services, including without limitation, the costs of installation, materials
and services; (ii) prior to commencement of any work in or about the Building by
the Provider, the Provider shall supply Landlord with such written indemnities,
insurance, financial statements, and such other items as Landlord determines to
be necessary to protect its financial interests and the interests of the
Building relating to the proposed activities of the Provider; (iii) the Provider
agrees to abide by such rules and regulations, building and other codes, job
site rules and such other requirements as are determined by Landlord to be
necessary to protect the interest of the Building, including, but not limited
to, those contained in the Construction Rules and Regulations attached hereto,
the tenants in the Building and Landlord, in the same or similar manner as
Landlord has the right to protect itself and the Building with respect to
proposed alterations as described in Section 12 of this Lease; (iv) Landlord
determines that there is sufficient space in the Building for the placement of
all of the Provider's equipment and materials; (v) the Provider agrees to abide
by Landlord requirements, if any, that Provider use existing building conduits
and pipes or use building contractors (or other contractors approved by
Landlord); (vi) Landlord receives from the Provider such compensation as is
determined by Landlord to compensate it for space used in the Building for the
storage and maintenance of the Provider's equipment, for the fair market value
of a Provider's access to the Building, and the costs which may reasonably be
expected to be incurred by Landlord; (vii) the Provider agrees to deliver to
Landlord detailed "as built" plans immediately after the installation of the
Provider's equipment is complete; and (viii) all of the foregoing matters are
documented in a written license agreement between Landlord and the Provider, the
form and content of which is reasonably satisfactory to Landlord.
e. Limit of Default or Breach. Notwithstanding any provision
of the proceeding paragraphs to the contrary, the refusal of Landlord to grant
its approval to any prospective Provider shall not be deemed a default or breach
by Landlord of its obligation under this Lease unless and until Landlord is
adjudicated to have acted recklessly or maliciously with respect to Xxxxxx's
request for approval, and in the event, Tenant shall still have no right to
terminate the Lease or claim an entitlement to rent abatement, but may as
Tenant's sole and exclusive recourse seek a judicial order of specific
performance compelling Landlord to grant its approval as to the prospective
Provider in question. The provisions of this paragraph may be enforced solely by
Xxxxxx and Landlord, are not for the benefit of any other party, and
specifically but without limitation, no Provider shall be deemed a third party
beneficiary of this Lease.
f. Installation and Use of Wireless Technologies. Tenant shall
not utilize any wireless communications equipment (other than usual and
customary cellular telephones, computers, pdas and similar devices), including
antennae and satellite receiver dishes, within the Premises or the Building,
without Landlord's prior written consent. Such consent may be reasonably
conditioned in such a manner so as to protect Xxxxxxxx's financial interests and
the interests of the Building, and the other tenants therein, in a manner
similar to the arrangements described in the immediately preceding paragraphs.
g. Limitation of Liability for Equipment Interference. In the
event that telecommunications equipment, wiring and facilities or equipment of
any type installed by or at the request of Tenant within the Premises causes
interference to equipment used by another party as of
22
the Lease Commencement Date, Tenant shall assume all liability related to such
interference. Tenant shall use its best efforts, and shall cooperate with
Landlord and other parties, to promptly eliminate such interference. In the
event that Xxxxxx is unable to do so, Xxxxxx will substitute alternative
equipment which remedies the situation. If such interference persists, Tenant
shall discontinue the use of such equipment, and, at Landlord's sole discretion,
remove such equipment according to foregoing specifications. Tenant shall
operate its telecommunications equipment and any rooftop equipment expressly
permitted by Landlord, in such a fashion that such equipment does not interfere
with the equipment operations of other tenants which have installed equipment,
whether rooftop or otherwise, in the Project as of the Lease Commencement Date.
Such other tenants which have installed rooftop equipment in the Project shall
be third party beneficiaries of such Tenant undertaking. Tenant's indemnity to
Landlord set forth in Section 20.C, of this Lease shall include without
limitation, any claims against Landlord because of such Tenant interference.
Xxxxxxxx agrees to include the foregoing covenants prohibiting interference in
future leases in the Building.
h. Rooftop Equipment. Landlord will grant Tenant a
non-exclusive license to use the roof of the Building for the installation,
operation, maintenance and repair of one (1) communication antennae or satellite
dish (the "Dish") for Tenant's own use. Tenant's rights under this subsection
may not be assigned or subleased except as permitted under Section 14 hereof.
Tenant's exercise of said license shall be subject to the following: (i)
Landlord's approval in its sole discretion of the size, type and location of the
equipment to be installed; (ii) Landlord's determination that such use shall not
cause damage to or interference with the roof or any other use being made (or
intended to be made) of the roof; and (iii) Tenant's compliance with the
requirements of Governmental Authority and the rights of tenants under existing
leases for premises in the Project and all extensions and renewals of such
leases (iv) Tenant's obtaining all required municipal, regulatory and
governmental approvals (v) Tenant's operation of the rooftop equipment in such a
fashion that such rooftop equipment does not interfere with the rooftop
equipment operations of other tenants which have installed rooftop equipment in
the Project as of the Lease Commencement Date. Such other tenants which have
installed rooftop equipment in the Project shall be third party beneficiaries of
such Tenant undertaking. Landlord confirms that installation of the Package Air
Conditioning Unit as defined in EXHIBIT "B" hereto will not preclude Tenant from
installing the Dish.
1. Tenant shall present Landlord with plans and
specifications (the "Dish Plans") detailing its intended manner of installation
of the Dish on the roof or parapet wall of the Building (with such location
being at Landlord's direction), avoiding any penetration of the Building's roof
prior to Tenant's installation thereof. Tenant shall be solely responsible for
installing (in strict compliance with the Dish Plans), operating, maintaining
and repairing the Dish in a manner that causes no interference with or damage to
the roof of the Building or any other persons or tenant's use of the roof.
Tenant shall perform all of such work in a way as not to damage any Building
systems including, but not limited to, the roofing system, nor shall Tenant void
any warranty or guaranty relating thereto. Tenant, if required by Landlord,
shall use existing Building conduits and pipes and use contractors reasonably
approved by Landlord for performing such work. Tenant shall be responsible for
obtaining and paying for all governmental licenses and permits required by law
and regulation, and shall deliver copies thereof to Landlord as a condition
precedent to its installation of the Dish, and Tenant shall comply with all
applicable laws relating to the exercise of such license; Tenant shall remove
the Dish and shall repair any damage resulting from
23
such removal, and shall restore the roof, parapet and building systems, to the
condition they were in (ordinary wear and tear excepted) before Tenant made such
installation and exercised such license. Tenant's breach of its obligations
under this subsection shall be a default under this Lease and, in addition to
any other remedy that Landlord may have under this Lease, Landlord may revoke
the license granted in this subsection whereupon Tenant shall cease its use of
the roof and shall remove, repair and restore as set forth herein.
(7) Floor Load. The Building Standard floor load is 80 pounds per
square foot. Tenant shall not use, nor install any equipment, furniture,
personal property, or other property of any kind on the Premises which exceed
the Building Standard floor load.
B. Interruption of Services. It is understood and agreed that Xxxxxxxx
does not warrant that any of the services referred to above, or any other
services which Landlord may supply, will be free from interruption or
suspension. Tenant acknowledges that any one or more of such services may be
interrupted or suspended by reason of accident, repair, alteration or
improvement, by strikes, lockouts, by reason of operation of law, or other
causes beyond the control of Landlord. No such interruption or suspension of
service shall be deemed an eviction or a disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable to
Tenant for damages or abatement of Rent, or relieve Tenant of Tenant's
obligations under this Lease. The foregoing does not exculpate Landlord,
however, from its gross negligence or willful misconduct.
10. SECURITY: With respect to security for the Building, Landlord and Tenant
hereby agree as follows:
A. Xxxxxxxx's Responsibility. Xxxxxxxx's sole responsibilities shall be to
respond to Building alarms and/or reports of an emergency nature with reasonable
promptness on a twenty-four (24) hour basis.
B. Tenant's Responsibility. Tenant shall (1) abide by all policies,
procedures and rules and regulations for use of the access system, (2) report
promptly the loss or theft of all keys or other devices which would permit
unauthorized entrance to the Premises or Building, (3) report to Landlord the
employment or discharge of employees and their vehicle's make, model, and
license number, (4) promptly report to Landlord door-to-door solicitation or
other unauthorized persons or activity in the Building and (5) promptly inform
Xxxxxxxx's property management office in the event of a break-in or other
emergency.
C. Interruption of Security. Tenant acknowledges that the above security
provisions may be interrupted, suspended or modified in Landlord's sole
discretion or as a result of causes beyond the control of Landlord. No such
interruption, suspension or modification of security service shall constitute an
eviction, constructive eviction, or a disturbance of Tenant's use and possession
of the Premises; and no such interruption, suspension or modification of
security service shall render Landlord liable to Tenant or any third party for
damages, abatement of Rent, or otherwise, or relieve Tenant of Tenant's
obligations under this Lease.
11. REPAIRS AND MAINTENANCE:
24
X. Xxxxxxxx's Responsibilities. During the Lease Term, Landlord shall
repair and maintain the Building and the common areas in a manner consistent
with other Class B buildings in the airport-west submarket of Miami-Dade County,
Florida.
B. Tenant's Responsibilities. During the Lease Term, Tenant shall repair
and maintain the following at Tenant's expense:
(1) The interior of the demising walls and the interior partition
walls of the Premises, the wall-covering, and the entry door to the Premises.
(2) The electrical and mechanical systems not considered Building
Standard which have been installed by either Landlord or Tenant for the use and
benefit of Tenant. The following examples are for clarification and are not all
inclusive: (a) electrical services for computers or similar items, (b)
projection room equipment such as dimmers, curtains, or similar items, (c) water
closet plumbing, kitchen plumbing or similar items, (d) HVAC for other than
standard cooling of the Premises, (e) security systems for the Premises, (f)
telephone systems for the Premises, and (g) other similar systems.
(3) All other personal property, improvements, furniture,
furnishings, equipment, or trade fixtures located within the Premises.
C. Repairs and Maintenance; Miscellaneous. Notwithstanding any of the
provisions of this Section 11 to the contrary, Landlord shall have no
responsibility to repair or maintain the Building, any of its components, the
common areas, the Premises, or any fixture, improvement, trade fixture, or any
item of personal property contained in the Building, the common areas, and/or
the Premises, if such repairs or maintenance are required because of the
occurrence of any of the following: (i) the acts, misuse, improper conduct,
omission or neglect of Tenant or Tenant's Agents, or (ii) the conduct of
business in the Premises. Should Landlord elect to make repairs or maintenance
occasioned by the occurrence of any of the foregoing, Tenant shall pay to
Landlord as Additional Rent all costs and expenses incurred by Landlord.
Landlord shall have the right to approve in advance all work, repairs or
maintenance to be performed under this Lease by Xxxxxx and all of Tenant's
contractors, subcontractors and suppliers performing work or supplying
materials. Tenant shall be responsible for all permits, inspections and
certificates for accomplishing the above. Tenant shall obtain lien waivers for
all work done in or to the Premises. Prior to performing any work, repairs or
maintenance under this Lease, Tenant shall comply with all of the provisions of
Section 12 and Section 22 of this Lease.
12. TENANT'S ALTERATIONS:
A. General. During the Lease Term, Tenant shall make no alterations,
additions or improvements in or to the Premises, of any kind or nature,
including, without limitation, alterations, additions or improvements in, to or
on, telephone or computer installations (any and all of such alterations,
additions or improvements, except for the Improvements, are collectively
referred to as the "Alterations"), without the prior written consent of
Landlord. Landlord shall not unreasonably withhold its consent to Tenant's
Alterations provided that they are consistent with a Class B office building
located in the airport-west submarket of Miami-Dade County, Florida such as the
Building and do not have any material impact upon the Building's structure. In
the event that such Alterations
25
have a material impact upon the Building's systems, then Landlord may condition
its consent upon such enhancements or other changes to the Building's systems
that may be required to adequately respond, in Landlord's sole but reasonable
judgment, to the impact of such proposed change. Notwithstanding the foregoing,
installing or moving telephone or computer installations which do not include
altering or penetrating walls, floors, or ceilings do not require prior consent
of Landlord. Tenant shall submit to Landlord detailed drawings and plans of the
proposed Alterations at the time Landlord's consent is sought. Should Landlord
consent to any proposed Alterations by Tenant, such consent shall be conditioned
upon Tenant's agreement to comply with (i) all requirements established by
Landlord, including, without limitation, safety requirements, and (ii) the
matters referenced in Section 22 of this Lease. All Alterations made hereunder
shall become Landlord's property when incorporated into or affixed to the
Building; however, at Landlord's option, Landlord may, at the expiration of the
Lease Term, require Tenant at Tenant's expense to remove Alterations made by or
on behalf of Tenant and to restore the Premises to their original condition.
B. Administration Fee.
(1) Tenant shall pay to Landlord as Additional Rent in connection
with each Alteration, within ten (10) business days following Landlord's tender
of an invoice from time to time, an amount equal to Landlord's actual and
commercially reasonable third party costs in connection with such Alteration,
plus sales tax thereon, including, without limitation, for Landlord's review and
approval of all plans and specifications for each Alteration, for Landlord's
monitoring of each Alteration, and for all other reasonable costs and expenses
incurred by Landlord as a result of or in connection with each Alteration.
13. LANDLORD'S ADDITIONS AND ALTERATIONS: Landlord has the right to make changes
in and about the Building, parking areas, and the common areas, including,
without limitation, signs, entrances, and the address or name of the Building,
provided that such changes do not have a material adverse effect upon Tenant.
Such changes may include, but not be limited to, rehabilitation, redecoration,
refurbishment and refixturing of the Building or the common areas and expansion
of or structural changes to the Building or the common areas. The right of
Tenant to quiet enjoyment and peaceful possession given under this Lease shall
not be deemed breached or interfered with by reason of Landlord's actions
pursuant to this Section.
14. ASSIGNMENT AND SUBLETTING:
A. General. Tenant shall not assign, mortgage, hypothecate, pledge, or
otherwise encumber this Lease, or any part thereof, or sublet the Premises, or
any part thereof, or permit the Premises, or any part thereof, to be used or
occupied by others, intentionally or by operation of law, without the prior
written consent of Landlord. Any of same, or attempt at same, shall be a
material default hereunder and shall be null, void and of no force or effect
whatsoever. If Landlord consents to an assignment or subletting, (i) such
assignment or subletting shall not relieve Tenant of its obligations or
liabilities under this Lease, and (ii) all extensions, renewals, first refusal
rights or options hereunder, if any, shall automatically be of no further force
or effect for the assignee or subtenant of Tenant. As a prerequisite for giving
its consent to a proposed assignment or subletting, Landlord may require that
the assignee or the subtenant execute an instrument prepared by Landlord with
terms, provisions, conditions and covenants acceptable to Landlord in its sole
discretion. Any default under the applicable assignment or sublease instrument
shall constitute a default under this
26
Lease. Tenant shall pay to Landlord, simultaneously with Xxxxxx's request for
Xxxxxxxx's consent, the sum of $500.00 each and every time Tenant requests
Xxxxxxxx's consent to enter into any assignment or sublease. If Tenant does not
make such payment at such time, said sum shall be considered as Additional Rent
and included in any lien for Rent. If Tenant is an entity, other than a
corporation whose shares are traded on a nationally recognized stock exchange,
any change to the structure of such entity or any disposition(s) of any of the
interests therein by sale, assignment, operation of law or otherwise, or any
change in the power to vote the interests therein, shall be treated as a
prohibited assignment of this Lease requiring Tenant to obtain Landlord's prior
written consent. Notwithstanding the foregoing requirement of Landlord's prior
written consent, Xxxxxxxx's consent is not required for an assignment or
sublease by Tenant to an Affiliate of Tenant (as hereafter defined), (i) to any
corporation or other entity with or into which Tenant shall be merged or
consolidated, or (ii) to any corporation or other entity purchasing or otherwise
receiving substantially all of the assets or corporate stock of Tenant,
including any entity which is the subject of a public offering. An assignment of
sublease under (i) or (ii) hereof shall be referred to as an "Affiliate
Transfer", and the party to whom the Affiliate Transfer is made shall be
referred to as an "Affiliate Transferee". Tenant must provide evidence to
Landlord, in connection with any Affiliate Transfer, and a condition of the
qualification of the affiliate transferee as an Affiliate Transferee herein,
that the tangible net worth of the Affiliate Transferee is at least $4 million.
The term "Affiliate" as used herein means (1) any corporation which controls, is
controlled by or is under common control with Tenant; (2) any corporation
resulting from the merger or consolidation of Tenant; (3) any person or entity
which acquires all of the assets of Tenant as a going concern with respect to
the line of business that is being conducted on the Premises and in other
premises provided that said assignee assumes in full the obligations of Tenant
under this Lease. Any subsequent Affiliate Transfer shall again be subject to
each of the terms and conditions of this Lease. Tenant shall be required to give
Landlord prior written notice of any Affiliate Transfer, together with evidence
that the Affiliate Transferee has agreed to be bound by each of the terms and
conditions of this Lease and evidence of compliance by the Affiliate Transferee
with the insurance required under this Lease.
(a) Standards for Landlord's Consent for Non-Affiliate Transfer.
Landlord shall not unreasonably withhold or delay its consent to a proposed
transfer. Landlord shall be deemed to have reasonably withheld its consent to
any proposed transfer unless all of the following conditions have been
established to Landlord's reasonable satisfaction:
(1) The proposed transferee has sufficient financial wherewithal
to discharge its obligations under this Lease and the proposed agreement of
transfer as determined by Landlord's criteria for selecting Building tenants.
(2) The proposed transfer shall not, in Landlord's reasonable
judgment, cause physical harm to the Building or harm to the reputation of the
Building that would result in an impairment of Landlord's ability to lease space
in the Building or a diminution in the rental value of space in the Building.
(3) The proposed use of the Premises by the proposed transferee
will be a use permitted under this Lease and not prohibited by the Rules and
Regulations, and will not violate any restrictive covenants or exclusive use
provisions applicable to Landlord.
27
(4) Landlord shall not have issued a lease proposal to the
proposed transferee (or received a counterproposal from them) for premises
within the Project within the prior thirty (30) days.
(5) The proposed use of the Premises by the proposed
transferee will not require alterations or additions to the Premises that are
not reasonably acceptable to Landlord, and will not negatively affect insurance
requirements or involve the introduction of materials to the Premises that are
not in compliance with the Hazardous Materials Laws.
(6) The proposed use of the Premises will not increase the
operating costs for the Building or the burden on the Building services, or
create an increased possibility that the comfort or safety, or both, of Landlord
and the other occupants of the Project will be compromised or reduced.
(7) The proposed transfer will not cause a violation of
another lease for space in the Project or give an occupant of the Project a
right to cancel its lease.
B. Recapture. Notwithstanding any other provision contained in this Lease
to the contrary, in lieu of giving its consent to a proposed assignment or
subletting, Landlord may, without incurring any liability to Tenant, elect to
recapture (as hereafter defined), effective as of the proposed effective date of
the assignment or the proposed commencement date of the sublease, all of the
Premises that are the subject of the proposed assignment or sublease but, with
respect to the subleased space, only if such premises are all of any individual
suite leased by Tenant. As to the portion of the Premises so recaptured, Tenant
shall be released from its liability to perform any obligations under this Lease
beginning with the proposed effective date of the assignment or the proposed
commencement date of the sublease. The term "recapture" means that Landlord
shall take back all or part of the Premises that are the subject of the proposed
assignment or sublease, and this Lease shall terminate with respect to such
space that is taken back by Landlord. Xxxxxxxx's right of recapture shall not be
applicable, however, in the event of an Affiliate Transfer.
C. Net Profit. As a prerequisite for giving its consent to a proposed
assignment or subletting, Landlord may require that it receive, in addition to
all Rent and other sums due under this Lease, one-half (1/2) of the Net Profit,
as defined below, due Tenant under the assignment or sublease. "Net Profit"
shall mean all Rent, including Base Rent, Overhead Rent and Additional Rent
(including all sums that would otherwise be Additional Rent were they not timely
paid), and other consideration due Tenant under the assignment or sublease in
excess of all Rent required under this Lease, but less any reasonable and actual
tenant improvement allowance, reasonable brokerage commissions and marketing
expenses and Rent concessions. Xxxxxxxx's share of the Net Profit shall be paid
by Tenant to Landlord upon receipt by Xxxxxx, and the failure of Tenant to
timely pay same shall constitute a default under this Lease. Xxxxxxxx's share of
the Net Profit shall be considered Additional Rent and included in Landlord's
lien for Rent. Landlord shall have the right to audit Xxxxxx's books upon
reasonable notice to determine Xxxxxxxx's share of the Net Profit. If Tenant is
determined to have understated Xxxxxxxx's share of the Net Profit, then Tenant
shall pay Landlord the difference between the corrected amount of the Net Profit
and the understated amount of the Net Profit plus interest at the Default Rate.
If Xxxxxx is determined to have understated Xxxxxxxx's share of the Net Profit
by more than the greater of five percent (5%) or $100 on a
28
noncumulative basis, then in addition to paying Landlord the foregoing amounts,
Tenant shall reimburse Landlord for the cost of Landlord's audit.
15. TENANT'S INSURANCE COVERAGE:
A. General. Xxxxxx agrees that, at all times during the Lease Term (as
well as prior and subsequent thereto if Tenant or any of Tenant's Agents should
then use or occupy any portion of the Premises), it shall keep in force, with an
insurance company licensed to do business in the State of Florida, and at least
A-rated in the most current edition of Best's Insurance Reports and otherwise
reasonably acceptable to Landlord, (i) comprehensive general liability
insurance, including coverage for bodily injury and death, property damage and
personal injury and contractual liability as referred to below, in the amount of
not less than the amount set forth in the BLI Rider, combined single limit per
occurrence for injury (or death) and damages to property and with a deductible
not to exceed $100,000.00; (ii) with deductible of not more than $10,000.00,
insurance on an "All Risk or Physical Loss" basis, including sprinkler leakage,
vandalism, theft, malicious mischief, fire and extended coverage, covering all
improvements to the Premises, including but not limited to Tenant's
improvements, fixtures, furniture, furnishings, trade fixtures, removable floor
coverings, equipment, signs and all other decoration or stock in trade, in the
amounts of not less than the full replacement value thereof; and (iii) worker's
compensation and employer's liability insurance if and in the amounts required
by Florida Statutes. Such policies shall: (i) include Landlord and such other
parties as Landlord may reasonably designate as additional insureds with respect
to Tenant's general liability insurance policy, (ii) be considered primary
insurance, (iii) include provisions (either within the terms of the policies or
by contractual liability endorsement) that insure Tenant's indemnity obligations
set forth in Section 20 of this Lease, and (iv) provide that the policies may
not be canceled or changed without at least thirty (30) days prior written
notice from the company providing such insurance to Landlord and each other
party insured thereunder of any such proposed cancellation or change.
B. Evidence. The insurance coverages to be provided by Tenant shall be for
a period of not less than one (1) year. At least fifteen (15) days prior to the
Lease Commencement Date, Tenant shall deliver to Landlord original certificates
of all such insurance together with true copies of each such policy and evidence
of payment therefor; and thereafter, at least thirty (30) days prior to the
expiration of any policy, Tenant shall deliver to Landlord such original
certificates as shall evidence a renewal or new policy to take the place of the
policy that is expiring together with true copies of each such policy and
evidence of payment therefor.
16. LANDLORD'S INSURANCE COVERAGE:
A. General. Landlord shall at all times during the Lease Term maintain a
policy or policies of insurance, issued by an insurance company authorized to
transact business in Florida, insuring the Building and the common areas against
loss or damage by fire, explosion or other hazards for the full insurable value
thereof. Landlord shall not be obligated to insure any furniture, equipment,
machinery, goods, supplies or other personal property which Tenant may bring
upon the Premises, or any additional improvements to the Premises which Tenant
may construct in accordance with the terms and conditions of this Lease.
Landlord reserves the right to self insure the Building and/or the common areas,
or to insure the same under blanket policies insuring the Building, the common
areas and other buildings and/or property of Landlord or its affiliates.
29
B. Tenant's Acts. Tenant shall not do or permit anything to be done upon
or bring or keep or permit anything to be brought or kept upon the Premises
which will increase Landlord's rate of insurance on the Building. If by reason
of the failure of Tenant to comply with the terms of this Lease, or by reason of
Tenant's occupancy (even though permitted or contemplated by this Lease), the
insurance rate shall at any time be higher than it would otherwise be, Tenant
shall reimburse Landlord for that part of all insurance premiums charged because
of such violation or occupancy by Tenant. Xxxxxx agrees to comply with any
requests or recommendations made by Xxxxxxxx's insurance underwriter inspectors.
17. SUBROGATION:
X. Xxxxxx of Subrogation Rights. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all rights of recovery, claims, actions or causes of action,
against each other, their agents, officers and employees, for any loss or damage
(i) that may occur to the Building, the Improvements, Xxxxxx's personal
property, Landlord's personal property, or the Alterations, if any, by reason of
fire, the elements or other cause (including, without limitation, Landlord's
and/or Tenant's sole and/or joint negligence), and (ii) which is required to be
insured against by the releasor pursuant to the provisions of Section 15 or
Section 16 of this Lease (or which is insured against by the releasor (without
obligation to so obtain any such other insurance coverage) pursuant to the terms
of property insurance policies or general liability policies actually obtained
by the releasor).
B. Exclusions. Notwithstanding the foregoing, Xxxxxxxx's and Xxxxxx's
waivers described in Section 17(A) above shall not apply (i) to the extent that
any of such rights of recovery, claims, actions or causes of action exceed the
insurance policy(ies) limits required by Section 15 or Section 16 of this Lease,
and (ii) with respect to any deductibles permitted by Section 15 or Section 16
of this Lease and contained in such insurance policy(ies).
C. Notice to Insurance Companies; Indemnification. Because this Section 17
will preclude the assignment of any claim mentioned in it by way of subrogation
(or otherwise) to an insurance company (or any other person), Landlord and
Tenant hereby each agree (i) to immediately give to its respective insurance
company(ies) written notice of the terms of the waivers contained in this
Section 17, (ii) to use its good faith efforts to obtain a written
acknowledgment (or endorsement to the insurance policy(ies)) of the waiver of
subrogation rights from such insurance company(ies), and (iii) to use its good
faith efforts to obtain a written acknowledgment from such insurance
company(ies) that insurance coverage remains in effect notwithstanding such
waiver of subrogation rights. Notwithstanding the foregoing, Landlord and Tenant
hereby each agree to indemnify the other from and against any and all loss or
expense, including reasonable attorneys' fees (appellate or otherwise), incurred
as a result of the other's failure to obtain a written acknowledgment (or
endorsement to the insurance policy(ies)) of the waiver of subrogation rights
from its insurer and a written acknowledgment from such insurance company(ies)
that insurance coverage remains in effect notwithstanding such waiver of
subrogation rights (regardless of whether or not such failure(s) is the result
of Landlord's and/or Tenant's sole and/or joint negligence).
18. DAMAGE OR DESTRUCTION BY CASUALTY:
30
A. Material Damage or Destruction. If the Premises are totally destroyed
by fire or other casualty, or if the Building is partially damaged or destroyed
to the extent of fifty percent (50%) or more of the replacement cost thereof,
then, even though the Premises may not be damaged, Landlord shall have the
option of terminating this Lease, or any renewal thereof, by giving written
notice to Tenant within sixty (60) days after the date of such casualty, in
which event any prepaid Rent shall be prorated as of the date of such casualty
and the unearned portion of such Rent shall be refunded to Tenant without
interest.
B. Partial Damage or Destruction. If the Premises are damaged or partially
destroyed by fire or other casualty to the extent of twenty-five percent (25%)
or more of the replacement cost thereof and the provisions of Section 18(A)
hereof are not applicable, then (i) if the unexpired balance of the Lease Term
is less than one year, excluding any unexercised renewal option, Landlord may
terminate this Lease by giving written notice to Tenant within thirty (30)
business days after the date of such casualty, or, at Landlord's sole option,
Landlord shall rebuild, restore or repair the Premises as a complete
architectural unit of substantially the same size, design, quality and
construction as existed immediately prior to the date of the casualty (except
for Xxxxxx's personal property and trade fixtures, which shall be the
responsibility of Tenant), within one hundred twenty (120) days after Landlord's
receipt of a building permit for such rebuilding, restoration or repair; or (ii)
if the unexpired balance of the Lease Term is one year or more, including any
exercised renewal option, Landlord shall rebuild, restore or repair the Premises
as a complete architectural unit of substantially the same size, design, quality
and construction as existed immediately prior to the date of the casualty
(except for Tenant's personal property and trade fixtures, which shall be the
responsibility of Tenant), within one hundred twenty (120) days after Landlord's
receipt of a building permit for such rebuilding, restoration or repair. If the
Premises are damaged or partially destroyed by fire or other casualty to the
extent of less than twenty-five percent (25%) of the replacement cost thereof
and the provisions of Section 18(A) hereof are not applicable, then Landlord
shall rebuild, restore or repair the Premises as a complete architectural unit
of substantially the same size, design, quality and construction as existed
immediately prior to the date of the casualty (except for Tenant's personal
property and trade fixtures, which shall be the responsibility of Tenant),
within one hundred twenty (120) days after Xxxxxxxx's receipt of a building
permit for such rebuilding, restoration or repair. Notwithstanding the
foregoing, if Landlord rebuilds, restores or repairs as provided aforesaid, and
if such rebuilding, restoration or repair is of a nature that it cannot be
substantially completed within said one hundred twenty (120) day period as
determined by Landlord's contractor, then Landlord shall have as much time
thereafter to complete such rebuilding, restoration or repair as is necessary so
long as Landlord's efforts are diligent and continuous.
(a) Notwithstanding anything to the contrary contained in this
Lease, in the event that the (i) Premises, (ii) Common Areas required for
parking and or (iii) Common Areas required for ingress and egress to the
Building and/or ingress and egress to the Premises, are damaged by fire or
casualty, in whole or in part at any time such that restoration thereof is not
reasonably susceptible of being completed by Landlord within two hundred
seventy-five (275) days of the date of such casualty (and Landlord shall be
obligated to deliver to Tenant, within sixty (60) days of the date of a
casualty, a certificate of its reputable architect or engineer as to the
estimated time for restoration ("Landlord's Restoration Certificate"), or if
Landlord has not exercised its rights under this Section 18 to terminate this
Lease, but has not completed restoration within two hundred seventy-five (275)
days of the date of a casualty, then and in any of the foregoing events Tenant
31
shall have the right to terminate this Lease by notice to Landlord given within
ten (10) business days following its receipt of Landlord's Restoration
Certificate and on thirty (30) days prior notice to Landlord, in which event
this Lease shall terminate as of the date of such notice, and Rent shall be
adjusted as set forth in Subsection 18.C. below.
C. Rent Adjustments. In the event that this Lease does not terminate
pursuant to Section 18(A) or Section 18(B) above, then all Rent accruing after
the date of the casualty shall be equitably and proportionately adjusted
according to the nature and extent of the destruction or damage, pending
substantial completion of rebuilding, restoration or repair. In the event the
destruction or damage is so extensive as to make it not feasible for Tenant to
conduct Tenant's business in the Premises, then all Rent accruing after the date
of the casualty shall be completely abated until the Premises are substantially
rebuilt, restored or repaired by Landlord or until Tenant resumes use and
occupancy of the Premises, whichever shall first occur. Notwithstanding the
foregoing or any provision of this Lease to the contrary, Landlord shall not be
liable for any damage to or any inconvenience or interruption of the business of
Tenant or any of Tenant's Agents caused, directly or indirectly, by any
casualty.
19. EMINENT DOMAIN:
A. Substantial Taking. In the event of a Taking (as hereafter defined) of
any portion of the Premises or any substantial portion of the Building, either
party hereto shall have the right, at its option, to terminate this Lease (such
termination to be effective as of the effective date of the Taking) by giving
written notice to the other party within thirty (30) business days after the
effective date of the Taking, in which case any prepaid Rent shall be prorated
as of the effective date of such Taking and the unearned portion of such Rent
shall be refunded to Tenant without interest. If neither party terminates this
Lease as provided above, then Landlord shall repair, restore or rebuild the
Building and/or the Premises, as the case may be (except for Tenant's personal
property and trade fixtures, which shall be the responsibility of Tenant), as
nearly as is commercially reasonable and possible to their value, condition and
character immediately prior to such Taking, within one hundred twenty (120) days
after Landlord's receipt of a building permit for such repair, restoration or
rebuilding. If such repair, restoration or rebuilding is of a nature that it
cannot be substantially completed within said one hundred twenty (120) day
period as determined by Landlord's contractor, then Landlord shall have as much
time thereafter to complete such repair, restoration or rebuilding as is
necessary so long as Landlord's efforts are diligent and continuous. As used
herein, the term "Taking" means any taking of the Building, the land on which
the Building is located, or parts thereof, in or by condemnation or other
eminent domain proceeding pursuant to any law, general or special, sale in lieu
of condemnation, or by reason of the temporary requisition of the use or
occupancy of the Building, the land on which the Building is located, or parts
thereof, by any federal, state, regional, county, municipal or local government,
or any department, commission, board, bureau, agency or office thereof, having
or claiming jurisdiction over all or any part of the Premises or the use
thereof.
B. Insubstantial Taking. In the event of a Taking of less than a
substantially all of the Building, this Lease shall not terminate and Landlord
shall repair, restore or rebuild the Building, and/or the Premises, as the case
may be (except for Xxxxxx's personal property and trade fixtures, which shall be
the responsibility of Tenant), as nearly as is commercially reasonable and
possible to their value, condition and character immediately prior to such
Taking, within one hundred twenty
32
(120) days after Xxxxxxxx's receipt of a building permit for such repair,
restoration or rebuilding. If such repair, restoration or rebuilding is of a
nature that it cannot be substantially completed within said one hundred twenty
(120) day period as determined by Landlord's contractor, then Landlord shall
have as much time thereafter to complete such repair, restoration or rebuilding
as is necessary so long as Landlord's efforts are diligent and continuous.
C. Landlord's Additional Right to Terminate. Notwithstanding the foregoing
provisions, in the event of a Taking of any part of the Building other than the
Premises, the Taking of which would, in Landlord's sole opinion, prevent the
economical operation of the Building, Landlord shall, in such event, have the
right, at its sole option, to terminate this Lease (such termination to be
effective as of the effective date of the Taking) by giving written notice to
Tenant within thirty (30) business days after the effective date of the Taking,
in which case any prepaid Rent shall be prorated as of the effective date of
such Taking and the unearned portion of such Rent shall be refunded to Tenant
without interest.
D. Rent Adjustments. In the event that this Lease does not terminate
pursuant to Section 19(A) or Section 19(C) above, then all Rent accruing after
the effective date of the Taking shall be equitably and proportionately adjusted
to such an extent as may be fair and reasonable under the circumstances, pending
substantial completion of repair, restoration or rebuilding. In the event the
Taking is so extensive as to make it not feasible for Tenant to conduct Tenant's
business in the Premises, then all Rent due under this Lease shall be completely
abated until ten (10) days after the Premises are substantially repaired,
restored or rebuilt by Landlord or until Tenant resumes use and occupancy of the
Premises, whichever shall first occur. Notwithstanding the foregoing or any
provision of this Lease to the contrary, Landlord shall not be liable for any
damage to or any inconvenience or interruption of the business of Tenant or any
of Tenant's Agents caused, directly or indirectly, by any Taking.
E. Condemnation Award. Landlord shall be entitled to any and all income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with a Taking. Tenant shall have no claim to the condemnation award
with respect to the leasehold estate but, in a subsequent, separate proceeding,
Tenant may make a separate claim only for trade fixtures installed in the
Premises by and at the expense of Xxxxxx and Xxxxxx's moving expenses. In no
event shall Tenant have any claim for the value of the unexpired Lease Term.
20. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION:
A. Personal Property. All personal property placed or moved into the
Building shall be at the sole risk of Tenant or owner thereof. Landlord shall
not be liable to Tenant or others for any damage to persons or property arising
from theft, vandalism, HVAC malfunction, the bursting or leaking of water pipes,
any act or omission of any other tenant or occupant of the Building or of any
other person, or otherwise.
B. Limitations. Notwithstanding any contrary provision of this Lease: (i)
Landlord, its parent, affiliates, subsidiaries, directors, officers, agents,
shareholders or employees, shall not be personally liable for any of the
obligations of Landlord under this Lease, and further, Tenant expressly agrees
that Landlord's liability hereunder or otherwise shall be limited to, and Tenant
shall only have recourse against, the value of Landlord's fee interest in the
Building; and (ii) Tenant's sole
33
right and remedy in any action or proceeding concerning Landlord's
reasonableness (where the same is required under this Lease) shall be an action
for declaratory judgment.
C. Indemnification.
(a) Tenant shall indemnify, defend and hold harmless Landlord and
Landlord's directors, officers, employees, agents, invitees, licensees or
contractors ("Landlord's Indemnified Parties") from and against all claims,
causes of action, liabilities, judgments, damages, losses, costs and expenses,
(including, but not limited to, any of the foregoing arising from, in connection
with or attributable to, damage to property, or injury to or death of any
person, and reasonable attorneys' fees and costs incurred in trial, appellate
and bankruptcy actions and proceedings), incurred or suffered by any of
Landlord's Indemnified Parties and arising from or in any way connected with any
of the following: (1) Tenant's use, operation, maintenance and/or repair of the
Premises; (ii) any acts, omissions, neglect or fault of Tenant or any of its
agents, servants, employees, contractors, invitees or licensees ("Tenant's
Agents") (including, without limitation, the joint negligence of Landlord and
Tenant, or the joint negligence of their employees, agents, invitees, licensees
or contractors, but with respect to such a claim, Tenant shall not be obligated
to indemnify, defend and hold Landlord harmless to the extent of the gross
negligence or willful misconduct of Landlord or Landlord's agents); (iii) the
breach of any of Tenant's obligations under this Lease, including, without
limitation, Tenant's obligations to carry insurance, pay Operating Expenses and
maintain the Premises; (iv) any death, personal injury or property damage
occurring in or about the Premises or the Building by, through or under Tenant;
(v) the performance of any repair, renovation, and/or maintenance to the
Premises by Tenant, Xxxxxx's Agents or contractors; (vi) Tenant's subleasing or
assigning of any of its rights under this lease; and/or, (vii) the presence at
the Premises for any reason of any of Tenant's Agents. Notwithstanding the
foregoing, Xxxxxx's indemnity obligation under this paragraph (a) shall not
apply to the extent that any of the foregoing claims, causes of action,
liabilities, judgments, damages, losses, costs and expenses are the result of
the gross negligence or willful misconduct of Landlord, its employees, agents,
invitees, licensees or contractors. Xxxxxxxx may defend any claim covered by
this indemnity, at Xxxxxx's expense, by counsel selected by Landlord in the
event that Landlord is not willing, in Xxxxxxxx's sole but not unreasonable
judgment, to accept the defense of Landlord provided by Xxxxxx's counsel.
(b) The provisions of this Section 20 shall survive the termination
of this Lease with respect to any claims occurring prior to such termination.
(c) The provisions of this Section 20 are subject to the provisions
of Section 17 Subrogation, of this Lease.
21. RELOCATION OF TENANT:
A. General. Landlord expressly reserves the right, prior to and/or during
the Lease Term, at Landlord's sole expense, to move Tenant from the Premises and
to relocate Tenant in other comparable space in the Building, with Tenant
improvements of at least equal kind and quality to those in the Premises, of
Landlord's choosing, not less than 95% of the size of the Premises or more than
110% of the size of the Premises by not more than ten percent (10%)and
configured with a reasonably comparable space plan within the Building, which
other space shall be decorated by Landlord at its expense in a manner of equal
kind and quality to the Premises. Landlord may use
34
decorations and materials from the existing Premises, or other materials, so
that the space in which Tenant is relocated will be reasonably comparable in its
interior design and decoration to the space from which Tenant is removed. The
foregoing right of relocation shall not, however, be applicable to the portion
of the Premises located on the sixth floor of the Building. If the relocated
Premises contains fewer square feet, Rent will be proportionally adjusted. If
the relocated Premises results in an increase of the square footage, the Rent
shall not be adjusted.
B. No Interference. During the relocation period, Xxxxxxxx will use
reasonable efforts not to unduly interfere with Xxxxxx's business activities,
and Landlord agrees to substantially complete the relocation within a reasonable
time under all then existing circumstances.
C. Premises. This Lease and each of its terms and conditions shall remain
in full force and effect and be applicable to any such new space and such new
space shall be deemed to be the Premises demised hereunder. Upon request, Tenant
shall execute such documents which may be requested to evidence, acknowledge and
confirm the relocation (but the relocation shall be effective even in the
absence of such confirmation by Tenant).
D. Costs. Xxxxxxxx's obligation for expenses of removal and relocation
will be the actual cost of relocating and decorating Tenant's new space, and
Xxxxxx agrees that Landlord's exercise of its election to remove and relocate
Tenant will not release Tenant in whole or in part from its obligations
hereunder for the full Lease Term. No rights granted in this Lease to Tenant,
including the right of peaceful possession and quiet enjoyment, shall be deemed
breached or interfered with by reason of Landlord's exercise of the relocation
right reserved herein.
E. Notice. If Landlord exercises its relocation right under this Section,
(i) Tenant will be given forty-five (45) days prior written notice, and (ii)
Landlord will reimburse Tenant for the reasonable cost of replacement of
stationery and telephone relocation and other similar expenses necessitated by
the exercise of Xxxxxxxx's right of relocation.
22. COMPLIANCE WITH LAWS, PROCEDURES AND RESTRICTIVE COVENANTS:
A. Compliance. Tenant, at its sole cost, shall promptly comply with all
applicable laws, guidelines, rules, regulations and requirements, whether of
federal, state or local origin, applicable to the Premises and the Building,
including, without limitation, the Americans with Disabilities Act, 42 U.S.C.
Section 12101 et seq., and those for the correction, prevention and abatement of
nuisance, unsafe conditions, or other grievances arising from or pertaining to
the use or occupancy of the Premises. The foregoing does not impose upon Tenant,
however, the requirement to perform any improvements or take any affirmative
action with respect to the Common Areas.
B. Notice Prior to Work. Tenant shall provide thirty (30) days notice to
Landlord prior to the performance by Xxxxxx, Xxxxxx's Agents or contractors of
any structural repairs or any renovation to the Premises. Such notice shall
include a detailed description of the contemplated work. Tenant shall not
perform, or cause to be performed, any such structural repair and/or renovation
without the written consent of Landlord, and if such consent is granted, the
repair and/or renovation must be performed in accordance with the terms of
Landlord's consent. Prior to performing any repairs and/or renovation to the
Premises, Tenant shall comply with all of the provisions of Section 12 of this
Lease.
35
X. Xxxxx. 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
department.
D. Occupational License. Tenant shall provide Landlord with a copy of and
an updated paid receipt for Xxxxxx's Occupational License from Miami-Dade County
on an annual basis.
E. Premises Certificate of Use and Occupancy. Landlord shall provide
Tenant with a true and correct copy of the certificate of use and occupancy for
the Premises from Miami-Dade County on or before the Lease Commencement Date.
23. RIGHT OF ENTRY: Landlord and its agents shall have the right to enter the
Premises during all reasonable hours after reasonable notification (but no such
notification shall be required in emergencies) to make necessary repairs to the
Premises. Except for emergency entry, such access shall not be materially
disruptive to Tenant's use of the Premises. In the event of an emergency,
Landlord or its agents may enter the Premises at any time, without notice, to
appraise and correct the emergency condition. Landlord's right of entry shall,
after reasonable notice, likewise exist for the purpose of removing placards,
signs, fixtures, alterations, or additions which do not conform to this Lease.
Landlord or its agents shall have the right to exhibit the Premises at any
reasonable time to prospective tenants after reasonable prior notification
commencing one hundred and eighty (180) days before the Expiration Date of this
Lease or at any other time if an Event of Default exists. If, within the six (6)
months prior to the Expiration Date of this Lease, Tenant has vacated the
Premises and substantially removed its personal property from the Premises, then
Landlord may enter the Premises without prior notification during such period
for the purpose of showing the Premises to a prospective tenant.
24. DEFAULT:
A. Events of Default. The following shall, upon the giving of written
notice to Tenant of the nature of the default and the expiration of Xxxxxx's
notice, grace and cure period as set forth in Section 24(B), constitute an
"Event of Default" under this Lease:
(1) Tenant vacates, abandons or surrenders all or any part of the
Premises prior to the Expiration Date; notwithstanding the foregoing, it shall
not be an Event of Default if Tenant vacates the Premises after first giving
Landlord written notice of a notice address for Tenant apart from the Premises
and if Xxxxxx continues to abide by each of its covenants and obligations under
this Lease; or
(2) Tenant fails to fulfill or comply with any of the terms or
conditions of this Lease or of any other lease entered into between Landlord and
Tenant for other space in the Building; or
(3) the appointment of a trustee or a receiver to take possession of
all or substantially all of Tenant's assets occurs, or if the attachment,
execution or other judicial seizure of all or substantially all of Tenant's
assets located at the Premises, or of Tenant's interest in this Lease, occurs;
or
36
(4) Tenant or any of its successors or assigns or any guarantor of
this Lease ("Guarantor") should file any voluntary petition in bankruptcy,
reorganization or arrangement, or an assignment for the benefit of creditors or
for similar relief under any present or future statute, law or regulation
relating to relief of debtors; or
(5) Tenant or any of its successors or assigns or any Guarantor
should be adjudicated bankrupt or have an involuntary petition in bankruptcy,
reorganization or arrangement filed against it; or
(6) Tenant shall permit, allow or suffer to exist any lien,
judgment, writ, assessment, charge, attachment or execution upon Landlord's or
Tenant's interest in this Lease or the Premises, and/or the fixtures,
improvements and furnishing located therein; or
(7) Xxxxxx is dispossessed from the Premises (other man by Landlord)
by process of law or otherwise; or
(8) Xxxxxx holds over the Premises after the Expiration Date without
Xxxxxxxx's prior written consent, which consent may be withheld in Landlord's
sole discretion; or
(9) this Lease or the interest or estate of Tenant hereunder shall
be transferred to, pass to, or devolve to or on any other person or entity in
contradiction to the manner permitted under this Lease; or
(10) Tenant violates any of the covenants or restrictions set forth
in the rules and regulations which may, from time to time, be reasonably
promulgated by Landlord with reference to the Premises, or any portion thereof,
or the Building; or
(11) Tenant loses its good standing, license or ability to transact
business in Florida, or is otherwise ordered to cease and desist engaging in its
business by any court on applicable regulatory body.
B. Tenant's Grace Period. Tenant shall have a period often (10) days after
notice from Landlord specifying the nature of any default under Section 24A to
such cure a default under this Lease (other than a default for (i) nonpayment of
Base Rent, Overhead Rent or Additional Rent on or before five (5) business days
following the due date, (ii) with respect to Section 15 of the Lease, an Event
of Default shall have occurred in the event of any lapse of the insurance
required under this Lease whether or not Landlord has given Tenant written
notice, or if Tenant fails to provide evidence of the insurance required under
this Lease within three (3) business days following Landlord's written notice,
(iii) with respect to Section 22 of this Lease, Tenant has failed to comply with
applicable laws, guidelines, rules, regulations, or legal requirements as
required under this Lease within three (3) business days following Landlord's
written notice or within such earlier period, without any written notice from
Landlord, that may be required to avoid any fine, penalty, or other legal
consequence. Except with respect to defaults under (i), (ii) and (iii) herein,
if the default does not involve any health, safety, insurance issues and does
not interfere with other tenants' rights and privileges and is of a nature that
it cannot be completely cured within the ten (10) day period and Tenant has
promptly commenced and is continuously and diligently pursuing in good faith to
cure or remedy the default this grace period shall be extended to a maximum of
one hundred twenty (120) days. If the default is not cured prior to the
expiration of any applicable grace period, then
37
Landlord may pursue any remedies provided by law or equity and/or the remedies
provided in Section 25 of this Lease.
C. Landlord's Default. If Tenant asserts that Landlord has failed to meet
any of its obligations under this Lease, Tenant shall provide written notice
("Notice of Default") to Landlord specifying the alleged failure to perform.
Landlord shall have a thirty (30) day period after receipt of the Notice of
Default in which to commence curing any non-performance by Landlord (except for
matters relating to health, safety, Xxxxxx's quiet enjoyment or interruption of
telecommunications, in which event Landlord shall commence such cure in a
commercially diligent fashion), and Landlord shall have as much time thereafter
to complete such cure as is necessary so long as Landlord's cure efforts are
diligent and continuous. If Landlord has not begun the cure within thirty (30)
days after receipt of the Notice of Default, or Landlord does not thereafter
diligently and continuously attempt to cure, then Landlord shall be in default
under this Lease, and Tenant may exercise such legal and equitable rights that
are available to it under Florida law.
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT:
A. Landlord's Remedies. If there is an Event of Default by Tenant or if
Tenant is in default under this Lease, Landlord may, at its option, in addition
to such other remedies as may be available under Florida law:
(1) terminate this Lease and Xxxxxx's right of possession, and
retake possession for Xxxxxxxx's account; or
(2) terminate Tenant's right of possession without terminating this
Lease, retake possession of the Premises for Tenant's account, repair and alter
the Premises in any manner as Landlord deems reasonably necessary or advisable,
and relet the Premises or any part of it, as the agent of Tenant, for the whole
or any part of the remainder of the Lease Term or for a longer period, and
Landlord may grant concessions or free rent or charge a higher or lower rental
than that reserved in this Lease. From rent collected or received as a result of
such reletting, Landlord shall pay to itself (a) all actual but not more than
commercially reasonable expenses of every nature which Landlord may incur such
as (by way of illustration and not limitation) those for attorneys' fees,
brokerage, advertising, and refurbishment of the Premises in good order or
preparing the Premises for reletting, and (b) subject to the provisions of
Section 25(C) below, any balance remaining on account of the liability of Tenant
for the sum equal to all Base Rent, Overhead Rent and Additional Rent and other
charges due from Tenant under this Lease through the Expiration Date. Should
Landlord, pursuant to this subsection (2), not collect rent which after
deductions is sufficient to fully pay to Landlord a sum equal to all Base Rent,
Overhead Rent and Additional Rent and other charges payable by Tenant under this
Lease through the Expiration Date, then the balance or deficiency shall at the
election of Landlord be paid by Tenant with default rate interest; or
(3) stand by and do nothing, and hold Tenant liable for all Base
Rent, Overhead Rent and Additional Rent and other charges payable by Tenant
under this Lease through the Expiration Date; or
(4) do anything else permitted by law; or
(5) pursue any combination of the above.
38
B. Exercise of Landlord's Remedies. If Landlord does not notify Tenant
which remedy it is pursuing, or if Landlord's notice to Tenant does not
expressly state that Landlord is exercising its remedies under subsection (1) or
subsection (3) above, then it shall be deemed that Landlord is pursuing the
remedy set forth in subsection (2) above. If Landlord exercises the remedy set
forth in subsection (1) or subsection (2) above, Xxxxxx agrees to immediately
and peacefully surrender the Premises to Landlord; and if Xxxxxx refuses to do
so, Landlord may without further notice reenter the Premises either by force or
otherwise and dispossess Tenant, as well as the legal representative(s) of
Tenant and/or other occupant(s) of the Premises, by summary proceedings or
otherwise, and remove their effects.
C. Acceleration. If Landlord exercises the remedies in subsection (2)
or subsection (3) above, Tenant shall immediately pay to Landlord as damages for
loss of the bargain caused by Tenant's Event of Default, and not as a penalty,
in addition to any other damages, the aggregate sum of the full amount of the
Base Rent, Overhead Rent and Additional Rent and all other charges payable by
Tenant under this Lease that would have accrued for the balance of the Lease
Term, discounted to present value (as hereafter defined) at a rate per annum
equal to the Treasury Rate (as hereafter defined). If Landlord exercises the
remedy in subsection (2) above, Landlord shall account to Tenant at the
Expiration Date for amounts actually collected by Landlord as a result of a
reletting, net of amounts to be paid to Landlord under subsection (2) above. The
term "present value" means the current monetary value of future benefits or
income, or otherwise stated, the discounted value of future payments. The term
"Treasury Rate" means the yield implied by the Treasury Constant Maturity series
for a U.S. Government Treasury obligation having a maturity date equal to or
closest to the number of years remaining in the Lease Term at the time of
Tenant's Event of Default under this Lease; the Treasury Rate shall be based on
the weekly average Treasury Constant Maturity yields reported in Federal Reserve
Statistical Release H.I5 - Selected Interest Rates, for the week immediately
preceding the date of Tenant's default under this Lease.
(a) Notwithstanding anything herein to the contrary, Tenant shall
pay to Landlord the Accelerated Rent in yearly installments,
commencing ten (10) days after Landlord notifies Tenant that
Landlord has exercised the remedy of acceleration, and on the
first day of each twelve (12) month period thereafter until
the Accelerated Rent is paid in full. Such annual installments
shall be in the amount of the portion of the Accelerated Rent
due for the twelve (12) months following the date on which
each installment payment is due. The amount of the final
yearly installment shall be the balance, after the application
of all paid installments, of the Accelerated Rent. Xxxxxxxx
agrees to use reasonable efforts to relet the Premises in the
event it exercises the remedy of acceleration. In no event,
however, shall Landlord be obligated in any manner to favor
the Premises over any other premises it holds for leasing or
be required to market the Premises by any means beyond
Landlord's regular marketing efforts. In the event Landlord
relets the Premises, or any portion thereof, for any period
during the remainder of the existing Lease Term (or any
previous extension or renewal thereof), then Landlord shall
tender to Tenant on an annual basis commencing twelve months
after Landlord has relet the Premises, or any portion thereof,
the "Net Reletting Proceeds" as defined as the net amount
collected by Landlord under (2) below that exceeds the sums
due to Landlord under (1) below:
39
(1) All rent and other charges due to Landlord from Tenant
under the Lease, all of Landlord's commercially
reasonable costs in restoring the Premises to the
condition required by the Lease at the end of the Term,
all commercially reasonable costs and expenses incurred
in reletting the Premises, or any portion thereof, from
time to time, including: customary real estate brokerage
commissions, costs incurred in preparing the Premises,
or any portion thereof, for reletting, including tenant
improvement costs, Landlord's attorneys' fees and costs
incurred as a result of any reletting, advertising and
marketing expenses associated with the reletting, all
other reasonable costs associated with the reletting and
any attorneys' fees and costs incurred in seeking
possession of the Premises, or any portion thereof,
after a reletting (if the attorneys' fees and costs are
not recovered and collected from the defaulting tenant).
(2) All cleared funds collected by Landlord for Rent from a
reletting of the Premises, or any portion thereof,
during the remainder of the Lease term (or any previous
extension or renewal thereof).
(b) Notwithstanding the foregoing, Tenant shall not be entitled to
receive and Landlord shall not be obligated to tender to Tenant any Net
Reletting Proceeds in the event Tenant has failed to pay to Landlord any of the
installments of Accelerated Rent as required above. If Tenant fails to pay to
Landlord any of the installments of Accelerated Rent as provided herein and if
Landlord obtains a final judgment against Tenant in the amount of Accelerated
Rent, or any portion of Accelerated Rent then due and owing, then Landlord shall
provide to Tenant at the end of the Lease Term with a credit in the amount of
the Net Reletting Proceeds in the form of a partial satisfaction of the final
judgment.
D. Attorneys' Fees. Tenant shall reimburse Landlord upon request for
all commercially reasonable costs incurred by Landlord in the collection of any
sums due to Landlord under this Lease, including collection agency fees, and
reasonable attorneys' fees and costs relating to the matter, regardless of
whether litigation is commenced. In the event of any litigation, the
non-prevailing party shall reimburse to the prevailing party all commercially
reasonable attorneys' fees and costs through all trial, appellate and bankruptcy
actions and proceedings.
26. XXXXXXXX'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT: If Xxxxxx fails to
observe or perform any term or condition of this Lease within the grace period,
if any, applicable thereto, then Landlord may immediately or at any time
thereafter perform the same for the account of Tenant. If Landlord makes any
expenditure or incurs any obligation for the payment of money in connection with
such performance for Tenant's account (including reasonable attorneys' fees and
costs in instituting, prosecuting and/or defending any action or proceeding
through any and all appeals), then the lesser of actual or commercially
reasonable sums paid or obligations incurred, with interest at the Default Rate,
shall be paid by Tenant to Landlord within ten (10) days after rendition of a
statement to Tenant setting forth the lesser of the actual or commercially
reasonable costs. In the event Tenant, in the performance or non-performance of
any term or condition of this Lease, should cause an emergency situation to
occur or arise within the Premises or in the Building,
40
then Landlord shall have all rights set forth in this Section immediately,
without the necessity of providing Tenant with any advance notice.
27. LIENS:
A. General. In accordance with the applicable provisions of the Florida
Construction Lien Law and specifically Florida Statutes, Section 713.10, no
interest of Landlord in the Building, the Premises, the land on which the
Building is located, or this Lease shall be subject to liens for improvements
made by Tenant or caused to be made by Tenant hereunder (including, without
limitation, those improvements made by Tenant pursuant to Section 11 or Section
12). Further, Xxxxxx acknowledges that Tenant, with respect to improvements or
alterations made by Tenant or caused to be made by Tenant hereunder, shall
promptly notify the contractor making such improvements to the Premises of this
provision.
B. Default. Notwithstanding the foregoing, if any mechanic's, laborer's
or materialman's lien or other lien, attachment, judgment, execution, writ,
charge or encumbrance is filed against the Building, the Premises, the land on
which the Building is located, or this Lease, or any alterations, fixtures or
improvements therein or thereto, as a result of any work, action or inaction
done by or at the direction of Tenant or any of Tenant's Agents, Tenant shall
discharge same of record or transfer to bond within thirty (30) days after
Xxxxxx's receipt of notice of the filing thereof, failing which Tenant shall be
in default under this Lease. In such event, without waiving Tenant's default,
Landlord, in addition to all other available rights and remedies, without
further notice, may discharge the same of record by payment, bonding or
otherwise, as Landlord may elect, and upon request Tenant shall reimburse
Landlord for all costs and expenses so incurred by Landlord plus interest
thereon at the Default Rate. Tenant shall advise Landlord of the existence of a
lien promptly upon Xxxxxx's notice thereof.
28. NOTICES: All notices, demands, consents, approvals, requests and other
instruments herein required or permitted to be given to, or served upon, either
party shall be in writing. Any such notice, demand, consent or request shall be
sufficiently given or served if sent by hand delivery, by commercial courier
(Federal Express or similar firms), by certified or registered mail, return
receipt requested, addressed to either such party at its address set forth in
the BLI Rider, or at such other address as it shall designate by notice to the
other party. Notices shall be deemed to have been given or served on the date
when delivered or first refused.
29. ESTOPPEL CERTIFICATE; SUBORDINATION:
X. Xxxxxxxx Certificate: Within ten (10) business days after notice,
Xxxxxx agrees to execute, acknowledge and deliver to Landlord, its designee, or
any mortgagee of the Building such instruments as may be required by them,
certifying the amount of the Security Deposit and whether this Lease is in full
force and effect, and listing any modifications. This estoppel certificate shall
also contain such other information as Landlord, its designee, or any mortgagee
of the Building may reasonably request. If for any reason Tenant does not timely
comply with the provisions of this paragraph, Tenant shall be deemed to have
confirmed that this Lease is in full force and effect with no defaults on the
part of Landlord and without any right of Tenant to offset, deduct or withhold
any Rent.
41
B. Subordination. This Lease is and at all times shall be subject and
subordinate to all present and future mortgages or ground leases which may
affect the Building and/or the land on which the Building is located, and to all
renewals, modifications, consolidations, replacements, and extensions of any
such mortgage(s), and to all increases and voluntary and involuntary advances
made thereunder. The foregoing provision shall be self-operative and no further
instrument of subordination shall be required. Notwithstanding the
self-operative nature of this Section, Tenant shall execute all documentation
that may be requested from Tenant in order to evidence such subordination.
Furthermore, and notwithstanding the self-operative nature of this Section, any
such mortgagee shall also have the right to subordinate the lien of any present
or future mortgage to this Lease by filing a notice of subordination with the
Clerk of Court of Miami-Dade County, Florida at any time before such lender
conducts a foreclosure sale pursuant to such mortgage. Landlord shall obtain
from such mortgagee a non-disturbance agreement on such mortgagee's standard
form of subordination, non-disturbance and attornment agreement or such other
form as required by lender. With respect to the current mortgagee, Landlord
shall obtain such agreement on the form attached hereto as Rider #2. Tenant
shall be authorized to pay Base Rent and Overhead Rent to the following defined
Lender upon notice from such Lender. Furthermore, Tenant shall be required to
send copies of any default notices to such Lender, and Lender shall be given a
reasonable opportunity to cure any such default before Tenant exercised any
termination right under this Lease, it being understood, however, that this
Lease grants to Tenant no such termination right "Lender" for this purpose is
XXXXXX BROTHERS BANK, FSB, its successors and/or assigns at the address set
forth in the Subordination, Nondisturbance and Attornment Agreement to be issued
by Lender in connection with this Lease.
30. ATTORNMENT AND MORTGAGEE'S REQUEST:
A. Attornment. If any mortgagee of the Building comes into possession
or ownership of the Premises or acquires Landlord's interest in this Lease by
foreclosure of the mortgage or otherwise, then, upon such mortgagee's request,
Tenant shall attorn to such mortgagee or if any purchaser at a foreclosure sale
takes title to the Building (such mortgagee or foreclosure purchaser being
referred to as the "New Owner"), then, upon such New Owner's request, Tenant
shall attorn to the New Owner as successor Landlord under this Lease, and, in
such event, the New Owner's liabilities shall be limited to liabilities accruing
from and after the date that such new Owner assumes its role of successor
Landlord by ownership. The new Owner shall not have any obligation to cure
defaults existing as of the date it becomes the New Owner unless such defaults
are of a continuing nature and Tenant has given the New Owner notice thereof and
a reasonable opportunity to cure such default following the date of Tenant's
notice. The New Owner shall not have any obligation to return or otherwise
credit the Security Deposit to Tenant unless the New Owner has actually received
such Security Deposit. The New Owner shall not be obligated to Credit Tenant for
any payments under the Lease made more than one month in advance, nor shall the
New Owner be bound by this Lease, or any modifications, terminations,
extensions, grants of purchase options, grants of first refusal, declarations of
default and other actions by Landlord unless (i) this Lease is to a tenant that
is not an entity controlled by, or under common control with Landlord; (ii) this
Lease is for an amount that is at least a reasonable market rate as of the date
of this Lease; (iii) this Lease does not allow payment of any sums due hereunder
more than one month in advance and, accordingly, this Lease prohibits payments
by Tenant that are more than one month in advance of the related period (except
for a Security Deposit); (iv) any agreement for the early termination or
reduction in size of the Premises has been delivered to any such mortgagee not
less than five (5)
42
days prior to its effective date, and any associated space contraction or early
termination payment is delivered to such lender if so requested by such lender;
(v) this Lease does not demise more than five percent (5%) of Airport Corporate
Center (which contains approximately 1,106,525 net rentable square feet).
B. Mortgage Modification. If a mortgagee of the Building requests
modifications to this Lease as a condition to disbursing any monies to be
secured by the mortgage, Xxxxxx agrees that within ten (10) business days after
request by the mortgagee Tenant shall execute, acknowledge and deliver to the
mortgagee an agreement, in form and substance satisfactory to the mortgagee,
evidencing such modifications, provided that such modifications do not alter the
Lease Term or increase Tenant's obligations under this Lease or materially
adversely affect the leasehold interest created by this Lease.
31. ASSIGNMENT BY LANDLORD: If Xxxxxxxx's interest in this Lease is assigned
or transferred, Landlord shall, upon transfer of the Security Deposit to the new
landlord, be released from all further liability to Tenant under this Lease.
32. SURRENDER OF PREMISES; HOLDING OVER:
A. Surrender. Xxxxxx agrees to surrender the Premises to Landlord on
the Expiration Date (or sooner termination of the Lease Term pursuant to other
applicable provisions hereof) in as good condition as existed at the
commencement of Tenant's occupancy, ordinary wear and tear and damage by fire
and other casualty not caused by Tenant or Xxxxxx's Agents excepted. At the
expiration or termination of the Lease Term, Tenant shall deliver to Landlord
all keys, pass cards and similar devices and make known to Landlord the location
and combination of all safes, locks and similar items.
B. Removal. Upon expiration or termination of the Lease Term, Tenant
shall not be required to remove from the Premises the Building Standard items
installed by Landlord; all of such Building Standard items are the property of
Landlord. However, if Tenant installs or causes to be installed fixtures, trade
fixtures or any tenant improvements in excess of Building Standard, then
Landlord shall have the option of retaining such items or requiring Tenant to
remove same prior to the expiration of the Lease. If Landlord elects to require
Tenant to remove such items, then the cost of removal shall be at Tenant's sole
cost and expense, and Tenant shall restore all damage caused in connection with
the removal within five (5) days after the removal of such items. Landlord shall
have no obligation to compensate Tenant for any items which are required
hereunder to remain on or with the Premises.
C. Holdover. Without limiting Landlord's rights and remedies, if Xxxxxx
holds over in possession of the Premises beyond the expiration or termination of
the Lease Term (as may be extended), then during the holdover period the monthly
Rent shall be, for the first three months of such holdover period, one hundred
twenty-five percent (125%) of the amount of Rent due and payable for the last
month of the Lease Term (as then extended if a Renewal Option had then been
exercised), for the next three months one hundred fifty percent (150%) of the
amount of Rent due and payable for the last month of the Lease Term (as then
extended if a Renewal Option had then been exercised) and, thereafter, double
the amount of the Rent due and payable for the last month of the Lease Term, (as
then extended if a Renewal Option had then been exercised).
43
D. No Surrender. No offer of surrender of the Premises, by delivery to
Landlord or its agent of keys, pass cards or similar devices to the Premises or
otherwise, shall be binding on Landlord unless accepted by Landlord, in writing,
specifying the effective surrender of the Premises. No receipt of money by
Landlord from Tenant after the Expiration Date (or sooner termination of this
Lease) shall reinstate, continue or extend the Lease Term, unless Landlord
specifically agrees to any such reinstatement, continuation or extension in a
writing signed by Landlord at the time such payment is made by Xxxxxx.
33. NO WAIVER; CUMULATIVE REMEDIES:
A. No Waiver. No waiver of any provision of this Lease by either party
shall be deemed to imply or constitute a further waiver by such party of the
same or any other provision hereof. The rights and remedies of Landlord under
this Lease or otherwise are cumulative and are not intended to be exclusive and
the use of one shall not be taken to exclude or waive the use of another, and
Landlord shall be entitled to pursue all rights and remedies available to
landlords under the laws of the State of Florida. Landlord, in addition to all
other rights which it may have under this Lease, hereby expressly reserves all
rights in connection with the Building or the Premises not expressly and
specifically granted to Tenant under this Lease, and Tenant hereby waives all
claims for damage, loss, expense, liability, eviction or abatement it has or may
have against Landlord on account of Landlord's exercise of its reserved rights,
including, without limitation, Landlord's right to alter the existing name,
address, style or configuration of the Building or the common areas, signage,
suite identifications, parking facilities, lobbies, entrances and exits,
elevators and stairwells in ways that do not materially reduce or impair
Tenant's rights under this Lease and that do not change the location of Tenant's
reserved parking spaces unless materially similar spaces are substituted or
reduce Tenant's allocation of unreserved parking spaces.
B. Rent Payments. No receipt of money by Landlord from Tenant at any
time, nor any act or thing done by Landlord or its agent, shall be deemed a
release of Tenant from any liability whatsoever to pay Base Rent, Overhead Rent,
Additional Rent or any other sums due hereunder, unless such release is in
writing, signed by a duly authorized officer or agent of Landlord and refers
expressly to this Section 33(B). Any payment by Tenant or receipt by Landlord of
less than the entire amount due at such time shall be deemed to be on account of
the earliest sum due. No endorsement or statement on any check or any letter
accompanying any check or payment shall be deemed an accord and satisfaction. In
the case of such a partial payment or endorsement, Landlord may accept such
payment, check or letter without prejudice to its rights to collect all
remaining sums due and to pursue all of its remedies under this Lease.
34. WAIVER: To the extent permitted by law, Tenant hereby waives: (a) its
right to a jury trial in any action or proceeding regarding a monetary default
by Tenant and/or Landlord's right to possession of the Premises; and (b) in any
action or proceeding by Landlord for monies owed by Xxxxxx and/or possession of
the Premises, Xxxxxx's right to interpose any crossclaim or counterclaim (except
a mandatory crossclaim or counterclaim if the same is provided for pursuant to
Florida law), however, Tenant shall not be prohibited from bringing a separate
lawsuit against Landlord.
35. CONSENTS AND APPROVALS: If Tenant requests Xxxxxxxx's consent or approval
under this Lease, and if in connection with such request Landlord deems it
necessary to seek the advice of its attorneys, architects and/or other experts,
then Tenant shall pay the reasonable fee of Landlord's
44
attorneys, architects and/or other experts in connection with the consideration
of such request and/or the preparation of any documents pertaining thereto.
Whenever under this Lease Landlord's consent or approval is expressly or
impliedly required, the same shall not be unreasonably withheld or delayed
unless the right to grant or withhold such consent or approval in Landlord's
sole discretion has been expressly reserved.
36. RULES AND REGULATIONS: Tenant shall abide by all rules and regulations,
attached hereto as EXHIBIT "D" and incorporated herein by this reference, as
reasonably amended and supplemented from time to time by Landlord. Landlord
shall not be liable to Tenant for violation of the same or any other act or
omission by any other tenant. In the event of any conflict between the rules and
regulations and the terms of this Lease, then the terms of this Lease shall
prevail. Notwithstanding any contrary provision of the Rules and Regulations,
(i) Tenant shall not be required to continuously operate the Package Air
Conditioning Unit serving the Premises provided that at least normal office
building temperatures are maintained in the area of the Premises serviced by
such unit; (ii) Tenant shall be responsible for replacing the windows of the
Premises only if Tenant is responsible for the damage to them; (iii) Tenant's
responsibility for damage to the Premises shall be subject to the normal wear
and tear therein.
37. SUCCESSORS AND ASSIGNS: This Lease shall be binding upon and inure to the
benefit of the respective heirs, personal and legal representatives, successors
and permitted assigns of the parties hereto.
38. QUIET ENJOYMENT: Upon Tenant paying the Rent and performing all of
Tenant's covenants and obligations under this Lease as and when required
pursuant to the terms of this Lease, Tenant may peacefully and quietly enjoy the
Premises during the Lease Term as against all persons or entities lawfully
claiming by, through or under Landlord, subject, however, to the provisions of
this Lease, the covenants, conditions or restrictions, affecting the Building or
the land on which the Building is located, and to any mortgages or ground or
underlying leases of all or any portion of the Project, other matters to which
this Lease is subordinate, and the provisions of Section 42(O) of this Lease.
39. ENTIRE AGREEMENT: This Lease, together with the BLI Rider, exhibits
attached to this Lease and guaranties (if any), all of which are fully
incorporated into this Lease by this reference, contains the entire agreement
between the parties hereto regarding the subject matters referenced herein and
supersedes all prior oral and written agreements between them regarding such
matters. This Lease may be modified only by an agreement in writing dated and
signed by Xxxxxxxx and Tenant after the date hereof.
40. HAZARDOUS MATERIALS:
A. Prohibition of Storage. Tenant shall, at its own expense, at all
times and in all respects comply with all federal, state and local laws,
statutes, ordinances and regulations, rules, rulings, policies, orders and
administrative actions and orders (collectively, "Hazardous Materials Laws"),
including, without limitation, any Hazardous Materials Laws relating to
industrial hygiene, environmental protection or the use, analysis, generation,
manufacture, storage, disposal or transportation of any oil, flammable
explosives, asbestos, urea formaldehyde, radioactive materials or waste,
infectious waste, or other hazardous, toxic, contaminated or polluting
materials,
45
substances or wastes, including, without limitation, any "hazardous substances",
"hazardous wastes", "hazardous materials" or "toxic substances" under any such
laws, ordinances or regulations (collectively, "Hazardous Materials"). Tenant
shall, at its own expense, procure, maintain in effect and comply with all
conditions of any and all permits, licenses and other governmental and
regulatory approvals, relating to the presence of Hazardous Materials within,
on, under or about the Premises by, through or under Tenant and required for
Tenant's use of any Hazardous Materials in or about the Premises, in conformity
with all applicable Hazardous Materials Laws and prudent industry practices
regarding management of such Hazardous Materials. Landlord recognizes and agrees
that Tenant may use Hazardous Materials in normal quantities that are applicable
to general office use and that such use by Tenant shall not be deemed a
violation of this Section so long as the levels are not in violation of any
Hazardous Materials Laws. Upon termination or expiration of this Lease, Tenant
shall, at its own expense, cause all Hazardous Materials placed in or about the
Premises by Tenant or at Tenant's direction to be removed from the Premises and
the Building's common areas and transported for use, storage or disposal in
accordance and compliance with all applicable Hazardous Materials Laws. Tenant
shall indemnify, protect, defend (by counsel reasonably acceptable to Landlord),
and hold Landlord and Landlord's employees, agents, invitees, licensees and
contractors free and harmless from and against any and all claims, liabilities,
penalties, forfeitures, losses, costs and expenses (including attorneys' fees)
or death of or injury to any person or damage to any property whatsoever,
including, without limitation, the Building's common areas, arising from or
caused in whole or in part, directly or indirectly, by (i) the presence in or
about the Premises of any Hazardous Materials by, through or under Tenant, (ii)
Tenant's failure to comply with any Hazardous Materials Laws, or (iii) any
removal, remediation, clean up, restoration and materials required hereunder to
return the Premises and any other property of whatever nature to the condition
which existed prior to the presence of the Hazardous Materials. Landlord hereby
confirms and agrees that Xxxxxx's liability under this Section 40 is for
violations of Hazardous Materials Laws by, through or under Tenant, and that
Tenant has no liability for any preexisting violations of Hazardous Materials
Laws or for any violations by Landlord or any third party (provided that such
third party was not acting at the direction of Tenant in connection with the
activities giving rise to such violation.)
B. Disclosure Warning and Notice Obligations. Tenant shall comply with
all laws, ordinances and regulations regarding the disclosure of the presence or
danger of Hazardous Materials. Tenant acknowledges and agrees that all reporting
and warning obligations required under the Hazardous Materials Laws are the sole
responsibility of Tenant, whether or not such Hazardous Materials Laws permit or
require Landlord to provide such reporting or warnings, and Tenant shall be
solely responsible for complying with the Hazardous Materials Laws regarding the
disclosure of the presence or danger of Hazardous Materials. Tenant shall
immediately notify Landlord, in writing, of any complaints, notices, warnings,
reports or asserted violations of which Xxxxxx becomes aware relating to
Hazardous Materials on or about the Premises. Tenant shall also immediately
notify Landlord if Xxxxxx knows or has reason to believe that Hazardous
Materials have or will be released on or about the Premises. Tenant shall permit
access, if requested, to the Premises for the purpose of monitoring pursuant to
this Section 40 by the Miami-Dade County Department of Environmental Resource
Management (DERM) and/or the State of Florida Department of Environmental
Resources.
C. Environmental Tests and Audits. Tenant shall not perform or cause to
be performed any Hazardous Materials surveys, studies, reports or inspections
relating to the Premises without
46
obtaining Landlord's advance written consent. At any time prior to the
expiration or termination of the Lease Term, Landlord shall have the right to
enter upon the Premises in order to conduct appropriate tests and to deliver to
Tenant the results of such tests to demonstrate that levels of any Hazardous
Materials in excess of permissible levels has occurred as a result of Xxxxxx's
use of the Premises.
With regard to any environmental audits performed relating to the Premises
or the Building, the following shall apply:
1. Results Confidential. The environmental site assessment shall
be prepared for the sole and exclusive use of Tenant and
Landlord (or Landlord's mortgagee, lenders or regulatory
bodies), and Tenant shall not release such assessment, or any
information contained therein, to any third party (including,
without limitation, any governmental agency) except if
required by law or upon the prior written consent of Landlord,
which consent may be withheld in Landlord's sole discretion.
2. Indemnification by Tenant. Tenant shall indemnify, defend upon
request, and hold Landlord harmless from and against all
costs, damages, claims, liabilities, expenses, losses, court
costs including appellate or bankruptcy courts), and
attorney's fees suffered or claimed against Landlord, based in
whole or in part upon the breach of this clause by Xxxxxx.
3. Survival of Obligation. The obligations within this clause
shall survive the expiration or earlier termination of this
Lease.
D. Survival of Obligations. The respective rights and obligations of
Landlord and Tenant under this Section 40 shall survive the Expiration Date or
earlier termination of this Lease.
41. BANKRUPTCY PROVISIONS:
A. Event of Bankruptcy. If this Lease is assigned to any person or
entity pursuant to the provisions of the United States Bankruptcy Code, 11
U.S.C. Section 101 et seq. (the "Bankruptcy Code"), any and all monies or other
considerations payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord and shall not constitute the
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other considerations not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and
shall be promptly paid or delivered to Landlord.
B. Additional Remedies. In addition to any other rights or remedies
conferred upon Landlord under the terms of this Lease, the following remedies
and provisions shall specifically apply in the event Tenant engages in any one
or more of the acts contemplated by the provisions of Sections 24(A)(3),
24(A)(4), 24(A)(5) or 24(A)(6) of this Lease (singularly, a "Bankruptcy Event"):
(1) In the event of an assumption of this Lease by a debtor or by
a trustee, such debtor or trustee shall within fifteen (15) days after such
assumption (i) cure any defaults under this Lease or provide adequate assurance
that defaults will be promptly cured; (ii) compensate Landlord for actual losses
or provide adequate assurance that compensation will be made for actual losses,
47
including, without limitation, all attorneys' fees and costs incurred by
Landlord resulting from any such proceedings; and (iii) provide adequate
assurance of future performance.
(2) The debtor or trustee may only assign this Lease if (i) the
assignee assumes this Lease; (ii) the assignee provides adequate assurance (as
hereafter defined) of future performance, whether or not there has been a
default under this Lease; (iii) the debtor or trustee has received Landlord's
prior written consent pursuant to the provisions of Section 14 of this Lease;
(iv) the financial condition of the assignee is equal to or greater than that of
Xxxxxx's financial condition on the date Tenant executed this Lease as evidenced
by the assignee's last filed federal income tax return and last three years'
audited financial statements; and (v) the assignee is in the same or similar
business than that of Tenant. Any consideration paid by the assignee in excess
of the rental reserved in this Lease shall be the sole property of, and promptly
paid to, Landlord. The parties agree that the term "adequate assurance" shall
include, without limitation, at least the following: (a) a proposed assignee
must have, as demonstrated to Landlord's reasonable satisfaction, a net worth
(as defined in accordance with GAAP consistently applied) in an amount
sufficient to assure that the proposed assignee will have the resources to meet
the financial responsibilities under this Lease, including, without limitation,
the payment of all Rent; and (b) any assumption of this Lease by a proposed
assignee shall not adversely affect Landlord's relationship with any of the
tenants in the Building (or with any of the tenants in the Project), taking into
consideration any and all other "use" clauses and/or "exclusivity" clauses which
may then exist under their leases with Landlord.
42. MISCELLANEOUS:
A. Severability; Governing Law. If any term or condition of this Lease
or the application thereof to any person or circumstance is, to any extent,
invalid or unenforceable, the remainder of this Lease, or the application of
such term or condition to persons or circumstance other than those as to which
it is held invalid or unenforceable, is not to be affected thereby and each term
and condition of this Lease is to be valid and enforceable to the fullest extent
permitted by law. This Lease shall be construed in accordance with the laws of
the State of Florida.
B. No Offer. Submission of this Lease to Tenant does not constitute an
offer by Landlord, and this Lease shall become effective only upon its execution
and delivery by Landlord and Tenant.
C. Entire Agreement. Tenant acknowledges that it has not relied upon
any statement, representation, prior or contemporaneous written or oral
promises, agreements or warranties, except those that are expressly stated in
this Lease.
D. Payment of Taxes. Tenant shall pay, before delinquency, all taxes
assessed during the Lease Term against (i) all personal property, trade
fixtures, and improvements located in or upon the Premises, and (ii) any
occupancy interest of Tenant in the Premises.
E. Early Occupancy. If Tenant, with Xxxxxxxx's consent (which consent
may be withheld in Landlord's sole discretion), occupies the Premises or any
part thereof prior to the beginning of the Lease Term for the purpose of the
conduct of its business (but Tenant's Pre-Completion Access under EXHIBIT "B"
hereto shall not he deemed early occupancy), then all provisions of this Lease
shall be in full force and effect commencing upon such occupancy, and
48
Base Rent, Overhead Rent and Additional Rent, where applicable, for such period
shall be paid by Tenant at the same rate herein specified proportionally
allocated to the portion of the Premises being so occupied. In no event,
however, shall the Rent Commencement Date be other than as set forth in the
Basic Lease Information Rider.
F. Brokers. Each party represents and warrants that it has not dealt
with any agent or broker in connection with this transaction except for the
agents or brokers, if any, specifically set forth in the BLI Rider with respect
to each Landlord and Tenant. If either party's representation and warranty
proves to be untrue, such party shall indemnify the other party against all
resulting liabilities, costs, expenses, claims, demands and causes of action,
including reasonable attorneys' fees and costs through all appellate actions and
proceedings. The foregoing shall survive the Expiration Date or earlier
termination of the Lease Term.
G. Recording. Neither this Lease nor any memorandum hereof shall be
recorded by Xxxxxx in the Public Records of Miami-Dade County, Florida.
H. No Other Relationship. Nothing contained in this Lease shall be
deemed by the parties hereto or by any third party to create the relationship of
principal and agent, partners, joint venturers or any other association between
Landlord and Tenant, it being expressly understood and agreed that neither the
method of computation of Rent nor any other provisions contained in this Lease
nor any act of the parties hereto shall be deemed to create any relationship
between Landlord and Tenant other than the relationship of landlord and tenant.
I. Interpretation; Construction. The headings of articles, sections or
paragraphs are for convenience only and shall not be relevant for purposes of
interpretation of the provisions of this Lease. This Lease shall not be more
strictly construed against either party hereto by reason of the fact that one
party may have drafted or prepared any or all of the terms and provisions
hereof.
J. Easements. This Lease does not create, nor shall Tenant have, any
express or implied easement for or other rights to air, light or view over or
about the Building or any part thereof. Any diminution or shutting off of light,
air or view by any structure which may be erected on lands adjacent to the
Building shall in no way affect this Lease nor impose any liability on Landlord.
X. Xxxxxxxx's Rights. Landlord reserves the right to use, install,
monitor, and repair pipes, ducts and conduits within the walls, columns, floors
and ceilings of the Premises.
L. Delegation. Any acts to be performed by Landlord under or in
connection with this Lease may be delegated by Landlord to its managing agent or
other authorized person or firm.
M. Joint and Several Liability. If more than one person or entity is
named herein as Tenant, their liability hereunder shall be joint and several. In
case Tenant is a partnership, it is agreed that each and every present and
future general or managing partner in Tenant shall be and remain at all times
jointly and severally liable hereunder and that neither the death, resignation
or withdrawal of any partner, nor the subsequent modification or waiver of any
of the terms and provisions of this Lease, shall release the liability of such
partner under the terms of this Lease unless and until Landlord shall have
consented (which consent may be withheld in Xxxxxxxx's sole discretion) in
writing to such release.
49
N. Zoning. Landlord has made no inquiries about and makes no
representations (express or implied) concerning whether Xxxxxx's proposed use of
the Premises is permitted under applicable law, including, without limitation,
applicable zoning law. If Xxxxxx's proposed use is prohibited, Tenant shall be
obligated to comply with applicable law, and this Lease shall nevertheless
remain in full force and effect.
O. Force Majeure. Notwithstanding anything to the contrary in this
Lease, if Landlord cannot perform any of its obligations due to events beyond
Landlord's control, the time provided for performing such obligations shall be
extended by a period of time equal to the duration of such events. Events beyond
Landlord's control include, without limitation, hurricanes, floods, war, civil
commotion, labor disputes, strikes, fire or other casualty, shortages of labor
or material, government regulation or restriction, and weather conditions.
P. Time. Time is of the essence with regard to Xxxxxxxx's and Xxxxxx's
obligations under this Lease. Any reference herein to time periods shall, in the
computation thereof, include Saturdays, Sundays and legal holidays, but any time
period provided for herein which shall end on a Saturday, Sunday or legal
holiday shall extend to 5:00 P.M. on the next full business day.
X. Xxxxx and UBTI Restrictions. Notwithstanding anything to the
contrary contained herein, including, without limitation, Section 14 above, no
assignment or subletting by Tenant, nor any other transfer or vesting of
Tenant's interest hereunder (whether by merger, operation of law or otherwise),
shall be permitted if:
(1) Landlord, or any person designated by Landlord as having an
interest therein, directly or indirectly, controls, is controlled by, or is
under common control with (i) the proposed assignee, sublessee or successor-in-
interest of Tenant or (ii) any person which, directly or indirectly, controls,
is controlled by or is under common control with, the proposed assignee,
sublessee or successor-in-interest of Tenant;
(2) the proposed assignment or sublease (i) provides for a rental
or other payment for the leasing, use, occupancy or utilization of all or any
portion of the Leased Premises based, in whole or in part, on the income or
profits derived by any person from the property so leased, used, occupied or
utilized other than an amount based on a fixed percentage or percentages of
gross receipts or sales or (ii) does not provide that such assignee or subtenant
shall not enter into any lease, sublease, license, concession or other agreement
for the use, occupancy or utilization of all or any portion of the Leased
Premises which provides for a rental or other payment for such use, occupancy
or utilization based, in whole or in part, on the income or profits derived by
any person from the property so leased, used, occupied or utilized other than an
amount based on a fixed percentage or percentages of gross receipts or sales; or
(3) in the reasonable opinion of Landlord and Landlord's counsel,
such proposed assignment, subletting or other transfer or vesting of Tenant's
interest hereunder (whether by merger, operation at law or otherwise) will (i)
cause a violation of the Employee Retirement Income Security Act of 1974 by
Landlord, or by any person which, directly or indirectly, controls, is
controlled by, or is under common control with, Landlord or any person who
controls Landlord or (ii) result or may in the future result in Landlord, or any
person which, directly or indirectly, has an
50
interest in Landlord, receiving "unrelated business taxable income" (as defined
in the Internal Revenue Code).
R. Confidentiality. Tenant will maintain the confidentiality of this
Lease and will not divulge the economic or other terms of this Lease, in
writing, to any persons, other than Tenant's officers, directors, partners or
shareholders; Xxxxxx's attorneys, accountants and other professional consultants
(all of which Tenant parties shall be bound by this confidentiality obligation);
any governmental agencies; and pursuant to subpoena or other legal process.
S. Signage. Tenant shall have the nonexclusive right to place the name
"CONTINUCARE" (or Xxxxxx's then current name bearing a similar number of
letters) on both faces of the monument sign for the Building in a position
designated by Landlord. Tenant shall be responsible for the cost of fabricating
and installing such letters to be affixed to the monument sign, and for the cost
of the removal thereof at the expiration or earlier termination of this Lease
or, if earlier, upon the date that Tenant no longer has rights to such monument
sign panel because of an assignment of this Lease or sublease of the Premises.
Tenant shall tender plans for its proposed design, material specifications and
installation of such monument sign panel to Landlord, which must be reasonably
approved in writing by Landlord prior to Tenant's installation. Landlord shall
place Tenant's name on the Building's lobby directory and shall install a
Building standard sign outside the entrance to the Premises. Such lobby and
entry sign shall be at Tenant's cost and expense, but subject to offset by the
Improvement Allowance under EXHIBIT "B" hereto.
T. Storage Space. In addition to the Premises, Tenant shall lease
certain storage space on the sixth floor of the Building identified on EXHIBIT
"A" hereto consisting of 115 square feet (the "Storage Space") for the amount of
$8.00 per square foot per year, namely the monthly rental amount of $76.67, plus
sales tax thereon. Tenant accepts the Storage Space in AS-IS condition. Tenant
acknowledges that Landlord shall not provide janitorial or other such services
with respect to the Storage Space. Tenant may terminate its Lease of the Storage
Space on sixty (60) days prior written notice to Landlord.
(execution page follows)
51
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed and delivered this
Lease as of the day and year first above written.
Witness: TENANT:
-------- -------
/s/ Xxxxxxx Xxxxxxxxx CONTINUCARE CORPORATION,
------------------------- a Florida corporation
Print Name: XXXXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
------------------------------------- ------------------------------------
Print Name: XXXXX XXXXXXXXX Name: XXXXXXX X. XXXXXXXXX, XX.
(As to Tenant) Its: CEO
Witness: LANDLORD:
/s/ Xxxxxxx Xxxxxxxxx MIAMI RPFIV AIRPORT CORPORATE
-------------------------------- CENTER ASSOCIATES LIMITED
Print Name: XXXXXXX XXXXXXXXX LIABILITY COMPANY, a Delaware limited
liability company
/s/ Xxxxx X. Xxxxx
--------------------------------- By: MIAACCIV, LLC, a Delaware limited
Print Name: XXXXX X. XXXXX liability company, its Managing Member
(As to Landlord)
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: XXXXXX XXXXXX
Its: Vice President
52
